Brumfield v. Boutall , 31 N.Y. Sup. Ct. 451 ( 1881 )

Hardin, J.:

The deed of the executors of James J. Brumfield to "William D. Kennedy of June 5, 1874, and the declaration of trust executed by Kennedy that day to Amy, Evaline and Leora must be construed together as between the parties named therein.

The consideration which was paid to the executors for the lands belonged to Amy, Evaline and Leora. They had succeeded to the rights of Erastus Brumfield to the extent of the $500 paid by him in his lifetime, and the moneys paid by the widow and children. They had an interest in the lands at the time the conveyance was made to Kennedy, to wit, $3,500; and when the deed and declaration of trust are read together and considered, it is apparent that the deed to Kennedy was given to, and should be treated as a mortgage, to secure him for the liability which he incurred by reason of the execution of his bond for $4,756.75, and the mortgage collateral thereto, and also to secure him all sums which he should pay towards said lands or any other lien thereon. (Horn v. Ketletas, 46 N. Y., 605; Fullerton v. McCurdy, 55 id., 637.)

After satisfying such sums and liabilities, Kennedy was to convey the lands to Amy, Evaline and Leora “ in the proportions to which they are by law entitled to the same, subject to the mortgage, and other liens existing thereon.”

Thus construed we then see nothing in the statute of uses and trusts rendering the instruments or either of them invalid. (3 R. S. [5th ed.], 15; Manice v. Manice, 43 N. Y., 303; Corse v. Leggett, 25 Barb., 389.)

The husband of the defendant went from Cleveland, Ohio, to Wayne county “at her suggestion,” and examined the farm, and commenced a negotiation for the same with Amy and Evaline, and thereafter the exchange was consummated. He was then acting for his wife. She had the title to the Cleveland property, and took a conveyance of the lands described in the complaint. She acted through her husband as her agent, and the notice or information in respect to the title to the lands in question given to the agent must be treated as notice and information given to the defendant. (Ingalls v. Morgan, 6 Seld., 184, and cases cited.)

We now come to the question as to what notice the defendant received through her agent in respect to the title and ownership of the lands in question.

There was a conflict in the evidence as to what notice of information was given to the defendant’s agent in respect to the title. Upon the conflict the learned trial judge has found favorable to the defendant.

That finding is not conclusive upon us. We are to give to it such consideration as we think it fairly entitled to; but it is our duty to consider the whole evidence and conclude therefrom whether the finding justly draws the proper conclusion from the evidence. (Moran v. McLarty, 75 N. Y., 25.)

Evaline Brumfield and Leora, the plaintiff, gave direct and positive testimony that in the interview had with the defendant’s agent, he was informed that the land had been conveyed to Kennedy in trust, and that they offered to get the papers while he was then in the house and show them to him, and that he declined or omitted to look at them and that he was informed of the history of the title. There is some corroboration of their testimony furnished by the evidence of Mr. Dudley, who held a conversation with the defendant and her husband before this action was brought.

The husband of the defendant contradicts the evidence so given to support the affirmation of notice. His wife denies that she had any actual knowledge of the trust in favor of Leora,. the plaintiff. But as we look into the evidence of the husband, we find that he, in the interview as to the lands, held when he visited the farm for the purpose of examining it, and while negotiating for it, admits the interview to which Evaline and Leora refer to in their evidence.

He also admits that he learned while there that the farm formerly belonged to the plaintiff’s grandfather, and that he knew it was “ a farm that had been in the possession of the Brumfield family for years,” and that he “ was told thatthat he understood that Evaline and Leora were tlie children of Erastus, and that he saw Mrs. B. and knew she was the widow of Erastus; that Evaline told him that her father, Erastus, had “ partially- inherited the farm, and that his father had died soon after the partial inheritance;” that something was said about Leora by Evaline at the time of making the bargain, and about there being a trust, etc.

Considering the evidence of this witness in connection with that given by the plaintiff, we think a more reasonable conclusion to be drawn from the whole, that the agent of the defendant derived such information and notice of the rights of the plaintiff as would put a prudent man upon inquiry as to her interests in her father’s estate, as to her interest in the inheritance of her father. The most natural inquiry of a prudent man would have been, was Leora’s interest directed cut off, or worked out of her father’s estate %

The information disclosed to the husband of the defendant was such as was sufficient to put him upon inquiry to ascertain what his interests were. If he had prudently looked at the deed to Kennedy and the declaration of trust given contemporaneous with the deed, he would have discovered the true state of the title. "We think he was negligent in not so doing, and that the defendant was not a purchaser in good faith without notice. (Williamson v. Brown, 15 N. Y., 366; cited, 56 id., 520; Brown v. Volkening, 64 id., 76.)

He was put upon inquiry, and omitted to pursue the proper investigation with due diligence. That would have led to knowledge of the trust declaration —to the true interest of Leora in the premises.

The defendant was not, therefore, a purchaser in good faith without notice. (Stearns v. Gage, 79 N. Y., 102; 23 Alb. Law Jour., 132; Baker v. Bliss, 39 N. Y., 70; Fullerton v. Viall, 42 How., 294.)

We recognize the rule that such notice must be found upon “ clear and strong circumstances,” and we think the evidence and circumstances answer the requirements of the rule.

In the opinion delivered by the trial judge we find it stated that such notice was given to the agent of defendant as we have assumed to have been given, and it is then added that such notice was sufficient to put him upon inquiry as to the existence of any right or title in conflict with the one he was about to purchase. We cannot assent to such a view of the case. "We think it was just such a notice as would have awakened the diligence of a prudent man; and that if the diligence had been exercised it would have led directly to an understanding that Leora, the infant, had some interest and right in the inheritance of her father, and that it had not been rightfully taken from her by any legal or other proceedings sufficient in law to bar her.

There could be -no estoppel' as she was an infant. (Sherman v. Wright, 49 N. Y., 231; Chapin v. Shafer, 49 id., 407.)

When the plaintiff’s father died intestate he had acquired an equitable interest in the lands, entitling him as purchaser to receive the fee upon payment of the remaining unpaid purchase-money. The plaintiff by inheritance acquired an interest in said lands, and the facts and circumstances disclosed in the trial clearly indicate that the defendant, through her agent, was chargeable with notice of such interest, and the defendant, therefore, is not in a situation to deprive the plaintiff of her inheritance.

If the defendant has suffered by any fraud practiced by the widow and Evaline, the remedy is by an appropriate action.

The rights of the plaintiff in the lands must be protected.

Judgment reversed and a new trial ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment reversed and new trial ordered, costs to abide event.