66 Mass. 393 | Mass. | 1853
This action is brought by Stephen Gibbs, as administrator of the estate of Hallett Swift, against George P. Swift, as the executor of Asa Swift. The action is assumpsit on the money counts, thé plaintiff specifying in his bill of particulars, a claim that Asa Swift, the defendant’s testator, in his lifetime, received from the sale of lands, belonging to the plaintiff’s intestate, the sum of $1,000, and that there is now due from the estate of Asa Swift to the estate of Hallett Swift, including interest, the sum of $1,500.
The case was opened, and evidence offered by the plaintiff; no evidence was given by the defendant, when the court ruled that the action of assumpsit was properly brought. Whereupon, it was agreed to bring the case before the whole court, upon an agreement that if this court should be of opinion, that upon the evidence to be reported, the plaintiff was entitled to recover, an assessor should be appointed to report the damages ; otherwise, the plaintiff was to become nonsuit.
The‘questions presented by the report have been fully and ably argued in writing. The action is brought to recover money alleged to have been received by Asa Swift, in his lifetime, as a share of the proceeds of sales of lands, in which it is alleged that Hallett Swift had an interest, and that the
The facts, as they appear to us to be disclosed by the evidence, are substantially as follows: That in 1816, Asa Swift, then Asa Swift, Jr., was the owner of a tract of land in Tioga county, state of New York, deeded to him at a previous time, as a tract containing eighteen hundred and seventy-eight acres; that by his deed dated the 25th of November, 1816, he conveyed to Hallett Swift two hundred and eleven undivided acres of said land, in quality and privileges equally in every respect with the remainder. This deed purported to be given on a pecuniary consideration, estimating the land sold at two dollars an acre, with usual covenants of seizin and warranty; to be executed by Swift and wife, in Massachusetts; to be attested by John Hawes, and acknowledged before John Hawes, a justice of the peace for the county of Bristol. It is stated, that this deed was not so acknowledged as to entitle the holder, by the laws of New York, to have it recorded in the registry of deeds for the county; which, we understand, to be true; and in point of fact, it never was so recorded. Asa Swift died January 15, 1847. Hallett Swift died about ten years before.
The other evidence may be briefly stated. George Swift, brother of Mrs. Hallett Swift, widow of the plaintiff’s intestate, says that in 1846, “ he had a conversation with Asa at Wareham; went at the request of his sister, under a power of attorney from her; had some conversation with Asa about the sale of this land; Asa told her, in my presence, that he had come down to have a settlement with her; that he wished to buy this land of her; he offered her three dollars an acre. I asked him how much of the land was sold, and how much he had received from the sales; his answer was, he h'ad sold about enough to pay the taxes, and that was the only answer I could get from him in relation to what he had received. He said he was willing to sell his part for three dollars an acre. I was not satisfied with his answer, and
Woodbridge’s testimony was also taken. He testified that he was employed by Asa Swift to sell the land. “ First employed in 1817. Was authorized by written authority, [produced one letter; objected to, because a copy, and not the original; not material.] Said lands were surveyed in lots, numbered, were mostly hilly, and covered with forest. They were sold on credit; proceeds went to Swift from time to time, and no regular book-account kept.” States the mode in which sales were made. “ Deeds were made by Swift after the lands were paid for. Cash was received by the witness and paid over to Swift. Swift never rendered me any account ; at his request I sent him an account in 1846. He claimed to own the land, and once showed witness a deed. No recollection that he ever made any statement in relation to any interest of Hallett Swift as the owner. Some lots sold have not been paid for. Part of the proceeds of sales were sent to Swift, a part remains in my hands, and the remainder is due from the purchasers. Some lots remain unsold, containing two hundred and ninety-nine and a half acres. They are hilly, not easy of access, no pine timber on them, and worth two or three dollars an acre. The account is still unsettled. Since Asa Swift’s death, have made but one remittance, — one of three hundred dollars.”
1. Upon consideration of this evidence and of the facts which it tends to prove, the court are of opinion, that whatever other remedy the plaintiff’s intestate, or the plaintiff tnmseii ever had, or has now, this action for money had and
The deed given by Asa to Hallett, in 1816, of a part of a tract of land lying in the state of New York, was somewhat peculiar, or as called in the argument, “ unique,” but was a good and valid deed, to pass the property as between vendor and vendee. In this commonwealth, it would be a good warranty deed to all intents and purposes, because it was so acknowledged before a justice of the peace, as to entitle the holder to have it recorded, and thus make a perfect title in all respects. But because it was not acknowledged according to the laws of the state of New York, in the manner required by the laws of that state, it could not be recorded there, so as to render it valid as against all creditors and subsequent purchasers; and as title to real estate must be made according to the law of the state where the land lies, it would not be available against other purchasers and creditors.
2. But if the deed was not effectual and valid to all purposes, it was not the fault of the grantor, that it was not made valid by a subsequent acknowledgment. Probably as it was made in Massachusetts, and valid according to the law of Massachusetts, and would have been valid here, the grantor supposed it sufficient. If the grantee, on offering it for registration, had found that it could not be received for want of a sufficient acknowledgment, it was
No other objection is made to the validity of this deed and its sufficiency to pass the estate which it purports to convey. If the plaintiff should contend that the grantor had no sufficient title, his remedy would be on the covenants; if he was induced to take the deed and pay his money, by any misrepresentation or other fraud, he might avoid the deed and recover back the purchase-money, as money paid upon a consideration which had failed. That remedy, of course, is barred by the statute of limitations. Indeed, the plaintiff does not contend that the deed was void and passed nothing; on the contrary, he claims that the estate did pass, and became his intestate’s, and he claims the money as the proceeds of his share of the estate, which did pass by this deed.
3. We are then brought to consider the terms of this deed, what was the nature and character of the estate given by it, and the rights and obligations of the parties under it. It cer
Such an alienation, however, would not be void, it would be good against the grantor and his heirs, by way of estoppel, and, of course, against all persons, except the co-tenant and his heirs. If they consent to take their shares out of other parts of the common estate, or are otherwise satisfied, or, if
There is another result to be drawn from this view, which is this. It appears that at the time of the death of Asa Swift, a portion of the common estate remained, and for aught that appears, remains still; and if the heirs of Hallett Swift can still perfect their deed, by proof of execution, or if, as between the parties, it is good without being acknowledged and recorded, perhaps the heirs of Hallett may yet have partition against the heirs of Asa. But if such deed cannot be perfected, or availed of as between the parties, without acknowledgment and record, this result is the consequence of the laches of their ancestor, and cannot, in any respect, give a right against the personal representative of Asa, for money had and received.
We have not overlooked the admissions of Asa Swift, made
Had the defendant’s testator sold the whole estate, it would have presented a stronger claim in equity; but even in that case, we are inclined to the opinion, that the remedy oí the grantee and his heirs would have been upon the grantor’s covenant of warranty. That covenant run with the land, and looked to the future, and, perhaps, might have been considered as broken, if the grantor had availed himself of the peculiar position in which he was placed, by the failure of the grantee to record his deed, to alienate the whole of the estate, which he had granted and warranted. But as already stated,
Several other points were discussed in the argument, which we do not consider it necessary further to consider. In regard to the statute of limitations, to avoid misconstruction, we think it proper to say, that if the defendant’s intestate had been liable, as for money received for Hallett and to be accounted for, we think it could not be extended so as to include money received more than six years before the death of Asa Swift. It would not have been within the exception of mutual accounts, where one item, within six years, draws the residue of the account with it. The account was wholly on one side. The receiver could never have been liable for anything more than the net proceeds, composed of balances of the money received, after deducting charges for taxes, commissions, and incidental expenses. Such charges would be deductions out of the money in the receiver’s hands, and not debts for which the person entitled to the proceeds would have been personally liable. It was not, therefore, a mutual account within the statute.
According to the agreement of the parties, the judgment to be entered is, Plaintiff nonsuit.