Livingston v. Ives
| Decision Date | 04 March 1886 |
| Parties | Harriet L. Livingston and others v. Mary E. Ives and others |
| Court | Minnesota Supreme Court |
John B. Livingston, of Pittsburgh, Pa., by warranty deed absolute in form, and bearing date May 2, 1874, conveyed to his sister, Mrs. Ruth L. Swift, of St. Peter, Minn., certain real estate in Ramsey county. Livingston died, intestate, January 4, 1877, and Mrs. Swift died in 1881, having devised the real estate to her daughters, who are defendants in this action.
On May 2, 1884, the plaintiffs, heirs-at-law of John B. Livingston brought this action in the district court for Ramsey county alleging that their ancestor's deed was made and received as security merely for a debt he had long owed Mrs. Swift and praying that it be adjudged to be a mortgage, and for leave to redeem. They allege in their complaint that they resided in Pittsburgh until August, 1881, when they removed to St. Paul, their present residence; that the negotiations which resulted in the deed in question were largely conducted in St. Paul; that the letters and papers which disclosed the real character of the transactions remained in St. Paul, and were not known to them until April, 1884, nor did they until that date have access to such letters or papers, or ascertain the facts showing that the deed was intended merely as a security.
The defendants, in their answer, admitted the indebtedness from Livingston to Mrs. Swift, and alleged that the deed was made and received in satisfaction of the debt, and not as a security for it.
At the trial before Brill, J., the evidence for plaintiffs consisted largely of letters from Livingston to Mrs. Swift and to Captain Peter Berkey, of St. Paul, tending to show that the deed was intended merely as a security for the debt; but these letters also tended to show that at and prior to the time of making the deed, Livingston was financially embarrassed, and that one of his purposes in making an absolute deed, instead of a mortgage, was to conceal from his other creditors his interest in the property, and thus prevent a sacrifice of it by forced sale in the then depression of real-estate values.
The court having found the deed to be a mortgage, and having ordered judgment for the plaintiffs, the defendants made the motion for an additional finding which is stated in the opinion. They appeal from an order denying a subsequent motion for a new trial.
About the same time with the deed to Mrs. Swift, Livingston made an absolute deed of other land in Ramsey county to Mrs. Welty another sister, to whom also he was indebted. The defendants offered in evidence a letter from Livingston to Mrs. Swift, (Exhibit 55,) dated January 6, 1876, to show that he treated this land as the absolute property of Mrs. Welty. The letter was excluded. Other exceptions are stated in the opinion.
Order affirmed.
Gordon E. Cole and G. S. Ives, for appellants.
The plaintiffs having proved, as part of their own case, that the security was given by absolute deed, instead of by mortgage, in order to create a secret trust for the grantor, and hinder, delay and defeat his other creditors, by leading them to suppose that he had parted with his whole interest in the property, the court should have refused to interfere, even though the facts thus proved by plaintiffs were not pleaded by the defendants. Pattee v. Greely, 13 Met. 284; Ingersoll v. Randall, 14 Minn. 304, (400;) Nellis v. Clark, 4 Hill, 424; Sands v. Codwise, 4 John. 536, (4 Am. Dec. 305;) Ely v. Cook, 2 Hilton, (N. Y.) 406; Kerr on Fraud, 374; Willard, Eq. Jur. 49; Bein v. Heath, 6 How. 228, 247; Hassam v. Barrett, 115 Mass. 256; 1 Jones, Mort. § 283; 2 Washb. Real. Prop., 58; May v. May, 33 Ala. 203; Miller v. Marckle, 21 Ill. 152; Weir v. Day, 57 Iowa 84; Stephens v. Harrow, 26 Iowa 458; Murphy v. Hubert, 16 Pa. St. 50, 57; Holliday v. Holliday, 10 Iowa 200; James v. Bird, 8 Leigh, (Va.) 510, (31 Am. Dec. 668;) Baldwin v. Cawthorne, 19 Ves. 166; Webber v. Farmer, 4 Bro. P. C. 170; Arnold v. Mattison, 3 Rich. (So. Car.) Eq. 153; Andrews v. Marshall, 43 Me. 272; Andrews v. Marshall, 48 Me. 26; Weed v. Little Falls, etc., R. Co., 31 Minn. 154, 161. The expression in Jones v. Rahilly, 16 Minn. 283, (320,) relied on by plaintiffs, is a mere dictum in arguing another point on which the case was decided. Moreover, that was an action at law. A plaintiff in equity must come into court with clean hands. Weed v. Little Falls, etc., R. Co., supra.
On the question of pleading and practice, counsel cited, in addition to the foregoing cases, the following: Hulet v. Stratton, 5 Cush. 539; Dixie v. Abbott, 7 Cush. 610; Jones v. Inhabs. of Andover, 10 Allen 18; Cardoze v. Swift, 113 Mass. 250; Brady v. Brennan, 25 Minn. 210; Thoreson v. Minn. Harvester Works, 29 Minn. 341; Williams v. People's Fire Ins. Co., 57 N.Y. 274, 278; Leonard v. Green, 30 Minn. 496. And, on the question of laches in bringing the suit, 2 Pom. Eq. Jur., §§ 816, 965; Sullivan v. Portland, etc., R. Co., 94 U.S. 806, 811; Dutton v. McReynolds, 31 Minn. 66; Haff v. Jenney, 54 Mich. 511, (20 N.W. 563;) Maher v. Farwell, 97 Ill. 56; German-Am. Seminary v. Kiefer, 43 Mich. 105; Spaulding v. Farwell, 70 Me. 17; Bliss v. Prichard, 67 Mo. 181.
John B. & W. H. Sanborn, for respondents.
The main controversy in this case is as to whether a certain deed of real estate, executed by John B. Livingston to Ruth L. Swift, was an absolute conveyance, as it purported to be on its face, or in legal effect a mortgage. The complaint alleges that it was given to secure an indebtedness, and is therefore a mortgage, from which it is the object of this action to redeem. The answer (1) denies the allegations of the complaint to the effect that the deed was a mortgage, and (2) avers that it was given in payment of, and not as security for, an indebtedness.
In the course of the trial evidence came out, tending, as defendants claim, to show that the deed was made, in part at least, for the purpose of hindering and delaying Livingston's creditors. The court by which the action was tried having made no finding with reference to this evidence, the defendants' counsel moved for an additional finding as to whether or not such hindering and delaying of creditors was "one of the motives or objects of Livingston in executing such absolute deed instead of a mortgage, * * * he then being in embarrassed circumstances and insolvent, by creating the impression that he * * * had no remaining interest in sad property." Defendants insisted (1) that the finding was material to the issues involved in the action, and (2) that a finding in the affirmative was justified by the evidence; but the court refused to make the additional finding.
For at least two reasons we are satisfied that the refusal was right:
1. Because no intent (in making the deed) fraudulent as respects Livingston's creditors is set up or suggested in the answer, which, on the contrary, is confined to the defences already mentioned. In fact the defence shadowed forth in the request for an additional finding is not only not embraced in the issues of the pleadings, but it is inconsistent with the denial (in defendant's answer) that the deed was a mortgage at all, and the further averment that it was given as payment, not as security. But irrespective of this latter consideration, the settled rules of pleading (especially under the Code) require that matters in confession and avoidance, like the defence in question, must be affirmatively and specially pleaded. A mere denial does not cover them. Finley v. Quirk, 9 Minn. 179, (194;) Brown v. Eaton, 21 Minn. 409; Gunderman v. Gunnison, 39 Mich. 313; Adams v. Adams, 25 Minn. 72, 76; Haigh v. Kaye, L. R. 7 Ch. App. Cas. 469.
The defendants rely upon an exception to this rule of pleading, viz., that where evidence not relevant to the issues in the pleadings is admitted without objection, it is sometimes allowed all the force which it would have had if properly pleaded. That exception is not applicable to a case like the present, where evidence is received which is pertinent to the issues therein, and which would also be pertinent to another issue which might have been but is not made by the pleadings, in which case its reception is not a waiver of an objection to the consideration of such other issue. City of Winona v. Minnesota Ry. Const. Co., 27 Minn. 415, (6 N.W. 795, and 8 N.W. 148;) Williams v. Mechanics' Ins. Co., 54 N.Y. 577; O'Neil v. Chicago, M. & St. P. Ry. Co., 33 Minn. 489, (24 N.W. 192.) Neither would its introduction be such waiver when, introducing evidence pertinent to the issues made by the pleadings, the party could not avoid also introducing the evidence not thus pertinent, as where, as in some instances upon the trial in this case, both kinds of evidence were found in the same instrument of evidence, e. g., a letter; and it may be added that upon the record this is not a case in which (as is sometimes said) the course and conduct of the trial have any tendency to show that it was had upon any theory, expressed or acquiesced in, that the matter of fraud upon creditors was in fact at issue, or involved in the action.
With reference to a class of authorities cited by counsel, we note a distinction between evidence coming into a case, but not pertinent to the issues, which shows moral or criminal turpitude or a clear violation of settled public policy, and such evidence when only showing a private fraud. This distinction is adverted to in Harvey v Varney, 98 Mass. 118, and Oscanyan v. Arms Co., 103 U.S. 261, 26 L.Ed. 539, and seems to rest upon the ground that to overlook or disregard evidence of the first kind mentioned would be to lend a disgraceful countenance and sanction to violations of...
To continue reading
Request your trial