Felch v. Hooper, 119 Mass. 52

Felch v. Hooper

119 Mass. 52 | Mass. | 1875

Colt, J.

The question raised by this demurrer is not whether a contract for the conveyance of land in this Commonwealth can be specifically enforced against a defendant upon whom no service is made within this state, and who is not and never has been a resident. That question was decided in the case of Spurr v. Scoville, 3 Cush. 578.

The question here is whether under such a contract in writing the plaintiff who has paid or tendered the consideration, and has by the defendant’s permission entered upon the land and made improvements thereon, can under our statutes, upon the allegations of this bill, enforce his equitable title to tne land in any form.

*57In Spurr v. Scoville, it was said that the only effectual decree, which could be rendered upon the allegations in that case, would require a conveyance of the land in question by the defendant personally; and that courts of equity would not proceed in a cause, where the decree asked for required an absent defendant, not subject to their jurisdiction, to be active in its performance, but could deal only with persons who could be compelled by process to obey their orders. The decision is placed expressly on the ground that the suit was a proceeding in personam merely, in which no decree was sought against the property, and no allusion is made to statutory provisions which upon proper allegations might perhaps have afforded relief.

The case at bar differs in this respect, and the plaintiff seeks to enforce an equitable right in the land itself. The bill, as amended, avers that the contract relied on and the payment and other facts alleged were sufficient to charge the land with a trust in the plaintiff’s favor, which the defendants refused to perform by refusing to make the required conveyance. And a prayer is added that the land may be decreed to belong beneficially to the plaintiff, and may be conveyed to him by some person duly appointed by the court. To the bill as amended there is a special demurrer on the ground that the court has no jurisdiction of the parties.

The doctrine is well established in equity that from the time a valid contract for the sale of land is made, that which ought to have been done is treated, as between the parties, as already done % and the seller and his representatives, and subsequent purchasers from him with notice, will be held to be trustees for the purchaser, for the purpose of affording the latter a remedy against the estate. Atcherley v. Vernon, 10 Mod. 518, 527. Daniels v. Davison, 16 Ves. 249, 255. Waddington v. Banks, 1 Brock. 97. Lewin on Trusts, (3d ed.) 174, 175.

Our statutes give this court power to enforce the performance of a contract for the sale of land, made by a deceased person, and to order the executor or administrator to make a conveyance, which it is declared shall have the same force and effect as if made by the person who made the agreement to convey, thus giving effect to the deed of the legal representative although the legal title is in the heirs at law, and treating the subject matter *58of the contract as personal or real, according to the character which has been given to it by its terms. Gen. Sts. c. 117, §§ 5, 6.

Upon the facts stated in this bill, the land in question is charged with an implied trust in the plaintiff’s favor; and the court is not powerless to enforce that trust, merely because the parties holding the legal title are beyond its reach. It is said that courts of equity will never allow a trust to fail for want of a trustee. Such a trustee this court is now authorized to appoint, b7 a statute which provides that when a person, seised of an estate upon a trust express or implied, is out of the Commonwealth, or not amenable to the process of any court therein having equity powers, this court shall have power to order a conveyance to be made thereof in order to carry into effect the objects of the trust, and may appoint some suitable person in the place of the trustee to convey the same in such manner as it may require. Gen. Sts. c. 100, § 15.

This statute expressly includes implied trusts, and cannot be confined in its application to trusts which are created by deed or will and do not depend upon the proof of facts which may be open to dispute. Walsh v. Walsh, 116 Mass. 377. Most implied trusts are of the latter description. The statute gives the court power to render an effectual decree, and that is enough to sustain the jurisdiction when the parties or the subject matter are within its reach. Ward v. Arredondo, Hopk. Ch. 213. The decree will be binding on absent parties to the extent of its effect on the land only, even though all parties interested have been notified in accordance with the rules of court. In other states, under 1 similar statutes, similar relief is granted. Matteson v. Scofield, 27 Wis. 671. Rourke v. McLaughlin, 38 Cal. 196.

Upon this demurrer the existence of the trust must be assumed, amd the entry must be Demurrer overruled.