Wright v. Dame

Wilde J. delivered the opinion of the Court. The first objection, on which the defendants rely in support of the demurrer to the bill, is merely formal, and of little importance, as the supposed defect may be supplied by an amendment. The plaintiff, therefore, can have no cause for complaint in being held to the strictest rules of pleading. These rules are founded in good sense, and are more simple than the rules of special pleading in an action at law. But the forms and rules of pleading, both in suits at law, and in courts of equity, are to be strictly observed ; otherwise great laxity of pleading may lollow, and the object of the rules would be defeated. But as the most learned and careful pleader, in the hurry of business, may make mistakes in mere matters of form, amendments are allowed with great liberality, and without costs, unless the opposing party is thereby prejudiced ; and thus any hardship, which a party might otherwise suffer by mistakes in matters of form, which have no bearing on the merits of the case, may be avoided. The learned counsel who argued the demurrer on the part of the plaintiff, does not deny the well established rule on which the objection to the bill is founded ; nor does he complain of its practical operation ; but he contends that the bill is properly framed, so as to entitle the plaintiff to the relief prayed for, and that the supposed defect does not exist. The defect relied on in support of the demurrer, is in the stating part of the bill. The bill alleges, that the plaintiff conveyed certain land, of great value, to the defendant, Dame, on certain trusts, and authorized him to make sale of the same on certain conditions ; that he afterwards sold the same to the defendant, Kendall; that at the request of Dame, the plaintiff [59] united with him in the deed of sale to Kendall, on the express condition, that it should not affect said trusts, or the duties or liabilities of Dame and Kendall; and that he placed the deed in Dame’s hands upon the express condition that it should not be delivered to Kendall, but upon payment to Dame of one half of the purchase money in cash, or security satisfactory to the plaintiff. The bill then states, that afterwards Dame delivered the deed to Kendall, who recorded the same in the registry ; but it omits to state whether Kendall did or did not pay Dame the one half of the purchase money, according to the condition on which the deed was to be delivered. If he did, he would not be bound to see that Dame should pay over the money or deliver over the securities to the plaintiff. The bill charges, that he was so bound ; and in this view it is necessary to ascertain how the fact is. The bill should charge, expressly, that the deed was delivered over to Kendall without the performance of the condition. The averment in the stating part of the bill is, that he took the estate charged with the trust to perform the contract with Dame, and that Dame should perform his trust to the plaintiff, and charged also with all the other trusts. But if Kendall paid over one half of the purchase money, as the averment seems to intimate, it is very clear, that he would not be bound to see to the application of that part of the purchase money. It has been argued, that the defect may be supplied, or the meaning of the stating part may be explained, by the averments in the charging part of the bill. But the rules of pleading require that every material averment that is necessary to entitle the plaintiff to the relief prayed for, must be contained in the stating part of the bill; and this is a useful rule for the preservation of form and order in the pleadings. This part of the bill must contain the plaintiff’s case, and his title to relief; and every necessary fact must be distinctly and expressly averred, and not in a loose and indeterminate manner, to be explained by inference, or by reference to other parts of the bill. The defendants are not bound to answer any averment not contained in the stating part of the bill. If then the plaintiff intends to hold Kendall and the South Wharf Corporation accountable for the whole purchase money an amendment of the bill will be indispensable. It [60] must be averred, that the deed was delivered over to Kendall by Dame, without payment of one half of the purchase money either in cash or security satisfactory to the plaintiff. As to the remaining half of the purchase money, it is objected, that the trusts cannot be enforced against either Kendall or the South Wharf Corporation. By the Revised Stat. c. 81, § 8, this Court is empowered to hear and determine, in equity, all cases in suits and proceedings for enforcing and regulating the execution of trusts, whether the trusts relate to real or personal estate. This section gives the Court jurisdiction in all cases of trust, where the parties have not a plain, adequate and complete remedy at the common law. It was argued that this section ought to be limited to express trusts; and a note in the report of the commissioners for revising the Statutes was referred to, to show that such was the intention of the framers of the law. But we think no such intention can be inferred from the language of the note. After referring to the former statute, which gave the Court a more limited jurisdiction, the note concludes with the remark, that “there appears to be no reason why all trusts relating to property should not have the benefit of the same remedy.” By the language of the statute, no distinction is made between express and implied trusts ; and there does not seem to be any good reason for such a distinction. But if the provision could be so construed as to limit the jurisdiction of the Court to express trusts, it would not affect the present case ; for the trusts are express. It is expressly averred in the bill, that Kendall had full knowledge of the trusts, and that he was to pay half of the purchase money to Dame ; and it is a familiar principle of equity, that a purchaser from a trustee, with knowledge of the trust, takes the estate subject to the trust. And the South Wharf Corporation took the estate subject to the same trust. It was argued by their counsel, that their purchase of the estate from Kendall, was a fraud, and so not within the jurisdiction of the Court; but we think there is no ground for the argument. Kendal] had the legal estate, and had a right to dispose of it; and if the corporation took it subject to the trusts, as they are bound to hold it, this could be no fraud on the cestui que trust. They, therefore, as well as Kendall, are clearly [61] bound by the trusts, supposing they had full knowledge of the trusts at the time of their respective, purchases, as it is averred in the bill that they had. Demurrer allowed,