Brown & Brown v. Wallace & Mitchell , 4 G. & J. 479 ( 1832 )

Martin, J.,

delivered the opinion of the court.

The first question presented in the examination of this ease, is to ascertain the true character of the sale made by James Wallace to Freeborn Brown, of the land in dispute,lot no. 11, part of a tract called “Rupulta." Whether it was made by him in Lis character of trustee, under the decree of the Court of Chancery, or as agent for the heirs of William Mitchell.

It is stated in the bill, that this sale, was made by Wallace, not in his character of trustee, but as the private agent of Mitchell's heirs, and this allegation is expressly denied by Wallace in his answer. lie says he did not sell the land to Brown exclusively, in virtue of the power and authority given him by the heirs at law of William Mitchell, as stated by the complainants; but that he sold the same under the decree of the Chancellor. That although the decree directed him to sell so much of the real estate of William Mitchell, deceased, as was necessary to pay the claim, or debt due to the heirs of James Mitchell, yet he never conceived himself to be restricted by said decree to the exact amount, particularly as it was impossible almost, that a sale could be made of such part of the lands as would just pay said claim, and no more. He avers, at the time of the said sale, he did not know how much the claims of the heirs of James Mitchell amounted to, nor did he know at that time, what the costs of the proceedings in the said suit, between the said Mitchells, and the costs for selling the said lands would amount to. He admits, at the time he sold the said land to the said Brown, he was under the impression, that he had sold as much, exclusive of the sale to the said Brown, as would pay the claim mentioned in the said decree, provided the other persons who had purchased the land sold by him, under the said decree, complied with the terms of sale which they had not done at the time he made the sale to Brown; but he denies, that he knew he had sold a sufficiency for the purposes of the decree, and states, that the power or authority derived from the heirs of William Mitchell, was obtained for the purpose of showing that they were satisfied with the sale, and not because he (Wallace) knew he had already sold a sufficiency for the purposes of the decree, and that he had no further power to sell.

This answer is responsive to the allegations in the bill, and must prevail of itself, unless defeated by the testimony of two witnesses, or one with pregnant circumstances. It does not however stand alone, but is powerfully supported by other evidence in the record. The language of the paper signed by the heirs of Mitchell, shows their intention, and their understanding of the transaction. After stating that the Court of Chancery had passed a decree, that such part of the property, as should be sufficient to pay the sum due the heirs of James Mitchell, should be sold in the manner, and on the terms maintained in said decree, and did appoint James Wallace, to make sale thereof; they say, being desirous that the whole of the property mentioned in the proceedings, should be sold in the same manner, and on the same terms, as mentioned in said decree, they authorise and request the said James Wallace, trustee aforesaid, to sell the whole of the property, on the same terms as is mentioned in the said decree, and we do hereby further authorise and request the honorable the chancellor, to ratify and confirm the said sale when so made as aforesaid, by the said trustee. In every part of this writing Wallace, when referred to, is considered as acting as trus“tee; and not as the private agent of the heirs of William Mitchell; and in the last clause, it is expressly slated, the sale is to be made by the said trustee.. If this was a private sale by the heirs of William Wallace, what control had the Chancellor over it, and upon what ground could he be called on to ratify and confirm the sale, unless made by a trustee, under his decree? Again, if this was a sale made by the heirs of Mitchell, by Wallace as their private agent, the bond for the purchase money ought to have been given to them, and not to Wallace, and when paid, the deed to the purchaser must be executed by the heirs, and not by their auctioneer. Wallace could only have authority to take the bond to himself, and when paid, to execute a deed, when the sale was made by him as trustee, under the decree of Chancery. By a reference to the receipt passed by Wallace to Brown, dated 16th November, 1812, we find, the bond for the purchase money was given to Wallace, and he obligates himself to execute a deed to the purchaser upon the payment of it. And this receipt is signed, “ James Wallace, trustee.” This paper clearly imports, Wallace made the sale as trustee under the decree of Chancery, having first obtained the consent of MitchelVs heirs for so doing.

To oppose this answer on oath, so strongly corroborated by the acts of the parties themselves, appearing from the written evidence, is presented the testimony of some witnesses who were present at the sale. Thomas Brown, Robert Gover, and Bennet Barnes testify, that Wallace said he sold it, by virtue of an authority from the heirs of Mitchell. George Bartol, Andrew Rhodes, and Abraham Jarrett, were also present at the sale. Bartol says, he does not recollect he heard Wallace say he had no authority to sell more. Rhodes did not hear him say he was authorised by the heirs to sell more, and Jarrett says, he does not recollect, Wallace said, under what authority he sold. This testimony is variant, and does not sustain any one statement of facts, and it must be recollected, this took place at the bustle of a public sale, and therefore, may not have been accurately remembered by persons not interested in the sale. But take the whole transaction together, may it not fairly be considered as supporting the statement, that appears from the written evidence before referred to. That Wallace, having sold lot no. 10, thought he had enough to pay the claim, but at the request of the heirs, and having ob- , tained from them their assent in writing, he proceeded to sell lot no. 11, in the same manner as he had sold the other lots.

It has been contended, if the sale was made by Wallace, as trustee under the decree aforesaid, yet the sale was not binding on the purchaser, because he exceeded the power conferred on him by the decree. That by the decree, he was authorised to sell only so much land as was necessary to discharge the claim against the heirs of William Mitchell, and that therefore, after the sale of lot no. 10, if that produced a sufficient fund to discharge the claim, his power ceased, and the purchaser was not bound by the subsequent sale of lot no. 11.

This is not a new question, and will be found to be substantially settled in the case of Lutwych vs. Winford, 2 Bro. Ch. R. 249. See also Lloyd vs. Johns. 9 Ves. 65. But we deem it unnecessary to enter into a full investigation of this doctrine, because neither this question, nor whether Wallace sold as trustee, are now open for inquiry. Upon the application to the chancellor to sell this land, for the payment ot the debt due by Mitchell's heirs, he had authority to direct the whole, or any part thereof, to be sold. He directed the trustee should sell so much as would be necessary to discharge the claim. The trustee, after the sale made a report of his proceedings to the Court of Chancery, in which he states the sale made to Brown, and the circumstances under which it was made. On the return of this report it was ratified nisi—public notice was given of this ratification, and no objections having been filed, it was about a year after its return finally ratified and confirmed. Brown having dealt with Wallace as trustee, and being reported the purchaser, if he wished to avoid the sale, because it was not made by Wallace as trastee, or that he had exceeded his authority, ought to have filed objections to the report. It is to be presumed, when the chancellor acted on this report, he was satisfied Wallace made the sale to Brown as trustee, and in a manner he was authorised as such, to make it. it was necessarily brought to his attention by the report itself, and his final ratification was conclusive upon the purchaser, as to these questions, he not having appealed from it.

Whether the opinion expressed by the chancellor, that a different course prevails in this State, from that adopted in England, as to the rule of caveat emptor, when applied to sales made by the trustees, under the decrees of the Court of Chancery, is con’ect, it is not necessary to decide in this case, because it clearly appears, the trustee at the time of sale expressly declared, he only sold the estate, right, and interest, which the Mitchells had in the said land, and if they had no right, he sold none. Here can be no pretence of warranty. Brown purchased the title of the Mitchells, be it what it might, and no more. This also disposes of the title set up by the Govers; in addition to which, the testimony shows, Brown was warned of their claim, and disregarded it. As to the objection urged in the argument, that the heirs of Mitchell had only an equitable title, the answer is, there is no such allegation in the bill, and therefore, not for the consideration of this court. The same answer may be given to the defence, that Wallace sold all the residue of Rupulta. Although the complainants havé attempted to prove it, they do not rely on it in their pleadings. The deed to the Cooleys cannot avail the appellants. If the land conveyed by it, was included within the lines of lot no. 11, as sold by the trustee in 1812, the deed in 1815 could not defeat Brown's title. If it was not included within these lines, Brown has no right to complain of it, because it does not interfere with the land he bought.

The sale made to Brown was not for a gross sum, but by the acre. Lot no. 11, was represented by the trustee as containing one hundred and forty-three acres, and Brown agreed to give twenty-three dollars for each acre it contained. If therefore, he was in a situation to inquire into it, and could prove a deficiency, it would have been allowed him. If he had desired a survey to ascertain this fact, he ought to have applied to the chancellor for it. The testimony relied on for this purpose, does not prove satisfactorily there was a deficiency. On the contrary, it appears a survey was made, to which Brown was privy, before he passed his bond, and it is to be presumed he was satisfied. Brown is not in a predicament to avail himself of the objections he relied on, had they been established. In England, where the purchaser is permitted to show a defective title, it is only on condition he makes his complaint in a reasonable time, and (hat he has performed every thing on his part to entitle him to the equitable interference of the court. Here the sale was made on the 7th day of May, 1812. Brown had been present at the running of the land. He was warned of the claim of the Covers. He afterwards "gave his bond—a suit was brought on this bond, prosecuted to judgment, and carried to the Court of Appeals, yet he makes no complaint until May, 1818, holding possession of the property, using it as his own, renting it out, and cutting wood on it; and still he asks equity, without any offer to pay for the use and profits of the land, or for the injury he had done to it.

We agree with the chancellor upon the subject of jurisdiction. The decree to sell this land was in the Court of Chancery. The trustee and fund were under the control of the chancellor, and he alone, could compel Wallace to bring the money into court, to be properly disposed of. ’Tis true, both courts in ordinary cases have authority to grant injunctions, but where a suit has been commenced in one, it ought to be entitled to retain it. Unless this rule prevails, it is impossible that the decrees of either court, in many cases, can be carried into eifect.

DECREE AFFIRMED.