28 Mich. 90 | Mich. | 1873
This was an action of trespass, brought by Hoffman against Harrington in the St. Clair circuit, for entering upon certain lots in the city of Port Huron, tearing down a fence placed around the lots by the plaintiff, and removing the sills of a house he was preparing to build there.
The evidence tended to show that, for some two years prior to the trespass complained of, the defendant was, and up to the time the plaintiff commenced building tbe fence,, continued to be, in possession of the lots, claiming to own them under certain deeds from the auditor general for delinquent taxes, and certain leases from the city for delinquent city taxes, as well as under a quit-claim deed from one Geel, who, the evidence tended to show, was one of the heirs of John Thorn, the patentee of the lands; and that he used the lots for storing spars, boom poles and other timber thereon, driving piles in front of the lots along the river and filling up portions of some of the lots with sawdust; though he had never fenced the lots, as a fence' would interfere with their use for such purposes; that on Friday or Saturday, the 18th or 19th of February, 1869, the plaintiff, having just then obtained the quit-claim deed of the lots from Hamilton (more particularly noticed hereafter), employed a number of men and teams, entered upon the lots, drew off the spars and timber of defendant, and in a hurried manner built a fence around the lots, and
Upon the evidence in the case, the court properly instructed the jury that the tax deeds and leases, under which the defendant claimed, were void; but that they might, nevertheless, be treated as color of title ; and if possession had been taken under them, they were admissible as tending to show what, and how much land defendant claimed. And the question of defendant’s prior and continued possession under claim and color of title was fairly submitted to the jury.
If the defendant was, at the time of plaintiff’s hurried entry and building of the fence, and had previously been, so in possession, it is clear, under the circumstances, not only that he had a right to enter, tear down the fences so recently and hurriedly put up, and to regain his possession, if he could peaceably do so, unless the plaintiff had the title, or the legal right of possession under the true owner; but it is equally clear that unless the plaintiff had such title or right, prior to his own entry, that entry and the building of the fence, and other acts done by him, made the plaintiff a trespasser in taking the possession, rather than the defendant for retaking it.
But the plaintiff claimed title through a sale and deed, claimed to have been made by one Hamilton, as administrator on the estate of John Thorn, the patentee, to one Minnie, a deed from the heirs of said Minnie to said Hamilton, and a subsequent deed of February 18th, 1869, from Hamilton to the plaintiff. The deed from Minnie’s heirs
On the other hand, the deed from Geel to the defendant was made subsequent to the sale by the administrator,, and a question is raised whether this deed was intended to convey any interest Geel might have had or claimed as heir of Thorn, or only such interest as he had acquired by purchases for taxes.
But, as the deed from the administrator, if valid and sufficiently proved, must defeat the deed of Geel as to any interest he may have had as heir, whether he intended to-convey it or not, we will first consider the proof and the-validity of the alleged deed from the administrator.
As to the administrator’s sale, the bill of exceptions states that, “the plaintiff’s counsel offered the probate records, showing the appointment of Samuel W. Hamilton as administrator of John Thorn’s estate, and also tending to show sale of the lots in question to one Joseph P. Minnie, and the execution of a deed which had been lost.” As no deed was to be made by the administrator, till the report' of the sale made by him, and its confirmation (Rev. Stat. of 1846, ch., 77, § 21), and the confirmation of the report wouldl be the last entry upon the probate record, it is difficult to-see how that record could tend to show the loss of the-deed, if in fact it could have any tendency to show its-execution (Ives v. Ashley, 97 Mass., 205); yet, as I understand the language above quoted from the bill of exceptions,, it refers to the probate record as the evidence tending to show both the execution and the loss of the deed. Evidence, however, was subsequently given (which will presently be noticed) of the execution of the deed from the administrator, and of its being left with a third person for the purchaser, but no evidence of any search for the deed is-stated at all, and none of its loss, except that above quoted from the bill, which refers only to the probate record, as tending to show the loss. But, as it is possible the last clause above quoted from the bill may have been under
Hamilton testified that he “ made the sale as administrator ; made deed and left with one McAlpine, by arrangement with Minnie, for Minnie to get whenever he wanted it.” On cross-examination he testified “that it was the understanding between him and Minnie that Minnie should buy the lots to protect his” [Hamilton’s] “interest as a creditor, — he being the largest one, — of the estate; that Minnie did so bid; that there were other bidders at the sale, but Minnie was the highest bidder. It wras understood that Minnie should hold the land for his” [Hamilton’s] “benefit.”
The fact that Minnie bid in the land for the administrator, thus making the administrator’s sale indirectly to himself, is undisputed, and there is no evidence or pretense to the contrary.
The court charged the jury that if they believed this ■evidence, and that by an arrangement between the administrator and Minnie, the latter was to pay nothing for the lands, but was to convey them to the administrator, or to hold them for his special benefit, then, as matter of law, such sale was void as against the heirs of Thorn.
The statute (Rev. Stat, of 1846, ch. 77, § 18; Comp. L. 1871, ch. 168, § 18) provides: “The executor or administrator making the sale, and the guardian of any minor heir of the deceased, shall not directly or indirectly purchase, or be interested in the purchase of any part of the real estate so sold; and all sales made contrary to the provisions of this section shall be void; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward.”
It does not distinctly appear from the record when this administrator’s sale took place; though I infer from the judge’s statement in the charge, that John Thorn died not very long previous to 1864, and that this sale was made since the passage- of the above statute. At all events, as it devolves upon the plaintiff to show affirmatively the error of which he complains, his failure to show, by the bill of exceptions, when the sale was made, requires us to presume in favor of the correctness of the charge, that the sale was subsequent to this statute, if the statute upon that state of facts would justify the charge. I shall therefore proceed upon this hypothesis.
Now, if the purchase by Minnie, above stated, for the benefit of Hamilton, the administrator, does not constitute an “indirect purchase” by the administrator, within the plain meaning of this section, then it is impossible to assign any intelligible meaning to the prohibition. Had he purchased in his own name, the purchase would have been a direct one; procuring another to purchase for his benefit, is precisely what is intended by the statute as the indirect purchase intended to be prohibited. This is so plain that no one would insist upon the validity of such a deed, even as to a subsequent purchaser claiming through
The statute, however, equally applies to, and equally prohibits and makes void such a sale, whether it be directly or indirectly made to the administrator, or for his benefit. It places such sales, whether direct or indirect, upon precisely the same grounds, and makes no distinction between them. It makes both simply and absolutely void, and, of course, illegal by its express enactments. If the invalidity can be waived in one case, it can also in the other. There is no exception or qualification, and no saving of rights in favor of purchasers of any' kind, with or without notice, nor in favor of any person whatever. And the question is, whether the courts can engraft such an exception or qualification . upon the statute as the legislature did not think best to adopt, and restrict a provision which they chose to make general and unqualified.
For myself, I think the statement of such a question is its own answer. To engraft such an exception or qualification upon this statute, unless there be some other statute with reference to which it was enacted, and which, when construed with this, would make such the combined effect of the two, would be an exercise of legislative power; it would be making or revising, not expounding or construing the law. Whether there be any other provision of our statutes to which this section is made subordinate, and which would have the effect to establish the qualification insisted upon, is another question which we shall examine in its proper place. But if there be none, we are bound to give the same full effect to this section, whether the purchase was made directly by the administrator, or indirectly for his benefit. Where a statute within the consti
In fact, I think the statute was only needed for just such indirect purchases as that before us. Our predecessors on this bench determined, in a case where the sale was made prior to this statute, that at common law a sale and deed made by two administrators to one of them, of the property of the estate, was void, and this, irrespective of the question whether there was in fact any fraud or not; and in this, I think, they were supported by the weight of authority. — See Dwight v. Blackmar, 2 Mich., 330. But where the sale to the administrator was indirect, in the name of another, it was somewhat questionable upon the authorities, whether the sale would not be held valid at law, and the party seeking to avoid it be driven to a court of equity. And the mischief to be guarded against — the temptation to fraud and collusion, and the difficulty of detection, the probable wrong and injury to result to heirs and creditors, if such sales were upheld — are just the same whether such sales be of the direct or the indirect kind.
But it may be urged that great injustice might be done to bona fide purchasers, unless such exceptions in their favor are allowed or implied. In reply to this it is sufficient to say, that the contest between such purchaser, on one side, and the heir, or his grantee (or creditors of the estate), on
If it be. said that the general rule or principle which renders the sale by an administrator to himself, or to another for his benefit, void, was one which was well settled, both in courts of equity and at law (which I do not think was the case at common law, as to indirect sales) prior to the statute, but settled with such well known qualifications as would sustain the present sale, as to purchasers from Minnie or his heirs, without notice of the interest of the administrator in the sale made by him, and that the legislature, in passing this statute, intended it as a mere declaratory provision, adopting the rule as already settled by the courts, and subject to the same limitations and qualifications; it is sufficient to say, in reply, that this position necessarily assumes that the legislature knew and understood what had been the course of decision upon the question, and how far and with what qualifications the courts had adopted the rule or principle in question. There is no ground for assuming that the legislature were aware of the rule as adopted by the courts, but ignorant of the limitations and qualifications with which they had adopted it. They must be presumed to have known the qualifioa
We are next to inquire whether there is any other statute with reference to which the section above cited was enacted, and which has the effect to establish the exception or qualification claimed in favor of the purchaser from Minnie’s heirs.
As the administrator’s deed to Minnie was not' recorded, the plaintiff did not purchase on the faith of its record. Had it been recorded, and had the plaintiff purchased on the faith of its record, without notice that the purchase was made for the administrator, the case would probably have come within the registry laws, upon the same principle that the deed from Thorn himself would have come within them, so far, at least, as regards questions of the kind here presented. But as the deed was uot recorded, and the plaintiff did not purchase on the faith of it, but well understood that the transmission of the Thorn title to Minnie depended wholly upon facts outside of the record, in other words, upon such parol evidence as might be found to furnish the necessary link, he should, as between him and the heirs of Thorn, or their vendees, be held to assume the risk of ascertaining the whole state of facts as they actually existed.
By section 52 of chapter 77, Revised Statutes of 184-6, (Comp. L. 1871, § 4596) it is enacted: “In case of an action relating to any estate sold by an executor, administrator or guardian, in which an heir, or other person claiming under the deceased, or in which the ward, or any person
The 53d section, which makes the administrator and his-bondsmen liable for any of his neglect or misconduct, by which any person interested in the estate shall suffer damage, manifestly refers to cases in which the acts of the administrator, though wrongful, would be binding upon
Nor does the 55th section in any way refer to or affect the 18th. It renders the administrator “ who shall fraudulently sell any real estate of his intestate contrary to the provisions of this chapter, liable in double the value of the land sold, as damages, to be recovered in an action on the case by the person having an estate of inheritance therein.” But this is only on the ground of actual fraud, and applies to no other cases, while section 18 makes the sales referred to void, irrespective of the question of fraud, and whether there has or has not been fraud in fact; and when thus void, it could not prejudice the rights nor divest the title of the person having the estate of inheritance in the land.
None of these sections, therefore, relate to, or modify the effect of, the 18th section, all having a different object and purpose; and I am aware of no other provision of our statutes which can be claimed to have any such effect.
The sale and deed made by the administrator must be held void, as to the heirs of John Thorn, as charged by the court, and, of course, as to all parties deriving title through any-of those heirs. ___
This ought, perhaps, to dispose of the case, as it can hardly be claimed that, under the circumstances shown, the plaintiff could maintain trespass without showing title. But as it is possible the jury might not have found the prior possession in the defendant up to the time of the plaintiff’s entry ;(or trespass), had that question been submitted to them un mixed with the question touching the G-eel deed, and they may have based their verdict for the defendant, in part at least, upon the title shown by him under that deed, we will consider the question raised upon that deed.
As, in my view, the bill of exceptions is somewhat defective for the purpose of distinctly raising the question relied upon by the plaintiff in error, I here quote from the bill all that is claimed to present the question: “The defendant’s counsel, to maintain the issue on his part, introduced a quit-claim deed from James M. Geel to the defendant, dated October 25th, 1864, describing the lots in question, in the usual form; and in the body of the deed, following the description of the lots, is the following language: ‘ This conveyance is intended to embrace all titles,and interests accruing for the purchasing, for taxes, delinquent or otherwise, up to and including the year 1863,’ as tending to show a conveyance to defendant of an interest in the land then held by said Geel, as heir of John Thorn, who it was conceded patented the land, and died seized of the same.”
The question is, whether this reference to the tax purchases, and the declaration of the intent to convey the interest accruing under them, confined the entire operation of the deed, as a conveyance, to such interests as Geel had thus acquired by tax purchase, so as to prevent its taking effect, as a conveyance, upon any interest he might have had as an heir of Thorn. It is obvious this question might depend much upon the form of other parts of the quit-claim deed, besides that portion stated in the record. And as it devolves upon the plaintiff in error to show affirmatively that error has been committed, the bill, in order distinctly to raise the point, ought regularly to have given a copy of the deed, or of all such parts of it as, in the common forms of quit-claim deeds in this state, would
And so far as my own observation and experience (of thirty-seven years) have extended, I can safely say that in the usual form of quit-claim deeds in this state, as found in the printed blanks in common use, there follows, after the description of the land, general and sweeping language, intended to cover every possible interest the maker of the deed may or might have in the lands described; like that used in the quit-claim which came in question in Dubois v. Campau, Mich., 366 (or words equivalent in effect); which was held in that case to be important as showing the intent to convey all the grantor’s interest in the land, viz.: “Together with all and singular the hereditaments and
But it is asked, “ Why speak of the interest under the tax purchases at all, miless it was intended to confine the conveyance to that, as that interest would have passed without being mentioned?” This argument might have greater force, if it were not so very common to insert in conveyances of real estate many things which are wholly unnecessary, in the attempt to render the intention very clear, which, in unskillful hands, often ends in obscuring it. But I think the record itself furnishes matter for a probable explanation of this reference to the interests acquired by the tax purchases. Geel had made at least one of those purchases upon which he was not yet entitled to a deed; and it does not appear that he had then obtained the deeds on all his former purchases. The idea may therefore have occurred to the person drawing the deed, that, as a mere quit-claim would not convey an after acquired title (should the tax deeds be subsequently issued to Geel), it might be as well to declare expressly that the deed was intended to convey Geeks interests in all those tax purchases, so as to cover the case, whether they had been issued or not; hence, also, the express inclusion of that for the year 1868, upon which no deed could yet be obtained.
But whether such is the true explanation of the reason for inserting the clause in the deed, or not, I am satisfied
This deed,ftherefore, was properly construed by the circuit judge, and, with the other evidence in the case, tended to show that he had obtained the interest of one of Thorn’s heirs in the premises; and upon that ground, as a tenant in common with the other heirs (few or many), was entitled to the possession as against the plaintiff.
Several other exceptions were taken, and errors assigned, but as they were not pressed by the counsel for the plaintiff in error, and upon looking into them we think it clear they are not well founded, we do not notice them here.
I think the circuit court was correct in all his rulings, and the judgment should be affirmed, with costs in both courts to defendant in error.
I am not able to agree with the chief justice, respecting the operation of the statute against a purchase by or in the interest of an administrator at his own sale.
Such a purchase was as fully forbidden by the common law as it is by this statute. — Beaubien v. Poupard, Harr. Ch., 206; Walton v. Torrey, ib., 259; Dwight v. Blackmar, 2 Mich., 380; Tufts v. Tufts, 8 Mood. & M., 456; Ames v. Downing, 1 Brad. Sur. R., 321; Woodruff v. Cook, 2 Ed. Ch. R., 259 ; Hawley v. Cramer, 4 Cow. R., 717; Hunt v. Bass, 2 Dev. Eg., 292; Walker v. Walker, 101 Mass., 169 ; Tiff, and Bull, on Trusts, 149. A large number of cases illustrating the doctrine and its application will be found in the American note to Fox v. Mackreth, 1 L. C. in Eq.
In passing upon fiduciary transactions during a course of years the courts had settled upon the rule as one eminently just and politic, but they had also recognized certain principles to regulate its application, and without which it might be turned into an engine of mischief. And when the legislature came to revise and re-arrange a system of positive leading rules to govern in the case of sales by executors, administrators, and guardians, they appreciated the value of this one, and very naturally included it.
In doing this they did not change the law. They only made that positive which was not so before. They did not think it needful to go further and convert into positive law all the principles of application which had been found essential, any more than they thought it proper to forecast the principles of application which the possibilities of the future might require.
As the rule itself was no new thing, but something merely taken from the body of the unwritten law and put into the written code, it was natural to expect that it would be expounded and applied in the spirit of the common law and in harmony with the principles which had guided the courts before.
These principles were not set aside or impugned. They remained as vital as ever, and since the only change effected was in carrying this rule, which was already law, from the •unwritten to the written eodé, I cannot see why it should be administered in a new spirit and contrary to the principles natural fo it. They accompanied the rule into the statute book, as I think, and should be recognized in applying it.
Whether the deed given on the public sale is recorded ■or unrecorded, whether a full price was or was not paid and applied for the estate, whether the sale was or was not •confirmed in regular form by the court, whether or not the party claiming title under it through a subsequent purchase bought in good faith for a full price and without notioe, can make no difference.
It never had effect'because the law forbade it. We are ■compelled to go to this length, or confess that such a sale is not made positively illegal and so completely nugatory. If not void as a sale, it must have some of the legal possibilities of a valid sale. There is no practical middle ground. We cannot stop short of the extreme view, without confessing that the law was. not intended to make such sales wholly ineffectual and inoperative, as to all persons and circumstances, non without admitting that they may avail to some purposes, and for and against particular parties, and hence that they are to be regarded simply as voidable, and not as nullities; and if we accept this conclusion, we tacitly admit that in applying the act we are not only authorized but required to mitigate its scope.
Now I understand it to be conceded that we ought to qualify its -operation. If we may do this, if we may say that such a sale is not a nullity but may have some force, by what principles are we to be governed? Where shall we pause ? What reason can be given for halting short of the view which was settled when the rule was worked into ithe statute?
There is no question but that a statute may be cut short by the common law, and even a constitutional provision may have a modified application in consequence of a construction based on its original connection with clauses subsequently erased by amendment. — Fletcher v. Peck, 6 Cranch, 189.
If the sale is not to be considered as void in the sense of being a nullity, it is left as merely voidable, and hence sufficient except as against persons in position to complain and who move in season. And when the property has been re-sold to a Iona fide purchaser without notice, before an attempt to impeach the sale, it will stand, and such purchaser will be protected. This was the doctrine when the legislature transferred the rule, and it belongs to the rule.— Wyman v. Hooper, 2 Gray, 141; Jackson v. Walsh, 14 J. R., 407; Robbins v. Bates, 4 Cush., 104; Blood v. Hayman, 18 Met., 231; Lessee of Lazarus v. Bryson, 8 Binn., 54; Sweet v. Southcote, 2 Brown C. C., 66; Lowther v. Carlton, 2 Atk., 242; Brandlyn v. Ord, 1 Atk., 571; Ferrars v. Cherry, 2 Vernon, 383.
The equity of the bona fide purchaser is deemed at least equal to that of the heir or his vendee, and as he holds the formal legal muniment of title, his right is considered superior. — Hill on Trusts, 504; Tiff. and Bull, on Trusts, 199, 200; Story Eq. J., § 434.
Whether the plaintiff, who bought of Hamilton, had notice of Hamilton’s misconduct, we do not know, and cannot determine. I think, however, it cannot be laid down as a rule of law that he could not hold the character of an honest and fair purchaser, and with the full rights of one buying in good faith and without notice, simply because as matter of fact when he bought the administrator’s deed-to Minnie had not been put on record, ft is not perceived
But neither of these grounds is intended to be carried .so far as to produce consequences more mischievous than beneficial.
It is in the last degree indispensable to give all reasonable credit and confidence to these fiduciary sales, and to the titles founded on them. They are a necessity, and their utility, and indeed their very being as practical transactions, depends upon the general opinion of their solidity. The law every where recognizes their necessity, and aims to make them eventuate in producing fair values. A very large number of titles are now held under such sales, and in a course of years the whole real property in the state will rest on titles so derived. But if every such title, in the hands of a fair and honest buyer without notice of any thing wrong, is to be subject to be overhauled and upset because it can be proved that the official trustee had in fact some secret interest in the sale, a sale judicially confirmed and apparently legal, the deep and indispensable policy of the law, in favor of these sales and their productiveness, will be thwarted, if not completely defeated, and a numerous class of blameless persons will be despoiled and injured.
Against public frauds and public misconduct a man may be able to guard. If the ear-mark of fiduciary misbehavior is borne by the title papers, or by the record, the purchaser
As I see nothing in the statutory recognition of the principle forbidding fiduciary misconduct which implies a design to lessen or impair the rights of .honest purchasers, or one looting to any change in the application of the principle itself, I am not ready to assent to the view so strongly set forth by the chief justice.
The court being equally divided on the main point, but all agreeing that no other error was committed, the judgment below was affirmed.
