Van Dyke v. Johns

Kidgely, Chancellor. Upon two grounds it is insisted that the defendant is a trustee for the complainants of the real estate held by him under the deed from G-eorge Monro, who was the purchaser at the sale made by the defendant as administrator of Nicholas Van Dyke, dec’d, viz : first, that there is an express trust; and, second, that a trust arises by implication of .law. First. As to the express trust. That, it is supposed, is made out by the testimony of G-eorge Monro. This witness, after describing the lands and stating the time and place of the sale and the attendance of other persons, says that he does not know whether those who attended the sale thought that the real estate was to be bought in for the widow and children, for that he mixed very little with the people ; that he knew his own object in attending the sale and had little or no communication with others. He went there at the request of the defendant and with the impression that he was to buy the real estate for the widow and children of Nicholas Van Dyke, and if he had not had such an impression he never would have attended the sale. He had a great regard for all the family and for the said Nicholas Van Dyke, and highly respected his memory. It was for this cause that he attended the sale and wished to — 104 — buy in the real estate, for the benefit of said Vichólas Van Dyke’s widow and orphan children. He further says, that he does not know whether the defendant represented that it was either his object, or wish, or intention, to secure the said real estate for the widow and children, nor does this witness know whether the said defendant made any representation or explanation. All that he (the witness) knows in this respect is, that he had an impression on his own mind that he was to buy in the real estate for the widow and children, so that the property might not be sacrificed, but be used to the best advantage for the benefit of the widow and children. The witness does not recollect the sum he bid for the said land, but states that he did not purchase for himself; that he purchased for the defendant, for the use and benefit of the widow and children, and that the defendant did request the witness to bid for him. The witness cannot remember the reasons which the defendant assigned for this request, nor whether he assigned any, but he considered, from .the connection, of the defendant with the family of Vichólas Van Dyke, and also from the confidence which the witness placed in his intentions, that the defendant wished him (the witness) to attend the sale for the purpose of buying in the property for the widow and children. From the assurances which the defendant gave the witness that he. should incur no risk or difficulty, and that the said real estate should not remain on his hands, but that the defendant would take it off of his hands and secure him, the witness bid off the land, as he then thought, for the widow and children. He further says, that he never paid any consideration for the said real estate. The sale of this real estate to George Monro was made on the 3rd October, 1789. The return was made the 6th October, 1789. Kensey Johns’ deed to George Monro, is dated the 12th October, 1789, and George Monro’s deed to Mr. Johns, the 13th October, the next day. — 105 — Iu an administration account passed by Kensey Johns on the 6th April, 1790, he accounted for £1617, the amount of the sums bid by George Monro. It appears that the proceeds of the real estate fell far short of paying the debt of the decedent. Vone of the other witnesses have any knowledge that the purchase was made for the benefit of the widow and children of Vichólas Van Dyke. Mr. Stockton rather contradicts that idea. Mr. Pearce had no communication with the defendant on the subject, but he understood among the people collected at the sale, that the property was purchased for the family and that on that account no person would bid. This is the evidence upon which the express trust is supported. If this evidence is sufficient it will be manifest that this trust will grow out of the impressions of the witness and not from any express declarations of the defendant. George Monro attended the sale with the impression that he was to purchase for the benefit of the widow and children, and he repeats the convictions of his own mind more than once in the course of his testimony, but. he declares that he does not know whether the defendant represented that it was his object, or wish, or intention to secure the land for the widow and children, nor does he know whether he, the defendant, made any representation or explanation. He does not remember whether Mr. Johns assigned any reasons for desiring him to attend the sale and purchase the land, but he considered from the connection of the defendant with the family of Vichólas Van Dyke and also from the confidence which the witness placed in his intentions, that Mr. Johns wished him to attend the sale for the purpose of buying in the property for the widow and children. In the whole of this transaction there is no evidence of any declaration of Mr. Johns. Vo terms,no conditions, no consideration, no limitation nor use of the land is talked of or agreed upon, by either Mr. Johns — 106 — or George Monro ; and yet it is expected that the impressions of the witness should be sufficient to amount to a declaration of trust. George Monro explains how it happened that these impressions were made on his mind. He considered, from the connection of Mr. Johns with the Van Dyke family and from the confidence which he placed in the intentions of Mr. Johns, that he was to purchase in the land for the widow and children. Heither George Monro, nor the complainants, nor any one of Hicholas Van Dyke’s family, ever paid any consideration for this land. The consideration or purchase money was accounted for by Mr. Johns in his administration account passed the 6th of April, 1790. Then, no valuable or meritorious consideration ever passed from George Monro or from any of the complainants : neither was any declaration made by paroi or in writing at the time of the sale, nor when the deeds of conveyance were executed, nor at any other time, of any use of this land for the complainants. An express use is where the use or interest is openly declared and expressed between the parties, upon the creation of the estate whereunto the use is annexed. Sheppard’s Touchstone, 501. But, instead of any declaration or expression made between the parties of the use here claimed, we have merely the impressions of George Monro, without his knowing that Mr. Johns had any object, or wish, or intention to secure the land for the complainants, or even whether he made any representation or explanation in relation to this matter. To declare this to be an express trust for the complainants would be making the defendant a trustee upon the mere opinion or impression of George Monro, without any proof in relation to the defendant. The whole contract would be on one side, and the defendant’s mind or intention would not be known. Uses, it is said, may be created by word or paroi agree — 107 — ment, as well as by deed or writing; as if a man, by verbal ■ agreement, in consideration of money or the like, sell his land to another, or agree and promise that the bargainee shall have it for any time, although no use or estate will thereby arise (if it be a freehold that is sold) within the statute, (27 H. 8 c. 16,) because it is not by deed indented; yet a good use will arise at common law, and the bargainee shall have relief in equity for his purchase. Shep. Touch. 508. But it is because the consideration, in equity, raises the use. 1 Bac. Abr. Bargain and Sale, C. 468. Since the statute of 29 Car. 2 c. 3, all declarations of trust, except such as arise by implication of law, must be in writing, and signed by the party who is in law enabled to declare such trust, or else it must be by his last will in writing. If the English statute extends to this State, then there could be no express trust, because there is no such declaration in writing. However, without determining that matter, I think that the complainants have failed in establishing any express trust, even by paroi; for, whatever George Monro’s intentions were, it was evident that he considered himself altogether as the agent of Mr. Johns in purchasing in or bidding off the land, and. that he was to give no direction to the limitation or disposition of the land. He paid no consideration; he incurred no risk or difficulty; he was a mere instrument in passing the estate and conveying the legal title in the land. He made no terms; and, in short, it is evident from his testimony that no contract was ever made, or trust declared by, or between him and Mr. Johns for the use or benefit of the complainants. Second. As to a trust by legal implication. In all cases of uses and trusts which are not within the statute of uses, (27 H. 8, c. 10,) the law is now as it was before the statute was made, and all those matters are determinable in chancery. 7 Bac. Abr. Uses and Trusts,135; Shep. Touch. — 108 — 506. In cases where uses pass by transmutation of possession, as by fine, feoffment, or common recovery, then the consideration is not material, for he who makes the estate may appoint the use without any consideration. But, in bargains and sales, and covenants to stand seized to uses, it is otherwise; for there the consideration is so necessary that nothing will pass, neither will any use arise, without a consideration, that is, some matter that may be cause or occasion meritorious, amounting t'a mutual recompense, in deed or in law—which must be expressed or implied in the deed whereby the use is created, or else supplied by averment and proof. 7 Bac. Abr. Uses and, Trusts, 96, 97 : 1 Bac. Abr. Bargain and, Sale, D. 469 : Shep. Touch. 570: Mildmay’s case, 1 Rep. 175, b. 176. a : 3 Bro. Ch. Rep. 12, 13. And no court of conscience will enforce donum, gratuitum. In this respect then, there can be no implied trust; for the complainants never paid any consideration. But there is another rule in equity relied on by the complainants; that is,that a trustee cannot be a purchaser of the estate of which he is a trustee, and that this is a general rule of public policy depending, not upon the circumstances of the case,but upon general principles; that however honest the circumstances of any individual case may be, the general interests of justice require the purchase to be avoided in every case. But, notwithstanding the extent which is given to this rule in English decisions, it is not there without some limitation. In 1 Ves. Sr. 9, Whelpdale vs. Cookson, Lord Hardwicke said that if a majority of the creditors agreed to allow it (that is, a purchase by a trustee made for him by another person,) he should not be afraid to make the precedent;- and in Campbell vs. Walker, 5 Vesey Jr. 678, the Master of the Rolls, afterwards Lord Alvanley, said that any trustee purchasing trust property is liable to have the purchase set aside, if, in any reasonable time, the cestui que trust chooses to say — 109 — he is not satisfied with it. In that case it was referred to the Master to inquire, whether it was for the benefit of the plaintiffs that the premises should be re-sold. Also, in Morse vs. Royal, 12 Ves. Jr. 355, a purchase made by a trustee was established under circumstances. So that the proposition is not universally true, that, at all times and under all circumstances, a sale made by a trustee to himself is void; and the broad rule, which now seems to prevail in England, required years to bring it to its present maturity. See Sugden on Vendors 391, 394, 399, It is not even here desired that this sale should be declared void, but that the defendant should be decreed to be a trustee for the complainants of the land sold by order of the Orphans’ Court, and that an account should be taken of the rents and profits. According to the general course of the cases in England, where the trustee remains in possession of the1 land which he has purchased of the cestui que trust, and the sale is questioned and disapproved of by the Court, the sale is declared void; but where the trustee has parted with the land at an advanced price, he is made to account for the difference in value. And when the sale is declared void or the difference in price accounted for, all who are interested in the estate, the cestui que trust, heirs, creditors, those entitled to the surplus, if any—all come in according to their respective interests. Bothing can he more equitable ; for if the act of the trustee is annulled, all those in interest—no matter in what character or relation they stand to or are connected with the estate—all should and ought to come in and be restored to their original condition and relation to the estate, as near as time and circumstances will allow. The prayer of this bill could never be allowed in its fullest extent, under the most favorable circumstances, to the complainants, because,if this sale should be declared void, then the creditors of Bichólas Van Dyke must in the first place be let in,for they have a superior equity to the complainants — 110 — and a better title in law to have that estate applied to their use, and the complainants could be entitled only to the surplus after the payment of the debts. Upon no principle whatever can the heirs claim any advantage from this transaction in exclusion of the creditors. If the sale was void, then the creditors present themselves as having in law a superior right, and if the sale has been so managed as to make the defendant a trustee, he is a trustee for the creditors as well as for the heirs, so that there can be no implied trust exclusively for these complainants. But there are other reasons that should have weight in the consideration of this case. First, is the long delay of the complainants. The sale was made in the year 1789, now nearly thirty years ago. Abraham Van Dyke, the youngest child, was more than twelve years above the age of twenty-one when the bill was filed. Sugden in his treatise on Vendors, 404, remarks, that if a cestui que trust acquiesce for a long time in an improper purchase by a trustee, equity will not assist him to set aside the sale. He cites Price vs. Byrn, 5 Ves. Jr. 681, where Lord Alvanley refused the aid of the Court, because the bill had been delayed twenty-one years. There was no period of time from the first purchase of this land to the present moment that it was not known that the defendant was the purchaser. His deed to George Monro and George Monro’s deed to him were quickly recorded. The defendant held the land. The widow during her life, and several of the complainants on their arriving at age, knew perfectly well the manner in which the title to this land was acquired, and there can be no pretence to say that this material fact was not as well known within one twelve month after the transaction as at any subsequent period.. Second. Another objection to the relief sought by this bill arises from the fact,- that the sale was returned to and confirmed by the Orphans’ Court. But it is said the — 111 — Orphans’ Court, is a court of limited jurisdiction, proceeding under the Act of Assembly, and 4 Binney’s Rep. 404; 6 Binney’s Rep. 490, are cited to show that a decree of the Orphans’ Court may be examined in a collateral suit. It has been so decided in Pennsylvania, but I think not correctly, nor according to the general rules of law. Chief Justice Tilghman in 4 Binney, says, if the question were open (that is, whether a decree of the Orphans’ Court, should stand until it were reversed,) I should think it well •worthy of consideration; but it has been otherwise settled in Pennsylvania, and in 6 Binney, he says, it might be more convenient and render the law more uniform, if those proceedings (in the Orphans’ Court) were reversible only on an appeal; but after the long practice, which has prevailed, of inquiring into these proceedings, in actions of ejectment, it is too late to attempt an alteration. It is evident that Chief Justice Tilghman is not altogether satisfied with the practice in Pennsylvania, and a slight consideration will show the inconvenience and frequent injustice of suffering those proceedings to be inquired into and reversed in every collateral suit. The Orphans’ Court does not exist by the Act of Assembly. A portion of the judicial power of the State is vested in the Orphans’ Court, and with respect to the matters over which it has jurisdiction it is a court of as public and general jurisdiction as the Court of Chancery, the Supreme Court, or the Court of Common Pleas. It would be extraordinary that the judgment of a Justice of the Peace should be- unimpeachable until reversed on a writ of certiorari, and that the decree of the Orphans’ Court should stand for nothing or rather be liable to be impeached, reversed and annulled, before all and every tribunal in the State. The Prerogative Court in England, is established for the trial of testamentary causes, where the deceased left bona notabilia, within two different dioceses. All causes relat — 112 — ing to wills, administrations, &c., are originally cognizable before the judge of that court. An appeal lies to the King in chancery, by statute 25 H. 8 c. 19; 3 Bl. Com. 65. It is a court of public and general jurisdiction. 3 Bl. Com. 61, 71. Private or special courts are Forest Courts, commissioners of sewers, and others mentioned. 3 Bl. Com. 73, 72. In all matters which fall within the jurisdiction of the Orphans’ Court, it is a court of equity, and proceeds on the same principles as the Court of Chancery ; and so it is' in Pennsylvania, 2 Binney’s Rep. 299 : Cowper 322, Rex. vs. Grundon. The temporal courts must consider the sentence of the ecclesiastical courts as final and conclusive, till reversed. In Ambler, 761, this doctrine was ■reviewed and confirmed. How, I can perceive no principle upon which proceedings of the Orphans’ Court can be distinguished from those of the ecclesiastical courts in England, nor why its decrees should be examinable before every other tribunal in the State. If they may be examined here, or in the courts of law, so they may by any Justice of the Peace. In the case of Robinson vs. Perkins, in the High Court of Errors and Appeals, I understood that that court held itself bound by the decreé made in the Orphans’ Court, and made it the foundation of the account which was then taken between the parties. If the proceeding of the Orphans’ Court may be examined in every collateral suit, the establishing of an appellate jurisdiction in the Supreme Court was worse than useless ; for it tends to mislead and deceive. As the Orphans’ Court had complete power to inquire into all the matters touching the administration of Bichólas Van Dyke’s estate and the sale of the land, I am of opinion that the proceedings of that court should be conclusive on this, until they are reversed. Bill dismissed.