Byington v. Moore ( 1883 )

Adams, J.

-In April, 1856, one LeGrand,Byington entered into a contract witli Page county, whereby be purchased from tbe county certain land claimed by tbe county to be swamp land. He paid a part of tbe purchase money, and took a written contract from tbe county, obligating it to convey tbe land to him upon its obtaining a perfect title, and upon bis paying the balance of tbe purchase money. Tbe plaintiff claims that afterward be became tbe equitable owner of tbe land by virtue of an assignment to him of tbe contract. Le^ Grand Byington is tbe plaintiff’s father; and it appears that in May, 1861, and when tbe plaintiff was about seventeen months old, bis father indorsed upon tbe contract an assignment in these words: “For tbe consideration of tbe natural affection which I have for my soil, Ottoe A. Byington, and of one hundred dollars paid to me by him, I assign to said Ottoe A. Byington all my interest in this contract. Witness my band this first day of May, 1861.” This was duly signed. Whether there was any such delivery of tbe contract and assignment as to put tbe assignment in force, is one of the questions in dispute. Some time prior to 1868, certain difficulties arose in relation to tbe title to tbe land, and it became uncertain as to whether a title could be obtained from tbe county as bad been provided in the contract. In view of these difficulties, it bad become necessary for the plaintiff, or bis father, to employ counsel in Page county. The defendant, as a member of tbe firm of Moore & McIntyre, was at that time practicing law in that county. On tbe 30th day of .May, 1868, the plaintiff’s father, it appears, wrote to' Moore & McIntyre with the view of employing them, and, as we infer, in the matter of procuring a title to this land. The letter was answered by Moore & McIntyre on the 6th day of June following. Their answer is in these words: “Dear Sir: Yours of May 30 is at hand. Our Mr. Moore will call on you about the eleventh or twelfth of this month, and talk over your land matters in this county.” Moore called as promised. As to wliat transpired at the interview the parties differ radically. The plaintiff claims that he at that time, through his father as his guardian, employed the defendant as his attorney to procuro a title to the land. The defendant denies this, and denies that he had any knowledge of the plaintiff, and denies that he undertook to act as attorney for him or his father, but says that he purchased in good laith from the plaintiff’s father all the equitable interest which he derived from the county under the contract, and in ignorance of any assignment thereof to anyone. "Whatever the fact may be in this respect, the defendant applied to the county for a title to the lands, representing that he had become the owner of the contract, and induced the county to convey to him; he in the meantime paying the balance of the purchase money. He afterwards sold a portion of the land and received the proceeds. The plaintiff claims that the defendant obtained the title by false representations • made to the county, and in fraud of his rights.

Before proceeding to the determination of the principal question involved, we find it necessary to determine some questions of practice which are presented by the defendant’s appeal. The defendant filed a motion to suppress the deposition of LeG-rand Byington, taken on behalf of the plaintiff. The grounds of the motion are stated as follows:

“1. The commission to take said deposition was directed by this court to one Fred Remley, a notary public, etc., aud the deposition was taken before and by one T. A. Remley, or one E. A. Remley.

“2. The paper purporting to be a commission, and to have been issued bj the clerk of this court, under and by virtue of which said deposition was taken, was not authenticated by ■the seal of this court, but is pretended to be authenticated by the seal of the district court of Page county, Iowa.”

The motion was sustained as to the second ground, and overruled as to the other. But, as to the second ground, the court ordered that the clerk amend the commission by affixing thereto the seal of the circuit court, that being the court from which the commission issued and in which the case was pending,' and ordered that the deposition and amended commission be returned to the notary public who took the deposition, with leave and direction to said officer to require the witness to reappear before him, and, upon his reappearance, to read over to him the deposition, and to require him to subscribe and swear to the same again, and to certify the same back to the court. The commission was accordingly amended by the addition of the proper seal, and returned with the deposition to the notary public, who complied with the direction of the court as above set out. In his second certificate, he added that his name is Fred A. Remley. He signed his name to the certificate as F. A. Remley, and did not append thereto any words showing the official character in which he acted. The defendant moved again to suppress for want of these words. The court sustained the motion, but directed that the deposition and certificate be returned for an amendment to the certificate by appending to the name of the officer the words “notary public within and for the county of Johnson, in the state of Iowa”; that being the county for which Remley liad been appointed notary public. The deposition and certificate were accordingly returned to him, and the amendment made as directed.

I. The defendant insists that, as the commission was issued to Fred Remley, and the certificate was signed F. A. Remley, 1. DJGPOST-crep-incy ni tary® pro-10' sumption. it does not appear with proper certainty that the 11 1 x " deposition was taken before the person to whom ^ie commission was issued. The theory of the ]aw is, that the clerk of the court from which the commission was issued knew Ered Remley, or knew of bim, and, having confidence in bim, issued the commission for the purpose of clothing him specifically with power to do the things named therein. The person executing the commission and making a return of his doings should appear to be the person commissioned, and should so appear of record from a certificate appended to and returned with the commission.

'Whether a court could presume that Ered Remley and E. A. Remley are the same person, is a question which admits, perhaps, of some doubt. The letter E. may be presumed to be the initial letter of a Ohristain name. Looking at it alone, as used in a given place, we could not say that it is the initial of Ered in such place. The most that we could say is that it might be. But the fact that it might be, taken in connection with two other facts, justifies us, we think, in presuming that the deposition was taken before Ered Remley. We may presume that the commission was sent to Ered Rein-ley. It has been returned by some one, and a certificate signed with a name that might be that of Ered Remley states expressly that it is that of Ered Remley. The practice of using merely the initial letter of Christian names in executing official papers is not to be commended. It is liable at all times to lead to uncertainty and embarrassment. But in the case at bar, taking the certificate as a whole, we think that the identity of the name of Fred Remley and E. A. Remley sufficiently appears.

II. The next question presented is as to whether the court erred in directing the clerk to affix the seal of the proper 2. —: wrong-mission °m amendment: practice. court, and to return the commission and deposition to the officer named in the commission. The . defendant’s theory is that, as the motion to suppress was sustained, the commission >vent for nothing, and that a new commission should have been issued and the deposition retaken. But the order sustaining the motion must, we think, be taken in connection with the order for the reissue of the commission properly sealed. The suppression of the deposition was merely provisional. It was made because an irregularity bad occurred, and was to continue only until the irregularity could be corrected and the deposition be reiiled with the proper evidence that the irregularity had been corrected. This appears clearly enough to have been the intention of the court, when both orders are considered together. Perhaps the safer and better practice would-be, ordinarily, where through mistake a deposition has been taken under an unsealed commission, to cause a new one to be issued, that the testimony of the witness may be taken under it. The statute certainly contemplates that the person before whom tiie deposition is taken shall be clothed with the specific power at that time, and an unsealed commission can hardly be deemed to have that effect. But when it appears with reasonable certainty that no prejudice has been wrought by the reissuance of a commission, as in this case, we do not think that we should be justified in holding it to be erroneous. Whatever irregularity there may have been, it may, we think, be looked upon as an unimportant deviation, and insufficient, under section 3741 of the Code, to justify excluding the de-. position. It is contended, to be sure, that the irregularity is not an unimportant deviation. The point especially relied upon is, that it was the defendant’s right to have the witness so sworn that he should have the penalty of perjury before his eyes, and that the witness in this case was not so sworn, even at the time he was sworn upon being recalled. The claim that the officer was uncommissioned at the time the witness was recalled and resworn must, we think, be predicated upon the theory that a commission can issue only to take a deposition, and not merely to re-swear a witness to a pretended deposition already taken. But we think that, when the commission was properly sealed and reissued, and placed in the officer’s hands, he was clothed with power to administer the oath in question to the witness. Any other view, it appears to us, would be extremely technical, and not demanded for the just protection of any one’s rights. The views which we have expressed we think sufficiently dispose of the objection urged to the manner in which the deposition was taken

III. The deposition was refiled for the third time December 9, 1882. The case was called for trial December 13, 3__ motion Uine’oFmak-ts-1882. On that day the defendant asked for three " days’ time to file further objections to the deposition and motion to suppress the same, and, in excuse for not having filed his objections and motion before, he alleged that he had had no notice of the last filing. The court refused to allow him such time. He contends that in this the court erred. He claims that he was entitled to three days’ time under the statute. What provision he relies upon lie does not point out, but we suppose it to be section 3751 of Miller’s Code. That section provides that, when depositions are filed, notice thereof shall be given by the clerk to the attorneys of the parties. It also provides that, -where a deposition is filed during the term, a motion to suppress, if made, must be made by the morning of the third day after the deposition is filed, and in any case must be made before the case is reached for trial. In our opinion, the defendant does not show that he was entitled to three days. The deposition had been filed more than three days already. It may be that he had not had notice, but it is not properly shown to us that he had not. Besides, the case was reached for trial on that day, and may have been reached when the request for time was made.

IY. The defendant claims that no entry of the third filing of the deposition was made in the appearance docket until i.-: filing not entered on appearance docket: objection too late on appeal. after the trial, and that the deposition should not for that reason, if for no other, have been read in evidence. But this objection does not appear to have been made in the court below, and we think that it cannot be made here for the first time. The defendant, to be sure, contends that, if no entry was made in the appearance docket, the deposition should be treated as not filed, and not a part of the record, and cites authorities showing that we have so treated pleadings where no entry was made in the appearance docket. To this we have .to say that we so treat pleadings, because the statute expressly so provides. There is no such express provision in respect to depositions. The filing of the deposition appears now to have been entered in the appearance docket, and, having been read without objection for want of such entry when read, and having now been certified to us, we should not be justified in discarding it as no part of the record.

Y. Some objection was made to the evidence introduced 5. EVIDENCE of letters: secondary: error cured, by plaintiff of the contents of letters addressed t. . to LeUránd Bvmgton, and purporting to have " ° 7 1 x ° the signature of-Moore & McIntyre. Whether the objection was well taken we need not determine. As we understand the abstract, the original letters were afterwards put in evidence, being attached to the deposition of one Alexander.

YI. Coming now to the • principal question in the case, and that is as to whether the defendant took title to the land from the county in trust for the plaintiff, we have to say that we think that he did. We have all reached this conclusion upon a separate reading of the evidence; and, while there are some strange facts and circumstances which prevent us from adopting any view that is entirely satisfactory, yet, taking the record as it is presented to us, wo cannot say that there is much doubt on which side the preponderance of the evidence lies. So far as this mere question of fact is concerned, we shall content ourselves, as is our custom, with stating the conclusion which we have reached. We could not set out and discuss fully the grounds of our conclusion, without setting out fully the evidence upon both sides; and this would serve no useful purpose, but merely encumber the reports. We have to say, however, that, connected with the determination of the question of fact, some' legal questions are presented, upon which it is proper that our views should be briefly set forth.

YII. The defendant contends that no implied trust is shown in this case, because such is not the purport of the 6 attohNey attorney11 fraudehargea as trustee^ plaintiff’s averment, and that no express trust is shown, because the plaintiff’s evidence of a trust is not in writing. The plaintiff, after averring ^ j.*^e ]an(j described in the contract had become clouded and in dispute, and after averring that his legal guardian, LeGrand Byington, employed the defendant as attorney for him in the settlement of the difficulties, made an averment in these words: “But your petitioner avers that the said defendant fraudulently, and wholly without authority, claimed and represented to the board of supervisors of Page county that he was the legal holder of said contract, and entitled to the benefits and proceeds of the same, and that, in virtue and pursuance of such false representations, the conveyance from said county of said lands above described was made directly to said defendant, instead of to your petitioner.”

Where the holder of an equitable title to lauds employs an attorney to procure for him the legal title, and the attorney, by fraudulent representations that he is the equitable owner, procures the legal title to be conveyed to himself, the employer still remains the equitable owner, and the law by implication charges the attorney as trustee of the legal title for his employer. The case differs widely from Burden v. Sheridan, 36 Iowa, 125, cited and relied upon by the defendant. Burden had not become the equitable owner of the land, nor had he any interest whatever at the time of his alleged employment of Sheridan. The purchase of the land was yet to be made. In the case at bar, we think that the petition clearly shows an implied trust. It was competent, therefore, for the plaintiff to establish it by parol.

VIII. A question is raised by the defendant in regard to the delivery of the assigned contract to the plaintiff. The 7. convex-eryoti facts’ constmtmg. assignment was written when the plaintiff was less than two years old, and according to the evi-<jence ^ contract passed into the defendant’s bands before the plaintiff was ten years old. Probably it never actually passed into the plaintiff’s hands. But the assignor had been appointed his guardian, and, according to the view which we take of the evidence, he as such guardian employed the defendant for the plaintiff, and delivered to the defendant the contract as the attorney of the plaintiff. If we are correct in this, there was a sufficient delivery.

IX. The defendant contends that the evidence shows that 8. attoruev iuieiityro-: quireci. ^ie assignment, if made, was made to enable the assignor to defraud his creditors. We have not thought it proper to go into any inquiry as to what the fact was in this respect. If it should be conceded that such was the object, the assignment was good as against the assignor. The plaintiff' as assingee could employ an attorney, and the attorney could not set up the fraud to enable himself to escape his express and implied obligations.

X. The defendant insists that, if he is to be charged as trustee, he should not be charged for the entire land and 9-- infl-delity not rewarded. proceeds. Ilis theory is that he should only be charged for such proportion as the amount paid by the plaintiff’s assignor bears to the whole amount paid as purchase money.

Where one person receives money from another to invest for him in real estate, and he adds certain money of his own, and invests the whole together, and takes the title in his own name, it may be conceded that he should be charged as trustee lor only a proportionate share. But the case at bar is different. The plaintiff had become the equitable owner of the entire property, subject to the payment of the balance of the purchase money. If the bargain was a good one, as it appears that it was,, the plaintiff was entitled .to the benefit of it. We do not think that the case is one which would justify us in charging the defendant proportionately.

XI. The court below allowed the defendant for taxes paid on the land, but allowed him nothing for taxes paid on the 10. —fraud sidered. proceeds of the sales of land which he made, if these proceeds had been kept distinct, and the amount of taxes paid thereon had been shown, he should have been allowed for the taxes paid. But the evidence shows that the defendant used the money, and it is not shown what specific investments were made with it. ¥e can not know, therefore, how the property was assessed which was purchased with the money, nor what amount of taxes was paid, if any. Any finding that the court should attempt to make would be only a loose estimate, and one not based upon any reliable evidence. We do -not think, therefore, that we should be justified in making an allowance foi such taxes.

XII. The defendant claims that he expended money in employing attorneys to aid him in the matter of the title to these THE SAME. lands, and that he ought to be allowed for such ° expenditure. The evidence shows that the defendant employed attorneys, and paid in one instance $750, and in another $300, but it is not shown that this money was paid for services rendered exclusively in the plaintiff’s matters, and we infer from the evidence that it was not.

Wo have considered the principal questions presented on the defendant’s appeal. We have not attempted to answer all his positions. We could not do so without unduly extending this opinion. It must suffice for us to say that we have examined them all, and do not think that they are well taken.

XIII. The plaintiff appealed upon the ground that the THE SAME. amount allowed the defendant was too much. The court allowed the defendant $1,150 as balance of purchase money paid by him, and a decree was entered upon that basis. We think that the allowance was justified by the evidence then before the court. Afterwards the plaintiff sought to introduce other evidence upon the point. The decree entered provided for the introduction of other evidence in regard to the amount of taxes paid, but not in regard ‘ to the amount of purchase money paid. The court, therefore, refused to consider the plaintiff’s evidence upon the latter point.

The plaintiff claims that ho was not too late, because, in making up the issues, no claim was made by the defendant it.evidence: ■submission of cause: practice. to be reimbursed for payments or expenses, and that, as the court had allowed'the defendant to . . testily to payments when the plaintiff was not fully prepared to rebut him, he should be allowed to introduce his evidence in rebuttal at the subsequent hearing set for specific matters, though this was not embraced among them. As to the issues, we think it sufficient to say that the plaintiff called for an accounting. The parties introduced evidence in relation to it. No objection appears to have been made to the evidence. The parties submitted the case upon the evidence as -a finality, so far as the point in question is concerned. After decree rendered as a final decree upon this point, we do not see how the plaintiff could properly claim that he was entitled to introduce further evidence. On both appeals we think that the decree must be

Affirmed.