Murray v. Sells

McCay, Judge. 1. If the truth of this case is as claimed by the defendant in error; if honestly and fairly, his homestead was laid off out of his own property, and it -was sold and the proceeds disposed of as he claims, and with the object and intent he claims, and by reason of the mistake of his agent, the formal title ■was made to Mrs. Sells, and the plaintiff in error bought it with full notice of the facts, it is eminently just that Sells, who had no partin the firm.of Rondeau & Company, and who, — 268 — by this mistake, would lose his land, should be protected, especially against the plaintiff in error, who acted with his eyes open and at his own risk. Why should Sells’ land go to pay Rondeau & Company’s debts? What equities should arise in favor of Murray who was fully notified that this land was not Mrs. Sells,’ and who purchased it, speculating upon his chances of showing that the land was hers, notwithstanding the notice to him? Very probably be felt quite certain the claim of Sells was untrue, and that he, Murray, would succeed in establishing that view of it. He has failed in doing that to the satisfaction of a jury, and must take the-consequences. The jury having found the facts for the plaintiff below, we are to treat them in our inquiries as to the law arising thereon, as with the plaintiff below. We are to assume that the place sold to MePhee was the property of Sells, as the head of his family; that with a part of the money he bought the land in dispute from Rondeau & Company, that he did so in good faith, with intent to reinvest the proceeds of his homestead in it, and that by a mistake, or by ignorance, or fraud of the agent sent to Orine, the deed was made, not to himself but to Mrs. Sells, as a free trader, and that the defendant below bought the land with full notice of the facts. Assuming this, we have not .the slightest doubt that under the law such a mistake will not be permitted to deprivehim of bis property. If this mistake did in fact occur, Mrs. Sells (free trader) was a trustee for Sells as the head of his family. Equity would have arrested the mistake as to her, and against purchasers from her with notice. We do not see that any irregularity in the sale to MePhee of the^ homestead can affect the question as to Murray. Mrs. Sells did not, if the case be as the plaintiff below claims it and as the jury has [found, pay for the Rondeau property in any way. The money came from Sells; where he got it is immaterial; he did not pay it to Rondeau & Company for the ¡uirpose of buying the property for Mrs. Sells, free trader. It was intended to be his own property ; the investment of the money he got from MePhee and Mrs. Sells (the free trader) had nothing to do with it. Nor is it material — 269 — whether the mode taken to reinvest was by consent and approval of the ordinary, so far as the present dispute was concerned. Admit that McPhee was defrauded by Sells, still, if Sells took the money and invested it'as a homestead, for himself, as the head and trustee of his family, he had a right to do it as against Rondeau & Company and their creditors, though he had a dozen homesteads. Though his own creditors might object, what right have the creditors of Rondeau to find fault. Sells was not one of that firm, and if he intended to, and did in fact, invest the money he got from McPhee, as he says he did, and the deed was by mistake made to Mrs. Sells, (free trader,) Sells, as the head of his family, has as much right to correct the mistake as though John Doe had invested money, as the head of his own family, and by mistake the deed had been made to Amy Sells, free trader. Some of the facts in the record go to create a strong suspicion that the whole story is a got up thing to hide Rondeau & Company’s property, and had the jury found for the defendant below their verdict could have been sustained on this ground. But the judge put all these circumstances fairly before the jury, and put them, as we think, strongly for the defendant. But if Sells clid put the McPhee money into this property, as he says, and as Rondeau says, and with the intent and object stated, the case for the plaintiff below was very clear under the law. It is the simple case of a man buying property, and by a mistake in the deed, the title is made to a wrong name and wrong person. That is the legal aspect of it if the jury have found rightly on the facts. That the money Sells used to make the purchase was chargeable with the homestead interest, or claimed to be charged, has little to do with it. The McPhee property never, in any sense, belonged to Mrs. Sells, free trader. It was set apart to Sells, as the head of his family, as a homestead for them under him, and he being no part of the firm of Rondeau & Company, there is no reason why his property, or the proceeds of it, should go to their debts. 2. Properly, the objection to the amendment is not before us. The decision of the court overruling it occurred at the — 270 — trial and no interlocutory bill of exceptions Avas filed. The alloAving of the amendment is not one of (he grounds for a neAY trial, and the bill of exceptions uoav before us, Avas not. signed by the judge until after his judgment oAmmiling the neAY trial, Avhich Avas more than thirty days after the adjournment of the court at which the trial before the jury took place. But as there may be some question Avhether, if the amendment was not good, the verdict and charge are illegal, based, as they are, upon the idea that the jury might treat the deed from Orine as a mistake, and as though it Avere reformed, we feel it to be our duty to decide whether the amendment Avas properly alloAved. Under section 3082 of the Code, a suitor. may choose his forum. He is not compelled to go into equity, and the superior courts are clothed with full poAver to mould their verdicts and judgments so as to grant equitable relief. "Without doubt, under the facts set forth iu the amendment, equity Avould grant the relief sought. And under the broad poAver of this section, Ave think the amendment was properly allowed; perhaps the prayer for a formal reform could not be granted for Avant of Orine as a party. But the court might, as against the defendant, Avho is charged Aidth full notice, decree that he shall stand in Mrs. Sells’ shoes, Avho, if the facts stated in the plea be true, is clearly only a trustee for thepersons Avho should have been the named grantees iu Orme’s deed. It is a purely technical objection to say that this is a purely equitable proceeding. A court of Iuav can do all that is asked, without any help from the peculiar processes or forms of proceeding usual in equity. "Nothing is required but to recognize as legal, rights which are, iu fact, perfect equities, and enforce them. If the section of the Code enlarging the jurisdiction of the superior courts, as courts of Iuav, does not go this far, it might as Avell be dropped altogether. Nor is it any good objection to this amendment that the original proceeding is in the statutory form. No neAY parties are introduced, no neto right of action is asserted ; the amendment is merely to state in a neAV form, the right Avhich is claimed in the original declaration, to-Avit: that the title is in Sells, as — 271 — the head of his family; and in this respect it comes within even the narrow rule laid down. We think, therefore, the judge was right in allowing this amendment and in admitting evidence to support it, and in charging the jury as he did as to its power under it. 3. The. objection that a mistake to be corrected must be mutual, is true of a simple mistake, for if both parties be not mistaken, one of them has either acted bona fide, and has a right to his bargain, or he has been guilty of fraud, which stands for relief upon its own ground. But here, Orme was a mere nominal party to the deed. The real contractors were Sells and Rondeau & Company. Orme lost all interest when his money was paid, and he did not care to whom he made the deed, if Rondeau & Company were willing. Assuming, ■which we must do, in asserting the legal proposition, that this trade between Sells and Rondeau did take place, as they both say, and as the jury has found, it would be very extraordinary if equity would be so hampered by the technical rule that mistakes in contracts must be mutual to be corrected, as to refuse to interfere, when, as to the parties really at interest and really contracting, the mistake was mutual, because Orme, the mere nominal party, holding nothing but the paper title, and who was already bound by his bond to make the deed to Rondeau & Company’s direction, was not mistaken. To do so would, indeed, be sticking in the bark, and would be utterly at variance with that broad rule so familiar and so dear toa court of equity, that it will look to the substance and not to the form of matters which come before it. 4. We do not think the court erred in his charge. In substance he did say that all the defendant’s equities were to be considered, if the jury deemed them superior to the plaintiff’s, and had the jury been satisfied from the evidence that Rondeau & Company had any tangible interest in the property, we think, under the charge, it would have been their duty .to burden the plaintiff’s recovery with the discharge of that interest. But if Sells and Rondeau tell the truth, the title to this.land was really in Sells, and he was entitled to recover — 272 — it; and any interest Rondeau & Company had in it, or Mi’s. Sells, as a free trader, had, the defendant would, in equity, and under the pleadings at law, have a right to set up as a charge upon the land. There is quite strong proof that Rondeau & •Company furnished the material and much of the work to build the houses, though Rondeau testifies that Sells always kept money on deposit with him to pay for these things, and that they were paid for. But in no event, under the evidence, could these equities have been considered by the jury, for the simple reason that there -was no evidence at all as to the value of these advances of work and material by Rondeau & Company. Any consideration of them, with a view of decreeing in their favor, would have been improper, because there was not a particle of evidence as to the value or extent. 5. We think the charge as to the fraud of .Kyle was properly refused. Murray can not plead as against even Mrs. Sells' the fraud on Kyle, if there was a fraud. He, Murray, has nothing to do with Kyle, who doubtless will take care of himself, and he is no privy of Kyle’s. Courts do not undertake to hold people to their acts, which are false or untrue, except as against persons who have been injured by the fraud, or who have acted on it as a consideration moving them to act, and there is no pretence of that as to Murray. We doubt if this written request fairly means anything more than that Kyle was defrauded. The parties are bound by that fraud, even as to Murray. But it is contended that the request has a wider range, and that in this refusal the court declined to charge, that if the deed to Mrs. Sells and to Kyle was only part of a scheme to defraud Rondeau & Company’s and Mrs. Sells’ creditors, then they would be bound. But this is in fact the whole of the defendant’s case, and was given in the very strongest terms by the judge. Nor was it possible for them to suspect that by his refusal of this charge he had repudiated what he so strongly and emphatically told them was the very point of the case. Indeed, that and that alone was the issue on trial. It was not material as a matter of law whether it was Sells’ homestead money [or his private money — 273 — that bought this land. If Sells saw fit even of his private money, or of money which he fraudulently got from MoPhee, to buy this land for the special use of himself, as the trustee of his wife and son, under the terms of the homestead act, and the deed was made by mistake to Mrs. Sells, as a free trader, then, as against Mrs. Sells or her creditors, or the purchaser at bankrupt sale, with notice, the plaintiff was entitled to recover. But if the scheme was a mere device to cover Rondeau & Company’s property, or Mrs. Sells’ property, from the debts of the firm, then he did not have a right to recover. The judge gave this to the jury as the law, perhaps not so strongly for the plaintiff as he ought, and there is nothing in his refusal of this charge as to the fraud upon Kyle that in the least takes back or modifies this main point, and the jury fully understood this. 6. d'he true complaint in this ease is with the verdict of the jury. They saw fit, in spite of the various, indicia of fraud on, Rondeau & Company’s creditors, pointed out so strongly by the judge, to believe Sells and Rondeau; and so believing, they found for the plaintiff. There is a great deal of evidence in the record tending to show that the truth of the case is with the defendant, and had the jury so found we should liave said, amen. But the contrary is the case, and we have no right to interfere. Two witnesses sustain the verdict entirely and emphatically. On the other side, there are very suspicious circumstances — but that is all, going to discredit Sells and Rondeau. The jury, after weighing all, have believed Sells and Rondeau; and as we have said in such cases so often, we have not the right to interfere. By our law the jury’s verdict is final upon facts like these. Judgment affirmed.