37 Ky. 498 | Ky. Ct. App. | 1838
Lead Opinion
delivered the Opinion of the Court.
The facts of this case are not such as bring it within the operation of any of the statutes authorizing a division by the County Court; and if it falls within the operation of any, it must be the statute of 1797; and if that be the statute relied on, it has not been pursued. It is not shown that a demand and refusal to make division had been made. Nor has any deed of partition been executed, and returned and recorded in the county; nor, indeed, does it appear, that those persons who made the division were appointed by the order of the County Court, or were duly authorized to make the division. But if the division had been regularly made, but was unequal, a court of equity has the power to overhaul it.
And, in a case like the present, when Mrs. Shane, as cestui que use, is invested with a mere equity, she may surely resort to a court of equity for redress, upon a charge of fraud, combination, or a wanton neglect of her interest, on the part of her trustee, and might make such appeal either after a pretended division was made, or while steps were in progress to effect it.
We are also clear, that the survey laid off, under the direction of Shane, should not be disturbed by Guyton or his vendee.
The trustee, with the concurrence of the cestui que use, had the election, by the terms of the. deed, to lay off the fifty acres on any end, side or corner of the two hundred acre tract, and running it so as to embrace the improvement, from the end, side or corner elected to bind on. And embracing these two objects, the one to be chosen by the trustee and cestui que trust, the other designated in the deed; in other respects, the figure of the survey should be so made, when thus run, as to affect the form and figure of the residue of the tract as little as may be. The survey has been made by the husband of the cestui que use, in the presence of the trustee, without objection on his part, in a form, and running from the side of the survey, which is most advantageous to the cestui que trust — and which would, therefore, have been selected by any faithful trustee — and extending it out, so as to embrace nearly .all of the improvement. And if extended so as to embrace all, it might be still more disadvantageous to the owner of the residue of the tract; as it would come still nearer severing it into two parts. This survey is sanctioned by the cestui que trust, and she is seeking to confirm it; was acquiesced in by William Ditto, the donor, or at least recognized and impliedly approved by him, at the time of the sale, and was known to Guyton to have been laid off, and how, and in what shape, it had been laid off, at the time of his purchase of the residue; and no objection made to the purchase on that account. Under all these circumstances, we cannot doubt but that the survey, thus made, should be protected.
We are equally clear, that it was competent for the Court, when the trustee refused to join in the prosecution of the suit, and resisted the equity set up by his cestui que trust, to strike his name from the bill as com
And we are also clear, that as there are some facts in the case, evidencing the want of due regard to the interest of his cestui que trust, and as he expressed, in his answer, a willingness to be removed, as trustee, that the Court did not err in appointing another, and in directing the property to be conveyed to him. Mrs. Shane has made no objection to the individual appointed, and the defendants below cannot raise any objections in this Court for her. .
The resistance which the trustee made to the confirmation of the survey set up by the complainants, subjects him, as well as the other defendants, to the payment of costs.
Guyton’s answer states, that Mrs. Shane had children, but how many, or what are their names, is not alleged: nor is there any proof in the cause, that she had any. A state of case has not, therefore, been made out to justify a reversal for want of proper parties, if it were admitted that Mrs. Shane did not take a fee simple in the use.
The decree of the Circuit Court is therefore affirmed, with costs.
Rehearing
Petition eoh a Re-hearing.
December 17.
The counsel for the appellants, believing that, in the opinion rendered in this case, the Court has misconceived the facts, and given to the deed of trust an operation not warranted by its provisions and the testimony contained in the record, feel constrained to again invite the attention of the Court to the case, and ask a re-hearing-
The Court is understood to concede (as the deed of trust unquestionably implies,) that the fifty acres of land should be laid off so as to include all the improvement; and yet they sanction the survey made by Shane, which
It is true, as suggested by the Court, that to include all of the improvement,by a survey of the fifty acres made to bind on the southern line of the tract of two hundred acres, “ would come still nearer severing that tract in two farts? and we admit that the grantor could not have intended to settle upon his daughter, fifty acres to be surveyed in a form so injurious to the residue of the tract. But it should not be forgotten that, by the deed, the grantor has not fixed the southern line of the tract of two hundred acres as the line to'be adjoined by the fifty acres. According to the deed, the fifty acres was to be laid off on either side or end of the two hundred acres, so as to include the improvement, and so as not materially to injure the form of the remaining one hundred and fifty acres.
If, then, the form of the residue of the tract is entitled to any influence in giving shape to the fifty acres, would it not be more consistent with the obvious import of the deed, to lay off the fifty acres so as to include, not only a part, but the whole of the improvement, and to adjoin some other than the south line of the two hundred acre tract, if, by so doing, the remaining one hundred and
The survey was caused to be made by Shane, before the grantor sold and conveyed the residue of the two hundred acre tract to Guyton; and the Court, in their opinion, remark, that, before his purchase, Guyton knew of the survey which had been so made and acquiesced in by the grantor, and made his purchase without objections to the survey; and from thence infer, that the survey should be protected. We shall not deny but that Guyton knew of the survey which had been made of the fifty acres, before he purchased the residue of the tract, but we respectfully insist that, there is nothing in the record from which it can be reasonably inferred, that the grantor ever acquiesced in the survey as made, or that it was understood or intended by him or Guyton, that the latter purchased and was to have the residue of the tract only, after excluding from the tract the fifty acres as surveyed. On the contrary, we insist that the ' testimony shows satisfactorily, that the grantor was not satisfied with the survey of the fifty acres as made, complained of its not having been surveyed correctly,
We will not trouble the Court with further extracts from the testimony, as they will doubtless again examine all the depositions. It will not escape the attention of the Court, that, up to the time of his sale to Guyton, the grantor remained in possession of the greater part of the land laid off by Shane; and by his deed-, he conveyed to Guyton, the whole of the tract except the fifty acres which had been conveyed by the deed of trust.
The Court is respectfully requested to review that part of the opinion by which the decree of the Circuit Court, in removing the trustee and appointing another to take charge of the trust property, is approved and sustained. The trustee has committed no act which can be construed into a violation of duty, unless his refusal to co-operate with Shane, in attempting to claim and hold the land, as caused to be surveyed by Shane, is such. But should the Court still entertain the opinion, that the survey, as caused to be made by Shane, ought to be sustained, may not the trustee honestly have entertained a different opinion, and acted in good faith in refusing his aid in the claim set úp by Shane and his wife, to the fifty acres as surveyed? and can it be cor
Armstrong & Owsley,
for Guyton.
Response to the Petition. .
December 24.
In response to the petition of the appellants, we would suggest, that we have carefully re-examined the testimony in this case, and feel constrained to adhere to our former opinion.
We do not assume the prerogative of making contracts for the parties; but only of construing the contract which they have made, and of carrying into effect their intentions with respect to it.
We still understand • the deed to give to the grantor, or cestui que use, the right to select the end, side or corner of the survey, upon which he will construct the figure of the fifty acres. But when so selected, the figure of the fifty acres is then to be so surveyed as to embrace the improvement, and so as not materially to affect the figure of the residue. The restriction is not upon the right to select the side, end or corner upon which the figure shall be constructed, but upon the form of the figure, or manner in which the survey shall be run and laid off from the end, side or comer so selected. If this be the case, then the grantee or cestui que use, had a right to select the southern boundary of the tract, as the side upon which to construct the survey. And if so, the survey is laid off so as to affect the figure of the residue of the tract as little, perhaps, as could be done. And though the improvement is not entirely embraced, we cannot say that the appellant has been prejudiced by
Besides, if we are wrong in the foregoing view — from a careful re-examination of the evidence, (in which we admit there is some contrariety) and especially of the evidence of Cardwell and McGruder, who were present when the deed was made to Guyton, we are confirmed in the conclusion, that, although William Ditto had previously. expressed some dissatisfaction at the manner in which the fifty acres had been laid off, on the day the deed was made he expressed solicitude to protect the interest of Mrs. Shane, made no objection to the survey as made, though it was talked of in his presence, and then and before declared that Mrs. Shane was to have her choice; and while Guyton had gone to the office to get her deed, with a view to enable the draftsman to draw the deed to him, that he sent' for two of his neighbors to see that her interest was protected. And that Guyton then knew that the fifty acres had been laid off, and how it run, and made no objection to it, except that it left out a slip on the southern boundary, which had been acquired from one Payne, after the deed had been made to Mrs. Shane, and which, of course, could not have entered into the intention of the parties as to the boundary when it was made. And after this explanation was made, he made no further objection to the survey as made, but made his contract for the purchase of the residue of the land; and must have done so, with an eye to its true condition and value, excluding the survey of the fifty acres as laid off. It is further pretty evident that, but for the absence of the field notes of the fifty acres, and the intimation of the draftsman that it could not be successfully disturbed, that it would have been excluded, by a definite boundary, from the conveyance to Guyton. We therefore still think, that he ought not now to be permitted to disturb the fifty acres, as then made, or to acquire, by his purchase, a different boundary of land, and that too of superior quality and better form, than that which entered into the views of the parties contracting, or into the consideration of his purchase. And much less has he a right to complain,
The trustee not only refused to co-operate with his ces-tui que trust, in the assertion of her just right, and that which was evidently to her interest, but also took part and combined with her adversary. And in his answer, 'professed a willingness to be displaced, if the complainants desired it, and the Court had the power to remove him. The Circuit Court took him at his word, and did remove him, and appointed another in his stead. Nothing appearing to the contrary, we take it for granted that the person so appointed is trust-worthy. And if he is not, we cannot perceive the ground upon which the former trustee has a right to complain, the ■ cestui que trust being content.
• If the trustee appointed should mismanage the trust fund, his acts are liable to the supervision and control of •the Chancellor.
'The petition for a re-hearing is therefore overruled.