Groves' Heirs v. Fulsome

Scott, Judge, delivered the opinion of the court. This was a suit in chancery, begun by Ezekiel Groves, (who, dying, was replaced by his heirs,) against Jesse Fulsome, John Propste and others. The bill states that in May, 1836, E. Groves entered the tract of land which is the subject of this controversy, containing eighty acres, at the land office in the Jackson district. In February, 1837, Groves agreed to convey the land to E. Wilson, and bound himself in a penalty to make a title on or before the 1st March, 1840. At the date of this agreement, Susannah Fulsome lived on the land, which had some improvements upon it. Groves and Wilson, wishing to avoid difficulties, and being unwilling to take the land without paying for the improvements, proposed to Mrs. Fulsome to give her fifty dollars for her improvements, or the sum at which they should be valued by two disinterested men. She preferred the first branch of the proposition, received the sum offered, and voluntarily yielded possession to Wilson. During the latter part of the year 1837, Mrs. Fulsome made application to prove a right of preemption to the land, and Groves was notified to attend, which he accordingly did, but the matter was postponed indefinitely, and afterwards, in February, 1838, without any notice to him, Mrs. Fulsome was permitted [547] to enter tbe land, under the claim of a right of preemption, and obtained a patent for the same. Upon this, in 1843, the administrator of Wilson, who had in the mean time died, began a suit against Groves, on his bond for a title, and recovered the purchase money with interest. In February, 1838, Mrs. Fulsome conveyed the land to John Propste, her brother, and in 1847, Propste conveyed it to Jesse Fulsome, a son of Mrs. Fulsome. In 1848, Mrs. Fulsome died, leaving three children, Jesse, Malinda and Jane. The bill states that Propste was fully apprised of the conduct of his sister, knd guided her by his counsel, and assisted her with his means ; and that, at the time of the conveyance to Jesse Fulsome, he had full knowledge of all the circumstances under which his mother’s title was obtained. Fulsome and Propste relied on the statute of frauds, and in their answers, deny all notice, and insist that they were purchasers for a valuable consideration. On the trial, the evidence of several witnesses was offered in support of the allegations of the bill; also, that E. Fulsome, the husband of Mrs. Fulsome, went to the south in 1835, with horses, and has never returned. Before his departure, he pledged the tract of land in dispute to James Benton, who afterwards sold it at public sale about the time it was entered by Groves, with an understanding that, if he had entered it, the contract should be rescinded ; that Mrs. Fulsome was apprised of the sale, and was asked if she had any right of preemption to the land. She answered that she had not, that her husband had sold his improvements to Benton, and that she was permitted to live on the place, by his kindness and indulgence. Evidence was also offered tending to show in Propste a knowledge of the circumstances of this transaction, all of which was excluded, to which an exception was taken. There was a decree dismissing the bill, and the complainants appealed to this court. 1. It does not appear from anything in the cause, under what law of congress Mrs. Fulsome claimed the right of preemption, which she was permitted to prove up in the month of [548] February, 1888. The assertion in one of the answers, that she was entitled under an act passed in 1820, is evidently a gross error. It must have been under the act of 29th May, 1880, or some of the acts supplementary thereto. If under any of these enactments, her right had no foundation in law, and an act of great injustice was done to Groves, who had previously entered the land, by Mrs. Fulsome, in entering the same under the claim of a right of preeemption. The provision of the law of congress, prohibiting a sale of the right of preemption, had no application to this case. 2. Mrs. Fulsome had no right of preemption. She was not the head of a family, as her husband was alive, and had, for a valuable consideration, sold the improvements to another, under whom she claimed, as she admitted. From the evidence in the case, it is clear that the entry of Groves was lawful, as no right of preemption existed at the time it was made. But if the law was violated, Groves had no hand in it. The improvements were purchased by Benton from Fulsome, and Groves does not claim under Benton. Groves, then, finding Mrs. Fulsome in possession, without any claim to a right of preemption, gave her fifty dollars to yield to his vendee that possession. With the money thus obtained, she entered the land, the possession of which she had voluntarily given up, under the color of a preemption, to which she declared she had no right. We cannot but regard this conduct on her part as a fraud on Groves, ,, and the right she acquired by such means must be clothed with a trust for the benefit of Groves. 3. While we are aware that we cannot interfere with the primary disposition of the soil by the general government, yet our courts must not permit citizens of this state, owing obedience and subjection to her laws, under the protection of this principle, to trample under foot the laws securing the observance of good faith in the transactions between man and man. Hence our courts have held, that, although one may obtain from the United States the legal title to a tract of land, yet, if in so doing he is guilty of a fraud towards another, or affects [549] himself with a trust, he shall hold the title thus acquired for the benefit of those who have been injured by his conduct. Smith v. Stephenson, 7 Mo. Rep. In yielding her possession to Groves’ vendee, for a valuable consideration, Mrs. Fulsome impliedly undertook not to interfere with his rights. It is a fraud for a settler on the public lands to sell his improvements, and with the money go and enter from his ven-dee the very land which he had been paid to yield up. It is not acting in good faith towards him from whom the purchase money was received. It is true, the purchaser ought to have known that the land might have been taken from him at any time, but he could not expect such conduct from him to whom he had paid -a valuable consideration for the right of occupancy. It is better that the sale of a tract of land should be delayed a little while, than that such frauds should be tolerated. The present case is stronger than any of those supposed. Groves had entered his land, and to avoid difficulties and the imputation of acting harshly in depriving another of her improvement, without compensation, he paid for it. The occupant, afterwards, with this very money, enters the same land under color of a preemption, to which she had no claim in law. Under such circumstances, she must be regarded as a trustee for the benefit of Groves. 4. It is obvious that the statute of frauds has no application in this cause. That statute has never been perverted to the protection of fraud. It is well settled that frauds and trusts are not within the provisions of the statute. Groves can only have a decree, on the payment of the purchase money advanced by Mrs. Fulsome, as it is presumed that he has or may withdraw from the land office the money he paid when he entered the land. 5. The court rejected all the evidence offered by the complainants. Such a course is rather unusual. The evidence certainly tended to prove the case made out in the bill, and so long as the bill was regarded as containing equity, the evidence offered in support of its allegations1 should have been received. [550] From the course of the proceeding, it would appear that a demurrer should have been filed to the bill. To let the bill stand, and yet to refuse any evidence to maintain it, seems rather an incongruity. The complainant, after the rejection of all his evidence, was under no obligation to go farther and offer proof of the fraud in Jesse Fulsome. The other Judges concurring, the decree will be reversed and the cause remanded.