Bobb v. Barnum

Wagner, Judge,

delivered the opinion of the court.

This was a bill for the rescission of the sale of certain real estate and asking that the money paid by the purchasers might be recovered back, and that certain outstanding notes which were given for deferred payments might be delivered up and canceled. By the bill, in substance, it is averred that on and prior to November 30, 1868, Fannie C. and Lucy D. Barnum were the owners in fee simple of tracts of land lying in Montgomery county, containing in all 560 acres; that R. C. Barnum, defendant herein, at the date last mentioned, offered said land for sale and represented that a conveyance by him would vest a good title, subject to a prior mortgage for five thousand dollars, and that, relying on these representations, plaintiffs purchased the land for $11,200.00, six hundred dollars of which was paid in cash, three thousand dollars in a note payable eighteen months after date, twenty-six hundred dollars which was to be paid in fifty-four months, and the $5,000.00 mortgage, the payment of which they assumed ; that the defendant conveyed said land by deed on November 30th, 1868, to plaintiffs, and therefore plaintiffs made and delivered to him a deed of trust on the same land,'to secure the payment of the notes; that when defendant made the foregoing deed he represented that it was good and sufficient to pass the title in fee to the land, subject to the mortgage, and the plaintiffs being under age, young and unversed in legal matters, confided wholly in the honesty of defendant, and did not discover the nntruthfulness of his representations till a few days before the commencement of this suit; that defendant knew he had no title in the land at the date of the deed, and that his deed vested no title in plaintiffs ; that plaintiffs had no title in the land when they executed their deed of trust, and that defendant, in order to defraud the plaintiffs, insisted that they should procure indorsers for the notes— wdxieh plaintiffs did; that one of the indorsers had since paid the three thousand dollar note, and one of the plaintiffs had paid that amount back to him. There was then an averment *397 that possession was taken under the deed by the plaintiffs ; that they made permanent and valuable improvements on the premises, and that as soon as they ascertained that they had no title, they abandoned the possession and notified the defendants thereof. They prayed that defendants might be decreed to surrender up the notes; that judgment might be rendered in their favor for the moneys paid and for other relief.

The answer stated that the land belonged to Fanny C. and Lucy D. infant children and wards of the defendant; that at the October Term, 1867, of the Montgomery County Circuit Court, defendant as curator of said infants petitioned the court for the benefit of the infants, to convert the land into money, under the provisions of the statute, and that such proceedings were had; that at the said October Term the court ordered the land to be sold, and the same was sold to the plaintiff's; that no other representations were made but those contained in the deed and that the deed conveyed a good title to the plaintiffs; that the proceeds of the. sale belonged to the infants and they were necessary parties; and that no notice of rescission or restoration of possession was given prior to the bringing of the suit. And there was an averment that plaintiffs had pointed out no defect in the deed conveying the land and that none existed, and, that if any there was, defendant was ready and willing to rectify the same and make a perfect conveyance at any time. TJpon the pleadings, proof and exhibits, the court found for defendant.

The deed made by the defendant to the plaintiffs is informally and inartistically drawn. It is a deed containing full covenants of warranty, and states that it was made by the defendant, Barnum, curator of the estates of Fanny C. and Lucy D. Barnum, party of the first part, and, in consideration of the purchase money he grants, bargains and sells to the parties of the second part, the premises, and covenants that he will warrant and defend the title, &c. The deed was then signed by the defendant, with the addition, “Curator of Fanny C. and Lucy D. Barnum” — with his seal annexed. A strict, literal construction of the instrument would undoubt *398 edly make it the mere deed of the defendant. Whilst the description and signing shows the intention to convey the lands of his wards, the draftsman did not use the apt words that should have been employed for that purpose.

It is insisted that the deed is void on its face, because it does not contain the recitals of the power under which the defendant assumed to act, and also that the defendant in reality had no power, as the proceedings which culminated in the authority were irregular.

It is true that the statute declares that the curator in making the deed, shall recite therein certain things in relation to the order of the court, appraisements, time, place and terms of sale, and that the recitals shall be prima facie evidence of the facts. (Wagn. Stat., 677, § 82.) The statutory recitals were not contained in the deed and it is certainly defective on that account.

The record shows that the contract of purchase was entered into between the parties, in August, 1868, and by the transcript of the judgment of the Montgomery County Circuit Court, it appears that at the October Term of the court in 1867, an order was made authorizing the curator to sell the laud at either public or private sale, and requiring a report of his proceedings before he made a deed. It is further shown that on the 28th day of September, 1868, an appraisement was made, and that a report of the sale by the curator was then made to the court at its October Term, 1868, and duly approved. The-deed was then executed on the last of November then next ensuing.

The point now urged is, that as the appraisement was not made till after the contract for the sale was entered into, the proceeding was irregular and ineffective. But this position cannot be sustained to the extent contended for. The agreement between the parties in August was executory, and made in view of the fact that the contract could not be finally consummated by the execution of a deed till further proceedings were had. An appraisement was then obtained, and after-wards the report was presented to the court, containing the *399 terms of tbe sale, accompanied by the appraisement, and the same was duly approved, and the report and the appraisement both spread upon the record. Under this authority, the curator afterwards proceeded to execute the deed. Although a slight irregularity existed in reference to the time the appraisement was made, still the law was substantially complied with, and every thing essential had been done when the deed was executed and delivered.

When the report was confirmed, it showed that the plaintiffs were entitled to an absolute estate in fee in the premises ; and some courts have gone so far as to hold that in cases of this kind in courts of general jurisdiction, exercising chancery powers, the court is the vendor, and its approval of the report is binding on the parties. Notwithstanding all this, the purchaser is still entitled to a conveyance, valid on its face. Whether,'under all the circumstances of this ease taken together, the deed, the report and approval, the plaintiffs, would not be enabled to defend themselves, if ejectment were brought against them, is a question not necessary to be determined. But the defendants aver their entire willingness and ability to supply any defect that may exist in the deed. That they can make a conveyance that will transmit a perfect title is, I think, indisputable, and where such is the ease, there can be no ground for rescission or cancellation.

As to the purchasers being deceived and imposed upon by false representations there is nothing in the record justifying the charge.

The question of infancy is not insisted upon by the plaintiffs in this court, and it is unnecessary to take any notice in regard to the points raised as to parties, jurisdiction, and offer to deliver up possession. The defendants brought into court and tendered to plaintiffs a deed from one Barlow, conveying the premises to them. But it is not shown what connection he had with the title, or whether his conveyance was worth anything. It is obvious, however, that defendants can make a title entirely unexceptionable, and as they are ready and *400 willing to do it plaintiffs cannot complain if they get what they contracted for.

The judgment should therefore be affirmed ;

all the judges concurring, except Judge Napton, who did not' hear the argument.