41 Miss. 479 | Miss. | 1867
delivered the opinion of the court.
This bill was filed by the appellee against the appellants, the widow and heirs-at-law of Bedford E. Capers, deceased, to foreclose a mortgage executed by Capers and wife on a tract of land, as a security for several promissory notes made by Capera
The appellants answered, admitting most of the statements of the bill, and, byway of cross-bill, alleging that the sums of money paid, as above stated, were paid with money which was the separate property of Mary E. Capers, then the wife of Bedford E. Capers, and were taken from her capital and not from her income, and were received by McCaa with his full knowledge, design, and procurement; and insisting that this gave rise to a resulting trust in the hands of the husband for the use and benefit of the wife, which has not been defeated by his failure to pay at maturity, and which is superior to the equitable interest of McCaa, created by the mortgage; and that the mortgage only applies to the legal estate of Bedford E. Capers, and to his wife’s right of dower, in. the land conveyed.
Further, that after the death of her husband, she renounced the right of administration on his estate, to McCaa, who took out letters at September term, 18.62, and thereupon took possession of the mortgaged premises, and thereafter he, or those holding under him, received the rents, issues and profits thereof until the time of filing the bill, and that McCaa, as administrator' of Capers, took possession of seventy-five or eighty bales of cotton, and a large amount of corn, fodder, and other personal property, from all which he had, or ought to have had, m his possession, more than enough to pay all the debts of the deceased, including ’ this mortgage debt; and this personal property is alleged to be the proceeds of the labor of her slaves, belonging to her separate estate, and to have been a part of the income of her separate property; and she ■ insists that McCaa, having received said personal property, as assets of the deceased, is accountable for their value in this proceeding.
The answer to the cross-bill admits the payment of the sums of money by Capers on the mortgage debt, but denies all knowledge of the source from which he derived said sums, or that he received the same with the knowledge that they were derived from Mary E. Capers, or that it was done by his design and procurement ; and avers that he received said sums without knowing or inquiry how Capers obtained the money; it charges that the purchase by Capers and the payments made by him, were all done with the knowledge and assent, and by the assent, of said Mary. lie insists, that if she have any claim on account of the alleged appropriation of her husband, it is against her husband’s estate, and cannot be set up against McCaa; and he demurs to the relief prayed for by her as against him. He denies that the property received by him as administrator was received otherwise than as administrator. He states that all the personal property was appraised at the sum of $3,703.13, of which there was allotted to her $615, and that the balance in his hands, with the exception of fourteen bales of cotton stolen by jayhawkers, was sold by order of the Court of Probate; which said sale was reported by him to, and was confirmed by, said court. He avers that this embraced all the property of the deceased which came to his possession, and he entirely denies all the allegations of the cross-bill, to the contrary of these statements as to the personal property of the deceased: and that he has only received of the proceeds of the sale of the said property $78.40, which he has fully accounted for, and that the estate has been duly declared insolvent. He demurs to so much of the cross-bill as seeks to hold him accountable in a court of equity for the matters pertaining to his administration of McCaa’s estate. He denies that he ever had possession of the land, or received any rent for it.
The only error assigned is, that the demurrer to the cross-bill was sustained.
It appears, by the record, that a separate demurrer to the entire cross-bill was first filed; and that afterwards an answer to the cross-bill was filed containing a clause of demurrer to the relief sought in the cross-bill on account of the alleged payment of the wife’s money for the purchase-money of the land; and secondly, a clause of demurrer to the jurisdiction of the court in relation to the mattei’S pertaining to the administration of the estate, set up in the cross-bill. It would appear that the separate demurrer was in fact waived, and that the cause was submitted and considered upon the entire pleadings and proofs, as well as upon the special grounds of demurrer raised in the answer to the cross-bill.
The first question arising upon the demurrer is, whether the application of the wife’s money to the payment of the purchase-money of the land, under the circumstances of the case, creates a resulting trust in her favor upon the land, against the right of the mortgagor, the original vendor.
The ground on which the doctrine of resulting trust rests, with reference to property purchased with the money or means of one person and conveyed to another person, is the presumption of law that the party whose money is applied to the payment. for the property intended it for his own benefit, and that the nominal purchaser is a mere trustee. Adams’ Equity, 33. But this presumption is liable to be rebutted either by positive or negative proof, or by the declarations of the parties contemporaneous with the transaction of purchase, or by other direct proof of intention, or by the circumstances attending the transaction, showing that such was not the intention of the parties at the time. Ib. 31.
■ In the first place, the transaction originated in a sale and conveyance of the land by McCaa to Capers, the husband; and the purchase-money being, for the most part, unpaid, the mortgage involved in this suit was executed by Capers and wife to secure the payment of the unpaid purchase-money. These two instruments were executed on the same day, and must be regarded, in law, as contemporaneous acts. Consequently no absolute title vested in the husband under the deed to him. It is very clear that the wife could not have established her alleged resulting trust against her husband until the mortgage was discharged or satisfied. Eor he acquired no absolute title to the property, having instantly reconveyed it to the vendor upon receiving the conveyance to- himself. Much less could she assert such a right against the mortgagor. Eor he was the original owner and vendor of the land, and, as part of the same transaction by which he had conveyed it, took a reconveyance by way of mortgage to secure the payment of the purchase-money. He, then, occupied the position of a vendor, whose purchase-money was unpaid, and who had not conveyed the land. And it is manifest that a resulting trust can never be established to deprive the vendor of his claim upon the land for unpaid purchase-money, especially where he has made no conveyance. And indeed the whole doctrine of resulting trust in cases of this sort, proceeds on the idea that the land has been conveyed by the vendor, and that the purchase-money has been paid to him. We have been able to find no ease giving any support to the idea that a resulting trust can ever be established against a vendor whose purchase-money has not been paid, and who has not acted in bad faith. Nor can we perceive on what principle of equity such a doctrine could be maintained.
But, in addition to this, the wife assented to the reconveyance, by joining in the mortgage. This was part of the same
It is therefore clear that the demurrer to the relief sought in the cross-bill was properly sustained in this respect.
The second question, on the demurrer, is whether a court of equity was competent to grant the relief sought in the cross-bill, with reference to the administration of the estate in the Court of Probates.
The cross-bill — after setting out various matters of maladministration on the part of the administrator, and that he had, or ought to have had, in his possession, means more than enough to pay all the debts of the estate — prays for an account of the personalty received by the administrator, and that his acts as such may be reviewed, and that all errors and' mistakes may be corrected and reversed.
It is plain that all these matters belong to the jurisdiction of the Court of Probates exclusively, with which a court of equity could not interfere.
But it is insisted in behalf of appellants, that the personal property which came to MhOaa’s hands, as administrator, was the income of the wife’s separate estate, not subject in his hands to administration', and that he is therefore accountable in a court of equity for that property.
But this is clearly not the true aspect of the cross-bill. Taking all its statements into consideration, it is evident that he was sought to be made liable as administrator, and not other
"Were this, however, as insisted on by counsel in argument, we do not see how the alleged claim of the widow against McCaa for the conversion of her property to his own use, or to that of the estate of Capers, would entitle her to come into a court of equity for a redress of the grievance.
Let the decree be affirmed.
