5 Gratt. 63 | Va. | 1848
This Court, in the case of Thornton v. Thornton, 3 Rand. 179, decided, that a conveyance to husband and wife, had precisely the same effect in laxo, as a grant to them, during the lives of both, and after the death of either, to the survivor alone. Upon the death of Mrs. Norxnan, therefore, it is clear that her husband Thomas Norman, by virtue of the patent issued to himself and wife in 1790, became invested with the legal title to the whole tract of land therein granted. An application, however, of the principles, announced in Countz v. Geiger, 1 Call 190, to the facts presented by the record in this case, makes it, I think, equally clear, that as to a moiety of the said land, the said Norman should be regarded, in eqxiitxj, as a trustee of the legal estate for the benefit of his wife’s heirs, who, if the land was still within the reach of the Court, would have a right to a decree for a conveyance thereof. The appellees, in their bill, allege that Norxnan,
The Chancellor has sustained their claim, and has given them the relief sought. In so doing, I cannot myself perceive that he has committed any error requiring correction at the hands of this Court.
It is true that the answer does not admit that the purchasers from Norman bought without notice of the equity of the appellees; and it is argued here that the Court below erred in taking the allegations on that head, as true, without some proof. But supposing that it was incumbent on the plaintiffs below to prove a negative, and establish their allegation, what better proof is wanting, in the absence of any to the contrary, than that which appears on the very face of the transaction itself? The title which Norman undertook to convey to his vendees rested on the highest species of evidence known to the law, the Commonwealth’s patent. There was nothing upon its face to arouse the suspicions of the purchasers as to any outstanding equity. The grant of the land in question by the Commonweath to Norman and his wife, accompanied by the fact that he was the survivor of the two, presented every assurance that the most wary purchaser could ask, that the title was in all respects perfect. The purchasers were not bound to
In the case of Mansell v. Mansell, 2 P. Wms. 678, trustees for supporting contingent remainders, joining to destroy them, were declared guilty of a breach of trust, and were decreed to unite with their grantee in making to the party barred at law of his remainder by the joining of the trustees, before his birth, such an estate as he
In the case of Mansell v. Mansell, above cited, the Court said, that where an estate was limited to A for life, remainder to his first, &c. sons in tail, though it was a plain wrong in him to do any act which would destroy the remainders, before the birth of a son, notwithstanding his legal power to do so, a Court of Equity had no cognizance of the case; that to prevent this inconvenience, the remedy of appointing trustees had been invented; that the invention was then but of recent origin, and that there had then been no decision defining the powers and duties of the trustees in such cases. There was nothing in the case to shew that the trustees were prompted by any corrupt or improper motive, and the fair presumption was, that in joining in the conveyance to destroy the remainders, they were acting upon the belief that they had a right to do so. Yet the Court held, that the measure of compensation to which they would have been properly subjected, in case the lands had been placed beyond the reach of the Court, would have been the purchase with their own money, (though they had received nothing for their
It is urged that the rule heretofore adopted by our Courts in cases of eviction, of restoring to the party evicted his purchase money, would be a proper guide for ascertaining the amount of compensation in this case. I do not think- so. The standard of damages erected in such cases is not only founded on technical and peculiar reasons, and supported by arguments of convenience wholly inapplicable here, but its justice has been heretofore vindicated by considerations, which, owing to the different position of the parties, do not present themselves in a case like the one now before us. “ Where land is sold, the existing state of things, the present value and situation of the laud, are the subjects in the minds of the parties : it
I do not perceive any force in the suggestion of error founded on the omission to make the purchasers from Norman parties to the suit. The bill did not claim, and could not with propriety claim, any thing against them; as according to its own allegations, they bought without notice. Nor do I think that it was at all necessary to examine them as witnesses, inasmuch as the only fact of importance to which they could have deposed, to wit, the want of notice, was already sufficiently established by the intrinsic evidence in the case.
Baldwin, J. It is clear that James Tutt acquired a good equitable right to the tract of land in the record mentioned. His warrant from Lord Fairfax, his survey under that warrant, and his subsequent claim and possession, without any proceedings had for forfeiture, or any adverse claim whatever, gave him an unquestioned and unquestionable right to demand a patent from the lord proprietor, or from the Commonwealth as his successor, upon payment of the office fees and commutation money. Picket v. Dowdall, 2 Wash. 106 ; Johnson v. Buffington, Id. 116; Curry v. Burns, Id. 121; Countz v. Geiger, 1 Call 190: And no one claiming Tutt’s title, and perfecting it by patent, can make objections to its regularity, or assert an equity superior to his.
By the will of Tutt, his equitable estate in this land passed to his granddaughter, Milly Tutt, (afterwards Mrs. Norman,) and his daughter, Ann Williams, (wife of Paul Williams,) to be equally divided between them; and they consequently took not as joint tenants, but as tenants in common. If a patent had issued to them in conformity with such their equitable rights as tenants in common, (as it might, Co. Litt. 190 b,) or to them as joint tenants, (1 Rev. Code, ch. 98, § 1, p. 359, act of partitions,) Mrs. Norman’s estate in an undivided moiety would have been preserved and perfected, and would consequently at her death have descended to her heirs, subject to her husband’s tenancy by the curtesy. But by the patent which actually issued, the entire tract was granted jointly to Norman and wife, the former claiming by purchase the undivided moiety of
There seems no reason to doubt that the husband, in obtaining the patent to himself and wife jointly for the whole tract, acted in perfect good faith, and without any design to secure an undue advantage to himself. Indeed his act might be regarded as beneficial at the time to the wife, inasmuch as it tended to secure to her, in the event of her widowhood, a more ample provision, by giving her the whole, instead of a moiety only. And it is with some regret, and after an effort the other way, I am constrained to the conclusion that the husband could not thus by his own choice place in jeopardy the certain estate of his wife. The joint patent to himself and wife resulted from his own course of conduct, for which there was no inevitable necessity. It was his own voluntary act to purchase the undivided moiety of Mrs. Williams; and moreover the suggestion in the patent of that purchase might have been avoided. His contract might have provided for obtaining the patent in the names of the, devisees, (to which their coverture would have formed.ho' impediment,) and for a subsequent conveyance rp him of the undivided moiety of Mrs. Williams. We know not whether it was by the actual consent of Mrs. Norman that the patent was so obtained as to put at risk her undivided moiety, for the chance of gaining the .whole tract by survivorship. She was, however, disabled in law from consenting to the alienation, whether certain or contingent, of her real es
I cannot think we are at liberty, for the sake of sustaining a fair transaction, to break in upon the safeguards which the law throws around fames covert in regard to the alienation of their inheritance. It would be a dangerous precedent, and might lead to fraudulent practices incapable of detection. The principle could not be limited to grants from the Commonwealth, but would extend to all conveyances to husband and wife arising out of his connecting interests of his own by purchase with others belonging to his wife in the same property. The argument in this case that the payment by the husband of the office fees and commutation money was necessary for the purpose of obtaining a patent, can avail nothing on this point. However that may be, though it fully warranted the preservation, it cannot justify'the destruction of the wife’s title.
It cannot be doubted that Mrs. Norman acquired from her grandfather not merely an inceptive right to the'acquisition of a legal title, but an equitable estate in the subject, Countz v. Geiger, 1 Call 190, against which no adverse claim was, if there could have been any, asserted. Her marriage did not vest this title in her husband, who stood in relation to it upon no better footing than he would have done in regard to any other inheritance of hers, whether legal or equitable, to which she' might have succeeded dum sola. And it was not competent for him by any act of his to divest this equitable estate, and vest it in himself, whether absolutely or contingently. It was his province to perfect the title in such manner as to secure it for her benefit; or to leave it as he found it, to be perfected thereafter, if practicable, by her or her representatives. The citations for the appellant from Co. Lilt, were cases at law, and not of equitable estates in the wife before marriage, but of
I think, therefore, that though the patent vested the ^eSa^ esta£e of the entire tract in Norman and wife, which upon her' death survived to him alone, yet that her equitable, estate in an undivided moiety was not thereby defeated, but descended to her heirs at her death, subject however to his life estate therein as tenant by the curtesy. At his death, therefore, it is clear that if there had been no alienation of the subject by him in his lifetime, they would have had a right to recover such undivided moiety from his representatives. And we are next to consider what is the redress to' which under the circumstances they are entitled.
The remedy of a person entitled to real property against an adverse claimant is an action at law, ora suit in equity, according to the nature of the case, for the recovery of the specific property itself, and not for the recovery of its value, or of damages for the sale of it to a third person. There are cases, it is true, in which a Court of Equity will give a compensation in money, instead of requiring the party aggrieved to pursue the property into the hands of third persons. As if one fraudulently obtains and alienates the property of another, he is bound in conscience to replace the party injured, in the same or as good a condition as he found him, and if he has disabled himself by his own act from yielding retribution in kind, he cannot object to any other adequate redress against himself, and require the prosecution of a demand for the specific thing, though it might be successfully pursued, against his assignee. This is equally true in regard to an express trust, where the trustee abuses the confidence reposed in him, and converts the trust subject to his own use by the alienation of it to a stranger. The general rule is, therefore, not applicable to such cases of fraud and trust. And
The case before us falls within the exception last mentioned. The appellees are at liberty to waive redress quoad the specific property, (or the Court may do it for them,) confirm the sales made by their ancestor, and receive from his estate the prices paid him by the purchasers; to which the addition of interest thereupon would be proper, but for his right to enjoy the subject during his life as tenant by the curtesy.
But the claim asserted by the appellees, is not to the prices at which the property was sold, but to its value at the date of Norman's death : and they found it upon the allegation, that the sales were made to purchasers for valuable consideration, without notice of their equity, and consequently, that the property itself cannot be specifically recovered. Of this allegation, however, there is no proof: and it was incumbent upon the plaintiffs to prove it. They cannot be excused from that necessity on the ground that the want of notice is negative matter; for the obvious and regular mode of presenting the question whether the purchasers had notice, was to make them defendants. And then upon the question whether the appellees could recover compensation in damages, instead of the specific property, the denial or admission of notice by the purchasers, would have been material evidence. The plaintiffs ought, at least, upon the question of notice, to have examined the purchasers as witnesses, the bill having rendered them competent by the disavowal of any right to recover against them.
But even upon the concession that the purchasers had no notice of the equitable title of the appellees, I think
There is nothing substantial in the defence of the appellant, that the appellees are barred by the collateral warranties of Norman in his deeds of conveyance to the purchasers. Our act 1 Rev. Code, ch. 99, $ 21, p. 368, taken from the statute of Gloucester, and extended generally to common law warranties, applies only to cases of real assets descending from the warranting ancestor, and not to personal assets, or assets, whether real or personal, accruing from him by devise or bequest.
The defence that the effect of giving relief to the appellees, is to enable them to claim as, well_against as un der the will of Norman, is equ claim nothing against his will, ject applies only where the thi or bequeathed away to anotln not the case here, either as to f ceeds.
Brooke, J. concurred with Daniel, J.
Cabell, P. was of opinion to reverse the decree and dismiss the bill. Had he thought that any relief should be granted, he would have given that measure of relief indicated by the opinion of Judge Baldwin.