Long v. Perdue

Mr. Justice Sharswood delivered the opinion of the court, January 8th 1877. [217] If the appellants had a right to an account, which was one of the prayers of the bill, then it was not prematurely filed and ought not to have been dismissed. We have in this case the reports of two masters, not harmonious as to the law, but sufficiently so as to the material facts to enable the court to decree the trust and to enforce an account. The first master, Mr. Greer, finds distinctly a parol agreement on or about May 13th 1872; that defendant on obtaining the lease of the lot should hold it in trust for Mrs. Long as to one half, that he was to advance the money to pay the bonus and should put down an oil well, to be reimbursed out of the proceeds of the well, provided the well AYas a good one; if not good the advances to be held as a debt against the plaintiffs, and when the well was completed to convey one half interest in the lease to Mrs. Long. The defendant in his answer admitted an agreement conditionally Avith the plaintiffs, that if they paid the one half of the' cost of putting down a Avell before the first well was put doAYn or finished that he would then convey either to Long or his wife the one-half of the well: and if the money was not all paid in before the first Avell Avas doAvn, then the contract was to be null and void and of no effect whatever and no conveyance was to be made. He declares, hoAvever, that such parol agreement AYas not entered into by him until after the lease Avas executed to him, May 23d 1872, and the title fully vested in him, and then relies on the Statute of Frauds. We are of opinion that the finding of the master is sustained by the proof. It does not rest upon Long’s evidence alone, but his statement is confirmed by Gibson and Haggerty, that before the lease AYas executed, Perdue said that Long and he understood each other. He told BaldAYin on the day of the survey, Avhich was before the execution of the lease, that he had taken the lease and that Mrs. Long would own one-half of it. His repeated declarations to several witnesses afterwards must be referred to this understanding. He stated, himself, the contract differently in his testimony, that if Mrs. Long paid up the money before the" AYell was down she should have such interest as she paid. Long’s interest at the time of this parol contract was what is termed an option. Gibson, the agent of the OAYners, had promised him verbally to grant him the lease, provided he came forward and paid the agreed bonus within a certain time. This agreement Gibson was Avilling and ready to carry out in good faith — even though offered better terms from another party. Long being unable to pay the bonus — made the agreement Avith Perdue which has been recited — and Gibson made and executed the lease to Perdue by Long’s request. It is clear, according to Seichrist’s Appeal, 16 P. F. Smith 237, and Squire’s Appeal, 20 Id. 266, that the circumstances gave rise to a trust by construction of larr, not within the prohibition of the Statute of Frauds. Perdue obtained the title under the confidence reposed in him by Long. He could not have [218] secured it without Long’s consent. Long had a sufficient interest. Gibson did not set up the statute, but recognised the contract with Long and actually executed the lease according to Long’s direction. Mr. Miller, the second master, very ably and elaborately supports this view, and finds that there was sufficient to establish the trust. But he thought that until Perdue was fully reimbursed his advances and had then refused to convey, he had done no act of which Mrs. Long could complain, no act that would make him trustee ex maleficio. As he was of opinion from the evidence that the well had not produced enough to reimburse Perdue for his advances, he concluded that the bill was prematurely filed, and therefore reported the decree that it should be dismissed without prejudice, which was confirmed by the court. We think there was error in this. Had Perdue in his answer recognised his relation as trustee, as according to the proofs he ought to have done — without pretending that the contract was after the execution of the lease, and without setting up the Statute of Frauds, there can be no doubt that the plaintiffs would have had a right to an account of Perdue’s advances, and of the proceeds of the well — so as to ascertain the precise amount upon payment of which Mrs. Long or her assignee would be entitled to a conveyance. And that in this proceeding, a bill in equity is a much more flexible instrument of justice than a suit at law. It is not always necessary that the equity of a plaintiff should be perfect at the time of filing the bill, provided it is so when the decree comes to be made. The familiar case of a vendor seeking specific performance against his vendee is an illustration. The rule in equity is to decree the specific execution of a contract for the sale of land, on the application of the vendor, if the latter is able to make a clear and unencumbered title at any time before the decree is pronounced: Hepburn v. Dunlap, 1 Wheat. 179; Moss v. Hanson, 5 Harris 379. If Mrs. Long or her assignee had brought an equitable ejectment, the jury by a conditional verdict could have found the balance due by her and given her a reasonable time within which to pay it. The denial of the trust in the answer, contrary to the truth, did not produce a different result. The repudiation of the contract by Per-due made him a trustee ex maleficio, not from the time of the denial, but by relation from the time of the original agreement. It would be a strange doctrine in equity, that in such a ease a party could go on reaping the fruits of the agreement without liability to account until by express denial or repudiation the trust ex maleficio should spring into existence. Mrs. Long had, therefore, a right to an account when the bill was filed, and she or her assignee will have a right to a decree for a conveyance upon payment by her of the balance ascertained to be [219] due — and it will be competent for the court to allow her a reasonable time to make such payment. As the dismissal of the bill was erroneous, it is obvious that the decree of the court below on the subject of the costs and the masters, &c., must fall with it. Decree reversed, and record remitted to the court below that a decree for an account may be there entered, and the case referred to a master to take and report such account. The costs of this appeal to be paid by the appellee.