Doolittle v. Bridgeman

Opinion by

Hastings, C. J.

It is evident from the bill, answers, testimony, and exhibits in this case, that the lands described in the bill of complaint were purchased of the government with the funds of said. Doolittle and Calvin Donaldson, deceased. Doolittle furnishing one half of the purchase-money, and Donaldson, deceased, the other half, the land having been purchased in the name of Doolittle. Donaldson then, at the time of his decease, owned one undivided half of said land, the naked legal title to the same being in Doolittle, Ms trustee. The right of Donaldson’s heirs to Ms moiety of the land, is as unquestionable in a court of equity as it would have been had Doolittle made a declaration of Ms trust, and conveyed the same to Donaldson before his decease-. It cannot be reasonably doubted, we think, that aside from any subsequent arrangement between the parties and the subsequent acts of Doolittle after the death of Donaldson, that the one half of said tract of land should be subjected to the payment of Donaldson’s just debts, the estate of the deceased being insolvent. It is set up in the defense, that the trust was changed by a subsequent contract between Doolittle and Donaldson in his life-time. Doolittle, in his answer, avers that he executed a bond to Donaldson, obligating himself to convey the whole of said tract of land upon the payment of $> 120 by a time agreed and stated therein, and that if Donaldson did not pay the said sum of money at the time specified, he should forfeit to Doolittle his interest in the land. It is not averred that Donaldson executed the bond and bound himself to forfeit, or did any act by which he obligated himself to incur such a penalty other than by accepting the bond. Is the averment in Doolittle’s answer of the existence of such a contract, testimony 1 It clearly would be, if it had been responsive to any charge in the bill. The bill does not aver that such an outstanding contract existed, nor seek discovery of the contents of the samé. If then the defendant choose to set up such a contract to avoid the effect of the discovery sought, and to change the trust, or to destroy the same by the forfeiture claimed, we believe it was incumbent on him to prove such contract. If such a bond ever existed, Doolittle could have procured the saíne from his co-defendants, who are the administrators of the est ate of said Donaldson, or prove its destruction Or loss, or prove its contents, or at least have stated his inability to do so. That portion of the bond, providing for a forfeiture.of Donaldson’s half of the land, is so unreasonable and contrary to the ordinary mode of transacting business among men, even if that part of th'e answer averring the same had been strictly responsive to the bill, it would be received as evidence of but little weight. But if we grant that such a bond existed, we do not see how it will affect Donaldson’s original interest-in the land. The terms of forfeiture will not be enforced by a court of equity, as equity will not countenance a transaction by which one party claims eighty acres of land, because the other party had failed to purchase another interest in land and pay for the same as he had agreed. Doolittle, it seems, after the death of said Calvin Donaldson, in consideration of .love and affection, being a brother, conveyed the said / tract of land to one Philinda Donaldson, the mother, heir, administratrix, and residuary legatee of the said Calvin Donaldson, deceased. Mrs. Donaldson claims in her answer, that the land was conveyed to her in her own right, and that she can hold the same in that right, as against the creditors of the deceased. We have come to the following conclusions on the transactions set up here to defend against the complainant’s bill by the defendants :

1. That the conveyance of Doolittle to Philinda Donaldson, for the consideration specified, is void as against the creditors of the deceased.

2. From the fact that the deceased had no real estate inventoried by the administrator of his estáte, and in his will devised real estate to the said Philinda Donaldson, and from the testimony of witnesses, and the answers tending to show that both the said Philinda and the said Calvin Donaldson in his life - time considered the land in question his land, we cannot doubt the testator intended in his will to devise the said land to his mother.

8. Such being the intention of the testator, the said Philinda being the heir and administratrix,.and the conveyance being voluntary, we must consider the conveyance to Philinda made to her as a representative of the testator, Calvin Donaldson, and that the lands are held by her as subject to the demands of creditors, as if the lands had been owned in fee by the testator at the time of his decease.

4. The defendants, Doolittle and Mrs. Donaldson, having had the title of the land, and having disposed of the one-half of the land to third persons, we conclude they intended said remaining eighty acres as the share of the lands belonging to the testator’s estate, and, as such, subject to the claims of the heirs and creditors.

That portion of the decree, therefore, of the court below, decreeing a sale of .said eighty acres as therein specified, is affirmed; and any portion of said decree inconsistent with this opinion, is reversed, and a decree will be entered in this court accordingly.