3 Wis. 576 | Wis. | 1854
By the Court,
This is a bill for specific performance of a contract for the conveyance of real estate. On the 22d day of July, A. D. 1848, the defendant executed to one Tertullus D. Butler, a bond conditioned to convey to said Butler, his heirs, &c. two certain tracts of land, described as lots 7 and 8, in section 9, town 7, range 22, (except three acres
Oil the 22d day of February, 1851, Bntler, for a valuable consideration, assigned the bond of Knab to him (Butler) to Orton, and on the 1st day of August, 1851, Schram assigned his bond to Orton.
The bill alleges that the conditions of the Schram bond have been fully complied' with in part by Butler, and in part by Orton; that the complainant is the sole and bona fide owner of both bonds, and issolely the equitable owner of the property mentioned therein, and that he holds the said Butler and the said Knab as wholly discharged from the said Schram bond, and the same duly and fully satisfied, and that he has a right to demand and have a conveyance from the said Knab of the said lots 7 and 8, according to the conditions of the saidbond from Knab to Butler, and prays a decree compelling a specific performance of the conditions of the bond.
The answer of the defendant Knab sets forth, that in June, 1848, one Otis Hubbard inquired of him if he would become his surety for $1,000 ; that about three weeks after, the said Butler informed him that Hubbard had sold to Schram certain lots ; that But-
That be is ready to abide tbe decision of tbe court and in order that Otis Hubbard and the said Butler may be bound by tbe decree, be prays that they may , be made parties to tbe suit.
Tbe foregoing are substantially tbe material allegations of tbe bill and answer.
Testimony was taken and read upon tbe bearing. On tbe part of tbe complainant the two bonds afore
The lots were deeded to Davis by John A. Messenger, who had given his notes therefor ; and Hubbard put the notes of Messenger in the hands of Davis. The notes were sued in the name of Davis ; Davis testified that he had a bill of sale of the notes ; that he did not know whether they belonged to him or not; that he could call them his or not, as he pleased ; that he did not recollect whether he paid any consideration for the notes or not; that he did not know whether he .held the notes as a cover to keep them from Hubbard’s creditors or not. Butler was with Hubbard when he spoke of conveying the land to Knab — delivered the deed to Butler at Hubbard’s request.
Afterwards he (Davis) executed a quit claim deed of the lots to George Smith, at the request of the administrators of Hubbard’s estate, without any consideration. It further appeared from the testimony of Sobrara, that he bought the lots mentioned in his bond, of Hubbard — paid the consideration to Butler, a par t of which Hubbard took. He received the bond of Knab and Butler, the conditions of which were in part unfulfilled, and he assigned the bond to the complainant (Orton,)
It further appeared by the testimony of I. A. Lap-ham, that he was the administrator of Otis Hubbard,
On the part of the complainant it was further proved, that Hubbard came to Milwaukee ih 1835 or 1830, that he was embarrassed when he came to Milwaukee, and bought lands and took the title in the name of Botsford of Chicago, and H. M. Hubbard of Milwaukee; that this property has changed hands. Otis Hubbard regulated the sales and received the proceeds. John A. Messenger held property for him. That Hubbard stated the reason why he took the title of property in the name of others to be, that there were large claims against him at the east— some judgments, upon which any thing he might have in his own name could be taken away ; that all these contriv anees were for placing the property beyond the reach of his creditors.
The complainant also produced the testimony of Butler (an objection to whose competency on account of interest having been attempted to be obviated by a release from complainant,) in substance that he supposed that he owned the lots 7 and 8 — procured the deed to be given to Knab as security for signing the Schram bond ; that the bond was executed by Knab to the witness Butler by Hubbard’s directions ; that he had paid Hubbard for the lands by balance of account for board, cash, goods, merchandize, &c., amounting to about |2,000, running from 1844 to ’49.
That when Knab executed the bond to him it was distinctly understood that he was to have the lots when the Schram bond should be satisfied, and that Hubbard directed Knab to make the bond to him ; that the bond to Schram was for Hubbard’s benefit,
Hubbard had boarded with this witness a longtime ; witness had transacted much business for and with him ; he was intemperate, and very troublesome at times in the tamily.
There was a long and rigid examination of this witness, but it is not deemed necessary to detail all the facts eiicted, as they did not in our opinion discredit the witness or materially impair the weight of his testimony.
It was also proved that Knab was perfectly acquainted with the contents of both bonds, as two ox-three draughts were made before one was made to suit him.
Also on the part of the defendant, was introduced the .record of a suit in equity, then pending between Otis Hubbard and David Knab et. al. in reference to these lots.
We have stated so much of the evidence that the material facts of the case may appear together.
The bill and answer disclose a case for specific performance, or by what name soever it may be called; a case where Knab has received the legal title to property to a large amount, as indemnity to him for signing a bond for the conveyance of other property, and has covenanted to convey the property conveyed to him, when the conditions of the bond on which he is surety are fulfilled, having no other interest in the property, and he discharged from all liability on the bond, on which he was surety.
On the bill and answer, therefore, the only ques-
After his bond to Schram is discharged or satisfied he becomes a mere trustee, holding the land for the rightful owner, the trust being prescribed by his bond to Butler, and his assigns, and following the directions of the instrument which prescribes it ; we do not say that he cannot dispute the right of the person holding the equitable title, or another paper-title, but that the latter must prevail unless a better equitable title be clearly setup by the answer, and clearly established by proof.
To avoid the paper title, it is not 'sufficient that there may possibly be an outstanding equitable title or interest, and ask to have the fact whether there Ire one ascertained, and if so, to have it established.
By the assignment of the Butler contract to the complainant, he became the owner ; not of the paper-title to the lots, but of the paper title to the interests and trusts, if any, created by that contract or bond, whatsoever the same might be.
To avoid a compliance with the conditions of this bond, the defendant must show, by answer and proof, that there are other claims and interests which he is legally bound to regard, and which would be materially effected by the performance of the conditions of his bond, and which Avould excuse, the fulfillment thereof.
Th e bill and answer show that the bond of Knab to Butler, was made and executed by the arrange-
We do dot see what equitable consideration is due to the defendant, for refusing or delaying the performance of Ids contract, by conveying the lots 7 and S to the rightful claimant.'
Indeed lie does not appear to claim any exemption, but professes himself ready and willing to convey to such rightful claimant. He has now no equitable interest in the land — lie. does not claim any — all that he seems to desire, is to ascertain the person entitled to the conveyance from him, and having done so he is ready and willing to make the conveyance.
We think it immaterial what name is given to the bill. Its only object is to procure a conveyance of lots 7 and 8 from the defendant. And we think there can be no doubt that the defendant was bound to convey to the rightful claimant, whenever he became discharged from the Schram bond. He had no equitable claim thereafter, based upon the papers set forth in the bill.
We also think that the bill filed in this cause, is on its face sufficient for the object sought to be obtained by it. It is true that the deed to Knab was absolute on its face. It is also true, that the conveyance made to indemnify Knab against certain liabilities assumed by him, was in the nature of a-security. But is it true that the bond of Knab to Butler is technically a defeasance? We think not. It contains
There is no stipulation on the part of the defendant, for the abnegation or renunciation of the title conveyed to him, so that the land would revert to the grantor or his assigns, upon the happening of the prescribed event, leaving only'the foreclosure of his interest necessary, to perfect the title in the grantor or reversioner.
.lie does not stipulate that on the performance of the conditions of the Schram bond, the conveyance to him would be void. But he gives his bond, covenanting therein absolutely, to convey the land to Butler, or his assigns upon such performance. Hero is a positive undertaking, on his part wholly incompatible with our notions of a defeasance. "We do not undertake to determine that the deed of the defendant was not, under the circumstances, so much in the nature of a mortgage, as to sustain a bill for foreclosure or for redemption. But our impression is against such a position. In case of a written defea-sance on the part of the defendant, or upon proof of the fact that the conveyance was as security merely, without a defeasance in writing, a bill to redeem could be maintained. But here, it would seem, the parties have provided another mode, and have purposely brought themselves within the purview of another remedy. This may have been necessary.
It was not intended that the deed of Davis to Knab should be defeated in any event. It was not intended by Davis or any of the parties that the land should revert to Davis on the performance of the conditions of the Schram bond ; and hence a mere defeasance either expressed in writing, or left
If it shall be alleged that Davis remained a mortgagor holding the equity of redemption in trust for Hubbard, tiren any such equity was relinquished by
It is claimed that in the several parts of this transaction, Butler acted as the agent of Ilnbbard, and committed a fraud upon his principal in causing the bond of Knab to re-oonvey, to be ■ made to himself, but we think that neither the answer nor the proofs sustain the position. It is by no means established, that Butler acted as the agent of Hubbard in this trrnsaction. He was with him imd aided him it is true, but the whole matter was controlled by Hubbard. He (Hubbard) first spoke to Knab to become surety to Schram, Schram treated with Hubbard for the purchase of his lots. Hubbard first spoke to Davis about, and directed the conveyance to Knab. It seems that Butler was the mere man of errands in the business. And is it to be supposed, that having
And can that bond to Butler, be in fraud of the rights of Hubbard, when he expressly directed it so to be done ? And does the rule of presumptive fraud sometimes applied to agents, extend to the direct personal acTs of the principal, no deceit or imposition being practiced ? ' Hubbard most certainly intended that there should be a re-conveyance from Knab, on the fulfillment of the Schram bond, to somebody, and he intended that Knab should be bound in writing thus to convey. To whom then did he intend that such bond should run ? Hot to Davis, for there is not the slightest intimation of the lcind, but on the contrary, every circumstance goes to rebut such an idea : not to himself, certainly, for during the last 12 or 13 years, he had studiously avoided any paper evidence of title or interest in himself. ISTor would he have gone on and consummated his trade with Schram, by means of the arrangements made, if he had not assented, to the bond to Butler. Independent of the positive testimony of Butler, the inference is irresistible that that bond was made and executed precisely as Hubbard desired.
How then can it be said to be in fraud of Hubbard’s rights? And how can Hubbard be said to have a resulting trust in Davis, or Davis a resulting trust in the land, in behalf of Hubbard, when Hubbard by his own act, has carefully caused everything
But it is urged that the defendant being a simple mortgagee, could convey no legal tile to the complainant, and that by discharge of the mortgage, by release or satisfaction of the terms on which it was taken, the property reverted to the mortgagor Davis. What we have before remarked is a sufficient answer to. this suggestion. The terms on which the deed was taken, were to hold the same as indemnity, and to re-convey, not to Davis, but to Butler, when such indemnity should be no longer needful. The terms could only be fulfilled by re-conveyance, when the occasion of indemnity had passed away. It is impo3si-
If there was any trust of the reversionary interest arising out of tbe transactions, of wbicb Hubbard was the cestui que trust, tbe trustee must have been Butter and not Davis, for on tbe hypothesis of such trust, it is apparent that by tbe transactions of Hubbard, Davis, Butler and Knab, tbe trust was discharged from tbe bands of Davis to those of Butler, by the mutual consent of all parties. Ifc must be recollected that tbe defendant attempts to set up and prove an outstanding interest in tbe land in Hubbard or bis representatives. It is incumbent on him to prove it. But it is difficult to say that Knab does disclose in bis answer, any such interest as precludes the complainant’s right to tbe relief prayed for. His answer in fact does not undertake to set out such interest, and does not disclose such facts, as to require tbe Court to interpose in behalf of an implied trust. Admitting then or waiving for the present, whether bis answer would render proof of an implied trust, available to him in avoidance of bis bond to Butler,
Trusts are either express or implied. There is no pretence here of any express trust, of which Hubbard was the cestui que trust. There does not appear to be a vestige or character of such trust declared in writing, and no parol proof has shown it, if it was competent. If, therefore, there was any trust, it was an implied one. One which the facts and circumstances of the case force upon the notice of the court, by the mandate of the law and compel its recognition. Lord Nottingham in Coke vs. Fountain, 3 Swan R. 585, says, there is one good, general and infallible rule that goes to both these kinds of trusts. It is such a general rule as never deceives; a general rule to “which there is no exception ; and that is this ; the court never presumes a trust hut in case of absolute necessity. The reason of this rule is sacied, for if the' chancery do once take the libery to construe a trust by implication of law, or to presume a trust unnecessarily, a way is opened to the lord’ chancellor to construe or presume ang man in England out of his estate, and so at last every case in court will become casus pro amicoT
It is claimed on the part of the counsellor the defendant, if we understand their position in this respect, that as Hubbard originally bought the property and paid for it,* though he caused the title to be made to another, yet such mandatary of the legal
How, this is the proof' upon which the court is asked to presume a trust, — no evidence of Hubbard’s paying money for the land — nothing from which the law would imply a trust. If any trust there was in Davis, it was simply an express trust, resting wholly in parol. It could not be enforced against Davis by Hubbard, or his representatives. Dree this transac-
It is not the complainant who is seeking, in the first instance, to repel the presumption of a trust in Hubbard’s behalf, but it is tiie defendant seeking to establish one, in avoidance of his liability upon his bond to Butler. It would seem, therefore, that no very critical examination of Butler’s testimony was necessary ; though we think we ought to say, that we are unable to perceive that either the character of his answers to the interrogations put to him, or the facts and circumstances detailed by him, ought to impeach his testimony. Nor can we say that there is direct evidence of fraud on his part, nor facts, circumstances and relations disclosed, which ought to subject him to the imputation of fraud.
We have already sufficiently discussed the charac
But is it true that there was no consideration ?— Admit for the moment that that portion of the consideration testified to by Butler, resting on account for board, goods, &c., should be discarded. Why did Butler enter into the bond to Schram with Knab ? The counsel for the defendant say that Butler was principal in that bond, and if so, in performing its conditions, he did no more than he was legally bound to do. But if he was in fact principal, is not such fact wholly inconsistent with Hubbard’s alléged trust or ultimate interest in the land ? If Hubbard was
But it is said that it was inadequate. Admit it. Yet any consideration paid by the grantor is sufficient to repel the presumption of a resulting trust (Story's Eq. Juris. § 1119), and this hypothesis of a resulting trust in behalf of Hubbard, cannot avail the defendant. It seems to be inconsistent, to allege that Butler was principal in the Schram bond, and legally and equitably bound to its performance, and then to allege that the whole matter of using Butler’s name was of mere convenience, and‘Hubbard was the sole party really interested. These two hypotheses are incompatible, and yet we do not know .which the defendant inclines to adopt.
We have examined carefully the whole record in this case, and, as requested, have critically reviewed the testimony of Butler, and we do not think we would-be justified in rejecting it, but on the contrary, feel bound to give credence to it. It would have been more satisfactory, certainly, if he had produced an account stated between him and Hubbard; but he explains in some measure why that was not done* We must then regard the testimony of this witness as a tissue of falsehbod and perjury, or we must regard him as the real bona fide holder mid owner of Knabs bond; and, as such, he or his assigns is entitled to a conveyance from Knab on his discharge from liability thereon, according to its terms.
It now only remains to consider the question of parties, and after the expression of the foregoing views, but little need be said on this point. We do
It is not deemed necessary to review the authorities cited by counsel'. The principles which should govern this case are, in the main, simple and elementary.
The order of the Circuit Court must be reversed.