Featherston v. Richardson

Jackson, Chief Justice. The error assigned in this record is the judgment of the court overruling the demurrer and retaining the bill. The purpose of the bill is to set aside a deed made by the complainant’s intestate, on the ground that the grantee had no title to certain lands conveyed by the intestate, because he had wholly failed to carry out the trusts confided to him, upon the fulfilment and performance of which his title to the land conveyed was to be absolute, but not before; or in the event that equity would not have the deed set aside and canceled absolutely, then that a decree be had compelling the grantee to fulfil the trust confided to him by the decedent, or deliver up the deed and restore the land to the estate. This is the sum and substance, the aim and scope of the bill and amendments. The equity of the bill rests, in the main, on the construction of the deed. These words appear in it: “ Now, the further consideration of this deed is that the said Featherston is to pay off and discharge said mortgages (previously described), he contracting to be liable for the payment of the same only so far as the proceeds of the land will go towards their payment, in no case assuming any individual liability except to faithfully discharge his duty in managing or dis posing of the land, so as to make it or the proceeds thereof, [505] if possible, pay off and discharge said mortgages, and to take the trouble and vexation of managing and disposing of the same off the hands of the said Richardson ; and whenever the said F. shall in any way pay off or satisfy said mortgages, then all of said lots and parts of lots of land shall belong absolutely to ,him, discharged from all claims and incumbrances whatsoever, except those hereinafter mentioned and specified.” Those thereinafter mentioned and specified are that the mortgagees may foreclose, and that a homestead for the grantor may be carved out of the land, which is “ to hold in abeyance and to prevent going into full effect the absolute right of G. W. Featherston.” Without invoking the aid of surrounding circumstances, which, if the instrument itself were doubtful of construction, could well be invoked by parol, and which are set out in the bill, we are of opinion that its meaning is quite apparent from inspection. Its own light is enough to enable one to read it without pouring other rays upon it. Two considerations are expressed in it, one is the usual trifling and formal consideration of ten dollars at its beginning, and the other and the real consideration is the extinguishment of the mortgages by “ managing or disposing of the land,” and relieving the grantor from “the trouble and vexation ” of doing so himself. This real consideration on which the title to the grantee is to become absolute — it being in him before in the former part of the deed, to enable him to manage and dispose of it to extinguish these mortgages — the bill alleges has not been performed at all by him, but the lands have been used for his own profit and emolument. Some of the mortgages are unpaid ; others, which have been paid, are transferred to the wife of the grantee, and are outstanding in her name, with the view that the interest accumulating on them may eat up the entire lands. Thus the consideration of the deed has absolutely failed, the trust on which it is made has been betrayed, and the confidence [506] of the grantor abused by this trustee, in whom a qiioad hoc sort of title was put to enable him to pay off these mortgages, and upon the performance and faithful discharge of which trusts, and not until that performance and faithful discharge, the title to him individually and absolutely was to pass. The very consideration on which it was to be absolute or perfect, or freed from the mere character of a deed with power to manage and sell, is the faithful execution of the trust. It has not been faithfully executed, but fraudulently turned to the benefit of the trustee and his wife, if the bill be true, and the demurrer admits its truth. Ought it not then to be canceled and annulled by a court of equity? Could not this grantor have gone into equity and demanded its cancellation in his life time? If so, may not his legal representative do so now under this bill ? Shall he hold the land and not pay for it what he agreed to pay, to-wit, the relief' of the grantor from the trouble and vexation of managing and selling the lands so, as to extinguish the liens thereon — a payment which he has not made and can now never make, because the grantor is now free forever from all earthly vexation and annoyance ? Without considering, therefore, the surrounding circumstances, or any other charges in this bill, such as the insolvency of the grantee, his disclaimer of title while the grantor lived, his failure to record the conveyance during that life-time, his transfer of the mortgages to his wife, etc., there is equity in it springing out of the deed itself, and the utter failure to perform the trusts expressed therein, to require its retention in court and to demand a thorough and full trial thereof on the merits. The demurrer, in any view we can take of it, was properly overruled, and the judgment must be affirmed. The entire bill, amendments and all, points to these lands, to the fraudulent use of a legal quasi title in them, and to relief from this fraud. In its entirety it appears to us [507] harmonious and not multifarious. In equity all kindred causes may be embraced and all parties summoned to her bar, by amendment, which are necessary to adjudicate the questions at issue, and to complete the justice she seeks to mete out to all. Judgment affirmed. Cited for plaintiff in error: Code, §§3480, 2309,-2310, 2295, 3115; 2 Wash. Real Prop., 3 (2), 10 (11), 6 (4), 11 (10), 12 (13), 18 (19), 20, 7, (5), 4 (bottom); 1 Perry on Trusts, 124, 134, 135, 137, 1.53 ; Hill on Trusts, 91, 120; 20 Ga., 563; 15 Ib., 103; 5 Ib., 341; 13 Ib., 192; 40 Ib., 199, 204; 1 Doug. R., 225, 527; 4 Kent., 130, 129, 132; 2 Story, 1319, 1494, 1509; 53 Me., 213; 14 Allen, 69; 4 Watts and S., 149; 30 Ind., 228; Har. and J., 551. For defendant: Code, §2316; 2 Story Eq., 972, n, 4, 1036, n. B.; 1 Vol. Leading Cases in Eq., 304, 307, 327.