ORVlSS ."'. DUNN.
(Girc'Ilit GOU'l't, No D. TezalJ.
TRUSTS-ACTION TO ESTABLISH-LoST INSTRUMENTS-SUFFICIENCY OF EVIDENCE;
In a suit brought in 1884 to establish and enforce a bond to reconvey, al-leged to have been given in 1847 by: defendant to his uncle J., under w)J.om, plaintiff claimed, one witness testified that he saw certain papers executed about that time. and understood them to be deeds of J.'s land to defendant, given to enable defendantto sell it in the States whither he was returninA' after a visit to J., and a bond to reconvey in case defendant failed to sell. Another testified from talks with defendant at that time he understood that such an arrangement had been made, and that he afterwards saw such a oond to reconvey produced and proved in a suit in 1854; that the witnesses to the bond were dead. It appeared that in 1847 defendant was poor, and the consideration he alleged was very small-less than one-ninth of that expressed in the deed. Plaintiff and his grantor had been in continuous possession and paid taxes since 1800.. Held, that plaintiff was entitled to relief.
In Equity. Bill to establish a hond Cor title, and for specific performance, by David A. Orviss against John Dunn. R.G. Street and A. C. Prendergast, for complainant. Clark, Dyer Jc Bolinger, for defendant.
MCCoRMICK, J. On the 30th day of January, 1884, the defendant in this suit,a citizen of the state of Mississippi, brought his action of trespass to try title (ejectment) against complainant to recover possession of, and establish his title to, a certain half league of land in Robertson, county, Tex., described in his petition therein, and in the bill herein., On the 6th day of December, 1884, the complainant filed his bill herein, setting up substantially that on and prior to the 1st day 1847, the land in controversy was owned by one James Dunn, an uncle of the John Dunn party hereto, and that on said 1st day of FebrUluy,; 1847, said James Dunn had conveyed said land to said, John Dunn by , absolute upon its face, reciting a cash consil1eration of $3,000 in haud paid, and acknowledged to have been received from said .John Dunn by said James Dunn; that in truth and fact no consideration, was paid or contemplated to be paid; tha,tthe purpose ofsaid deed was to put the legal title to said land in said John Dunn, to enable him with facility to sell the same for his uncle in Mississippi, or one of the older statl;ls; and that simultaneously with the execution and delivery of deed there was.executed by John Dunn and delivered to said Dunn an obligation to· reconvey, unless. sale was effected;. that, pursuant to .this. purpose, the deed to John Dunn was recorded, and the bond or obligation to reconvey was withheld from record; that, no sale being effected by John Dunn, the said James Dunn, on the 9th day of Septem,ber, 1850, conveyed this land, lin distribution of his estate) to his son,James Dunn, Jr.; that said bOlld for title has beelliost Of. mislaid, and canpqt. now be found; that complainant holds the title of the said JaIlles Dlll]lU" . Jr·· and that he and . those un<ierwhom he claims have
since the 9th of September, 1850, (and the said James Dunn before Ihat time had) exercised acts of owriership over said land notoriously, and have paid taxes thereon, etc. And prays that said bond for title be established, and specific performance thereof be decreed, deed to John Dunn canceled, cloud removed, etc. The defendant denies that the executionand delivery to him of the deed of 1st February, 1847, was without or was subject to any trust in favor of the grantor, or that he ever executed and delivered a bond for title, or obligation to reconvey the land in controversy. He says that he gave a valuable consideration for this land, stating in his answer the consideration to have' been &325, of which $75 was in money and the remainder an account against Dr. W. S. Rodgers; that he paid the taxes on itforseveralyearsj that, as he resided in Mississippi,he left his brother, A. M. Dunn, who resided in the county in Texas where this land is situ/tted, as his agent, to pay the taxes thereon, and furnished his said brother the money necessary to pay the samei that the deed to said James Dunn, Jr., was not put to record until in 1872i that no possession was held of said land until after the sale to complainant of ito interest in said land in 1873; that he never acquiesced in the adverse claim of those under whom complainant claims, nor had he any means of ascertaining that they or any of them set up any claim to said land, until the deed to James Dunn, Jr., was recorded in 1872; that at or about the time he purchased this land from his uncle,he and his uncle agreed to engage in merchandising in Robertson county, if the defendant could get the goods for this half league and for another half league owned by his uncle, and that, to carry out said agreement, his uncle did convey to him said other half league that he might sell it and his own,-the one in controversy,-and procure a partnership stock of goods; that he failed to effect said purpose, and afterwards reconveyed said other half league to the heirs of his uncle, said James Dunn. This answer is sworn to and sustained substantially by the deposition of the defendant taken in the case with a slight variance as to the consideration paid. The complainant offers the testimony of one McFall, who says he was at James Dunn's house in 1847, engaged at work there for one Gilbreath; that he was present in the house one day, a short time before .John Dunn left for Mississippi,and saw said Gilbreath and one Perry witness some papers that had been signed by James Dunn and John Dunn; that there were three or more papers; that he understood from the conversation of John Dunn and James Dunn and Perry (who was a lawyer) in presence of each other, of witness, and of Gilbreath, that James Dunn was deeding or had deeded two tracts, half leagues, of land in Robertson llonnty (by the papers being witnessed) to John Dunn, to sell for James Dunn in the statesohoommission, and that John Dunn had given a bond to reconvey the lands in case he could not effect a sale. The complainant also offers the testimony of one Wheelock, who has lived in Hobertson county since 1833, lived within three miles of James Dunn's house until said James Dunn died, and knew John DU11n all the time he was in Robertson cdunty,-ftom October, 1846, until he went away, some time
OBVISS V. DUNN.
in 1847. This witness says: "My understanding was, by talks with John Dunn, that his uncle had conveyed him lands to sell and he was to get a certain percentage." He says it was the family talk with the Dunn and Wheelock families. He was elected sheriff in 1851 of Robertson county, and was present in court at the May term, 1854, of the district court of Robertson county, and remembers a suit of James Dunn, Jr., against John Dunn, to make title to lands upon a bond for title. He caused citation by publication to be made on said John Dunn. The trial was had, and witness saw what purported to be a title-bond from John Dunn to James Dunn, Sr., to make title to the half league involved in this suit,-the Robertson league; saw the bond exhibited .before the jury in the trial of the cause of James Dunn, Jr., vs. John Dunn. His impression is that Gilbreath was a witness to the bond, and that they had Judge KILLOUGH present, to prove Gibreath's signature, because Gilbreath was dead. This witness knew both Gilbreath and Perry, and says they are both dl3ad. (There was judgment in favor of James Dunn, Jr., in this suit, in 1854, in Robertson county, and it was pleaded in complainant's bill, but was stricken but on demurrer, because the record disclosed only service by publication on the defendant, who was a 'citizen of another state.) The original deed from James Dunn, Sr., to.1ohn Dunn was produced by complainants as coming from his possession. These witnesses show that in 1847 John Dunn was a young man 24 or 25 years old, without means, and without any remunerative occupation, of good presence and good qualities, in whom his uncle had confide'nce, .lnd who spent a year at his uncle's house, as a young relative visiting him from a distant state (that was before the railroad had qualified distances in Texas) would; and, as occasion called, attending to any matter for his uncle that came in his way. The other proof relates to the loss of or inability to find the bond for title, to the family history or tradition in respect to this land transaction, and the constant claim of ownership and payment of taxes. The consideration recited in the deed may well be taken as the parties' estimate of the value of the land at that time. This is $3,000, or about $1.35 per acre. The defendant says he gave an account against Dr. W. S. Rodgers for $250, and released two sums his uncle owed him,-one for $25, and one for $40, mf1king $315 in all, or not quite 15 cents per acre. None of the witnesses mention ever hearing of the project to convert the lands into goods, and carry on a partnership mercantile venture. All the circumstances of John Dunn's visit to Texas and with his uncle, (who was a rich man, for that time and place,) and his leaving there to return ,to the older states, seem to me to tend strongly to support complainant's case, and to cOlToborate the direct testimony of the witness McFall and the witness Wheelock, whose testimony I have summarized above. It is well settled that to ingraft a trust upon a deed by parol, or to establish a lost writing by parol which declares such a trust, the proof must be dear, and the unsupported testimony of one witness, however positive and clear, cannot safely be allowed to establish such a trust. It is, however, as well settled that, where the proof is adequate, the trust must
.and that. both the:n!ltu;eandamout:lt of the proof required :t:pust rdeppnd in ,a the age oLthe transaction. Upon a ,carefu),cgusideration of am constrained to conclude ,that tbe from James Dunn,Sr., to John DU;f,ln for tbe land in controversy was Illade for tbe pUTPoseof enabling said John Dunn to sell said land for James Dunn, Sr., and that the legal title thereby held by said. J obn Dunn ':v,as and is for. the usE! and ben(:lfit of said James Dunn, Sr., whose right complainant now holds; and that a decree should be passed ,herein granting complainant the relief prayed for in his bill; and it will be so ordered.
(Oircuit Oourt, S. D. Ne'UJ York. April 16, 1888.)
When a,defendant served with subpama entered his appearance, and filed his answer before the rule-day at which the writ was returnable, held, that ',under United States equity rules such practice was proper, and that replication should be filed on or before the rule-day succeeding that on which the writ was returnable.
, In :Equity. plaint. '
Motion to set aside, an order dismissing a bill of
,Witter Jot complainant. WitmqrekJenmer, for defendant.
LACOMBE, J. The bill of pomplaint was filed, and subprena served, January 14, The nextsncceeding rule-day was February 6th, .a,nd thereafter, March 5th. Defendant entered his Februa,ry 2d, .and filed his ,answer February 3d, No replication filed on :the March rule-day,and order was entE;lred dismissing the ibill, CQmplainant moves to eetaside the order, 'l'he question raised upon the motion is as to the of the :rules in equity. Their language, seems call for any: Blabodiscussion in view of the fact ,that they were presumably framed to :promote the speedy ,administration of Justice, and were not designed to delay: suitors, except so far as lllightbenecessary to insure a proper and orderly presentation of both side$ p£llach case. .Adefendant served, with ,subpama must enter his. appearance on or before the day at which .the writ :His plea, deUlUrrer, :or answer must be filed on the next succeeding of;. entering. his appearance, whether ,suc1uule-day day or thirty days after the tlntering of the appear,anee.The compla,inant has until the next sllcceeding rule-day after· filing the answer,iQ'Which to file general replication·. Thereis no warrant .in or for the proposition advanced by the complainant an appearance can only be filed 011. a rule-day I and that therefore in