Parker, C. J.
The plaintiff in this case asks an injunction from this court, to restrain the defendants from making sale of certain lands in the town of Stoddard ; and in addition to this he asks that they, and all persons claiming an interest under their testator, Childs, may be required to relinquish all title to the premises, and also that an account may be taken, as between himself and Childs, of what is due to [258] him, and for such other and farther relief as the case may require.
The defendants on their part claim a right to go on and make the sale ; they, as executors of Childs, having obtained a license from the probate court, in the manner provided by law in cases of insolvent estates.
The plaintiff has no title to the land in question ; having long since sold to Gerould, the present tenant. If the question, then, were simply whether a possession should be quieted by injunction, it might be doubted whether the present plaintiff was entitled to maintain this bill. But the plaintiff is a warrantor of Gerould, who is in possession, as it is alleged, under a conveyance made to him from the plaintiff; and as the rights of Childs, and of the defendants through him, may depend upon an account to be stated between the present plaintiff and Childs, he seems to be a proper party to the questions which have been raised in the case. If an account is to be taken, he is a necessary party to that proceeding ; and that consideration, and the operation of his conveyance to Gerould, and his liability on his covenant of warranty, would make him a proper party, if Gerould himself were seeking relief.
A farther question might have been raised, viz : whether Gerould ought not to have been made a party to this bill. If this objection had been taken at an early stage of the proceedings, we should probably have regarded it as the proper course. But neither of the parties have suggested that his interests require that he should be made a party, and we do not deem it necessary to delay the cause for that purpose. His rights will not be affected to his prejudice.
From the whole evidence it appears clearly that the title to the land was obtained in the manner stated by the plaintiff in his bill, and also that the plaintiff has paid the deficiency for which he and Childs were liable as sureties of Emerson. It seems, too, that Childs paid some tax bills as[259] sessed upon the estate, before the title vested in him and the plaintiff under their levy.
The bill alleges that Childs agreed to convey to the plaintiff ; but of this there is no sufficient evidence. The matter was allowed to remain for future adjustment between them. Brooks, who had paid all the money, unless it were a small sum for the taxes, was permitted to remain in possession, and permitted after a time to convey the land. And here we should make a remark as to the effect of the possession by Brooks and his assigns. The statute of limitations cannot be, as contended for by the plaintiff’s counsel, a bar to the right of Childs, or Childs’ legal representatives, for this reason, namely, that up to the time of the conveyance to Gerould there was no possession adverse to Childs’ right. The conveyance to Cerould was in May, 1822. Previous to that time the possession by Brooks was the possession by Childs, and cannot be otherwise regarded.
We come, then, to consider the question as to a resulting trust, which, it is alleged, arises, by implication of law, in the land, for the benefit of the present plaintiff. Certainly it is not an ordinary case of a resulting trust. Such a trust commonly arises where a title has been acquired by a person by whom nothing was paid. As has been said by the defendants’ counsel, the fact that a purchase has been completed on the credit of two, and afterwards paid for wholly by one of them, will not of itself give rise to a resulting trust. 5 Paige R. 114, Leggett vs. Dubois; 3 Mason 347, 364, Powell vs. Monson Brimfield Manf. Co.
The case now presented to us, however, was not, properly speaking, the case of a purchase. Nor, if it could be regarded as a purchase, was it a purchase upon credit. As between Brooks and Childs, on one part, and Emerson on the other, it was conveyed in trust to indemnify them. If Emerson had paid his ward, he would have been entitled to a reconveyance of the laud, if the trust could be shown. There was a trust in his favor until Brooks paid his deficiency for [260] him; and of course there was up to that time a resulting trust to either of the sureties who saw fit to pay, to have the property appropriated to his relief. 4 Johns. Ch. R. 545, Lawrence vs. Cornell; 5 Wend. 85, N. Y. State Bank vs. Fletcher ; 2 Johns. Ch. R. 283, 306, Hendricks vs. Robinson; 6 Vesey 805, Ex parte Gifford; 2 Vernon 608, Parsons vs. Briddock; 11 Vesey 12, 22, Wright vs. Morley ; 2 Binney 382, Miller vs. Ord. See, also, the principle recognized in 1 Atk. 133, Ex parte Crisp; 4 Johns. Ch. R. 123, 130, Hayes vs. Ward; 1 Ditto 409, 413, Cheesebrough vs. Millard; 3 Paige 614, Neimcewicz vs. Gahn; 10 Johns. R. 524, Clason vs. Morris ; 6 Paige 521, Eddy vs. Traver ; 4 Johns. Ch. R. 530, Scribner vs. Hickok.
Free access — add to your briefcase to read the full text and ask questions with AI
Parker, C. J.
The plaintiff in this case asks an injunction from this court, to restrain the defendants from making sale of certain lands in the town of Stoddard ; and in addition to this he asks that they, and all persons claiming an interest under their testator, Childs, may be required to relinquish all title to the premises, and also that an account may be taken, as between himself and Childs, of what is due to [258] him, and for such other and farther relief as the case may require.
The defendants on their part claim a right to go on and make the sale ; they, as executors of Childs, having obtained a license from the probate court, in the manner provided by law in cases of insolvent estates.
The plaintiff has no title to the land in question ; having long since sold to Gerould, the present tenant. If the question, then, were simply whether a possession should be quieted by injunction, it might be doubted whether the present plaintiff was entitled to maintain this bill. But the plaintiff is a warrantor of Gerould, who is in possession, as it is alleged, under a conveyance made to him from the plaintiff; and as the rights of Childs, and of the defendants through him, may depend upon an account to be stated between the present plaintiff and Childs, he seems to be a proper party to the questions which have been raised in the case. If an account is to be taken, he is a necessary party to that proceeding ; and that consideration, and the operation of his conveyance to Gerould, and his liability on his covenant of warranty, would make him a proper party, if Gerould himself were seeking relief.
A farther question might have been raised, viz : whether Gerould ought not to have been made a party to this bill. If this objection had been taken at an early stage of the proceedings, we should probably have regarded it as the proper course. But neither of the parties have suggested that his interests require that he should be made a party, and we do not deem it necessary to delay the cause for that purpose. His rights will not be affected to his prejudice.
From the whole evidence it appears clearly that the title to the land was obtained in the manner stated by the plaintiff in his bill, and also that the plaintiff has paid the deficiency for which he and Childs were liable as sureties of Emerson. It seems, too, that Childs paid some tax bills as[259] sessed upon the estate, before the title vested in him and the plaintiff under their levy.
The bill alleges that Childs agreed to convey to the plaintiff ; but of this there is no sufficient evidence. The matter was allowed to remain for future adjustment between them. Brooks, who had paid all the money, unless it were a small sum for the taxes, was permitted to remain in possession, and permitted after a time to convey the land. And here we should make a remark as to the effect of the possession by Brooks and his assigns. The statute of limitations cannot be, as contended for by the plaintiff’s counsel, a bar to the right of Childs, or Childs’ legal representatives, for this reason, namely, that up to the time of the conveyance to Gerould there was no possession adverse to Childs’ right. The conveyance to Cerould was in May, 1822. Previous to that time the possession by Brooks was the possession by Childs, and cannot be otherwise regarded.
We come, then, to consider the question as to a resulting trust, which, it is alleged, arises, by implication of law, in the land, for the benefit of the present plaintiff. Certainly it is not an ordinary case of a resulting trust. Such a trust commonly arises where a title has been acquired by a person by whom nothing was paid. As has been said by the defendants’ counsel, the fact that a purchase has been completed on the credit of two, and afterwards paid for wholly by one of them, will not of itself give rise to a resulting trust. 5 Paige R. 114, Leggett vs. Dubois; 3 Mason 347, 364, Powell vs. Monson Brimfield Manf. Co.
The case now presented to us, however, was not, properly speaking, the case of a purchase. Nor, if it could be regarded as a purchase, was it a purchase upon credit. As between Brooks and Childs, on one part, and Emerson on the other, it was conveyed in trust to indemnify them. If Emerson had paid his ward, he would have been entitled to a reconveyance of the laud, if the trust could be shown. There was a trust in his favor until Brooks paid his deficiency for [260] him; and of course there was up to that time a resulting trust to either of the sureties who saw fit to pay, to have the property appropriated to his relief. 4 Johns. Ch. R. 545, Lawrence vs. Cornell; 5 Wend. 85, N. Y. State Bank vs. Fletcher ; 2 Johns. Ch. R. 283, 306, Hendricks vs. Robinson; 6 Vesey 805, Ex parte Gifford; 2 Vernon 608, Parsons vs. Briddock; 11 Vesey 12, 22, Wright vs. Morley ; 2 Binney 382, Miller vs. Ord. See, also, the principle recognized in 1 Atk. 133, Ex parte Crisp; 4 Johns. Ch. R. 123, 130, Hayes vs. Ward; 1 Ditto 409, 413, Cheesebrough vs. Millard; 3 Paige 614, Neimcewicz vs. Gahn; 10 Johns. R. 524, Clason vs. Morris ; 6 Paige 521, Eddy vs. Traver ; 4 Johns. Ch. R. 530, Scribner vs. Hickok.
These are cases of sureties, and illustrate their rights. It is true, that the principle that a surety who pays the debt is entitled to the benefit of all the securities which the creditor possesses, cannot be uni versal! y applied without some qualifications. In the case of co-sureties who hold a mortgage or pledge jointly for their security, when one pays the debt he is entitled to claim contribution of the other, and need not resort to the mortgage or pledge for his indemnity, before making the claim. We do not propose, however, at this time to discuss these questions at large, nor to dwell upon the necessity for, or the effect of, a tender of a release by the surety who paid the whole, to a co-surety, of any claim for contribution. It is enough at present for us to say that we are clearly of opinion that until the time when Brooks paid the money to Emerson’s ward, the land continued to be held in trust for Emerson. When there is a resulting trust under a conveyance, it must arise at the execution of the deed. When the legal title has once passed to the grantee, a resulting trust cannot be raised by the subsequent application of the funds of a third person to the improvement of the property, or to the payment of the purchase money, so as in any way to divest the legal title of the grantee. 3 Paige 390, Rogers vs. Murray. But this trust does not arise under the deed to [261] Brooks and Childs, or date from the time of its execution. Such as it is, it springs from the payment by Brooks to Harriet E. Newman. That payment, of itself, by the operation of law created a resulting trust in favor of the sureties. The facts necessary to establish this trust may properly be shewn by parol evidence. What they are, it is not now necessary to repeat particularly. From the time of that payment, the title was held by Childs and Brooks, not for Emerson, but for their own security. Brooks, however, having in person, or by his grantee, Gerould, possession of the land, and having paid more than his share, was and is entitled to hold it until Childs shall have accounted.
If the sale of the land in 1822 had been by both parties, the sum received would not have been divided equally between them, but must have been distributed according to the sums each had paid. The silent acquiescence of Childs in the sale, his neglect to interfere, and the bar of Brooks’ right to contribution by the lapse of time, indicate that Childs ought not in equity now to claim more than he could have claimed in that case. If Brooks has been negligent in enforcing contribution, Childs ought not to complain of it, or take advantage of it, farther than as a bar to a personal action ; and if Childs has neglected to assert his title, Brooks ought not to avail himself of it farther than as a conditional confirmation of the sale to Gerould, the legal title or right in Childs not being barred. Brooks’ claim to contribution has been rejected by the commissioner on Childs’ estate, as having been long since barred by the statute. But it is not equitable for Childs’ representatives now to enforce a claim, under his legal title, which shall prevail farther than to give the estate the benefit of the land as security for whatever sum Childs ought to have received, had the matter been settled by the parties in 1822, before Brooks sold the land.
Decree for an injunction, unless the defendants account toithin sixty days. The plaintiff to take no costs.