Gaylord v. City of La Fayette

• Decision Date: 18 September 1888
• Citation: 115 Ind. 423,17 N.E. 899
• Parties: Gaylord et al. v. City of La Fayette et al.
• Court: Indiana Supreme Court

115 Ind. 423

17 N.E. 899

Gaylord et al.

v.City of La Fayette et al.

Supreme Court of Indiana.

September 18, 1888.

Appeal from circuit court, Tippecanoe county; John M. Larve, Judge.B. W. Langdon and Coffroth & Stuart, for appellants. Robert Jones, Chase & Chase, and W. C. L. Taylor, for appellees.

Mitchell, J.

Thomas F. and Harry c. Gaylord commenced this action in the month of February, 1882, with the purpose of establishing their right and quieting their title in and to certain real estate in the city of La Fayette. The undisputed facts, so far as a decision of the merits of the controversy require them to be stated, are as follows: On the 9th day of April, 1859, Nathan B. Dodge, grandfather of the appellants, resided in the city of La Fayette, at which place he afterwards died, in May, 1866. He was twice married. His second wife, by whom he had one child, survived him. Of his first marriage there were four children, viz.: Joshua Cleves Dodge, who, at the date above mentioned, resided in the city of Boston; Mrs. Emeline F. Granger; Mrs. Martha A. Gaylord, a widow, and mother of the appellants; and Mrs. Mary J. Chad wick, with dependent children. The son and daughter first named were in affluent circumstances, while both the daughters last named were comparatively poor On the date above mentioned Nathan B. Dodge purchased two tracts of land, in the city of La Fayette, from Albert S. White, for $12,600, which amount he afterwards fully paid. One of the tracts, valued at $8,500, was conveyed by White, by the direction of Nathan B. Dodge, immediately to Joshua Cleves Dodge. On the same day the conveyance was made by White, Nathan B. Dodge wrote a letter to his son, Joshua Cleves, of which the following is a copy: “La Fayette, Indiana, April 9, 1859. Cleves: I have this day purchased the A. S. White property. I pay $12,600 for it. I have 14 rods on Columbia street, and 12 rods on Missouri street, and 81 feet fronting on South street. I gave him the house that I live in at $3,200, a lot that I got in payment for my farm at $800, and $6,000 cash in hand; $1,000 on 1st of July next; $1,000 in six months; $600 one year from to-day. I have had a deed made out to you for the property where he lives; that is, the cottage and large house, 145 feet on Columbia street, and 12 rods on Missouri street. I shall build myself a house for my own residence on 81 feet and 12 rods back, on the east side of the lot, and a house for rent on South, 81 feet front. The property is now renting for $500 per year. The property that is deeded to you is worth about $8,500. That I shall want a deed from you in a few days to Mrs. Gaylord's children and Mrs. Chadwick's. I shall send on a deed for you to sign in a few days. The property is now in your name, and I wish you would tell your wife how it is situated now, that she would know all about it if you should be taken away; and if I should, I want that property that is deeded to you to be made over to the four children, the rents and profits to be paid them yearly for their support, and when they become 21 years of age, to have the property in fee-simple to dispose of as they please. * * * I think I have bought the White property very low. It cost him $16,000, and as property is all the time advancing it must bring that again; but I will not sell it, as it is a good location, and I will let the children have it. Will write you again in a few days. Yours truly. N. B. Dodge.” So much of the reply to the above letter as is pertinent reads as follows: “Boston, April 18, 1859. Father: Yours of the 9th was duly received, and contents noted. I have told Fanny all about the arrangements you proposed making in case I should be taken away, and she would follow the injunctions of your letter to me in that event. * * * Yours truly, J. C. Dodge.” The title to the land referred to in the foregoing correspondence remained as above until the 16th day of November, 1860, when Joshua C. Dodge and wife, at the request of Nathan B., conveyed part of the tract embraced by the deed from White to Joshua C. to Nathan B. Dodge for life, remainder over to Martha A. Gaylord, during her life, with remainder over in fee to her two sons, Thomas F and Harry C. Gaylord. Later on a similar conveyance was made of the residue of the tract, the title to which remained in Joshua C., with like remainder over to Mrs. Chadwick and her children. Nathan B. Dodge took possession of the property immediately after the purchase from White, and continued to occupy it until his death, which, as has been seen, occurred in May, 1866, having meanwhile made lasting improvements on the Gaylord tract of the estimated value of $4,500, and on the Chadwick tract of the value of $6,000. Upon the death of the father, the daughters took possession under the deeds to them respectively. While so in possession of the parcel conveyed to them as above, Mrs. Gaylord and her two sons, both being at the time over 22 years of age, executed two separate mortgages, covering the Gaylord tract, to secure debts of $7,000 and $2,000, respectively, due to Stephen Jones. These debts, which were evidenced by the joint promissory notes of the mother and sons, were subsequently assigned to John S. Williams, who instituted a foreclosure suit in the superior court of Tippecanoe county in 1876, making Mrs. Gaylord and the appellants Thomas F. and Harry C. Gaylord parties thereto. On the 25th day of September, 1876, there was found to be due on the several mortgage debts the sum of $10,304, for which amount a personal judgment was rendered against the mortgagors; which judgment was followed by a decree of foreclosure, and an order directing the sale of the right, title, and interest of the mortgagors in and to the property conveyed. The property was sold in pursuance of the decree, John S. Williams becoming the purchaser. It is through this decree and sale that the city of La Fayette claims title to what may be called the “Gaylord Tract.” The Chadwick tract is not directly involved in this litigation. Upon the facts thus summarized two questions of a controlling character are presented, upon the determination of which the judgment of the court below should either be affirmed or reversed: First. Was the deed from White to Joshua Cleves Dodge, and the correspondence between the latter and his father, effectual as the declaration of a perfectly created trust, so as to vest the beneficial interest in the land conveyed at once, and irrevocably, in the Gaylord and Chadwick children? Second. If a trust was thereby at once perfectly created and effectually declared, was the interest which the Gaylord children took in the land in controversy extinguished by the foreclosure proceedings to which they were made parties? The appellants seek to maintain the affirmation of the first and the negation of the last of the above propositions.

Pertinent to the first point it may be said, if the transaction created a trust, since the subject-matter thereof was land, it was essential to its validity that it should have been created or declared in conformity with section 2969, Rev. St. 1881, which provides that “no trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto, lawfully authorized in writing.” While a literal interpretation of the above statute might seem to require that the deed or instrument in which the estate or property to be affected by the trust is granted or conveyed should also contain the declaration of the trusts upon which the property is to be held, it is nevertheless settled that the statute will be satisfied if the trust has been manifested, or can be proved by any writing under the hand of the party to be charged, or of the party who is by law enabled to declare the same, provided the fiduciary relation,together with the nature, terms, and conditions thereof, are set forth in the writing with sufficient certainty so as to enable a court to carry it into execution in the manner intended by the donor or creator of the trust. 1 Perry, Trusts, §§ 82, 83; 2 Pom. Eq. Jur. §§ 1006, 1007, and notes. There is hence no well-founded objection to the alleged trust in the present case growing out of the fact that it was manifested by the letters which appear in the record, instead of being declared in the deed from White to Joshua C. Dodge. Forster v. Hale, 3 Ves. 696; Brown v. Combs, 29 N J. Law, 39; Raybold v. Raybold, 20 Pa. St. 308; Kingsbury v. Burnside, 58 Ill. 329;Pinnock v. Clough, 16 Vt. 508;Steere v. Steere, 5 Johns. Ch. 1;Hollinshead v. Allen, 17 Pa. St. 275. The trust in the present case, if one was perfectly created, was intended as a provision for the grandchildren of the settlor, who were natural objects of his bounty. It was therefore upon such a good or meritorious consideration as to become irrevocable and enforceable in case it was created or declared in such a manner as to fall...