107 Me. 108 | Me. | 1910
This bill in equity is brought to obtain from the court a decree that the defendant Murray holds the legal title to a certain dwelling house and lot in Bangor in trust for the plaintiff, and to compel the defendants to convey the property to him free of all liens and incumbrances. The case comes to the Law Court on report.
The material facts alleged and not denied and those satisfactorily established by the evidence, may be succinctly stated as follows:
On the 22nd day of February, 1893, Mary J. McGuire, wife of the plaintiff, being seized in fee of the house in question, valued at $5000, conveyed it to her mother Ellen Cassidy by a warranty deed in which the consideration was stated to be two thousand dollars, and received therefor a promissory note for $2000 signed by Mrs. Cassidy and witnessed by William Cassidy, her husband. At the date of this deed Mrs. McGuire, the grantee, had a suit for slander pending against one Largay, and this conveyance is said by one of the plaintiff’s witnesses to have been made to "cover up the property” in anticipation of a possible cross action by Largay against Mrs. McGuire. No such cross action was ever brought, however, and there were no existing or subsequent creditors who were or could have been defrauded by this conveyance to Mrs. Cassidy.
In the year 1903, the year following the death of Mrs. Cassidy, Mary J. McGuire the wife of the plaintiff, and the grantor in the deed in question, died testate, and by the terms of her will, her husband who was made executor, succeeded to all of the rights of the testatrix in the homestead in question. Nearly two years after the death of his wife the plaintiff found among her papers the promissory note for $2000 in question signed by Ellen Cassidy and given to Mrs. McGuire by Mrs. Cassidy at the time of the conveyance of the property to her. As a result of the investigations which followed the discovery of this note, the plaintiff ascertained for the first time that the legal title to the homestead, which he and his wife had occupied and controlled and upon which they had paid the taxes as absolute owners, without interruption or change during all these years, had been conveyed to his wife’s mother in 1893 and by operation of the provisions of her will transferred to the defendants. Neither did the defendant William Cassidy have any knowledge of the transaction until the deed of 1893 was found on record as a result of the examination following the discovery by the plaintiff
It is not now questioned that in Ellen Cassidy’s will the terms of the devise of her real estate to her husband William Cassidy as trustee, were sufficiently comprehensive to include the McGuire lot in question; but it is manifest from the form of the quitclaim deed to the plaintiff of May '8, 1905, in which William Cassidy is described as "widower” considered in connection with all the other facts and circumstances, that the parties in interest understood that by the terms of Ellen Cassidy’s will, her children took vested interests in the real estate in question and that the quitclaim deeds in one of which William Cassidy joined as "widower” would have the effect to vest in the plaintiff the same full title in fee simple to the property which Mrs. McGuire conveyed to Ellen Cassidy by her conveyance of 1893. It is perfectly obvious, however, that in making that settlement completed May 8, 1905, all of the parties were acting under an .entire misapprehension in regard to the state of the title and the effect of the conveyances then made to the plaintiff. It is not now in controversy that by the provisions of Ellen Cassidy’s will the legal title to the McGuire property in question was vested in William Cassidy, the trustee named in the will, and that under the residuary clause of the will, the children took only contingent remainders which could not be conveyed by them either by quitclaim or warranty deeds. See Robinson v. Palmer, 90 Maine, 246. And by the terms of the will creating a trust the trustee was authorized to sell and convey only unimproved lots.
William Cassidy resigned as trustee in 1905, and William B. Pierce was appointed in his place. Pierce resigned in 1908, and the defendant Edward P. Murray is his successor. It is accordingly not questioned that the legal title to this property is now vested in the defendant Edward P. Murray.
It is provided by section 14 of chapter 75, R. S., that "there can be no trusts concerning lands, except trusts arising or resulting by implication of law, unless created or declared by some writing signed
At the time the ■f2000 note was surrendered to William Cassidy, executor and trustee, it was undoubtedly a valid subsisting claim against the estate of Ellen Cassidy, to the amount of more than Í3400. The note was signed by. Ellen Cassidy by "her mark” and the name of William Cassidy appears on the note as an attesting witness. All the parties in interest had full opportunity to examine this note during the conferences connected with the agreement for the settlement which continued from June, 1904, to May, 1905, and William Cassidy never at any time before the commencement of this cause, questioned either the genuineness of his own signature or the validity of the note, but willingly joined in the agreement, as he expressed it, "to give McGuire the place and take up that note.” But for the apparent purpose of proving that it was not a witnessed note and therefore barred by the statute of limitations at the time of the settlement, he testified as a witness in this cause that his name
It also satisfactorily appears that neither William Cassidy nor any of his children ever asserted a right or expressed any purpose to hold the property on the ground that the original conveyance was in fraud of creditors, but upon discovery of the note and deed they all joined in the agreement to convey the property to McGuire in consideration of his surrendering the note to the executor of the estate. That such an oral agreement was made is established beyond question. It is sufficiently alleged in the bill, distinctly supported by all of the direct testimony in the case, not denied by Mr. Cassidy himself and absolutely and decisively confirmed by the deeds given in attempting to effect the settlement.
The plaintiff performed his part of the contract by surrendering the note and acknowledging in the memorandum that it was "settled by a reconveyance of the property.” No action at law can now be maintained upon the note thus surrendered and canceled. The plaintiff continued in the possession of the house, exercising dominion and control over it, paying the taxes and making repairs upon it, in the confident belief that he was the lawful owner of the property.
At the time of the execution of these deeds to the plaintiff, the defendants undoubtedly believed that they had performed the agree
With respect to the specific performance of such oral contracts on the ground of part performance, it is said in Madison v. Alderson, L. R., 8 App. Cas. 467, that when the statute says no action is to be brought to charge any person upon a contract concerning land unless it is in writing, "it has in view the single case in which he is charged upon the contract only and not that in which there are equities resulting from res gestae subsequent to and arising out of the contract.” And in 4 Pom. Eq. Jur. sec. 1409, the author says: "The ground is equitable fraud; not an antecedent fraud in enteriug into the contract, but a fraud inhering in the consequence of setting up the statute as a defense.” So in Woodbury v. Gardner, 77 Maine, 68, it was held that a parol agreement for the conveyance of land should be enforced in behalf of the vendee whose partial performance has been such that fraud would result to him unless the vendor were compelled to perform on his part. In the opinion the court said: "The ground óf the remedy is equitable estoppel based on an equitable fraud. After having induced or knowingly permitted another to perform in part an agreement on the faith of its full performance by both parties and for which he could not well be compensated except by specific performance, the other shall not insist that the agreement is void. ... In other words, the statute of frauds having been enacted for the purpose of preventing frauds, should not be used fraudulently.”
Again in Pomeroy’s Equity Jurisprudence, Vol. 6, (Eq. Rem. Vol. 2,) section 830, the author says: "Independently of the doctrine of part performance, relief may be granted when the defendant has been guilty of fraud which leads to an irretrievable change of position.”
In the case at bar the refusal of the defendant to complete the transfer of title to the plaintiff according to the manifest purpose of the agreement, is an equitable fraud upon him. By the plainest principles of justice and conceptions of common right he is entitled to relief from the consequences of that fraud, and the court is not prohibited by any reason or authority from granting such relief, but on the contrary is warranted in so doing by the established principles of equity jurisprudence.
It is accordingly the opinion of the court that the plaintiff is entitled to a decree authorizing and directing the defendant Edward P. Murray in his capacity as trustee, to convey to the plaintiff by quitclaim deed with the usual covenants, all the right, title and interest in the real estate in question which he.holds as trustee under the will of Ellen Cassidy.
Bill sustained with costs.
Decree in accordance with opinion.