Williams v. Morris

APPEAL from the Supreme Court of the District of Columbia.

In February, 1856, James Williams leased by parol certain land in the city of Washington, the legal title to which stood in his name, to Thomas B. Florence, with the privilege by the latter of purchasing it for $6,000. In the following month, Florence entered into possession as tenant of said James, and made certain improvements. On October, 1856, Florence, having learned that the heirs of John Williams were entitled to an undivided moiety of the land, entered, with the consent of James, into a written contract with them for the purchase of their interest, which by decree was conveyed to him in 1864.

In April, 1853, and April, 1854, the property was sold for taxes. One Ingle purchased it, and, after the perio allowed by law for redemption had expired, received deeds therefor from the corporation of Washington, dated June 11, 1857. Florence, after consultation with said James, paid Ingle the amount of the taxes and accrued expenses Dec. 29, 1859, and some months thereafter took from him a quitclaim for the property, which, with the corporation deeds to Ingle, he caused to be recorded. From March 1, 1856, to June, 1861, he remained in the personal occupation of the property. He then rented it to the United States for $175 per month, which rent he received until the commencement of this suit, Aug. 24, 1867, by the complainants, some of whom are minors. They are the heirs-at-law of James Williams, who died intestate Aug. 15, 1862.

The bill, after setting up the lase by James Williams to Florence, alleged, inter alia, that the defendant during his tenancy under the lease suffered by his default the property to be sold for taxes, and, having acquired the tax title, disclaimed his tenancy, and set up an adverse title in himself. It therefore prayed that Florence be decreed to convey to the complainants said tax title, and to account for a moiety of the rents and profits.

The defendant answered, setting up his parol contract with James to purchase, his subsequent discovery of the interest of the heirs of John in a moiety of the property, the fact of his purchase with the consent of James of that moiety, and its conveyance to him, and denied that thereafter he stood in the relation of tenant or paid rent; but, on the contrary, he paid all taxes and charges, and, with the full knowledge and consent of said James, acted gnerally as owner, and made repairs. He also alleged that said James had, by certain deeds of trust executed in 1843 and 1851, incumbered his moiety; and by another, executed in 1853, the whole property, in a sum beyond the amount of purchase-money and more than double the share of James for his moiety. That, notwithstanding said incumbrances, the defendant made various payments to said James, amounting from $1,500 to $2,000, on account of said purchase, but was unable to procure a settlement. The defendant filed with his answer the following receipts:--

'Received of Thomas B. Florence forty dollars, to be accounted for in the settlement for the purchase of the property at the corner of Pennsylvania Avenue and 17th Street, now in his occupancy, and sold by me to him.

'JAS. WILLIAMS.

'WASHINGTON, Jan. 1, 1857.'

'WASHINGTON, May 1, 1857.

'Received of Thomas B. Florence one hundred dollars, on account of purchase of building 17th St. & Pa. Av. $100.

'JAS. WILLIAMS.'

He also denied that he had suffered the property to be sold for taxes, but that said sales were for taxes due for the eight years preceding his entry.

On the 11th of March, 1873, the complainants were allowed to amend their bill by alleging that Florence, in October, 1856, purchased the undivided moiety of the heirs of John Williams, and thereby became tenant in common with James Williams; that, after said relation of tenants in common thus began, Florence purchased from Ingle the outstanding tax title, which was in all respects regular and according to law, and obtained from him a conveyance of the premises and of the full title thereof, which conveyance and title said Florence claimed to hold as his own, to the exclusion of the complainants.

The answer to the amended bill admitted the purchase in October, 1856, of the claim of the heris of John Williams under the circumstances set forth in the answer to the original bill; denied that such purchase created, or was intended to create, a tenancy in common with James Williams; and averred that after the same the defendant held and enjoyed the premises as the exclusive and absolute owner. It further denied the validity of the tax title; averred it to be void on its face, and that it was bought, with the knowledge and approval of James Williams, to relieve the property from the outstanding charge for taxes; and that a deed was taken from Ingle, be ause one to him had been entered on the books of the city; and that the complainants' allegation of the validity of the tax title was simply a pretext whereby to gain some color for the asserted jurisdiction of a court of equity.

At the final hearing in special term, April 8, 1873, the court decreed that the tax title purchased by Florence from Ingle was taken by him in trust for the complainants to the extent of one undivided moiety thereof; that the parol purchase set up by him was void under the Statute of Frands; and that, as there was no part performance to take it out of the statute, he should convey to the complainants said tax title to said moiety, and account for rents and profits.

Florence then appealed to the general term, where the decree of the special term was reversed and the bill dismissed. The complainants then brought the case here.

Florence having died pendente lite, Morris, his executor, was substituted in his stead.

The assignment of errors and other facts in the case are set forth in the opinion of court.

Mr. Richard T. Merrick and Mr. William A. Meloy for the appellants.

The original lease in March, 1856, being merely by parol, was inoperative after three years. When, therefore, Florence terminated his personal occupancy of the premises in June, 1861, and with it the relation of landlord and tenant, he became as to one undivided moiety of them the bailiff of James Williams, and liable to account under the statute of 4th Anne, c. 16, sect. 27. This alone would have established the jurisdiction of a court of equity over the case. But, in addition to that, Florence, by taking the conveyance in his own name from Ingle, committed a breach of trust and a fraud upon his co-tenant.

The tax title can afford no defence. The defendant's admission of the irregularity of the sale is conclusive, in the absence of proof by the complainants to the contrary. 3 Bl. Com. 451.

But even if the tax sale was valid, Florence, so far as one undivided moiety of the land was concerned, took the title in trust for James Williams. Rothwell v. Dewees, 2 Black, 613; Van Horne v. Fonda, 5 Johns. (N. Y.) Ch. 388; Lewis v. Robinson, 10 Watts (Pa.) 354; 1 Story, Eq., sect. 466; 1 Washburn, Real Prop. 430.

The memorandum set up by the defendant to take his alleged contract of purchase out of the operation of the Statute of Frauds is fatally defective. Boydell v. Drummond, 11 East, 157; Huddlestone v. Briscoe, 11 Ves. 591. The price to be paid, and a definite description of the property, are material parts, and cannot be proved by parol. Elmore v. Kingscote, 5 Barn. & Cress. 583; Taney v. Batchell, 9 Gill (Md.), 205; Tallman v. Franklin, 14 N. Y. 584; 1 Greenl. Evid., sect. 268; 2 Story, Eq. Jur., sects. 765-767. Whether it be set up as a defence, or as a ground for specific performance, the rules are the same. Browne, Frauds, sects. 122, 122 a, 131; Carrington v. Roots, 2 Mee. & W. 248; Reede v. Lamb, 6 Exch. 130. And a court of equity will not give relief, unless all the essential terms of the parol agreement are established by satisfactory proof, and the part performance has been of such a kind that to refuse relief would unavoidably operate as a fraud upon the party. Clinan v. Cooke, 1 Sch. & Lef. 41; Galbreath v. Galbreath, 5 Watts (Pa.), 150; Purcell v. Miner, 4 Wall. 513; Caldwell v. Carrington, 9 Pet. 86; 3 Phil. Evid. 351; Small v. Owings, 1 Md. Ch. 364; Beard v. Linthicum, id. 345; Elmore v. Kingscote, 5 Barn. & Cress. 583; 1 Greenl. Evid., sect. 268; Owings v. Baldwin, 1 Md. Ch. 123; 2 Story, Eq., sects. 764-767; Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 131; Taney v. Batchell, supra. The part performance which takes the case out of the statute does not consist in the payment of money, but in the delivery of the possession in pursuance of the contract, with a view to the performance of it. Caldwell v. Carrington, 9 Pet. 103; Christy v. Barnhart, 14 Pa. 260; Brawdy v. Brawdy, 7 id. 157; Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 149; Parkhurst v. Van Cortlandt, id. 273. Possession by a tenant is not sufficient, 1 Sugden, Frauds, 149, 162; nor is that by a tenant in common, however exclusive and notorious. Galbreath v. Galbreath, 5 Watts (Pa.), 146.

The expenditures for permanent improvements must have been made solely on the faith of the contract of sale, and the possession taken with exclusive reference to it. Owings v. Baldwin, supra; 2 Story, Eq. Jur., sects. 763, 764; Moale v. Buchanan, 11 Gill & J. (Md.) 314; Caldwell v. Carrington, supra.

The rulings in regard to laches, staleness, or lapse of time have no application to this case. Badger v. Badger, 2 Wall. 87.

Mr. Walter D. Davidge, contra.

The bill of the complainants should have been dismissed. It was not filed until nearly ten years after the purchase complained of, and nearly five years after the death of James Williams. There is no allegation of fraud, and no attempt to explain the delay. Marsh v. Whitmore, 21 Wall. 178; Badger v. Badger, 2 id. 87; Harwood v. Railroad Company, 17 id. 78; The Key City, 14 Id. 653; Twin-Lick Oil Company v. Marbury, 91 U.S. 587.

Whilst a tenant cannot dispute the title of his landlord, he may show that it has expired or become extinguished. Taylor, Land. and Ten., sect. 629, and cases cited. When the reversion is sold under execution, he may buy it, and set up against the landlord the title so acquired. Nellis v. Lathrop, 22 Wend. (N. Y.) 121; Jackson v. Rowland, 6 id. 666; Depard v. Walbridge, 15 N. Y. 374. When not under obligation to pay taxes, he may even buy at a tax sale. Cooley on Taxation, 345, 346. And the title so acquired, if the proceedings conformed to the statute, extinguishes his former relation to the landlord. Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251; Lewis v. Robinson, 10 Watts (Pa.), 354; Watkins v. Eaton, 30 Me. 529; Reinboth v. The Zerbe Run Improvement Co., 29 Pa. 139.

The averment of the validity of the tax title is binding on the complainants. They can recover only secundum allegata et probata; and, if that title be invalid, there is no ground for the exercise of equitable jurisdiction. Ewing v. St. Louis, 5 Wall. 413; Dows v. Chicago, 11 id. 108; Hannewinkle v. Georgetown, 15 id. 547; Scott v. Onderdonk, 14 N. Y. 9; Cox v. Clift, 2 id. 118; Heywood v. The City of Buffalo, 14 id. 534; Ward v. Dewey, 16 id. 519; Piersoll v. Elliott, 6 Pet. 95.

The two receipts signed by James Williams contain all the requisites of the note or memorandum under the Statute of Frauds, except that of price, and are prima facie evidence of a sale legally made. Slatterie v. Pooley, 6 Mee. & W. 663; 1 Phil. Evid. (4th Am. ed. 1859), pp. 422-424, where the authorities are collected; 1 Taylor, Evid., p. 413, sect. 381; Best, Evid., sects. 525, 526.

The English rule has been followed in America. Smith v. Palmer, 6 Cush. (Mass.) 513; Loomis v. Wadhams, 8 Gray (Mass.), 557; Taylor v. Peck, 21 Gratt. (Va.) 11.

The particulars of the contract are not involved in this suit. The controlling question is whether Florence bought at all, not upon what terms. The factum probandum is the fact of purchase, and the contract is wholly collateral. Rex v. Inhabitants of Holy Trinity, 7 Barn. & Cress. 611; Doe v. Harvey, 8 Bing. 239, 241; Spiers v. Willson, 4 Cranch, 398; 1 Greenl. Evid., sects. 96, 97; 1 Taylor, Evid., sect. 376; Taylor v. Peck, 21 Gratt. (Va.) 11.

Parol contracts do not involve any violation of law. Courts of equity refuse to extend their aid to rescind them merely because they are not in writing. Browne, Frauds, ect. 123, and cases cited; id., sects. 129-131; Abbott v. Draper, 4 Den. (N. Y.) 51; Cope v. Williams, 4 Ala. 362.

The court is asked to decree that a vendee acquiring in good faith a title necessary to protect the interests of himself and his vendor, is a trustee for the heirs-at-law, who, after the lapse of eleven years, undertake to repudiate the agreement of their ancestor.

Had he attempted by means of the tax title to escape his obligations as vendee, he could properly be held a trustee as to the unpaid purchase-money. The purchase-money, however, deducting the mortgages, has been paid, and he offers to account; and, besides, the bill is in repudiation and not affirmance of the contract.

The question is, then, whether, after such a vendee has obtained a perfect title which he holds in subordination to the parol contract, he can, without any imputation of fraud, be held a trustee, except as to his obligations under that contract. That he cannot be so held is plain, in principle and upon authority.

MR. JUSTICE CLIFFORD delivered the opinion of the court.