delivered the opinion of the court.
Had the conveyance of McDonald and McKay, lodged in Yiele’s hands, been actually delivered to Moore, no questiofi would have arisen; but that deed having been suppressed or lost, when Moore subsequently induced McDonald and McKay to convey to his wife, for the avowed, purpose of avoiding the deed he had given Monroe, Moore’s wife being fully advised of the purpose and paying no consideration for the convey-, anee, the transaction must be regarded in equity as if McDonald and McKay had conveyed to Moore and Moore had conveyed to his-wife, she holding in trust for Monroe and his heirs one hаlf of the interest conveyed to her namely, one sixth of the whole.
“ Fraud, indeed, in the sense of a court of equity properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust, or confidence, justly reposed, and»a-re injurious to another, or by which an undue and unconscientious advantage is taken of another. And courts of equity will not only interfere in cases of fraud to set aside acts done, but they will also, if acts have by fraud been prevented from being done by the parties, interfere and treat the case exactly as if the acts had been done.” 1 Story Eq. Jur. § 187.
Whenever the legal title to property is obtained through means or under circumstances “which render it unconscientious- for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never, perhaps, Save had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right and takes the prоperty relieved from the trust.” Pomeroy Eq.'Jur. § 1053.
In
Huxley
v.
Rice,
40 Michigan, 73, 82, it is said: “ It is the
There is “no rule of law which-prevents a party from performing a promise which • could not be legally enforced, or which.will permit a party, morally but not legally, bound to do a certain act or thing, upon the act or thing being done, to
Mrs. Moore did not take as a stranger would have taken, but took in execution of the agreement with her husband. Clearly, then, she cannot be permitted to set up a statutory defence personal to McDonald and McKay, who could not, in fulfilling their agreement, transfer an excuse for nonfulfilment.
It is undoubtedly the rule that the breach of a parol promise or trust as to an interest in land does not constitute such fraud as will take a case out of the statute. Montacute v. Maxwell, 1 P. Wms. 618, 620; Rogers v. Simons, 55 Illinois, 76; Peckham v. Balch, 49 Michigan, 179; but here McDonald and McKay did not fail to perform their promise, and when they performed, their grantee took one half of the one third, charged with» a trust to hold it for Monroe by reason of the deed of Moore to Monroe, under the covenants of which Moore was. equitably bound, when he acquired the title, to hold it for Monroe’s benefit. That deed contained a general covenant of warranty.
In
Irvine
v.
Irvine,
The rule is thus stated in Smith v. Williams, 44 Michigan, 242: “ It is not disputed that a deed with covenants of seizin and title would be effectual to give the grantee the benefit of an after-acquired title, under the doctrine of estoppel, but these covenants were absent from the deed in question, and the covenant of quiet enjoyment, it is said, would not have a like effect. No reason is given for any such distinction, and it is not recognized by the authorities. When one assumes, by his deed, to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that Which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title and turn his grantee over to a suit upon his covenants for redress; the short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance; this is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants had given.”
Conceding that a covenant of general warranty operates by way of rebutter to preclude' the grantor and his heirs from setting up an after-acquired title rather than to'actually transfer the new estate itself, the subsequent acquisition creates an equity for a conveyance in order to make the prior deed effectual. Noel v. Bewley, 3 Sim. 103, 116; Smith v. Baker, 1 Younge & Col. Ch. 223.
In
Mc Williams
v.
Nisly,
2 S. & R. 507, 515, Tilghman, C. J., said that equity will enforce a covenant to convey an éstate whenever it shall be acquired by the covenantor, and that the case is not the less strong where there il an absolute conveyance ; and this is cited by Strong, J., in
Bayler
v. Common
In Way v. Arnold, 18 Georgia, 181, 193, Pyncheon, having no title, sold to Way with warranty, and subsequently acquiring title, sold to Arnold. It was held that “ if Pyncheon, upon consideration, conveyed this subsequently acquired interest, and such was his intention, equity will decree a title to the after-acquired estate, and the second grantee; Arnold, provided he purchased with notice, would be affected by said notice, and could hot conscientiously hold the land in disputé.”
In Goodson v. Beacham, 24 Georgia, 150, Mims by warranty deed conveyed to Beacham, Mims having no title at the time, but subsequently acquiring it; Goodson claimed title under an execution sale; and the court say (p. 153): “ Mims, when he made the deed to Beacham, had no title, but his deed was an attempt to' convey the fee, and it was a deed with a warranty. This shows, first, that it was the intention that the land, the whole interest in the land, should be conveyed to Beacham; secondly, that Beacham had paid the purchase-money. Such being the intention, the consequence would be, that if Minis should afterwards acquire the title, he' would be bound to convey it to Beacham, as much so as if the contract were one standing in the form of a bond for titles. Perhaps this would be the consequence, even without the warranty. Taylor v. Debar, 2 Cas. in Ch. 212; 1 Id. 270; Wright v. Wright, 1 Ves. Sen. 409; Noel v. Bewley, 3 Sim. 103; Smith v. Baker, 1 Younge & Col. Ch. 223; Jones v. Kearney, 1 Dr. & Walsh, 159, cited in note, 2 Rawle Cov. 438; Sug. Vend. 33, c. 8, § 2; Rawle Cov. 448.”
Treating his deed as a covenant to convey, Moore would
It is insisted that if the deed be regarded as a contract to convey, while in such case the heir would ordinarily be entitled to a conveyance from, the vendor, yet if the vendor had no title, or if the vendee was not bound by the contract at the time of his death, the heir is not so entitled; but it aрpears from this record that Moore could have obtained the title in Monroe’s lifetime, and the latter could have been compelled to perform on his part, so that the contract was binding • at the time of Monroe’s death, and his heirs had the right .to compel specific performance. The vendor, therefore, would not be liable in one action tó the estate, and in another to the heirs.
Monroe died in August, 1878. Moore and McDonald had settled in 1877 the matters which McDonald had given as reasons for not conveying, or for suspending the delivery of the deed placed in the hands of Viele, and McDonald was then ready to convey to Moore, which McKay had always been. Moore was able to perform before Monroe’s death, andthe right to compel performance which Moore had, his heirs can enforce.
We agree with the learned judge of the Circuit Court in the conclusion at which he arrived in disposing of this contention. The evidence to make out such rescission practically consist's of the testimony of defendant N. D. Moore, given on his own behalf. It is only when an oral agreеment is clearly and satisfactorily proven by testimony above suspicion and beyond reasonable doubt, that it will be enforced to establish rights in land at variance with the muniments of title, and it is open to question “whether, in any casé, after'the decease of the grantee, the unaided testimony of the grantor alone, however intelligible and credible he may be as a witness, should be held sufficient to set aside and invalidate the title claimed under it.”
Kent
v.
Lasley,
24 Wisconsin, 654. “Where a written instrument is sought to be reformed upon the ground that by mistake it does not correctly set forth the intention of the parties; or where the declaration of the mortgagоr at the time he executed the mortgage, that- the equity of redemption should pass to the mortgagee [is relied bn]; or whére it is insisted, that a mortgagor, by a subsequent parol agreement, surrendered his rightsj ... in each case the burden rests-upon the moving party of overcoming the strong presumption arising from the terms of a written instrument.- If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing, will be held to express correctly the intention of the parties. A judgment of the court, a deliberate deed or writing,-are of too much solemnity to'be brushed away by loose and inconclusive evidence.”
Howland
v.
Blake,
Tested by this rule, the evidence is manifestly, insufficient to defeat the deed from Moore to Monroe. It must be conceded that the party interposing such a defence should be able to set it up with reasonable accuracy in his pleadings, and Moore’s statement on the stand varies so much from that given in his answer as to make it impossible to indulge in any presumip
The consideration for the one sixth interest was two hundred and fifty dollars, ten dollars in cash and a note for two hundred and forty dollars.
Immediately before the purchase of the land in controversy Monroe had let Moore have money to enter a particular forty acres which he represented had such indications of mineral as showed it would be. valuable. Moore did not make the entry because, he says, the land had been previously entered, but he did not return the money to Monroe.
The forty acres was school land, and the minimum price of school lands was fixed by statute at four dollars per acre, 1 Comp. Laws Mich. (1872) 1251, or, for forty acres, one hundred and sixty dоllars, and the presumption, in the absence of evidence to the contrary, would be that this was the stun Monroe let Moore have, the purpose to make the particular entry being conceded.
Now, Moore’s story as to the rescission is that Monroe came to him and “ wanted me to pay him the money that he had given me to enter that land,” and that in the conversation that ensued reference was made ,to the fact that Moore had not yet received a deed to the McDonald and McKay land, and it was finally agreed that Moore should give Monroe his note for one hundred and sixty .dollars and surrender Monroe’s note for two hundred and forty dollars, and that Monroe should give up his deed; and Moore claims that the money which Monroe had given him to enter the forty, acres of school land was one hundred and fifty dollars, and that the one hundred and sixty dollar note was made up of that one hundred and fifty dollars, and the ten dollars which had been paid on the purchase. When confronted with the fact that he' had sworn that Monroe gave him the money to enter forty acres of school land, the minimum price of which was one hundred and sixty dollars, his explanation is that, as Monroe had to pay a discount to get the money, “ I told him that I would throw off thе ten dollars on that account,” though why
Whether the money Monroe had let Moore'have was one hundred and fifty or one hundred and sixty dollars, and whether the note included the ten dollars paid on? the one sixth interest, depends on the testimony of Moore. Mrs. Monroe found the note.among hеr husband’s papers after his death, and knew nothing about it except that he told her that it was for money he had loaned Moore. The note itself was not produced ; payments had been made upon it in Monroe’s lifetime, but none afterwards, until 1881, when sixty dollars was paid to Mrs. Monroe, who cannot remember what the amount of the note was; and this.payment was after McDorald and McKay had conveyed to Mrs. Moore, at the request of Moore, for the purpose of cutting out the deed to Monroe, and after the land had commenced to increase in value, to Moore’s knowledge but not to that of Mrs. Monroe. When it was made not a word was said to Mrs. Monroe about the outstanding deed to Monroe, either as to having it sent back or having a quit-claim given, and it is quite clear that she was wholly unaware of any connection between that note and the land in controversy, if any such connection in fact existed, as it would seem there did not, if the amount Monroe let Moore have .to make the entry was one hundred ?nd sixty dollars. Some small payments had been made on .this note to a justice-of the peace, in whose hands it had been lodged for collection. He was not sworn as a witness, but Moore is “ inclined to think that he is dead.” Under the cirсumstances, it is remarkable that the note when taken up by Moore was not preserved by him, and is not put in evidence. The money was not in fact loaned to Moore by Monroe but given to him for a particular purpose, and when that purpose could not „ be effectuated, should have been returned at once. Monroe is dead. Is it not dangerous to take Moore’s testimony, in face of these facts,
Equally unsatisfactory is the evidence as to Monroe’s note for two hundred and forty dollars. Moore alleges in his answer that it was part of the agreement to rescind that he should cause this note to be surrendered to Monroe, and that one John McKay, in whose possession it was, “as he had been previously requested by said Nathaniel D. Moore,” delivered the note to Mrs. Monroе, and it was cancelled; but it is not to be questioned, upon the evidence, that the note was handed to Mrs. Monroe, not at the request of Moore at all, who knew nothing about it until a year, or perhaps nearly six years, afterwards, but at her solicitation; and it was not only not cancelled, but carefully preserved and produced upon the trial, a fact inconsistent with a rescission to be accomplished by its destruction, but entirely in accordance with Mrs. Monroe’s testimony, that her getting the note was accidental, and that, as came out on her cross-examination, when she showed it to her husband, he told her “ to put it by.” Such a direction on his part is irreconcilable with the theory that he had sent her to the McKays for the note because the bargain had been declared off, while it sustains the view that he had no intention to throw up the purchase. This note had been given to "William McKay, according to Moore, to raise money on; failing in which, William had left it with" his brother John, or his wife, who testifies he gave it to her “ to keep or to give back to Mrs. Crawford (then Mrs. Monroe),
or to collect.”
Mrs. McKay was Mrs. Monroe’s sister and gave her the note, cautioning her that she must take care of it so as to produce it in case it was asked for by William McKay. This was in July, 1876, but Moore fixes the datе of the conversation with Monroe as in
Upon a careful examination of the evidence, it amounts to no more than this: Monroe expected and desired to obtain the land; he found that McDonald and McKay had not made a deed to Moore, and doubt was expressed whether they ever would. He wished to collect the money which Moore haid
In our judgment, the defence of laches is not made out, even if the minority of the heirs did not preclude it. The deéd of McDonald and McKay to Helen- Moore is dated December 16, 1880, and was recorded March 16, 1881. During all this timé Mrs. Monroe and her children were living. in Canada. Mrs.' Monroe, when on a visit to Houghton County, in the summer of 1881,- first learned that Moore disputed their title, and in the fall of that year she,.was advised by Mr. McKay to.“hire a laWyer dr attorney.”. She did so, and he ^vrote a letter to Moore, informing him of complainants’ claim. Mooré testifies as to its receipt that “ it must have been in the fall of 1881 or in the spring of 1882. I am not sure of it.”
'February 8, 188-2, this suit was commenced in the Circuit Court for Ontonagon County, Michigan. • This cannot be held to be unreasonable delay. ' The answer of defendants averred: “It is only since said [mineral]-discoveries, made at the expense of these defendants and said McDonald.and McKay, that these complainants have claimed • to have any interest therein ;’’ but all that was done in developing the land was by the Cambria Iron ■ and Steel Company, and no actual discoveries of ore had been made before the bill was filed. i.
Moore is asked' by his counsel, and.answers as. follows:
McDonald testifies: “We let an option to the Cambria Iron and Steel Company of Johnstown, Pa., to mine ore if they could find it;' gave them a privilege of exploring for iron; if they found iron they was to pay us so much for the iron. . . . That must have, been in ’81. . . . Q. About what time was it that they first developed mineral value there; that' is, to show that there was mineral value there ? Well, in the spring, I couldn’t say what time that was, but it must have been in the following spring; . . . the following spring after we gave the option.”
While this shows that Mrs. Monroe had no reason to suppose the land had increased in, value when she began her suit, Moore, from his knowledge of the property, and his being on the ground, must have been aware, when he paid Mrs. Monroe, and probably as early as when the deed was given to his wife, that the property was likely to improve in value. He says the option of the Cambr> Iron and Steel Company was in 1880 or 1881, and if it was after his wife got her deed, it was shortly' after. ' .The inevitable inference from his conduct is that he did not ask McDonald and McKay to сonvey, and did not propose to pay up' the note until roused into activity by the prospect of gain.
The bill and. amendments state the deed from Moore, to Monroe of one sixth.of the land; that McDonald and McKay held “ an undivided one third thereof in trust for the said Nat-D. Moore by an arrangement between the said McDonald and McKay, on the one side, and the said Moore, on the Other, entered into' before or at the time the said McDonald and McKay acquired said title;” that the conveyances by McDonald and McKay to Helen Moore “were made at the instigation of said Nat, D. Moore, with the intent and purpose of defrauding these complainants out of the estate in fee con
The original bill charged also that a conveyance was made by McDonald and McKay to Moore, and fraudulently suppressed before the conveyance to said Helen.
We think the allegations of thе bill as amended are sufficient to- support, the decree.
McDonald and McKay held in trust for Moore, that is, upon the trust created by their obligation to convey to him on request; they not. only did not ■ deny the trust but conveyed on Moore’s request to his nominee, and fraud is charged against Moore and his wife in procuring the conveyance to the latter.
The decree of the Circuit Court is
Affirmed.