Pickard v. Stewart

Martin, J. This suit is brought for the recovery of one half of the price of a tract of land, the property of the wife, sold during her minority by the defendant, her step-father. The claim is grounded on a deed of sale of a tract of land, given to the wife as is alleged therein, in payment of one half of the price received by the defendant on the sale of her land. The defendant pleaded the general issue ; and further, that the deed mentioned in the petition was signed by him in error and obtained in fraud ; and that at the time he received the price of the land alleged to have been sold by him, there existed a community of goods between him and his then wife, the mother of the plaintiff, Sarah Pickard, who is one of her heirs. There was a verdict and judgment for the defendant, and the plaintiffs have appealed. It does not appear to us that any part of the evidence supports the verdict. In the notarial sale mentioned in the petition, the defendant admits that he sold Sarah Pickard’s land, and that the consideration of the sale which he makes to her is one-half of the price he received for it, and that the other half is still unpaid. The sale of the land is farther proved by the answer of the plaintiff Sarah Pickard to interrogatories propounded to her by the defendant. There is some evidence that the defendant is a weak old man, perfectly illiterate, and liable to be imposed upon ; but nothing induces the presumption of an attempt to impose upon him. There is, however, room to believe that he has good ground to retain the portion of Sarah Pickard in the estate of her late mother, his wife, as the money was received during the community which existed between him and her. There has been a settlement of the community which existed between the defendant and his wife, Sarah Pickard’s mother, whose estate has been partitioned between the plaintiff and a minor co-heir of hers. We are, therefore, of opinion that, as to one fourth of the price of the land sold by the defendant there has been confusion ; that is to say, that Sarah Pickard is a debtor [176] as heir to her mother, for that fourth ; and that therefore, the half of the price now claimed is reduced to one fourth, for which the defendant may be ultimately liable ; but as she has consented to a division of her claim by receiving the half due by the defendant, settled the community estate, and partitioned it with her co-heir, who, by receiving his part of their mother’s estate, has become liable to pay her his share of the community debt for which the estate of the mother is bound, we believe it just that she should first attempt, before pursuing the defendant, to seek relief from her co-heir, whom she has permitted to receive a part of the fund which is principally chargeable with her claim. Lawson, for the appellants. J. P. Bullard, for the defendant. It is therefore ordered and decreed, that the judgment be annulled and reversed, and that ours be for the defendant; reserving however to Sarah Pickard, her claim against him for the fourth part of the price of the land, in case of her failure to recover it from her co-heirs, in using due diligence therefor ; the defendant paying the costs of the appeal.