63 Tenn. 257 | Tenn. | 1874
delivered the opinion of the Court.
By the original bill in this case it is stated, that Robert P. McFarland died in the city of Nashville in 1821; that he was owner, by descent from his father, of lot No. 36, as laid down on the original plan of said city, two parcels of thirty feet each, fronting on College Street, running back the depth of the lot, except ten feet for a passway, however, having been sold off by him before his death. He left his widow, Winnie McFarland, and one daughter, Sarah J. McFarland, his only heir. ' The widow administered on his estate, and had dower assigned her, which was about sixty-three feet of the lot fronting on College Street. The bill states, that she remained in possession and enjoyment of her dower until her death, in May, 1863. After the dower was allotted, there was, on the north side of it, about ninety-five
In 1836, this daughter married the complainant in the original bill, and ■ in 1842 he and his wife sold all the lot, including the remainder in the dower interest, then occupied by the widow, to one Isaac C. Benson. On the 26th of August, 1842, it appears Benson professed to sell this lot back, and did convey it to Swan and wife. Swan and wife, afterwards, in 1848, sold ■ sixty feet of this lot to one Simpkins, and in 1850, thirty feet more. They also sold thirty-one feet, in 1850, to one Morrison. These sales left the dower interest of sixty-three feet, with five feet on the north, as stated in the bill, in the answer and cross-bill three feet, and one foot on the south.
It is then alleged, that in 1857, Winnie McFarland, and defendant, Wm. R. McFarland, an illigiti-mate son of Winnie McFarland, who was living with his mother at the time, leased from complainants all of said property not previously sold, at a rent of ten cents a year, and payment of taxes, with a stipulation to restore the property to the possession of Orange Swan at the death of Winnie McFarland.
After this introductory matter, not apparently much related to what would seem the main purpose of the bill, it is then alleged, that in 1858 complainant and wife sold and conveyed all this property to Curtis F. Swan for $13,600, for which his note was taken twelve months after date. Curtis F., on the same day, made a deed of trust to defendant Castleman, as trustee, to
In addition, it is claimed, that Curtis F. Swan .(who is a non-resident) owes complainant another note, of upwards of $5,000, given in July, 1855; that McFarland has remained in possession of the lot since the death of his mother, Winnie; has rented a portion of the premises, and received rents; and that he had remained in possession in violation of the lease, without color or pretence of title. This bill was filed in 1866.
The prayer of the bill was for sale of the property to pay the debt secured, for an attachment of the rents due from W. R. McFarland to Curtis E. Swan, to be appropriated to the payment of the debt. It is proper to state that Sarah, the wife of complainant, had died before the filing of this bill, never having had any child.
The answer, which is filed as a cross-bill, admits most of the statements of the original bill, and that the mother had taken the lease exhibited with the bill. It then puts in pretty distinctly three or four grounds of defence against complainant’s claim, which may be summed up as follows:
First, that the lease did not embrace or have anything to do with the dower interest, nor cover it, but* only extended to about three feet on the north of the dower, the only object in taking it being to enable
Second, that the deeds made by the wife of Swan to Benson, and then by them, after the reconveyance, to Curtis F. Swan, were obtained from the wife by fraud, coercion, and undue influence. That they were a part of a meditated scheme of fraud or malpractice by which the husband, Orange Swan, was to secure the title to the property of his wife, she being childless and in feeble health. In support of this view, it is alleged that Curtis F. Swan is a nephew of complainants, was totally insolvent at the time of the pre-tented sale to him, and that the same was not bona fide, but only a part of the fraudulent arrangement. He also suggests that the $5,000-debt claimed is fictitious and not real.
Third, respondent claims that he is not a trespasser or wrongdoer in holding possession of the property, or remaining on it, and asserting ' title to it, because he insists, that though he is illegitimate, he is the heir of his mother, and as such entitled to the property by descent. The prayer of this answer as a cross-bill is ■ simply that the same be answered, these defences be allowed to the original bill, the same be dismissed, and for general relief in the usual form.
A demurrer was filed to this cross-bill, which, so far as it is special, and points out defects in the cross-bill, we will state. The second assignment is substantially, tliat before the filing of the original bill, res
The third assignment is, that McFarland, being illegitimate, had no right or interest in the property as heir of his mother, and not entitled to resist the claim of complainant on the grounds set forth in the cross-bill.
The fourth assignment is, that even though McFarland was in adverse possession of the property from the death of his mother, such possession would not entitle him to resist complainant’s claim, nor to any discovery on the matters alleged.
The demurrer was overruled, and an appeal' allowed to this Court.
The first question presented is, that defendant was a tenant of complainant under a lease from him and wife, and estopped to deny the title of complainant.
The original bill does allege that defendant and his mother took a lease of all the property not previously sold. This lease is not made an exhibit to the bill, but a copy from the Register’s office is offered to be produced, on or before the hearing, as evidence. The cross-bill, however, says it was on file in the cause at that time, and admits that his mother did take the lease, but claims and avers this lease had nothing to do with the dower property, and only extended to about three feet in the north of the dower.
We need not comment on the case cited by counsel, where a party obtained the privilege of entry on property to gather vegetables, and availed himself of the privilege to take possession of a house on the property, where it was properly held he was estopped by his contract to resist the right of the party who had granted the privilege to eject him from the house. In that case an entry on the property was obtained by the contract. Here, as to the dower property, the parties were in possession, and did not go in under the lease at all.
The next question presented is, whether McFarland, under the allegations of the cross-bill, being an illegitimate child of Winnie McFarland, is entitled to resist the claim in the original bill, on the facts stated in the cross-bill or answer, or to any discovery in aid of his defence. The question argued most ingeniously before us is whether a party in possession, claiming for himself, though in fact having no valid title, on the assumption that he could not inherit from his mother as an illegitimate, can set up defects in the title of complainants, show his deeds were fraudulently obtained as to the rights of others, the real heirs in this case, and thus retain his possession, or can he
The grounds on which the deed from Benson to Swan and wife, and from Swan and wife to Curtis F. Swan, are sought to be attacked are that they were obtained by fraud, coercion, and undue influence on the part of complainant, and, taking all the statements of the bill, were a part of a meditated scheme of fraud by which Swan sought to obtain the title to the property, and defeat the rights of the heirs of his wife at her death. It may be assumed as settled law, that a deed obtained by any of the means mentioned would not be absolutely void in law, so as to be incapable, of confirmation, but would certainly be voidable at the election of the ' party defrauded or coerced, and by privies. That such deeds are only voidable, and to be avoided by the party coerced or defrauded, or those representing him, is involved in the settled principle of law, that the party may confirm such deeds, and may refuse to assert his right, may acquiesce in the wrong done him, and no one can interpose to assert his right for him.
A late writer — Bisphamls Principles of Equity, page 205 — has stated the principle, we think, accurately on this subject. After stating the rule we have laid down, that the instrument is not absolutely void, but- only voidable at the election of the injured party, he says: “ There is, indeed, a distinction between deeds and other instruments which a man intends to execute, though his intention may be brought about by fraudu
And so we think a forged deed would pass no title to the party obtaining it, or party to it, or claiming to recover immediately on such deed. Whether the case of Waterhouse’s Lessee v. White, 2 Tenn. R., 333, is decided correctly or not on the question of allowing a naked intruder to show a remote mesne conveyance, which had been regularly proved and registered, to have been a forgery, we do not decide. It is evident the principle of that decision can only be sustained by confining it to the precise case in judgment.
These principles being settled, we think it clear that defendant McFarland, on the assumption that he had no title to the property as heir of his mother, (who was the heir of Sarah McFarland,) could not be permitted to come into a Court of Equity and ask to have the deeds mentioned declared void. Winnie McFarland, in her life-time, or her heir on whom the estate was cast by law, clearly might do so, but no stranger could. We do not at present, however, decide the question as to the right of McFarland to inherit from his mother.
Mr. Story’s Eq. Jur., Redf. Ed., §257a, gives the principal thus: “In general, a contract which contemplates a fraud upon third parties is regarded as so far illegal between the immediate parties that neither will be entitled to claim the aid of a Court of Equity in its enforcement.” ■ So in our own State, a party who had delivered a note to a third party, with a view of defrauding his wife of almony, was repelled from a Court of Equity, so that his administrator could not recover the note again, in pursuance of an agreement with his intestate that it should be redelivered or accounted for. The Court saying, as between the parties, they would not take cognizance of such fraudulent transactions. Mallory, Adm’r, v. Young., 10 Hum., 300.
In the case of Parks, for use, etc., v. McKamy, 3 Head, in an action at law on a note given for property, which pretended sale was made to hinder and delay
It is true, these cases and others that might be cited, are between the immediate parties to the fraudulent contract, where one seeks to enforce it against the other. But the principle on which they rest is the enforcement of a sound legal morality, not that the defendant has any valid claim or title, but that complainant asks aid to enforce an iniquitous transaction. Nor can we see why a party should be repelled as against another who is equally participant in the wrong, and at the same time be allowed to enforce through a Court of Equity an iniquitous contract, receiving its active aid, as against a party in possession of property, claiming it, however, by a defective title, yet who is free from all fraud or participation in the fraudulent transaction sought to be enforced. May not such a party well ask the Court to stay its hand and repel a party from enforcing against him a claim conceived in fraud as to the rights of third
This is not to give active relief to a party who has no title, but is simply a principle on which his opponent is repelled from the Court, the Court helping neither the one nor the other — not the complainant, because it would be to aid him in reaping the benefit of his fraud; nor the defendant, because he might have no legal title, yet, being defendant, and in possession, having a possessory right, his condition is best, and the Court, as against his opponent, will leave him his advantage.
If these principles and reasonings be sound, then complainant in the cross-bill would be entitled to a discovery from the complainant in the original bill as to the alleged fraud, duress, and coercion in obtaining the deeds, and in the sale and conveyance to Curtis F. Swan, in order to show that all these transactions are, as alleged, a part of a meditated scheme of fraud carried on between these parties to defeat the rights of the heirs of Sarah McFarland, afterwards Mrs. Swan, and as such not absolutely void, or even voidable, at the suit of defendant, but so tainted by the fraud, so grossly wrong and immoral as to repel the party from a Court of Equity, and make it proper for the Court to refuse him any assistance whatever in carrying out his scheme. If
This holding in no wise infringes on the doctrine, that even a fraudulent sale is valid as between the parties in the lease.
This rule is stated by Judge McKinney, in the case in 3 Head. It only leaves the party where he has placed himself by his own conduct, if the facts alleged be true, and refuses to aid him in ousting one in possession under a claim of title, refusing to actively enforce an apparent iniquitous claim of title as against such possessor, or to assist a party in carrying out a scheme of fraud upon the rights of others. See also Gale v. Lendo, 1 Vernon, 475, cited in Jackson v. Marshall, 1 Murphy, N. C. R., 332.
This view of the case renders it unnecessary, at present, to discuss or decide the question of the rights of an illegitimate child, claiming to be heir of his mother, under the circumstances presented in this case, and we waive that question. The result is, that the demurrer is overruled, affirming the decree of the Chancellor for the reasons given, and remanding the case for further proceedings.