Lee v. Fox

• Decision Date: 10 April 1838
• Citation: 36 Ky. 171
• Parties: Lee and Graham v. Fox and Others.
• Court: Kentucky Court of Appeals

36 Ky. 171

Lee and Graham v. Fox and Others.

Court of Appeals of Kentucky.

April 10, 1838

FROM THE CIRCUIT COURT FOR MASON COUNTY.

Mr Owsley for appellants.

Mr Hord for appellees.

OPINION

ROBERTSON CHIEF JUSTICE.

Historv and present state of the case.

In February, 1794--during the pendency of an appeal in this Court, prosecuted by Edward Mills, for reversing a decree dismissing a bill filed by him against Arthur Fox, for a relinquishment of the legal title to about fifteen hundred acres of land, included within Fox's elder patent of 1788, for twenty-seven hundred acres, and by his own junior grant, of 1790, for two thousand acres, he insisting that his entry was superior to that of Fox--they compromised the suit and adjusted their conflicting claims by agreeing on a lien, dividing between them, in nearly equal quantities, the land claimed by both, and covenanting that each would convey to the other, by deed of quit claim, all his interest in the part allotted to him by the division.

Afterwards, in the same year, after Fox had put Mills in possession of the land thus conceded to him, but before either had executed a conveyance to the other, Fox died, leaving a widow and four infant children, and a will devising to his son Arthur the tract of twenty-seven hundred acres, " excluding the lands given up to Mills, and forty acres sold to Washburn."

In 1808, Henry Lee, who was Fox's executor, had intermarried with his widow, and was the guardian of his children, and Richard Graham, the husband of one of them, bought, for the sum of four hundred dollars, the interest of the trustees of Graham's father in about fourteen thousand acres of land, which had been, but a short time before, granted to them, on an entry said to have been previously withdrawn and elsewhere appropriated. As this patent covered both Mills' two thousand and Fox's twenty-seven hundred acres, Lee, with the assent of Graham, made a compromise with Mills, in 1809, whereby it was agreed that they should pay him the value of his improvements, and that he should convey to them his interest in the two thousand acres which had been granted to him, excepting about one hundred and fifty acres which he had previously sold and conveyed to Smally and others, and the value of which was to be deducted from the assessed value of his improvements.

In 1810, Mills made a conveyance, in fulfillment of the foregoing agreement.

In 1815, not two years after Arthur Fox, the ward, had attained twenty-one years of age, he entered into a contract in writing with Lee and Graham, reciting that the purchase from the trustees of Graham's father was made in part for Arthur's benefit, so far as that claim interfered with the land devised to him, and that he might be prejudiced thereby, if it should be ascertained to be better in equity than his title, and therefore stipulating that, by paying his just ratio of the four hundred dollars which had been given for it, he should be entitled to the benefit of it to the extent of its interference with the devise to him. And in 1816, they made a conveyance to him, in fulfillment of that agreement, and embracing, also, two hundred and twenty two acres of the land which had been allotted by his father to Mills, and was not, therefore, included in the devise to himself; and for which he conveyed to them eighty-seven acres of the land devised to him, and gave them his bond for nine hundred and twenty-four dollars.

In 1829, he filed a bill in chancery, enjoining a judgment they had obtained against him, on his bond, for nine hundred and twenty-four dollars-- alleging, among other things, that he had, within two years preceding that time, discovered, from a written proposition for an arbitration made by Lee and Graham to Mills, shortly after the date of his deed to them, that they had made the compromise with Mills, in trust for the benefit of himself and his co-heirs, which fact they had fraudulently concealed from him; and therefore praying, among other things, for a rescission and restitution, and for an enforcement of the alleged trust.

In their answers, Lee and Graham denied that the compromise with Mills was made in trust, but virtually admitted that the purchase from Graham's trustee was made chiefly for the purpose of benefiting the complainant and his co-heirs to the extent of any interest which they had in the twenty-seven hundred acres granted to their father.

They insisted, also, that they should not be affected by any thing contained in the proposal made to Mills; (1) because it was only a proposition never acceded to; (2) because Mills afterwards having sued them in equity, for a rescission of the compromise they had made with him--relying, in his bill, only on the allegation that they had procured it fraudulently, by suppressing the fact (well known by them, as he alleged,) that the entry on which the patent to Graham's trustees was founded, had been withdrawn, and that, therefore, the patent itself was fraudulent and worthless--his bill was dismissed for want of equity, and this Court affirmed the decree, by an opinion reported in 6 Monroe, 91; and (3) because the complainant, being a defendant in Mill's suit, did not, in his answer, either admit that Mills had been defrauded, or intimate that any interest of his own or of his co-heirs was employed as an inducement to move Mills to the compromise, or that it was made for his own benefit, even though the written proposition to Mills, now relied on, was filed as an exhibit in that suit.

In an amended answer, in the nature of a cross bill, Lee and Graham prayed that, if the testator's title, to the portion of land allotted by him to Mills, did not pass to him by the will, which deferred to and seemed to recognize some such allotment, the Court would compel the complainant and his co-heirs to convey the title to them, as the alienees of all Mills' interest.

The writing relied on in the bill, and resisted by the answers, signed by Lee and Graham only, and dated September 19, 1810, is in these words:

" Whereas Henry Lee, acting in behalf of the heirs of Arthur Fox, deceased, and Richard Graham, deriving title from an entry of twenty-thousand acres of land in the name of Ed. Graham, did institute a suit against Edward Mills and others, for two thousand acres of land, entitled, surveyed and patented in his own name, it being the same whereon he then lived; and whereas the said Ed. Mills did, some years past, institute a suit against the said Arthur Fox, in his lifetime, for the interference between the said Mills' claim and the said Fox's claim of twenty-seven hundred acres, and the said Fox, under a mistaken idea of the superiority of his own claim, entered into an agreement with the said Mills, bearing date the 15th day of September, 1793, by which he obliged himself to transfer a certain proportion of his land to the said Mills, in order to quiet the said suit; and whereas the said Mills, after taking counsel and mature consideration, entered into a compromise with the said Lee and Graham, for the purpose of quieting their suit against him, on the following terms, (here the agreement is recited; ) and whereas, from recent circumstances, the said Mills appears dissatisfied--it is now agreed, by the said Lee and Graham, that they will submit the following questions to ______ ______, gentlemen learned in the laws and well acquainted with the principles on which the land decisions in our Supreme Courts are founded--that, after taking into view the whole of the circumstances relative to the several compromises heretofore had between the said Mills and Fox, and also between the present parties, shall be of opinion that the said Lee, acting for the infant heirs of said Cox, and Graham ought to give up to said Mills the aforesaid agreement, entered into as aforesaid between said Mills and Fox, then and in that case, they agree to pay Mills for the land, one dollars per acre for all the land held by Mills under the said agreement, except" & c. & c.

It appears from this writing alone, that, when Mills conveyed the two thousand acres to Lee and Graham, he also surrendered to them Fox's bond for a conveyance according to the terms of the compromise between himself and Fox; and the tone and tenor of the writing may also intimate, that one motive, if not the only one, for that surrender, was an apprehension that the compromise with Fox could not be enforced, and a title coerced in a court of equity.

Facts sworn to by some of the witnesses whose depositions were read on the hearing of this case, conduce to show that Lee, more than once, declared that he had made the purchase from Graham's trustees and the compromise with Mills " for the benefit of Fox's heirs," and that, immediately after making the compromise, he said that he had made for Fox's heirs the best trade he had ever made in his life. But there is no satisfactory proof of his...