Lisloff v. Hart

| Miss. | Oct 15, 1852

Mr. Justice Yerger

delivered the opinion of the court.

In 1846, Philip Lisloff contracted for the purchase of a tract of land situated in Carroll county, from Isaac H. Hanah, and on the payment of the purchase-money by him, Hanah, at his request and direction, conveyed the land by deed in fee-simple to his son, Charles Lisloff, Jr. Subsequently, in 1848, Hanah; at the request of Philip Lisloff, made another deed, by which he conveyed the land to Charles Lisloff, Sen., a brother of Philip, antedating this''deed of the year 1846, and the deed to Charles Lisloff, Jr. was then destroyed. Charles Lisloff, Sen., afterwards, at the request of Philip, conveyed the land in trust to a man named Wales, to secure the payment of certain promissory notes, made by Philip Lisloff to the defendant Os-burn. Osburn was present when the deed to Charles Lisloff, Jr., was destroyed, and was aware that it was destroyed for the purpose of pfocuring Hanah to make another deed to Charles Lisloff, Sen., in order that he might execute the deed of trust to secure the notes.

On the facts disclosed by this record, although the purchase-money was paid by Philip Lisloff, we must consider it as an advance made to his son, and the conveyance of the land as a voluntary settlement by the father upon him. The deed made to the son by Hanah vested the title to the land in him, and the subsequent destruction of it did not divest it. The second deed, made by Hanah to Charles Lisloff, Sen., is inoperative, and cannot defeat the right of the son to the premises.

It is certainly true, as a general rule, where A. purchases a tract of land with the money of B., and takes the title in his own name, a trust results in favor of B. Yet where a father purchases, with his own money, property in the name of his child, it is, as a general rule, held and considered an advance or settlement upon the child; and, although it be a voluntary settlement, yet, as we held at the present term of this court, in the case of Norman et al. v. Burnett, it is not revocable by the father. See, also, Verplank v. Sterry, 12 Johns. R. 548, and 1 Vernon, 464, where the court say: “ A settlement, though voluntary, is not revocable.”

‘Osburn, in his answer, states that the conveyance was made to the son in order to hinder, delay, and defraud, the creditors of the father; but there is not the slightest proof on this point. Pie also suggests that the deed was made to Charles Lisloff, Jr., by mistake of the draftsman, it having been intended by Philip Lisloff that the conveyance should be to his brother, Charles Lisloff, Sen. The testimony of Harris, who drew the deed to the son, proves the very reverse of this suggestion.

Osburn likewise states, that, in 1846, before the deed to Charles Lisloff, Jr., had been destroyed, and, before the execution of the deed to the uncle, Charles Lisloff, Sen., believing that Philip Lisloff was the real owner of the land, he had purchased from him one half of four acres of the land, and of a saw-mill erected thereon, and that Philip told him at that time that he was the owner of the land, and had a deed for it to himself.

This statement cannot avail the defendant, for several reasons. First, because it is matter in avoidance, and there is no proof of it whatever, except the statement in the answer. Secondly, because he does not state that he had paid to Philip Lisloff the purchase-money before he was informed of the title of Charles Lisloff, Jr.; and thirdly, because the legal title never was in Philip Lisloff; and, therefore, by this deed, Osburn did not obtain the legal title, and cannot claim to be a bond fide purchaser for valuable consideration without notice. If he saw fit to rely upon the statement of Philip Lisloff, that he had the title, without demanding its production, he must abide the consequences of his own confidence; and if it has turned out that these representations were false, he cannot impute his injury to any other cause than his own laches.

Nor does this case fall within that provision of the statute of frauds (Plutch. Code, 637) which declares : “ If any conveyance be of goods or chattels, and be not on consideration deemed valuable in law, it should be taken to be fraudulent within the act, unless the same be by will duly proved and recorded, or by deed in writing acknowledged or proved, and such deed, if for real estate, shall be acknowledged or proved and recorded in the county where the land conveyed is situated.”

The conveyance in this case was from Hanah to Charles Lisloff, Jr., and was for valuable consideration, to wit, the purchase-money paid by the father, Philip Lisloff. Hanah was the grantor of the deed, and if it had not been recorded, subsequent purchasers or creditors of his, without notice of its existence, might have avoided it, because it was not recorded; but neither the letter nor reason of this part of the statute can be made to apply to purchasers or creditors of Philip Lisloff, in whom the title was never vested, and who, therefore, never had any interest in it which creditors could reach, or any title which he could convey to a purchaser. It must be understood in this connection, that we are treating the money advanced by Philip Lisloff as a bond fide settlement and advancement upon his son, because if there had beep proof that he had advanced the money for the purchase of the land himself, and had the deed made to his son, with the intent to hinder, delay, or defraud his creditors, or to defraud or deceive those who might afterwards purchase the land from him, then the deed would be avoided by other provisions of the statute of frauds. But as we have before remarked, there is. not the slightest proof of any such intent. The decree of the vice-chancellor must be reversed, and a decree rendered in this court in favor of the appellant, granting the relief sought by the bill.