Garlinghouse v. Dixon , 1 Walk. Ch. 440 ( 1844 )

The Chancellor.

The assignment to complainants was not intended to embrace the Hale receipt, or the land purchased with the $1,800. The evidence is full and conclusive on this point. The receipt is not mentioned in the schedule of property, and Dixon’s testimony is clear and explicit. He testifies to admissions made by two of complainants since the assignment, and to a conversation that took place before the assignment, as well as to what occurred at the time it was drawn up and executed. Sibley, who drew it, says, when that part of it which relates to the real estate in Michigan was read over to Dixon, he expressed some doubts whether it would not pass lands which had been purchased in his name with money that had been deposited with him. Sibley told him it would not, because he was not the owner of, and had no interest in, lands which had been purchased with such trust funds; and that such lands would belong to the depositors, in whosesoever’s name the certificate of purchase might have been taken. He had before told Sibley the lands purchased with the money left with Hale were not to be included in the assignment, and that the money had been deposited with him by Robert Dixon, Cowman and Welles, the defendant, in trust. The two former had deposited money with him after his return from Michigan, on an agreement they should share pro rata in the purchases to be made by Hale; and he was indebted to Welles as trustee of the Weller estate, for money he had received belonging to that estate. To carry out his agreement with the former, and secure Welles as trustee, he first made the memorandum at the foot of the receipt, and afterwards the assignment of the receipt, on December 9th, 1836, five days before his assignment to complainants for the benefit of his creditors. Considering himself thenceforward as having parted with all his interest in the receipt, and as holding it in trust for Robert Dixon, Cowman and Welles, it is not at all surprising he should have stated to Sibley, when he informed him he held the receipt in trust, that the money had been left with him for the purchase of lands. This was literally true in regard to Robert Dixon and Cowman, for one had paid him 1800, and the other $500, to be invested in land. He spoke with reference to this money, and did not enter into the history of the receipt; while Sibley understood him to speak of the identical money left with Hale, and gave it as his opinion that the money in Hale’s hands, or the lands purchased with it, would not pass by the deed of assignment to complainants.

Accidents and mistakes are a fruitful source of equity jurisdiction, and the Court is frequently called on to give relief against them. Hence, a mistake in drawing a deed, or any other written instrument, when proved beyond all question, to the satisfaction of the Court, is a good ground for refusing relief to a party who would otherwise be entitled to it. Gillespie v. Moon, 2 J. C. R. 585. I have no doubt the deed of assignment was not intended by the parties to embrace the receipt, or lands purchased with the money for which it was given; and shall therefore dismiss complainants’ bill with costs.

Bill dismissed, with costs.