Rose v. Hayden

• Citation: 35 Kan. 106,10 P. 554
• Parties: E. D. ROSE v. CHARLES HAYDEN
• Decision Date: 09 April 1886
• Court: United States State Supreme Court of Kansas

10 P. 554

35 Kan. 106

E. D. ROSE v. CHARLES HAYDEN

Supreme Court of Kansas

April 9, 1886

ERROR from Jackson District Court.

EJECTMENT brought by Hayden against Rose. Trial by the court, at the July Term, 1884, and judgment for plaintiff. The defendant brings the case to this court. The opinion states the material facts.

Judgment affirmed.

J. H Keller, for plaintiff in error.

Hayden & Hayden, for defendant in error.

OPINION

VALENTINE, J.:

This was an action in the nature of ejectment, brought by Charles Hayden against E. D. Rose for the recovery of lots numbered 100 and 102, on Wisconsin avenue, in the city of Holton. The case was tried before the court, without a jury, and the court made a general finding in favor of the plaintiff and against the defendant, and rendered judgment accordingly; and to reverse this judgment the defendant brings the case to this court.

In the court below the plaintiff claimed to hold the absolute title, legal and equitable, to lot No. 100, and claimed to hold the paramount equitable title to lot No. 102, admitting that the defendant held the legal title to that lot, but claiming that the defendant held such title in trust for the plaintiff; on the other side the defendant claimed to hold the entire title, legal and equitable, to both the lots. The facts of the case appear to be substantially as follows: In September, 1883, Mary Dihle owned the patent title to both the lots in controversy, and the plaintiff, desiring to purchase the same, employed as his agents in the negotiations therefor the defendant and J. H. Chrisman, who were partners doing business at Holton, Kansas, as real estate agents, under the firm-name of Rose & Chrisman. Pursuant to this employment, Rose & Chrisman wrote to Mrs. Dihle, and ascertained that her price for the lots was $ 150, which fact they reported to the plaintiff. In the meantime the plaintiff had learned that there was an outstanding tax title on lot No. 100, which fact he communicated to his agents, Rose & Chrisman, and instructed them to write again to Mrs. Dihle, informing her of that fact, and instructed them to ascertain from her whether she would not take less than $ 150 for her title to the lots. This they agreed to do. The entire agreement between the plaintiff and Rose & Chrisman was in parol. The plaintiff then purchased the outstanding tax title to lot No. 100, and had the deed therefor executed to S. K. Linscott, and the plaintiff then left the state and was absent for about three weeks. On his return he called upon the defendant, Rose, to ascertain what had been done concerning the lots, and Rose then informed him that he had purchased the lots for himself, taking the deed therefor in his own name, and had paid therefor $ 85. The plaintiff then informed Rose that he owned the outstanding tax title on lot No. 100; that although the title was in Linscott's name, yet that Linscott had no real interest therein, but simply held the title to the lot for the benefit of the plaintiff. The plaintiff then tendered to Rose $ 110, and also tendered to him a deed, and demanded that he should convey the title to the lots to the plaintiff; but Rose refused. Afterward, and on October 30, 1883, Linscott executed a quitclaim deed for lot No. 100 to the plaintiff, and the plaintiff then brought this action for the recovery of both the lots. The plaintiff has at all times kept his tender good.

In this state, the action of ejectment is an equitable remedy as well as a legal remedy, and in such action the party holding the paramount title, whether legal or equitable, or both, or partly one and partly the other, may recover. The only question, then, for us to consider in this case is, which has the paramount title to the property in controversy -- the plaintiff, or the defendant? That the defendant with his partner was the agent of the plaintiff to carry on negotiations for the purchase of the lots in controversy for the plaintiff, there can be no question, and but little question as to the nature and character of the agency. The defendant, with his partner, was simply to carry on negotiations for the purchase of the lots, under the directions and instructions of the plaintiff and for the plaintiff. Under such circumstances, could the defendant purchase the property for himself, in his own name and with his own money, and take the title to himself, without becoming a trustee for the plaintiff, at the option of the plaintiff, and holding the legal title to the property merely in trust for the plaintiff, and until the plaintiff should repay him the amount which he had expended in the purchase of the property and reasonable compensation for his services? Except for the statute of frauds, which we shall hereafter consider, we think he could not. (Krutz v. Fisher, 8 Kan. 90; Fisher v. Krutz, 9 id. 501; Lees v. Nuttall, 1 Russ. & M. Ch. 53; same case, on appeal, 2 Myl. & K. Ch. 819; Taylor v. Salmon, 4 Myl. & Cr. Ch. 134; Heard v. Pilley, 4 Ch. Ap. L. R. 548; Massie v. Watts, 10 U.S. 148, 3 L.Ed. 181; Winn v. Dillon, 27 Miss. 494; Wellford v. Chancellor, 5 Gratt. 39; Church v. Sterling, 16 Conn. 383; Rhea v. Puryear, 26 Ark. 344; Sweet v. Jacocks, 6 Paige's Ch. 355, 364; Matthews v. Light, 32 Me. 305; McMahon v. McGraw, 26 Wis. 614; Barziza v. Story, 39 Tex. 354. See also the various cases hereafter cited.)

But can the statute of frauds make any difference? Under the authorities cited by the defendant, plaintiff in error, he claims that it not only can but does. Under such authorities he claims that the plaintiff has no remedy and is not entitled to any relief. The following are the principal authorities cited by the defendant: 2 Sugden on Vendors, ch. 21, § 1, P 15, 8 Am. ed. from the 14 Eng. ed.; 2 Story on Eq. Jur., § 1201a; Bartlett v. Pickersgill, 1 Eden, 515; same case, 4 East, 577, in note to King v. Boston; Burden v. Sheridan, 36 Iowa 125; Allen v. Richard, 83 Mo. 55; Botsford v. Burr, 2 Johns. Ch. 405; Nixon's Appeal, 63 Pa. 279; Steere v. Steere, 5 Johns. Ch. 1; Perry v. McHenry, 13 Ill. 227; Walter v. Klock, 55 id. 362; Watson v. Erb, 33 Ohio St. 35; Pinnock v. Clough, 16 Vt. 500; Hidden v. Jordan, 21 Cal. 92.

Under the authorities cited by the plaintiff, it is claimed that the statute of frauds makes no difference. It is claimed that with or without the statute of frauds a trust resulted by operation of law in favor of the plaintiff, and that the defendant simply holds the legal title to the property in trust for the plaintiff. The principal authorities cited by the plaintiff, in addition to those which we have already cited for him, are the following: Chastain v. Smith, 30 Ga. 96; Cameron v. Lewis, 56 Miss. 76; Gillenwaters v. Miller, 49 id. 150; Sandford v. Norris, 4 Abb. (N.Y.) App. Dec. 144; Parkist v. Alexander, I Johns. Ch. 394; Wood v. Rabe, 96 N.Y. 414; Burrell v. Bull, 3 Sandf. (N.Y.) Ch. 15; Bennett v. Austin, 81 N.Y. 308; Hargrave v. King, 5 Ired. (N. C.) Eq. 430; Kendall v. Mann, 93 Mass. 15; Jackson v. Stevens , 108 id. 94; McDonough v. O'Niel, 113 id. 92; Sandfoss v. Jones, 35 Cal. 481; Snyder v. Wolford, 33 Minn. 175, 22 N.W. 254; Soggins v. Heard, 31 Miss. 426; Seichrist's Appeal, 66 Pa. 237; Peebles v. Reading, 8 Serge. & Rawle 484; Onson v. Cown, 22 Wis. 329; Bryant v. Hendricks, 5 Iowa 256; Bannon v. Bean, 9 id. 395; Judd v. Moseley, 30 id. 424; Jenkins v. Eldredge, 3 Story, U.S.C. C., 183, 288 to 290; Baker v. Whiting, 3 Sumn. 475, 482, 2 F. Cas. 495, et seq.; Rothwell v. Dewees, 67 U.S. 613, 17 L.Ed. 309; Cave v. Mackensie, 46 L. J. Ch. Div. 564; 37 L. T. N. S. 218; Fisher's Eng. Digest for the year 1877, 400; McCormick v. Grogan, 4 Eng. & Irish Appeals, L. R. 97; Bond v. Hopkins, 1 Sch. & Lef. (Eng.) 433; Dale v. Hamilton, Hare's Ch. (Eng.) 369.

The statute of frauds upon which the defendant relies will be found in §§ 5 and 6 of the act of the legislature of Kansas relating to frauds and perjuries. The statute, so far as it is necessary to quote it, reads as follows:

"SEC. 5. No leases, estates, or interests, of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized, by writing, or by act and operation of law.

"SEC. 6. No action shall be brought whereby to charge a party, . . . upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized."

The statute relating to trusts and powers, so far as it is necessary to quote it, reads as follows:

"SEC. 1. No trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto lawfully authorized in writing."

The statute relating to conveyances, so far as it is necessary to quote it, reads as follows:

"SEC. 8. Declarations or creations of trust or powers, in relation of real estate, must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law."

It will be seen from a reading of § 5 of the act relating to frauds and perjuries, § 1 of the act relating to trusts and powers and § 8 of the act relating to conveyances, that all interests in real estate which may arise or be created "by act and operation of law," or which "may arise by implication of law," and "trusts resulting from the operation or...