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Evants 0. Adm'r and Heirs of Strode.

vendor died intestate, without executing the contract; and, on June 5, 1833, defendant George H. Strode, as administrator of his estate, filed his petition, in the court of common pleas of Licking county, setting out the contract; that the intestate died without oxecuting the conveyance; that, at the time of his death, he was seized in fee simple of the land, which had descended to his heirs at law, all of whom were minors, and made defendants. That the said administrator prayed the court to make an order, authorizing the petitioner to convey the land to the complainant, and his heirs. That the minor defendants, by their guardian ad litem, filed their answer to the said petition, and, at the September term, 1833, the said court of common pleas made an order, tha'. said administrator make a warranty deed to complainant, in fer simple, for said tract of land, conveying to him all the right, title, and estate, both in law and in equity, in said tract of land, descended to the said defendants as heirs at law. That on October 481] 8, 1833, the *administrator undertook the execution of said order of the common pleas, by making a conveyance in pursuance of its provisions; but by mistake, or some other cause, omitted to insert a clause of warranty, but executed a deed purporting to convey only such title as the intestate had in such promises at his decease. That the complainant, being ignorant of the law, and the legal effect of the words used in the deed, and reposing full confidence in the good faith and integrity of the administrator, who represented to said complainant that said deed was made according to agreement, and the order of the court of common pleas, accepted the same, not doubting but his remedy over against the heirs of said decedent, in case of eviction from said land, was complete, in virtue of said deed.

The original bill also states that both real and personal property, to a large amount, descended to the heirs at law of said James Strode, who are still minors, and that one Daniel Arnold, who was made defendant, bad become the legal guardian of said heirs at law, and was possessed of a large sum of money, part of the assets of the estate. The bill also charges that, at the October term, in the year 1839, of the court of common pleas of Licking county, by the judgment of said court, the complainant was ovicted from said land by the paramount title of the heirs of one Jolin Macum, and put to great costs in the defense of the suit and prayed an account of what was due the complainant, in equity,

Evants v. Adm'r and Heirs of Strode.

for his purchase money and interest, costs, trouble, and expense, in litigating the title to said land.

The complainant, in his bill of review, further states that the administrator filed his demarrer to said original bill, claiming that the contract, set forth therein, was merged in the deed, and that the remedy of the complainant was at law, and not in chancery; and said minor defendants answered said bill by their guardian ad litem. That the cause came on to be heard in tbe common pleas; the demurrer was overruled, and a decree entered for the complainant. That an appeal was taken to tho Supreme Court, and, at the November term, 1840, *the demurrer was [482 Austained, and the bill dismissed.

Several errors are assigned upon the rocord :

“1. That the agreement, set forth in the bill, is not merged in the deed, as was supposed by the court.

“ 2. The court must have supposed the deed to contain a clause of warranty.

“3. That the deed being accepted, through the representations of the administrator, under the supposition that it contained a clause of warranty, the acceptance of the same by the complainant could not have been a waiver of the warranty agreed to be given, as supposed by the court.

“4. The opinion of the court is otherwise erroneous." ROBERT H. CAFFEE, for complainant:

To determine the questions raised in this case, it becomes necessary to inquire into the mode pointed out by the statute, for the oxecution of contracts by deceased persons. Swan's Stat. 214, secs. 5, 6; Swan's Stat. 365, sec. 148.

The deed in question was executed by the administrator, under the order of court; the order of court pursued the contract, and required a “warranty deed in fee simple;" the deed recites the order of court, but does not warrant the title in terms.

If the contract requires a warranty, the deed, executed under the contract, whether by the person, in his lifetime, or by the administrator, under the order of the court, must bind the estate to defend the title. If the deed does not “fully execute the contract,” the law is not complied with in its execution; the contract is not executed, and is not merged in the deed. There is, then, a clear mistake in the execution of the deed, such as courts of equity will always relieve against. Hunt v. Rousmanier's

Evants v. Adm'r and Heirs of Strode.

Adm'r, 1 Pet. 1, 13, 15, and 8 Wheat. 174; 5 Pet. Cond. 401 ; Hunt v. Freeman, 1 Ohio, 501 ; Lynn v. Richmond, 2 Johos. Ch. 51; Williams v. Hobson, 2 Har. & Johns. 474; Churchill o. 483] Rodgers, 3 Monroe, 81. *And the complainant can not be prejudiced in his rights by his acceptance of this deed.

GEORGE B. SMYTIE, on the same side :

Equity will entertain jurisdiction in all cases where there is not a complete and adequate romedy at law. Snook's Adm'r v. Friend's Adm’r, 9 Obio, 78; Wright, 61, 731 ; 3 S. C. Eq. 325, n. It is not enough that there may be a remedy at law; it must be plain and adequate; as efficient to the ends of justice as the remedy in equity. 3 P. Wms. 390; 3 Pet. 210; 4 Wash. O. C. 204, 349; Snook's Adm'r v. Friend's Adm'r, 9 Ohio, 78. And in Cases most unfavorable to equitable relief, whenever any difficul . vies embarrass the legal remedy, courts of equity will interposo. Starr v. Starr, 1 Ohio, 128; 13 Price, 721; 1 Story's Eq. 106; 1 McClell. 505; 1 Ves. Jr. 417.

Where the equitable and legal estates, equal and co-extensive, unite in the same person, from different sources, the former merges. 3 Ves. 121, 339. But does the partial execution of an equitable contract, by one of the parties, merge the contract? I apprehend not, unless the full execution of the contract be ex. pressly waived by the other party.

H. H. HUNTER, for defendants :

The ground of equity asserted is, that the contract stipulates for a "warranty" deed, and that the deed delivered contains no warranty.

Without stopping to inquire what sort of a warranty would be required under such a contract, and assuming that it would be a general warranty, we insist that the complainant would not be entitled to any relief against James Strode, if living, and if he had delivered to the complainant a deed, such as this is, without any covenant of warranty. In other words we claim that where there 484] is no fraud (and none is charged in this case), *if a vendee, who was entitled to require a deed with warranty, accept one without, he has no remedy against the vendor, although he shall have been evicted by a paramount title.

The law upon this subject is distinctly and well settled. The principles are laid down and the authorities referred to in Sugden on Vendors, 345. The principle is briefly this: “If a purchaser

Evants v. Adm'r and Heirs of Strode.

is evicted before the conveyance is executed, he may recover back the purchase money, etc. But if the conveyance is actually executed, and the purchaser is evicted by a title to wbich the covenants do not extend, he can not recover the purchase money either at law or in equity." Crips v. Reade, 6 Term, 606; Johnson v. Johnson, 3 Bos. & Pul. 162; Bree v. Holbock, Doug. 654; Dorsey v. Jackman, 1 Serg. & Rawle, 42; Frost et al. v. Raymond, 2 Caine, 188; Howe v. Barker, 3 Johns. 506; Sergeant Maynard's case, 2 Freem. 1; Anon., 2 Freem. 106; Abbott v. Allen, 2 Johns. Ch. 523; 3 Ves. Jr. 235; 2 Bos. & Pul. 23.

As regards the defendant, George Strode, the administrator, who alone demurs, the third ground of the special demurrer is, we think, well taken. The bill admits that he has fully settled and paid over to the guardian of the heirs the assets. There is no ground for relief against bim, except so far as may bo necessary to control the funds of the estate to satisfy any decree the complainant may be entitled to. This can not be done by any decree against the administrator. He was therefore improperly brought before the court.

John GARRAGHTY, on the same side, insisted that the mistake relied upon does not, in fact, exist. The application of the authorities cited relates to a totally different class of cases.

In the case of Day v. Brown, 2 Ohio, 345, it is held that a cov. enant to warrant and defend, as executors are bound by law to do, is not a personal covenant, and that they are not required to warrant in any form or to any extent. The administrator was under no legal or moral obligation to bind bimself personally; and any special warranty set forth in the *deed in question would [485 not, under the authority bere cited, have been any stricter compliance with the contract of the intestate. All that the administrator was required to do, and all that he could by possibility do, was to execute such deed as would effectually pass all the legal and equitable interest to the estate in question, vested, by descent, in the heirs at law of the intestate. The statute expressly declares that such conveyance shall be binding on all such heirs, and all others interested, in the same manner as though the conveyance had been by the person making such contract in his lifetime. Swan's Stat. 214, sec. 6. The administrator, then, having performed his whole duty, by the execution and delivery of a deed of conveyance, which passed the largest interest known to the

Evants v. Adm'r and Heirs of Strode.

law, and beyond which he was incapable of going, it is obvious that no mistake, either in fact or in law, could, by possibility, exist.

Courts of equity have uniformly rolioved against fraud, acci. dent, or mistake. This is one of its distinguishing features. But, in the application of this principle, courts of equity proceed no farther than to enforce the truc meaning and intention of the parties, in all such cases where a mistake intervened, contrary to such intention. There must be actual mistake. Kennedy v. Umbaugh & Reed, Wright, 327.

H. STANBERY, for the complainant, in reply:

The acceptance of the deed is admitted to bave been under & mistake and misrepresentation of its legal effect. Such an acceptance is not the sort of merger, or, more properly speaking, of performance or execution of contract, which satisfies a court of equity. Where there is an acknowledged mistake as to the legal effect of a deed or other instrument, a court of equity gives relief. Edwards v. Morris, 1 Ohio, 531; Hunt v. Rousmanier, 8 Wheat. 174.

It is said if the contract is not merged in the deed, then our relief is, at law, upon the contract. All this would be very true, if 486] a court of law followed the doctrine in equity as to *mistakes in matters of law; but this jurisdiction is peculiar to equity. A court of law takes a contract or deed as it is, and decides according to its legal effect—not according to what it was intended to be, or, by misconception, supposed to be.

It is also said the administrator ought not to have been made a party. If that were granted, the decree we seek to review is not, therefore, right. If the proper parties are before the chancellor, it is a now doctrine that you can not have relief against them because you have brought an unnecessary party into court with them. Aside from that, it was very proper to make the adminis. trator a party, as it is in all cases where a claim for money is set up against the estate of a decedent.

Wood, J. This case is by no means new to one member of this court, who was present, and pronounced the decree now sought to be reversed.

I supposed, at that time, it was consistent with the weight of authority, although its result was the most palpable individual in

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