Dewhurst v. Wright

• Decision Date: 10 March 1892
• Parties: DEWHURST et al. v. WRIGHT.
• Court: Florida Supreme Court

10 So. 682

29 Fla. 223

DEWHURST et al. v. WRIGHT.

Florida Supreme Court

March 10, 1892

Appeal from circuit court, Lake county: JOHN D. BROOME, Judge.

Bill by Fannie B. Dewhurst and others against William Wright to recover land. From an order dismissing the bill on demurrer plaintiffs appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where one without title has conveyed land in his own right with covenants warranting the title, and afterwards the title comes to him in the capacity of a trustee for a different person, the newly-acquired title does not inure to the former grantor of such covenantor, nor pass to him. The estoppel arises only where the covenantor takes the new title in the same right in which he had previously conveyed it.

2. Where a person makes a lawful purchase of land for himself with his own money, taking the title in the name of another person, a trust results in favor of the purchaser, and the person in whose name the title is taken becomes a trustee of the title in favor of the purchaser; but such title does not either inure to the benefit of or pass to a third person, to whom the person in whose name the title was taken had previously conveyed the land by warranty deed.

3. A court of equity will not declare or enforce a resulting trust contrary to the policy of the law as defined in a public statute, but will leave suitors asking its aid where it finds them, if it appears that they are seeking to evade the policy of the law.

4. The provisions of the second section of the act of congress of June 15, 1880, entitled 'An act relating to public lands of the United States,' that 'persons who have heretofore under any of the homestead laws entered lands properly subject to such entry, or persons to whom the right of those having so entered for homesteads may have been attempted to be transferred by bona fide instrument in writing,' may make cash entry of the land, do not include a person to whom such right of the entryman has been transferred subsequent to such statute; and where such a transferee has entered the land with his own money, and for his own benefit, but in the name of the entryman, it not appearing that he dealt with the government officers as such transferee, a court of equity will not declare or enforce a resulting trust in favor of such transferee or his grantee against a third person in possession of the land, and to whom the original entryman had previously to such transfer, but subsequent to the statute, executed a conveyance of the land.

COUNSEL

W. W. Dewhurst, for appellants.

J. B Gaines, for appellee.

OPINION

The other facts fully appear in the following statement by RANEY C.J.:

1. The facts shown and allegations and prayer made by the bill are as follows: On June 1, 1870, the appellee's co-defendant, Polydore Dean, entered the land in question, 160 acres, now in Lake county, but then in Sumter, as a homestead, under the laws of the United States, in the Tallahassee land-office, the entry being No. 4,667 of the series of June, 1870. In December, 1878, final proof was made under section 2291 of the Revised Statutes, and the final certificate, No. 4,261, Gainesville office, was issued on December 6, 1883. Intervening the final proof and the issue of the final certificate, Dean conveyed the land to Wright on August 31, 1883, by deed, with full covenant of general warranty. In August, 1884, Dean was cited to appear at the Gainesville land-office on the 25th day of the following November, to answer a charge of fraud in the proof of his continuous residence on the land. Dewhurst, the co-appellant, appeared, as attorney for Dean, in compliance with the citation, and found that the United States officials were in possession of proof that Dean had not complied with the law as to residence, he having lived on the land for not longer than two years, although he had sworn in his affidavit of August 17, 1878, in making final proof, that he had continuously resided thereon for six years. Dewhurst prepared for Dean an appeal to the commissioner of the general land-office, praying that Dean be allowed to make new proof of his homestead entry, and obtain titles to the land embraced in the same. A letter from the receiver of the land-office at Gainesville, dated December 6, 1884, addressed to Dewhurst, 'attorney for Polydore Dean, 'St. Augustine, Fla., states that the petition had been forwarded that day to the general land-office for consideration. This petition was refused by the commissioner, and the land-officers at Gainesville were notified of such refusal by a letter of December 29, 1884, and they on January 13, 1885, notified Dewhurst, as attorney for Dean, of such refusal, and, with a view to the cancellation of the entry, cited Dean to appear on the 23d day of February, and furnish proof concerning the alleged abandonment of his homestead entry and fraudulent proof.

2. On December 2, 1884, Dean conveyed the land in question to Dewhurst, the consideration stated in the deed being $200, and the deed being recorded in the public records of Sumter county on the 8th day of the same month. This deed is a formal conveyance of the land and of all the estate, right, title, and interest, 'both vested and which may hereafter accrue, property, possession, claim, and demand whatsoever, as well in law as in equity,' of the said Dean, and has full covenants of seisin, and of power to sell and convey, and of general warranty. On the last-named day Dewhurst conveyed the land to one Bradley, of Pittsburg, Pa., the consideration named being $960, and it having a covenant of general warranty.

3. The bill also alleges that Dewhurst, finding that Dean had no defense to the charges of fraud, and that the proofs of the same were unmistakable, and that his claim and interest were forfeited, and his homestead entry about to be canceled, obtained from the commissioner of the general land-office an admission that Dean had still the right to make a cash purchase of the land embraced in such entry; and as an evidence of such right the bill refers to a letter of September 26, 1884, to Dewhurst, from the acting commissioner, Smith, in reply to one from Dewhurst on the 16th of the same month. The acting commissioner, replying to Dewhurst's inquiry if Dean could purchase the land under the second section of the act of June 15, 1880, says there is nothing in the proceedings thus far to defeat Dean's right to purchase under that act. The bill states that Dewhurst so advised Dean, and urged him to make such purchase; that Dean was totally indifferent in the matter, and declined to purchase the land, urging his total inability to provide any, even a small sum, of the money necessary; that, finding that Dean could not obtain the means to purchase the land, and that otherwise it would be totally lost, and the United States would continue to retain the title against Dean, he, (Dewhurst,) for a valuable consideration, purchased from Dean the equitable title to the land, no other claim or title then remaining in Dean to said lands, except a right to make cash purchase thereof under the above act of June 15, 1880, and that he received from Dean the above deed of December 2, 1884; that Dean had not, at the date of such conveyance, nor at any other time, disclosed that he had executed any other and former deed, but had at all times declared that he had a full and clear title, subject only to the title of the United States; that Dean did declare to Dewhurst that by and with his consent one William Wright was 'cropping' on the land, but was there without any claim of right thereto, he having entered thereon by permission of one Fred Williams, who had entered on said lands by consent of Dean, and to whom Dean had given permission to erect a house on the land, in which house Wright was then residing; that, relying on the statement made by Dean that he had full right to sell and convey his equitable title, the legal title being still in the United States, he (Dewhurst) did with his own money purchase said legal title, as hereinafter set forth, and did 'for a valuable consideration' receive from Dean a conveyance to him of the equitable title of said Dean in and to said land, with a release of all right of dower by his wife, first having been informed over the hand and seal of the clerk of Sumter county that there was no conveyance of record in his office of or concerning such land.

4. That Dewhurst did, on January 23, 1885, with his own moneys, make payment to the United States for the legal title of said land, said payment having been made to the receiver of the United States land-office at Gainesville, Fla., as evidenced by the complainant's check of that date on Florida Savings Bank, drawn in favor of such receiver for $200; that the receiver transmitted to Dewhurst, in return for such check, his duplicate receipt, which on April 20, 1885, was transmitted to the general land-office, and thereafter, in due course of time, and according to law, the patent for said land was duly transmitted to Dewhurst, of which a copy, duly certified, will be presented on the trial of the cause.

5. That Dean, being the owner of the legal title to such land by reason of the purchase thereof by Dewhurst from the United States on January 23, 1885, having been made in the name of Dean, although for the use of Dewhurst, did, for further assurance, execute to Dewhurst, February 14, 1885, his deed of conveyance, with full covenant of seisin and general warranty for said land.

6. That on the 10th day of June, 1885, Bradley and wife conveyed the land to Mrs. Dewhurst, with covenant of warranty against all claims of all persons whomsoever.

7. That in the summer of 1886 Dewhurst learned that Wright had received from Dean a deed of...