Hunt v. Freeman ( 1824 )

By the Court :

There is no doubt but that it was the intention of the parties to the contract creating the trust, upon which the complainants found their title, to subject lands and not floating warrants. This is manifest' from the whole testimony, and the reasons why the numbers of the warrants was adopted by way of description is obvious. Freeman had agreed to locate the warrants upon six out of eight specified sections. Proceeding upon the ground that all the warrants were located, but the parties not being informed of the six sections they covered, this mode of description was the best within their reach. If the warrants had been all located, as Ezra Freeman asserted, the description would have been sufficient. That it was defective, is to be attributed to the mistake or the fraud of Ezra Freeman, and is in no respect the fault of the other parties.

The intention of the parties to describe particular and distinct tracts of land was not carried into effect by the writing executed between them in consequence of a common mistake. The defendant can not ask to place the case upon fairer ground than this, because if Ezra Freeman was not mistaken, when he assured the other parties that all the warrants were located, he was guilty of misrepresentation and fraud-, which is a more unfavorable view than attributing it to a common mistake.

The mistake was that three only of the six warrants were located, and of these three, one only of those upon which *the trust was given, the other two were still unappropriated. It is not to be doubted that upon the discovery of this fact, a court of equity would have charged the trust upon the three located sections, because in so doing they would do nothing but perfect the original object and intention of the parties. It would be but correcting the mistake into which the parties fell from a deficiency of correct information at the time the contract was executed between them.

When this matter was transacted there was no court of chancery in this country where the lands lie to take cognizance of the ease. And if there was a court of chancery in New Jersey, neither the party nor the subject was within its jurisdiction ; the parties, therefore, could only proceed to do that which a court of chancery would direct to be done, and when the rights of the parties were thus fixed, rely upon a court of law to sustain them.

As the property upon which this trust was created was circumstanced, the parties did not require the aid of a court of chancery, and this aid could at no time have become necessary had not Clarkson Freeman obtained a deed from Symmes in violation of the original agreement with Boudinot. By that agreement the control of the legal title to the whole six warrants, or the lands they covered, remained in Boudinot to be transferred to Freeman upon the performance of certain acts. Boudinot having a right to control the title to the whole, had covenanted to convey three that they might be subjected to a particular trust. It rested with him to carry the intention of all concerned, in the trust agreement, into effect, by conveying any of the sections located, in the execution of the trust, when it was ascertained that those designated were not appropriated. It was his duty to retain his control over three sections of the land, if there were so many secured, to satisfy the trust. In the actual case a court of chancery would have enjoined him from parting with this control had he attempted to do it. He might properly, notwithstanding the mistake in the description, have conveyed the three located sections to Ogden, and it would have been a good execution of the trust agreement on his part. No court of chancery, upon the application of Freeman, would have interfered, upon the case as it stood, to restrain Boudinot from thus proceeding; and such a *proceeding must have been subsequently sanctioned by a court of law.

When Clarkson Freeman obtained the conveyance from'Symmes for section 35, he knew that it was one of the three located sections which his agent had agreed should be subjected to the trust. He knew there was no other land upon which the trust agreement could operate, and it wqs a fraud upon that agreement to take the legal title to himself so as to exclude the agreement from operating upon it. It was also a fraud upon Boudinot, in whom, by Freeman’s own contract, the control of the legal title was to remain. By this fraud, as against those upon whom it was practiced, Clarkson Freeman acquired no beneficial interest. The title passed to him, but the subject remained liable to the control of Boudinot, under both the original and trust contracts. And it was competent for Boudinot, in the execution of the trust, to enable Ogden to sell actual ownership, though not the naked legal title to the land. And in a country where there was no court of chancery, a court of law would enforce the validity of the sale by giving the purchaser the possession, and regarding the beneficial ownership as superior to the naked legal title.

It is the opinion of the court that the trust attached upon the three located sections at the moment of executing the trust contract, and that the power to execute this trust was not defeated, or in any degree impaired by the conveyance of Symmes to Clark-son Freeman, which, in respect to the trust, was fraudulent and void. The trust was well performed according to law at the time, and the purchasers at the trust sale became the owners of the land. They are well entitled to the possession, and also to have the legal title united with that possession, such as it exists in the hands of Freeman. A perpetual injunction and a conveyance is decreed.

Judge Bub.net, having been at one time counsel for Hunt and Phillips, did not sit in this cause.