Dozier v. Freeman

Simrall, J.: The legal questions arise on this state of facts: The complainant, Freeman, had an equitable title to the southeast \ of sec. 1, town. 10, range 4 east, and came to an agreement with Dozier and Brame to sell and convey to Brame, for a price agreed upon, Freeman to take a slave by the name of Harriet, at the price of $1,000 for the cash payment. The slave was held by Dozier, as trustee for Leonora Lockhart, nee King, the granddaughter of Brame. Brame, discovering that the legal title was in Wells, paused in the consummation of the purchase, when another arrangement was made, by which Wells conveyed the land to Brame, taking from him his two notes for the deferred payments, Freeman — 659 — at the same time surrendering to Brame the notes for corresponding amount which he had given. It seems that Freeman was indebted to Wells some $1,000, which was credited by the substitution of Brame’s notes, as above stated, and also by the sum of $1,600, the price of Harriet, purchased from Freeman by Wells, as part of the transaction. Afterward, upon objection made to Freeman by Wells that Harriet was unsound, the sale was rescinded and cancelled as to her. Dozier, in the sale of the slave to Freeman, as the cash payment for the land conveyed to Brame, warranted her soundness. Freeman brought suit, in 1862, upon the covenant of warranty, and recovered against Dozier a judgment for $1,300, or thereabouts. Executions upon this judgment have been returned nulla bona. Thereupon, Freeman brought this bill in chancery, claiming that a resulting trust exists upon the land in favor of Mrs. Lockhart, which ought to be subjected in the proportion of $1,000 to the whole consideration money to the satisfaction of his judgment against Dozier. Brame has departed this life intestate, leaving, as his heirs at law, his grand children, the issue of his daughter, Mrs. King, who is also dead. The defense was placed upon several grounds. .1. That Dozier, the trustee, had no power to sell the slave Harriet; 2. He had no power to make a warranty which, in equity, ought to bind Mrs. Lockhart or her estate; 3. There has been no breach of the warranty. The equity of the complainant, as claimed by him, is that the property of Mrs. Lockhart was applied to pay in part for the land conveyed under the circumstances disclosed in the record by Wells to Brame, and, therefore, a resulting trust inures to her pro tanto; which trust a court of equity will work out and apply to the satisfaction of Mrs. Lockhart’s debts. The predicate law is sound. But does the complainant exhibit a debt — 660 — against Mrs. Lockhart which she ought, in good conscience, to pay ? Is it binding upon her and her estate ? It may be assumed as fact that the slave Harriet, at the value of $1,000, was accepted by Freeman from Dozier as part payment for the land, and that the benefit of that arrangement was carried out when the title passed from Wells to Brame. But had he authority to make that use of property which he held in trust? The paper containing a receipt of the price and warranty of title is signed by Dozier “ as trustee for Leonora Lock-hart.” Freeman was advised that Dozier was dealing with the property by virtue of authority conferred upon him, and not because of personal ownership, and, having notice, was charged with the duty of acquainting himself with the extent of his power. Where one deals with another, acting under delegated authority, it is his own folly, if he does not inform himself of the scope of the authority. The principal is only bound so far as he has consented to be bound. Those having interests in the subject-matter of the trust or agency are no further concluded than as the trustee or agent has pursued his power. There is some difficulty in arriving at the exact truth as to the fact, because there are three deeds of trust in the record, made by Brame to Dozier; in two of which a slave by the name of Harriet is mentioned; one executed in 1842, the other in 1860. In the abstract of counsel for appellees, it is stated that they rely upon the deed of 1860. It is not intimated anywhere in the record that there were two women of that name. The deed of 1842 conveys several slaves to Dozier in trust for Mrs. King. The 4th trust is, “ to have and hold the slaves ‘ Harriet,’ Margaret, children of Caroline before mentioned, to and for the sole and only use and benefit of my grand daughter, Mary Leonard King, daughter of Mary F. F. King and Madison King, the said slaves and their increase.” — 661 — It is manifest that this deed does not confer upon Dozier a power of sale. His office is nominal, except so far as would be necessary to interpose and protect the property or its income for the cestui que trust. Instead of selling, he is to “ have and to hold,” for the sole, and exclusive use of the beneficiary. If the slave mentioned in this deed is the same as the woman of the same name in the deed of 1860, it is equally clear that Brame, by the conveyance of 1842, had divested himself of all title and interest, and could not therefore declare another or different trust in 1860. It does not seem to be controverted that there is but one person of that name, and that both deeds refer to the same slave. The important matter then is, that Mrs. Lockhart, the real beneficial owner, who was under coverture at the date of the sale and warranty, should herself have parted with her ownership, and that she should have assumed the burden of the covenant of warranty. The only ground upon which it is maintained that she assented to the disposition of the property, is that she was aware that a rule was to be made, and acquiesced in it. The law does not favor the divestiture of the wife’s separate property by an implied consent or acquiescence. Where the husband claimed her slaves as his own, and had them valued as such, she being aware of' it, and making no objection, it was held that this conduct did not divest her right as against another creditor. Palmer v. Cross, 1 S. & M. 48. Where the husband (and the principle applies to her trustee) sold the wife’s slaves, but afterward made a settlement of other property upon her, then she gets an equivalent compensation, and, if she elects to hold under the settlement, she could not recover back the property so converted. Wiley v. Gray, 36 Miss. 510. So in this case, if Mrs. Lock-hart. were asserting and enjoying the benefit of the — 662 — resulting trust, she would be precluded from asserting a right to the property which had been used to purchase it, althoúgh such appropriation of it was ultra vires of the trustee. ' But she denies and rejmdiates.any claim to the land arising out of a trust, and refers her right to the inheritance cast upon herself and co-heirs of her grandfather, and a purchase by her husband of the interest and title of her coparceners. Although the chancellor rejected the written evidence of such purchase by Mr. Lockhart, there is testimony in the record that the obligations of Lockhart were given to the co-heirs of his wife for their interest in the land, and that Lockhart and wife were- in the occupancy of the whole tract, referring their right to that acquisition of title. The testimony quite conclusively negatives the proposition that Mrs. Lockhart or her husband claimed otherwise than through a descent cast upon her and purchase from her co-heirs. If there was no right in the trustee to sell, he certainly could not impose upon Mrs. Lockhart a liability by the warranty. There is no clear and satisfactory proof of the unsoundness of the slave at the date of the sale to Freeman. The judgment against Dozier does not conclude Mrs. Lockhart on that point. The foundation of the debt attempted to be charged upon her is the damages resulting from the breach of warranty. Dozier, in his testimony, does not affirm that within his knowledge the slave was unsound. Quite all of his information and statements are derived from others. Thus, he says, Dr. King, at the time it was proposed to sell her, was of opinion that she was sound. Again, when Wells returned her to Dozier, he reported that he had procured physicians to examine her, who thought that she was diseased. Nearly, or quite all, the testimony has the weakness of hearsay evidence. Neither Freeman nor the physicians were examined. There is the utter — 663 — absence of testimony from primary sources, tending to prove the character of the malady, the extent and duration, and to what extent it injured value. Freeman did not offer to rescind the sale by a return or offer to return; he would only be entitled to recover from Dozier to the degree that the services were impaired by disease. But further, the circumstance in this connection is worthy of note, that Dozier made no defense to Freeman’s suit, but suffered judgment to go by default. If, in his estimation, he was but a nominal party, the real warrantor being Mrs. Lockhart, then it was his duty, as a faithful trustee, disposed to protect his cestui que trust, to have given notice to Mrs. Lockhart and husband, so that they might have opportunity to have a full investigation. On the complainant’s theory that Mrs. Lockhart is responsible for the warranty of her trustee, we think the testimony is not clear and satisfactory as to the breach of warranty, and of the extent of damages resulting therefrom. We think there is error in the decree; wherefore it is reversed, and judgment here dismissing the complainant’s bill.