5 Johns. Ch. 1 | New York Court of Chancery | 1820
The bill charges that the purchase by the defendants, Richard and Marie Steere, at the sheriff’s sale, on the 16th of August, 1805, was in trust for the plaintiff’s testator, and those defendants are called upon to account to the plaintiffs, as devisees, for the rents and profits, and for the proceeds of that part of the lands which have since been conveyed to others, and to reconvey to the plaintiffs that part of the lands which they still retain.
It is intimated in the bill, and it was made a point at the hearing by the counsel for the plaintiffs, that the sheriff’s sale was void, and that the deed in pursuance of it was invalid, for want of designation and description of the lands sold.
If this were so, then the plaintiffs, as devisees of Stephen Steere, the original owner, in August, 1805, would have their fit and adequate remedy at law, for the lands now sought by the bill. In respect to any claim for the proceeds of the estate, I apprehend the executor of Stephen Steere ought to have been a party to the bill; for these proceeds in the hands of the defendants were personal property, and if they were bequeathed at all to the plaintiffs by the will, (which cannot very readily be admitted,) the executor is the proper person to call the defendants to account, and to distribute the personal estate under the directions of the will.
But I shall not dwell upon this difficulty in the case, but proceed at once to the examination of the question on which the whole foundation of the bill rests, viz. is there a trust sufficiently manifested in writing, to be recognized and enforced in this Court ?
To take the case out of the statute of frauds, the trust must appear in writing, under the hand of the party to be charged, with absolute certainty as to its nature and terms.
In this case, the testator, Stephen Stecre, at the age of seventy, was much in debt and embarrassed; and among other debts there was a judgment against him, amounting with interest and costs, to 1,400 dollars. He was utterly unable to satisfy it, and his lands in the county of Chenango were advertised for sale on execution. He had eleven children, at the time, and the defendants, Richard and Mark Steere, (who were two of them,) attended the sale and purchased the property for 1,600 dollars, and advanced the money out of their own funds, and took the sheriff’s deeds in their own names. This was in August, 1805, and it appears to have been a fair purchase at public auction. The natural consequence of such a transaction is, that these two sons would not be inclined to speculate upon their aged father’s misfortunes, and make a profitable bargain to themselves, to the injury of him and his other children. Considerations arising from the ties of blood and the dictates of family affection, would ordinarily lead such a purchaser to offer to restore the property, on being reimbursed his advances and indemnified for his trouble, or else to engage that all the profits of the purchase should be applied justly, and equitably, to the common benefit of the family But intentions and intimations of that kind cannot well be considered as amounting to a clear and
The first item of testimony from whence the plaintiffs' undertake to show the trust, is a letter from the defendant, Richard Steere, to Asel Steere, dated October 19th, 1806, upwards of one year after the purchase under the sheriff’s sale. This letter is not addressed to the testator, whom the bill alleges to have been the cestui que trust, and in that respect it differs essentially from the evidence from which a trust was deduced, in the cases of O’Hare v. O’Neil, (2 Bro. P. C. 39.) and Forster v. Hale. (3 Vesey, 696.) It is addressed to a stranger to the alleged trust, though a brother of the defendant, and it was evidently a letter on private and confidential business. The letters in the other cases were addressed to the cestui que trust, and there was then a reasonable ground of inference, (which is wanted in this case,) that the writer of the letter irttended to give a manifestation er evidence of the trust. This same Asel Steere declares, in
This letter corresponds with the general view of the case, as given by Asel Steere, in his answer, and shows evidently that Richard Steere considered himself as holding tlfe land, in the first place, for his reimbursement, and then, under some general and vague promise, to distribute the surplus among his brethren of the family. He says, he inferred that to be his father’s wishes, even before he purchased, and that the land should go “ to the family, and not to strangers. ’ He says, therefore, he made “a promise to many of the family, that it (the land) should not go out of his by&ls without their having a part,” and that he was not willing to “ break his promise with his brethren.”
The next letter addressed to Asel Steere, is dated July 9th, 1807, in which he says, his father “wished him and his brother Mark to reconvey back all the land except the TJnadilla purchase.” This, he said, he could not then do, because he could not “ perform his engagements with his brethren and give his father satisfaction.” The third letter of this defendant is dated August 8th, 1809, and is addressed to three of his brothers, of whom the plaintiff Timothy is one, and is material only for the idea which prevails through all the letters, that he and his brother Mark held the property for their security and for “ the family.”
There is not, therefore, in either of these three letters, any sufficient manifestation and evidence of the specific trust charged in the bill. The trust charged is in favour of Stephen Sleere, the testator, but the trust vaguely intimated in these letters is one in favour of the family at large of Stephen Steere ; and admitting a trust to have been duly manifested in favour of the children of Stephen Steere, (and
The strongest evidence in favour of the trust charged, is contained in the letter from the defendant, Richard Steere, to his brother, the defendant, Mark Steere, dated February 12th, 1814, inclosing the account of these two defendants against Stephen Steere, of the date of January 28th, 1809.
In that account, Stephen Steere is charged as a debtor, with payments by R. and M. to the sheriff, at the time of the purchase by them in August, 1805, and with some expenses in relation to that business, and he is likewise credited with the sale of part of the lands held under the sheriff’s deed. He says in the letter that the original account was sent “ for the satisfaction of Stephen and Timothy Steere,” and that “ the old account had been agreed to by father.”
The defendants, in their answer, admit, that the account of 1809 was once, and only once, shown to Stephen Steere, and then casually, and that it was made up with the intent to show how expensive the estate had been to them, and what advances had been made, and that it was made up from loose papers now mislaid, or in possession of the plaintiffs, and that the name of Stephen Steere was used as a debtor for convenience, and to distinguish the real estate derived from the sheriff’s deed from the other estate of the defendants, and because the estate was looked upon as a family patrimony in which the family expected to share. They aver in their answer, that the account was made out for the satisfaction of the plaintiffs and the family, and to show that further demands were unreasonable, and that the account of 1809 was retained by them, as a private memorandum, until February, 1814, and that additions were made t@ it from
These explanations were given in answer to interrogatories specially pointed to those accounts, and by which they were required to answer, “ whether the said accounts were not made out in the usual form of accounts.”
It appears to me that the explanation is consistent with the proof applicable to those accounts, and with the general complexion of the entire transactions of the estate.
James Birdsall, a witness, states that in January, 1814, the defendants, Richard Steere and Mark Steere, entered into a parol agreement in relation to the lands so purchased at the sheriff’s sale, with their brothers, Stephen Steere, jun., and the plaintiff, Timothy Steere. The subí stance of the agreement was reduced to writing, at the time, by the witness, at the request of the parties to it, and was approved of by them. That agreement was considered as a final settlement of all questions and claims in respect to that property, and it provided for a distribution of what remained of the estate, among certain of the children. The memorandum begins with these words: “ Richard Steere will state his account to Mark, Stephen, and Timothy Steere and here we have the origin of the publication of the account produced by the plaintiffs as evidence of the trust. The account was sent to Mark Steere, in the letter of Richard Steere, of the 12th of February, 1814, and now we can understand the meaning of that paragraph in the letter, in which he says, “ I send the original account for the satisfaction of Stephen and Timothy and also the force of another paragraph in which it is said, “ so you will see by my statement that you will pay me and retain 110 acres on the south side of the way, to pay you and Stephen, and the remainder to divide.”
This account and letter could not have been intended as a manifestation or declaration of a trust in favour of the testator. The manner in which it arose, and was transmit
A question has been raised, whether the parol evidence given in the case be admissible, to contradict the inference drawn by the plaintiffs from the accounts and the letters. If the written proof was clear and positive, it could not be rebutted by parol proof; but considering the loose and ambiguous nature of it, I am inclined to think the parol evidence is competent in support of the sheriff’s deed, and to explain the obscurity of the case, by showing what was the understanding of all the parties concerned. In Forster v. Hale, parol proof was received, and taken into consideration by the Master of the Rolls, in forming his opinion; and in Redington v. Redington, (3 Ridgeway's Cases in the Irish
I do not perceive any ground for a distinction between the case of the estate generally, and the Cole and Glover lots. If any trust exists as to them, distinct from what is attempted to be established as to the rest of the estate, it is a trust by implication or operation of law, and such a trust cannot be made out but by showing the actual payment of the money by the cestui, que trust, or an actual loan by him for that purpose; and in this case no such payment or loan is pretended. The mere charge of the payment to the third person who sets up the trust will not be sufficient; and actual payment, or an actual loan of the money at the time.
I am, accordingly, of opinion, that the bill cannot be sustained, because,
1. The plaintiffs, upon their own showing, have a remedy at law for the land possessed by the defendant Richard Steere, inasmuch as neither the sale nor the sheriff’s deed contained any description or location of the land sold.
If, however, the plaintiffs, or the testator under whom they hold, may be considered (and I think he may justly) as having waived that objection, and as having affirmed the sale, by repeated acts, then,
2. The plaintiffs have not made out a trust sufficiently clear and certain, to enable this Court to act upon it, and to take the case out of the statute of frauds.
Bill dismissed without costs.