Buchanan v. Hubbard
| Decision Date | 28 May 1889 |
| Docket Number | 13,445 |
| Citation | 21 N.E. 538,119 Ind. 187 |
| Parties | Buchanan v. Hubbard |
| Court | Indiana Supreme Court |
From the Hendricks Circuit Court.
The judgment is affirmed, with costs.
C Foley, for appellant.
L. M Campbell, J. S. Duncan, C. W. Smith and J. R. Wilson, for appellee.
This is an appeal by Emily A. Buchanan from a judgment of the Hendricks Circuit Court, rendered in an action brought by her against William S. Hubbard to recover the possession of certain real estate which the plaintiff alleges she conveyed to a remote grantor of the defendant, while she was an infant, and which conveyance she avers she afterwards disaffirmed.
The material facts upon which the judgment is predicated, as they appear in the special finding of the court, are the following: On the 3d day of October, 1867, the plaintiff being the owner of the land in controversy, agreed, through the agency of her husband, to exchange it with one Pennington for certain lands in the State of Kansas, she to receive in addition four hundred dollars in money. At the time the agreement and conveyance were made, the plaintiff was the wife of John Buchanan, and lacked about ten days of being twenty-one years old. Pennington, without the knowledge or consent of the plaintiff, executed a deed conveying the Kansas land to her husband, but before she delivered the conveyance for the Hendricks county land, in which her husband joined, she was apprised of the fact that the latter had been named as grantee in the conveyance from Pennington. The four hundred dollars were paid to the plaintiff's husband for her benefit by Pennington, who had no knowledge that she was not twenty-one years of age. Buchanan and his wife took possession of the Kansas land on the 15th day of October, 1867, and continued in possession until they sold it, in 1885. The Hendricks county land, through various mesne conveyances, came to the possession of Hubbard in 1880. In 1882, the plaintiff and her husband, being still in the possession of the land obtained from Pennington, caused a written notice to be served on the defendant Hubbard, to the effect that she disaffirmed the conveyance to Pennington, on the ground that she was an infant at the date of its execution. Subsequently she instituted this suit to recover the land, and after the commencement of the action she joined her husband in a conveyance of the Kansas land, which he sold and conveyed for $ 3,800, with the intention to enable him to obtain the proceeds of the sale and prevent the land from being recovered from him in case she should recover the land in controversy. The only question presented for decision is, whether or not, upon the foregoing facts, the judgment that the plaintiff take nothing by her suit was right.
The plaintiff having paid the consideration for the Kansas land, her husband, who took the title in his name without her knowledge or consent, took it in trust for the benefit of his wife. Mitchell v. Colglazier, 106 Ind. 464, 7 N.E. 199, and cases cited.
It is insisted, however, that because the transaction involved a tract of land in the State of Kansas, the law of that State alone can be looked to in order to determine whether or not a trust resulted to the plaintiff, notwithstanding the conveyance to her husband in the manner found by the court. Hence it is argued, since the law of Kansas was not pleaded and proved, and because that State was territorially carved out of what is known as the "Louisiana purchase," neither the law of Indiana nor the common law can be applied to the case.
It is sufficient to say that the laws of a State to whose courts a party appeals for redress, furnish in all cases prima facie the rule of decision, and if either party claims the benefit of a different rule, since the courts are presumed to be acquainted only with their own laws, he who asserts the existence of a different rule, as applicable to his case, must aver and prove it, like other facts of which the courts do not take judicial notice. Cincinnati, etc., R. R. Co. v. McMullen, 117 Ind. 439, 20 N.E. 287; St. Louis, etc., R. W. Co. v. Weaver, 35 Kan. 412, 11 P. 408. As was said in Crake v. Crake, 18 Ind. 156: " Where a right is sought to be enforced in one State in relation to a subject-matter existing in a foreign State, and no foreign law is proved, and no common law rule ever prescribed, and no contract exists, * * * the court will apply the law of the State in which it is sitting." Monroe v. Douglass, 5 N.Y. 447; Whidden v. Seelye, 40 Me. 247; Rorer Interstate Law, 33-34.
In respect to general principles, the common law is presumed to be in force in most of the States, subject to such modifications as may have resulted from legislation or judicial construction. If these latter are not shown, the court applies the principles of the common law, as those principles are interpreted in the State where the trial is proceeding. Rape v. Heaton, 9 Wis. 328; Legg v. Legg, 8 Mass. 99.
It is true that as to those States in which there were established civil governments, or systems of domestic law, prior to their becoming territories or States of the Union, the presumption that the common law prevails is not indulged, and in such a case, in the absence of anything to the contrary being shown, the court will presume that the foreign law is the same as that which prevails here. The State of Kansas, although territorially a part of the Louisiana purchase, is not one of the States in which the civil law ever prevailed, and the principle sought to be interposed is, therefore, not applicable.
It is a universal rule, governing courts of chancery, in the absence of a modifying statute, that a trust results in favor of a purchaser who advances the purchase-money in the character of a purchaser and takes the title to real estate in the name of a third person, unless the relationship of the parties was such as to give rise to the presumption that the purchase was intended as a gift or advancement. 1 Lewin Trusts, 163. Accordingly, Lord Chief Baron Eyre, in Dyer v. Dyer, 2 Cox Ch. 91, declared that Our statute has so modified the common law rule, that "When a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former," except as against the creditors of the person paying the consideration, or in case the alienee shall have taken the conveyance in his own name, without the consent of the person with whose money the consideration was paid, or where it was so taken in violation of some trust, etc. Sections 2974, 2975, 2976, R. S. 1881. Upon the assumption that the common law prevails in the State of Kansas, it is clear that a trust resulted in favor of the plaintiff, when her husband took the title to the Kansas land in his own name, she having paid the purchase-money, as purchaser. This is so according to the rule of the common law, whether the title was taken in the name of the husband with or without the consent of his wife.
Where a married woman pays the purchase-price of real estate and takes the title in the name of her husband, the common law raises no presumption that it was so taken as a gift or advancement to the latter. The presumption in such a case is, that the husband took the title as agent or trustee, and that he was to hold the land in trust for his wife, unless such presumption is rebutted by lapse of time, or by the facts and circumstances surrounding the transaction. Armacost v. Lindley, 116 Ind. 295, 19 N.E. 138; Hileman v. Hileman, 85 Ind. 1; Wales v. Newbould, 9 Mich. 45; Mellinger v. Bausman, 45 Pa. 522; McNally v. Weld, 30 Minn. 209, 14 N.W. 895.
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