Goodman v. Wren, 34 App. D.C. 516

Goodman v. Wren

34 App. D.C. 516 | D.C. Cir. | 1910

Mr. Chief Justice Shepard

delivered the opinion of the Court:

It appears from an opinion delivered by the learned trial justice that he was of the opinion that there was neither a sufficient allegation of title, nor of possession on the part of complainants; and that as three of the defendants were in possession of a part of the lot, the bill for partition could not be maintained.

We are of the opinion that the demurrer ought not to have *520been sustained. The allegation that complainants were the equitable owners in fee of the land was sufficient. District of Columbia, v. Hufty, 13 App. D. C. 175—177; Gage v. Kaufman, 133 U. S. 471, 33 L. ed. 725, 10 Sup. Ct. Rep. 406. Moreover, the title under which' both parties claim is set out in full, show-' ing that James Miller is the common source. Whether one claiming an equitable title must be in actual possession to maintain a bill to remove cloud, or whether a partial possession is sufficient foundation therefor, we need not decide. Strictly speaking, the conveyances and devises under which it is alleged the defendants set up a claim to the land do not constitute a cloud upon the title, for their invalidity is apparent. The entire title of James Miller passed out of him by the conveyance to Murphy and Callan, trustees. Had they, and James Miller, who also subscribed the release to Mary Miller, undertaken to convey anything more than the mere legal title of the trustees, still nothing more than that could have passed. Nothing whatever remained in James Miller after his former conveyance. The instrument, however, did not purport to convey anything more than the legal title of the trustees. This, alone, they released to Mary Miller, the beneficiary for life, under the original conveyance, which they undertook to correct in breach of their trust. It was the duty of the trustees to hold the legal title until the death of Mary Miller, and thereafter until the coming of age of the other beneficiaries, and when that time arrived to convey the legal title to them. The only possible legal effect that their release to Mary Miller and her heirs could have was to pass their naked legal title to her, which, upon her death, devolved upon her heirs, accompanied with the duty to convey the same to the other beneficiaries, who were then apparently of age.

While the bill purports to be one to remove the cloild from the title, the allegations make it also one for the execution of the trust by the conveyance of, or a decree vesting, the legal title in the complainants and the defendant alike interested with them. The facts stated in the bill justify that relief, and it may be granted not only under the special prayer, but also under the *521prayer for general relief. Jones v. Van Doren, 130 U. S. 684, 692, 32 L. ed. 1077, 1080, 9 Sup. Ct. Rep. 685; Hopkins v. Grimshaw, 165 U. S. 342-358, 41 L. ed. 739, 744, 17 Sup. Ct. Rep. 401; Merillat v. Hensey, Present Term, ante, 398.

The remaining question to which the argument has been chiefly directed is whether recovery of the land and partition of the same can be had in the same suit. • Undoubtedly, if complainants’ title were legal they would have to establish it at law, before a bill for partition could be entertained. A bill for partition cannot be made the means of trying a disputed legal title. Roller v. Clarke, 19 App. D. C. 539-545, s. c. 199 U. S. 541-545, 50 L. ed. 300, 302, 26 Sup. Ct. Rep. 141. But the complainants are not vested with a legal title. That is outstanding in the original trustees, or in the heirs of Mary ÜVIcNeon; whether in one or the other is immaterial. The title of the complainants being equitable, it is well settled that they may maintain the bill to have the trust executed, and also for the partition. Hopkins v. Grimshaw, supra.

For the error in sustaining the demurrer and dismissing the bill, the decree will be reversed, with costs, and the case remanded for further proceedings not inconsistent with this opinion.

Reversed.