Parker v. Travers , 4 Buchanan 812 ( 1908 )

The opinion of the court was delivered by

Swayze, J.

There are cross appeals in this case. As far as concerns the questions presented by the petitions of appeal, we agree with the views expressed by the vice-chancellor. Through inadvertence the decree fails to follow the opinion in some respects, and in others seems to require explanation.

1. It decrees that the deed convejdng lots 4, 5, 289 and 290 be set aside, annulled, and made void. The opinion makes it clear that it is only void as to the equal undivided one-third of Sophie Y. O’Brien. The deed is not printed in the record, but it seems to have conveyed only the undivided interest of Sophie Y. O’Brien. Although she had. on the face of the earlier deeds a paper title to the Whole, it is clear that in equity she was trustee as to two-thirds for Annie E. Travers, even if the conveyances by which the title was conveyed to her in 1888 were efficacious to pass the legal title. If they were not efficacious for that purpose, Mrs. O’Brien had a legal title to one-third only. We regard the deed of January 24th, 1905,' as conveying only one-third, and with this explanation, the decree in this respect is affirmed.

2. The decree adjudges that the complainant is entitled to one-third of $11,000, moneys collected by Miss Travers for insurance on the buildings that were destroyed by fire, and fixes the amount with interest at $3,710. The bill charges and the answer admits that she received (after paying mortgage liens amounting to $4,630, for which a part of the insurance policies had been pledged as collateral security), the sum of $6,370. She should be charged only with one-third of this amount. The mistake in the decree is not cured by the fact that the deed is set aside, subject to the lien of all valid mortgages existing at the time of the conveyance; the mortgage in question seems to have been satisfied and the decree does not attempt to reinstate it, but in so many words adjudges a money liability against Miss Travers for an amount which makes no allowance for what was paid on the mortgage. This mistake requires a reversal of the decree upon the appeal of Annie E. Travers.

3. The decree adjudges that the complainant have a lien, for the amount found due, upon the interest of Annie E. Travers in the land. Her counsel argues that such a lien is not authorized, but in the reasons for reversal stated at the conclusion of her petition of appeal, no such reason is assigned. We think, therefore, that we should not disturb the decree in this respect.

4. The complainant urges that the amount charged against Miss Travers for the value of the furniture is less than its value as conceded in the answer. We think it unnecessary to consider this question, since the complainant does not appeal from this part of the decree.

Sophie Y. O’Brien’s rights do not seem to be affected by the decree, except as to the costs. The controversy was between the complainant and the defendant Travers. Since the complainant prevailed in setting aside the conveyance made by Mrs. O’Brien, he was entitled to costs. The decree, so far as it is involved in her appeal, should be affirmed. The same result follows so far as the complainant’s appeal is concerned.

Miss Travers has been obliged to come to this court to correct the decree, and she should have costs on the appeal, including the costs of printing. The complainant is entitled to costs in the court of chancery as the decree adjudged.

On appeal of Annie E. Travers: For affirmance — None. For reversal — The Chancellor, Chief-Justice, Garrison, Swayze, Eeed, Trenci-iard, Parker, Voorhees, Minturn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill — 15. On appeal of Sophie Y. O’Brien: For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Eeed, Trenci-iard, Parker, Yoorhees, Min-turn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill —15. For reversal — None. On appeal of Edmund J. Parker, trustee: For affirmance — The Chancellor, Chief-Justice, Garrison,' Swayze, Eeed, Trenci-iard, Parker, Yoorhees, Min-turn, Bogert, Yredenburgh, Yroom, Green, Gray, Dill —15. For reversal — None.