Towle v. Sherer
| Decision Date | 03 December 1897 |
| Docket Number | 10,779--(165) |
| Parties | W. H. TOWLE and Another v. GEORGE J. SHERER and Another |
| Court | Minnesota Supreme Court |
Action in the district court for Wright county by the special administrator of James Tracy, deceased, and by Minerva Tracy to establish a lost deed. The facts are stated in the opinion. The case was tried before Russell, J., without a jury, and the court ordered judgment for plaintiffs. From an order denying a motion for a new trial defendants appealed. Affirmed.
The order denying a new trial is affirmed.
Charles P. Barker, for appellants.
Plaintiffs come into a court of equity with a void trust created for the purpose of defrauding creditors, setting up two pretended lost deeds, and ask the court to compel the execution of a third. See Sumner v. Sawtelle, 8 Minn. 272 (309), a case similar to this; Johnson v. Johnson, 16 Minn 462 (512); Jones v. Rahilly, 16 Minn. 283 (320); Leonard v. Green, 30 Minn. 496; Sawyer v Harrison, 43 Minn. 297; King v. King, 61 Ala 479. If a party seeks relief in equity he must be able to show that on his part there has been honesty and fair dealing. Dent v. Ferguson, 132 U.S. 50; Randall v. Howard, 2 Black, 585. When a conveyance purports to have been made for a good and valuable consideration, paid by the grantee, the presumption of law is that the estate is held by him for his own use. This presumption cannot be rebutted by parol evidence. Philbrook v. Delano, 29 Me. 410; Movan v. Hays, 1 Johns. Ch. 339; Squire v. Harder, 1 Paige, Ch. 494; Trafton v. Hawes, 102 Mass 533, 541.
A debtor purchasing land which he has caused to be conveyed to another to defraud his creditors has no interest in it. Kelly v. Karsner, 72 Ala. 106, and cases cited; Tyler v. Peatt, 30 Mich. 63; Harwood v. Underwood, 28 Mich. 427. No trust can be grafted on a conveyance absolute in form. Patton v. Beecher, 62 Ala. 579; Connelly v. Sheridan, 41 Minn. 18. The courts will not afford the fraudulent grantor any relief of any kind, but leave him in the position in which he has placed himself. Lessee v. Heirs, 15 Ohio 408; Ober v. Howard, 11 Mo. 425; Edwards v. Haverstick, 53 Ind. 348; Butler v. Moore, 73 Me. 151; Stewart v. Ackley, 52 Barb. 283; Schuman v. Peddicord, 50 Md. 560; Shallcross v. Deats, 43 N. J. L. 177; Wolfe v. Beecher, 47 Conn. 231; Horner v. Zimmerman, 45 Ill. 14; Newell v. Newell, 34 Miss. 385; Inhabitants v. Inhabitants, 8 Cush. 525; Dearman v. Radcliffe, 5 Ala. 192; Ybarra v. Lorenzana, 53 Cal. 197; Noble v. Noble, 26 Ark. 317; Maher v. Swift, 14 Nev. 324; Sumner v. Murphy, 2 Hill (S. C.) 488.
A valid consideration paid is indispensable in establishing a lost deed. King v. Pillow, 90 Tenn. 287; Mosher v. Mosher, 108 Mich. 612; Torrent v. City, 101 Ala. 559. To establish a lost deed and thereby overthrow the evidence made by an absolute warranty deed, the proof must be strong and convincing and beyond doubt. It must be plenary. Wakefield v. Day, 41 Minn. 344; Connor v. Pushor, 86 Me. 300; Thomas v. Ribble (Va.) 24 S.E. 241; Edwards v. Noyes, 65 N.Y. 125. None of the covenants in a deed can be implied. G. S. 1894, § 4165; Aiken v. Franklin, 42 Minn. 91. Proof of an oral trust is inadmissible, except at the suit of prior existing creditors. Pillsbury v. Kistler, 53 Minn. 123; Connelly v. Sheridan, 41 Minn. 18; Jackson v. Cleveland, 15 Mich. 94. Upon the statute abolishing uses and trusts, see Tatge v. Tatge, 34 Minn. 272; McVay v. McVay, 43 N.J.Eq. 47; Sumner v. Sawtelle, 8 Minn. 272 (309), Parol evidence of the objects and purposes for which a deed was made, thereby to convert the deed into one of trust, is not admissible. Flint v. Sheldon, 13 Mass. 443; Gerry v. Stimson, 60 Me. 186; Pavey v. American, 56 Wis. 221; Green v. Cates, 73 Mo. 115; Lawson v. Lawson, 117 Ill. 98.
The "interest" to preclude a witness from testifying as to conversations with a deceased person must be pecuniary, direct, immediate and not uncertain, contingent, remote or merely a possible interest. Madson v. Madson, 69 Minn. 37. The inchoate right of a wife is not such an interest. Perine v. Grand Lodge, 48 Minn. 82. Mrs. Sherer was improperly made a party, but as to whether it is only a party to the issue and interested therein who is disqualified, see Bowers v. Schuler, 54 Minn. 99. No foundation was laid or attempted to be laid for oral testimony of the contents of the letter and dispatch. The deed was traced to the last place, as they claim, but no effort made to find it there. This was not a sufficient foundation. Wood v. Cullen, 13 Minn. 365 (494); Kearney v. Mayor, 92 N.Y. 617; Guerin v. Hunt, 6 Minn. 260 (375). Defendant moved at the opening of the case that the action be dismissed as to Mamie J. Sherer, basing the motion on the complaint, which alleged that the property was conveyed to defendant George J. Sherer in trust. She had no inchoate interest in property held by her husband in trust. Cooper v. Whitney, 3 Hill, 95; Germond v. Jones, 2 Hill, 569; Powell v. Monson, 3 Mason, 347.
William E. Culkin and Wendell & Pidgeon, for respondents.
When a deed of warranty, or even quitclaim, has been made, duly executed under seal and delivered, and such deed has been lost and never recorded, it is within the power of a court of equity to restore same by requiring the execution of a new deed or by a decree fixing the title in the grantee. 3 Pomeroy, Eq. Jur. 1376, and notes; Story, Eq. Jur. § 84. If any consideration must be proved in proving the existence of a lost deed, and if a consideration is not presumed from the fact that it is under seal and is duly executed -- Rose v. Roberts, 9 Minn. 109 (119); McMillan v. Ames, 33 Minn. 257 -- the fact that the property morally and equitably belonged to James Tracy is a sufficient consideration for a reconveyance. Chitty, Cont. 28; Whitesides v. Caldwell, 9 Yerg. 419. It is settled in this state that this action can be maintained. Wakefield v. Day, 41 Minn. 344; Edwards v. Noyes, 65 N.Y. 125; Stebbins v. Duncan, 108 U.S. 32. There is ample evidence, in view of the whole case, to sustain the findings. Findings of trial court are not to be disturbed. Webb v. Kennedy, 20 Minn. 374 (419); Tenberg v. Martin, 26 Minn. 71; Knoblauch v. Kronschnabel, 18 Minn. 272 (300); Fleming v. Alden, 44 Minn. 493.
Plaintiff could not have restored and perfected this title, as it was after delivery of the deeds which were burned and stolen, without bringing in Mrs. Sherer. Williams v. Barrett, 52 Iowa 637; Allen v. Baldwin, 22 Minn. 397; Griswold v. Edson, 32 Minn. 436; Chadwick v. Cornish, 26 Minn. 28. It is absurd to say that she must be made a defendant in order to bring in even her inchoate interest, and then say she has no interest. She has an interest in the record. Perine v. Grand Lodge, 48 Minn. 83. The existence of these deeds is so conclusively established by evidence that they could not be outweighed by any statement of Mrs. Sherer. If it be error to allow her to testify to the declaration of the deceased, it is error without prejudice. Maher v. Winona, 31 Minn. 401. Where there is in the bill of exceptions neither a formal offer of evidence nor any statement of what the witness will testify to, there is no available error. Thompson, Trials, § 678; Batten v. State, 80 Ind. 394. It is a settled rule that where a conversation between persons is offered in evidence, the party offering it is required to disclose how it may be material. Trustees v. Brooklyn, 23 How. Pr. 448.
John Tracy had testified to an alleged transaction between himself and deceased in presence of Mrs. Tracy. The court allowed the plaintiff to deny the conversation and say what was done only in rebuttal. Since the objection that the testimony was not competent under the statute was not raised or made in the lower court, it cannot be raised here. Bedal v. Spurr, 33 Minn. 207; Califf v. Hillhouse, 3 Minn. 217 (311).
The findings and order in this case ought not to be set aside on the ground of error unless the error, if such be found, is clearly prejudicial. Coit v. Waples, 1 Minn. 110 (134); Chapman v. Dodd, 10 Minn. 277 (350); Leonard v. Green, 34 Minn. 137.
This is an action to establish a lost deed. On the trial the court found for plaintiffs, and from an order denying a new trial defendants appeal.
1. In and prior to 1891, James Tracy was in possession of the quarter section of land in question under what would seem to be a defective title, and on March 24 of that year made a deed of the land to the defendant George J. Sherer. On April 3 of that year one Barnett, who held the outstanding title, if any existed, made a deed conveying his interest in the land to Sherer. Notwithstanding these conveyances Sherer never took possession of the land, but Tracy and his wife continued to reside on it until the time of Tracy's death on April 29, 1896, and during all this time he cleared, cultivated and improved the land, and paid the taxes on it. In 1895 he built a new house on the land at a cost to him of $ 3,250, of which Sherer paid $ 346.23, and rendered a bill to Tracy for the same for which Tracy gave his note to Sherer. Tracy also insured the house in his own name.
Plaintiffs claim that the first-named deed was without consideration and that Tracy paid the consideration for the conveyance from Barnett to Sherer; that Sherer held the title on a parol trust and an oral agreement to convey it back to Tracy that, in pursuance of such agreement, Sherer and his wife did, in 1892, convey it back to Tracy; that the latter did not record his deed, but kept it in his old dwelling house on the land, and the deed was burned with the house in 1894; that in February, 1896, Sherer and wife made and delivered to Tracy a second deed to replace the one that was burned; that this...
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