Field v. Wilbur

[In Chancery.] Effect of Answer as Evidence. Trustee. The rule as to the amount of evidence necessary to overcome an answer responsive to the hill, commented upon and explained. Husband buys a farm and has it deeded to his wife in trust for their children. Husband and wife hire-orators to build a barn thereon, and inform them of the true stateof thetitle. Orators build the barn, relying in some measure on the trust property for their pay. Husband is sick, and does not expect to live long,- and so informs orators, and soon after the barn is commenced, returns, with his family, to his home in Georgia, and dies insolvent. Wife thereafter promises to pay orators for building the barn. No administration is here taken on the husband’s estate. Held, that .the expenses for building the barn were a proper charge on the trust property.

Appeal from the Court of Chancery, Orleans County. The bill alleged, That on August 21, 1868, Aaron Wilbur, of Savannah, Georgia, bought a farm in Derby, for $8000, and procured it deeded to his wife, Mary E. Wilbur, in trust,for their children; that in the summer of 1869, Wilbur and his wife were desirous of building a barn on the farm that season, and saw the orator, Solomon M. Field, a mechanic and builder, several times about building it, and afterwards sent for him to come to the farm, where they were then stopping, to(see about it, and that he went, and there talked with both of them together about building the barn, and about the plan and location thereof, and that they both then and there agreed with him to build it on a site then designated by them, according to a plan then agreed upon ; that the orators were to furnish all the material, and build the barn that fall, and that the said Wilbur and wife were to pay the orators therefor when the same was completed ; that the orators, in pursuance of said agreement, soon commenced the erection of said barn, but did not fully finish it that -fall on account of the inclemency of the weather, but completed it the next summer, and therein expended in material and labor the sum of $935, which remained wholly unpaid; that at the time said agreement was made, Wilbur and wife informed the said Solomon of the true state of the title of said farm, and that the orators then relied upon a lien upon the barn and premises for their pay for building the barn, and that before the same was completed, they filed in the town clerk’s office a written statement, asserting their lien thereon; that at the time said agreement was made as aforesaid, said Wilbur was in ill health, and apprehended that he might not live long, and told the.orators so, and was then about to return to Savannah, to spend the winter, and did soon leave with his family for his home in Savannah, was taken worse on the way, and died soon after reaching home; that his estate was insolvent, and that administration had never been taken thereon in this state; that in the fall of 1871, the defendant, Mary E. Wilbur, came to Derby and saw tlie orators about their account for building the barn; that she examined the account, admitted that it was just, and agreed to pay it at an early day, and to see the orators again about it beiore she returned to Savannah, but did not, and that the orators had heard nothing from her since concerning it. Prayer, that a master be appointed to ascertain the sum due the orators for building said barn, and that defendants be decreed to pay the orators the sum thus ascertained to be due, and in default thereof, that such sum be made a charge on said premises, and^the equity of redemption of the defendants therein be foreclosed. The answer denied all the allegations of the bill charging the defendant Mary E. Wilbur with being a party to the agreement for building said barn, and alleged, That she was not in any manner party thereto as trustée or otherwise, and denied that she sent for said Solomon to come to the farm on the occasion when said agreement was made, or that she ever did anything that would reasonably lead the said Solomon to infer that she was in any manner a party to said agreement ; and denied that she ever promised the orators that she would pay them for building said barn, but admitted that she once told them she would see about it; alleged that the orators did not rely upon a lien on said barn and premises, but on the contrary thereof that they brought an action of book-account against the said Mary, which is still pending, to recover their account; denied that the orators ever filed a valid lien on said premises in the town clerk’s office, and alleged that they had not perfected such pretended lien by bringing suit and obtaining judgment as required by statute. The answer was traversed, and the testimony of the orators taken.* The trustee in this case was appointed by the donor; Aaron Wilbur, who had a legal right to purchase the real estate in question, and have it conveyed to his wife in trust for his minor children, and as ¿gainst all persons except his creditors at the time of said purchase, it was good. After such a conveyance, he had no legal or equitable title in the premises. G-arfield v. Hat-maker, 15 N. Y. 475. It is the duty of a trustee to use reasonable diligence to protect and benefit the trust estate. If the trustee has not the funds in his hands to defray the expense, he may charge such expense upon the trust estate. Noyes v. Blackman, 6 N. Y. 569; Vose v. Foster, 7 Am. Law Rev. 686 ; Hyde v. Haywood, 2 Atk. 126 ; Wilkinson v. Wilkinson, 2 Sim. &-Stu. 237. A trustee is bound to keep up and sustain the trust estate, and must be allowed for such expenses. M. F. Church v. Jaynes, 1 Johns. Gh. 450 ; Mory v. BeRottenham, 6 Johns. Ch. 52, 67 ; Perry Trusts,-ss. 473, 476, 477, 485. A trustee having acted in good faith, and for the manifest benefit of the cestui que trust, must be protected by a court of equity. Fountains v. Pellett, 1 Yes. 337; Thompson v. Brown, 4 Johns. Ch. 629 ; Root v. Yeoman et al. 15 Pick. 488. The orators having expended their money for the manifest benefit of the cestuis que trust, by request of the donor and the trustee, and by their directions, are entitled to greater protection than the trustees and guardian who have expended the trust funds of their cestuis que trust. A trustee should manage trust property as he would his own, and he is held to the same diligence in the management thereof. 2 Story Eq. ss. 1275,1276. Mr. Wilbur, being the donor, had a right at the time of creating the trust, to direct how the estate should be managed, and what improvements should be made. Parsons et al. v. Winslow, 16 Mass. 867. When the rents of a trust estate are increased in consequence of improvements made by the trustee, the cestuis que trust must elect to either allow the trustee the expense of such improvements, or be deprived of the increase of rent obtained by means thereof; . but this question would more properly arise in a suit between the trustee and the cestuis que trust. ■ But if the improvements are necessary, and are judiciously made, the trustee can charge the trust estate with such improvements. Rathburn et ux. v. Colton et al. 15 Pick. 485, 486; Root v. Yeoman, supra. A mortgagee in possession of mortgaged premises holds the land in trust for the mortgagor. In such a case the courts always allow for permanent improvements. The orators have a lien for the improvements made by them upon the trust estate by the common law. There are lions recognized in equity whose existence is not known nor obligation en-’ forced at law, and in respect to which courts of equity exercise a very large and salutary jurisdiction. 2 Story Eq. 1217. Equitable liens are such as exist in equity, and of which courts of equity alone take cognizance ; that is, it is not a property in the thing itself, nor does it constitute a right of action for the thing; it more properly constitutes a charge upon the thing. 2 Story Eq. 1215. Courts of equity have always held to the doctrine of contribution and lien for repairs and improvements upon trust estates and joint tenants. 2 Story Eq. 1234, 1236. In many cases they proceed upon the ground of some express or implied agreement as to the repairs and improvements. But courts of equity have not confined their jurisdiction to compensation or lien for repairs and improvements to cases*of agreement, but have extended it to cases where the party making the repairs or improvements acted bona fide, and where there has been a substantial benefit conferred to the trust property. 2 Story Eq. 1237, 1239 ; Root v. Yeoman, Rathburn v. Colton, supra. By the terms of the statute, real estate becomes chargeable and holden for the amount due a mechanic for labor and material furnished upon it, from the time the copy of the contract and declaration are lodged in the town clerk’s office. It extends to estates of married women where they consent to such repairs and improvements. The lien attaches against the legal owner of the premises. The orators are entitled to a decree for the rents and profits of the trust estate, and in case that is not sufficient to satisfy their claim in a reasonable time, then they are entitled to a decree of sale or a décree of foreclosure of the equity of redemption of the trustee and the eestuis que trust in the premises. 2 Story Eq. 1216 a, 1216 c. The averment of the bill being denied by the answer, there is not sufficient evidence to overcome the answer. Where the material facts upon which the orator relies in his bill are denied in the answer, the rule is well settled that something more than the testimony of one witness is required to sustain the averments of the bill; what is deemed equal to the testimony of two witnesses is required. Shattuck v. Gray et al. 45 Yt. 87. By virtue of an express statute in this state, mechanics and material men are entitled to a lien or preference in the payment of debts out of the houses and buildings so erected, and to the land, to a greater or less extent, on which they are erected. The time in which such a lien has existence is limited by statute, and the mode of perfecting that lien is there pointed out. No lien under the statute was gained by the orators — it was never perfected. No lien exists touching the subject-matter of this suit independent of the statute or some contract express or implied by which the lien is created. And this is so both in law and in equity. It is not claimed that there was any contract by which a lien was created, that is, it was not agreed by the parties that there should be a lien. Nor can it be said that a lien attached from any previous dealings between the parties whereby a contrapt to that effect might be implied. Nor is there any custom by which f a lien can have existence touching this matter. In Gtreen v. Farmer, 4 Burr. 2214, Lord Mansfield enumerates cases where liens attach. 1st, Where there is an express contract; 2d, Where it is implied from the usage of trade; or 3d, from the manner of dealing between the parties in the particular case ; 4th, or where the defendant has acted as a factor: Substantially the same language is used by Wilde, J., in Jarvis v. Rogers, 15 Mass. 393, and the case in Burrow is there cited. See Wentworth v Day, 3 Met. 355 ; Rushforth v. Hadjield, 7 East, 224. The answer denies any participation in the trade by Mrs. Wilbur. And it must be found that whatever trade was made, was made by S. M. Field witli Mr. Wilbur. This being so, no lien could be created on the premises by Wilbur, because he did not own them and had no interest in them, and this S. M. Field well knew. “ A lien is a proprietary interest, a qualified ownership, and in general can only be created by the owner or by some person by him authorized.” Hollingsworth v. Dow, 19 Pick. 228. A contract made with Mr. Wilbur to erect the barn could not give the orators a mechanic’s lien even, for the reason that he had no claim or interest there. Thaxter v. William et al. 14 Pick. 49. The husband and wife had no power to make a contract as such. Such a contract could only be regarded as the contract of the husband, It is not claimed that the wife made this contract in her individual capacity, but that she and her husband made it together. If this be so, then it follows that she made it independent of her position as trustee, and jointly with her husband, which as to her is as no contract, but is the contract of the husband solely. The authorities cited by the orators’ counsel have no relevancy to the case, but refer to rights existing between trustee and cestui que trust.