Dow v. Jewell

Parker, C. J. The plaintiff’s ease is, that the tract of land in Burnt swamp, of which he now claims one half, divided and severed, was purchased with the money of Jonathan, Jacob and Sally Jewell. He states a sale of land at Bugsmouth Hill woods, belonging to them as heirs of Joseph Jewell, and that the proceeds of that sale were invested in the purchase of the tract in Burnt swamp. The answer of Jonathan Jewell attempts to show that — 349 — Joseph Jewell owned only one third of the Bugsmouth Hill land; that all who were interested joined in the sale, and that although the money received upon the sale may have gone into the purchase of the land in question, Jacob and Sally had no interest in if, he having accounted to them. But however the ownership of the land sold may have been, there is no evidence to prove that the money of any persons except Jonathan, Jacob and Sally Jewell was used in the purchase of the land in question. There is nothing to show that any of the other persons named ever claimed an interest in the land in Burnt swamp. The attempt on the part of Jonathan Jewell to show that notwithstanding the money of Jacob and Sally received on that sale was used in making this purchase, yet that the purchase was for himself, and that he thereupon became indebted to the others, fails altogther. He does not allege that it was so agreed. He alleges a settlement of accounts with Jacob in 1821, but does not allege that tins money was included in that settlement, and no proof is offered that any such settlement was ever made. His answer, although evasive, tends very strongly to prove that the money of Jacob and Sally was in fact used by him in making the purchase, and that Jacob, at least, had some interest in the land. The answers of the other defendants, who come in upon his subsequent conveyance, deny the purchase in trust, but tbey do not appear to have had any knowledge except what they may have derived from him, and from the fact of the division. .From the evidence it appears that Jonathan, during the time he held the title, admitted that Jacob owned half, and that Sally had a right to have her wood from it. It proves also that he applied to two of the heirs of Jacob to have a division made, and that he was present in making one, and putting up the monuments. — 350 — One of his sons, Richard, since dead, is shown to have been present, aiding in that partition, and Jonathan, in his deposition, taken to be used in the suit at law, and now used against him to show his admissions, says his boys and Jacob’s wanted the land divided. There is further evidence that he proposed to give a deed of the part thus divided off to the heirs of Jacob, upon receiving a deed of one half of the saltmarsb, of which Jacob held the title, and it appears that George, another son, and one of the defendants, was present at that time. - The evidence of Ms admissions, made in disparagement of his title, and giving a character to his possession at the time he held the title, is competent to show the true nature of his title and possession, against the other defendants, who claim under him. 2 N. H. Rep. 372, Proprietors of Claremont v. Carlton; id. 387, Adams v. French; 15 N. H. Rep. 563, Smith v. Powers, and authorities cited. There is also evidence of acts of ownership by Jacob, in his lifetime. And the evidence that Jonathan and Jacob held other lands in common might tend to strengthen the case. Upon the first point, then, the evidence is quite sufficient to overcome the answers, and to establish the fact that the money of Jacob was used in making the purchase, in a manner to constitute a resulting trust in his favor, to some extent, because it was understood and agreed that the purchase ivas to be made with his money, for his benefit. It has been objected that the allegation in the bill on this point is not sufficient\ but the bill states that Jonathan laid out the money of the three, for their common use, benefit and advantage, under an agreement and understanding that Jonathan and Jacob were to be owners in fee and tenants in common, each of a moiety, and that' Sally was to have her wood from the land daring he? — 351 — life, and that a deed was taken to Jonathan. This is a sufficient allegation of such a purchase as to raise a trust. The extent of the trust, for the benefit of those interested, remains to be considered. There is some evidence tending to show that other money, beyond the money received for the sale of the Bugsmouth Hill land, may have been furnished by Jonathan, or Jacob, or both, and used in making the purchase, but this is not alleged on either side, and the evidence is quite too slight and uncertain. The money of Sally, having been used in making the purchase, which was to be to some extent for her use and benefit, the defendants object that she ought to be made a party, and it is clear that she has, or may have, an interest in the subject matter of the suit. The argument for the plaintiff assumes that she has no interest except to have her wood from the land, but that is the very question first to be settled. She is entitled to allege and show, by other proofs than those already in the case, that, by the actual agreement in pursuance of which the purchase was made, she was to be equally interested with her brothers in the title. If no affirmative evidence of that character exists, she may, upon the case as it now stands, contend, as the defendants have done, that parol evidence cannot be introduced to prove that her interest was other than an equal interest, according to the proportion of the money advanced by her in making the purchase, she being interested in that purchase. If the operation of the purchase was to raise a resulting trust for her, to the extent of one third of the land, then the division between Jonathan and the heirs of Jacob, even if there were no other objection to it, must fail for that reason, not having been made among all those interested, and there would be an end of the plaintiff’s case. But the exclusion of unwritten evidence to establish and — 352 — limit a trust for her to take wood alone, may not necessasarily result in showing that she has an interest in the land. Should the evidence, upon her being brought in as a party, tend to show, as it now does, that in point of fact there was a verbal agreement, by which, in consideration of the money advanced by her, she was to have her wood from the land during her life, and should it be found in point of law, no trust of that character could be set up as resulting from the use of her money in making the purchase, for the want of evidence in writing to establish and limit a trust of that character, a question may still arise, whether "the exclusion of the proof of such verbal contract, for the purpose of raising a trust, will result in giving her a trust estate in one third of the land, because her money was used to that extent, or will exclude her from any interest, on the ground that the proof that she was to have an interest in the purchase, by the agreement of the parties being excluded, the fact alone that her money was used by the others would only create a debt in her favor against them, and enable her to recover the amount of them in a personal action for that purpose. In other words, there may be a question whether, if the proof of the verbal contract be excluded, there is any evidence to show that she was to have any interest, or upon which she can be regarded as a purchaser, so as to raise a trust. 2 Paige’s Ch. 238-242, 265, White v. Carpenter. Assuming, as the bill avers, that by the agreement the purchase was to be made for the benefit of Sally, so far that she was to have a right to take wood from the land during her life, and that there was a valid trust to that extent for her benefit, she is still entitled to be heard upon the question whether the division or partition attempted to be established in this case, and to which she does not appear to have been a party, may be to her prejudice, and whether any thing is necessary to be done to secure her rights. — 353 — In any view of the case, therefore, the court ought not to proceed to a decree, unless she is in some way made a party. But there are other questions in the case, relating to the partition and subsequent proceedings, which seem to be immaterial to the interests of Sally Jewell; and as it cannot be to her prejudice, and may conduce to the interests of the parties at present before us, we have proceeded to consider the effect of the alleged partition and subsequent proceedings upon those who were parties to them, so far as they are before us. By the common law, tenants in common might make partition by parol, if it were accompanied with livery of seizin in severalty; Co. Litt. 170, a; 2 Cruise Dig. 561; and parceners might make partition by parol, generally. Livery seems not to have been required. 2 Cruise 542. Such partitions would bind those who claimed under them. It is held in England, however, that the law in these particulars has been changed by the statute of frauds. Rob. on Frauds 285. And so is the doctrine in Massachusetts. 5 Mass. 235, Porter v. Perkins. But in New-York there are several cases in which it has been held that parol partition, by tenants in common, carried into effect by possession, is binding. 4 Johns. 202, Jackson v. Harder; 9 Johns. 270, Jackson v. Vosburgh; 7 Wend. 141, Jackson v. Livingston; 14 Wend. 625, Corbin v. Jackson; 25 Wend. 436, Ryerss v. Wheeler. The leading case is Jackson v. Harder, 4 Johns. 202, although that professes to be founded upon a prior decision. 2 Caines 169, Jackson v. Brady. But in the case in Caines there had been a deed recognizing the partition. In none of these cases is there any reference to the statute of frauds. Whether the statute of New-York is not in terms like the English statute, or for what other reason a different rule is held there from that prevailing elsewhere, we need not inquire. — 354 — Holding as we do, in accordance with the decisions in England and Massachusetts, that as a general rule a valid partition of lands held by tenants in common cannot be made by parol, because of the statute, we are of opinion that this case is not within the provisions of the statute, and that the partition therefore is valid, provided Sally Jewell had no interest to be affected by it. This is a case where the property was held by a trust arising by implication of law, and in its original inception the trust is within the express exception of the statute. No instrument in writing is necessary in order to create the trust estate, or show the right of the cestui que trust. And if the existence of the trust estate may be shown by parol, because the case is not affected by the statute, and the trust may be enforced without writing, because never within the statute, we see no good reason for holding that the estate is within the statute in other respects. So long as it exists as a trust, thus raised by implication of law, it exists with all -the incidents attached to such an estate before the statute, because of the exception. And one of those incidents, as we have seen, is that partition may be made by parol. It would present a singular state of the law were we to hold that the creation and continued existence of the estate and title might be shown without any written declaration of the trust, but that a division of the property among those who thus held it must be proved by writing; thus requiring a higher degree of evidence to show the partition of the property, than was required to show the existence of the title to it. Besides, in England, although in general partition among tenants in common must be in writing since the statute, chancery will in some instances confirm a parol partition which has been executed, and possession taken accordingly, even in cases which do not involve a trust. Thus it has been held that partition between tenants in tail, though only by parol, shall bind the issue. 1 Vern; 233, Thomas v. Gyles. And — 355 — in Ireland v. Rittle, 1 Atk. 541, the Lord Chancellor said, “ when there had been a long possession under an agreement for severalty of partition, this court is strongly inclined to quiet the enjoyment of such estates.” A release to Jonathan Jewell was in no way necessary to the validity of the partition. He held the legal title to the whole. On partition he did not need any thing more than the partition itself to confirm his title to the part he took in severalty. But here we come to another point. Only two of the heirs of Jacob Jewell, Barnard and Jacob, Jr., were parties to this partition when it was made. It was competent for the rest to have dissented. But it was also in their power to ratify it. 13 Johns. 367, Jackson v. Richtmeyer. And upon the partition of Jacob’s estate among the heirs, this was treated as a part of his estate, and set off to Alfred ; and, with one exception, all the interest of the other heirs in the tract has been conveyed to Alfred since his conveyance to the plaintiff, if their deed be valid. Assuming the validity of the deed, those who lawfully executed it must be held to have ratified the partition, from the fact that this was assigned to Alfred as part of his share, that the others of course have other lands of the intestate, and in consequence of that have released this. They cannot say now that this was an invalid partition, and the title of Alfred invalid for that reason. So far as they have ratified the partition and conveyed their interest, it is not necessary that they should be made parties. But one of the heirs, Susan Merrill, has not executed the deed to Alfred in a manner to bind her. She has signed it by her maiden name, Susan Jewell, and her husband is not a party to it. It was suggested, upon the argument, that a stranger — 356 — cannot take the objection that she is married; but the defendants may object that the plaintiff does not show title to the land in question, or to a portion of it. Perhaps her confirmation now may make it good. See 1 Atk. 548. We come next to an objection which has been taken to the deed to Alfred Jewell, on account of an alteration in it. There is an alteration apparent upon the face of the deed, but it relates to another tract of land described in it. There appears, also, to haye been a blank in the description of the land now in question, which has be.en filled. We have held, in relation to a promissory note, that an alteration of the date is presumed to have been made after its execution, and the burden of proof to show the fact to be otherwise is upon the holder. 11 N. H. Rep. 395, Hills v. Barnes. The same reason exists for presuming that a material alteration in a deed was made after its execution, and for holding the grantee, and those who claim under him, to show the fact to be otherwise. 2 Wend. 555, Jackson v. Osborn. We cannot find, upon inspection of this deed, that the alteration was made before the execution of it, nor does the mere formal proof of the execution of the deed establish that fact. Whether this alteration, being in the description of another parcel of land, may be regarded as an immaterial alteration, so far as the title to the land now in question is concerned, or whether, if shown affirmatively to have been made by the grantee, with a fraudulent intent, it would avoid the whole deed, so that it could not be given in evidence, even to show title to the land the description of which is not affected by the alteration, are questions which we leave for further consideration, should the case hereafter require their decision. 1 N. H. Rep. 145, Chesley — 357 — v. Frost; 2 Hill. Abr. 414-416, and authorities cited ; 22 Wend. 388, 393, Herrick v. Malin. If the alteration may be regarded as immaterial so far as this suit is concerned, it cannot, for the purposes of this suit, be presumed to have been fraudulently made by the grantee. The filling of the blank, which appears to have been originally left in the description of this land, may well be presumed to have been made before the execution of the deed, there being no evidence to the contrary. Such would be the natural course, as the description would not be perfect until the blank was filled. Another objection to the deed is on account of the description of this property, “ one and a half acres, more or less, and adjoining land of Rufus How and others, being the Burnt swamp land, so called.” This is quite loose enough, but it may be understood to refer to the part of the land in Burnt swamp, which, on the parol partition, fell to the grantors. There is no evidence that they had any other land in Burnt swamp, and the maxim, “ Id cerium est,” ¿>c., may well apply. The parol partition being sufficient, the objection that it was not competent for the grantors in that deed, or for Alfred Jewell, to convey a specific portion of the land by metes and bounds, fails of course. The defendants object that the plaintiff cannot avail himself of any contract by Jonathan Jewell to convey the land in question to the heirs of Jacob, if they would convey to him one half of the saltmarsh. But we do not understand that he seeks to sustain his bill upon the ground that he is entitled to a specific performance of any contract of that character. The evidence to that effect is well used along with the other evidence to show the trust and the partition. The reliance of the defendants upon the lapse of time as a bar to the relief sought, canuot avail them. In the cases referred to relief was refused on the ground of — 358 — laches; but in this ease there is evidence of a distinct acknowledgment of the trust by Jonathan, a joint occupation, a subsequent partition between Jonathan and the heirs of Jacob, a division of Jacob’s estate among the heirs in which this was included, and a conveyance of the land to the plaintiff by the heir to whom itwas set off on that division. It was not laches in Jacob to let the matter lie in trust so long as Jonathan acknowledged the trust and permitted him to cut wood upon the land. There can be no disseizin of a trust (3 Snmn. 476), nor was here any adverse possession to operate as a bar; nor has there been any neglect since the partition. When the defendant Tnxbury asserted a title, after the conveyance by Jonathan, the plaintiff immediately brought his bill. It has been further argued that the defendants, with the exception of Jonathan, and perhaps George, are bond fide purchasers for a valuable consideration, without notice, and as such are entitled to hold the land. But we are of opinion that the consideration is not sufficient to entitle them to stand upon that ground. The payment of the debts of the grantor might b'e good, standing alone, if not grossly inadequate, but the agreement to support him and his wife forms a part of the consideration, and for aught which appears the material part of it. Such a consideration is not within the principle -which protects a bond fide 'purchaser without notice. It is not good against existing creditors ; 11 N. H. Rep. 459, Smith v. Smith; and, a fortiori, it cannot be good against a cestui que trust, where his land is fraudulently conveyed by the trustee. A purchaser upon such a consideration must look to the title, and the equities to which it is subject. It is said in Twyne’s Case, 3 Co. 81, that " Where a man, being greatly indebted to sundry persons, makes- a gift to his son, or any of his blood, without consideration, but only of nature, the law intends a trust betwixt them, soil, that the donee would, in consideration of such gift — 359 — being freely and voluntarily made to him, and also in consideration of nature, relieve his father, or cousin, and not see him want who had made such gifts to him.” There is surely not the less a trust, if the consideration be an express agreement that such relief should be furnished, and a party who owns the land is as well entitled to the benefit of the principle as a creditor. The plaintiff has desired leave to amend, if the court-should be of opinion that Sally Jewell ought to be made a party; but this seems not to be a proper stage for amendment, if the matter can be reached in any other mode. No amendment is generally allowable, if the parties are at issue upon the points of the original bill, and -witnesses have been examined. Story Eq. Pl. 268. An exception has been admitted in the case of the plaintiffs discovering' the necessity of new parties, which the plaintiff may add at any time, by leave of the court, limiting his amendment to that purpose. Ditto 680. But the plaintiff here may wish to go further than merely to summon in further parties, and it admits of question whether new averments can be introduced by way of amendment, without allowing the answers to be withdrawn, and making it necessary to take the testimony anew. A supplemental bill is proper to bring before the court a party who has been omitted to be introduced at the stage of the cause in which an amendment for that pur-' pose may be made. Story Eq. Pl. 271; 4 Johns Ch. 605, Ensworth v. Lambert; Mitf. Eq. Pl. [62] 99, and notes. We do not at present see any objection to the plaintiffs alleging, in a supplemental bill, whatever it may be necessary to allege respecting the interests of Sally Jewell and Susan Merrill. Leave to file a supplemental bill.