Blaisdell v. Stevens , 16 Vt. 179 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

Most of the questions arising in this case, are questions of fact, rather than of law. That portion of the defence resting upon title derived from Harriet Ryan, which was not obtained until after the parties were at issue in the case, and which has not been brought into the issue by any subsequent proceedings, cannot be considered in deciding the case. When a fact occurs during the pendency of a suit in chancery, which it is deemed material to have considered in deciding the case, leave must be obtained by the orator, if it be on his part, to withdraw his traverse and amend his bill, or file a supplemental bill, or by the defendant, if on his part, to file a cross bill, in order to bring the new matter within the issue, that testimony may be taken on both sides, If desired.

As it regards those matters, which were in issue, there can be little ground of controversy. The defendant’s answer may be in some respects defective, and in almost every particular, respecting notice of the trust, inexplicit, if not evasive ; but sufficient is admitted and proved, to show that Stevens did have knowledge of the trust, or at least knowledge of such facts, as were sufficient to put him on inquiry. Any defects in the answer must have been supplied by taking exceptions and obtaining, in the proper mode, a further answer. If a defendant omits to answer, or answers evasively, it is not to be taken as an implied admission against his interest; but he should be pushed to a distinct and explicit declaration as to how the facts are, the same as any other witness, — for such to all intents he is in answering the bill. This not having been done, the evidence must be taken as it is, and not as we may suppose it would have been.

1. It appears then, by the declarations of the defendant Na-son and the other testimony in the case, that this whole estate was in fact a trust estate in the hands of Nason. 2. This substantially appeared upon the face of the deed to Nason, in connection with the probate proceedings, of which Stevens had either knowledge, or knowledge of such facts as were sufficient to put him on inquiry. For if one have knowledge of distinct facts, affecting the title of land which he is about to purchase, he is not at liberty to close his eyes, and then screen himself under a plea of ignorance of other facts connected with those facts already known to him; — but he is bound, in good faith, to make reasonable inquiry, and will be presumed to have done so, and will be affected with notice of all such facts as he might have learned by such inquiry. Then, after finding Nason’s deed from Danforth expressd to be to him and others as executors of Daniel Ryan, — that is, that the consideration moved from them in their capacity of executors, — and that by the will they had a discretion to invest personal property in real estate, and vice versa, if they deemed that necessary, (for their discretion is wholly unlimited,) finding that the estate of Daniel Ryan was large, and that Nason had never settled any administration account, we have no doubt he is to be considered as knowing all the facts in the case, going to show the estate trust property.

It only remains to determine whether Nason could convey a good title to property, which he held in trust, to one knowing the trust. The law upon this subject is this : “In every case, when the trust money can be distinctly traced, a court of equity will fasten a trust upon the land, [or other property, purchased with the money] in favor of the persons beneficially entitled to the money.’’ 2 Story’s Eq. 457. If the trustee make the investment in fraud of the trust, the cestui que trust has an election, whether to accept of the thing thus purchased, or not. But where executors have a discretion in regard to the investment of property, or where there has been a necessity of receiving it in payment of a debt, as in the present case, the cestui que trust is bound to take the thing, thus purchased.

Decree of the chancellor affirmed with costs.