70 Ky. 276 | Ky. Ct. App. | 1870
delivered the oranou oe the court.
This has been a prolonged and vexatious litigation, and this court has hitherto reversed three successive orders of the circuit court, and remanded the case, each time for further preparation; but in no instance concluding or affecting the appellant, Mrs. Faris, in her title to her home, which is the ultimate question involved. And now, though we think that the circuit court again erred in rejecting the cross-petition of the appellants against William A. Hoskins, yet considering the case sufficiently prepared for a final decision so far as the appellants are concerned in the fundamental question which can not be affected by collateral controversies, we will at once proceed to consider that vital question, and to that extent close this case.
Before the year 1852, William Hoskins- — -upright, industrious, economical, and provident — owned his homestead tract of about five hundred acres of first-rate land in Garrard County, at the forks of the turnpike from Lexington to Danville and to Lancaster, equidistant from the bifurcation; and also seven valuable slaves, three of whom were excellent blacksmiths,
In August, 1863, the mortgagees filed a petition to foreclose their mortgage, which the appellant, Eliza, resisted as to her land on various defensive grounds. The circuit court, however, decreed the sale of that land alone. At the sale by the commissioner under that decree, to prevent the embarrassment and difficulty that might resxilt from a purchase by a stranger, she, advised, as we infer, by her brother William (who promised to become her surety, and who, as appears to us, said he would pay the debt), bought the land for the amount required to satisfy the mortgage, and executed bonds with the said William as her surety.
To compel him to relieve her from these bonds, not yet collected, was the principal object of her cross-petition against him; and that litigation in some form may survive ou‘r judgment in this case, even though her cross-petition was dismissed by the decree appealed from, and by which she was also ordered to pay off the sale-bonds or give up her home.
Upon the facts proved this court is satisfied that, waiving questions of champerty and limitation on account of long and adverse possession, the appellant, Eliza, for not only a good
And in this case Robinson, as one of the mortgagees, being also a party to the trust, had indisputable and conclusive notice of all the facts from which the trust resulted, and, though not necessary, the other mortgagees had presumptive notice. They all took the mortgage therefore subject to her prior and still subsisting equity, which, combined with her long ;possession under a verbal contract not void, would be sufficiently defensive against them, even if not enforceable as a trust had they been in the adverse possession, and she, as plaintiff, had sued them. She is not estopped by bidding for the land and executing the bonds for the price. She bid for only what was beneficially her own, and thereby did the mortgagees, who knew that they had no right to sell her land, no harm. Her bonds therefore were executed without any binding consideration, and are held on an implied trust of revocation by her volition.
There is no estoppel here, nor in her conduct as nominal executrix associated with the mortgagee, Dunn, as acting-executor ; nor in any of her personal conduct, active or passive, properly considered, do we see anything that should estop a helpless and confiding woman, always ignorant of her rights and of the law, and most of the time covert, from continuing to assert her meritorious and enforceable claim to the land ; and insisting on her exoneration from the burden of again paying for it, and releasing her from the bonds, and thereby
Nor can W. A. Hoskins justly complain if the burden of the bonds shall fall on him, and thereby this litigation shall by subrogation and transference be carried on by and between him and the mortgagees and executors, as the parties whose conduct originated and prolonged this vexatious and unnecessary strife. This record affords intrinsic evidence that he, without any apparent capital of his own, drew on his father’s generosity for supplies for speculating adventures, and thereby contributed largely to his father’s embarrassing change of condition, otherwise inexplicable. His letters to his father and to his sister Eliza conduce to show that he owed his father more than the debt for which the mortgage was given, and prove that he therefore promised his father that he would relieve him, and promised her that if she should give up her home he would buy for her a better; and these and other facts
Without reference to other circumstances, we are satisfied, upon the record now before us, that he owed his father as much at least as the amount due on the mortgage, and therefore, as between the appellant Eliza and himself, he should not complain if the whole burden of the sale-bonds be put on him. But as his' indebtedness to his father’s estate has not been litigated between him and the mortgagees, or between him and Dunn as executor, and especially as the contemplated litigation between them as antagonist parties may evolve other material facts, what we have said is not to conclude him on that question, or fetter a full investigation between him and them as opposing parties. He will be entitled to all credits to which the mortgagor, if living, would be entitled in a contest between him and the mortgagees, whether on account of any of the slaves, or payments of any portion of the mortgage debt, or otherwise. And these will be the principal questions in the transposed litigation between parties not hitherto conflicting.
From the foregoing considerations, we conclude that the appellant, Eliza, should be released from the sale-bonds, and is entitled to a conveyance of the one hundred acre tract of land to her separate use in fee-simple, unincumbered by the unpaid consideration, and that the payment of the bonds should be settled by an ulterior litigation on amended pleadings between the mortgagees and executor on one side and Wm. A. Hoskins on the other.
Wherefore the judgment against the appellant, Eliza, subjecting her to the payment of the sale-bonds and dismissing her cross-petition, is reversed, and the cause remanded with instructions to dismiss the petition of the mortgagees so far as it affects her, and to cause a conveyance, as just indicated,
Judge Peters dissented from the foregoing opinion.
To appellees’ petition for rehearing Chief Justice Robertson delivered the following response:
As the opinion in this case has been in several respects misconceived, and consequently misrepresented, we consider a brief response to two very elaborate petitions for a rehearing but respectful to the zealous counsel who filed them, and befitting the cause of harmonious jurisprudence and judicial rectitude and authority. An anxious scrutiny of the facts and arguments urged in the petitions, and a careful reconsideration of the opinions they assail, having resulted in a more unanimous adherence to the essential facts and established principles which sustain it, we will proceed with a very summary exposition of the grounds of complaint, and of the true facts and right law on which it will be cheerfully left to rest for the vindication of its accuracy and justice. And in this condensed review the order of the attack will be observed.
1. The resulting trust, which is the corner-stone of the opinion, is denied rather irresolutely, without a denial of the indisputable facts or the citation of any authority to countenance the negation. The condensed facts show: first, that for the most meritorious consideration of both gratitude and paternal duty, and also for a valuable consideration, as recited in the opinion, William Hoskins dedicated in the hands of the purchaser of his homestead farm ten thousand dollars as a trust fund to secure to his daughter Eliza a home of her own; second, that the pirrchaser paid out of the purchase-money the amount which, reinvested, bought Eliza’s home according to the requisitions of her father for that special purpose;
On these facts, did not a trust result to her use more certainly than it would have done had he merely for his wife’s relinquishment of dower alone executed a covenant to do what he afterward faithfully did? And did not the consideration for the conveyance to her father proceed therefore as much from her as it would have done had it been paid by her own hands ? The consideration from her or on her accownt, and the title made to her father, nothing else appearing, implied a resulting trust, according to abundant authority not now controverted or doubted by scientific jurists; and such trusts, being excepted from the operation of the statute of frauds, may be established by oral testimony as satisfactorily as by written evidence. On this subject we will only refer to Story’s Equity, and to Chancellor Kent’s opinion in the case of Boyd v. McClean, 1 Johnson’s Chy. Rep. 583, in which the chancellor defines the principle of such trusts, and illustrates it by a collation of the leading cases ab ovo. And the trust enforced by him in that case was not as conclusively established as that which we recognize and uphold in this case.
2. The foundation being thus fixed, the superstructure is assaulted in the impotent form of estoppels, never pleaded in this entire suit, and of course never litigated. And the first of these, intimated for the first time in the petitions, is Eliza’s qualification as executrix. Though she never acted, yet her qualifying alone is urged as an election to give up her right to her home. The idea of such an elective estoppel is a gross
In chapter 30, on Election, 2d volume on Equity Jurisprudence, Mr. Story, after defining the principle, says, section 1075 : “Every case of election therefore supposes a plurality of gifts or rights, with am. intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other.” Then, illustrating the peculiar difficulty of making a clear case of election, he says, section 1086: “It may be stated that, in order to raise a case of election, there must be a clear intention expressed on the part of the testator to give that which is not his property. A mere recital in a will that A is entitled to certain property, but not declaring the intention of the testator to give it to him, would not be a sufficient demonstration of his intention to raise an election.” Again, speaking of a. bar to a wife’s dower by a testamentary provision for her, he says, section 1088, that “such an intention must be dear and free from ambiguity ; and it could not be inferred from the mere fact of the testator’s making a general disposition of his property, although he should give his wife a legacy.” And, speaking of the presumption- of an actual election, he says, section 1098 : “Before any such presumption can arise it is necessary to show that the party acting or acquiescing was cognizant of his rights; and when this is ascertained affirmatively it may be further necessary to consider whether the party intended an election.
Tested by these established clues, there can be no rational doubt that there is nothing having the semblance of election in this case. Not only did the will not devise her home— unless to herself as residuary devisee — but its recital only that
The next pretense of estoppel is her bidding for the land and giving her bonds for the price bid. Had this been pleaded as an estoppel she might have avoided its effect by sufficient proofs and explanations; but, not being pleaded, that question was not litigated. This shows the reason why an estoppel must be pleaded before it can operate as such. But had it been pleaded it would have been unavailing.
The decree of sale had been reversed by this court, and is yet dead; and the reason why the sale also was not set aside was that Mrs. Faris had not asked it, and as purchaser might not need or desire it. Then she asserted her rights under the resulting trust to avoid her obligation as bidder, and confined the litigation to the question whether she was liable for the price bid for her own land, which the mortgagees, procuring ‘the mortgage with full notice of her equity and against the free consent of the mortgagor, had no right to sell. This was permissible and proper, especially as the reversal of the decree for sale left nothing behind except the question of enforceability of her bonds given for her own property, and therefore for no valuable or binding consideration. The reasons why she bid at the sale and gave her bonds are sufficiently explained in the opinion; and certainly she did not intend thereby to
Then the trust being established, notice of it to the mortgagees when by evident misconception or coercion they improperly obtained the mortgage, the want of any proof of a waiver of hér title or of any estoppel against the assertion of it, and her non-liability for the price bid by her at the empty sale, should, as we adjudged, close the litigation so far as Mrs. Faris is concerned. Nothing more remains for litigation against her; and therefore we decided that the petition against her should be dismissed, and that the legal title to her land should be conveyed to her, and by this we still stand.
But as the mortgage debt does not appear to have been fully paid, and the mortgagor’s estate may alone be liable for it, we authorized a transformed litigation between the executor, mortgagees, and W. A. Hoskins, with whom, as an alleged debtor of the mortgagor, she has been interpleading for the purpose of compelling him to pay the debt; and this subrogation and transposition is the best we can do for all parties to prevent multiplicity and injustice. But of this modification the counsel of W. A. Hoskins complains. Up to this stage of the conflict both of the petitioners were concurrent; but here they diverge and become antagonistic. This is just what we expected.
But why should W. A. Hoskins object to a continuation of the litigation in this modified form ? It can not hurt him; nor
And now we will only add that, having already heard all that could be expected from a re-argument, and understanding the case as thoroughly as we could hope ever to understand it in all its phases, we deem it not only useless but unjust further to prolong this litigation in this court by granting a rehearing.
Wherefore both petitions for a rehearing are unanimously overruled.