5 Ga. 341 | Ga. | 1848
By the Court.
delivering the opinion.
In 1827, one Ebenezer G. Duffey, being the owner of 303f-acres of land, to-wit: lot No. 254, and one half of lot No. 255,. in what was originally Houston, now Crawford county in this. State, conveyed the same, by deed, to Daniel Duffey, his father. The only consideration mentioned in the deed, is the sum of $1000, which the bargainer acknowledges to have received as-payment in full for the land, and immediately follows a clause,, exonerating the bargainee therefrom. Shortly after the purchase,, Daniel Duffey went into possession and remained on the land till his death, in 1838, and having devised the land by his will to. his son, Jesse Duffey, who was living with him on the piemises, the devisee continued in the occupancy till October, 1839, when he died intestate. His administrators took possession, and have-held the land ever since. In 1845, Stephen G. Cotten and Catharine, his wife, formerly Catharine Duffey, widow and relict of Ebenezer G. Duffey, filed their bill in the Superior Court of Crawford county, in which they seek to recover one half of this land, together with a moiety of the rents, issues, and profits since the death of Daniel Duffey. And it is upon the final trial of this bill, that the errors complained of are alleged to have been committed.
The 8th section exempts from the operation of the Act, trusts arising or resulting by the implication or construction of law. Wliat then are resulting trusts, which before the Act were disposable by a bare declaration by parol, and are considered since its passage on the same footing ? They were said by Lord Hardwick, in Lloyd vs. Spillet, 2 Atkins, 148, 150, to arise on three cases; first, where the estate is purchased in the name of one person, but the money paid for It is the property of another. Secondly, where a conveyance is made in trust, declared only as to part, and the residue remains undisposed of, nothing being' declared respecting it. And thirdly, fin certain cases of fraud. In all these cases,.parol evidence is admissible, to establish the-•collateral facts, from which a trust may legally result, though received with great caution. Mr. Roberts, in his Treatise on Frauds, p. 97, seems to think that the Chancellor must have been 'incorrectly reported, in his classification of resulting trusts. At any rate, he shows conclusively, that the cases of constructive trusts, or such as arise by operation of law, are almost innumerable. With this controversy, however, we have nothing to do at present.
But in all such cases, the bill must contain, allegations of fraud. Many precedents might be cited in support of this principle. Let one or two suffice. Truham vs. Child, 1 Bro. C. C. 93, was a bill filed to redeem, suggesting that it was part of the agree
So, in Portmore vs. Morris, 2 Pro. C. C. 219, the question being upon the admissibility of parol evidence of the agreement, that the annuity should be redeemable, His Honor said, “ Before the Statute of frauds, parol evidence could not be admitted to contradict written agreements, except in very particular cases indeed; and after, deeds were under the same rules. If fraud was imputed, it might be done here, but it is dangerous to depart from deeds. It might be the intention, that the annuity should be redeemable, but I can only get at it by demolishing one of the foremost rules of law ; therefore, I reject the evidence.”
In Haynes vs. Hare, 1 H. Black. 664, Lord Loughborough, after commenting on the case in second Brown, remarks, “ It is not necessary to cite any case to prove the proposition, that parol ev
The facts of this case strikingly illustrate the correctness of the foregoing observations. Aware of the rule that Courts look with great jealousy u]5on all transactions entered into with persons in imprisonment, or under terror or apprehension, the complainants sought to prove, and successfully too, that the deed of conveyance from Ebenezer to Daniel Duffey, was procured while the former was in jail, in Jones county, waiting his trial for murder. One witness swears positively, that the father admitted that such was the fact. Unfortunately, however, there is record evidence of the impossibility of this statement being correct. Young'Duffey was sentenced to the Penitentiary, on the 2d of May, 1827 ; the certificate of the keeper shows that he was committed on the 5th, and the deed bears date the 14th of July; more than two months thereafter.
Another witness testifies, that the reason assigned by Daniel Duffey, for wishing te get a title to the land, was, his fear that Smith & Jones, the attorneys of his son, would get it for their fees. Whereas, one of these gentlemen, still in life, whose character for truth is above reproach, and whose memory could hardly be at fault respecting a transaction in which he was so deeply and directly concerned, swears that Daniel Duffey himself, paid the counsel of his son for his defence in the criminal prosecution, $1100 ! We can but be struck with the exact identity between this sum, and the consideration specified in the deed.
How frail and fallible is memory ! History records a few examples, of men of whom it may be said, that whatever knowledge they acquired, either sensible or intellectual, remained as indelibly fixed upon their minds, as if it were engraved on a rock.
Mr. Greenleaf, in his treatise upon the law of evidence, remarks : “ With respect to all verbal admissions, it may be observed that they ought to be received with great caution. The evidence, consisting, as it does, in the mere repetition oí oral statements, is subject to much imperfection and mistake; the party himself, either being misinformed or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens, also, that the witness, by unintentionally altering a few of the expressions really used, gives an effect to the statement completely at variance with what the party did actually say.” 1 Green. Ev. 233.
In Law vs. Merrills, 6 Wend. 277, Chancellor Walworth observes : “ Evidence to establish a fact by the confessions of the party, is the most dangerous that can be admitted in a Court of Justice, and the most liable to abuse. Although a witness is per
Mr. Justice Sutherland, in Martin vs. Martin, 1 Wend. 652, says: “It has often been said, both by Judges and elementary writers, that proofs of the declarations or confessions of parties, is the most unsatisfactory species of evidence, on account of the facility with which it may be fabricated, and the impossibility of contradicting it; and because the slightest mistake, or failure of recollection, may wholly alter the effect of the declaration.”
It has been the constant policy of this Court since its organization, to limit and restrict, as much as possible, parol testimony, when it interferes with written evidence. And we have been induced to made these general observations and quotations, not merely to sustain and justify our course, but to suggest, also, whether further legislative reform might not be beneficially applied in this behalf. We would venture respectfully to recommend Lord Tenterden’s bill for rendering a written memorandum necessary to the validity of certain promises and engagements, to the consideration of the law making power. Experience has tested and demonstrated its wisdom.
In constructive frauds, such as in transactions with an expectant heir, or between guardian and ward, trustee and cestui que trust, or attorney and client, the relation between the parties is of itself, sufficient to raise the presumption against the propriety of the transaction, so as to throw upon the parties who endeavored to support it, the burden of establishing its validity. Hill on Trustees, 166. And there are contracts between parent and child which stand on the same principle. 1 P. Wms. 639. But there are cases where the law, in its tenderness, considers the party as not a free agent, or capable of protecting himself, but standing in vinculis. And the maxim is, quod alias ionum etjustum est,sifar vim velfraudem petatwr malum et injustum ejjiceter. 3 Co. R. 78.
No such case is made in this bill, and hence, no such presumption arises as in that class to which we have refered, to displace the claim of Daniel Duffey, in whom the legal title to this land exists, on the score of actual fraud. The bill should not on
There are cases, I know, where persons have obtained conveyances of property, upon a parol assurance that they would dispose of it, either wholly or partially, in a particular way, and 'Courts of Equity have compelled the performance of such engagements. Prec. Chan. 3. 2 Atk. 987. Sim. 649. 1 Atkins, 5 447. 2 V. & B. 262. 2 Vern. 99. Ib. 559. But by looking into these cases, it will be found that they all proceed upon the original fraudulent intent of the party, and he is for that reason treated as a trustee for the person, whom he has thus, by some misrepresentation, or concealment of facts, or both together, induced to execute the instrument. Such is not the case now under consideration. The charge in the bill, and the only complaint, is that Daniel Duffey, after entering upon the land, by virtue of his deed, and enjoying it during his life — failed at his death to convey it to the widow and child of his son, in fulfilment of his parol agreement to that effect. We think that the testimony should have been excluded. We have read it carefully, and are further of the opinion, that even 'if the evidence were admissible, it is so loose as to be wholly insufficient to establish such a trust as a Court of Equity will recognise and enforce.
But if we are wrong on this point, and it is human to err, there are other serious, if not insurmountable obstacles to be overcome before the complainants are entitled to a decree.
In Mortimer vs. Orchard, 2 Ves. 243, the Lord Chancellor says, “ This case does not turn upon how far a written agreement, not according to the Statute, which is only a parol agreement, shall be established. The bent of my mind is strongly in favor of the wisdom of the Statute. I am, therefore, rather against the cases which have trenched upon it. But this is not that sort of a case. The plaintiff has prayed specific performance of a given agreement, set out in his bill, of which he has given evidence in writing, which makes it no more than a parol agreement; but the parol agreement proved is quite different. The decree upon the prayer of this bill is impossible, for then, I must decree contrary to the evidence for the plaintiff.”
In Bromley vs. Jeffries, 2 Vernon, 416, the Court, ujjon the hearing, refused to decree specific performance of the contract, from the uncertainty of it. And in Colson vs. Thompson, 2 Wheat. 336, the Court say, “ The allegations in the bill in relation to this agreement which is sought to be specifically executed, are wholly unsupported by the evidence 'in the cause. This defect in^the proof, would seem to be fatal to the pretensions of the complainant. The contract sought to be specifically performed, ought to be certain and precise in its terms, and- proved as laid.”
Now, how stands this case? The bill alleges that the terms of the agreement were, that Daniel Duffey, “ at his death, would re-convey the land to complainant, Catharine, and her son John Wesley Duffey, by such legal instruments that they should have a home during his life, and be supported thereafter out of said land, whether the said Ebenezer was condemned or acquitted.” I repeat, this is the agreement stated in the bill, and however vague and indefinite, nevertheless, had it been supported by the proof, specific performance might possibly have been decreed. But what is the contract proven? Woodard swears that Daniel Duffey frequently visited his father’s house, and repeatedly mentioned to him, and in his hearing, what property the widow of his son Ebenezer was entitled to; and he recollects of his enumerating, among other things, several negroes, and the land on which they were then living together, in Crawford county, the same which is in dispute. He thinks Daniel Duffey’s object in
It would appear from the evidence of Woodard, that the interest in the land was vested exclusively in the widow, and not in her and her son, as joint tenants.
Thomas Thweat testified that Daniel Duffey requested him to advise his soxx Ebenezer’ to make him a deed to the land; that hisobject was to secure a home for himself during his life, and that he did. not intend to take the laud from the family or wife of his son; that he wished to live in the house with them, and that he intended the land for them after his death.
William C. Osborne swears, that Daniel Duffey, after taking possession of the land, informed him that his object in taking titles, was to prevent his son from deeding the land to James Smith and Seaborn Jones, his lawyers in the State case. “ The promise upon which he procured 'the deed, was that he, Daniel, would retain the property while he lived, and that at his death it should accrue to, and become the property of Ebenezer’s wife.”, ' '
I would ask, does the bill or the evidence, set forth the true agreement1? And which portion of the testimony % For it will be perceived that the witnesses are not only at variance with the bill but with one another. No decree, we respectfully contend, could be rendered under such circumstances.
How forcibly and triumphantly does this conflict and confusion of recollection vindicate the value and policy of the Statute.
Eleanor Downing, whose intimacy, in these families, gave her every facility for knowing the truth of the matters about which she speaks, testifies that Daniel Duffey gave to his son, Ebenezer, four negroes, and other necessary things for house-keeping — that she frequently heard Ebenezer say, that his father had paid his lawyei-s for defending him against the prosecution for murdei', and that he had paid for the land in dispute. That he got nothing by his wife, except a cow and calf, and a little household furniture. That all he had, his father gave him. And yet, under these circumstances, some loose declarations of the old gentleman’s, are seized upon as to his intentions respecting this property, and the attempt is made to deduce from them a technical trust. To do so, in the language of Chancellor Kent, “would be injurious to that freedom of intercourse, and to the operation
Daniel Duffey, by his will, devised the land in controversy to his son Jesse Duffey. To Mrs. Caroline Cotten, the complainant, he bequeathed fifty dollars. To his grand-son, John W. Duffey, the son ofEbenezer, he gave six thousand dollars. There is a codicil to the will, to this effect, “ that whereas Caroline Cotten, the mother of John W. Duffey, had in her possession three negroes, that is, Jack, full grown, and Solomon and Weston, boys, on which negroes the said John W. Duffey has a legal claim— therefore it is my will that if my grand-son should urge his claim on the said negroes, that then, and inthatcaseor event, his mother, Caroline Cotten, shall receive eight hundred dollars out of the legacy bequeathed to the said John W. Duffey. And if the said John W. Duffey shall die before he arrives at lawful age, his mother shall have one thousand dollars out of his legacy.”
The testimony shows that the guardian of John W. Duffey, has received the legacy left to him. Also, that Stephen G. Cotten, and Catharine, his wife, have joined in a sale, to Wm. A. Nor-wood, of Solomon, one of the negroes named in the codicil, for the sum of five hundred and fifty dollars. Moreover, they have been paid in executing to the purchaser a written guaranty, which, after reciting the cloud hanging over the title of the slave, gives him a lien on the contingent legacy of $S00, or so much of it as may be necessary for his indemnity, should John W. Duffey ever recover said negro from him.
It is insisted on the part of the defendants, that the complainants having taken a benefit under the will of Daniel Duffey, they cannot recover this land against the provisions of said will. His Honor, the presiding Judge, instructed the jury, “that in order to create a case of election, there must be a gift of something which belongs to the testator, to a person whose property he has by the same will given to another. That Daniel Duffey did not set up any claim to the negroes, named in the codicil. He only says that if John W. Duffey should urge his claim to the negroes therein mentioned, then he shall forfeit to his mother, Catherine Cotten, eight hundred of the six thousand dollar legacy left
"We apprehend that the doctrine of election is too much restricted in this charge. It is thus stated by Jarman on Wills, “he who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing any right inconsistent with it. If, therefore, a testator has affected to dispose of property not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him, must make good the testator’s attempted disposition ; but if, on the contrary, he choose to enforce his proprietary rights against the testator’s disposition, Equity will sequester the property given to him, for the purpose of making satisfaction out of it, to the person whom he has disappointed by the assertion of those rights.” 1 Vol. p. 385.
Thus, it will be seen that if the testator has affected to dispose of property not his own, the only inquiry is, has he given a benefit to the person to whom that property belongs, and has the legatee or devisee accepted the benefit so given ? To apply the doctrine: admitting that Daniel Duffey has devised to his son Jesse, a tract of land belonging to Mrs. Cotten, has he by his will bestowed a benefit on Mrs. Cotten, and has she accepted that benefit? The sale to Norwood and the indemnity given for his security through the codicil to the will, place this matter beyond controversy. It is wholly immaterial whether Daniel Duffey owned the slaves named in the codicil or not; neither is it necessary that he should have attempted to bequeath them. It is enough to know, by the terms of the codicil, that he has secured to Mrs.Cotten, the title to Solomon, Jack and Weston, against the claim of his son; or in the event of its assertion that he has given to her $800 to cover the loss. By reason of this provision, she has been enabled, in concert with her husband, to effect a satisfactory sale of one of the negroes. A benefit has, therefore, been conferred by the testator, and she has accepted that benefit. She is bound by her election, and must make good the testator’s disposition of the land to Jesse Duffey. In judgment of law, she has adopted the whole contents of Daniel Duffey’s will.
Defendant’s solicitor requested the Court to charge the jury that if they believed, from the testimony, that Daniel Duffey had
We are inclined to think that there was nothing in the pleadings, which prevented the party from availing himself of the benefit of this rule. It would be involved in the bill itself, provided a proper case was made-. We are of the opinion, however, that the account and repayment, is restricted to matters arising out of the particular transaction. If money was advanced by Daniel Duffey, on account of this land, or if the title was executed by way of security, then it was proper that repayment should be made before Equity would decree a reconveyance. As to any general indebtedness by Ebenezer to his father, as was suggested by the Court, that was a matter to be
Our conclusion is, that the ruling of the Circuit Court cannot be sustained. Consequently, the judgment below is reversed.