Conner v. Tuck

| Ala. | Jan 15, 1847

ORMOND, J.

The parties litigant in this court, both admit the correctness of the decree of the chancellor as it respects the reformation of the deed from Abney and wife, to James M. Conner, by the restoration of his name as grantee in the deed, instead of that of David Conner, which, as the proof conclusively shows, had been falsely interpolated. The only question then arises out of the cross bill filed by J. M. Conner, in which it is alledged that his conveyance of the land to Duren, though absolute on its face, was executed, and delivered -to him upon a parol trust, that Duren should sell the land for the best price possible, and pay the complainant one half the purchase money, and that the complainant purchased with knowledge of this trust.

If James M. Conner is entitled to the relief he seeks, the cross bill in this case was proper. As defendant to the original bill, he could pray no other decree than to be dismissed with his costs; claiming as he does, one half the purchase money of the lands, he could not ask a decree in his favor without himself becoming an actor by filing a bill. [Cullum v. Erwin, 4 Ala. 461.] The subject matter of the cross bill may, in one sense, be said to grow out of, and be connected with the subject matter of the original bill, and as he is made a defendant for the purpose of concluding his title, it may be conceded the cross bill was proper. [Story’s Eq. Pl. 316.] But this point is not necessary to be determined in this case. The consent of the court was not necessary previous to filing the hill. How far the original suit would be arrested in its progress by the filing of a cross bill, and in what cases, and upon what conditions it would be stayed, are questions we are not now called on to determine, as no such question was made in the court below.

Concluding that the parol trust existing between Conner and Duren could be established, and enforced against a purchaser from Duren, notwithstanding the absolute title had been conveyed to him, it should be fully and clearly proved, and notice of the terms of the trust should be distinctly brought home to the purchaser, previous to his purchase. That such a parol contract existed between Duren and J. M. Conner, as is stated in the bill, appears to be made out by the testimony. Tuck in his answer, denies any knowledge of such a trust, but it is'contended that the proof is ample to show that he did know of its existence, previous to his purchase.

Foreman, a witness, deposes that Tuck told him, that at the time he purchased the land he knew that J. M. Conner had an interest in it. Peter Conner, another witness, states that Tuck admitted to him tha.t he knew of the claim of J. M. Conner, and others, when he purchased, and that he had taken a bond with surety from Duren, to indemnify him if the title was not good. And Blackwell, another witness, that he informed him that he knew J. M. Conner had an interest in the land when he purchased.

It is impossible, in our judgment, to consider these indefinite, and uncertain admissions, as establishing, in opposition to the positive denial of the answer, that Tuck was aware of the precise character of the trust, which, extraordinary as it is, appears to be made out by the proof. It is entirely consistent with these loose declarations of a knowledge of some uncertain interest remaining in Conner, thaj; Tuck may have su'pposed that Duren, who was invested with the legal title, had a full and entire discretion as to the sale of the land, if he was not, as he appeared to be, the absolute owner. To hold him responsible for this secret trust, it must be shown that he was fully aware of its precise terms, before he completed his purchase. That is not shown by the testimony in the cause.

The taking by Tuck of a bond of indemnity, is entirely consistent with his ignorance of the trust here set up, as it appears there was a cloud upon the title, by the sale of the same land under the trust deed made by David Conner. .

But if the trust had been known to Tuck, we do not perceive the case would be varied. The trust was to sell the land, and pay one half the proceeds to Conner. It was an unlimited confidence reposed in Duren, by Conner. If he had received money instead of the note, Conner must have relied on his personal ability to pay, and it would be a debt merely due from him to Conner, for it cannot be pretended that Tuck was bound to see to the application of the money. It is true, that if Tuck had been fully apprised of the terms of the trust, and had fraudulently combined with Duren, to get the land in exchange for his own or other worthless paper, relief would have been granted in chancery. But that is not the case made by the bill or proof. The note received by Duren, was made by David Conner, and indorsed by Duren. It does not appear that David Conner is insolvent, and it is shown that the note was secured by a deed of trust on property. It appears that Tuck had sued Duron on his indorsement, and that the sale of the land was a compromise of this suit. We are unable to perceive any evidence- of fraud in this. If as alledged in the bill, Duren has not paid Conner any part of the purchase money, or transferred to him the note to him in payment, he must abide by the consequence of his own acts. If a loss is to fall on one of two persons equally innocent, he must bear it, who by his conduct has enabled another to do the wrong.

We are thus brought to the conclusion, that the proof does not make out such a case as would authorize the relief sought by the cross bill, and this being in accordance with the view of the chancellor, his decree must be affirmed.