26 Mo. 30 | Mo. | 1857
delivered the opinion of the court.
This case is a complicated one, but its determination will depend chiefly upon the decision of two principal points. The first relates to the decree of the court dismissing the, bill as to the tract of 640 acres located under New Madrid certificate 899. The second involves the construction of agreement marked “ B,” and the conduct of Evans in reference thereto.
The title to the 640 acres located by virtue of New Madrid certificate 399, and known also as the Robertson tract, is controlled mainly by an agreement executed by Evans on the 19th of April, 1828, and marked in the record as exhibit “ A,” considered in connection with the bill, answer and evi
The bill charges that in August, 1824, Price executed to Evans his note for $2,089.64, payable one day after date, with ten per cent, interest per annum until paid, and that to secure said debt, Price in 1828, conveyed to Evans 640 acres of land located by virtue of New Madrid certificate 399 and survey 2775, and that the agreement marked “A” was executed by Evans as evidence of this transaction.
The answer admits the execution of the agreement of April, 1828, called exhibit “ A,” but states that neither the defendant nor Price had any title to the New Madrid certificate 399, or the land located under it, called the Robertson tract, at the date of the execution of this-agreement; that at this time the title was held adversely to both by persons from whom the defendant subsequently acquired it. The answer sets out the title which Price had at this time, and which it
The title which Evans afterwards procured is adverse to all the claims of Roberts, Tanner and Price. That title is set out in the answer and is as follows : In 1810 Andrew Robertson was the owner of land in New Madrid injured by earthquakes, and on the 20th of July, 1810, conveyed the injured land to one Humphreys. In 1816 Humphreys conveyed to Theodore Hunt, and Evans bought Hunt’s title under a judgment execution and sheriff’s sale in 1880.
The answer moreover avers that at the time this paper marked exhibit “ A” was made, Price had given deeds of trust upon this land to the Bank of Edwardsville, to secure
It is frequently laid down in general terms that if a trustee, mortgagee or tenant for life purchases an adverse title, such purchase enures to the benefit of the cestui que trust, mortgagor or remainder man. As a general proposition this may be sufficiently definite, but where the title of the cestui que trust, mortgagor or remainder man is destroyed, it is not true that the trustee, mortgagee or tenant for life may not acquire the real title, provided his condition and conduct are free from fraud. If by reason of his position as trustee he has the possession, and in acquiring the adverse title he takes undue advantage of the cestui que trust, courts of equity have gone so far as to hold such acquisitions to be still controlled by the trust. But in the absence of fraud and in the absence of possession, I have not seen any case where it has been held that such purchases shall enure to the benefit of the cestui que trust, where the cestui que trust has at the time of such acquisition no title. One would suppose that the destruction of the title to which the trust related virtually destroyed the trust, and it is not easy to see why the trustee, his duty ceasing with the existence of the subject matter of
Such was declared to be the law in Lesley’s case, decided in 1680. (Freeman, Ch. 59.) “ A man is guardian or trustee for an infant to whom-lands are descended or devised, but the title is, re vera, in a third person; if the guardian or trustee buy in the title of this third person, this shall not be taken to be a trust for the infant; for he is at liberty to purchase it as well as any body else, and so it was held in the case of Combes and Throckmorton, per Cancellar.” This is declared by the learned annotator who publishes the reports to be a dictum, and unsupported by modern authorities ; but the cases cited by him exhibit no such contradiction, and, although the doctrine is laid down in a more unqualified manner than subsequent decisions will justify, yet the principle is correct, and is to be understood without reference to any of those circumstances of fraud or misconduct which it is admitted will keep the trust alive.
This principle, with its true modifications, is very clearly stated and illustrated by Lord Manners, in the case of Nesbitt v. Frederick, 1 Ball & Beatty, 42. That was a case of a mortgagee renewing a lease in his own name after the old lease was forfeited and he was not in possession and gave due notice to the mortgagor to redeem. “ The principle to be extracted from all the authors,” says the chancellor,
In conformity to this is the opinion of Sir William Grant, in Randall v. Russell, 3 Mer. 190. Mrs. Russell was, under her husband’s will, a tenant, durante viduitate, of a lease from a college, which had expired during her husband’s lifetime, but which he had continued to hold up to his death as tenant from year to year, with the privilege of renewing. Mrs. Russell renewed the lease for nineteen years, but the college selling the reversion to a private person, she bought the reversion, and a bill was filed by the devisees to have her declared 'a trustee for them as to this reversion, or to give them as against her the benefit of the nineteen years’ lease. The court held that the purchase of the remainder could not, under the circumstances, enure to the benefit of the devisees, upon the principle that after the reversion passed from the college, it did not concern them whether Mrs. Russell or any other person had purchased. In other words, as her situation as lessee gave her no particular advantage over others in the purchase of the reversion, and that purchase did not in any way affect the interest of the devisees, she was not a trustee for the uses of the will so far as this purchase was concerned. The remarks of the master of the rolls will abundantly show the grounds of his opinion. “No case,” he says, “ was mentioned in which this sort of equity had been carried to such a length. The ground commonly stated on which the renewed lease becomes subject to the trusts of a will disposing of the original lease is, that the one is merely
Where the cestui que trust can not be injured, by reason of his title being entirely gone, the purchase of the trustee can not and ought not to be held subject to the trust which is virtually extinguished by the destruction of its subject matter, unless the conduct of the trustee, or some advantage he acquires by reason of this relation, should warrant the courts in creating a new trust, or extending the old one so as to embrace the new title. This is the doctrine as stated by Chancellor Kent in Holridge v. Gillespie, 2 John. Ch. 33, who declared it very much in the same language employed by Lord Manners, in Nesbitt v. Frederick. “ It is a general
Such is also the principle of Kentucky cases, where the subject has frequently come up, some of which have been cited in this case as being supposed to enunciate a different doctrine. In McLanahan’s heirs v. Henderson’s heirs, 2 A. K. Marsh. 388, the action of the court was in nowise inconsistent with this doctrine, as a very condensed statement of the facts will show. McLanahan bought a preemption and settlement right from Wilcoxson, and agreed if he succeeded in getting any land patented under this claim that Wilcox-son should have one-half. Wilcoxson conveyed his interest to Henderson. McLanahan succeeded in his entries, surveys and patents. Part of the land however he lost by suit; part he voluntarily relinquished to an interfering claimant, and he also bought the interfering claim of one Keller. The court held McLanahan responsible for the land he relinquished, and that the cestui que use, or his assignee, Henderson, should participate in the benefit of the purchase from Keller, upon paying his share of the purchase money. Although so much of this judgment as held McLanahan responsible for the part he voluntarily relinquished would seem to be going very far, unless his conduct in that matter showed such gross negligence as amounted to fraud, yet the court did not carry the responsibility of the trustee further than the cases warrant in holding his purchase from Keller as for the benefit of the cestui que use. McLanahan had a preemption right and a settlement right under which he had at least acquired possession, and as the purchase from Keller was made to strengthen his title, it would properly enure to the benefit of Wilcoxson’s assignee, who was the equitable tenant in common with him. In Pugh’s heirs v. Bell’s heirs, 1 J. J. Marsh. 399, it is merely decided that a purchase by a trustee from the cestui que
In England most of the cases occurring in the books relative to this doctrine are cases of leases, and although, after the expiration of a lease, there may be no legal obligation on the landlord to renew to the tenant in possesion, it seems to have become an established practice to consider those who are in possession of lands for lives or years, as having an in
The agreement marked exhibit “ A” may be considered as partaking of the nature of a mortgage. It is an acknowledgment by Evans that the title to New Madrid certificate 399, and the land located thereunder, was held by him as security for a note given by Price, and an agreement on his part that when this note was paid he would convey to Price this title. The language is, “ I will convey to said Price or his assigns the said certificate and location made thereunder, as far as I may be or have been interested in the same.” That the title referred to was the one procured hy Price from Tanner is not declared in so many words in the agreement; but to ascertain what this title was we must have recourse to Evans’ answer, there being no evidence on either side except the exhibits of Evans in support of his answer, and which the opposite party tendered as proof upon the trial. It seems from the answer that, at the date of this agreement, Price held no title at all to this New Madrid location. The title which he had bought of Tanner he had reconveyed to Tanner to enable Tanner to recover upon Roberts’ covenants- to him. This suit, it appears, was brought and a judgment recovered and an execution on this judgment levied on this land. Evans purchased at this execution Roberts’ interest in the land, which it would seem from the very statement could not have been very valuable — Roberts being sued for want of title, and a judgment going against him on this very ground. It is obvious that this title was hardly worth the
This was the title which Evans held when he executed agreement “ A,” and which by that agreement he held in trust for Price. Did Evans’ position as mortgagee of this title forbid him, upon equitable principles, from purchasing the real title, and will a court of equity decree a conveyance of the real title, if Evans is found to have it, to his cestui que trust, Price ? Evans, it will be observed, did not get the possession of this six hundred and forty acres, located under New Madrid certificate 399, from Price, nor does it appear that he has ever yet obtained possession from any source. There was no connection whatever between the title, which Evans procured through Hunt and Robertson, with the title of Roberts or Tanner or Price ; nor does it appear that the chain of title derived from Price furnished any clue whatever to a discovery of the title through Robertson. It would not seem that the title of Price furnished any aid or gave him any advantage in procuring the real title, if indeed he has a valid title now. There was no dealing “ behind the back” of Price, so far as the bill, answer and evidence disclose. Price was not in a condition to speculate in new acquisitions of this character ; he was not able to maintain those he already had. Under these circumstances we think the decree of the circuit court was correct in dismissing the bill as to New Madrid certificate No. 399, unless the subsequent agreement marked “ B,” and the conduct of Evans relating thereto, should be thought to affect the transaction; and this brings us to the second branch of the case, which involves the construction of this second agreement.
In 1831, about three years after the date of agreement marked exhibit “ A,” and after Evans had, under an execu
“ The understanding between Risdon H. Price and myself is, that on the payment of my debt due me from said R. H. Price, I am to reconvey all the property already purchased at sheriff’s sale, and am also to purchase in the property to be sold this day by the sheriff, which is also to be reconveyed to Price on the payment and full satisfaction of my debt due as aforesaid. March 31st, 1831. [Signed] A. H. Evans.”
The question is whether this agreement created a trust on the part of Evans in relation to the property thus purchased at the sheriff’s sale, and if so, whether the trust is still subsisting and obligatory, and whether this is such a trust as the courts will enforce under the circumstances disclosed by the bill, answer and proofs in the case. The answer of the defendant denies the existence of the trust, and denies that the paper was ever designed to create an indefinite trust or was any thing more than a temporary privilege to Price to take back the interest which Evans had acquired or might acquire in his lands upon the payment of his debt. The circumstances attending the execution of this paper and the motives which led to it are stated in the answer, as follows : The defendant had made one sale under his judgment against Price and was about to sell other lands or lots, when on the day of the sale he was accosted by Price with a proposition for a delay of a few days with an assxxrance that he was then negotiating for the money to pay off the judgment and would probably be able to raise the money. The defendant was anxious to get his money and did not want Price’s property, but, as Price had frequently made similar promises before this, he was unwilling to incur the expense of re-advertising, and therefore, under the assurances of Price that he would soon raise the money, and with the belief that a few days would determine whether this would so turn out or not, he execu
This is the account of the transaction in substance as given by Evans. The testimony shows that at the time of this transaction, and long before — as early as 1819 or 1820 — and long after, Price was wholly insolvent and continued to be so up to his death in 1847. It also appears that at this time real estate in St. Louis and its vicinity was difficult to dispose of and commanded very low prices ; that lands, with undisputed titles, lying in the vicinity of the tracts purchased by Evans at these sales, could be bought at from three to ten dollars an acre, and would not command at forced sales under execution more than government price. From this time and up to the commencement of this action real estate appreciated in value to an almost unprecedented extent. Land, which in 1832 could not be sold when offered at fifteen dollars an arpent, was subsequently sold, as one witness stated, at three hundred dollars per arpent, and this, in the opinion of this witness, was an average specimen of the increased value of real property during the period referred to. There was also, as Mr. Walker, the sheriff, stated, a quantity of public land in this vicinity to be entered at the government price. It appears that in 1831, and after the execution of this paper, “ B,” Evans issued or had issued on his judgment other executions, and Evans states in his answer that the sales under them in 1831 and ’32 were with the knowledge of Price.
It is stated in the answer, and indeed abundantly appears throughout the record, that out of the numerous titles to lands and lots which Evans bought under these execution sales, hardly one was an undisputed title ; that a large pro
In arriving at the proper construction of a written instrument, it is the object of courts of justice to ascertain the intention of the parties to it. If the language is unequivocal and no facts are disclosed to control or modify it, there is no room for hesitation or doubt. But as a written instrument means whatever the parties to it intend that it shall import, there is probably no safer guide to lead to its proper construction than the acts of the parties themselves. It will not do to look at the action of one party only, but of both ; and if their conduct will consist with one construction, and is totally irreconcilable with another, there ought to be no hesitation in preferring that which the parties themselves have acted on and adopted, notwithstanding a different construction would more naturally be given to the language in which the agreement is written. It is proper therefore to read this agreement marked exhibit “B” by what law-writers usually term “ the light of surrounding circumstances.” The homely adage that “ actions speak louder than words” is just as applicable here as in the ordinary occurrences of daily life. The proposition we have to examine is, what was the meaning and intention of Evans and Price — the one in giving, and the other in receiving, the paper writing of March, 1831 ? We do not mean to place any stress upon Evans’ answer in ascertaining what his intention and understanding was, because when a man is charged with fraud and breach of trust, he of course denies it, though he is sometimes unable to give a very plausible account of the transaction consistent with his denial. We speak now of Evans’ actions rather than his statements, and his statements only so far as they are beyond
But let us turn to Evans’ subsequent conduct and see whether there is in it any thing to lead to the inference that Evans considered himself as holding Price’s property under a quasi mortgage or trust. In the course of the same year in which this agreement was made, and in the year following, additional executions were sued out by Evans and levied on additional property of Price. Evans could not be ignorant of the fact that Price was in possession of the paper writing he had signed and handed to him in March, 1831. If he and
It is a matter of no consequence however in what light Evans viewed this paper executed in 1831, if Price understood it to be a trust and its language would authorize such construction. In seeking to ascertain Price’s understanding of this instrument, the first matter which strikes our attention is the total silence of Price for fourteen years. Living-in the same town with Evans for some years after this transaction, and never at any time so far removed as not to have convenient access to him, we do not find, from the bill, the answer, or any testimony in the case, that Price ever mentioned this subject to Evans, from the month or year in which the paper was signed, during fourteen years, up to the day ho filed his bill for a specific performance. We speak now of lapse of time, not in reference to its effect as a limitation, nor simply as an argument against a specific performance, weighty and persuasive as it is and must be in that point of view, but as a practical interpretation of the instrument given by Price himself. Is it credible that Price believed his neighbor to have in his control and under his management a large amount of his property, to which lie was to be restored upon the payment of his debt, without ever mentioning the subject to that neighbor for fourteen years, without any investigation into the progress of its management, and with no inquisition into the results likely to be realized ?
In this connection it is proper to recur to the levies upon Price’s property, made in the summer of 1831 and in the following winter. Evans, we have seen, did not hesitate to sue out additional executions, notwithstanding the instrument of March, 1831; and Price, he asserts in his answer, was fully cognizant of the sales under them. Without attaching any particular weight to Evans’ statement on this point, it could hardly consist with rational probabilities that Price could be otherwise than informed of executions and sales of his own property directly at his door. But there is no proof that
The change in the value of the property from 1831, when this agreement “ B” was executed by Evans, to 1845, when this bill was filed, is a circumstance entitled to great weight. Taken in connection with the long period of time which the plaintiff has suffered to lapse before bringing his claim to the notice of the defendant, it can not fail to influence the standing of the plaintiff in a court of equity. The change in the value of the titles, which Evans bought, is also a circumstance to be noticed. The testimony is clear that Evans has been engaged in long, tedious and expensive litigation concerning these titles since their first acquisition, and it seems that by suit or by compromises he has succeeded in making some of them available. The sales of some have been made to yield him the amount of principal and interest which Price owed him, and probably something more; and valuable portions of the property are still retained by him. But if his energy and perseverance have enabled him to save from the wreck — the debris as the counsel very well termed it — of an insolvent estate, some property, to which time and a general appreciation in the value of property and his labor have given their principal value, it would be subversive of all just notions of equity to permit Price, after a silence of fourteen years, to claim the benefit of a contract, which if ever binding was to all appearance treated as abandoned and discharged.
It can not be doubted that Evans’ motive in giving Price
A point is made in this case, as stated in the bill of exceptions, which it is proper to notice, although no stress was laid upon it in the argument. An offer was made to prove that Price was insane in 1832, and perhaps afterwards, but the evidence was rejected by the court. The bill contained no such allegation. The original bill filed by Price in 1845, by way of apology for the want of a specific and detailed list of property charged to have been fraudulently obtained by Evans, states that the “ complainant had been for many years greatly afflicted in body and mind, and had given little or no attention to his business.” This, though somewhat amplified, is substantially the language of the amended bill. We do not consider this as an allegation of insanity. Such a fact, alleged and proved, would have a material influence on the case, but we have considered it throughout without reference to this proffered evidence.
The case of Hiester v. Maderia, 3 Watts & Serg. 384, is said to be very much such an one as the present, and it is cited in support of the decree of the circuit court. We can see but little resemblance in the cases in all the essential facts and circumstances that tend to illustrate and determine the true character of a transaction. Hiester and Maderia were partners in the purchase of nine tracts of land in the interior of Pennsylvania. The lands were valuable, as Maderia’s share of the purchase money due would show, and the titles, it is to be
Without referring particularly to any other of the many cases which have been cited and examined in this case, we pass to the conclusion, that in our judgment, considering all the circumstances attending the execution of this instrument of March 31st, 1831, and the conduct and situation of the parties in reference to it, both before and after its execution, we do not regard it as a mortgage or an indefinite trust, but at most a temporary privilege or confidence, designed by both parties for a temporary purpose, and failing in that purpose, abandoned and consigned to oblivion, having no influence whatever upon the conduct of either party in all their subsequent transactions.
The judgment of the circuit court will be reversed and the bill dismissed ;