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shaw. Imputing no knowledge to the com- | earnest and emphatic manner in their acpany other than it actually possessed, the tions of ejectment to recover the lots. The same course should be taken with the de- evidence fails to show that the company fendants. In that case we have their sworn was, before the money was advanced, entiredenial, unaffected with any proof to the con- ly innocent of any knowledge on its part trary, that they had any actual knowledge which would lead to doubt as to the ownof the existence of the deed of trust or ofership of the property by Bradshaw. But, any connection of the company with Brad- even its actual good faith, in the popular shaw, or of any advances made by it to sense, cannot charge the defendants with the Bradshaw, until February, 1895 (long after duty of active investigation to discover from all the moneys had been advanced), and, what source Bradshaw obtained the money even in regard to Bradshaw himself, they to build. The simple facts are that the notified the contractor early in January, defendants were in possession of the prop1894, that they owned the property and they erty when this suit was commenced, and would not be responsible for any expendi- they ask no aid from a court of equity to tures made by Bradshaw, and that if the place them in possession. They had recovcontractor went on he would be regarded as ered it in their actions at law, and a court a trespasser.

of equity will not, even in the case of a There is no finding that Bradshaw was in bona fide improver, grant active relief in solvent, or that the defendants had any such a case. 2 Story, Eq. Jur. 12th ed. $$ knowledge of it if he were insolvent, and 1237, 1238; Williams v. Gibbes, 20 How. 535– hence there is nothing to lead to the as- 538, 15 L. ed. 1013, 1014; Anderson v. Reid, sumption that the defendants knew the 14 D. C. App. 54; Canal Bank v. Hudson, buildings could only be erected by Bradshaw 111 U. S. 66, 79, 28 L. ed. 354, 358, 4 Sup. with borrowed money, and nothing to show Ct. Rep. 303; Searl v. School Dist. No. 2, any duty on the part of defendants to take 133 U. S. 553, 561, 33 L. ed. 740, 745, 10 Sup. active steps and make a search to endeavor ct. Rep. 374, and other cases, cited by the to find out who was loaning him money, and trial judge in his opinion, and in the opinion on what security. And yet this is the con- of the court of appeals. The case of the tention on the part of the complainant. We company is not strengthened by its knowlthink it must be regarded as an extraordi- edge that the title of Bradshaw was ques. nary contention and an unreasonable appli- tionable. cation of the doctrine of constructive notice.

Morgan v. Chicago & A. R. Co. 96 U. S. This is the language used by the court of 716, 720, 24 L. ed. 743, 744, cited, among appeals, and it properly describes the situ- other cases, by the appellant, has no applicaation. Certainly constructive notice cannottion. The facts are so wholly different in be applied to the owner of property in re- their nature as to present a case which does gard to the existence of a mortgage thereon, not touch the principle decided herein. placed there by someone who did not own There was conduct on the part of the apsuch property. The owner of real estate pellant which was such as to amount to is under no obligation whatever to watch fraud or misrepresentation, leading appellee the records to see whether someone who does to believe the existence of a fact upon the not own his property has assumed to place existence of which appellee acted. We find a mortgage upon it or convey it by deed to no cases in opposition to the result we have some third person. The defendants knew arrived at. Bradshaw was in possession and they saw The decree of the court below is affirmed. buildings being erected on the lots. Were they to assume that Bradshaw was borrowing the money, and that they must, therefore, go to work to find out from whom he

GEORGE W. CROWE, Appt., was borrowing, and notify him of the facts ? They in fact knew nothing of the deed of M. M. TRICKEY, Adrinistrator of the Es. trust, but, by imputing knowledge, the

tate of Norman H. Chapin, Deceased. claim is made that a duty founded upon such imputed, but not upon any actual, knowl. Appeal from territorial supreme courtedge, rested upon defendants, for the failure

questions reviewable. to discharge which the defendants ought to 1. The jurisdiction of the Supreme be held liable.

Court of the United States on an appeal No case has been called to our attention from a territorial supreme court is limited

in any degree resembles the claim to determining whether the findings of fact made by the company herein. The man who support the judgment, where the exceptions actually erected the buildings knew all sion or rejection of evidence were not in

to rulings the trial court in the admisabout the state of the title, and that it was sisted upon in the territorial supreme court, contested by the defendants in the most' and were not considered by that tribunal.

V.

Appeal from territorial supreme court-suf- The record states: ficiency of statement of facts.

“In the above-entitled action the supreme 2. The statement of facts made by the court finds the facts to be as follows: territorial supreme court will not be held defective on appeal to the Supreme Court known as the Pride of the West mine was

“1. Previous to March, 1899, a mine of the United States because it may be confused and may give a mass of unnecessary

owned by three parties. A man named Oldetails, if a sufficient statement finally sen owned one half thereof, and Norman H. emerges therefrom.

Chapin, the defendant's intestate, and Jerry Appeal-sufficient bill of exceptions.

Neville each owned one fourth

fourth interest 3. The failure of the bill of exceptions therein. on appeal to state in express terms that it "In March, 1899, the plaintiff Crowe contains all the evidence does not prevent brought this mine to the attention of one the appellate court from considering or de Emerson Gee and his associate, A. R. Wiltermining the case upon questions of fact if fley. Subsequently, in the latter part of the record shows that all the evidence was contained in such bill.*

March, 1893, Wilfley purchased Olsen's oneBrokers-commissions.

half interest, and made an agreement with 4. A broker who finds a person who Chapin and Neville, in pursuance whereof a takes an option on the purchase of certain deed to the remaining one-half interest was mining property, which is never carried out, executed by Chapin and Neville, and placed cannot, where the owner dies before the op- in escrow, the terms of the escrow agreement tion expires, recover his agreed commission providing that the deed was to be delivered from the administrator, when the latter, to Wilfley upon the payment by him of the after the expiration of the option, sells the

sum of $100,000 in cash, on or before the 1st property to the same person and at the

day of April, 1900. same price.

“2. It was verbally agreed between Crowe [No. 71.]

on the one part, and Chapin on the other,

representing himself and Neville, that Crowe Submitted October 31, 1906. Decided Janu- was to receive 10 per cent of the purchase ary 21, 1907.

money received by them for their interest in the mine, as commission for making the

Territory of Arizona to review a judg. were executed by Chapin and Neville on the ment which reversed a judgment of the Dis. 1st day of April, 1899. trict Court of Santa Cruz County, in that “3. Prior to the 1st day of April, 1900, territory, in favor of plaintiff in an action to Chapin and Neville both died. recover a broker's commission, and remand. "M. M. Trickey was appointed administraed the case to the latter court with director of Chapin's estate and one Henry H. tions to render judgment for defendant. Harmon was appointed administrator of Affirmed.

Jerry Neville's estate. See same case below (Ariz.) 71 Pac. 965. "Wilfley failed to pay the money and take

the property under his option, and after the Statement by Mr. Chief Justice Fuller: 1st day of April, 1900, at the expiration of

This was an action brought by Crowe in the time mentioned in the escrow agreement, the district court of Santa Cruz county, and in accordance with the terms thereof, Arizona, against Trickey, administrator of the deed in escrow was returned to Trickey, the estate of N. H. Chapin, deceased, to re- the administrator of Chapin's estate. cover the sum of $5,000 as commission on a

“4. Thereafter, and on the 7th day of sale alleged to have been effected by Crowe April, 1900, upon the payment of $1,000 by for Chapin, during his life, of a one-fourth Wilfley, the administrators of these two esinterest in a mine. The case was tried by by the terms of which they agreed to exe

tates made another agreement with Wilfley, the district court without a jury, a jury cute a deed to a one-half interest owned by having been waived by agreement of the the two estates, upon the payment of the parties, and that court made findings of fact

purchase price of $100,000, in specific and stated conclusions of law therefrom, amounts, on different dates therein exupon which it rendered judgment in Crowe's pressed. This option also lapsed. . favor, January 10, 1902, to be paid in due

5. After said lapse, and on the 19th day course of administration. From that judg- of June, 1900, M. M. Trickey, as adminisment the case was carried by appeal to the trator of the estate of Chapin, entered into supreme court of the territory of Arizona, another agreement which was offered in eviwhich, March 20, 1903, reversed the judg-dence by the plaintiff, and appears in the bill ment, and remanded the case to the district of exceptions as 'Exhibit 3.' court, with directions to render judgment "By this agreement, Trickey, as adminfor defendant. 71 Pac. 965,

istrator, gave to Wilfley an option to pur*Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $$_2918-2926.

chase the one-fourth interest in the mine the plaintiff, and an appeal prayed thereowned by the estate of Chapin, and obligated from to the supreme court as stated.] himself to execute to Wilfley a deed for such "The only statements of fact in the recinterest upon the payment of $5,000 in cash, ord were contained in the foregoing findings $5,000 within three months; the further of fact, and in a bill of exceptions. The said sum of $5,000 within six months; the fur- bill of exceptions, which was transmitted to ther sum of $5,000 within nine months; the the supreme court of Arizona with the recfurther sum of $5,000 within twelve months; ord in this case, did not state that it conand the further sum of $25,000 within eight- tained all of the evidence which was introeen months.

duced upon the trial of the case in the dis“The plaintiff Crowe had nothing what-trict court, nor upon the points presented to ever to do with either of the last-mentioned the Arizona supreme court for its decision, options, or with the sale of the property nor does it otherwise appear from the record after the death of Chapin.

in the case that all of the evidence which "6. In pursuance of this option, Wilfley was introduced upon the trial of the case in paid to Trickey the sum of $5,000 in cash the district court was before the said suon the 19th day of June, 1900; and the fol-preme court of Arizona. The abstract of lowing sums on the following dates, respec- the transcript which contained the evidence tively: $5,000 on September 19, 1900; $5,000 stated that the defendant, by his bill of on December 19, 1900; $5,000 on March 20, exceptions, which contained all the evidence 1901; $5,000 on June 17, 1901; $25,000 on taken on said trial, and which is as follows:' December 7, 1901.

then follows the bill of exceptions reciting 7. The above-mentioned agreement (Ex- the testimony of the different witnesses, covhibit 3) was only an option to purchase, and ering some 23 pages, and at the conclusion under it there was no obligation on the part | thereof the following allowance: of Wilfley to pay any portion of the pur- 'The foregoing bill of exceptions was prechase price, and no obligation on the part of sented to me for allowance on the 24th day Trickey to deliver the deed mentioned in of January, 1902, and was by me on the the agreement until the last payment of same date submitted to Messrs. Hereford & $25,000, in December, 1901, had been made. Hazzard, attorneys for the opposite party,

“8. On the 10th day of December, 1900, who made no objection thereto, whereupon Crowe presented to Trickey, as administra- the said bill of exceptions is now by me tor of Chapin's estate, in accordance with signed, approved, and allowed as of the said the law of the territory of Arizona, his claim 24th day of January, 1902. Geo. R. Davis, against the estate of Chapin for '10 per cent Judge;' but the record contains no certificate of the purchase price of the Pride of the from the clerk or court that the evidence West mine, agreement for the sale of which contained in the bill of exceptions constiwas entered into about April 1st, 1899, and tuted all of the evidence taken on the trial which said agreement of sale was made by in the lower court, and that fact is controChapin and Neville to A. R. Wilfley, and verted by the counsel for the appellee. which sale was brought about by the said “The Arizona supreme court found the George W. Crowe, upon the agreemenu that following facts: he was to receive 10 per cent commission “1. That the efforts of the piaintiff, Crowe, upon said purchase price from said Chapin resulted in procuring the purchaser Wilfley and Neville, one half of said 10 per cent not to purchase absolutely, but to take an being $5,000.

option on the purchase of the property in“9. This claim was rejected by the ad- volved, for $100,000; that Crowe's principals ministrator, and he thereupon brought this accepted a deed to the property and placed action in the district court of Santa Cruz it in escrow; that although Chapin died becounty on the 25th day of January, 1901, at fore the expiration of that escrow agreewhich time the estate of N. H. Chapin, de- ment, the deed executed by him remained ceased, was solvent, and amply able to pay subject to the order of the purchaser, and all debts of the said estate, and the said that, if he had availed himself of the terms Chapin nor the said Trickey nor anyone of that agreement, the sale would have been else had paid to the plaintiff the said sum completed and plaintiff Crowe would have of $5,000, or any part thereof, or anything been entitled to his commission; but that on account thereof.

Wilfley failed to make the payment and “The case was tried before the court, take up the deed, and, after the expiration without a jury, a jury having been by agree of the option and after Chapin's death, the ment of parties waived, and the court made deed was returned to the administrator of the following findings of fact:

Chapin's estate and the transaction was [Here follow findings of fact and con. closed without any sale being made. clusions of law by the district court, upon “2. That the sale of the property that which judgment was rendered in favor of was subsequently effected was the result of the negotiations between Trickey, the ad- | rulings on questions propounded to witnesses, ministrator of Chapin's estate, and Wilfley; but the exceptions thereto were not insisted that before the date of the sale, Crowe's upon in the supreme court nor considered power or authority to act in the matter had by that tribunal, so that the question bebeen terminated, and his agency revoked fore us is whether the findings of fact supby the death of Chapin.

port the judgment. “3. That in regard to the latter negotia- But several of the errors assigned are to tions, Crowe rendered no services to Trickey, the effect that the supreme court erred in received no appointment or agreement from considering or determining the case upon Trickey in reference to the matter, and took questions.of fact, because the bill of excepno part whatever in the ultimate sale. tions failed to state that it contained all

“4. That the plaintiff, Crowe, did not, be of the evidence given in the case, and the tween the 8th day of February, 1898, and record failed “to show that the bill of exthe 11th day of January, 1900, bring about ceptions contains all of the evidence given in a sale of Chapin's interest in the property the case, or all of the evidence bearing upon in controversy.

the questions involved in the decision" of “5. The said A. R. Wilfley paid to the the court. said defendant the sum of $50,000, as fol- The supreme court proceeded upon the reclows; April 7, 1900, $500; June 19, 1900, ord as containing all the evidence, and we $4,500; September 19, 1900, $5,000; Decem- are not inclined to hold that the contention ber 19, 1900, $5,000; March 20, 1901, $5,000; that it should not have done so is open to June 17, 1901, $5,000; December 7, 1901, $25,- our consideration under the limitations of 000, not for the right, title, and interest of the statute. But, be that as it may, we the said Norman H. Chapin, but for the think the record shows that all the evidence ‘right, title, and interest of the said estate was contained in the bill of exceptions, and of Norman H. Chapin, deceased, in and to' the that that is sufficient, even though the bill said property, in compliance with the terms itself did not so state in express terms. of the contract of sale and title bond exe- Gunnison County v. E. H. Rollins & Sons, cuted to the said Wilfley by Trickey, the 173 U. S. 255, 43 L. ed. 689, 19 Sup. Ct. Rep. administrator of said estate.”

390. [Here follow conclusions of law and judg- Paragraphs 1485 and 1582 of the Revised ment.)

Statutes of Arizona, 1901 (pp. 461, 474),

provide: Messrs. W. C. Keegin, Seth E. Hazzard, “Every paper filed in a case shall constiand F. H. Hereford for appellant.

tute a part of the record of the case, inMr. Eugene S. Ives for appellee.

cluding depositions and all written evidence

and exhibits offered or admitted in evidence; Mr. Chief Justice Fuller delivered the and no papers thus filed or admitted in eviopinion of the court:

dence, or offered in evidence and rejected The supreme court of the territory was by the court, need be incorporated in a called upon to make a statement of the facts statement of facts in order to make it a of the case in the nature of a special verdict, part of the record.” and also the rulings of the court in the ad. “On taking an appeal · · · the appelmission or rejection of evidence when ex- lant ... shall cause to be filed in the cepted to. Our jurisdiction is limited to the supreme court ... the original record consideration of such exceptions and to de- of the case, together with a copy of all mintermining whether the findings of fact sup- ute entries made in the case, the same to port the judgment. Harrison v. Perea, 168 be certified to by the clerk of the district U. S. 311, 42 L. ed. 478, 18 Sup. Ct. Rep. court, with the seal of the court affixed, that 129; Young v. Amy, 171 U. S. 179, 43 L. ed. it contains a true copy of all minute entries 127, 18 Sup. Ct. Rep. 802.

made in the case, and that the papers thereThe statement of facts required by the unto attached are all the papers constituting statute should present clearly and precisely the record of the case. the ultimate facts. And while it may be The clerk accordingly transmitted to the objected to the statement in this case that supreme court all of the original records and it does not properly comply with that rule, copies of the minute entries. The case comfor it is quite confused and gives a mass ing on for hearing, the minute entries state: of unnecessary details, yet we think the im- “The trial then proceeded upon the pleadperfections in that regard should not be held ings herein, in the presence of and before fatal, as a sufficient statement finally the court sitting without a jury, a jury emerges. This will be understood by refer- having been expressly waived in open court ence to the statement itself, which we have by both parties hereto, and the plaintiff, to set forth for that purpose.

maintain upon his part the issues herein, The bill of exceptions contains some minor introduced certain documentary evidence, and also called as a witness the following be held subject to the order of the said N. named person, to wit, George W. Crowe, the H. Chapin and Jerry Neville. plaintiff, who was duly sworn, examined, Dated Washington, Arizona, April 1st, and cross-examined, and thereupon the 1899. plaintiff rested his case. The defendant then, to maintain upon his part the issues This paper and the deed therein mentioned herein, called as a witness the following were deposited in escrow in the bank on that named person, to wit, M. M. Trickey, who day. was duly sworn, examined, and cross-exam- The terms of the transaction had been ined, and thereupon the defendant rested his arranged the latter part of March, and it case. The evidence being now adduced and was verbally agreed that Crowe should rethe case closed, arguments of the respective ceive 10 per cent commission on the purchase counsel followed, and the cause being now money received by Chapin and Neville. fully submitted, the same was, by the court, Chapin died January 11, 1900, and Trickey taken under advisement."

was appointed administrator February 8, The evidence of two witnesses, Wilfley and 1900, and qualified as such. Neville died Gee, was taken by deposition, and their dep- January 3, 1900, and Harmon was appointed ositions were sent up in the transcript. The administrator and qualified as such. minute entries show that only two wit- Wilfley failed to pay the money and take nesses, Crowe and Trickey; administrator, the property, and after the expiration of were examined before the court, and their the time mentioned in the escrow agreetestimony is given in narrative form in the ment the deed in escrow was returned to bill of exceptions, as well as the testimony Trickey, administrator. of Wilfley and Gee. The minute entries, in On April 7, 1900, the administrators of the speaking of the introduction of “documen- two estates made an agreement with Wiltary evidence,” were manifestly intended to fley to execute a deed to the half interest on embrace depositions in that term. There is payment of $100,000, in amounts prescribed. no room for presuming that any evidence This option also expired. Thereafter, and was omitted, and the points to which the ev- on the 19th of June, 1900, Trickey, as ad. idence adduced was addressed preclude such ministrator of the estate of Chapin, entered a suggestion.

into an agreement with Wilfley to convey to We are brought, then, to the question of him the right, title, and interest of the esthe sufficiency of the facts found to support tate of Chapin in the mining property (dethe judgment. The findings may be sum- scribed as a quarter interest), on payment of marized as follows:

$50,000, in designated amounts, and these Chapin and Neville each owned one fourth payments were subsequently made. of the mine, and on April 1, 1899, signed a Crowe had nothing whatever to do with paper addressed to the Consolidated Nation either of the last-mentioned options, or with al Bank of Tuscon, Arizona, which is con- the sale of the property after the death of tained in the bill of exceptions, and, by ref- Chapin. erence, in the statement of facts, and was And the claim he presented to Trickey as couched in these terms:

administrator of Chapin's estate was for

$5,000, being one half of the commission Gentlemen: The enclosed deed from N. H. agreed to be paid to him in March, 1899, on Chapin, Marie Chapin, Jerry Neville, and the purchase price which would have been Refugia Neville, parties of the first part, to received by Chapin and Neville if the option Arthur R. Wilfley, party of the second part, of April 1, 1899, had been carried out. is to be delivered to the said Arthur R. Wil- In these circumstances we concur in the fley upon the payment of the sum of $100,- judgment of the supreme court of the ter000 at or before the expiration of one year ritory. from the date hereof.

In McGavock v. Woodlief, 20 How. 221, 15 And you are further directed that all L. ed. 884, it was laid down that in order moneys sent you from time to time by the to be entitled to commission “the broker said Arthur R. Wilfley, with instructions to must complete the sale; that is, he must apply the same to the payment of the afore- find a purchaser in a situation and ready said purchase money, shall be so applied and and willing to complete the purchase on the the same placed to the credit of N. H. Cha- terms agreed on.” But this rule is inapplipin and Jerry Neville.

cable when the owner refuses, without suffiTherefore, if the said Arthur R. Wilfley cient reasons, to fulfil the agreement which shall pay or cause to be paid the sum of the agent has made. Kock v. Emmerling, money above mentioned, at or before the 22 How. 69, 16 L. ed. 292. Even though he time aforesaid, you will then deliver the could not have been compelled to carry out said deed to the said A. R. Wilfley, his agent his contract if he had chosen to set up the or assigns. Otherwise the said deed is to' statute of frauds. Holden v. Starks, 159

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