Collins v. Smith ( 1856 )

Scates, C. J.

In deraigning title from an administrator’s sale and deed, made under an order of sale for the payment of debts of deceased, the plaintiff offered to prove a resulting trust, by showing the purchase money paid at the administrator’s sale to have belonged to Joseph, William and Samuel McClintock, and that Thomas McClintock, who bid off the land and paid the money, acted as their agent, and did so for them.

A parol agency to buy or sell land is good (Johnson v. Dodge, 17 Ill. R. 433), and the agent is a competent witness to prove his agency, as between his principal and a third p„erson. Cadwell v. Meek et al., 17 Ill. R. 220. And parol evidence is admissible to prove a resulting trust in lands, and is an exception to the general rule requiring written evidence under the statute of frauds and perjuries. Rev. Stat. 1845, p. 259, Sec. 4; Adams’ Eq. 165, note 1; Enos et al. v. Hunter, 4 Gil. R. 218-19; Boyd v. McLane, 1 John. Chan. R. 582.

The declarations or admissions of the nominal purchaser are always admissible to establish the fact of payment by the cestui que trust, or the ownership of the money. Adams’ Eq. 165, note 1; Malin v. Malin, 1 Wend. R. 626 ; Pierce v. McKeehan, 3 Penn. State R. 136; Harden v. Harden, 2 Sandf. R. 17; Lloyd v. Carter, 17 Penn. State R. 216; Peabody v. Tarbell, 2 Cush. R. 232; Pinney v. Fellows, 15 Verm. R. 525; Barron v. Barron, 24 ibid. 375.

It would seem to result, as a legal conclusion from these several principles, that Thomas McClintock, the supposed nominal purchaser and agent for the alleged cestui que trust, was a competent witness, and the plaintiff was entitled to prove the facts proposed, and in the mode proposed, unless the title thus made out was insufficient and inadmissible as a foundation for the statute of limitations.

Such was the opinion and ruling of the court below, but we think the title sufficient to defend under the statute. Rev. Stat. 1845, pp. 349-50, Secs. 8, 9, 10 and 11. The court, in Poage's heirs v. Chinn's heirs, 4 Dana R. 54, construed a similar statute of Kentucky of 1809, to embrace an equitable title. And they allowed that title to be proved by such evidence, parol or otherwise, as was proper to establish the several links in the chain. Barol proof was received to establish a descent and heirship—also tenancies and possessions under leases. And it was held that the possession and residence of the tenant should enure to the benefit of the landlord, as his possession and residence, in making out a residence for seven years under the statute.

An administrator is within the description of “ other person authorized to sell such'land” “under any order, judgment or decree of any court of record,” as provided in the 8th section; and when title is deduced from such a source, and being connected in law or equity, we regard it as fully “deducible of record” within that section. And plaintiff would only be required to add possession hy actual residence for seven years to make out a bar under that act. If the language of the act, “having a connected title in law or equity, deducible of record,” cannot he made to embrace this title in equity by resulting trust, it must be excluded by construing the phrase, “deducible of record,” to apply to each link in the chain. This I do not think is the sense of the provision. If the foundation, source or beginning of the title under which the party claims and enters, is of record, that is, by grant of this state or the United States, or hy grant of a public officer or other person authorized to selí for non-payment of taxes, or on execution, or under order, judgment or decree of a court of record, then it is “ deducible of record” to every person who can connect himself with it by such proofs as are competent for any purpose to establish the kind of title under which he claims. We know that in having connected claim of title for recovery in ejectment, we have frequently to weld in a link hy parol—for a descent and heirship—for a lease (these are mostly in writing at this day), and possession of tenant under it, and such like instances., Although an equity link would not sustain an ejectment suit under the statute, it may defeat it, and so may be put in by parol qVidence, when it is of a character to he established by that character of parol; and I have shown that a resulting trust is an express exception from the statute of frauds. In Poage's heirs v. Chinn's heirs, above referred to, the court gave a like construction to their act, as only requiring the title from the commonwealth to be of record, and the remainder of the chain as the nature of the title should require.

This I think to he a somid and reasonable interpretation, and one calculated to give effect to every provision. I am not able to perceive how the contrary one could prevail without cutting off heirs from the benefit of the defense, because the descent and heirship could not become matters of record in the sense here contemplated, so as to become record evidence.

The court, therefore, erred in excluding the testimony of Thomas McClintock, offered for the purposes set forth, and also in instructing the jury to find for defendants.

Judgment reversed and cause remanded for new trial.

Judgment reversed.