3 Colo. 351 | Colo. | 1877
Lead Opinion
The bill in this case seeks the declaration of a resulting trust and an account of rents and profits.
Jairas Richardson died in January, 1865, leaving the complainants as his heirs at law. Prior to, and at the time of his demise, he was the copartner of Hawley H. Gillett, whose administrator, widow and heirs are defendants.' They pursued their partnership business in shops erected on the premises in controversy, which they occupied as tenants in common, under purchase and conveyance from one Curtis. During the co-occupancy, and at the time of Richardson’s death, the fee was in the United States. In the May following the Denver town site was entered by the probate judge, in trust, under the Denver town site act of May 28, 1864. Subsequently the premises were conveyed to Hawley H. Gillett and his brother George by the probate judge, under circumstances hereafter more'fully explained.
The widow and heirs of Richardson file their bill to recover the undivided half of the premises.
At the threshold they are met with'the objection that their ancestor was not possessed of a descendible estate in the property to which they seek to establish, their claim as his heirs.
We do not understand the counsel for appellants seriously to question the character of an occupant’s interest as property, but to challenge its character as real estate descending to the heirs. In view of the universality of titles by occupancy in our State, the question is of deep interest.
Upon the organization of the Territorial government in 1861, the fee to the lands within its borders was in the general government. They were newly subjected to the dominion of man. Settlers located upon farming lands, upon mining claims and town lots, and claimed them in virtue of this occupancy. The general government, by beneficent laws, provided for surveys, for homesteads and pre-emptions, for entry in person and in trust, all looking to the acquisition of the fee by the occupant, and placing it within easy reach. Having the fee in view, in many instances,
Distinct from this, was title by possession, and where a mere naked possession, without apparent right, or shadow, or pretense of right to hold or continue such possession, it was the lowest and most imperfect title known to the common law. The legal owner could put an end to the possession at any time by entry, but until some act was done by him to divest this possession, and assert his title, such actual possession was prima facie evidence of legal title in the possessor, and by lapse of time, and negligence of the owner, it ripened into a perfect title. If the disseizor or other wrong-doer died, possessed of the land, whereof he too became seized by his own unlawful act, the right of possession descended to the heir, and he could not be divested by entry, but only by action at law. 2 Black. Com. 195*, 196*.
.■ The deduction sought to be drawn by counsel for appellees, from this common law doctrine, in favor of the descendibility of the possessory rights of occupants, as they exist here, is not perhaps without force, reference being had to the character of the two estates. In the one case, posses
It appears to us, however, that in the absence of statutory provisions, the descendibility of such estates might be placed on other and more satisfactory grounds. Feudal reasons have disappeared, and the peace, good order and stability of society, its prosperity secured by invoking the highest endeavors of its individual members by securing to them and their descendants the fruits of their labors; the superior claims of kindred, over strangers, founded on natural laws, are among the chief considerations upon which the laws of descent now exist. These considerations are as potent and imperative respecting the titles we are considering as they can be in the case of a fee. The common law' has been adopted only in so far as it is applicable to existing conditions. • Its rules, whether technical or otherwise, cannot be allowed to imperil great interests.
In the case of the Merced Mining Co. v. Fremont, 7 Cal. 325, Mr. Justice Burnett says: “The sentiment, that courts are bound to take judicial notice of the political and social condition of the country which they judicially rule, is as just as it is concise and appropriate; and courts knowing the social and political condition of the country, are equally
Where statutory provisions are wanting, we think these, considerations would afford safe and tenable ground upon which the descendibility of these titles might be maintained and vindicated. Beckett v. Silover, 7 Cal. 229; Merritt v. Judd, 14 id. 63; Hughes v. Divillin, 23 id. 507; Hale & Norcross G. & S. Mining Co. v. Story County, 1 Nev. 106; Coy v. Coy, 15 Minn. 119.
We prefer, however, to rest our decision on statutory provisions. The condition of titles before described made title by occupancy of paramount importance, and its legal status claimed the attention of our first legislature. It was a labor of the first necessity, and under the ample grant of legislative power, extending to all rightful subjects of legislation, we are not surprised to find all -laws upon the subject, tending to one end, and showing a clear purpose to put the bona fide occupant of the public domain, as far as lay in its power, upon a footing of security.
Among the first acts passed was ££ an act declaratory of the rights of occupants of the public domain, except as against the United States.” After recognizing the paramount right of the United States, the first section declares, ££that as between all the good citizens now residing in, or who may hereafter come to reside in this Territory, and as between them, or any of them, and others having or claiming, or now or hereafter pretending to have or claim, any right to occupy, possess and enjoy any portion of the public domain situate within the boundaries' of this Territory, and as between each and every of them and all other persons, associations, corporations and powers, except the government of the United States, the right as the same may exist under the local laws to occupy, possess and enjoy any tract or portion thereof, shall be respected in law and equity in all the courts and tribunals of this Territory as a chattel real possessing the legal character of real estate.”
The closing phrase of this section is remarkable, except in the light of the end which the legislature had in view.
The next section provides for a declaration in cases of original occupancy and for transfer by deed, duly acknowledged by some officer authorized to take acknowledgments of deeds, in cases of purchase, and for their registry in the office of the recorder of the proper county. .
The next section declares that the owner of every such claim shall have a transferable interest which may be sold on execution. In the form of declaration prescribed by the 5th section, the occupant claims the lands described “ together with all and singular the hereditaments and appurtenances'thereunto belonging or in any wise appertaining,” and the record was to be received in evidence in all legal and equitable proceedings. It may be said generally that they passed all the laws usual in the older States, for the regulation of landed property held in fee, and brought title by occupancy within their meaning, either by express provision, or by a general law declaring that in the construction of statutes, the words “land or lands,” and the words “real estate,” shall be construed to include lands, tenements and hereditaments and all right thereto and all interest therein. 1 Sess. Laws, 107.
This brought title by occupancy within the meaning and provisions of the acts “concerning conveyances” of real estate, registration, partition, fraudulent conveyances, etc. The occupant could maintain trespass quare clausum fregit, ejectment, and forcible entry and detainer for injuries done to the possession. These are all actions applicable only to real estate, and we see, as we cannot but see,
Thus, upon the adjournment of the first legislature, except as against the United States, and subject to be defeated by abandonment, the bona fide occupant held his lands by a tenure as secure against attack, intrusion and disseizin, as the owner of the fee at common law; and with the exceptions named, had a title good against all the world. Such an occupancy is neither correctly nor justly characterized as a “ mere naked possession.”
A term which implies a purely physical possession, which supposes no law, which is independent of all law, and such as existed prior to all law; such a possession disappeared upon the death of the possessor, because it existed only in a physical sense. But we are not dealing with any such occupancy. By virtue of the legislation named, occupancy became' an investive act, the law operated to give this effect to the fact. It was the commencement of legal landed rights. It invested the occupant with a tenure, assertable and defensible in mode and manner, as the highest estate known to the common law. It was not, therefore, a mere “naked possession,” but as contradistinguished therefrom a legal possession, under the sanction, recognition and protection of the law.
Having thus shown the general course of legislation, and its manifest purpose, evidenced in so many ways to set its seal upon occupancy as real estate, we have smoothed our path to the end in controversy.
Beal estate is a leading term in this inquiry, and it is necessary to keep in view its signification, to wit, “ something that may be held by tenure, or will pass to the heir of the possessor at his death instead of his executor, including' lauds, tenements and hereditaments, whether the latter be corporeal or incorporeal.” Bouv. Law Dict., title “ Real Property.”
Whether we interpret the words “real estate,” by the definition fixed by statute already alluded to, or with reference to its nature or the legal character with which title by occupancy had been invested, under either view or all, we can, we think, without subtlety or forced construction, hold such an estate inheritable.
We are unable to see any force in the argument that it descends as personalty. If it descends at all it is in and with the legal character which the law has given it.
There is nothing in the law which obliterates its legal character upon demise, nor is there any thing that invests it with another and different character upon transmission to the heir. Upon the death of Richardson, therefore, his heirs became co-tenants with Hawley H. Gillett of the premises in question. They were tenants in common, for a joint tenancy can only be created by purchase, or act of the parties, and not by descent or act of the law. 1 Wash. R. P. 643, 645.
Soon after Hawley H. Gillett made a sale and conveyance of an one-half interest in the premises to his brother George, and in August, 1865, the two received a deed from the probate judge therefor.
Hawley H. Gillett had no power or authority to sell the interest of Richardson’s heirs; and had his power been full and complete, the deed which he executed conveyed only his individual interest.. He describes himself as surviving partner of the late firm of Richardson & Gillett in the body of the deed, and as an addition to his signature
The bill was framed and the trial below proceeded upon the theory that the deed in question conveyed the interest of Richardson’s heirs, while the decree implies that it conveyed the moiety of their interest. Both views are erroneous. The effect of the deed of Hawley H. Gillett to his brother George was to sever his relations as co-tenant With the heirs of Richardson and to substitute his grantee. Subsequently they acquired the fee by deed from the proba fe judge, who had entered the town site in trust, etc. This brings us to a consideration of the relations which George Gillett sustains to this case.
It is a well-settled rule governing the trust relation which co-tenants sustain, that if one tenant acquire an outstanding title, he will be considered as holding it in trust for his co-tenants, subject to the right of being reimbursed pro rata his moneys paid out in acquiring the title. 1 Wash. 686, § 14.
George Gillett was a co-tenant, and acquired an outstanding title, but should he be held to respond to the claim of his co-tenants, under the foregoing rule, under all the circumstances of the case ? Here was a co-tenancy ; the fee was in the United States; it had been entered in trust for the bona fide owners and occupants ; the mode in which they should proceed to perfect their title was prescribed ; it was necessary that the occupant should take
The death of a partner invests the surviving partner with the exclusive right of possession and management of the whole partnership property and business, for the purpose of settling and closing up the same. Parsons on Part. 440*. It is one of the most important trust relations. The survivors are from the death trustees for all concerned in the partnership for the representatives of the deceased, for the creditors of the firm, and for themselves. Their trust is to wind up the partnership matters in the best manner possible for all interests. Parsons on Part. 442. How far surviving partners would be entitled to the possession of partnership real estate we do not decide, but the trust relation exists as to it as well as to the personalty. They are held strictly and to the utmost good faith and fair dealing, and their conduct in discharging this trust is looked after with a jealous eye by courts of equity. Id. If there be negligence, delay, misconduct or mistake, equity will interfere and give proper relief. Id. No affirmative acts on the part of the heirs of Richardson were necessary to create this relation; the law established it for them and imposed the trust. Hawley H. Grillett was perfectly cognizant of the rights of Richardson’s heirs in and to the undivided one-half of this property, and, in his double relation of surviving partner and co-tenant, had possession of, and control over it. Whether it was his duty, under the relation which he sustained, to have made application for title under the town site act for the heirs of Richardson, as their agent, it is not necessary to determine. Having sold and conveyed his own interest in the property, and after
Equally under another view, we think he must be held to the same responsibility. From the death of Eichardson until his deed to his brother George, he was the co-tenant of Eichardson’s heirs. He was in possession, and his possession was theirs as well as his own, and for their benefit so far as preserving their title thereto. 1 Wash. R. P. 656, § 7. During this period he applied to the probate judge for the title to the entire property as “ surviving partner of the firm of Eichardson & Gillett.” For some reason, the written application was not completed. Subsequently on the 10th of July, he sold and conveyed his undivided interest in the premises to his brother George. On the same or the next day, he united in a joint application to the probate judge, under which the entire property was conveyed to them as legal owners thereof. The former uncompleted application was used, the words “surviving partner of Eichardson & Gillett ’ ’ being erased.
Had his first application been perfected and title acquired under it to the entire premises, clearly his relation as co-tenant would have devolved upon him the character of trustee as to one-half of the property. Can he be permitted to evade this responsibility by severing his relations as co-tenant, without notice, upon one day, and acquiring the outstanding title the next ? We think not, under the circumstances of this particular case. He was at liberty to sever his relations as co-tenant by his deed to his brother George, and cannot be held, strictly speaking, to respond as in case of a co-tenant acquiring an outstanding title, but his acts constitute a fraud upon the heirs of Eichardson in their results, if not in intention, of which a court of equity will not allow him to gather the fruits.
The heirs of Hawley H. Gillett took his interest in the premises charged with these equities, and must be held to hold it in trust for the complainants.
A deed duly recorded is constructive notice of its existence, and of its contents, to all persons claiming what is thereby conveyed under the same grantor by subsequent purchase or mortgage, but not to other persons. 3 Wash. R. P. 319, § 53. In the case of Maul v. Rider, 59 Penn. 167, Shakswood, J., says : “That the record of a deed is constructive notice to all the world, is too broad an enunciation of the doctrine. Such record is constructive notice only to those who are bound to search for it as subsequent purchasers and mortgagees, and all others who deal with it on the credit of the title in the line of which the recorded deed belongs.”
There is nothing in the registry laws in force at the time of the record of the probate judge’s deed, that would authorize us to charge Mrs. Gaffney with notice of its existence or contents.
For the rents collected by Hawley H. Gillett after the death of Richardson, and prior to his own death, his estate must respond, and his administrator, Webster, is therefore a proper party.
The decree of the court below must be reversed, with leave to the complainants to amend their bill in accordance with the views expressed herein.
And, as it is possible, though we are not prepared to say this appears from the evidence, that Hawley H. Gillett may have acted through mistake, and may have paid over the proceeds of the sale to George Gillett, to the complainants in some authorized way, his representatives and heirs will have leave to file their cross bill, under which their equities, should any be made to appear, can be protected.
Each party to have leave to take further testimony, if so advised.
Decree reversed with costs. Reversed.
Concurrence Opinion
I concur in what is said above, but, to avoid any misunderstanding, I desire to say that I see nothing in the testimony which warrants making the moneys paid by Hawley H. Gfillett to the widow and personal representative of his deceased copartner, a charge on the share of the infant complainant. I think that if any payments shall be shown to have been made under such circumstances as to warrant an allowance for them, in the account of rents and profits, they must be set off against the share of the widow only.
