Culver v. Graham

Decision Date22 January 1889
Citation21 P. 694,3 Wyo. 211
PartiesCULVER et al. v. GRAHAM et ux
CourtWyoming Supreme Court

Appeal from district court.

Bill to set aside a deed, and to obtain possession of real property by James M. Culver and Mowrey A. Arnold against Jeremiah Graham and Hannah Graham, his wife. Decree for defendants and complainants appeal. Reversed, and decree directed.

Judgment reversed and cause remanded.

C. N Potter and Willis Van Devanter, for appellants.

Hugo Donzelmann and Allen Miller, for appellees.

SAUFLEY J.

OPINION

SAUFLEY, J.

The defendant and appellee Jeremiah Graham, on the 24th day of October, 1883, held the legal title to a house and lot in the city of Cheyenne, which he had acquired about nine years previously by a deed of conveyance from Posey Wilson. In the year 1877, while thus holding the legal title, he became indebted upon an accepted bill of exchange to Appelgate & Sons, of Louisville, Ky., and by promissory note to Jacob P. Weybrecht. The holders of these negotiable instruments subsequently, but at a date which is not disclosed by the record, indorsed and delivered them to the appellants, who on the 10th day of January, 1884, instituted this action in the district court for the recovery of the amount due them, and contemporaneously therewith obtained an attachment, which was levied upon the property mentioned, and which is now the subject of this controversy. In this action personal judgment was rendered against Graham, the ground of attachment sustained, and the sheriff was directed to sell the property for the satisfaction of the judgment and costs. Acting under this judgment, and by virtue of a special execution, the sheriff, proceeding regularly, sold the property, and appellants, being the accepted bidders, became the purchasers. The sale was confirmed by the court, a deed was ordered and made, conveying all the right and interest which Graham had in the property at the date of the attachment levy. When the property was offered by the sheriff at public vendue, Hannah Graham, wife of Jeremiah, appeared, and forbade the sale, claiming for herself the sole and exclusive ownership of the property. Being jointly with her husband in possession, she refused to surrender to the purchasers, who it appears did not apply on the confirmation of their deed, as they might have done, for the writ of habere facias or other appropriate execution to put them into the possession of the property which the court by its officer had sold to them, but sought their remedy by a bill in chancery, assailing the alleged title and ownership of the wife, and praying that she and her husband be adjudged to surrender possession to them.

The appellants claiming the legal estate and the right of entry, it would seem that for them the action of ejectment was the more appropriate remedy; but since the appellees appeared in the court below, and without objection to the form of procedure filed their answer controverting the material allegations of the bill, inquiry upon this feature becomes unimportant. It is alleged in the bill that at the time of the acceptance by Jeremiah of the bill of exchange, and at the time of the execution by him of the promissory note, he was the owner and in the possession of the house and lot; that on the 24th day of October, 1883, the debt still being unpaid, he and his wife, Hannah, without consideration, and with the fraudulent intent to hinder and defraud the husband's creditors, conveyed the property to A. S. Emery, and on the following day Emery, with intent to aid in the execution of the fraudulent design, conveyed the property to the wife. The Grahams filed their joint answer, denying the fraud, averring the bona fides of the transaction, and, in addition, in a rather vague way, affirmatively declaring the sole and exclusive ownership by the wife of the property, not only at the date of the attachment levy, but for a long time prior thereto. The testimony upon the issue they framed took a wide range. Much of it was conflicting, a part of it irrelevant, and a portion incredible from its intrinsic improbability. The pleadings, strictly construed, would leave but one issue for determination, --the question of fraudulent intent in the conveyances to and from Emery; but inasmuch as the cause appears to have been prepared with reference to the rather indefinite allegation by the wife of exclusive ownership in herself, even prior to the conveyance to her by Emery, this question will be considered equally with the other.

There can be no pretense that the legal title was ever vested in the wife prior to the 25th day of October, 1883, --the date of the Emery deed. The utmost right that can be claimed for her antecedently arises out of the doctrine of resulting trusts. It is claimed by both herself and husband that she furnished the money to pay for the property in contest when it was bought from Wilson about the year 1874, and that the deed, through their ignorance of the law, was made to the husband. It is an accepted rule of equity jurisprudence that when property is purchased in the name of one party, and the purchase price is actually paid at the time by another, a trust results in favor of the latter. It is equally the rule that the payment of the money by the cestui que trust must be clearly proven, and must have been made at the time of the purchase or a part of the original transaction of purchase. The easy possibility of the successful perpetration of a fraud, to the injury of creditors when equitable interests are claimed by reason of a resulting trust, has led the courts of equity jurisdiction to establish, by a complete unanimity of decision, the rule that the evidence of the payment by the beneficiary "must be clear, strong, unequivocal, unmistakable, and beyond doubt." 2 Pom. Eq. Jur. § 1040. Indeed, several states of the Union have been so strongly impressed by the impolicy of this particular form of resulting trusts that they have by legislation abolished it. Indiana, Kansas, Kentucky, Minnesota, Michigan, New York, and Wisconsin have all concurred in similar forms of legislation, of which the Kentucky statute seems to be a type: "When a deed shall be made to one person and the consideration shall be paid by another, no use or trust shall result in favor of the latter; but this shall not extend to any case in which the grantee shall have taken a deed in his own name without the consent of the person paying the consideration, or where the grantee, in violation of some trust, shall have purchased the lands deeded with the effects of another person." Gen. St. c. 63, art. 1, § 19. The trust here abolished is that which results or leaps back to the cestui que trust, leaving the trust, by construction, to arise out of either the actual or constructive fraud perpetrated by the grantee. This legislation is referred to, not because of any supposition that it in any wise governs the rights of the parties to this controversy, but only to show the trend of modern legislative opinion upon the doctrine which is here invoked.

Guided, therefore, by those general principles which have become fundamental in our system of equity, it becomes necessary to closely examine the testimony by which the appellees undertake to establish the trust in favor of the wife. As shown by the evidence, they are both negroes. While this fact neither enlarges nor diminishes their rights under the law, it is not improper that a court of conscience should consider the circumstances of their birth, their meager opportunities for education, their unfavorable environment during a portion of their lives, the ungracious dispensations to which they were long subjected, and to soften, in their favor, as far as may be done without a violation of duty, the rigor of the general rules of law. To extend, however, this spirit of kindly consideration to the point where sentiment shall take the place of law would be not only wrong in itself, but might, as a precedent, prove disastrous in the end to the race of which appellees are representatives.

It seems to be a capital point in the testimony of each of them to establish the character of the wife as a female of unusual thrift, industry, business tact, and acquisitiveness, who, during the entire period of their marital life, has been the financial guide and manager of the majority of their business adventures, while it is agreed by them, with the most interesting, though rather suspicious, harmony, that the husband, by exercising a poor judgment, not only lost a very considerable personal estate of which the wife was possessed at the time of their marriage, but that his subsequent enterprises were fruitless of good results, and that for years he has been handicapped by general thriftlessness, a want of shrewdness, enterprise, and sagacity. Judged, however, in the light of what the husband is proven to have accomplished, the delineation is overdrawn. He himself, in the account given of his life, proves that in the year 1853, and when quite a lad, living with his master near Nashville, Tenn., he had the nerve to make a break for his freedom, the sagacity to thread his way through Tennessee, Kentucky, and the Northern states, evading the officers of the law, and finally, in spite of the fugitive slave law, to reach Canada in safety. There he remained until 1858; then moved to the state of Michigan, thence to Pennsylvania, where in 1862 he married his wife. This feature of personal history is utterly inconsistent with the character for shiftlessness and lack of enterprise he is so willing to ascribe to himself, and as to which, at least outside the domestic circle, he is in such happy accord with his wife, though differing widely on other matters. The testimony is that, when he married, his...

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