60 Me. 186 | Me. | 1872
The case comes before us upon bill and demurrer.
The complainant in her bill alleges that she was married to one Joshua Gerry; that prior to 1846, said Gerry had acquired by deed a title to the lot of land described in the bill; that being embarrassed in his affairs and of intemperate habits, ‘ it was talked over .and arranged amongst the family of said Joshua ’ ‘ that said Joshua should part with his title to the land for the benefit of his family before the same should be squandered and lost, and that the children
The bill then prays for an injunction upon the respondents against setting up and acting under the title of said Oliver, etc., etc.
To the bill there is a general demurrrer.
1. It is claimed that the estate in Oliver by deed from his father, of Oct. 4, 1846, was in trust. But the deed is in common form, and it discloses no trust. Now by the statutes of this State, all trusts must be ‘ created or declared by some writing signed by the party or his attorney ’ except those ‘ arising or resulting by implication of law.’ R. S., c. 73; § 11. The conversations and intentions of the family before the deed was given could not alter or change its effect. Parol evidence of the object and purpose for which the conveyance was made thereby, to convert the deed into one of trust, is not admissible. Flint v. Sheldon, 13 Mass. 448.
Nor is there a resulting trust. The payments by the diffei’ent
2. The bill sets forth mortgages given by said Oliver to one McIntyre, and duly assigned to the complainant. The mortgages, if subsisting, are valid in the hands of the assignee, and it is not perceived that her title could be affected by anything which the respondents might do. As the assignee of a valid outstanding mortgage, the complainant has no occasion to ask the intervention of this court, as a court of equity. Her remedies at common law are ample and sufficient.
3. The bill alleges that Oliver deeded the premises in dispute to Jotham, by deed dated in February or March 1866, and that that deed was 'duly delivered to the grantee, and that he by his deed of Sept. 23, 1869, conveyed the same to this complainant, thus transferring to her the legal title to the same. All this the demurrer admits. It is only by virtue of the title thus acquired, that this bill can be sustained, if at all.
4. The material allegations in the bill are, that the complainant has the legal title to the premises in controversy; that Oliver had parted by deed with his title thereto; and that the administrator upon his estate, Andrew S., proposes to sell these premises as a part of said Oliver’s estate, thereby embarrassing the complainant and creating a cloud upon her title.
It is well settled that courts of equity will order to be cancelled, or set aside, or delivered up, deeds or other legal instruments, fraudulent, fictitious, and void, which are a cloud upon the title to real estate. But the same reason, which justifies the court to compel the cancellation of a deed, or a release of supposed rights acquired under it, will authorize the prevention of such fictitious and fraudulent titles coming into existence. It is better to prevent the creation of a fictitious or fraudulent title, than to compel its cancellation or its release after it had been created.
Now whether the fictitious title arises from a sale by a sheriff or by an administrator can make no difference. The cloud thus arising would be as injurious in the one case as in the other. ‘ Whatever doubts might once have been entertained of the jurisdiction of a court of equity, . . . have been settled by modern decisions,’ observes Gilchrist, C. J., in Downing v. Wherren, 19 N. H. 91, ‘ and the relief afforded seems to be on the principle of a bill quia timet, lest the deed might be injuriously used against the party, or might throw a cloud or suspicion over his title.’
It seems, therefore, upon the facts as admitted by the demurrer*, that the bill may be sustained against the administrator, and that he may be enjoined from proceeding to sell the premises in question, as a part of the real estate of his intestate.
The allegation that the deed of Joshua to Oliver makes a cloud upon the demandant’s title is erroneous. She claims under and through this deed. The deed of Oliver to Jotham and from Jotham is the chain she sets forth as the basis of her claim. It is not, then, that the deed to Oliver is a cloud upon her title, it is that a deed subsequent thereto, from Oliver to Jotham, is wrongfully withheld from the possession of the grantee, that constitutes che source of embarrassment.
The bill as to Eliza Stimpson cannot be sustained.
6. The heirs of Oliver are made parties to the bill. They have an interest in the subject-matter of this litigation, and, being minors, should answer by guardian.
7. The result is, that the demurrer of Eliza Stimpson is good and is allowed as to her. The demurrer of Andrew J. Stimpson must be disallowed, and he is to answer further.