Milligan v. Dick

Mr. Justice TuuNKEY delivered the opinion of the court, November 10th, 1884. The validity and fairness of the proceedings in partition are unassailed. Mrs. Milligan took one purpart and bound herself, by recognizance, to pay one half of its valuation to M. M. Dick, guardian of Jeremiah Dick. Neither party electing to take the other purpart at its valuation, by order of court it was offered at public sale, and purchased by A. C. Hamilton for $14,353. The proceeding in partition was begun in August, 1871, and the sale was confirmed May 27th, 1872. Plamilton paid no money, but he received the deed from the trustee and then conveyed the land to M. M. Dick. Dick paid all the costs, $528.29, and gave to the trustee two receipts, each for $7,012.35, one signed by himself as guardian, and the other signed by Mrs. Milligan, which the trustee received in satisfaction of the purchase money. On the date of those receipts, Dick, as guardian, receipted for the amount of the recognizance given by Mrs. Milligan when she took the pur-part. She was 'pai.cl nothing for the difference between the sum owing on said recognizance and the sum due her out of said purchase money, but gave the receipt by the procurement of Dick. On the face of the transaction Mrs. Milligan and Jeremiah Dick were entitled, share and share alike, in the valuation of one purpart and the purchase money of the other purpart. The guardian’s receipts cover the half due his ward, but Mrs. Milligan’s receipt embraces money still in the hands of the [265] defendant. He knew all tbe facts, and the evidence discloses neither a legal nor equitable defence against her claim for the balance of purchase money in his hands, on the ground that Iris ward, if living, or if dead, the ward’s heirs may elect to take the land instead of the purchase money. He may show, if he can, a contract which defeats her right to recover, but the question of his right to purchase does not arise. The defendant’s second point is: “ The plaintiff, claiming that she signed the receipt for 87,012.85 as part of the consideration for the parol agreement of defendant to convey her, the land, such claim will not avail to destroy the effect of such receipt as against the defendant, unless such a contract was made with the defendant about the said land so specific and definite in its terms that a chancellor could enforce it, if partly performed, or damages could be recovered for its broach.” Answered thus: “ This proposition would be correct if the parties plaintiff and defendant were strangers to the proceedings and without any prior interest in the estate, and without explanation as to how the receipts came to be given. The parol promise standing alone would not be sufficient.” Although the point was not directly affirmed, the jury could hardly have understood that it was denied. The proposition and answer, alike difficult to comprehend, we tbink were well calculated to mislead tbe jury. Tbe receipt was the equivalent of so much money paid by the plaintiff to the defendant. If she paid if on a definite or indefinite contract for tbe sale of land, what rule enables him to keep both land and money ? If the contract was not so specific in its terms that a chancellor could enforce it, will the law protect him in withholding reimbursement of tbe money paid him on the faith of the contract? No principle is better settled than that tbe buyer can recover from the seller, for breach of a parol contract to sell and convey land, so much of the purchase money as was actually paid. It is no defence, that the terms of the contract were not specific and definite. Yet it is probable that the jury understood that such a parol promise to convey, as mentioned in the point, would not be sufficient to entitle the purchaser to recover back the money paid, on refusal of performance by the seller. The point ought to have been plainly refused, and tlie second assignment must be sustained. It was lawful for the parties to procure the partition, and also the sale of the land not taken by either at tbe valuation. They could rightfully obtain by legal process a public sale. There is no evidence that Mrs. Milligan conspired to procure a false valuation, or to prevent sale for the highest price that could be obtained; but there is some testimony that Dick sought to prevent bidding. A fair sale was no fraud upon [266] the minor, and while the minor was living, his aunt, Mrs. Greenawalt, had no power to object to a sale of the land, though she expected to survive him. How was a “ contingent remainder ” vested in Mrs. Greenawalt? What wrong was done to the minor by partition and sale of the land in the mode provided bylaw? Were his guardian to purchase fairly and at the highest price, it would be no crime, even if the ward at majority could elect to take the land. Nothing appears in the case to warrant the instruction given in answer to the defendant’s third and fourth points, namely, if the “plaintiff and defendant entered into any arrangement for the purpose of diverting the course of descent and securing the land to her, to the wrong and prejudice of the heirs of Mary Dick and Jeremiah Dick, of whom defendant was guardian, she would be in pari delicto, or a party to the wrong, and could not recover upon the strength of any promise made by the defendant.” The defendant’s seventh and eighth points ought to have been refused. He purchased at judicial sale, by the agency of Hamilton, and the real question is, whether the plaintiff has been paid her share of the purchase money. The trustee who made the sale was entitled to receive the amount of the bid; instead, he took the receipts of the parties who would receive the money in the distribution. The defendant had the benefit of the entire share of the plaintiff in making paj'ment to the trustee; the validity of his title is not involved in this action. When the sale was confirmed, and the deed executed by the trustee, the title was vested in the purchaser, as respects the plaintiff. It is foreign to this issue to inquire whether the ward could, if he would, defeat the defendant’s title to any part of the land. The defendant has refused to convey to the plaintiff, and although the parol contract was vague in its terms and void under the Statute of Frauds, if there be no other defence, she can recover all the money paid him on account of the contract. The only remaining assignment is the first, and that also must be sustained. In any view of the case, evidence that a number of years after the partition, the plaintiff had sold her land, and what was the price, was irrelevant; and it was impertinent in cross-examination, as it would have been in chief. It cast no light on the transactions involved in the issue. Judgment reversed, and venire facias de novo awarded.