Sherrill v. . Sherrill .

ByNüM, J. In 1852, Nelson Sherrill sold and conveyed a tract of land to Robert Sherrill, under whom the defendants claim. The subsecpent facts of the case, as disclosed by the pleadings and the findings of the jury,'.upon issues submitted to them-, are these: Robert Sherrill bemg unable to pay more of the purchase money than amounted to nineteen acres of the land, it was agreed by parol between Nelson, Robert and Elbert Sherrill, that Robert should retain the 19 acres paid for, and that NeEon, who was entitled 'to the residue of the purchase money, might sell and convey the remainder of the land unpaid for by Robert, to the said Elbert Sherrill. That in pursuance of this arrangement a surveyor was called íd, and all parties being present, the 19 acres were run offj plotted and taken possession of by Robert, who up to that time had been in possession of the whole, under his original purchase; and the residue of the tract was surveyed and deeded by Nelson to Elbert Sherrill with warranty. That the subscribing witness to the deed from Relson to Elbert, was Robert Sherrill himself, who was present at the whole transaction and assenting thereto. That in pursuance of said purchase and deed, the plaintiff took exclusive possession pf the land so bought by him, and has been in the adverse possession thereof ever since, and has at times rented the said land to some of the defendants. That Robert, after the purchase by the plaintiff, set up no claim to the land, but that he is now dead, and that the defendants, who are his widow and children, now set up claim to the land by virtue of thedegal title which was outstanding in Robert and by his death devolved,upon them, and are threatening the plaintiff with an action for the land. The prayer of the complaint is for an.injunction and further relief. *12 The plaintiff, in bis complaint, alleges positively that at the time lie purchased he had no knowledge that the legal title to the land was in Nobert, and did not believe that he had a deed from Nelson. The answer does not meet this allegation by a positive denial, but responds evasively, by alleging that the plaintiff knew, at the time of his purchase, that Nobert <£ claimed title to the land.” Claiming a title and having a deed are very different things. It was true, and the plaintiff well knew, that Nobert did claim the land up to the purchase by Elbert, but that he knew that the legal title was in Nobert is wholly inconsistent with the fact that he recognized the legal title to be in Nelson Sherrill by taking tne deed from him, and that Nobert informed him that he had the legal title, or that he desired the plaintiff to understand that he had the legal title, is wholly inconsistent with the fact that he, Nobert, not only stood by and permitted one to make a deed to another of lands to which he had no title, and of lands the title to which he knew to be in himself, and that he actively participated in misleading the plaintiff by assisting in running off the land and becoming a subssribing witness to the deed made by Nelson Sherrill. "When in addition to this, both Nelson and Elbert Sherrill testify positively that the plaintiff did not know, at the time of the purchase, that a deed had been made to Nobert, we must assume as a fact established, that the plaintiff was ignorant of the existence of such deed, and that the conduct of Nobert was calculated and intended to mislead the plaintiff in that particular, and did mislead him. The case then presents this question : If one having the title to land intentionally induce another to purchase from one uho has no title, can he be permitted, afterwards, to assert his title and defeat the purchaser ? In Devereux v. Burgwyn, 5 Ired. Eq., 351, the Court says : “ If one acts in such a manner as intentionally to make another believe that he has no right, or has abandoned it, and the other, trusting to that belief, does an act which he otherwise would not have done, the fraudulent party will be restrained from asserting his right, unless it be such a case as *13 will admit of compensation in damages.’’ Sasser v. Jones, 3 Ired. Eq., 19, was much like the case before us. In that case. Arthur Jones, Sr., executed and delivered to his son, Arthur, Jr., a deed for more than half his estate, consisting of land and slaves. This transaction was concealed from his other children. Two years afterwards the father called all his children together and made a deed of settlement and division of all his estate, including that previously conveyed to the son Arthur, equally among all his children. Arthur, Jr., was present at the making of this deed of settlement and <jid not make known his older deed and claim, but assented to the deed of settlement and took into possession the property assigned to him under it, Afterwards he brought his action at law and recovered judgment for the property which had been conveyed to him under the first deed. Upon a bill in -equity being filed to restrain him from taking out execution upon his judgment, and the hearing of the case upon the pleadings and proofs establishing the foregoing facts, this Court adjudged, not only that the plaintiffs should be quieted in'the title and possession of the property- claimed by them, but that they should have restitution of whatever was lost by the recovery had against them at law. ; Judge GIastoN put the decision upon the ground that the deed of settlement was one which bound the conscience of the defendant, and which a Court of equity will not permit him to contravene. To the same effect is the case of Saunderson v. Ballanee, 2 Jones’ Eq., 322, which is where A, having an unregistered deed for half a tract of land, stands by and sees the same sold at auction by a trustee as the land of another, and permits B to buy it and afterwards to pay the purchase money and take a deed for it from the trustee, under the impression that he was getting a good title for the whole; which impression is well known to A, and he does not disclose his title at the auction sale nor afterwards, before the money is paid ; there the concealment was held to be a fraud upon B, and the Court compelled A to convey his moiety to B upon *14 the repayment of what he gave for such moiety. The cases we have cited differ from Cousin v. Wall, 3 Jones’ Eq., 43; Claninger v. Summit, 2 Jones’ Eq., 513; and Hargrove v. King, 5 Ired. Eq., 430, in that these latter were cases where the equitable matter and trust preceded the acquisition of the legal estate and was coupled with its acquisition, thus constituting the relation between the parties to be that of trustee and cestui gue trust, which the Courts will enforce. In the former cases it is seen that the legal title was first acquired, unaffected by fraud or trust, and by matter subsequent became impressed with all those circumstances of fraud and faithlessness which invoke the jurisdiction of equity for the enforcement of the principles of honesty and fair dealing. The statute of frauds does not apply to either class of cases, nor do we see that equity is less reluctant to take hold of one than the other, or when it does take jurisdiction, that it will hesitate to do complete justice. In our case, Robert Sherrill being unable to pay the purchase money for part of the land, agreed that Elbert Sherrill might take it by discharging him from the debt. The plaintiff accordingly paid the purchase money due from Robert, who was discharged by Nelson from further liability. Nelson, then, who was in equity and good conscience the owner of the land until paid for, executed the deed to the man who had paid him for it, who received the deed under the belief that the title was in his bargainor, and was induced so to believe and act, by the fraudulent conduct of Robert Sherrill. The case, there fore, falls within the principle of Sasser v. Jones and Saunderson v. Hallance, where by reason of the fraud, equity will interpose and where, when it does interfere, will not stop halfway, by simply enjoining the party from taking advantage of his legal title, but will go further and do complete justice by compelling the party to do what in equity and good conscience he is bound to do — make his representation specifically good. Adams’ Eq., 150; Sugden on Vendors, 282. *15 The defendants here claim under Boberfc Sherrill, as privies in estate, and are subject to all equities against him. The plaintiff is entitled to an in] unction j as prayed for, and also to a decree that the defendants execute to him a deed to that part of the land purchased by him. Ve have not noticed either the objections raised below to the evidence admitted,, or to the instructions asked for, as the counsel for the defendants in this Court, properly enough, desired the ease to be decided on the merits. Pee Cueiam. Judgment affirmed.