Bayer v. Cockerill

By the Court,

Orozier, C. J.

Two objections are made to the judgment below: First. That the findings were not sustained by sufficient evidence: Second. That the findings, if sustained by the evidence, did not warrant the judgment. These will be considered in the order stated. The first point under the first head is as to the effect of the deeds from Clark and Pew to Clark-son. It is claimed in behalf of Cockerill, that they ope.rated, under the law, as it stood at the time of their execution, to put the titles in Thomas C. Hughes. It is true they do not contain the words “ trustee for the use and benefit of Tabitha C, Hughes,” but that they should have included them, was not, at the time of their execution, necessary to exclude her husband from any interest in the property. Whatever will evidence* the intention of the grantor to have been that the conveyance should be for her sole use and benefit will be sufficient. The deed all the way through designates Clarkson as the trustee of Mrs. Hughes, and the covenants are with him in that capacity. The statute of 1855 in force at the time, expressly provides that such conveyance shall, to all intents and purposes, vest the title in the cestry que trust, so that, as to Clarkson at least, the title vests in Mrs. H., and if there could be any doubt of the effect of the' conveyance as to the husband, that doubt will be removed by an examination of the testimony. It nowhere shows the source of the consideration. It don’t appear whether it was money, or whatever else. It is not shown to have even been in the possession of Hughes or his wife. Had it been shown to have been money or other personal property, and in her possession, her possession might have been regarded as his possession, and operated to vest the ownership in him ; or had it been a chose in action and he shown to have exercised over it any act of ownership whatever, however apparently trifling, perhaps such a reduction to possession as the law makes necessary to vest the title in him, might have been inferred. But there is nothing of this in the testimony. All there is in the record upon the subject, is the recital in the deed, that the consideration was paid by Clarkson ; under suck circumstances it cannot be presumed that there was such possession of the consideration on the part of the husband, as would, by the common law, make the conveyance inure to his benefit. The conveyances, therefore, from Clark and New to Clarkson, vest the title solely and absolutely in Mrs. Hughes.

The next question is, whether the conveyance from Clarkson to Todd, vested the title in the latter as to Mrs. Hughes and Clarkson. There can be no doubt but that whatever of title, interest or claim, legal or equitable, Clarkson had, passed to Todd by the conveyance. The court found there was a sale by parol, by Mrs. Hughes to Clarkson, which means, probably, that there was a sale to Clarkson evidenced by parol testimony. In a proceeding by Clarkson against Mrs. Hughes to compel a conveyance, it would have been sufficient for a decree to that effect, notwithstanding the statute of 1851, if by parol testimony it was shown that she had received the purchase money and put him in possession, he having while in such possession, made valuable improvements. The ground upon which he would have been entitled to such decree would have been that he had the equitable title, and was entitled to the legal one. So far as these two, and all the other defendants, except Bayer, were concerned, it was competent to show that the equitable title was in Clarkson, and if that could have been shown by parol in the case supposed — of which there can scarcely be a doubt — then might it be so shown in this case. That the evidence although somewhat contradictory, would warrant such finding is very manifest. It tended to prove that Hughes, acting as the agent of his wife by verbal appointment, sold the property to Clarkson; that Clarkson paid or caused to be paid, her draft on him for the purchase money; that Clarkson was, by Hughes put in possession, and made valuable improvements; that the payment made by Clarkson inured directly to the benefit of Mrs. Hughes, and that she, being acquainted with the transaction, consented to or acquiesced therein. The finding of the court below, understood as above indicated, included these facts, and although this court, had the evidence been here for original consideration, might have come to a conclusion different from that arrived at by the court below, the finding for that reason alone ought not to be disturbed. There having been evidence tending to show, or from which might properly be inferred, the existence of every necessary fact, this court is bound by the finding of the court below, and must conclude, as that court did, that the equitable title was in Clarkson; was by Mm conveyed to Todd, and by Todd pledged to Cockerill. The only remaining question upon this branch of the case is as to the effect of the conveyance by Mrs. Hughes to Bayer; and to this there are three tolerably satisfactory answers. That conveyance was made June 2d, 1863, and is nothing more than a quitclaim. It purports only to “ remise, release and quitclaim ” to Bayer, the property in controversy ; that is, whatever interest she had at the time, was conveyed by it. She had only the legal title subject to the equitable title which had passed to Todd, and had been pledged to Cockerill; Bayer took subject to the same equities. Again: The court below was warranted in finding that Bayer had notice of the equitable rights of Cockerill. It might properly have found from the testimony that before Bayer purchased, all the deeds referred to, as well as the mortgage to Cockerill, were of record in the proper office; that Todd’s heirs were in possession by their tenant, and that Bayer’s agent had been actually notified of this possession and of the sale by Hughes as agent of Ms wife, to Clarkson, and the payment of the purchase money, and of Mrs. Hughes’ acquiescence therein; and that court did so find in finding that Cockerill’s lien was prior to all others, including Bayers, whatever it might be.

Finally: The suit in the court below was commenced February 13th, 1863; the summons was served on the 23d of the same month, and the publication was completed on the sixth of April, in the same year. Under these circumstances, no person, according to the 87th section of the Code, could acquire an interest in the real estate against Cockerill’s rights, upon the second objection to the judgment, but title remains to be determined. The construction hereinbefore put upon the findings of the court below, was to make them include the findings of the following facts, viz: Mrs. Hughes sold to Clarkson, received the purchase money and put him in possession, under which he made valuable improvements; that he conveyed to Todd, and Todd mortgaged to Cockerill to secure the money sued for; that Boyer had notice of all these things when he took his conveyance, and that the money sought to be recovered had not been paid. These facts, as between Cockerill and Bayer, gave the former the right to subject the lands to the payment of his claims, and such was the judgment rendered. It will be affirmed. ^

All the justices concurring.

Case Details

Case Name: Bayer v. Cockerill

Court Name: Supreme Court of Kansas

Date Published: Feb 15, 1865

Citation: 3 Kan. 282

Court Abbreviation: Kan.