.,RE;ELY ll. WEIR.
.· dllltribtJtedproportiOll'ately to payJinlfut':ofr all unpaid! state, city, parisb, and fIliunicipal taxes. 'interl18t;'OO1lts; '8lltl by t@ December:31j: 1869: . The shall. b0w.ev.er.. assQmeapd promise topay.:antJ shall take .qtl'!e. same due Subsequent· to December 31; 1l::l7S..The balance ret111tining of the price of the saidliales. after the payment of all tbecosts.and cQarges herein provided to be paidof all unpaid taxes due prior to December 31, 1879, shall be paid into the state trasury, as herein provided." .
And that under said section, the purchaser pf taxes prascrihed or not. . r:. E·.' H. ,McOaleb and W. H. Smith, for complainant· .' 'So L. Gilmore and Wynn Rogers, for defendants. , . Before PARDEE and BILLINGS, JJ.
(. !.'ERr.CURIA¥. ,
This CEl-use hM'ing been heard at a pJ1evious day upon the demurrer filed herein, and the court having duly considered the doth now order, adjudge, and decree that the meaning of section 5 of act No. 82 of the Acts of the state of Louisiana for the Y\'iar 1884, is thaiHhe property sold at the tax-sale should pass to the purchaser subject to such Jiens for unpaid taxes as could have been enforyed against the same in ,the hands of the forIper owner, in case there had beert no ,sale, and tnat it was not the intention of the legislature in said act to revive against property sold for taxes. any lien that had already ceased to exibt thereon, ,Ilnd that the said demurrer is bad in law, and ;that the same be overTiIled. It ,is'further ordered that the respondents have until next rule-day in which to plead by way of plea or answer to the bill Qf complaint herein. Both judges concur.
Tenneaae6. January 22, 1889.)
JUDGMENT-'-RES JUDICATA-PARTIES AND PRIVIES...,.TAX-8ALE.
If one who claims to be the beneficiary of a resulting trust in land, which has been purchased by a tru.stee in her own name, be not J;Ilade a party to a bill filed bithe devisees of the trustee to impeach the validity of a tax-sale,ll,S against the purchaser of the tax-title, she is nevertheless bound by a decree in favor of the .tax purchaser, because she is in privity with the trustee, ot those upon whom the legal title has devolved, as they may file,tp.ebiU in her behalf without making her a party in form. especially where her interest does not appear except by construction, and is only a secret trust. and more especially where the title impeached is a tax-sale upon an assessment against the ostensible owners,
TRUSTS-RESULTING TRUST-WILLS-DISCRETIONARY POWER8'-LIFE'TENANT AS TRUSTEE. . " ".
Where a father's will left the property to his wife during widowhood for the purpose of educating the children, and to give to each hi.s portioIl On mn.r, riage or coming of age, and with powers of management and sale; if sell a part of the property, and purchase other land in her own name, no trust in that land results in favor, of one of the children who has been byithe mother'swiltde!lied!l!ll share'in H"upon a bare aJ,legation that the purchase
FEDERAL REPORTER, vol. 38.
money was a part of the money'realized by the sale of the father's land. In such a case the discretionary powers of the trustee, and the nature of the trust, are such that it cannot appear without a settlement of the entire trust that any part of the purchase money belonged to the cross-plaintiff setting up a resulting trust; and if the proper construction of the will be that the widow took a life-estate, with remainder over to the children, the result is more certainly the same, for the life-tenant is entitled to all uses. benefits, and profits. and the remainder-men only to the original corpU8, their only equity being to secure and preserve that, but there is no equitable interest in the land as a resulting trust-estate.
A claim for a resulting trust in land purchased 50 years ago, and more than 40 years after the alleged defaulting trustee had died and devised the land in hostility to the supposed resulting trust, is a stale demand as against a purchaser from the devisees at a tax-sale.
In Equity. Action by Thomas Iteelyagainst Sarah E. G. Weir and others, to quiet title and enjoin certain alleged wrongful acts. Wm. M. Randolph, for plaintiff. James H. Malone, for defendants. HAMMOND, J. The plaintiff' filed this bill in the state court to quiet his title and enjoin the defendants from certain acts interfering with his alleged possession of the property described by the bill. He sets out with fullness a former proceeding in the state courts, by which his title under a direct tax-sale made under the act of congress in that behalf was confirmed to him by the supreme court of the United States in the case of Keely v. Sanders, 99 U. S. 441. The defendants answered, denying the acts complained of by the bill, or explaining them as lawful to be taken in defense of their own title, and alleged possession, and, generally, denying the title of the plaintiff. They also filed a cross-bill, which, after removal to this court, they amended, by which they set up a title in themselves; that their claim is paramount, not only to the portion of the property described by the bill, but to all that the plaintiff acquired under his d4"ect,tax certificate; and they call upon him to aecount for the rents, or such portions of them as belong to cross-plaintiffs by reason of theirjoint ownership with him or the other defendants. And to this cross-bill the demurrer is filed. Briefly, it may be stated that the devisees of Miriam L. Sanders, under her will ,1 recorded in Shelby county in Will-Book C, page 344, of date March 27, 1846, and made Exhibit A to this bill, commenced in October, 1866, the proceeding before mentioned as resulting in thejudg, 1 Win of Miriam L. Sanders. March 27, 1846. Item 8. (Appoints executors.] Item 4, Directs sales of real estate, reinvestments in ,negroes, and their use, and how children s,hall live and go to school, etc., and how Ilegroes shall be divided among children, and, when youngest child becomes of age. remaining real estate to be SOld, and negroes purchased and divided, etc. As to Sarah (now Mrs. Weir] thus: "I wish my daughter l:larah to have one hundred dollars, after my debts are paid,' as her portion of my estate." And this: "Then it is my, desire that any portion of my estate of which they or either of them may die possessed shall be equally divided with the surviving children, as my daughter Sarah is provided for by her marriage; and the education I have given her I consider equivalent to the re8j;>Mtiveamounts I have bequeathed to my four children above named. n
KEELY 11. WEIR.
ment of the supreme court of the United States, in favor of plaintiff's United States tax-title; and that the defendant Mrs.Weir, a sister of theirs; mentioned in that will as having received her equivalent of the estate. and as a legatee of $100 only, was not a party to it, either as plaintiff or defendant. By this cross-bill, by her proceeding in the state court, taken in defense of her claim of ownership, and by her denial of plaintiff's title, she sets up that she is not bound by that judgment of the supreme court of the United States, and finding this part of the property in the common, as she avers, and notin his actual possession,she has taken possession ofit, and defends that possession by the acts alleged by the plaintiff to be acts of violence and fraudulent conspiracy, etc. She rests her title pot on her mother's will, before mentioned, but on that of her father, Joel B. Sanders/made in 1833, and also recorded in Shelby county, in WillBook No.1, page 56, and Exhibit A to this cross-bill. Her construction of her father's will is that the property was given to her mother in trust for their children, herself included, with specific duties and powers ,'therein enumerated, and that at most her mother had only a joint interest with the children, and held at least their shares of the estate upon the trusts aforesaid. And now she avers that her mother, in breach of this trust, sold her father's property, and with the proceeds, or a part thereof, purchased the property in controversy, fraudulently taking the title in her own name, claiming it as her own, and undertaking by her will to dispose of it to her brothers and sisters, wrongfully withholding from cross-plaintiff, Mrs. Weir, her share. She charges that a trust resulted in her favor; that she owns her share of the land under her father's will and as heir at law of certain of her brothers and sisters, who have died since her ITlOther's decease, and this is the title she seeks to enforce by her cross-bill and amended cross-bill, in which she further avers that the United States direct tax commissioners refused to receive the direct tax assessed, except from the owner himself, and established a uniform rUle to that effect, an,d would not permit an agent to pay the taxes; that cross-plaintiff and her co-tenants then resided in 'rexas, and had an agent here, who would have paid the United States direct tax if he had been permitted to do so,-thus bringing the attack upon the tax-title within the ruling of the Arlington Case, (U. S, v. Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240.) The cross-bill bitterly denounces the plaintiff for taking this property,unof B. Sanders. Juliy 24, 1833. Item 8. I will all of my property, both real and personal, to my beloved wife, Miriam L. Sanders, during her widowhood, for the purpose of educating my children in a moral and Christian-like, manner. In case of my wife's marriage, it is my will that she take her third of all that I have, both real and personal, during her natural life, after which time I will it to my children. Item 4. I will that my children [naming them] all share equally alike in the distribution of my property, both real and personal. It is clearly my will that no account be taken of the expenses of their education as I want them all to have a good English education and then to share equally in the property. rGives direction as to schools.l Item 5. It is my will and desire tliat in case that eitber of my children become of age, or marries, that my wife gives to the same on the day of marriage, or as soon thereafter as practicable, ,her or his portion of the property, and take a receipt for the same. Item 6. [Gives most absolute powers of sale to the yvife,lIond dh'ectswhom llhe shall consult.]
deli fLn "u.nrighteoris OOquired' diiringwarjand ldnring the a.bsence ofthEl ownel's,etc.;butJ,'i>ddous as it may:be, and 'unfortunate fOIithe owners 'a8\the dircumstance& ate; it'iS"clear that the idedlul+ertothe crosS'bill ion: the ground it'is[well taken. Laying aside. all controversy as to fact of cross-plaintiff's interest or entire want: of interest in :the: prope.J.!tyiand all';complaint' that this claim ofaR interest in it isa stale anll now set up f<it'! the first time since 18'38, as original pll1intiff.avers; the date of the deed'to iher mother, or since 1846"thedate of the mother's 'win, which averment is met by an alleged acknowledgment iOf.Mrs·. Weir's rightsby:her brothers and sisters; 1 say, aside from all it seems plain that this defense against the taxi-title comeS too late. lIt should have been set up as a defense against it in the equity bill, which ,the supreme court of the United States decided against the Sanders devisees, and in favor of the plaintiff. If they did not know of the defense, that is their misfortune; for, having had their day in qourt, they catlnot have another, at least not by such a Ch. 272; v. proceeding as this. Lindsley v. Thompson, 1 Harman,8Yerg. 103, 110; Nicholsonv. Patterson, ,6 Humph. 394. This is certain as to the parties plaintiff in that suit,and it applies with equal force to Mrs. Weir, although she was not in form a party to that suit. She was represented fully and effectually by her brothers and sisters and the other plaintiffs there, who the legal title under their mother's will and the subsequently occurring events, and were her trustees, capable of binding her to a)l theresurts of that 1awsuit, if, indeed, she had any interest in the land by reason of the facts setup by this cross-hill. This is especially so as to taxes levied on the land, and which are a lien upon it, regardless of its ownership and the form of its appearance on the as:sessment roll. Where trustees are in possession, and hav.e the management of the estate, they must pay all taxes and rates, and protect the estate from tax-sales. Perry, Trusts, §§ 331,527; Burrv. McEwen, Baldw. 154. It would be an intolerable obstruction to the collection of taxes if the title, good' as against the legal owner, should not bagood also against all for whom he was trustee, secretly or by construction, as is here claimed, or otherwise. 'Again, if trustees enter into a contract without reference to their cestui que trust, as if they contract in their own names to purchase an estate, they may maintainor defend a suit in relation to it in their they in fact intended the contract for the' benefit own names, of the trust. If it does not appear on the face of the contract or otherwise that the trustees acted as agents, or in a fiduciary character, it is unnecessary to go beyondthe terms of the contract; and in many cases it would be improper to do so. Perry, Trusts, § 874. Now, if the plaintiff, Keely, had filed a bill against the Sanders devisees, or the exthem ecutors of the ,will, or both, or against those who purcpased by any of· the ·conveyances setup in. the pleadings, he certainly would have beeIl required to make Mrs. Weir a party to bind her, if the above quotation from Mr. Perry's work be a sound enunciation of the law of the !lubject.... N0rnore were they compelled to make her a party, to bind her, to their attempt to protect the land from this tax-title by a bill
KEELY V. WEIR.
to have 'it canceled, particularly as ber did not appear. on the face of the will or the deeds; but, on the contrary, it appeared that she had been excluded especially, by that will from any interest in the estate. Her interest, as she now claims it, depended on her father's will, and the breach of trust, so that the interest followed the money, and it became a resulting trust: in which event it falls precisely within the class of cases where the trustees-whoever they be-represented her interest. If thai bill had prevailed, she would have had the benefit of it as against Keely, and he could not have set up his tax certificate against her interest or possession. So" the bill having failed, she must likewise . suffer the consequences. We have ,in Tennessee a class of cases pertaining to the statute of lim·. itations, which fix this principle in our jurisprudence, so that if thetrus-, tee do not proceed to avert the qarof the statute by suit, but allows the limHation to expire, it binds his que tl'U8tent, although they be UI;lder G088 v. Singleton, 2 Head, 66; Wooldridge v. Ban", 1 Sneed,296; Williams v. Otey, 8 Humph. 563; Watkins v. Specht, 7 Golli., 585. And the doctrine that all who are privies in estate are bound. by a decree, although not parties iIi fact, is well established in this state. Peak v. Ligon, 10 Yerg. 468; Freeman v. Freeman, 9 Heisk. 301, (where a life-tenant was held to ,represent remaiqder-men,not in, e8sej) 1 Meigs' Dig. 777,§ 4, and cases cited. This must be so, a fortiori, as ,to that proceliure by which the state or federal govemment undertakes to appropriate the property by liens and sales for taxes to enforce their collection; and if, thera<fore,an assessment and sale against the ostensible owner, 'ge good to bind the secret cestui que trU8t, any propeeding taken to pro,. tect the property by that ostensible ,owner' would bind him also, and, if. binding iI;l favor of the beneficiary, it is surely binding him. Mrs,. Weir, therefore, is bound by the decree already obtained by the, plaintiff in the bill in favor of his tax-title to the saIne extent the ostensible owners of the land against whom she w"uld now set up ber :J,'esulting trust are bound. He has obtained by hitl/ certificate and the litigation over it thi:l entire title, and the odium which may attach to it for any or unjustly, pannot affect the result. This view of the case has made it quite unnecessary to look into the character of Mrs. Weir's title as she sets it up, or to consider the other objections to the cross-bill, but they seem to me, after full considera.. tion, quite as fatal as that just disppsed of. Her father's will undoubt. edly gave all the property to her mother for the management of tl;te estate as therein directed, and she had the most absolute control and dis. cretion. It is a question its operation was not such as. to into a mere' life,. vest in her an a.bsolute title to all. the estate in one-third only upon her marriagl'l, and subject to such :merely favor of the as do npt;ariseto the dignity of precatory trusts or property j,nterests,ex,cept in the event of. the widow's marriage, which hap.peped. Ander80nv. Hammon4,2Lea, 281. If that be the proper constrllction, it is certain that Weir has no in this property, which her I}'other bought, took in her own name, always
claimed as her own and undertook to devise to othere, especially excluding Mrs. Weir, even though she paid for it with money belonging to her husband's estate, as is alleged. If theIIlother took a life-estate only in the property of her husband, the result is the same as that just mentioned under the doctrine of Vaden v. Vaden, 1 Head, 444. There it was held that the life-tenant owes no duty to the remainder-men exce[Jt to have the 'Corpus of the estate forthcominp; to answer the demand for it, just as it existed at the time the trust was created,-not at the time the life-estate falls in. And this because the life-tenant is entitled to the use, benefits, profits, accretions, and everything except the original corpus, as his own; wherefore, if he puts the money in property, and takes title in his own name, as he may, no trust results in favor of the remainder-man, be· cause the property belongs to the life-tenant, and the remainder-man's only equity is to have the original corpus secured to him by a bill for that purpose, if it can be made to appear that the life-tenant's use need not exhaust it, and there be dangertotheremainder-man. If the life-estate fall in, then the only equity is to an account for the purpose of segregating the original corpus from the accretions and profits which belong to the lifetenant, or those who claim under him by purchase or by will. Whether this doctrine will apply where the life-tenant is invested with a trust for the management of the estate, and with directions to allow the remainder· men to enjoy certain benefits, in the discretion of the life-tenant as trus· tee, may be conceded to be doubtful, if the trust fairly creates an equita· ble estate in the remainder-men, different from the bare remainder itself, and amounting to a share in the profits and accretions. In such cases the nature of the trust may be of that character that the right or interest of the beneficiary in the money invested definitely appears, and becomes fixed in the land as it was in the money used; but ·where the discretion· ary powers of the trustee, as in this case, or other· circumstances, inter· vene to destroy or disturb this fixity of interest in the particular money, no trust results, and this distinction will, I believe; reconcile most of the apparently conflicting cases on the subject. . One cannot read the will of the father and not see that the mother, as trustee, was vested with such a discretion and absolute control that no claim could be set up by any of the children to an aliquot share, divided or undivided, of the money for which she sold the Maury county land, so that a trust would .result in the Memphis property, which she bought, as against any legal title which, in her discretion and control, she thought essential to the interest of all concerned to acquire, or to devise, or to sell. The most that could be asked would be a settlement of the entire trust from beginning to end against her or her devisees under the will. And from the allegations of the original bill it appears that a suit of this kind was had in 1853,' to which .Mrs. Weir was a party, and resulted in a set· tlement leaving the 8tatus of the land as Mrs. Sanders, the mother, had left it by her will, although the bill prays for its sale. Here was an· other opportunity more than 30 years before this bill was filed to set up this reSulting trust, if it existed. But we need not go critically into the of that suit upon her claim here, because it is immaterial whether
XEELY .,. WEIR.
a suit to settle the frost was brought or not; she had a right to bring it, and it was the only right she had. Certainly this kind of a trust does not follow the land into the hands of her mother's devisees; or strangers who buy of her or them at tax-sales or otherwise, but would rather attach to the money which should be the proceeds of such sales, if at all. Moreover, one cannot read the mother's will and not see that by it she was endeavoring to carry out her discretionary powers; not, probably, declared and fixed trusts over the estate, as she understood themi and properly understood them, perhaps. Mrs. Weir, the cross-plaintiff, by her counsel, assumes that the part of the will which 'states, in cuttmg her off with a shilling, as it were, that by her marriage and in her education she had received her equivalent to that which was being bequeathed and devised to the other children, proceeds upon the notion that her marriage itself furnished this equivalent in its advantages derived from her husband. But this is nota necessary inference from the language used, and maybe a wholly gratuitous assumption, for, as counsel on the other side says, if you interpret this language of the mother's will by the language of the father's will, and the mother's evident purpose to keep it in tpind, we may more rationally assume that she: had ,discharged her duty and the trust as to Mrs. Weir by giving to her in her education and at her marriage her full share of the trust funds. The cross-bill is silent as to the facts on this subject, and we do notku6w what they were, but we surely cannot alone on the lill1guage of the will of the mother assume them. to ·be in Mrs. Weir's favor; Certainly,in any view, no trost results in: the land, because there is not found· to exist that most essential feature of such a trust,-the fact that money to which the alleged beneficiary was clearly and unequivocally entitled purchased the estate. The original deed, made more than 50 years ago, states the consideration to have been 3500, and of that sum the crossplaintiff does not distinctly show that she was entitled to one cent; for it Q.oes not appear but that elsewhere in the management of the trust she had received' her full share, as her mother's will assumes she had; and there is not any allegation of a state of the trust then existing to show that she was entitled to a share of that money. It is a delusion to base a claim for a resulting trust on such a state of facts. Yet, again, this claim would seem to be a stale one. If the crossplaintiff's money went into thif'\ land, it was 50 years ago, and she is just now setting it up. If the adverse claim commenced with her mother's will, that was in 1846, more than 40 years before this cross-bill was filed. She avers that her brothers and sisters recognize her claim,and well they may now, since they have lost their own claim through the tax-title and tpeirown billto have it canceled,-but this will of her mother's not only did not recognize it, but especially cut her off from it; and they claim under that will, as do all purchasers from them. Her brQtllers and sisters did not join her in their bill against Keely attacking the ;tax-title, presumably because they supposed she had no interest, and itis delusion again, in my judgment, to suppose that because Keely has not had actual possession under his tax-title more than seven
years, that he can be proceeded agamston'thisstalelclaim ofa resulting trust, any more than the mother could be if she wereliving, or the brothersandsisters if they were parties to this bill, as they,are, some ofthe01. Whatever protects them in a court of equity on, the ground of staleness of demand,:protects purchasers froID,them, ,whether,by,tax-title or otherwise. The cross-plaintiff assumes tliatKeely'spossession under his taxtitle oommenced only in 1880, less ,than seven years ;before the bill was .filed, 'and, not being barred by the statute of limitations, the argument is that the demand cannot be stale as to him. Perhaps ;his possession would be held commensurate with,qis ta,x-tltle, which he acquired in 1864. As to part of the property, he, is alleged to De in possession now, and we are asked to treat him aSRn adverse holder only since his possessioncG'mmenced; and as to another part the .pleadings allege on both sides.that it was a common until the struggle for possession which prodUcedthis bill commenced. ,Urider such circumstances it cannot be assumed tlla,t his possession is recent, to avoid the' staleness of this demand, because, 'if for no other reason, his possession attaches itself to that ofthose whose title he acquited; and the averment of the cross-bill that they recognized Mrs. Weir's claim capnot only ,a conelllsion.Ol; opinion expressed against the will of Mrs.Sanders,denying ,Mrs. Weir auyinterest, andtheconduet of the and sisters in claimiug it to her exclusion by not joining her in their bill against Keely. ,Ifthey did,not join herbecalise tbey recognized her claim, then they : were suing in her behalf,artdsh'e is bound. This'cross+bill is an instrument of defense to theorigina.l'bill; and while, if it Were. itselfan origi'nal, bill, these defensescquldnot!be'made, perhaps:,' or all ofthem could not, pos&bly,by the demurrer, but by plea or. answer only, yet the plaintiff'/!! original bill sets them up by pleadingJthe.former decree as a soureeof title, Or as settlil1gthetitle, and the ·averments oUhe cross-bill, 'taken original bill as to that suit,-and ,;theyare.notdenied,-maKe the record show upon'itsface the estoppel upori'whichthe original pltl.intiffrelies, and he need not therefore plead ,it. 'Demurrer sustained.
WALKER f1. STURBANS. SAME.". CRONKITE. SAME ,f1. HAYCOCK.
(02'rcuit' Court, .P·. 11anBa8.
April 1, 18$9.)
.' JUdgments werlnecoveredagai'nst orie seised of Jandfnanother county, 'and certified' COpillS were filed in ,the clerk's office ot the l,lounty in which the accordiI\g,t? prov!sions of .code .Pr.oc. Kan. § On of,theju<l,gments executIOns,were Issued from the court in whICh they 'were' rendetetl. when plaintiff. alleging his judgment to be prior to the others. brougbt a ,suit in equityagoainattlie Judgment debtor and the other holders of ,judgltleptato ,\ietermine the priorities a!nong'them,f.' that the sherIff'be dire.cted to the land, and for general relie .. Held. that a decree'lid, 'Jull'ting tlle-pHorlties of the several liens, and directing an'executiori to ioSsae