Crawford v. Moore

• Decision Date: 01 September 1886
• Citation: 28 F. 824
• Parties: CRAWFORD and others, by their Next Friend, v. MOORE and another. [1]
• Court: U.S. District Court — Western District of Michigan

28 F. 824

CRAWFORD and others, by their Next Friend, v. MOORE and another. ^[1]

United States Circuit Court, W.D. Michigan, Northern Division.

September, 1886

C. B Grant and T. L. Chadbourne, for complainants.

Ball &amp Hanscom, for defendants.

SAGE J.

The bill is filed to compel the conveyance to the complainants the widow and minor children of John Monroe, deceased, of the one undivided sixth part of 160 acres of mineral lands situate in Ontonagon county, Michigan, and located and entered by the respondent Nathaniel D. Moore, upon whose application the patent was issued from the state land-office at Lansing, in January, 1875, to James H. McDonald and John McKay, who furnished the purchase money under an arrangement or understanding that Moore was to have an undivided interest in consideration of his services in exploring the land, and discovering upon it indications of iron ore. This arrangement was altogether oral. One witness testifies that it was reduced to writing, and signed, but that is denied by the parties to it, and his testimony does not contain any definite statement of the contents of the writing. The arrangement was so loose and indefinite in its terms that aside from any objection resting upon the statute of frauds, it would not have warranted a decree for specific performance. Whether Moore was to have one-third or one-fourth interest in the lands does not clearly appear. There seems to have been nothing more than a mutual understanding that McDonald and McKay would do 'what was right;' having reference to a recognized custom to give to 'explorers' one-fourth, one-third, or, in some cases, one-half, interest, in the lands located by them.

On the eighteenth day of October, 1875, Moore, who was then unmarried, executed and delivered to John Monroe a deed in fee-simple, with covenants of seizin, against incumbrances, and of general warranty, for an undivided one-sixth interest in said lands, and the deed was duly recorded December 20, 1875 The consideration for this deed was $250, of which Monroe paid $10 in cash, and for the residue gave his promissory note to Moore, payable one year after its date. At the time of the execution of this deed Moore told Monroe that he had not received his deed from McDonald and McKay, but expected to receive it, and that it was probably made out then.

In 1875 or 1876, at what precise date does not appear, a deed from McDonald and McKay and their wives to Moore, for an undivided one-third interest in the land, was drawn, signed by McKay, and left by him with a Mr. Viele, under instructions not to deliver it to Moore without orders from him, (McKay.) This deed was not signed by Mrs. McKay, and it is not clear that it was executed by McDonald and wife, although the fair inference is that it was; but McDonald directed McKay not to deliver the deed to Moore until he heard further from him. No further directions were ever given. Moore was indebted to McDonald, whose intention it was to keep back the deed, until he was paid. He had no knowledge of the drawing of the deed, nor of its partial execution. It was never delivered to him, and the testimony is that it has been lost, or, rather, that Viele (who is not a witness) stated that he had lost it. In December, 1880, McDonald and McKay conveyed an undivided one-third interest in the land to the respondent Helen Moore, wife of the respondent Nathaniel D. Moore. This conveyance was made at Moore's request, in discharge of the original arrangement or understanding; no consideration, excepting one dollar, passing at the time. Mrs. Moore was not present at the time of the execution of this deed, but she had been informed by her husband that it was to be made to her, and had full notice of his deed to Monroe. Moore did not have the deed made to himself, because of his deed to Monroe, who died intestate, in Colorado, in August, 1878; and because he had learned that that deed had been recorded, and, as he himself testifies, he expected that Mrs. Monroe would make trouble.

The complainants aver in the bill that McDonald and McKay held the legal title to the land,-- one undivided third thereof in trust for Moore under an arrangement made by and between them and Moore at or before the time when they acquired their title; and that, in order to execute said trust, and vest the title to his third in Moore, they, with their wives, at some time between January, 1875, and March, 1881, executed and delivered to him, at his request, a deed of conveyance therefor; that said deed was suppressed or destroyed by Moore and wife, who also procured the deed to Mrs. Moore for the purpose of cutting out complainants' title to said one undivided sixth of said land. The prayer of the bill is that Mrs. Moore be compelled to convey to them the one undivided sixth of said lands, in the proportion to which they are entitled as heirs of Monroe, and for such other and further relief as may seem meet and proper.

By amendment the complainants allege and charge that said conveyance by McDonald and McKay and their wives to Mrs. Moore was made at the instigation of Moore, with intent and purpose to defraud complainants out of the estate conveyed by Moore to Monroe, by lodging the apparent legal title in her, but for his benefit or use. They charge that, in equity and good conscience, the transaction is as if the conveyance had been made direct to Moore, and that he and his wife are estopped by his conveyance to Monroe from asserting or claiming any title to said one undivided sixth, the title to which is in them by virtue of the premises. They further allege that Moore was unmarried when he made his conveyance to Monroe, and that Mrs. Moore took the conveyance to her, for which she paid no consideration, with full notice and knowledge of complainants' rights under the deed from Moore to Monroe.

Counsel for respondents insist that the complainants have failed to make out the case stated in the bill, which they contend rests upon the averments of a trust in McDonald and McKay in favor of Moore; its execution by making and delivering to him a deed, afterwards suppressed or destroyed, whereby, and by reason of Moore's deed to Monroe, the legal title to an undivided one-sixth interest passed to the complainants; and that, inasmuch as the proof negatives these averments, the bill must be dismissed for want of averments to support the case attempted to be made from the proofs at the hearings.

The rule that the proof and the pleading must correspond, is a familiar one, but it is to be applied equitably, and not rigidly; especially when it is appealed to on behalf of a party having all the time of the progress of the cause the facts in full possession, and therefore not misled by a pleading which, although inaccurate or mistaken as to some of the details, yet contains averments sufficient to support a claim for the relief prayed for. Texas v. Hardenberg, 10 Wall. 68, cited by defendant's counsel, is in point. There it was asserted on behalf of the defendant that, upon the bill, which was for an injunction to restrain the defendant from asking payment of certain bonds of the United States belonging to the complainant, but in the possession of the defendant, he could in no event be held to account for the proceeds of the bonds; the prayer of the bill being only for relief by injunction against receiving payment of the bonds or coupons, and by decree for delivery of them, specifically, to the complainant. Chief Justice CHASE, in his opinion, said it was plain enough that the principal object of the bill was to prevent the collection of the bonds by the defendants, and to compel the surrender of them to the state of Texas; but that there were averments and interrogatories looking to the proceeds as well as to the bonds themselves. Admitting that the allegations and interrogatories did not assert the right of the complainant to the proceeds with absolute directness and distinctness, he adds: 'The bill might have been better drawn; but we think it would savor of extreme technicality to refuse to see in the bill enough, in relation to the proceeds of the bonds, to warrant relief in this respect, under the general prayer. ' So, in this case, the main object of the bill is to enforce the alleged trust by compelling a conveyance from the fraudulent grantee of the trustees; put there is enough in the bill and the amendment to warrant relief, without reference to the trust, if the averments are sustained by the evidence.

It is next urged on behalf of the defendants that Moore's deed to Monroe did not vest in him any equitable interest in the land for the following reasons:

1. Because of the failure to prove a written agreement between Moore and McDonald and McKay for Moore's interest, and therefore Moore had no equity which he could convey to Monroe. Section 6179, How. St. Mich., provides that no trust or power over or concerning lands, or in any manner relating thereto, shall be 'created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by some person thereunto by him lawfully authorized by writing. ' This proposition of law is undoubtedly correct.

2. Because section 556 of Howell's Statutes provides that no trusts shall result from the payment of the consideration by one person for a grant made to another. But independent of the statute, and under the general doctrine of resulting trusts, no trust resulted in favor of Moore from the fact of his purchasing the land, and taking the title in the name of McDonald and McKay. Aside from the consideration suggested that he waived his equity, if he had any, by himself causing...