Proctor v. Rand

• Decision Date: 27 August 1900
• Parties: PROCTOR v. RAND.
• Court: Maine Supreme Court

47 A. 537

94 Me. 313

PROCTOR

v. RAND.

Supreme Judicial Court of Maine.

Aug. 27, 1900.

(Official.)

Appeal from supreme judicial court, Cumberland county.

Suit by John F. Proctor against Edward M. Rand. Decree for defendant. Exception and appeal by plaintiff. Appeal dismissed. Exceptions overruled.

Argued before WISWELL, C. J., and EMERY, HASKELL, SAVAGE, and FOGLER, JJ.

Clarence W. Peabody, for plaintiff.

Edward M. Rand, pro se.

WISWELL, C. J. In this bill in equity against the defendant as trustee under the will of John W. Lane, deceased, the plaintiff seeks the enforcement of a trust as to one-half, in common and undivided, of a lot of land situated at the corner of Pearl and Congress streets, in the city of Portland, which trust in his favor he claims both as resulting by implication of law and under alleged declarations of trust made by the defendant's testator.

He alleges in his bill, in substance, that, at the time of the purchase and conveyance of the lot in question to Lane, one-half of the cash payment was made by himself and one-half by Lane; that subsequently the income received from said premises was shared by them equally, and that payments upon the note and mortgage, given back by Lane to secure a portion of the purchase price, were made from the income of the premises, and by contributions equally made by them; that consequently a trust resulted by implication of law in his favor as to one-half in common of the premises, and that Lane became seised thereof in trust for him.

He also alleges that on December 9, 1885, Lane made a declaration of trust in which he acknowledged that he stood seised and held one-half in common and undivided of the premises in trust for the plaintiff, his heirs and assigns, forever, and that on December 10, 1886, Lane made a similar declaration of trust; that Lane died on September 15, 1889, and that under his will the defendant became seised of the premises charged with the same trust in favor of the plaintiff.

The defendant in his answer denies all the important allegations relied upon by the plaintiff. The case was heard by a justice of this court upon bill, answer, replication, and proof, and comes here upon an appeal from his decree dismissing the bill, and also upon an exception to a ruling excluding certain testimony.

There is no question as to the following facts: The lot in question was conveyed to Lane by an absolute deed of warranty on July 31, 1883, and the legal title remained in him until his death, on September 15, 1889, and has since been in the defendant as a testamentary trustee under Lane's will. The cash payment of $500, made at the time of the purchase, was paid equally by the plaintiff and by Lane; that is, the whole sum, in the first instance, was paid by the plaintiff, and one-half thereof was subsequently repaid to him by Lane. The justice who heard the cause found "that there-afterward (subsequent to the purchase), during the lifetime of Lane, he received all the income and paid all the charges on the land, and made payments upon the mortgage debt, and since his death Rand has continued to receive the income and pay charges, and has fully paid the mortgage debt. Proctor has contributed nothing to these payments." That this is true, relative to the time since Lane's death, is uncontradicted.

On December 10, 1884, Lane made a written statement, signed by him, respecting various lots of land in which he was in different ways concerned with the plaintiff, and some of which he held as security for the plaintiff's notes and for his indorsements, in which he makes use of the following language as to the lot in question: "I also hold deed of land on the corner of Congress and Pearl streets of James H. Smith & Bro. and under lease to Oren Hooper, the net profits from sale of said property or income to be divided equally with the said Proctor."

A year later, on December 9, 1885, Lane made and gave to the plaintiff another memorandum similar to the latter, referring to various lots of lands in which they were jointly concerned, which contains the following statement respecting the lot in question: "I also hold a deed of land corner of Congress and Pearl streets of James H. Smith and Henry St. John Smith, and under lease to Oren Hooper, in which property the said Proctor is jointly interested, and the net profits derived from the sale thereof, or the income therefrom, is to be divided equally with the said Proctor."

Again, on December 10, 1886, in another memorandum of the same kind, made and signed by Lane and delivered to the plaintiff, the same language was used respecting the lot in question.

The Justice who heard the cause did not decide whether or not these facts, either the original payment by the plaintiff of one-half of the cash purchase price, or the subsequent statements of Lane, claimed to be declarations of trust, would create a trust in favor of the plaintiff as claimed by him, saying in his finding of facts filed and made a part of the case: "Without deciding whether this claim is well founded, or whether Proctor's interests were only in the in come or profits when the lot should be sold, I pass to later transactions, which seem to me decisive of this cause."

Assuming, without deciding, that the facts already stated would create a trust in behalf of the plaintiff as to one undivided half of the lot in question, it is only necessary now to inquire whether the further finding made by the justice who heard the cause, that whatever right the plaintiff may have had by virtue of the facts above referred to was subsequently voluntarily relinquished by him in other transactions between him and Lane, is justified by the evidence. This finding is expressed by the sitting justice in these words: "It is clear from the written agreements of the parties, and the acts, admissions, and claims of Proctor since June 1, 1889, and since the death of Lane, that whatever right Proctor may have had earlier in or to this lot, or the profits on its sale, or as beneficiary of a trust therein, that, by arrangement with Lane, such right had been released and abandoned by Proctor on or before June 1, 1889, and that thereafter he only claimed a right to purchase, not evidenced by any writing, nor proved to have been agreed to by Lane in any manner."

The decision of a single justice upon matters of fact in an equity...