Russell v. Lode

Opinion by

Greene, J.

The defendants in error filed their bill in chancery for the specific performance of a contract to convey certain real estate. The bill charges that in July, 1846, the complainants purchased a claim to a quantity of land from Patrick Maloney, including all that portion of the east half of the south-west quarter of section 31, in T. 88, N. K. 3 east, which lies west of, and is. bounded on the east by, the Dubuque and Davenport road; that in the month of February following, one of the defendants, Isaac Russell, set up a claim to part of said land, and the dispute was, by mutual agreement, referred to arbitrators, whose award in the premises was to be final and binding upon the parties; that the arbitrators awarded all of the land lying west of said road to the complainants; that subsequently, and previous to the land sales in the spring of 1847, they entered into an arrangement with Patrick H. Conger, by which he agreed to purchase the said portion of' land at the sales, in his name, for their use and benefit, and immediately after the purchase from government, to convey the same to them; that they, or one of them for both, furnished said Conger, at the time of the arrangement, with the entrance money, and thereupon obtained from him a receipt in the words following:

“Dubuque, March 15, 1847.

“ Received of J. F. Lode thirty dollars and twenty-five cents, cash, for the entry of his part of E. i of the S.W. † of section 31, T. 88, range 3 east of 5 mer.

P. H. Con&er.”

The bill also alleges that Conger took upon himself the trust, and purchased the land at the sales with the funds furnished by complainants; that they demanded of Conger a deed for the same, which was refused, and that he subsequently conveyed the land to said Russell.

The facts set forth in the bill are mostly admitted by the respective answers of Russell and Conger, excepting the course and location of the Dubuque and Davenport road; and this is the principal question involved in the case. It is in no way denied that this road constitutes the true boundary line between the land of the complainants and that of the defendant, Russell. We have before us three different plats and surveys of the road, as referred to in the answers and depositions. The survey made by G-. H. Carleton leaves less than half an acre of the eighty in dispute, west of the road, and over seventy-nine and a half acres east of it. This survey, it is claimed, vras made from the recorded plat of the road that Conger conveyed to Russell, all the land east of the road, as surveyed by Carleton, and that this conveyance was in accordance to the award of the arbitrators, which determined the land east of the road to be Russell’s, and that west of it to be the'Lodes’. But the other two surveys, made by D. Higbee and A. Anderson, vary most materially from the Carleton survey; Higbee’s leaving twenty-seven and a half acres, and Anderson’s leaving twenty-four and one-fifth acres of the land west of the road. The testimony of the three arbitrators shows that the plat of Anderson’s survey was before them at the time they made the award in the dispute between the claimants and Russell, and that they were guided by Anderson’s survey and plat in making their decision; awarding all of the land in the eighty that lay west of the road, as surveyed by him, to the Lodes, and the land east of the said road to Russell.

But it is claimed for the defendants, that the award of the arbitrators did not settle the location of the road; that it had been and still was in dispute, at the time Carleton made his survey, and that just before it was made, complainants agreed to be governed by it. To support these positions, the evidence of Carleton and Brasure is introduced. And they testify, that they so understood and supposed the facts to be; but their information in the matter appears so illegitimate, their views so indefinite, and their terms so'hypothetical, that we can by no means regard them as satisfactory or conclusive. That this survey was not considered final and binding by the parties, is conclusively proved by the testimony o.f Maloney and Killam. Maloney swears that the complainants, at the commencement of the survey, declared their willingness to abide by it if correct, and that during its progress they were contending for the original survey, as laid out by the locating commissioners. Killam swears, that at the time Carleton made the survey, the complainants protested that it was wrong, and that no other surveyor ever took the same route. John Foley, one of the locating commissioners, and J. G. McDonald, the locating surveyor, prove that Carleton’s survey was not made according to the original survey and location of the road, while their testimony, with that of Maloney and other witnesses, recognizes the Anderson survey, as being regulated by the original location and usual travel of the road. P. Maloney also testifies, that when he conveyed to the Lodes, the road ran as represented by Anderson’s survey. The evidence on this point is too conclusive to admit of a rational doubt. The understanding of the parties, prior and subsequent to the award, — the survey of the road by Anderson, as it was travelled and generally recognized, — with the fact that his survey was before the arbitrators, and that they took it as the data and boundary for their decision, even aside from the satisfactory testimony of Maloney, fully sustain the equity of the bill, and clearly establish the right of the complainant to the land in question.

The question raised, as to the agency and liability of the defendant, Conger, needs no elucidation.' His answer admits that he entered the land with money furnished by the parties, “and that he acted as agent or trustee in the matter.” It appears by the evidence and exhibits in the case, that complainants furnished Conger with the necessary entrance money, previous to the land sales ; while an exhibited right from Conger to Russell shows that Russell did not pay Conger any money on the land in question, till several months after the sales, and even subsequent to the survey made by Carleton. The twenty-four acres of land West of the road were unquestionably purchased with the funds furnished by the Lodes; and it is equally undeniable, that Conger stood as trustee of the funds so advanced, with the understanding and agreement, that he was to convey to the complainants the quantity, with the boundaries as determined by the award of the arbitrators. A resulting trust is too clearly established to admit of doubt; and no principle of justice, no rule in equity, can exclude the complainants from the benefit of a purchase which their own funds secured.

The decree of the district court is affirmed.