Zuver v. Lyons

Beck, J. Different questions of law and of fact are involved in plaintiff’s claim to the separate moieties of the land. We will first consider those pertaining to the west half. ^ I. We think the evidence insufficient to overthrow the legal title vested in S. 0. Keeney as trustee for Urilla and her i. mortgage : deneé. heirs, by the deeds executed by Taylor and Simon Keeney, and to authorize us to hold that it was intended to operate as a mortgage. The evidence, to warrant such a conclusion, should be clear, satisfactory and conclusive. It not only falls short of this requirement, but the preponder-' [513] anee is tbe other .way. Plaintiff supports his claim by his own evidence; he is corroborated to some extent by one or two ’witnesses. On the other hand the brother of Urilla, who acted as the agent of the father in advancing the money to his daughter, testifies that the deed to the wife was not intended as a security. He is strongly corroborated by his sister’s.testimony, and circumstances disclosed by the evidence. This conclusion as to the facts disposes of plaintiff’s claim to the west half of the land. II. The rights of the defendants to the west half of the tract, as they are brought in issue by the cross -bill, are next to be considered. Taylor conveyed that part of the land to the father of Urilla. On the day of the execution of the deed, O. E. 2. coxvev-tíeoen' confín-Ser. remaui Keeney, who was the agent of the father, executed to her a bond conditioned that her father should within a reasonable time convey the land to her and “ her heirs at law.” Within a few months the father conveyed the land to 0. E. Keeney. The deed declares that, the estate conveyed is “in trust for the use and benefit of Urilla Zuver, wife of Solomon Zuver, during her natural life, and upon her decease the said premises are to inure and vest in her heirs in fee simple forever; they, the said heirs of said Urilla, to have and hold the said premises unto them and their heirs aud assigns forever.” By the terms of this deed, a trust estate in the lands for the life of Urilla is first created. Upon her death the legal, fee simple estate vested in her heirs. This is the unmistakable effect of the limitation in the deed. The rule in Shelley’s case therefore does not apply, for if the estate limited to the ancestor be a trust estate, and the subsequent limitation to his heirs carries the legal estate, the two will not unite in an estate of inheritance in the ancestor, but the limitation to the heirs will create a contingent remainder. 4 Kent, 210-211; Perry on Trusts, 327. C. E. Keeney, by the terms of the deed, took a trust estate for the life of Urilla. At her death’ the remainder vested in her heirs. It follows that the deed execiited by her to Lyons [514] did not defeat the limitation reserving the rejnainder, and that the heirs’ interest in the land is not affected thereby. This view renders the consideration of other legal questions arising upon this branch of the case unnecessary, and defeats defendant Lyons’ claim of title to the lands under his deed from Urilla. III*. We think the evidence does not sustain the allegations of the petition to the effect that the deed of trust to O. R. Keeney was made in fraud of plaintiff’s rights, and contrary to the terms of the agreement to which he was a party, under which the money was advanced by Simon Keeney. The preponderance of the direct evidence is to the effect that this deed is in accord with the intention of the parties; circumstances corroborate this evidence. IV. We come now to the consideration of the questions involving the title to the east half of the land. This part of 3 —_. ; trust!™8 the land was conveyed to Urilla by Taylor, who, it appears from the evidence, held the land as is alleged in the petition, to secure an indebtedness from plaintiff. It is quite satisfactorily established that plaintiff held the right to redeem from Taylor — the equitable title to the land, and that with his consent it was conveyed to Urilla to be by her deeded to one Kerns, either as security for, or in payment of a debt owed to him by plaintiff. Under this arrangement Urilla held the land in trust to be used in securing or discharging Kerns’ claim on plaintiff There can be, to our minds, no doubt that this trust was to be discharged for the benefit of plaintiff, the payment of his debt, as well as for the benefit of Kerns; neither can plaintiff’s interest and equitable title in and to the lands be questioned. Where the trust fails, as in the case of the cestwi que trust refusing to accept under it, or where a part of the trust fund or estate remains after discharging the trust, the fund or estate remaining will result to the grantor. 2 Story’s Eq., (11 Ed.,) § 1196,. 1196a and notes. It does not appear clearly whether Kerns has or has not been paid. But it may be considered, for the purpose of this inquiry, that he has not been. Neither does the evidence disclose within what time this trust was to have been performed by Urilla or accepted by Kerns. That she [515] made no effort to discharge it is quite certain. If Kerns bolds no interest as a oe-stui que trust, by reason of bis refusal to accept, or for any other reason, then there is a resulting trust to plaintiff. And if he has such interest, a contingent trust results to plaintiff for the unexhausted residuum, if any there may be. It clearly appears, therefore, Urilla held the land at the time of the deed to Lyons as a trustee for Kerns and plaintiff. V. If Lyons purchased the land with notice of plaintiff’s .equities, they are not defeated by the deed to him made by 4. _-: —: tice. ' Urilla, but he will hold the land liable to the trust and will be required to restore the estate for the purpose thereof. 2 Story’s Eq., § 994. YI. The evidence is quite clear to the effect that Lyons did have notice of plaintiff’s claim to the land — certainly he 5. _; _;___. had notice that plaintiff set up a claim to the premises, though it may be he was not informed of its precise extent and nature. This notice, in our opinion, was sufficient to put him upon inquiry, and, if he neglected the warnings which were of a character that would have led a man of ordinary prudence to investigations concerning-plaintiff’s rights, he must suffer the consequences. We conclude that Lyons holds the E. % of thq land subject to the equities of plaintiff and Kerns. VII. All that we find in the abstract before us in regard to the ten-acre tract of land is contained in the petition, decree and deed to Lyons. It is alleged that defendant purchased this land and received a conveyance therefor. The allegations of the petition are denied, and we find no proof that sustains them; in fact, the land is not mentioned or referred to in the evidence. Plaintiff is entitled to no relief, so far as the ten-acre tract of land is concerned. YIII. Plaintiff’s petition as to the W. -J- of the N. of section 15, T. 96, R. 2D, and the ten-acre tract, will be dismissed, but without prejudice as to the last tract named. A decree will be entered here declaring that the deed by Urilla to Lyons shall not be deemed to defeat plaintiff’s equities; that the title be held by him in trust for Kerns and plaintiff; [516] that if it be determined ICerns’ equities liave been discharged, the land or any residuum thereof, or of funds arising therefrom, after the discharge of Kerns’ claim, shall inure to plaintiff. Or, at plaintiff’s option, this cause will be remanded to the District Court for the settlement of the equities of plaintiff and Kerns, and thereupon a proper decree be entered in that court. The costs will be taxed against Lyons. Modified AND affirmed.