Hayward v. Cain

Wells, J.

The objection made to the proof of the plaintiff’s title, that the recitals in the sheriff’s deed do not show from what court the execution, upon which the sale was made, issued, and therefore do not show a competent legal authority to make the sale, cannot prevail. The execution and return thereon supplied the deficiency. Welsh v. Joy, 13 Pick. 477 .

The provision in Gen. Sts. c. 103, § 48, applies to cases where the record title is in a third person through the fraud of the debtor against his creditors. It does not apply to this case.

*277 Upon the facts reported by the special master, the defendant cannot avail herself of the pretended foreclosure and sale under the mortgage. If not void at law, it will be disregarded in equity.

It is clear, upon the report, that the defendant, by an advance of her own money, separately from her husband, furnished one half of the consideration money paid at the time of the purchase, for one half interest in the property. The money so advanced by her was the proceeds of bonds or treasury notes of the United States which she had previously held as her own separate property. The evidence was such as to warrant the conclusion of the master that those bonds were bought mainly with her own money; and that whatever was obtained from her husband for their purchase was thus appropriated with his consent or acquiescence, so as to make it hers. Beyond that, the arrangement of the payments, at the time of the purchase of the land, was a full recognition of her separate interest in the money so advanced by her.

This distinct and significant circumstance of the payment of aliquot parts of the purchase money by each separately is the controlling feature of the transaction. We do not think the fact that the parties to the purchase were husband and wife, since the recent statutes securing to the wife her separate rights of property, should prevent the application of the well settled general principle that a trust results from such a transaction to one who is the real purchaser. Such a trust may be enforced by one of two joint purchasers against the other, who received a deed .of the whole title. Powell v. Monson & Brimfield Manuf. Co. 8 Mason, 347 , 364. Root v. Blake, 14 Pick. 271 . And the husband may be held as trustee for the wife, upon such an implied or constructive trust. Methodist Episcopal Church v. Jaques, 1 Johns. Ch. 450 . Dickinson v. Codwise, 1 Sandf. Ch. 214.

Taking the deed to the husband alone, and giving a note, for one third of the purchase money, signed by him alone, secured by mortgage which the wife signed to release dower and homestead, if so intended and fully understood by them, would be circumstances which might lead to some doubt as to their real purpose in regard to the property. The report finds, however, that *278 the deed was so made contrary to the understanding and intention of all the parties, as “the result of mistake or misunderstanding on the part of Walker’s agent, or the person who was employed to make the deed.” The form of the note and mortgage naturally followed that of the deed. It is not, in any aspect, inconsistent with the defendant’s claim of a trust as to one half of the land, subject to the mortgage ; and, as it was a part of the same transaction with the deed, the inference to be drawn from the report is that it was the result of the same misunderstanding. Its significance, therefore, is unimportant.

As payment of the purchase money indicates and may create a trust, the recital of such payment in the deed is notice of such trust, sufficient at least to put a subsequent purchaser upon inquiry, and to protect against attachment. Bancroft v. Consen, 13 Allen, 50 . Sturtevant v. Jaques, 14 Allen, 523 . Shaw v. Spencer, 100 Mass. 382 .

The point of greatest difficulty to our minds has been whether the trust to be declared in favor of Mrs. Cain should be for one undivided half of the estate, subject to the mortgage ; or for such an interest as she would have taken under a deed to herself and husband jointly. Between others than husband and wife, a joint tenancy, if it existed in fact, would be severed by levy and sale on execution of the interest of one. Gen. Sts. e. 103, § 9. And in the enforcement, between joint purchasers, of a trust arising from payment of part of the purchase money by each, courts of equity ordinarily treat their interests as severable for the purposes of relief, even in cases where they would be joint tenants if they held the legal title in manner corresponding to their beneficial interests. 2 Story Eq. Jur. § 1206. Wray v. Steele, 2 Ves. & B. 388. Lake v. Craddock, 3 P. Wms. 158.

We think the same rule may well be applied in this case, and that it will best accord with the policy of the recent statutes securing to the separate use of the wife her own rights of property. The trust arises from payment of the purchase money. Her ihare was not only derived from her separate property, but was separately paid as an aliquot part of the consideration. The presumption is that it was paid for the purchase of a corresponding *279 interest in the land. It is true that if the deed had been made to them jointly, as the master reports it was their understanding that it should be, it would have created an estate in them which would have been incapable of severance; Wales v. Coffin, 13 Allen, 213 ; because that is the legal construction of such a deed; and the circumstances of the purchase would not be admissible to show a different intent. But all the facts are now open for the consideration of the court; and they show, as we think, a purpose that the wife should have her own interest in the purchase represented by an undivided share, rather than a mere right of survivorship. The finding of the master that it was understood by them that the premises “ should be conveyed to them jointly,” we understand to be made in reference to the question whether it was intended that the husband should take the whole title, rather than to the precise form in which the two were to take it together.

We think, therefore, that in protecting the interest of the wife as a trust, against a purchaser of the interest of the husband upon execution, we ought to regard it as attaching to one undivided half of the land, subject to the mortgage. Hall v. Young, 37 N. H. 134.

This equitable title of the defendant is available to her as a defence, pro tonto, to this bill to redeem. Blodget v. Hildreth, 103 Mass. 484 .

The plaintiff may redeem one undivided half of the premises upon payment of one half of the amount due upon the mortgage. It does not appear whether the $200 of principal and $83 interest were paid from the rents of the premises, or by the husband or wife. But no point is made here in regard to the computation of the debt, and there is no exception to the finding of the master as to the amount due on the mortgage after deducting rents. The only questions open on this part of the ease are those raised by the form of the report.

We think the defendant, occupying as wife of Cain, and herself entitled to the use of the premises as against all-others, independently of the mortgage, is not bound to account for the rents from an earlier date than that of the deed to the plaintiff, January *280 18, 1871; and she would be, at least, from the date of the notice and demand, January 19, 1871. The difference probably would be of no importance in the result.

The master is undoubtedly right in making annual rests. His computation is therefore to be taken as correct.

Modifying the result by the interest and rents since September 13,1872, the plaintiff may redeem an undivided half of the land upon payment of one half of the debt. No costs for either party.

Decree accordingly.