Keller v. Ashford

Mr. Justice James delivered the opinion of the court. The parties to this cause have, we think, substantially agreed upon the law of the case; that is to say on the doctrine that if there was no acceptance of the condition introduced in the deed that Ashford as grantee should pay this debt, he was not bound to pay it although it was so specified in the deed. It is not of any particular interest to go into the details of the testimony, but our conclusion after examining it carefully is: First. That Dr. Ashford was no party at all to the original negotiation. He had no reason tó know and no means of knowing that any such condition was introduced, nor did he even know that a conveyance was made to him by Thompson. Some time afterward he obtained his information from Moses Kelley, his father-in-law, who was indebted to him, and for whom he was security in some matters. It should be observed here that the only conflict of testimony is that of Mr. Boarman and Dr. Ashford, and that conflict relates to a matter scarcely material. Dr. Ashford is not contradicted by anybody as to the original transaction nor as to the character of his information from Moses Kelly. That information was to this efiect: That Kelly told him he had given him some lots (he was not even then informed where the title came from) and gave him to understand that he thereby secured him. Kelly did not definitely state that he had given him these lots in payment, and inasmuch as there was no ascertainment between them at that time of the value of the lots, it is not to be presumed that it was in payment of a definite amount; we must, therefore, assume from this conversation that Kelly was intending merely to secure a liability. Dr. Ashford paid interest on the encumbrances. It was’ perfectly natural that he should do just what any person [456] who seeks to save his security must do He collected the rents. It was consistent with the idea of security that he should do that also. But we do not find any transaction on his part accepting the condition in the deed to pay the debts secured by prior encumbrance. Just when he obtained his information that there was a condition is not precisely ascertained. We are of opinion, however, that Mr. Boarman is more likely to be mistaken than Dr. Ashford as to having given him the information in the month of October instead of in the spring of the ensuing year. But on the whole that is not material for we are satisfied that Dr. Ashford did not accept this condition. • The bill does not proceed upon a promise of Dr. Ashford. For if the plaintiff relies upon a distinct promise, the remedy is an -action at law. But the bill is carefully drawn on the theory that Dr. Ash-ford has made a contract with Thompson hy which he reserved a part of the consideration, and that the amount so reserved constitutes a trust in his hands for the benefit of the plaintiff. But the evidence is that Ashford had no contract whatever as to what the consideration was to be with Thompson. The fact, therefore, that there was no understanding as to what the price of the property was to be, supports the theory that it was transferred through Kelly’s instrumentality by way of security to Dr. Ashford. The decree below is affirmed.