Robinson v. Pebworth , 71 Ala. 240 ( 1881 )

STONE, J.

The testimony as to whose money — $1,200— was employed in making the first or cash payment in the purchase of the lot, all points in one direction, and shows conclusively that it was the money of the complainants, all of whom were then minors, some of very tender years. So, we have no difficulty in reaching the conclusion that the chancellor found, and rightfully found, that fact in favor of complainants.

The next inquiry is, did Robinson, when he received the money, know it was the property of complainants. Prances A. Pebworth, from whom Robinson received the money, mother of complainants, was then their guardian, and Robinson was one of her sureties. The testimony on this question is not entirety in harmony, but we think the weight of it is decidedly in favor of the proposition, that in negotiating and effecting the sale of the lot, Robinson was informed and knew that the money of the wards was to be used in making the cash payment. There is a preponderance of the oral testimony on that side; and if such was not the understanding, why was the deed made to Mrs. Pebworth, styling her guardian, and why did she sign the mortgage in the same way? The mortgage on its face shows that it was given “by virtue of an order this day granted me to this effect by the Probate Oourt.” Guardians, it is true, may invest the money of their wards in real estate; but the title must be taken in the name of the ward. — Code, §§ 2788-9. And under certain conditions, the Probate Court may direct the sale of the ward’s property for re-investment. — Lb. 2785. There is nothing to show this purchase was made under either of these provisions; and the title was made, not to the wards, but to Mrs. Pebworth. The Probate Coxirt had no power to authorize the guardian to give a mortgage. Why should this clause have been inserted in the mortgage, if Mrs. Pebworth was purchasing in her own right, and with her own money? In his testimony Mr. Robinson says: “All I can recollect in reference to the order of the Probate Oourt referred to in said mortgage is, that I was unwilling to sell said realty unless I was protected in the sale thereof.She said that she wanted to invest the money for the benefit of the heirs — the particulars of the conversation, however, I can not recollect. She said she would get an order of the Probate Oourt to protect me fully.” We may again ask, why all this, if Mrs. Pebworth was not dealing • — confessedly dealing — with trust funds? We can not doubt that when Mr. Robinson negotiated and concluded the terms of the sale, he had notice and knowledge that the moneys of the complainant-wards were to be, and were used in the purchase.

In thus using the trust funds confided to her, Mrs. Pebworth committed a devastavit; and when ‘Robinson received it, knowing its trust character, he constituted himself a trustee in mvi-tum of that fund.-Lee v. Lee, 67 Ala. 406.

The lot in controversy was originally the property of Mrs. Robinson. The title deed is in evidence, and it shows that the title was in her. The testimony is that she was a free dealer: Bnt there is nothing in the proof of the negotiation, nor in the title papers executed, which tends to show the lot was sold as the property of Mrs. Robinson. Neither the deed nor mortgage mentions who is the owner. The deed is in usual form by husband and wife, and the mortgage, reciting a debt to Patrick Robinson, conveys the lot back to him, to secure its payment. But we need not consider the effect of this. The most that can be made of it is, that, in making the sale, Robinson acted as the agent of his wife. She ratified the agency, by joining in the execution of the deed to Mrs. Pebworth. The testimony fails to show any other act of hers, or any word spoken by her, throughout not only the sale, but the foreclosure proceedings and conveyances, afterwards had and performed. In such case notice to the agent is notice to the principal; and Mrs. Robinson can claim no higher rights or greater exemptions, than her husband could claim, if the sale had been made by him of his own property.-White v. King, 53 Ala. 162; Le Neve v. Le Neve, 3 Atk. 646; Clark v. Fuller, 39 Conn. 238; Wade on Notice, §679; Bank of Milford v. Town of Milford, 36 Conn. 93; The Distilled Spirits, 11 Wall. 356.

It is claimed, in the next place, that when Mrs. Robinson purchased at the foreclosure sale, she was a Iona fide purchaser without notice, and, therefore, she acquired a good title, notwithstanding any equity the complainants may have had; it not being shown she had actual notice of such equity. There are several answers to this argument. In the first place, the lot had been her property, and the debt for the unpaid purchase-money, although on its face payable to her husband, was in fact due to her. When she, through another, made the purchase, she simply bought mortgaged property, in payment of a debt due to her. She parted with no new consideration, for she neither paid, nor ought to have paid any thing on her purchase. Such purchase would give Robinson no right to claim a credit on any debt he might owe to Mrs. Robinson, for the purchase-money was not due to him, but to her. A mortgagee, charged with notice of a prior equity, can not become a hem a fide purchaser, by buying the mortgaged property at a foreclosure sale made for his benefit.

' But if the purchase-money had been due to Patrick Robinson, the testimony in this case is insufficient to establish Mrs. Robinson’s claim of bona-fide purchase without notice. In Loeb v. Peters, 63 Ala. 243, the consideration of the purchase was a credit for the amount on a pre existing indebtedness from the seller to the buyer, by account. We held that to constitute a purchase, so as, in the absence of notice, to cut off equities, something valuable must be parted with, or some fixed liability incurred; something advanced, given up, or lost on the part of the transferee. We held the defense in that case insufficient.

The only evidence bearing on this question in this case is that of Patrick Robinson, as follows: “Isold the property at mortgage sale to-for about $450. Tie acted for Mrs. Margaret Robinson, my wife, to whom he conveyed said property. I owed my wife a large amount, and this was the consideration I received for said deed to-, and of the deed from--to Mrs. Robinson. There was no money or checks used.” This is wholly insufficient to establish a valuable consideration parted with, or even to establish a bona fide indebtedness from Mr. Robinson to his wife, so as to affect the rights of creditors, or third parties.-Hubbard v. Allen, 59 Ala. 283.

There is a plea of res adjudicata interposed as a defense in this case. The testimony is entirely too meagre to show that the same matters were in issue, and a final decree pronounced on their sufficiency as a ground of relief.-Shorter v. Sheppard, 33 Ala. 648; Smith v. Wert, 64 Ala. 34; McBryde v. Rhodes, 69 Ala. 133.

• The defendant, by an amendment to the answer, sought to obtain a recoupment for the value of the rents of the lot, while it was occupied by Mrs. Pebworth. It is a sufficient answer to this, that the record contains no testimony whatever of the value of the rents, and, on the reference before the register, the defendants offered no testimony on any question. And the record shows no exceptions filed to the report of the register. This question is not raised by any ruling of the court below.

It is contended for appellant — defendant below — that by electing to charge, and charging Mrs. Pebworth, the guardian, with the entire sum of money received by her as guardian, the complainants must be held to have abandoned the right to pursue the money into the lot in which it was invested. It should be borne in mind, that in this case Eobinson, and through him his principal, Mrs. Eobinson, if she received the money, stand charged in invitum with the duty of accounting for the trust fund. Fixing a liability on the true guardian, Mrs. Pebworth, was a condition precedent to the right to trace that fund into property it may have been 'invested in; for, if Mrs. Pebworth committed no devastavit, then no one can be charged as a trustee in invitum. The effect of the ascertained facts in this case is, to fix a liability alike on the legal guardian, and on any other who received the money, charged with notice of its trust character and misuse; and the pursuit of it against one, before satisfaction is obtained, opposes no obstacle.to its prosecution against another, or against property, liable for its payment. Thames v. Herbert, 61 Ala. 340; Lee v. Lee, 67 Ala. 406. Es-toppel in such cases is a reasonable doctrine, and simply means that you shall not take the fruits of an illegal transaction, and afterwards set the transaction aside as illegal.- In other words, that you shall not be heard to claim both under and against the same title.-Butler v. O'Brien, 5 Ala. 316; Morris v. Hall, 41 Ala. 510; McReynolds v. Jones, 30 Ala. 101.

If there is any implication in the case of White v. Cozart (not reported), which opposes the views above, it was unnecessary and is unsound. That case wen t off on the authority of Preston v. McMillan, 58 Ala. 84.

Affirmed.