Bryan v. Dupoyster

RICHARDS, Circuit Judge. This was a bill filed May 8, 1902, by the complainant (appellant) against the defendants (appellees) to foreclose what was claimed to be a mortgage on a tract of land containing about 3,500 acres, known as the “Ft. Jefferson Tract,” in Ballard county, Ky. The defendant the Ft. Jefferson Improvement Company, although served, did not appear to the bill. Joseph C. Dupoyster filed an answer. To this the complainant filed a general replication. The case was heard upon the pleadings and proof, and a decree rendered dismissing the bill. The complainant below has appealed. The case turns upon a construction of three conveyances. The complainant relies upon the following instrument, executed and delivered to him, as constituting a mortgage: “This agreement made and entered into this 17th day of September, 1890, by and between Jos. C. Dupoyster, acting as trustee for Ben S. Dupoyster, both of Ballard County, Ky., party of the first part, and William S. Bryan, of St. Louis, Mo., party of the second, part, witnesseth: That whereas the said party of the first part has sold to the Fort Jefferson Improvement Company, an incorporation, a certain tract of land known as the Fort Jefferson tract, situated in Ballard County, Ky., and supposed to contain thirty-five hundred acres, more or less, and whereas said party of the second part is interested in said tract to the value of five thousand dollars (85,000.00) in cash paid to the said party of the first part, and whereas the said party of the second part has agreed to receive in lieu of the said five thousand dollars (85,000) fifty thousand (50,000) shares of stock in the Fort Jefferson Improvement Company, and whereas, there are certain deferred payments to be made to the party of the first part by the said Fort Jefferson Improvement Company, now, therefore, if the said company or its legal representatives [89] should fail or refuse to meet and pay said deferred payments in the amounts and at the times agreed upon, then this agreement and instrument of writing shall have the force and effect of a lien against the lands and improvements embraced in the said Fort Jefferson tracts, for the purpose of securing to the said William S. Bryan, his heirs and assigns, the said five thousand dollars ($5,000) herein named.” Conceding that this instrument, although never acknowledged, was in equity a mortgage upon the tract, it is clear, upon a careful reading, that it was executed, not by Joseph C. Dupoyster acting for himself, but by Joseph C. Dupoyster acting solely as trustee for Ben S. Dupoyster. It so states. Its operation therefore was limited to the interest which Ben S. held in the Ft. Jefferson tract on September 17, 1890. What interest did he hold in it at that time? Joseph C. Dupoyster was created trustee for his brother, Ben S., by the latter’s deed of August 20, 1887, which conveyed the Ft. Jefferson tract and other lands to the former upon a trust defined as follows: “Said second party is to manage, sell and make deeds, rent, or lease any or all of the above lands according to his best judgment. And my just debts is to be paid out of the proceeds of the first sales, and if the second party should survive the first party, then the proceeds of such sales, rents, etc., to be paid to his second party’s son, Joseph B. Dupoyster, after paying for a suitable monument at the tomb of said first party. The second party is to retain a liberal fee for his services in managing the above estate.” It is to be observed that this conveyance provides that, if Joseph C. Dupoyster should survive Ben S., then the proceeds of the sales, rents, etc., shall be paid to Joseph C.’s son, Joseph B., after paying for a suitable monument to Ben S. It purports, therefore, to pass to the trustee the control and disposition of the lands during the lifetime of Ben S., and seemingly recognizes Joseph C.’s son, Joseph B., as the owner of an interest in the lands after the death of Ben S. The question which naturally suggests itself, in view of the peculiar phraseology of this conveyance, is, what interest did Ben S. have in the lands at the time he made it? And this brings us to a consideration of the terms of the deed of these lands of March 16, 1859, executed by Thomas Dupoyster, the father of Ben S. and Joseph C. Dupoyster, to Ben S. Dupoyster. This deed from Thomas Dupoyster, the party of the first part, to Ben S., the party of the second part, was upon the following express condition: “It is expressly agreed and understood that said second party is to deed or will said lands to the bodily heirs of J. O. Dupoyster; in other words, the title and possession of said lands is only invested in said second party during his natural lifetime, then to said heirs of J. O. Dupoyster, and second party has the discretion of allotting said lands between said heirs as he may see proper, said second’ party.” “To have and to hold said lands during his natural lifetime and said heirs and their heirs and assigns together with all the appurtenances thereunto belonging forever with covenant of general warranty.” In an action brought by Joseph C. Dupoyster, in his own right and as administrator of Ben S., against the Ft. Jefferson Improvement Company, to recover the balance of the purchase price of the Ft. Jefferson tract, the Supreme Court of Kentucky held that this deed was genuine, and that it vested in Ben S. only a life estate, with remainder to the children of Joseph C., which vested in the first-born child, and opened up to [90] let in the after-born children. 21 Ky. Law Rep. 515, 51 S. W. 810, 48 L. R. A. 537. Ben S. Dupoyster, therefore, at the time he made his brother trustee, and at the time his brother, as trustee, executed the alleged mortgage to the complainant, had and held only a life estate in the Ft. Jefferson tract. It was for this reason the circuit court of Ballard county, in the suit to which we have referred, set aside the sale of the Ft. Jefferson tract to the Ft. Jefferson Improvement Company, and rendered a judgment against Joseph C., individually and as administrator for Ben S., for $10,000; this being the amount of the payments made by the improvement company on the land. But the court declined to make this judgment a lien on the land. It thus appears that Ben S. Dupoyster never had more than a life estate in the Ft. Jefferson tract, and this estate terminated on March 5, 1891, on which day he died. From that time on there was no interest existing in this land upon which the mortgage could operate. This is enough to dispose of the case. But it is contended that Joseph. C. and Ben S. falsely represented that Ben S. owned the tract in fee simple and that Joseph C. was authorized to mortgage it. If this were established, it might warrant a recovery in an action based on fraud, but it would create no lien upon the land such as is sought to be asserted in this suit. Again, it is submitted that since Joseph C. had four children, two of whom died unmarried and without issue, he holds, as heir of these deceased children, a certain interest, said to amount to an undivided one-fourth, in the land. But if we concede this was shown, still the situation is not changed, for Joseph C. acted only as trustee for Ben S. in executing the alleged mortgage. He did not assume to mortgage any interest of his own. The judgment of the court below is affirmed.