Bunnell v. Read

21 Conn. 586 | Conn. | 1852

Church, Ch. J.

The superior court has found the averments in this bill to be true. Upon a first reading of it, there seems to be a doubt as to what property the parties to the deed to Hubbell, Thatcher & Green intended to include, by the description of the premises contained in it; and whether they meant to sell and to buy anything not situated in the town of Bridgeport. The defendants act upon the assumption, that nothing else was in contemplation, and that no other property was paid for, by Hubbell & Co. We think this is a false construction of the language of the bill, and a misapprehension of the object of the purchase.

Although the deed from the Pequonnuck Manufacturing Company and Diantha Bunnell to Hubbell, Thatcher & Green, referred to by the bill, does not, in its terms, describe property located out of Bridgeport, yet it is averred, that the proposition of the grantees was, to convey all the interest which the grantees had in all the real estate and privileges used and occupied, by the Pequonnuck Company, in working their mills; and it must have been equally the intention of the purchasers to buy them. But a portion of this property was in fact situated in the adjoining town of Trumbull, separated from the residue only by an ideal township line, and was originally purchased and used, for the purpose of a reservoir of water for the use of the mills themselves, and necessary for their profitable enjoyment. As we understand this bill, the only difficulty was, that Hubbell & Co., when they purchased, did not know that the town line separated the property they had contracted for, but the grantors did.

Whether the omission in the deed to give a full and accurate description of the property, was the result of fraud or mistake, is not material; in either alternative, a court of equity will interfere to do justice between the parties interested.

The superior court has found, that the intention of all the parties to the conveyance, was, that the property now in dispute should be conveyed to Hubbell & Co., as a part of their purchase, and that the whole was paid for, by them, by the satisfaction of their demand against the Pequonnuck Company, and the payment of the claim and mortgage of the said Diantha Bunnell.

If then Hubbell & Co. actually contracted and paid for the property in question, and either by fraud or mistake, have not received the legal title to it; yet they have a vested equitable interest and title, so that their grantors may be treated as holding the legal title in trust for them. 2 Sto. Eq. § 789. 1212. Champion v. Brown, 6 Johns. Ch. R. 398.

But it is objected, that, as Hubbell, Thatcher & Green claim nothing, and do not insist either upon fraud or mistake in the conveyance, these plaintiffs, strangers to the purchase, have no right to disturb it. If this had been merely a contract for a purchase, unexecuted on either side, by payment of the consideration, or possession taken, a mere chose in action, so that no interest, either legal or equitable, in the land itself, had vested, this argument might avail; but here, as we have said, an interest did vest in Hubbell & Co., so as to create a trust, which was assignable and descendible, and which could be taken on execution. 2 Sto. Eq. § 1212. Whittlesey v. McMahon, 10 Conn. R. 138. Beers v. Botsford, 11 Conn. R. 369. Davenport v. Lacon, 17 Conn. R. 278.

It must follow, from these premises, that these plaintiffs, creditors of Hubbell & Co., had a right to take their interest, by execution;-a right which does not depend upon the consent or coöperation of the debtors. Such equitable interest as Hubbell & Co. had in the property situated in the town of Trumbull, has been set off to the plaintiffs, their creditors, on execution, and it is the duty of a court of equity to make it available to them, unless some other objections of greater weight exist, that have yet been suggested.

It is however claimed, for William R. Bunnell, one of these defendants, that it does not any where appear, that he had notice of the condition of the title, when he received his deed, prior in time to the plaintiffs’ lien. This is true; but it does not appear, although he received a release or quit claim deed from Diantha Bunnell, that he was therefore a purchaser for valuable consideration, without which, he is not protected by want of notice, if indeed he was without notice. If he was such a purchaser, the fact was known to himself; and if he would avail himself of this and a want of notice, it was incumbent upon him, in plea or answer, to aver it, and set out the consideration of his purchase. 2 Sw. Dig. 236. Coop. Eq. Pl. 281. Mitf. Pl. 277 and notes.

Still another objection is made, which is, that Hubbell, Thatcher & Green are not made parties to this proceeding. The bill alleges, that these persons have no remaining interest in the property in dispute, which has all been taken, and set off on the plaintiffs’ execution. Why then should they be made parties? If they have in truth yet an outstanding interest, notwithstanding the allegations in the bill to the contrary, and the defendants would avail themselves of it, for any purpose, it should have been by demurrer, for want of parties, or in some other appropriate way. But however this may be, it is quite too late now, to make this objection in this way, as we have often decided. Lee v. The New London Bank, 11 Conn. R. 112.

We are satisfied, that no good objection exists against granting the prayer of this bill; and that the decree of the superior court should be affirmed.

In this opinion the other judges concurred, except Waite, J., who was disqualified under the late statute.

Judgment affirmed.