1 Ind. 277 | Ind. | 1849
Bill in chancery by. certain of the heirs, (some of whom are yet infants,) of Col. Zebulon Pike, deceased, against Anderson F. Gage, and others, heirs of said Pike. Gage is the only interested defendant, the others being merely formal ones. The bill charges that, on the 4th of October, 1827, the said Col. Pike, then being the owner of a tract of land containing 750 acres, and. lying in Delaware county, Ohio, executed to said Anderson F. Gage, his son-in-law, a power of attorney to sell the same; that Gage, under said power, sold, during the fall of that year, to different persons, portions of said tract, making deeds and receiving payment therefor; and that, on the 10th of December, 1832, there being still unsold 292 acres of said land, said Gage, as attorney as aforesaid, for the nominal consideration of 500 dollars, deeded them to one Jacob Rosencrantz, in said Delaware county, Ohio,
A default was taken against the nominal defendants. • Gage answered, admitting his appointment as Pike's attorney, his sale of portions of said tract of land and the reception of payment therefor, and his conveyance of the 292 acres to Rosencrantz, and their re-conveyance to himself, as charged in the bill; but insisting that he accounted to Pike, in his lifetime, for the whole of the proceeds of said sales. As to the lands sold to strangers, he says he paid over the proceeds to him, and as to those conveyed to himself, he says Col. Pike was indebted to him in a sum exceeding their value, and he adopted the transaction complained of as a mode of obtaining payment, and settled with Col. Pike accordingly.
The cause was submitted to the Court on bill, answer, exhibits, and depositions, and a decree rendered that Gage held said 292 acres in trust for the heirs of Pike, and that he convey to them, severally, the portions specified in the decree.
The land, the principal subject-matter of this suit, lies in Ohio, out, of course, of the jurisdiction of the Courts of this state; but as the defendant interested in the controversy was brought directly before the Circuit Court, it was authorized, as a .Court of equity, to take cognizance of the cause, under the general rule that Courts of equity act upon the person. Story’s Eq. PI. 489. — 2 Story’s Eq. 58.
As the sale of the 292 acres to Gage, was a sale by an agent to himself, if it had not been subsequently ratified, his principal, and of course the heirs of his principal, had a right, by an. application to equity in a reasonable time, to have it set aside without any inquiry as to its fairness.
Had, then, this sale by Gage to himself been ratified before the commencement of this suit? It devolved upon him to show satisfactorily that such was the fact. He contends that the evidence in the case does so, and relies mainly upon this item of it:
“ Know all men by these presents, that I, Zebulon Pike, of Dearborn county, and state of Indiana, have, this 19th of April, 1833, discharged Anderson F. Gage from further duties as my agent, having been appointed by me to sell and convey a certain tract of land in the state of Ohio, in the year of our Lord, 1827. It is, therefore, due him that I should certify to all men concerned that he has well and truly performed the duties of that office, and that I entirely approve of the sales he has made, the deeds and conveyances given, and moneys received, to all of which we have this day settled and discharged each other from further obligations. “Zeb. Pike.
“ Witness present, Sarah WardeTlA
This instrument may go far to show that Gage satisfactorily accounted to Pike for the proceeds of the lands sold to strangers, and that he acquiesced in those sales; and, did it appear from it or other evidence in the cause, that Pike was made fully acquainted with the facts relative to the vesting of the legal title to the balance of the 750 acres tract in Gage, its bearing would be the same upon that transaction. It does not so appear, but rather the contrary. It does not appear that he even knew that it was so vested. The evidence is voluminous, and we can
That part of the decree requiring Gage to convey a particular portion of the lands in question to each of the heirs is reversed; the remainder is affirmed, with costs, &c.