46 Minn. 33 | Minn. | 1891
The controversy in this case is over plaintiff’s right and title to a chose in action, — an indebtedness of $4,000, due from the defendants Geisinger and Salina E. Newton, evidenced by a promissory note by them executed to one Emily A. Newton, now deceased, and dated on the 1st day of June, 1883. The makers were the executor and executrix of the last will of Angelo Newton, late of Olmsted county, who died in 1881; and the payee, who was his mother, residing in the city of New York, was a creditor and one of his legatees. The defendant Buna Newton, a son of Emily A. Newton, also claims to own the note, and to have acquired the same of her shortly before her death in 1888. It is claimed by the plaintiff and found by the court that in January, 1883, there was due Emily Newton from the estate of Angelo Newton upwards of $8,000; that the property of the deceased, consisting chiefly of unsalable real estate, could not be sold and converted into money without great sacrifice; -and that, as the result of negotiations conducted between the parties, terms of settlement were agreed on, in pursuance of which the note in question was executed. They are concisely stated by the court in its findings as follows: “Thereupon such negotiations by letter were had by and between the said Emily A. Newton on the one side and the said Samuel Geisinger and Salina E. Newton on the other that it was mutually agreed between them that in payment of her said claim the said Geisinger and Salina E. Newton should raise and pay to her $4,000 by June 1, 1883, and execute and deliver to her their two personal promissory notes, — one for $600, due in six months from said date, with interest at the rate of seven percent, per annum, and one for $4,000, due in five years thereafter, with interest, payable semi-annually, at the rate of seven per cent, per annum; and in consideration thereof the said Emily A. Newton agreed that the interest on the said $4,000 note should be collected by her during her life for her own use, but the principal thereof should remain uncollected by her, (the said note to be renewed if necessary,) and should be paid upon her death to her said grandchild, Bessie Newton, the plaintiff herein; and that, in aid of said agreement, she would bequeath to said Bessie said $4,000 note; and that said Bessie should have said note upon the death of the said Emily A. Newton,
Assuming the finding to be supported by the evidence, the contract is a valid one, and may be enforced. Such a disposition of property is as much the subject of an executory contract as any other. In other words, a party may obligate himself to make his wdll in a particular way, or to give certain specific property to a particular person, so as to bind his estate. But the courts will be strict in looking into the nature and circumstances of such agreements, and require satisfactory evidence of the fairness and justness of the transaction. Rivers v. Rivers, 3 Desaus. Eq. 190, 195; Izard v. Middleton, 1 Desaus. Eq. 116; Johnson v. Hubbell, 10 N. J. Eq. 332, 66 Am. Dec. 784, note, and cases. In this case, however, the transaction seems entirely reasonable. It was upon a fair consideration. There was a sufficient inducement for such provision for ber grandchild, in the settlement that was made, out of the indebtedness of. her father’s estate to her. That such agreements are valid, and that their execution may be enforced, the counsel for the appellant do not question.
1. There is sufficient evidence to sustain,the finding of the court in respect to the nature and terms of the contract. The .testimony of defendants Geisinger and Salina Newton directly tends to establish it; and, whatever criticism upon its credibility may be suggested, it was not successfully or conclusively impeached; and we find no
2. The plaintiff claims to be equitably entitled to the note in controversy, which was, when this action was brought, under the control of the defendant Buna Newton, who is a non-resident, and alleged to be insolvent; and the same is in the possession of one of his attorneys, the defendant Eaton, and within the .jurisdiction of the court; and it appears that Emily Newton’s estate has been divided up among her children residing in New York and New Jersey, that no proceedings have been taken to administer upon- her estate, and that the plaintiff has no adequate remedy against the heirs, which must be sought in a foreign jurisdiction, if the defendant is permitted to take the note or its proceeds out of the state, if collected, as he threaténs to do. She was not a party to the pending action by Buna Newton to recover upon the note, and intervention in that suit would not have afforded adequate relief or protection. The action is one of equitable cognizance, and the relief sought- is such as, under the special circumstances of the case, was necessary for the protection of the plaintiff’s rights as the beneficial owner of the note, whether the action be treated as one to declare the defendant Buna Newton a trustee of the legal title for her, as he may be, unless he is a bona fide purchaser thereof, or whether the relief be technically to transfer the note to her through the operation of the injunction, — the result being practically the same. Wat. Spec. Perf. § 16; Parker v. Garrison, 61 Ill. 250. The jurisdiction of the court cannot be questioned. The parties have appeared and contested the whole case upon the merits, and it is now too late to raise the objection that plaintiff had an adequate remedy at law. St. Paul & Sioux City R. Co. v. Robinson, 41 Minn. 394, (43 N. W. Rep. 75.)
3. The agreement between Emily Newton and defendants Geisinger and Salina Newton was attempted to be proved by the correspond
4. If the missing letters had been discovered and produced, they would speak for themselves, and would have been evidence in the case if the contents were material. Not being produced, secondary or parol evidence of their contents was properly admitted. It is not evidence “of or concerning any conversation with or admission of a deceased party or person,” within the meaning of the statute, (Gen. St. 1878 c. 73 § 8,) which refers to spoken words, as heretofore decided in Chadwick v. Cornish, 26 Minn. 28, (1 N. W. Rep. 55;) and Livingston v. Ives, 35 Minn. 55, 62, (27 N. W. Rep. 74.)
5. The defendant Buna Newton is clearly right in his contention that the title of a bona fide purchaser of a chose in action, such as a bond, mortgage, or note, as in this instance, would be held superior to the prior equity of one to whom the vendor had previously agreed to transfer the same. Cochran v. Stewart, 21 Minn. 435. But, as against a prior equity, the holder of the note must have acquired an equal equity. So a contract for land is an equitable right, which gives way to a subsequent sale where that legal right has an equal equity. Belief is given because the sale after notice is held to be in
Order affirmed.