Mitchell v. Colglazier

• Citation: 7 N.E. 199,106 Ind. 464
• Parties: Mitchell v. Colglazier and others.
• Decision Date: 24 May 1886
• Court: Supreme Court of Indiana

106 Ind. 464

7 N.E. 199

Mitchell

v.Colglazier and others.

Supreme Court of Indiana.

May 24, 1886.

Appeal from Washington circuit court.

Mitchell & Mitchell and Zaring, Voyles & Morris, for appellant.

Asa Elliott and Alspaugh & Lawler, for appellees.

Mitchell, J.

The complaint in this case charges that David Colglazier, with the intent to defraud the plaintiff, a judgment creditor, and without consideration, conveyed certain real estate of which he was the owner to his wife. The suit was to set aside this conveyance. Louisa Colglazier answered separately, and the ruling of the court in overruling a demurrer to her answer presents the principal question for decision. The substance of her answer was that in 1871 she was the wife of David Colglazier, and was possessed of certain moneys and choses in action which were her separate property, and that she appointed her husband to purchase for her the property in controversy. It was averred that, while so acting for her, he did purchase the land for $2,100, and that he made the entire cash payment of $100 with her money, and gave his own notes for the deferred payments. He also took the title to himself, without her knowledge or consent. As the notes for the deferred payments came due, she, supposing the title to the land was in her name, furnished the money with which they were all paid off. Upon discovering that the title was in her husband she demanded that the property should be conveyed to her. In pursuance of her demand, and before the plaintiff's judgment was recovered, the conveyance, the making of which is the subject of the suit, was made. The objections which are made to this answer are that it does not controvert the charge of fraud, nor deny that the deed was made without consideration.

This view does not seem to be sustained. Conceding that there is no direct denial of the imputed fraud, and that it is not stated in terms that a valuable consideration was paid for the conveyance, the conclusion nevertheless follows irresistibly that the deed was neither fraudulent nor without consideration. The husband having undertaken, as the agent of his wife, to purchase the land for her, she having confessedly paid every dollar of the purchase price under the belief that the title was, as it should have been, taken in her name, the imputation that the deed subsequently made to her was fraudulent and without consideration is thereby clearly repelled. One who undertakes, as agent, to purchase land for another, cannot, by taking the title to himself in violation of his trust, defeat the rights of his principal, even though he gives his own notes for the deferred payment. Nor does it alter the case that the agent is the husband of the principal. It may be a question, where an agent, who is employed by a principal to purchase particular property, pays the entire purchase price out of his own means, whether such agent can be compelled to surrender the property so purchased to his principal upon being repaid. There is, however, no question but that the purchase inures to the benefit of the principal in case any part of his money is used to pay the purchase price. Hidden v. Jordan, 21 Cal. 93;Bostford v. Burr, 2 Johns. Ch. 404;Lees v. Nuttall, 1 Rus. & M. 53; Bartlett v. Pickersgill, 1 Eden, 515.

Certainly, in this case, where the wife paid the whole purchase price, the mere fact that the husband had given his notes for the deferred payments does not defeat her equitable title. This presents the ordinary case of a wife furnishing the money, and paying for property, which the husband, without her consent, has taken to himself. In such a case he holds it in trust for his wife, and a court of equity will protect it for her, against his creditors. Goldsberry v. Gentry, 92 Ind. 193;Robertson v. Huffman, 92 Ind. 247;Bishop v. Lord, 83 Ind. 67;Lord v. Bishop, 101 Ind. 334;Heberd v. Wines, 105 Ind. 237; S. C. 4 N. E. Rep. 457. We recognize the principle contended for by appellant, that the trust must have resulted from the facts as they existed at the time the husband took the title, (Westerfield v. Kimmer, 82 Ind. 365;) but upon the facts as they existed, the cash payment having been made with her money, a trust resulted in favor of Mrs. Colglazier. Not only was the cash payment made with the wife's money, but the answer very clearly embraces the idea...