Honore v. Hutchings
| Citation | 71 Ky. 687 |
| Parties | Honore v. Hutchings. |
| Decision Date | 27 October 1871 |
| Court | Kentucky Court of Appeals |
APPEAL FROM LOUISVILLE CHANCERY COURT.
BARRET & ROBERTS, W. P. D. BUSH, For Appellant,
21 Maine, 195, Smith v. People's Bank.
17 Ohio 358, Marshall v. Stewart.
37 Illinois, 216, Snyder v. Griswold.
36 Illinois, 339, Roberts v. Richards, & c.
14 Illinois, 428, Miller v. Thomas, & c.
15 Illinois, 519, Davis, & c. v. Hopkins.
21 Missouri, 325, Poindexter v. McCannon.
10 Harris, 171, Woods v. Wallace.
3 Watts, 196,Colwell v. Woods.
3 Atkins, 280, Lowley v. Hooper.
7 Watts, 361, Scott v. Fields.
4 Kent's Commentaries, 145.
2 Story's Equity Jurisprudence, sec. 1018.
3 Dana 252, Bright, & c. v. Wagle.
3 J. J. Marshall, 355,Edrington v. Harper.
2 J. J. Marshall, 472, Secrist v. Turner.
5 Bush 47, Martin v. Martin.
6 Dana 473, Ogden v. Grant.
5 Littell, 84,Skinner v. Miller.
7 J. J. Marshall, 217, Bishop v. Rutlege.
1 Dana, 277, Fenwick v. Macy's heirs.
9 Dana, 387, Lobban v. Garnett.
4 Monroe, 349, Wilkins's ex'rs v. Sears.
3 Dana, 170, Perkins v. Drye.
2 McMullin's Equity, 1, Walling v. Aiken.
3 W. and S. 384, Hiester v. Madera.
7 Johnson's Chancery, 40, Henry v. Clark.
7 Watts, 261, Jaques v. Weeks.
Saxton, 534, Youle v. Richards.
A. HARRIS, E. S. WORTHINGTON, I. & J. CALDWELL, J. F. & T. W. BULLITT, For Appellee,
13 Vesey, 224, Adley v. Descamp.
34 Illinois, 40, Milnor v. Willard.
16 Maine, 92, Rogers v. Saunders.
29 Illinois, 196, Grum v. Cook.
13 Illinois, 186, Stephenson v. Thompson.
13 Illinois, 221, Alexander v. Tomms.
16 Missouri, 129, 146, Brant v. Robertson.
44 Illinois, 103, Pitts v. Cable.
12 Howard, 329, Russell v. Southard.
16 Missouri, 129, Brant v. Robertson.
19 Wendell, 518, Glover v. Payne.
23 Maine, 234, Treat v. Strickland.
43 Maine, 565, Mills v. Darling.
44 Illinois, 68, Sheldon v. Harding.
13 Illinois, 576, Kemp v. Humphreys.
21 Illinois, 235, Chrisman v. Miller, & c.
22 Illinois, 655, Steele v. Biggs.
13 Illinois, 227, Perry v. McHenry.
1 Sugden on Vendors, 221, note to sec. 24.
| 1 Comyn on Contracts, 16. | 4 Kent's Com. 144. |
1 Duvall, 95, Magoffin v. Holt.
6 Wheaton, 539,Brashear v. Gratz.
1 Douglass, 527, The Michigan Bank v. Hammond.
1 Hilliard on Mortgages, 69.
7 Cranch, 218, Conway's ex'r v. Alexander.
7 Monroe, 232, Davis v. Phelps.
7 Connecticut, 143, Reading v. Weston.
1 Bland's Chan. Rep. 206, Chase's case.
1 Dev. Equity, 377, Poindexter v. McCannon.
1 Sandford's Chan. Rep. 73, Brown v. Dewey.
1 J. J. Marshall, 341, Hopkins v. Stephenson.
9 California, 538, Low v. Henry.
2 Story's Equity Jurisprudence, section 1202.
2 Gilman, 334, Andrews v. Sullivan.
1 Johnson's Chancery, 370, Benedict v. Lynch.
Newland on Contracts, 152, 153.
H. H. Honore, who was a real-estate agent in the city of Chicago, Illinois, and Eusebius Hutchings, a citizen of Louisville, Kentucky, having negotiated with one Tiernan for the purchase of an undivided moiety of a tract of sixty acres of land situated near the city of Chicago, agreed that the title to the same should be conveyed to Hutchings for the reasons and purposes set out in a paper executed and delivered by Hutchings to Honore on the 18th day of November, 1861. Said paper is in the following words:
" Mr. E. Hutchings has this 18th day of November, 1861, bought jointly with H. H. Honore the undivided half of sixty acres of land in section 13, township 39, range 13, from Mr. Tiernan for the sum of six thousand dollars, the whole of which sum the said Hutchings is to pay, and takes the title and control of the property to secure himself for said sum of six thousand dollars and ten per cent. interest that may accrue upon the same until the land is sold.
It is agreed between said parties that when said land is sold said Hutchings is to have first his six thousand dollars so advanced, and ten per cent. interest, and the profits over and above said sum are to be divided equally between said parties. The parties are to pay equally the taxes or any assessments that may be levied upon said land, and the parties propose to sell said land when a satisfactory price to said Hutchings can be obtained. This arrangement is to be continued eighteen months, when, if the property has not been sold, said Honore is to pay one half the sum so advanced, with the accrued interest, or said Hutchings is to be the sole owner of the same.
| [Signed] | E. HUTCHINGS." |
The evidence in the case conduces to show that the land was bought upon very favorable terms, and that the parties making the purchase had every reason to believe that a great speculation had been secured. It can not be doubted but that it was through the exertions and superior information of Honore that the investment, which eventually turned out even more profitable than could reasonably have been expected by either party, was made. During the first two or three years after the purchase lands in the vicinity of Chicago did not advance in value as rapidly as had been anticipated, and no sale was made within the stipulated time. Honore, who appears to have been greatly embarrassed, failed to pay one half of the purchase-price and the accrued interest thereon, as he had agreed to do, and Hutchings insists that by reason of such failure he forfeited the interest secured to him in the purchase by the writing before set out; and when Honore applied to him, some time after the expiration of the eighteen months, for an extension of time within which to make the agreed payment, he declined to accede to the proposal, and claimed that he was then the sole owner of the land.
In pursuance to the written agreement Hutchings, on the 31st day of December, 1861, caused the land to be conveyed to himself. In February, 1869, he sold it for one hundred thousand dollars in currency.
Honore instituted this suit against him, claiming that under the terms of their purchase he was a joint owner with him in the land purchased, and entitled to one half of the net profits realized in the speculation. His petition was dismissed, and he has appealed to this court.
The legal title to the land having been conveyed to Hutchings, the first question to be determined is whether or not the written agreement executed by him to Honore so far modified the legal effect of this conveyance, made with the knowledge and consent of the latter, as to raise by implication of law a trust in his favor to the extent of one half of the land. The entire transaction took place in the state of Illinois, and as there is nothing in the record showing the contrary we must presume that the common law is in force in that state.
By the common law implied trusts are generally raised upon the supposed intention of the parties, as gathered from their language and conduct, or from the nature of the transaction between them. If the conveyance be made to one person and the purchase-money paid by another, a trust results by implication of law in favor of the person who pays the money. So likewise if the conveyance be made to one and the purchase-price in part paid by another, a resulting trust is raised in favor of the latter to the extent of such payment. In this instance, however, it is insisted that no part of the purchase-money was paid by the appellant, and that he does not come within the reason of either of the foregoing equitable rules. But it is equally well established that if a joint purchase be made in the name of one party, and the other secures to be paid his share of the purchase-price, he will be entitled to his proportion of the property purchased as a resulting trust. (Wray v. Steele, 2 Ves. & Bea. 388; Tiffany and Bullard on Trusts and Trustees, 97.)
In the case of Boyd v. McClain (1 Johnson's Chancery 582) Chancellor Kent goes even further than this. In that case the party to whom the conveyance was made paid the entire purchase-price, yet the chancellor permitted the fact to be established by oral testimony that he took the title to secure the repayment of the same, it having been loaned to the real purchaser, and held that a trust resulted in favor of the latter by implication of law. In this case we have written evidence that Hutchings bought the land jointly with Honore; that Honore secured to be paid his share of the six thousand dollars, the purchase-price, and ten per cent. interest thereon, which sum had been advanced by Hutchings on the joint purchase of himself and Honore; that the parties were to share equally...
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