Anding v. Davis

38 Miss. 574

• Court: Mississippi Supreme Court
• Decided: April 15, 1860
• Status: Published

Opinion

Handy, J.,

delivered the opinion of the court.

This is an appeal from a decree of the Chancery Court of Yazoo county, overruling a demurrer to a bill filed by the appellees.

The bill states in substance that on the 28th March, 1839, Bradford Davis, the father of the complainants, owned and possessed in Yazoo county a large quantity of land on which he resided, sixty-six slaves, with horses, mules, and other stock, and farming utensils; that prior to that time, Davis had purchased of one Martin Anding, the father of one of the defendants, and the husband of the other, certain lands, slaves, and other property, for which he was indebted to him in the sum of $27,000, and that said Anding was then responsible as surety for said Davis for about $>6000, which he had then paid or intended to pay ; and that after said sale by Anding to Davis, the former was employed by the latter as his overseer on the plantation up to the 28th March, 1839; that on that day, for the purpose of securing the said indebtedness to Anding and to reimburse him the sum of $6000, paid as surety for Davis, a deed was executed by Davis reciting a consideration of $33,000 as paid, conveying absolutely in terms to Anding the whole of the lands, slaves, stock, farming utensils, household furniture, and other personal property then owned by him; which deed is made an exhibit; that the consideration expressed in the deed as paid was not in fact paid, but was made up of the two sums above-mentioned, and the deed “ was made to operate, and was by said Davis and Anding intended to operate, by way of mortgage alone, to secure to Anding the payment of said sumsthat at the time of the execution of the deed, it was expressly agreed between the parties that Anding should take possession of the whole property conveyed, and employ it in planting to the best advantage, and from the proceeds pay all the expenses of the business, and a reasonable compensation to himself for his services, and pay to Davis from time to time sums necessary for his personal and family expenses, and should appropriate the balance of the proceeds to the payment of the aforesaid sums of money and interest; and that, after Anding should be thus fully paid and indemnified, he should convey and deliver the whole of said property and its increase or equivalent to the children of Davis ; that, as this agreement rested in parol only, Anding agreed that, in furtherance of it, he would prepare and lceep at all times on hand a will, in which he would devise and bequeath to the children of Davis the whole of said property, after he should be paid and reimbursed as aforesaid; that Anding agreed to hold the property, and did take and hold it merely as trustee for the purpose of this agreement; that the parties were intimate and attached friends, and Davis had unbounded confidence in Anding’s good faith, and they supposed that four or five years would be sufficient to satisfy the claims of Anding; and for these reasons, that the agreement was not reduced to writing.

The bill further states, that the consideration expressed in the deed was not equal at the time, to the value of the property, which was then worth from sixty to eighty thousand dollars ; that Davis’s wife did not relinquish her dower in the property, because she did not approve of the unlimited confidence reposed in Anding by the deed; that, after the execution of the deed and the making of the agreement, Anding took charge of the property under the agreement, as trustee to carry the agreement into effect, Davis remaining on the place with his family, and occupying the mansion-house as before the execution of the deed, until the death of his wife, a few weeks thereafter; that he afterwards removed to Texas, taking with him his two eldest children, and placing the others, then very young, with their uncle in this State, and that in September, 1840, he came to his death by assassination in Texas ; that Anding carried on the business according to the agreement between him and Davis, until his death in February, 1848, making each year from said property from three hundred to five hundred bales of cotton; and during his life, he admitted the terms of the agreement with Davis under which he held the property as trustee for Davis’s children, and promised to comply with the agreement, and that he did in part comply with it, and partially execute the trust; that he applied the proceeds of the crops to the payment of his own claims, which the bill states were fully satisfied by the crops of the years 1839, 1840, and 1841; and paid some small sums to meet the wants of the children of Davis left in this State; and'after Davis’s death, that he secured arid settled to the use of his children, nineteen slaves, in execution of the agreement; and, in further compliance with said agreement, that he executed, and for a time kept on hand, a will, by which he bequeathed the whole of the property conveyed to him to the children of Davis, as was agreed; that the complainants are advised and suppose that this will was destroyed by Anding.before his death, as they have never been informed of its existence since his death by the defendants, who have charge of his papers; they call upon the defendants to state if he left such a will, and to produce it; and if it was made by him and destroyed, they claim the benefit of it.

The bill further states, that the defendants, the son and widow of Anding, administered on his estate in February, 1848, and as administrators took possession of all the property conveyed to him as aforesaid, with its increase, except the slaves secured to the children by him, as above stated, and carried on the plantation, received the proceeds of the crops, and accounted for them as administrators until the 24th June, 1851, when they, made a final settlement, and distributed and delivered over the whole of said property, its increase and proceeds, to the defendants, the sole heirs and distri-butees of his estate, who have since held possession of all of said property and its increase, and have since that time employed the property in planting, and have made from 400 to 600 bales of cotton per. year, and have received the proceeds thereof; that on the 23d November, 1841, Joab R.'Richards took out letters of administration on the estate of Davis in Yazoo county, and surrendered the same on the 26th February, 1845, since which time no other administration has been granted, and that there are no subsisting debts against his estate ; that Davis left the complainants his only children, who were born at the times stated as follows: John A. Davis, born 2d February, 1825; Phebe A. Davis, born January 4th, 1827; Sarah Jane Davis, born 1st October, 1828 ; Bradford Davis, born 21st January, 1831; Mississippi S. Davis, born 21st April, 1833; James J. Davis, born April 9th, 1836; Olive D. Davis, born 15th January, 1839.

They state, as a reason for the delay in instituting the suit that the two eldest of the males were left, on the death of their father, children among strangers in Texas, where they have remained ever since ; that until a very late period, they'were all ignorant of their rights as stated, the true consideration of the deed, and the agreement in relation to the property.

The prayer is for discovery, and for a decree for the property and its increase and profits, and for an account, &c.

To this bill, the defendants demurred, assigning the following' grounds of demurrer: 1st. The Statute of Limitations of twenty years ; 2d. The Statute of Limitations of ten years; 3d. The Statute of Limitations of six years; 4th. The Statute of Limitations of seven years; 5th. The Statute of Limitations of three years; 6th. That the agreement stated in the bill is void in law ; 7th. The want of proper parties to the bill; 8th. The Statute of Limitations of four years from the grant of letters of administration on And-ing’s estate; 9th. That the bill is multifarious, and in other respects insufficient.

The first question presented for consideration in behalf of the appellants is, whether the facts stated in the bill are sufficient in law to entitle the complainants to relief upon the agreement set up.

The complainants’ claim, as shown by the bill, rests upon two grounds ; 1st. That the deed to Anding was made upon an agreement to reconvey; 2d. That it was intended as a security for money due by Davis ; and is, therefore, in equity a mortgage. In both aspects, it is contended that the claim is insufficient in law as set forth, and not maintainable; and in support of that view, several objections are urged against it.

In the first place, it is insisted that the agreement to reconvey, being in parol, is void by virtue of the Statute of Frauds.

• As to the personalty, there can be no doubt but that the trust is valid, though resting in parol. Before the Statute of Frauds, in England, a parol declaration of trust, either of real or personal estate, was valid; and as the statute there only applied to trusts of real estate, the validity of trusts of personalty has never been questioned. Hill on Trustees, 56. In this State, the seventh section of the English statute in relation to declarations of trust, had not been adopted as a part of our Statute of Frauds in force at the date of the transaction here involved, though it has recently been in substance incorporated in the statute by the Revised Code. The same rule was, therefore, applicable both to real and personal estate, and parol trusts of real estate have been held valid. Soggins v. Heard, 31 Miss. 426. Hence, so far as the objection to the validity of the trust set up in this bill rests upon the statute, it is untenable.

It is, however, urged that this would be to engraft an agreement upon the deed not contained in it, and in contradiction of its terms; which it is said cannot be done by sotting up a parol agreement. But it is now well settled that, in equity, and as between the parties, it is competent to show an agreement in parol, not to contradict the deed, but to bind the party to a trust which he undertook in accepting the deed. It is not necessarily a contradiction of the deed. The estate vests according to its terms; but the grantee agrees to hold the estate conveyed subject to a trust created by an agreement dehors the deed, which operates in equity as a defeasance for the benefit of the beneficiaries of the grantor. This is not in contravention of any rule of law, when there is nothing in our statutes prohibiting such declarations of trust in parol; and hence it has been properly held in this court and is now settled law, that a deed absolute on its face, will be held in equity a mortgage, whenever it appears that it was intended as a security for the payment of money. Vasser v. Vasser et al. 23 Miss. 378; Prewett v. Dobbs, 13 S. & M. 431; Soggins v. Heard, supra.

But, independently of these considerations, these objections are -obviated by the facts stated in this bill. The bill alleges, in effect, that it was agreed between the parties, that Anding should execute and heep on hand a will, reconveying the property to the complainants on the payment of the money intended to be secured by the deed; that this agreement was complied with by him, but that either he destroyed the will in his lifetime, or that it has never been produced by his representatives, if in existence. If these allegations be true, — as upon demurrer they must be taken to be,— there was a compliance with the agreement on his part in writing; and the destruction of the instrument by him, or its suppression by his representatives, is such a fraud as would entitle the complainants to relief, on that ground, in a court of equity. He was bound, as a matter of contract, to execute and keep a will'reconvoying the property; from which he and his representatives cannot claim to be absolved on the ground that it was to be done by will, which is generally revocable. For the contract was that he should perform his agreement in that manner: Upon that consideration in part and for that purpose, he had received the deed, and the agreement had the force of a contract; and the will, when executed, was, as to this property, irrevocable. If not executed, he was thereby bound for the consequences of a violation of the contract, for which he had received a valuable consideration. In this respect, the case is fully within the principle of Fenton v. Emblers, 3 Burr. 1278; and Dufour v. Pereira, 1 Dick. 419.

Nor is this equitable right secured to the complainants, impaired by the fact, that the will — the instrument of reconveyance and the evidence of the agreement — was to remain in the possession of Anding. For after its execution, as agreed on, he had no right to destroy it, without a violation of- his agreement. His retention of it was a part of the agreement which he had undertaken, and which he was bound to observe.. If he executed, and afterwards destroyed it, then it was a violation of his agreement. But if he failed to execute the will, that was also a violation of his agreement and a fraud upon the grantor and his children, which, according to all the authorities, will entitle them to .the benefit of the agreement in equity, against him and his representatives, as though he had kept it in good faith. Hill on Trustees, 60,166; Jonham v. Child, 1 Bro. Ch. Rep. 92 (1 Amer. edit, by Perkins), and numerous cases cited in note b.

According to the statements of the bill, then, he was guilty of a fraud upon the agreement, either in failing to perform his contract to execute and keep on hand a will reconveying the property; or the will was executed according to the agreement, and has been since destroyed or suppressed by his representatives; and this clearly presents a case which in equity entitles the complainants to the benefit of the agreement, as though it had been carried out in duo fonn.

In the second aspect of the bill, it alleges that the deed was executed as a security for the payment of the debts specified, and wTas intended to operate in that respect as a mortgage. Not only is this distinctly alleged, but the circumstances of its execution tending to show that such was its character, are stated; that the parties were intimate and confidential friends; that the property conveyed greatly exceeded in valué the consideration stated in the deed; that Davis continued to reside on the place for some time and until the death of his wife; and that the deed embraced all the property, real and personal, even the household furniture, of the grantor. If it was necessary to show why the deed was intended as a security for the debt, these circumstances are abundantly sufficient to show it, and to explain the purpose of the parties, especially when they are viewed in connection with the agreement between them as stated in the bill. The demurrer admits the allegations of the bill and the statement of'the circumstances and reasons for the execution of the deed in its absolute form; and this brings the case fully within the rule held by this court as above stated, allowing a deed absolute on its face to be shown to have been intended merely as a security for a debt, and to have the effect of a mortgage in equity.

It is further objected that the deed cannot have the effect of a mortgage, because, according to the statements of the bill, it was intended to secure pre-existing debts. The question of a present consideration or a pre-existing debt, has been considered as having weight upon the question of the validity of mortgages and other securities, as they were affected by the equities of other persons than the parties to the conveyance. But certainly, as between the parties, it cannot affect the validity of a mortgage, or of an instrument having the effect in law of a mortgage, that it was made for the purpose of securing a pre-existing debt.

We are, therefore, of opinion that this ground of demurrer was properly overruled.

The next ground of error insisted upon is, that the relief sought in the bill is barred by the statutes of limitations relied on in the demurrer, and that the demurreie should have been, therefore, sustained. In support of this view, several positions are taken which deserve consideration.

First. It is contended that the statute commenced running from the time of the adverse possession of the administrators of Anding, in February, 1848; and as one of the children of Davis was then of full age, that the statute then commenced running as to all of them, as to the personal estate, under the rule declared in Jordan v. McKinzie, 30 Miss. 32.

This position is untenable,' upon the facts stated in the bill, for very manifest reasons. The right of the complainants, under the agreement set up in the bill,- accrued upon the satisfaction of the debts intended to be secured to Anding by the proceeds of the crops in the year 1844. At that time Davis was dead, and they were all minors; and, under the rule stated in Masters v. Dunn, 30 Miss. 264, as they were all minors when the cause of action accrued, the statute did not commence running until the disability was removed as to all, by the youngest reaching majority. Upon the death of Anding, the appellants, his representatives, merely succeeded to his rights, and came into possession of the estate, subject to the same conditions upon which he held it.

As to the relief sought in relation to the real estate, it is not merely for the recovery of the land, but for the rents and profits, and for an account thereof. This in its nature is a joint claim, and comes within the rule above stated. And whilst it is true that, in the case of a trust, such as is' set up in this bill, or of a mortgage, an adverse possession, continued for a period sufficient to create a bar by the statute, will prevail over the claim of the rightful owner, yet such a possession will never prevail against parties under disability, and whose rights are protected by the saving of the statute.

Secondly. It is said that, as no time was specified for the payment of the debt, according to the statements of the bill, Davis had the right to pay the debt at any time, and to file his bill to redeem the property'; and hence, that the right of action accrued in the lifetime of Davis. But there is no force in this view. The bill states that possession of the property was delivered to Anding in order that he might work it, and with its proceeds pay the debt; and that he had possession under an agreement to that effect. It alleges that that agreement w7as continued until the purpose contemplated was accomplished. Although Davis might have paid the debt at an earlier period, yet if the agreement was continued, as it is alleged it was, until the debt was satisfied by the proceeds of the property, it is very clear that the right of action did not accrue until that time.

Thirdly. It is said that the action accrued to Richards as administrator of Davis, wlio might have sued in 1845, and that the action, having accrued at that time, is barred. This objection can have no application to the claim set up in the bill, that the property was held by Anding under a trust to be conveyed to the complainants; for, in that-respect, the administrator of Davis had no interest in it, or right to sue for it.

So far as the bill treats the transaction as a mortgage, the administrator had no right to sue for the real estate. The debt having been paid, as is alleged, the remedy was not by bill to redeem, but to recover the property. And as to the personalty, it appears that the complainants were all infants during the period of that administration, and that their disability continued until the institution of this suit. It is well settled that their rights will not be prejudiced by the failure of their trustee to sue in their behalf. Bacon v. Gray, 28 Miss. 140; Fearn v. Shirley, 31 Ib. 301.

But, under any view, this ground of demurrer should have been overruled, because the demurrer, being taken to the whole bill, could not be sustained, though it were well taken as to a part, unless the bill was insufficient in all respects, as to the relief sought. Graves et al. v. Hull, 27 Miss. 420. And though it were well taken to the bill in its aspect of seeking to establish a mortgage, yet as it was untenable in relation to the bill, in its aspect of setting up a trust in Anding, to be executed by conveyance of the property to them, a demurrer to the whole bill could not have been sustained upon the ground under consideration.

Fourthly. It is said that- twenty years’ possession by Anding and his representatives is prima facie a bar to the complainants’ claim; and after such possession, that the right of parties claiming adversely to it cannot be established by parol evidence. But if the right of the complainants was ever competent to be shown by parol evidence, that right continued during their disability, as well with reference to the evidence by which their right was to be shown, as to the privilege of instituting their suit; for the right to institute suit, after the removal of their disability, would be nugatory, if the parties were, in such a case, deprived of the evidence to establish their claim.

The demurrer was, therefore, properly overruled, on the ground of the Statute of Limitations.

The only remaining ground of demurrer insisted on is, that as the bill seeks an account, it is necessary that there should be an administrator of Davis’s estate,"Avho- should have been made a party, because a decree upon this bill Avould not bar the claim of such administrator’, if one should be hereafter appointed.

This objection appears to be fully obviated by the allegations of' the bill. It alleges that ther'e are no debts of Davis’s to be paid, and of course there could be-no necessity for an administration, except for the. benefit of the complainants. If there be any outstanding debts, they must be barred by the Statute of Limitations ; and a suit by an administrator to recover the property, or for an account, Avould also be barred, as that action accrued, if maintainable at all by an administrator, to the original administrator, and the statute having commenced running at that time, the claim Avould noAv be barred. The right of the heirs and distributees to sue in their oAvn names, under such circumstances, is Avell settled. Wood v. Ford, 29 Miss. 65; Manly v. Kidd, 33 Ib. 141.

But, besides this, in a material aspect of the bill, the administrator of Davis could have no interest in the subject-matter of the suit, that part of it Avhich sets up the agreement of Anding to reconvey the property to the complainants. If this be true, it is clear that the administrator of Davis could have no concern Avith the suit.

It folloAvs from these vieAvs of the case, that the demurrer was properly overruled. The decree is, therefore, affirmed, and the cause remanded, and the defendants required to answer the bill Avithin sixty days.