Henry B. Thorp Et. Al. v. Mccullum

• Decision Date: 31 December 1844
• Citation: 6 Ill. 614,1 Gilman 614,1844 WL 4118
• Parties: HENRY B. THORP et. al.v.WILLIAM MCCULLUM et al.
• Court: Illinois Supreme Court

1 Gilman 614

6 Ill. 614

1844 WL 4118 (Ill.)

HENRY B. THORP et. al.

v.WILLIAM MCCULLUM et al.

Supreme Court of Illinois.

December Term, 1844.

OPINION TEXT STARTS HERE

BILL IN CHANCERY for an injunction and specific relief, in the Madison circuit court, filed by the plaintiffs in error against the defendants in error. The case was heard before the Hon. JAMES SHIELDS, at the October term 1844, upon a demurrer to the bill and on a motion to dissolve the injunction. The demurrer was sustained, and the injunction dissolved.

W. MARTIN, for the plaintiffs in error:

I. The complainants are entitled to relief on the principle, that courts of chancery grant relief when the bill shows an equity in the plaintiffs, though by the rules of the common law, they can not avail themselves of that equity; when to grant the relief is to promote equity and good conscience, and to refuse said relief great injustice will be done. In such a case, relief ought to be granted on principle, in the absence of authority.

II. The land claimed by the plaintiffs in error was purchased in part with the money of Sarah Chilton, from whom defendants claim; to the extent of her interest at least her grantees can hold. That designating said land as belonging to McCullum, as between her grantees and McCullum's heirs, can not defeat her equity therein; that if the administrator's sale to her of the land was void, still, as tenant in dower, she had a legal estate for life in one third of said land, that will enure to the benefit of her grantees.

II. That the heirs of McCullum can not defeat the title derived through Mrs. McCullum, in an action of ejectment, the sale not being void, but only voidable. This must be done in chancery, wherein all just allowances are to be made for the purchase money, and the value of the improvements added by the purchaser. Haddix's Heirs v. Haddix's Admin'rs, 5 Littell 203, 204; Anderson v. Fox, 2 Hen. & Mun. 261, 262; McKay, Exec'r, v. Young, 4 do. 430; Doe, etc. v. Harvey, 5 Blackf. 487; Campbell v. Walker, 5 Vesey 678; Whichcote v. Lawrence, 3 do. 750; Ex parte Hughes, 6 do. 622; Davoue v. Fanning, 2 Johns. Ch. R. 252.

IV. That a court of chancery will aid the defective execution of a power, as prayed for in the bill, when a valuable consideration has passed. Barr v. Hatch, 1 Ohio Cond. R. 662; 2 Mun. 129.

V. That the court of chancery having cognizance of the cause, to enjoin the parties, defendants in error, from pursuing an inequitable claim, have jurisdiction for all purposes, and may quiet the title of the parties by doing complete justice between them, on issues formed on answers to a cross bill.

L. TRUMBULL, and J. GILLESPIE, for the defendants in error: The bill is defective and contradictory. It seeks to make valid and effectual the sale of the land in question, as part of the real estate of which John F. McCullum died seized, and at the same time shows, that the land never belonged to the said McCullum, but was entered and paid for after his death by his widow, the said Sarah, out of her own funds, except as to one-fourth which was taken from the assets of said estate. If these facts be true, the land in question could not be sold, at all events not more than one-fourth interest thereof for the payment of McCullum's debts, and a court of equity will not lend its aid to enforce a sale that ought never to have been made.

The administrator and administratrix of McCullum having applied to the court for a sale of the land in question, as part of the real estate of said McCullum, for the payment of debts, are estopped by their application from setting up that said land was entered and paid for by the said Sarah, administratrix, after her husband's death, and out of her own funds.

The bill shows that one Josiah Wallace entered the land in question and paid eighty dollars on the same under the credit system, and does not show that he has ever parted with his interest. Wallace should, therefore, have been made a party.

All persons legally or beneficially interested in the subject matter of a suit should be made parties. Cooper's Eq. Pl. 34.

In all cases where a purchase has been made by a trustee on his own account of the estate of his cestui que trust, although at public auction, it is the option of the cestui que trust to set aside the sale whether bona fide or not. 1 Story's Eq. Jur. 308, 309, 318; Story on Agency 202; Davoue v. Fanning, 2 Johns. Ch. R. 252.

The purchase by trustees, etc. is not permitted in any case, however honest the circumstances. Ex parte James, 8 Ves. 345.

The doctrine applies to executors and administrators. 1 Story's Eq. Jur. 310; Conway v. Green, 1 Har. & Johns 151; Grider v. Payne, 9 Dana 190; Lee v. Fox, 6 Dana 178.

“The same person can not be both buyer and seller.” Saltmarsh v. Beene, 4 Porter 283; Pierce v. Benjamin, 14 Pick. 359.

There is a distinction, between suits against a trustee to set aside a purchase, or obtain a decree for a specific performance. It seems, in the latter case, the rule applies without qualification that a trustee can never become a purchaser. Monro v. Allaire, 2 Caines' Cases 183.

The defect sought to be cured in this case is not only the omission to recite the order of the court in the deed, but if the order were recited, the deed would still be defective, not being executed by both the administrators.

In the case of Sinclair v. Jackson, 8 Cowen 583, it is decided, that the power of trustees, whether expressed or implied, must be strictly executed; and that the principle applies equally to trusts or powers coupled with an interest, and when the trust or power will survive, as to mere naked authority; and therefore a lease not having been executed, by all the trustees living, was held to be absolutely void, and being absolutely void, that it could not be confirmed. Green v. Miller, 6 Johns. 39; Bannister v. Reed, decided at the present term.

The deed from Whiteside, administrator, to Sarah, the administratrix, is defective and void, for not setting out the order of court as required by statute. R. L. 645; Smith v. Hileman, 1 Scam. 325. And the deed being void, the remedial power of a court of equity does not extend so far as to make it valid; “for otherwise equity would, in effect, defeat the very policy of legislative enactment.” 1 Story's Eq. Jur. 187 § 175; 1 Fonblanque's Eq. top paging 54, note 38.

“Where there is a defect of substance in the execution of a power, such a want of all the proper parties in the act, there equity will not aid the defect.” 1 Story's Eq. Jur. 187 § 175.

Although the complainants may be entitled to recover the money back which they have paid for the land, still by the agreement of the parties, the decree in this case is to be affirmed, unless the sale can be confirmed; and the complainants are to be left to recover their money back in another suit.

G. P. KOERNER, for the plaintiffs in error: Two views will be presented.

1. The court will in equity consider the trust of Whiteside and Sarah, though defectively executed (if so considered), as well executed.

2. If the deed for omitting to recite the order of court, or any other reason, should be considered void, even in equity, the court can decree that Whiteside and Sarah execute, nunc pro tunc, a deed in accordance with the facts, and reciting the said order. As to them and Chilton, who might join pro forma, the bill is good under this view of the case. This deed would have to be made from Whiteside and Sarah to Sarah, in her individual capacity.

It is the particular jurisdiction of a court of equity, to supply defects in the execution of powers.

Equity will supply a defective execution of a power. Sinclair v. Jackson, 8 Cowen 543.

Power partakes of the nature and qualities of trusts, so that if not executed by the party, this court will, to a certain extent, execute it. Brown v. Higgs, 8 Vesey 570.

As far as circumstances will permit, a court of equity will supply any defects in the execution of trusts or powers. 1 Fonblanque's Eq. 56, note^*.

It will be contended on the other side, that the deed is absolutely void, because,

1. The order is not set out;

2. Made by but one administrator;

3. Made to trustee; and that this amounts to a non-execution of a power.

The decision in Scammon's Reports relied on, does not show that such a deed would be considered void in equity.

It may well be doubted, whether under an order directing “the land to be sold according to law,” both administrators must sell or join in the deed. But, if necessary, deeds executed by one only, have been held valid even in law. Doe v. Harvey, 5 Blackf. 487.

At most it would only be a defective execution of the trust. 1 Fonblanque's Eq. 54, 56, top paging, note^*.

The purchase of Sarah, being a trustee, is not ipso facto void, but only voidable by the acts of the party, and that not in all cases. Harrington v. Brown, 5 Pick. 519; Jenison v. Hopgood, 7 do. 1; Litchfield v. Cudworth, 15 do. 23.

As to the doctrine that such sales at best are only voidable by the acts of cestui que trust and in chancery, there is no diversity of opinion. I cite Whichcote v. Lawrence, 3 Ves. 740; Campbell v. Walker, 5 do. 678; Chambers v. Goldwin, 9 do. 256, 261; 2 Johns. Ch. R. 256; Brackenridge v. Holland, 2 Blackf. 377; 5 Johns. 43; Munro v. Allaire, 2 Caines' Cases 183; Wilson v. Troup, 2 Cowen 238; Hawley v. Cramer, 4 Cowen 718.

In 2 Johns. Ch. R. 256, the rule is laid down very clearly and simply, that the trustee may purchase, but he buys sub modo, that is, subject to the equity of the cestui que trust.

Executors to whom a power is given to sell, may at law, sell to a trustee for themselves, or may sell to one of them. 2 Williams on Executors 689; 1 Sugden on Powers 141.

As far, then, as the court can now examine into the matter, the deed to Sarah on that account is a good one.

To show that the execution of this deed is at best but a defective one, and can not be regarded as an utter nullity, I lay down the position, that an...