Cowperthwaite v. First National Bank

Mr. Justice Clark delivered the opinion of the court, April 2d 1883. When this case was here before (10 W. N. C. 532), it was not in proof that Mrs. Cowperthwaite alleged any other title, than such as she claimed to arise from the paroi contract, which she claimed to have made'with the officers, of the Carboudale Lank, to purchase the property for her at the sheriff’s sale. She was, of course, the wife of the defendant in the execution, and had a prospective dower interest, contingent upon her surviving him. She did not then offer to show that she had paid any part of the purchase money on the original purchase of the land by her husband, or that she had any present subsisting interest in the land whatever. She was, therefore, so far as the case then appeared, a stranger to'the title. Green, J., in delivering the opinion of the court, says: — ‘ ‘ The case is therefore the ordinary one of a parol agreement by one, tc> purchase land for another át a sheriff’s sale, followed by a breach of the contract [402] to convey on the part of the purchaser, in which case, it has been uniformly held that no resulting trust arises, unless the promisee had furnished the purchase money in whole or in part, or had, at the time of the contract an actual estate or interest in the land, or a bona fide claim thereto.” The judgment of the court below, in favor of Mrs. Cowperthwaite, on that trial was therefore reversed and a new trial awarded. At the second trial of the cause Mrs. Cowperthwaite offered to prove substantially as follows: — That at the time of the purchase of these lands by her husband, she was possessed of $1,000, in her own right, and from this she paid a large part of the purchase money; that at the time it was paid it was agreed, she should have a distinct interest or title in the property, to the extent of her contribu-' tion to the purchase ; that this title was subsisting at the date of the sale, and the . fact was made known to the bank at that time; that she refused to release her interest, or allow a consentable sheriff’s sale, unless the same was made for her benefit, and the bank, thereupon, agreed to purchase the property and convey the same to "her on certain definite terms then agreed upon ; that the bank officers represented that they were buying the property for Mrs. Cowperthwaite, and by reason thereof, others refused to bid at the sale who otherwise would have bid a larger sum than the land sold for ; that the bank became the purchaser at an undervalue, and afterwards admitted the purchase in her interest and that although she was willing and ready to comply with the agreement on her part, the bank fraudulently refused to carry out the same. We are of opinion that the refusal of this offer was error. If the. facts alleged were sufficiently proved, she would have, or appear to have, a bona fide claim, to an interest in the land ; such an interest as she might at a proper time be able to enforce in equity against her husband or those representing him. The-case comes, therefore, within the ruling of Wálford v. Herring-ton, 5 Norris 36, where it was held, Sharswood, J., “ where one, not the defendant, having any interest in lands, is induced to confide in the verbal promise of another that he will purchase for the benefit of the former at a sheriff’s sale, and, in pursuance of this, allows him to become the holder of the legal title, a subsequent denial by the latter is such a fraud as will convert the purchaser into a trustee ex maleficio.” The claim of title may not be a valid one, but if it is made bona fide, the claimant has a right to protection against the fraud of the purchaser. To the same effect are the cases of Beegle v. Wentz, 5 P. F. Smith 369, and Boynton v. Housler, 23 P. F. Smith 453. Mrs. Cowperthwaite lived upon the lands with herliusband, [403] and the facts offered to be proven, should, we think, have been submitted to the jury. Had Mrs. Cowperthwaite been a stranger to the title, the contract alleged would have fallen within the provisions of the statute of frauds and perjuries, as we have held in Jackman v. Ringland 4 W. & S. 149; Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Casey 158, and that class of cases. It is objected however that the defence set up in this offer is inconsistent with that made in the summary proceeding before the justice of the peace. At the hearing there, James Cowperthwaite, to prevent judgment, interposed his affidavit, under the Act of June 16th 1836, which was to the effect that he did not claim the premises in his own right, but under the title of his wife, Nancy C. Cowperthwaite. She, also, submitted a similar affidavit, in which she states that she firmly believes she is entitled to the premises in dispute, against the First National Bank of Carbondale, that she does “ not claim the same by, from or under the defendant (her husband) as whose property the same were sold, but by another and a different title,” and that she does “ not claim the same by title derived from the defendant, subsequent to the rendition of the judgment.” The offer above referred to is in no way inconsistent with the claim here set forth, the precise nature of which is however not disclosed in the affidavit. She very distinctly declares, however, that she does not claim title by, from or under her husband, but by another and a different title. Her claim as set forth in the offer is not by, from or under her husband ; but by and from the payment by her of the purchase money. Her title, if she has any, is not subordinate to, or derived from his, but is co-ordinate with and independent of that title. Her title, as alleged, was not created by decent or purchase from him but by act and operation of law, resulting'froin the payment of the purchase money, at the original purchase. She does not claim therefore by, from or under him, or his title, but under her own, a different title not evidenced by his deed, but established by parol. The first assignment of error is without merit, as the waiver of inquisition was contained in the record offered in evidence preliminary to the introduction of the deed; the mere fact that the waiver was not covered by the recitals of the deed is a matter of no consequence. Under the 2d, 3d and 4th assignments, for the reason already given, the judgment is reversed and a venire facias de novo awarded.