Hodgson v. Macy
8 Ind. 121
Ind.
1856
Check Treatment
Davison, J.

The complaint charges that Henry Macy, who died intestate, in his life-time was indebted to Jonathan'Macy, the plaintiff below, 900 dollars-for a certain mill-property purchased of him by the intestate. The administrator, who was the defendant, answered— 1. Tliat he was not indebted. 2. Payment. 3. The statute of limitations. Replies in denial of the answer. The cause was submitted to the Court, who found for the plaintiff; and over a motion for á new trial, there was judgment.

The following are the facts: In the year 1837, one Elias Eatliff, being the owner of eighty acres of land in Henry county, on which was situate a mill-property, sold it to one Moses Jones for 1,700 dollars, and gave Mm a title-bond. Jones afterwards sold to Jonathan Macy, and assigned him the bond, who, in pursuance of *123his purchase, took possession of the land and remained therein until the spring of 1846. Before this year Jonathan and his son Henry, the intestate, had worked together in Grant county, but had returned to Henry county in the fall of 1844, when Jonathan, Henry, and one David Maey, who owned a farm in’the immediate vicinity of the mill-property, formed -& partnership, and .worked together for tlie space of about one year, using, for the purposes of the partnership and in common, the several tracts of land owned by Jonathan and David. On the 11th of August, 1845, and while the parties were still working together as partners, Jonathan, having paid for the eighty .acres, procured Ratliff to make a deed for it to Henry, who was not present when the deed was made. It was delivered to Jonathan, whp then stated to Ratliff that he expected to let Henry have the land or a part of it. In the year 1846, the three Macys dissolved their partnership, when a settlement was had between Henry and Jonathan. Prior to this, Henry told David Maey, a witness, that he and his father “were about to settle for their work together, and that he had agreed to take seventy acres of the land.” And after the settlement he moved a fence so as to make a division fence between the seventy acres and the remaining ten acres, which embraced the mill. In the proceedings the latter is designated “the mill-property.” After the removal of the fence, Henry remained in possession of the seventy acres and Jonathan in that of the mill-property, until the year 1848, when it also passed into Henry’s possession. "When the dissolution took place, the rebuilding of the mill had been commenced, which rebuilding Jonathan afterwards, and while he remained exclusively in possession of the mill-property, completed at his own expense. There was proof that Henry, between the year 1848 and his death, which occurred about the 25th of August, 1851, distinctly and repeatedly stated to various persons that he had bought the mill-property. of Jonathan, for which he was to pay him 1,000 dollars; that he had paid 100 dollars, and was to *124have time on the balance. It also appeared that Henry, in the year 1849, and after he had obtained possession of the mill, repaired and otherwise improved the mill-property. And it was further proved that the defendant, as administrator, filed his petition in the Common Pleas of Henry county, wherein he recognized the 900 dollars sued for in this action as due from the intestate’s estate to the plaintiff, and on account of that debt, procured an order of Court directing him to sell the whole eighty acres, which sale was accordingly made.

Under the law of uses and trusts, as it stood prior to the revision of 1843, when lands were conveyed to one person and the consideration was paid by another, there was a resulting trust in favor of him who paid the money. .But when the deed,to Henry Macy was made, that revision was in force, and contained a statute under which no use or trust resulted in favor of him who paid the money; and the title vested in the person named as alienee in the deed. R. S. 1843, p. 445. It is therefore evident that, in this case, there is no resulting trust. But the appellant says that Jonathan having paid the purchase-money and directed the conveyance to be made to his son, it must be viewed as an advancement. Upon the naked fact that a father buys and pays for land and has the deed made to his child, the inference of law is that it is an advancement to the child; but it is competent to meet and repel such inference by proof that the father- did not intend it as an advancement. In such cases the question is one of intention; and if the evidence before us does not rebut the inference, then Henry’s title by virtue of the deed must be held complete both in law and equity. But may it not be inferred, from his statements prior to the settlement, that Jonathan was indebted to him? He said they were about to settle and he had agreed to take seventy acres of the land; and having taken possession of it after the settlement, the deduction is not an unfair one, that he took the seventy acres in payment of the debt. He did not, however, assume ownership over the mill-property, *125though, he had received a deed for the entire tract; but of the last-named property Jonathan remained in pos-. session, using and improving it as his own, until he sold it to Henry. In view of the whole case, we are led to the conclusion that the deed was delivered to Henry under a subsisting agreement between him and Jonathan that the latter should hold the mill-property in his own right., Under the facts stated, such an agreement would not be in conflict with .any rule or principle of law, and the result is, Henry was bound in equity to convey him the ten acres, not on account of his having originally paid for the whole tract, but in virtue of an agreement which, though not technically proved, plainly existed. It follows that Jonathan did not intend either to give or advance the mill-property to his son. Such appears to have been the finding of the Court below, sitting as a jury, and we are inclined to sustain its conclusions. .He was, then, entitled to an equitable interest in the property which he had a perfect right to dispose of by sale, and which, as before stated-, he did sell to his son Henry. This sale and the price agreed on is clearly proved not only by Henry’s admissions in his life-time, but by those of his administrator since his death. We cannot, therefore, perceive any valid ground upon which the present action can be defended.

W. Grose, for the appellant. E. Johnson and J. T. Elliott, for the appellee. Per Curiam.

The judgment is affirmed with 8 per cent, damages and costs.