9 Pa. 279 | Pa. | 1848
Subject to certain subordinate questions of evidence, the plaintiff presents his case here, as it was presented below, in three principal aspects. First, upon the hypothesis of actual fraud, intended and perpetrated by the acting executor and purchaser. Second, upon the ground of constructive fraud, springing, by the operation of the equitable rule, from the purchase made by one of the trustees of the trust property. And, third, upon the question whether there was such a confirmation of the sale as operates to withdraw it from the equitable right of the cestui que trust, to avoid it, upon certain conditions ?
In connexion with the second of these points, the court below laid it down as a rule of universal application, that where a trustee, or one connected with or having any control over the trust property, becomes the purchaser of it, it is in the option of the cestui que trust to treat the purchase as a nullity, though conceded to have been fairly made and for a full price; but that such a sale is not void, but voidable only, the legal title passing to the purchaser until the sale be set aside by a competent tribunal, which will only
But the plaintiff also complains of this part of the charge. Losing sight of the established distinction between actual fraud, which infects the act with radical nullity, and the constructive fraud, implied from the more fact of purchase by a curator or trustee, where the taint is latent until the virus is stirred to activity by positive objection; he insists the court should have declared the sale to the defendant absolutely void, and asserted the plaintiff’s right to recover unconditionally. This pretension is founded on the case of Michoud v. Girod, 4 Howard, 553, which his counsel seem to think goes the whole length of establishing the doctrine they contend for. But this, I conceive', is an error. It is true that some of the language of the learned judge who delivered the opinion of the court, abstracted from the facts of the case and its actual determination, would seem to indicate his inclination to hold a purchase by a trustee, under any circumstances, as utterly and entirely void. But the decree pronounced, properly understood, is in accordance with the almost unbroken current of decision on this subject, to which I shall presently advert; for though it charges the estate of the purchasing trustee with the full value of the trust property, and directs an account of rents and profits received, it allows him full credit for all the substantial improvements made, and proper outlays incurred, while the property remained in his hands. In these cases, as is justly observed by Story, in his Treatise on Equity, § 308, there is often to be found some intermixture of deceit, imposition, overreaching, unconscionable advantage, or other mark of direct and positive fraud; and it is pretty apparent there was so much of this present in Michoud v. Girod, as to give room for the strong remarks made from the bench. But the conclusion arrived at is by no means inconsistent with the doctrine stated by Lord Alvanloy, in Campbell v.Walker, 5 Ves. 678. that “ there is no rule a trustee cannot be a purchaser; but, however fair the transaction, it must be subject to an option in the cestui que trust, if he comes in a reasonable time, to have a re-sale.” Such a purchase, simply considered, is malum prohibitum and not malum in se, and is, therefore, capable of ratification. But though this be so, it is not sufficient to show that no advantage
The distinction between positive fraud, which by way of punishment deprives the purchaser of the land bought, without remuneration, and the effect attributed by policy to .’legal fraud, which works a divestiture on condition of repayment, is recognised by our own cases of Chronister v. Bushey, 7 W. & S. 152; Rankin v. Porter, supra; McGinn v. Shaeffer, 7 W. 414; Fisk v. Sarber, 6 W. & S. 21; Painter v. Henderson, 7 Barr, 48; and Wallington’s Estate, 1 Ash. 307. In McGinn v. shaeffer. when speaking of analogous contracts of purchase with infants, the court say the purchaser “takes, liable to a disaffirmance by them on attaining age. He will thus stand as a trustee, and entitled to be reimbursed his advances and charges, not covered by the rents and profits. He cannot be treated as a trespasser; the contract was not abso
Apart from any peculiar feature which may be thought to characterize the case, this cursory review of some of the authorities establishes the correctness of the views expressed by the court below, of the relative rights of these parties; and although, from our want of a court of ch^pcery, more inconvenience may be experienced in giving effect to the doctrine, and perhaps greater risk of wrong hazarded than in those communities where equity is administered by a separate jurisdiction, this affords no sufficient reason for repudiating principles founded in ordinary justice, and which long experience has shown to be usually productive of fair
As for Fetterman v. Murphy; it was a case of pure fraud, committed by reviving a satisfied judgment, for the purpose of execution, and actually selling the estate of a decedent under it.
"Was there, then, actual fraud perpetrated by this purchaser, in the course of the transaction ? This proposition was submitted to and negatived by the jury; but the manner of its submission, perhaps, renders some examination of its merits necessary. «The plaintiff insists the inquiry admits of an affirmative answer; and, in proof of it, he points, first, to the omission to insert in the exhibit accompanying the petition for the order of sale, what is called the Mackey claim, as part of the assets of the testator’s estate; the asserted fraudulent suppression of these assets, and the assertion of the McNabb claim as a debt due generally from the estate. Second, the procurement of the order of the court to sell the most profitable part of the estate of the testator, and to, a much .larger
1. The fact most prominently insisted on as manifesting the presence of fraud and corruption in the proceedings which led to the sale of the plaintiff’s property, is the suppression of the Mackey claim in the exhibit of Beeson’s estate, and, as connected with it, the asserted prior fraudulent neglect of the executors to collect and apply it in payment of the debts, in order, surreptitiously, to. procure a decree of sale of the realty. In answer to points embodying these supposed facts, the court, after referring to the possibility that this claim was embraced in the account previously settled by the acting executor, instructed the jury that, “ if the Mackey claim was a valid and subsisting debt, or one which might have been reasonably expected to have been made available to the estate, it was the duty of the executor to have made it known to the court, if he had not already done so; and if he wilfully withheld it, with a corrupt intent fraudulently to obtain an order of sale, which otherwise would not have been granted, it was a fraud upon the court, and would avoid the sale under an order so obtained, if the purchaser under such order was cognisant of, or in any way connected with the fraud, unless the party complaining of the fraud was a party to it. But the party alleging the fraud must prove it; and, in the absence of the account, you will determine whether there is any such evidence in the case as satisfies you of the alleged fraud. But if the claim in question was involved in doubt and uncertainty, and the executor, in the exercise of an honest discretion, believed that it could not be made available to the estate, there was no fraud in withholding it, even if it had not before been made known to the court; or if it should afterwards turn out that the executor was mistaken in his judgment upon the subject, and the debt should be collected.” And again: “ this claim, it appears by the evidence, was one of long standing, and one which had been long, in controversy. What its true condition was, you will determine from the evidence referred to. If it was wilfully withheld to obtain an order of sale, which would otherwise not have been granted, it is a fraud on the court, and a sale to a party cognisant of the fraud would be void. But if honestly, though mistakingly withheld, under the supposition that it was a lost debt, it is not fraudulent, and no such consequence would result from it. So if it was referred to in the account mentioned in the exhibit, it was all fair and honest, and would not affect the validity of the sale,
Of the correctness of these answers, except so far as they impute to Jesse Beeson participation in knowledge and negligence, no question has been made; nor could there be with propriety. Are they open to animadversion in the particulars complained of?
It is very clear that in bringing about the sale, Richard Beeson was the actor, and indeed, I think, it is not to be disputed that he was the sole acting agent in the administration of Henry Beeson’s estate. Under the evidence, no knowledge of the contents of the petition to the Orphans’ Court can be attributed to Isaac, that is not equally attributable to Jesse Beeson, who was himself an executor, then labouring under no disability. As neither- of them signed the petition, nor, so far as the proofs go, even actually saw it, it would seem they are visitable with but constructive notice, but if with anything beyond this, it is imputable to each alike. Both being of equal authority and duty, it follows from this that if it was obligatory on Isaac to supply the omission Complained of, it was equally so on Jesse. Yet, in the face of this equality of obligation, the latter seeks to punish the former for an omission of duty, in respect of which they are in pari delicto, by compelling him to a forfeiture of the purchase-money of the land, of which the complainant has always enjoyed the benefit; and of the loss of the improvements, of which the complainant would reap the advantage. But this is the penalty attendant only on positive fraud, in which the complainant has not participated. If he has, it would be against a.ll equity to permit him to enrich himself through the medium of it. It follows that before the plaintiff can call for the infliction of this penalty in his favour, involving, as it does, a destruction of the sale to the defendant, he must show, by proof, the existence of a corrupt collusion between the purchaser and acting executor, of which he was not cognisant. But how can
The non-collection of the Mackey debt is open to the same course of remark. Indeed, it is easy to see why it was not considered an available fund in 1836, by any of the executors. It arose from Henry Beeson’s connexion, as executor, with the estate of Stephen Mackey, sen., deceased, several years before the death of the former. It seems to have been complicated with a variety of facts, and is said to have presented many difficulties. To enforce it, an ejectment was brought by Henry Beeson, in the year 1829, against Stephen Mackey, jun. In the year 1832, the plaintiff having died, Jesse Beeson, the present plaintiff, was substituted as heir at law, for the use of the executors. In the year 1886, the defendant died, and Christopher Brown took his place, and, in 1838, confesséd judgment. But the right of Brown to do this as to part of the land embraced in the action, was disputed in another action of ejectment brought by Stephen Mackey, jun., and other parties having an interest in the land, and a recovery was had by them. In the mean time, N. Ewing, Esq., having made some arrangement with Brown for the purchase of his interest in the land, in the year 1838, paid the money claimed to be due Beeson’s estate, to his executors. But before this, all was doubt and uncertainty. Mr. Ewing expressly says, the claim was not available as assets in 1836, and that he had no intention of paying it until a short time before payment was made, in pursuance of his arrangement with Brown. True, he adds that, though a subject attended with great difficulty, he, as counsel of Henry Beeson, thought the plaintiff had a right to recover, though he was not confident he would ever recover; but Mr. Austin, who was retained on the other side, was
The designation of the. McNabb claim as a debt payable out of the general assets, has not been much insisted on as indicative of fraudulent design. The paper-books are very imperfect in showing the nature of this claim, but its history is exhibited by the cases of Beeson v. McNabb, 2 W. 106, and Same v. Same, 2 Barr, 422, from which it appears that, though partition of the real estate, late of Stigers, deceased, was commenced in the Orphans’ Court, it resulted in an amicable arrangement by his heirs, through which Henry Beeson became the purchaser of the house and lot in Union town, and, as such, assumed on himself personally, payment of Mrs. McNabb’s annuity during her life, and after her decease, of a principal sum to the heirs of the intestate. It was, therefore, properly included in the schedule of debts payable, generally, out of the assets of Henry Beeson’s estate.
2. The second ground insisted on as showing, in connexion with the first, the presence of actual fraud, is thought to be discoverable in the order of the Orphans’ Court, decreeing a sale of the most productive portion of the decedent’s estate, and to a much larger
The quality of conclusiveness, first happily applied by McPherson v. Cunliff to decrees of Orphans’ Court, and since steadily adhered to, till finally sanctioned by statutory enactment, cures all omissions and mistakes in the progress of a cause, when it appears the action of the court is within the circle of its legitimate powers. The doctrine is, that “ where there is a direct sentence on the very point, such is to be received as conclusive evidence not to be impeached from within, but, like all other acts of the highest judicial authority, is impeachable from without. And though it is not permitted to show that the court was mistaken in the original action, it may be shown it was misled by some collusive act between the parties:” 11 S. & R. 437.
In the present instance, it must be confessed, the petition presented is very imperfect in not containing- the usual affidavits of the value of the several properties enumerated in it, and the action of the court upon it indicates a laxity of practice by no means commendable. But, in the absence of objection by the court, to accept the omission of valuation as evidence of fraud in the applicant, or to ascribe to it a vitiating effect, would be, not only to clothe it with a character and quality not necessarily belonging to it, but to establish a highly dangerous rule, probably condemnatory of many titles derived from similar defective sources. It is impossible, now, to ascertain the reasons which influenced the judges in their selection of the particular property directed to be converted. They may have rested on their personal knowledge, or they may have sought information from some other reliable source. At all events, we are bound to suppose they acted understandingly and after due deliberation; for the maxim is, everything is presumed, in the absence of positive negation,
It must be conceded, that in a case of this kind, evidence that would serve but to embarrass a jury, without affording any legiti
3. It is said that the interposition of Pennock as a bidder, is, in itself, a fraud destructive of the sale. ' This proposition, embodied by the last point submitted by the plaintiff, is said to be based on an observation which fell from Mr. Justice Wayne, in Michoud v. Grirod, that a purchase- by a trustee or agent, per interpositam personam, carries fraud on the face of it. We'are aware that in this abstract proposition, the learned judge is sustained by high authority: 4 Yes. 411; 14 Yes. 504. But by this it was not intended to intimate that the employment of a third person fairly to bid for a trustee, is absolutely destructive of the purchase, ah initio, and as though it had never been. To this extent we cannot give it our assent. The books. are full of such instances, but I think no case can be found in which such a fact was allowed to work a distinction in the rule by which equity measures the validity and determines the binding efficacy of such purchases. We have seen that chancery does not denounce these transactions as morally wrong, but apart from express fraud will sustain them as vesting some, though a defeasible interest. If so, the substitution
It is true that where recourse is had to such an intervention, by way of trick and artifice, for the purpose of deceiving and misleading those in interest, it may amount to positive fraud, absolutely destructive to the purchase. So, if employed to palm an instrument of falsehood on the court, to induce it to do'what otherwise it would not have done. But though, on the argument here, such a purpose was assumed to exist, or, at least, said to be deducible from the facts in proof, it was not so put in the court below, nor do we see anything in the evidence to warrant such a conclusion. The simple fact that Pennock was returned as buyer, admits of easy explanation, consistent with lona fides, from the necessity already stated. For this reason, the practice is probably not unusual whenever a purchase of this kind is made at an Orphans’ Court sale; nor is it perceived that this allows a larger latitude for malpractice than is afforded in the ordinary instance of unofficial sales by trustees to themselves, per interpositam personam. This, of itself, has never been thought to furnish an objection on the basis of actual fraud.
These objections being disposed of, a question is made, whether the standard of requital which ought to be made by the plaintiff to the defendant, on avoidance of the sale, was correctly ascertained by the court in its instructions to the jury. This is now of little or no consequence, since the verdict ascertains a ratification of the defendant’s purchase. But the exception taken to the charge, in this particular, is destitute of merit. It springs from the idea that, as Richard Beeson was not authorized to satisfy the judgments recovered against Jesse Beeson, and there is no sufficient
As to the principal sum constituting what has been called Mr. McNabb’s claim: this was paid out of the purchase-money to Mr. Howell, representing the heirs of Stiger, by direction of the Orphans’ Court. Even holding Isaac Beeson liable for the due appropriation of the purchase-money by the acting executor, the decree is a sufficient protection until reversed on appeal.
If, then, the sale to the defendant was voidable merely, the next question presented is, are there any facts in the cause, showing such 'a subsequent confirmation of it by the plaintiff, as will bar his right to rescind it on terms of reimbursing the purchaser ? Though it is said that an act or contract radically null by force of positive law, or on principles of public policy and private morality, is incapable of confirmation, it is certain, merely voidable transactions admit of ratification, by various manifestations of acquiescence short of technical contract. Of this, our books furnish many instances, a few of which it may not be improper to refer to. The defective acknowledgment by a wife of the conveyance of her husband’s land, is cured by her joinder in an action.as .executrix to recover the purchase-money, and she will be thus barred of her dower: Share v. Anderson, 7 S. & R. 63. A consentable boundary-line fairly made by the guardian of an infant and an adult, binds the infant, if he acquiesces after attaining full age; Brown v. Caldwell, 10 S. & R. 114. The acceptance of a part of the purchase-money made by a sheriff’s sale of land, estops the party from disputing the validity of the sale: Strobel v. Smith, 8 W. 280; and the same effect was ascribed in Adlum v. Yard, 1 R. 171, to the
Although the errors assigned have not been examined seriatim, what has been said, covers all the points made in this court, on either side, except those arising from the plaintiff’s eighth and eleventh bills of exception, which I will now briefly consider.
With respect to the testimony of .Mr. Yeech, it is not objected that he was permitted to disclose the fact of his having been retained by Jesse Beeson to prosecute the writ of error sued in the action brought by Mrs. McNabb against the executors. It is conceded such an objection could not have prevailed, for an attorney is compellable to disclose, not only the name of the person by whom he was retained, but also the character in which his client employed him; whether as executor, trustee, or on his private account: Beckwith v. Benner, 6 C. & P. 681. But it is said there was error in permitting the witness to state that Richard Beeson was considered as a stakeholder; and that the suit was carried on to try whether Jesse or Mrs. McNabb was entitled to the money in controversy. Admitting that this could not have been stated if the witness derived his knowledge of the fact from Jesse, it nowhere appears such was the case, and knowledge derived from an independent source is not privileged. It must be remembered the court directed the witness not to detail communications made to him by his client, and it is to be presumed, in the absence of a cross-examination, this direction was obeyed. It is the business of the party claiming the benefit of exemption from the general rule, that compels all to disclose the truth, to show that the particular instance is privileged. Failing to do this, it must be taken against him. This was not done or offered to be done here, and, consequently, no mistake was committed in receiving the testimony.
The other exceptions to evidence, not specifically noticed, were not urged on the argument.
Judgment affirmed.