Rollins v. Mitchell
| Decision Date | 23 December 1892 |
| Parties | John H. Rollins v. Jethro Mitchell et al |
| Court | Minnesota Supreme Court |
Argued December 7, 1892
Appeal by defendants, Jethro Mitchell and Wellington R. Burt, from a judgment of the District Court of Carlton County, Stearns J., entered September 23, 1892.
Josephine Gabiou on December 1, 1869, received a patent from the United States for the south half of the northwest quarter and the north half of the southwest quarter of section thirty-four (34,) in T. 48, R. 16, in Carlton county. She then married Daniel Wright, and afterwards on September 7, 1872, conveyed the land to James Bardon; and he on October 16, 1872 conveyed it to John D. Howard; and he on July 29, 1880 conveyed it to Wellington R. Burt, who on October 23, 1889, conveyed this and a large amount of other land to Jethro Mitchell and took back a mortgage for $ 200,000. Each deed contained covenants of warranty and was duly recorded. On November 17, 1890, Monroe Nichols contracted with Mitchell and one McClure to purchase the entire section, six hundred and forty acres, including this land, for $ 48,400, but the purchase was not carried out because it was learned that Mrs. Gabiou was married to Wright at the time she made her deed and her husband did not join in its execution. Nichols soon after obtained a deed of this one hundred and sixty acres from Mrs. Gabiou to the plaintiff John H. Rollins, in the manner stated in the opinion. Rollins commenced this action against the defendants to determine their adverse claim to the land. Mrs. Gabiou or Wright on August 21, 1883, obtained a divorce from her husband. Soon after Rollins commenced the action, and before defendants answered, he conveyed the land to Charles B. Marvin and he intervened in the suit. Marvin gave back to Rollins a mortgage on the land for $ 8,500. The other facts appear in the opinion. The trial court made findings and ordered judgment for the intervener that he was the owner of the land in fee, and that defendants had no title. Judgment was entered accordingly, and defendants appeal.
Judgment reversed, and new trial ordered.
W. W. Billson, for appellants.
The quitclaim deed from Mrs. Gabiou having been secured by Nichols, by giving her to understand that it was to support the Bardon title, the grantee named in that deed is chargeable as trustee ex maleficio for those claiming under Bardon. Moore v. Crawford, 130 U.S. 122; Dohoney v. Womack, 1 Texas Civ. App. 354; Soye v. McCallister, 18 Texas, 98; 1 Bigelow, Fraud, 459; Lark v. Linstead, 2 Md. Ch. 168; Hooker v. Axford, 33 Mich. 453; Reech v. Kennegal, 1 Ves. Sr. 125; Brown v. Lynch, 1 Paige, 147; Allen v. Macpherson, 1 Phil. Ch. 133; Ryan v. Dox, 34 N.Y. 307; Merrett v. Poulter, 96 Mo. 237; Caple v. McCollum, 27 Ala. 461; Gilmore v. Johnson, 29 Ga. 67; Miller v. Antle, 2 Bush, 407; Roller v. Spilmore, 13 Wis. 26; Piper v. Hoard, 107 N.Y. 67.
Irrespective of Mrs. Gabiou's intentions in executing the quit claim, the interest thereby acquired inures to the benefit of Mitchell. Galloway v. Finley, 12 Pet. 264; Murrell v. Goodyear, 1 De G., F. & J. 432.
The intervener, Marvin, is in no better position than his grantor, Rollins. By his own confession, he bought with actual knowledge that the title to the land was in litigation. Freeman, Judg. § 199; Bellamy v. Sabine, 1 De G. & J. 566; Tyler v. Thomas, 25 Beav. 47.
Edward Fuller and Davis, Kellogg & Severance, for respondents.
The deed from Josephine Gabiou to James Bardon, under which the defendants claim, is absolutely void under our married woman's act because her husband did not execute it with her. 1878 G. S. ch. 69, § 2; Gregg v. Owens, 37 Minn. 61; Yager v. Merkle, 26 Minn. 429; Nell v. Dayton, 43 Minn. 242; Place v. Johnson, 20 Minn. 219, (Gil. 198;) Tatge v. Tatge, 34 Minn. 272; Cole v. Van Riper, 44 Ill. 58; Scovil v. Kelsey, 46 Ill. 344; Carn v. Haisley, 22 Fla. 317; Bressler v. Kent, 61 Ill. 426; Cook v. Walling, 117 Ind. 12.
The wife cannot ratify this agreement or be estopped so as to make it valid. Cook v. Walling, 117 Ind. 12; Buchanan v. Hazzard, 95 Pa. 240; Bank of America v. Banks, 101 U.S. 240; Sims v. Everhardt, 102 U.S. 300; Keen v. Coleman, 39 Pa. 299; Klein v. Caldwell, 91 Pa. 140; Morrison v. Wilson, 13 Cal. 495; Todd v. Pittsburg, Ft. W. & C. R. Co., 19 Ohio St. 514; Merriam v. Boston, C. & F. R. Co., 117 Mass. 241.
Defendants claim to hold Rollins as a trustee. They must recover upon some legal ground, not upon the ground that Mrs. Gabiou in morals should have conveyed the land to Mitchell though under no legal obligation to do so. The defendants treat Rollins, for whom Nichols was agent, as a trustee ex maleficio, and the ground of this constructive trust is fraud.
To entitle defendants to recover in this case it was necessary for them to prove that Nichols procured the deed from Mrs. Gabiou by fraud or that he obtained it under an agreement with Mitchell or somebody representing Mitchell to fix up the title for him. Every element of fraud is absolutely wanting, for if Nichols had no arrangement with Mitchell or Bardon he was at liberty to deal with Mrs. Gabiou as he saw fit. There was no privity of contract between Mitchell, McClure or Bardon and Mrs. Gabiou. None of them had any rights that they could enforce against her, therefore they could not treat Rollins or Nichols as trustee, except upon the ground of fraud, and that fraud must be, that Nichols agreed to procure this deed for the benefit of Mitchell and procured it for the benefit of himself, or for Rollins for whom he acted as agent. In the absence of fraud Mitchell and McClure could not treat Rollins as a trustee, unless they had such equities as would control the legal title in Mrs. Gabiou and which they could enforce against her. Whiteman v. Severance, 46 Minn. 495; Bohall v. Dilla, 114 U.S. 47; Biddle Boggs v. Merced Mining Co., 14 Cal. 365; Smelting Co. v. Kemp, 104 U.S. 636; Lee v. Johnson, 116 U.S. 48; Winona & St. P. R. Co. v. St. Paul & S. C. R. Co., 26 Minn. 179; Sparks v. Pierce, 115 U.S. 408; Bangs v. Stephenson, 63 Mich. 661.
Marvin, the intervener, is an innocent purchaser; he at least, is entitled to have this case heard on legal principles, and not on blatant declarations of moral principles. At that time the defendants had not set up any counterclaim alleging fraud, nor had they filed notice of lis pendens. Reimer v. Newel, 47 Minn. 237; Jorgenson v. Minneapolis & St. L. Ry. Co., 25 Minn. 206; Wortham v. Boyd, 66 Texas, 401; Missouri Pacific Ry. Co. v. Maffitt, 94 Mo. 56; Valentine v. Lunt, 115 N.Y. 496.
This was an action to determine an adverse claim of defendants to certain real estate. The defendants set up by way of counterclaim, as well as defense, facts from which they claimed that plaintiff held the title as trustee ex maleficio for defendant Mitchell. Marvin, the intervener, purchased from the plaintiff during the pendency of the action. This appeal is from a judgment in favor of the plaintiff and the intervener.
Although we have concluded that the case is controlled by the weight of the evidence upon a single issue of fact, yet, in order to fully understand the testimony, it is necessary to state briefly the history of events leading up to the particular transaction involved in that issue.
In 1872 a Mrs. Gabiou or Wright, then a married woman, and the owner of the land in controversy, sold it to one Bardon, and executed to him her sole deed, and, presumably for the purpose of validating this deed, her husband shortly afterwards executed to Bardon another deed, in which, however, his wife did not join. Subsequently Bardon conveyed to one Howard, who conveyed to defendant Burt, who in turn conveyed to defendant Mitchell, all by warranty deed. In November, 1891, one Nichols applied to one Louden, Mitchell's agent, to purchase the land, and took from him a written contract of sale, and paid $ 1,000 as earnest money. Although not material, under the view we take of the case, it may be stated that this contract was not binding on Mitchell, because Louden had no written authority to execute it. Pursuant to the terms of this agreement, Louden furnished Nichols an abstract of title, from an examination of which the latter discovered that Mitchell's title was invalid for the reason that Mrs. Gabiou's husband had not joined in her deed to Bardon, -- a defect which was not cured by the subsequent deed of the husband, in which the wife did not join. Thereupon Nichols notified Louden of the defect in the title, and that for that reason he refused to complete the purchase, and demanded back his $ 1,000. Almost immediately thereafter Nichols went to Bardon, and obtained from him Mrs. Gabiou's address, which was at a small village in Michigan, several miles out from Detroit, to which she had removed on leaving this state. There is a conflict of testimony between Nichols and Bardon as to the representations by the former as to the purpose for which he wanted this woman's address, but neither do we consider this material.
After getting Mrs. Gabiou's address, and assuring himself by wiring to a party in Detroit that she was still there Nichols, without informing Mitchell or his agent of his intention, immediately started for Detroit, and, on arriving there, in company with a notary named Race, and one Summerville, who had just previously ascertained for him Mrs. Gabiou's exact whereabouts, drove out to her residence, with a draft of a deed already prepared, and procured her execution of it for the nominal consideration of $ 1, and a few days afterwards sold the land to the intervener for $ 10,000. Nichols took the deed in the name of the plaintiff, Rollins, who resided in Chicago, but it is quite apparent that...
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