Cook v. Cook

The opinion of the court was delivered, November 6th 1871, by

Read, J.

John Cook entered upon the premises in controversy under an article of agreement with the trustees of the Bingham estate, dated the 1st of August 1837, and on the 1st of November 1849, by an article of agreement in writing from the said trustees, which was a renewal of the former one, purchased the same for the consideration of $282.37. He cleared land, made valuable improvements, and with his family resided thereon at the commencement of this suit, on the 9th August 1866.

On the 7th August 1852, a judgment was obtained against John Cook for $103, on which an alias fi. fa. was issued, and levied upon this real estate, extended at a rent of $50 per annum, and accepted by John Cook, and upon his failure to pay, a vend, exponas was issued upon which this land was about to be sold. John sent for his brother, Philip Cook, to come over and buy the property in for John Cook at the sheriff’s sale, which he did for $375; the surplus money, after paying debt and costs, John receipted for to the sheriff, but did not receive it. From the 1st December 1854 to 9th August 1866, John Cook remained in undisturbed possession of the land, paid the taxes, cleared land, built a barn, and cut timber thereon, which he had manufactured into lumber on the mill of Philip Cook, the plaintiff.

On the trial of the cause John Cook testified: “ My property was up for sale on that judgment; I had some money, but not enough to pay the debt; I asked Philip to come over and buy the property for me; I wanted him to furnish a part of the money for a time, until I would get my money from Bethlehem; he agreed to come over and buy the property. He came; he was here two or three days; Zents was a bidder; William Ray came up to myself and Philip, and asked if the property had to be sold ; Philip told Ray that he was buying the property in for me; Zents was bidding, and I went and told him my arrangement with Philip; he said if that was the case he would not bid on it. We went to Philip, and Zents asked him; Philip told him he was buying it in for me; then Zents said he would not interfere where one brother was buying for another. The property was knocked down to Philip for $375.” Zentz, Beaman, Ray and Dunkle, all agree as to these facts, and if these witnesses, counting John Cook, are believed, then John Cook’s story is true, and fixes Philip with a trust for John.

Philip Cook, on 10th June 1863, paid the trustees of the Bing ham estate $170.38 on the John Cook, Jr., article, and on the 19th February 1866 George N. Berlin paid $390.93, the balance in full of the John Cook article, and received a deed, “ subject to the equity of John Cook, Jr., and his vendee, Philip Cook, as specified in the article of John Cook, Jr., with the Bingham estate.”

There was evidence of money paid to Philip by John on account of the judgment, and also claims, which, if established, would repay all Philip’s advances. But the view taken by the court rendered all this evidence entirely nugatory. One cardinal error runs through the whole case, and makes it unnecessary to consider the errors assigned in detail, to the answers to the defendants’ points, and to the judge’s charge.

The court evidently considered there could be no resulting trust unless John furnished the money to pay Philip’s bid for the land. “Philip,” say the court, “can only be declared a trustee on the ■ ground that the purchase-money for the sheriff’s title was furnished by John.”

Now it is perfectly clear that Philip purchased for John, and his conduct at the sale in preventing bidders and getting the property at a low price, far below its real value, would be a wilful and deliberate fraud, if he did not fulfil his agreement with his brother, publicly acknowledged at the very moment of the purchase. If he was not a trustee for his brother, then it was defrauding him out of what would have been given by others, amounting to several hundred dollars. Philip was a trustee merely for his cestui que trust, John is simply his debtor for any advance remaining unpaid, and for the $170.38 paid the Bingham estate; but he was not entitled to tender the $390.93 to George N. Berlin, and demand a conveyance of the legal title. John Cook could tender and require a conveyance of it.

The defendants’ 1st and 2d points should have been affirmed. The facts should be submitted to a jury, with proper instructions.

Judgment reversed, and venire de novo awarded.