8 Me. 373 | Me. | 1832
The opinion of the Court was read at the following September term, as drawn up by
This cause comes before us upon bill and answer. The plaintiffs have abandoned a part of the charges in the bill; and the attention of counsel has been confined to two particulars only. 1st. The nature of the conveyances of the two stores and the land connected with them, and of the title of Prince under those conveyances. 2d. The receipt of eight hundred and sixty-seven dollars and thirty-four cents, of Cole by Prince, belonging to Wheaton. As the deed of June, 1827, executed by Wheaton to Gleason, Healey and Cole was absolute, it conveyed the fee to them absolutely ; inasmuch as the contract on their part to reconvey was not under seal and did not constitute a defeasance. Kelleran v. Brown, 4 Mass. 443. This deed is liable to no impeachment. It was sustained by a legal consideration, and was executed more than two years before Wheaton became indebted to the plaintiffs, or was embarrassed in his circumstances in consequence of the failure of Healey in December 1829. The title having thus been conveyed from Wheaton, the question is whether the legal or
Before proceeding to the consideration of the second question wo would observo that when we pronounce the transaction between the defendants, in respect to the conveyance from Gleason and Cole as fraudulent, we do not mean to insinuate that there was any moral turpitude on the part of Prince; nor do we believe there was
With respect to the sum of eight hundred and sixty-seven dollars and thirty-four cents, with which the plaintiffs seek to charge the respondent, Prince, there can be no ground for its allowance. In the original bill no claim was made for the above sum. At September term, 1831, the bill was amended so as to embrace this subject and assert this' claim for the money as then being in the hands of Prince by means of a fraudulent arrangement with Wheaton, but it is admitted in argument that no notice of the above mentioned amendment was given to either of the respondents, or to their attorney, until the 19th of November following; which was between two and three months after the money had been paid over to Wheaton, to whom it belonged ; Prince haying acted in the receipt and payment over of the money, merely as the agent of Wheaton. Why should he be compelled to pay it again, on any principle of justice? Brinkerhoff v. Brown, 4 Johns. Ch. 671; McDermott v. Strong, ib. 687; Spader v. Davis, 5 Johns. Ch. 283.
If the deed had been fraudulent as between Prince and his grantors, it would have been a mere nullity, as it respects the creditors of those grantors; but completely to destroy the effect of the deed in that or any other manner, would at once defeat the bill; because the plaintiffs are not the creditors of those grantors, but of Wheaton. But by showing the secret understanding between Prince and Wheaton, a resulting trust is established for the benefit of Wheaton, of which the plaintiffs may rightfully avail themselves. For the reasons above assigned, the bill, as to all the charges it contains, excepting that which relates to the two stores, and the land connected with them, is hereby dismissed. And as to that part of the bill, it is ordered that said Prince render an account of