Rice v. Bixler

A testator devised his real estate to his executor, to be sold, and directed the proceeds to be divided among his children; held that the children had such an interest in the land, as justified them in compromising a question of boundary, if such compromise did not affect the rights of creditors. if a witness, in the course of his examination, be asked to testify respecting a transaction, before the question is answered it is competent for the other party to inquire and know whether the transaction be in writing; and if it be, the witness cannot be permitted to give parol evidence on the subject. If an action of ejectment be brought by an executor, it is competent for the defendant to give in evidence a former ejectment by the plaintiff in his individual' right, to show that he claimed the land as his own, and not in his representative capacity. If land be devised to an executor, to be sold, and the proceeds to be divided among the testator’s children, and the children convey the land to the executor, their deeds aTe evidence of an election on their part, to take land instead of money. The compromise of a doubtful right is a sufficient consideration for the execution and delivery of a deed. If an executor, having power to sell real estate for the payment of legacies, advise the legatees to compromise and settle a question of boundary, and they do so, such compromise is binding upon the executor ever afterwards, whether he claim the land as executor, or in his own right. If, in an action of ejectment, the defendant set up such a defence as defeats the plaintiff’s action, and a second ejectment be brought by the same plaintiff, the defendant may repudiate the defence which he made in the first action, and defeat the plaintiff’s recovery upon other grounds.

ERROR to the Common Pleas of Perry county. John Rice, administrator with the will annnexed, of Patrick Duffield deceased, against Joseph Bixler. This was an action of ejectment for twenty acres of land. Patrick Duffield in his lifetime was seised in fee of a tract of land, containing about 290 acres; which in 1820 he had surveyed and divided into two parts, the eastern and western part. This was done for the purpose of conveying the western part, which he supposed to contain 60 acres, to his son-in-law, Andrew M’Clure, which he did; but Andrew M’Clure, in 1824, reconveyed the same to Patrick Duffield, who in 1825 made his will, by which he directed his executors to sell the eastern part of his land, and out of the proceeds to pay his debts, &c. which then amounted to about $1000; as to the western half, he directed that it should be rented by his executors, during the lifetime of his wife (who was to have possession of the house and garden), and the proceeds applied to support his wife and son Robert; and, after the death of his wife, he directed that this part should also be sold, and the proceeds divided equally between his sons James and Robert, and his daughter, Mary Robinson. After the making of this will, in 1828, Patrick Duffield sold and conveyed, by courses and distances, the eastern part of his land to the defendant, Joseph Bixler, and out of the consideration money, the $1000 of debts were paid in his lifetime. He died in 1831, without altering his will, which was duly proved in the-register’s office, but no letters issued upon it to the executors named. It appealed that George Monroe, Esq. had made the survey and division of the land for Patrick Duffield in 1819, so as to divide off the 60 acres, which were conveyed to Andrew' M’Clure; and that, in making the calculation of the 60 acres, so as to fix the division line between the eastern and western end, he omitted one of the lines; the consequence of which was, that the partition line (if ever it was run .upon the ground, which was a disputed fact in the cause) would not close with the survey of either part, but if run on the ground at the place contended for by the plaintiff, the land in dispute would belong to the western part; but if the line was run according to the courses and distances, as contained in the deed from Duffield to Bixler, the survey would not close, but the line would embrace the land in dispute. Where this partition line was and the land affected by it was the subject of dispute. The plaintiff gave some evidence tending to show that the line was run by Monroe- in 1819, and that M’Clure, while he owned the western part, occupied up to it, and that Bixler recognised it as the true line. The defendant denied that any partition line had ever been run on the ground, and proved the mistake made by Monroe in leaving out the line in his calculation; and that if the plaintiff’s line were adopted as the true one, the defendant would have but 210 acres, instead of 230 conveyed to him, and that there would be 80 acres, instead of 60, in the western end. During the progress of the trial, several bills of exception were taken, as follows: Defendant offered to prove that the courses and distances, as marked in the deed from Patrick Duffield and wife to Bixler, would, if run on the ground, include the land in dispute; and that the division line, said to be run by Esquire Monroe, in 1819, never was marked upon the ground. The first part of the offer was objected to by the plaintiff. That it is immaterial to this issue. That the line run on the ground is the true survey. To the last branch of the offer, the plaintiff objected, that the evidence was immaterial, and could lead to no result in this suit. Objections o.verruled, and exception by plaintiff. William West, a surveyor, was then called as a witness, and gave the evidence offered, and in addition that he had run a line making a partition of the two parts, by which line he gave to Bixler the quantity conveyed to him by Patrick Duffield, and still left about 75 acres in the west end. Defendant then offered articles of agreement dated 29th Decernber 1838, by John Duffield, Thomas Duffield, Joseph Robinson, and Mary his wife, and R. E. Duffield, with Joseph Bixler, adopting the amicable line as run by Mr West, as the true line: to be followed with parol proof that it was executed by Joseph Robinson and wife, and Robert E. Duffield, with the knowledge, consent and advice of John Rice, the present plaintiff, who is a subscribing witness to the agreement: to be followed by a deed of conveyance from Joseph Robinson and wife, James Duffield, and Robert E. Duffield to John Rice for the quantity of land within the line run by Mr West, recognising that line as designating the true quantity. Plaintiff objected that these persons, parties to the article, had no right to the land, nor to change its boundaries in any way. All or any of these acts would be inoperative in this suit. John Rice could do no act that could affect his right as administrator of Duffield: he was not administrator for a year afterwards. That John Rice could not take a deed to affect his right as administrator, particularly as he was not administrator at that time, and could not give evidence for the purpose now offered, of affecting this suit. That they do not import what is alleged: they are inoperative, because they do not prove any thing as to the right of the land being in or out of Duffield, or any thing as to whether Monroe’s or West’s line is correct. At all events, the proof of the payment of debts should precede the other proof. Defendant offered to prove in addition to his foregoing offer, that the debts of P. Duffield were paid in his lifetime by the Bixlers out of the purchase money of the land sold to them, and further, that John Rice is now in the actual possession of the land, claiming it as bis own right, and adversely to the trust created by P. Duffield’s will, and that he is the only party in interest in this suit. Plaintiff objected to defendant’s offer, for same objections as above stated. Objections overruled. Exceptions taken by plaintiff. The agreement of John, Thomas and Robert Duffield and Joseph and Mary Robinson with Joseph Bixler, dated 29th December 1838, after reciting the deed of P. Duffield to Bixler, of 29th January 1838, for 231 acres 9 perches, thus proceeds: “ And whereas it appears, by a recent accurate survey and calculation, that the said tract does not contain the number of acres named in the conveyance, and (as it is believed) was intended to be conveyed, agreeably to the contract between the parties; and also that the part of said tract now belonging to the heirs of said Duffield, contains a much greater number of acres than is named in said conveyances (M’Clure’s). We therefore, as heirs of said P. Duffield, believing as we do, that in justice and equity the said Joseph Bixler (to whom John and Jacob released, &c.) is entitled to the number of acre's named in the conveyance made to him, do agree that (so far as we and each of us have an interest in the estate of our said father) the lines on the north and south side of the land conveyed as aforesaid to the Messrs Bixlers, be extended 17 perches along the lines of that part of the tract belonging to the heirs of our said father; and that the line lately run by William West, Esq., between the two points thus formed, (being parallel with the first supposed division line,) shall be hereafter considered, to all intents and purposes, the division line; the same to be a remedy for the mistake by making up the quantity of land sold to the said Bixler. And on account of the consideration sum so paid by the said Bixler to our father, we do, for ourselves, our heirs and assigns, (but for no other of the heirs of our said father,) hereby renounce all pretensions to any right, title, interest, or claim, in or to the land lying between the division line erroneously run and named in said conveyance, and that hereby agreed upon; and that the same be possessed by said Bixler. John Deffield. [seal]. Thomas, Deffield. [seal]. Joseph Robinson. [seal]. Mary + Robinson. mark. [seal]. Robert E. Deffield. [seal]. Test. Robert Elliott, George Baker. Witnesses to signing of all but Mary Robinson. Witness to the mark of Mary Robinson, John Rice. The defendant then offered Robert E. DufKeld as a witness. The plaintiff objected to him as being incompetent, because of his interest in the result. The court overruled the objection, and sealed a bill of exception. The witness testified as follows: John Rice is in possession of the 74 acres adjoining Bixlers. Had some conversation with Rice; he bought my interest in the land. I am a tenant of the land held under Rice. Hall farms it; he lives on Rice’s other farm. I signed the agreement 29th December 1838. On the day we articled, me and Rice had some conversation about the line. Rice said we should settle it with Bixler, and not have any trouble about it. We were talking about the difference between West’s line and Monroe’s line. He did not say that he did not want to buy until that was settled. I had not signed this agreement at the time I articled with Rice. At the time I articled with Rice, West had made the line. It was last January a year (1839) I articled with Rice. Rice then knew there was a disputed line, and he said he should settle that, and have no bother. I did not sign the agreement until after we had articled. Rice and me had some conversation .about this article of 29th December, 1838, after he and I articled, and he agreed I should sign it. Cross-examined.—Plaintiff offered to ask witness whether he did not describe and sell to Rice, all his interest in the land up to the line as run by Monroe. Objected to; and defendant proposed to ask witness whether what he sold to Rice is not in writing. Which was objected to by plaintiff; that the defendant cannot stop the cross-examination to ask this question, and after the deed they have given in evidence. Plaintiff’s objection overruled; exception taken. Witness. The agreement of sale between me and Rice is in writing. Defendant now objected to plaintiff’s question, as offered and written out at commencement of the cross-examination. Plaintiff read agreement between Robert E. Duffield and John Rice, dated 8th of January 1839; consideration $125; conveys one-ninth part of 75 acres, more or less. The defendant then offered in evidence the record of a former action of ejectment, by John Rice against Joseph Bixler, for the same land in which a verdict and judgment were rendered for the defendant. This for the purpose of showing that John Rice in the action trying claimed the land in his own right, and not as administrator, with the will annexed, of Patrick Duffield, deceased. The plaintiff objected to the evidence; but the court overruled the objection and sealed a bill of exceptions. The plaintiff then gave evidence to prove that there were debts of Patrick Duffield’s estate yet unpaid to the amount of $40 or $50; and for the purpose of showing that the defendant was estopped from making defence in this action by the defence made in the former one, he called— John Reed, Esq., sworn. When the trial came on, and the jury sworn, it was admitted the title was in Patrick Duffield originally. Plaintiff gave in evidence the will of Patrick Duffield; also the three deeds fi-om three of the children to plaintiff, James, Robert, and Mrs Robinson and husband. It was admitted that Bixler had purchased the eastern end. Defendant gave no evidence. It was suggested plaintiffs could not recover on their own showing. I stated to the court it would be unnecessary to consume time if that point was decided against us ultimately. The objection was that the heirs could not convey land; if they had any interest, it was money and not land. I stated to the court briefly my views to sustain the plaintiff. The court intimated a pretty strong opinion against us, that we could not recover in that aspect of the cause. Some positions were stated by Mr Watts for defendant, but not argued. It was then agreed that a judgment should be entered against the plaintiff. A motion for a new trial entered without argument, and held over to April court; in the mean time the motion was withdrawn, judgment entered, and this suit brought. The plaintiff requested the court to charge the jury upon the following points: 1. That the sale, by the testator, of the eastern half of the land, does not revoke his will as to the western half; but the devise as to it continues; the whole to be sold, and after paying debts and some small legacies, the whole to be divided in money; that the title to the land therefore was vested in the executors. 2. So long as debts, funeral expenses, legacies, &c., remained unpaid, it was not in the power of some of the legatees to elect to take the property as land; and the right to the land is still in the administrator with the will annexed. 3. The deeds by the legatees to Rice do not amount to an election to take the property as land, so as to devest the title of the executor or administrator with the will annexed; they are more properly assignments of the legacies. 4. That the article of agreement of Patrick Duffield to Bixler, and the deed to him, only convey the land as far as the line marked on the ground, as surveyed by Mr Monroe, and long recognised and treated by all parties as the true boundary, and give no right whatever to change the division and take in the land in dispute. 5. The line marked on the ground, treated as such by all parties, ascertained by an old fence, marked corner, and trees, and uniform, corresponding occupancy and claims for twenty years and more, must be taken as the true boundary, and will control the courses, distances, or quantities in the deeds or drafts, even where there is a purchase by the acre, and cl fortiori here, where the sale was a lumping one, not by the acre, but for a lumping price, to such known, distinct, and visible boundary. 0. The deed or agreement of John Duffield, Thomas Duffield, Robinson and wife, and Robert to Bixler, if without any consideration paid by him to them, and if the facts supposed above are true, does not vest any title in the land in Bixler; and at all events, as there is no deed or agreement in writing, or parol, by the other legatees conveying said land to Bixler, said agreement can not defeat plaintiff’s right to recover in this suit. 7. If any of the debts of Duffield, or of the legacies given by him, or if the expenses of the funeral, or administering the estate, are still unpaid, the title to the land is still in the administrator with the will annexed, and no act or election by any or all the legatees can devest it; and it lies on defendant to prove all these to be paid, or he must fail. 8. If Bixler, on the trial of the ejectment of Rice v. Bixler, made defence that Rice, claiming under deed from the heirs and legatees, could not sustain a suit for the land; that those legatees were only entitled to money legacies, and not land, and the title was in the executors; and, on the defence, obtained a judgment in that case in defendant’s favour, he can not now turn round and assert the title to the land to have been in those heirs and legatees, and in Rice under them, nor in himself under them, nor deny that the title to the land is in the administrator with the will annexed. Defendant’s points: 1. If the jury believe that after the making of his will, Patrick Duffield made a sale of the eastern part of his tract of land for the purpose of paying his debts mentioned in his will, the sale of 60 acres 141 perches, and the objects and trusts created by the said will have thereby failed, it is a revocation of the will, and Patrick Duffield died intestate; particularly if the jury believe, that when Patrick Duffield died he had as much personal property as would have paid all his debts and funeral expenses, if he had chosen to appropriate the same to that object by a will. 2. If there be no evidence in the cause, that James Duffield and Robert Elliott, the executors named in the will of Patrick Duffield, ever renounced their executorship, the letters of administration, with the will annexed, to John Rice, the plaintiff, were illegally granted, and vest in him no right to recover in this suit. 3. If the jury believe that John Rice purchased out the right, title, and interest of James Duffield, Robert E. Duffield, and Robinson and wife, to the estate of Patrick Duffield, deceased, of which he died seised, at the times and under the circumstances given in evidence, by the agreements and deeds for that purpose, and that he knew at the time of his purchase that there was a mistake as to the line between Patrick Duffield and Bixler, and. that the same had been rectified by the agreement of 29 th December 1838, in an amicable manner, and especially if he had advised the parties to that agreement to sign it, and thus settle all dispute about the division line, he can not recover, in this action. 4. If the jury believe the facts in 3d point, and that John Rice is now claiming the land in his own right, and not for the purpose of executing any trust created by the will of Patrick Duffield, he can not recover in this action. 5. That the agreement between John Rice and Robert E. Duffield, given in evidence, affords proof that the said John Rice is not prosecuting this action for the benefit of the widow of Patrick Duffield, inasmuch as he binds himself by that agreement to pay the widow the interest of the one-third of the purchase money. Hepburn, President.—The plaintiff’s first point read. Answer— The sale by the testator of the eastern half of the land, would not revoke his will as to the western half, and the devise as to if would continue, unless the purpose for which it was designed failed; and in that event, no purpose of the devisor requiring a sale of the property, the parties entitled to it have it in their power to consider the property as land, and not as money. But if the purpose intended by the testator has not failed, as intimated by this point, then the title would vest in the executors, as here indicated. Second point read.—Answered in the affirmative. Third point read.—We think these deeds do amount to an election by the parties to them, to take as land so far as they go. Fourth and fifth points read.—These points, if you find the facts as here stated, we answer in the affirmative'. The law undoubtedly is, that the marks upon the ground are the true boundaries. You must, however, to answer this point intelligibly, so far as the facts are concerned, recur to the whole testimony, and from it determine whether they are as here indicated, or as stated by the defendant in his points; which I will presently read to you. And if the facts are as he contends, that no such marks were there, &c., but that the lines were made after Bixler had purchased; by mistake, and subsequently corrected by the parties in the manner indicated by the testimony; then the result may be different. If, however, you find the facts as here stated for the plaintiff in these points, then we instruct you the law is as he states. Sixth point read.—This point we cannot answer in the affirmative. We think there was a sufficient consideration, if you believe the testimony. . . < Seventh point read.—This point, as a general legal proposition, would be true-, but if the jury believe the facts as here stated in the defendant’s third and fourth points, that he took out the letters of administration after he became the owner of the land, with a knowledge of all the facts in relation to the mistake in the line and its correction afterwards, and that there was personal property to the extent indicated by the latter part of defendant’s first point, we cannot instruct you the defendant must fail, by reason of the small amount of debt shown to exist against the estate of Duffield at this late date. Eighth point read.—The facts stated in this point were not the only defence taken in the case referred to, nor the only ground on which the judgment was given for the defendant there: besides that, it was between other parties and in different rights; we can not, therefore, instruct you the defendant is precluded from denying the title to the land being in the present plaintiff. First point of defendant.—We cannot answer this point in the affirmative. Second point.—Answered in the negative. Third and fourth points read.—Answered jn the affirmative. Fifth point read.—This agreement with the other evidence in the cause, is evidence in relation to whose benefit this suit is prosecuting; the effect and benefit, however, you must determine. The whole facts of the case are for you to determine, in accord-, anee with the law as we have stated it. The case is a difficult one, and I have had time, barely time, to read over the points previous to answering them. If I am wrong, the Supreme Court will set us right. Apply the facts to the law as I have stated it, and find such verdict as you think proper. The errors assigned embraced all the bills of exception, and the answers of the court to all the points put.