Fisher v. Fields — 10 Johns. 495

Majority

p. 503

John Fisher and others, Appellants, against Joseph C. Fields, Respondent.

Headnote

G., a soldier in the JVew> York line of the United States nrmy> the revoii tionary war, received a regular discharge, and was entitled to bounty-land, under the acts of the legislature of the state. In March, 1784, he sold his right to B., to whom he delivered his discharge, on which was the following certificate, under his hand and seal: “ This is to certify, that the bearer hereof, 1 ti., is entitled to all the lands that I (B. G.) am entitled to, either from the state or continent, for my services as a soldier, certified in my discharge.” It was proved that B. paid to G , at the time, 15 dollars, in consideration of the transfer, and that such was the usual price of soldiers’ rights at that time. Afterwards, in 1792, the persons to whom B transferred the right so acquired, sued out a patent for the lot of land to which G. was entitled, and which, by the direction of the statute, war. issued in the name of G. F., with knowledge of the transfer to B., some years after-wards, purchased the land of G., and took a regular conveyance from him, in 1794, for the consideration of 250 dollars, and brought actions of ejectment against the persons holding under B.

It was held, that in 1784, before issuing the patent, G. had only an equitable claim; and that the certificate endorsed on his discharge, being an assignment of his equitable interest, transferred his whole interest, and was su flick nt, for that purpose; without any words of inheritance or consideration expressed in the instrument. 11 amounted to a declaration of trust, and was a sufficient authority to B. to procure a patent in his own name, had not the statute directed it to be issued in the name of the soldier; and that after the patent, G. took it as a trustee to B , having the equitable interest; especially, as the act of the 6th of JlpriL 1790, provided that previous sales and dispositions of the lands made by soldiers should be valid, and the patent having a retrospective effect, must be deemed to have vested the land in the patentee and his heirs, from the 17th March, 1783.

No particular form of words is requisite to create a trust; the intent only being regarded by courts of equity.

A trustee, or csstinj que trust, will take a fee, without the word heirs, when a less estate will not satisfy the object of the trust

A trust is now what a use was before the statute of uses. It is an interest resting in equity and. conscience, and the same rules apply to trusts, in chancery, as were formerly applied to uses B., therefore, or the persons to whom he had assigned, were entitled to a decree for an adequate legal conveyance from F.: and F. was enjoined from proceeding at law, on the deed from G. or to sefli up against the claim of R., or his assignees. i

THIS cause came before the court, on an appeal from a decree of the court of chancery.

The appellants filed their bill in the court below, which stated, that letters patent were granted to Benjamin Griffen, a soldier

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in the second New- York re~irnent. in the revohtionarv war, f~r lot No. 51. in the township of Aurelius. On the 24th of March 1784, Griffin, for a valuable consideration, sold his right to lands for military services, to John Birch, and made an assignment (hereof 0n the back of the discharge given to him by the commander in chief. On the 1st of February, 1792, Birch sold and assigned the right to Bartholomew Fisher, for himself, and his brothers, John and George Fisher. Under the acts of the 8th of January, 1793, and the 27th of March, 1794, the assignments were deposited and registered, on the 1st of September, 1794, according to law. About the month of July, 1792, the Fishers sued out a patent for the lot to Griffen, which was minuted in the office of the secretary of state. On the 23d of December, 1793, Bartholomew Fisher conveyed his third part of the lot to James Saidler, James R. Smith, and Robert Pettit; and they, on the 31st of December, 1794, conveyed the same to John Fisher, one of the appellants. George Fisher died intestate, on the 17th of February, 1797, leaving his son John, and two daughters, to wit, Maria, the wife of Peter Clark, one of the appellants, and Eleanor, the wife of James B. Clark, his heirs at law. On a division of the real estate among those heirs, the 28th of June, 1800, the lot in question fell to the share of Maria Clark, to whom her brother and sister executed a release.

March, 1812

ALBANY,

Understanding that the respondent ^pretended to have a title to the lot, the appellants, about the year 1797, put in a claim to if, before the Onondaga commissioners, who advertised the same for hearing on the 5th of June, 1798, and on the 26th of February, 1799, awarded the lot to the respondent, in trust for the appellants. The respondent produced before the commissioners. a conveyance from Benjamin Griffen, of Fredericks town, for the lot in question, dated the 15th of March, 1794, purporting to have been given for the consideration of 250 dollars; but the commissioners considering this deed to have been a fraud on the appellants, were of opinion that the respondent took the lot subject to the rights of the appellants.

The bill further stated, that the defendant had commenced suits at law against the tenants of the appellants, in order to turn them out of possession; and they prayed, 1. That the respondent might be directed to convey the premises to them; 2. For an injunction to restrain the respondent from proceeding fur-, ther at law; and, 3. For general relief.

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The answer of the respondent admitted the issuing of the patent to Griffen, but denied that he knew or believed that Griffen had sold to Birch, and stated that he was ignorant of the transfer to Fisher, the issuing out of the patent to the Fishers, the conveyance to Saidler and others, the death of B. Fisher, and the subsequent division among the heirs, &c. He admitted the proceedings before the Onondaga commissioners, but averred that he had dissented from their award; that he produced his deed before the commissioners, and insisted that he was a bona fide purchaser without notice; he admitted that the consideration paid by him to Griffen did not amount to the sum expressed in the deed, but averred that before the date of the deed and after, he paid above 50 pounds to Griffen, as a consideration for the lot, but how much more than 50 pounds, or on what particular days the payments were made, he could not recollect; that 10 or 15 pounds were paid in merchandise, 12 pounds in a cow and calf, and the residue in money; but he did not offer to pay any further sum to Griffen. He also admitted that he had brought five suits in ejectment against the tenants, which he intended to prosecute.

John Sandford, a witness, deposed, that' in the year 1784, he was present when Benjamin Griffen, the soldier, sold his right to John Birch, for the sum of 15 or 16 dollars, which Birch paid. Griffen, and which was the usual price for soldiers’ rights at that time; and that it was usual, on such sales, for the soldier to deliver his discharge to the purchaser.

The witness proved the following instrument, to which he was a subscribing witness: “ This is to certify, that the bearer hereof) John Birch, is entitled to all the lands that I, Benjamin Griffen, am entitled to, either from the state or continent, for my services as a soldier, certified in my discharge. 24th of March, 1784. Benjamin Griffen(Sealed.) On the certificate also was certified an oath taken by Griffen, before a magistrate of the city of New-York,on the same day, that he had not sold or otherwise disposed of the lands he was entitled to from the state or congress.

Griffen, who was produced as a witness, deposed, that he served as a soldier in the army of the United Stales, and resided in Dutchess county; that in 1785 he was in JSew-York, in company with several of his fellow soldiers, among whom was SandJord and Birch, who appeared to be partners in the business of speculating in soldiers’ rights to military lands. The witness had been drinking freely, when Sandford asked him,, if he would gel

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his discharge, which he agreed to do for two or three guineas. He did not recollect what followed, being intoxicated at the time 5 kut the next morning he asked Birch for the money, who said tjiat he had paid him, and the witness had laid it all out in liquor. yje ¿¡¡¿ not know that by selling his discharge he had parted with his right to the military lands. Five or six years after the above transaction, Fields sent for him and asked him if he had ever sold his military lands; the witness answered that he had sold his discharge to a man in Nerv-York, but did not know that he had sold his lands. Fields asked the witness if he would take 60 pounds for his lands; the witness replied that he would not take less; but it was. finally agreed that the witness should have 60 pounds. At the time of the conveyance no money was paid, but Fields gave up a note which he had against the witness for 71. Is. and the wit-, ness received from him a cow valued at 12/., and afterwards received some money; the whole amount received by the witness towards the consideration was about 60/.

Another witness deposed,' that in the latter part of 1793, or 1794, Fields told him that he had bought Griffen’s right, and had a good title for it; that Fisher had nothing more to show for his title than a mere receipt, or a few lines written on the back of Griffen’s discharge, which was no deed, and would not hold good in law. Fields said “ he had paid Griffen a sum on a venture, and that if he recovered the land, he was to pay him more.”

Another witness deposed, that fifteen or sixteen years before his examination, Fields told him he had bought Griffen’s military lands. The witness remarked that he did not believe that Fields would ever get them, as the witness had once applied to Griffen to purchase them, and from his representations it appeared he had parted with his right to Fisher, and that the witness knew the ■ Fishers were in the practice of buying soldiers’ lands, and he did not believe they would buy Griffen’s discharge and wages, and nothing more; and that he believed Fields would have trouble. Fields answered, that Griffen had declared that he had not sold any thing but his discharge and wages, which was not selling his lands, and that Fisher had never paid any thing for the lands. The Fishers were partners in the purchase of lands.

Ephraim Marvin deposed, that he was present, in 1794, when Griffen executed the deed to Fields, and was a witness to it. Fields asked Griffen, at the time, if he had ever sold his right to lands, and Griffen answered he had net, but that he had signed a

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paper respecting it to some other person, .whom he did not name. The discharge was not asked for, or produced. Some money and goods were delivered to Griffen, at the time, but how much the witness could not recollect, nor whether it was on account of the lands.

It was also proved, that in 1800, or 1801, Griffen confessed that he had sold his discharge, or pay and military lands, to Birch, for a small sum of money, and that he had delivered the discharge to Birch; and Griffen, afterwards, in the presence of the witness, acknowledged the conveyance to Birch. Griffen said, that sup» posing the conveyance to Birch not to be good, he had sold his chance of getting the lands to Fields, who had given Mm a heifer, and was to pay him a great deal of money in case he could get the land; but that as Fields had neglected to pay him, he bad made a conveyance to Wallace, and that Wallace having refused to pay him, he intended to appear before the commissioners and claim the land himself.

James Knapp deposed, that in the autumn of IT94, Fields told him that he had, a short time before, purchased of Griffen his military lands, and was to pay a small part of the consideration money at all events; and if the lot was recovered he was to pay the residue. Fields said Griffen informed him, at the time, that he had given his discharge to John and Bartholomew Fisher, to obtain the patent for him, and that he had sold them his pay, but not his land. Fields expressed his fears and suspicions that Griffen had sold to some one else, and asked if such sale would be good, and hold the land, if no deed had been executed.

The instrument from Griffen to Birch was acknowledged on the 15th of February, 1802, before a master in chancery, who certified that a person well known to him, appeared and made oath that he knew Griffen, &c. who had signed the within certificate, and that he was the identical person, &c. and Griffen then acknowledged that he had executed the certificate for the purposes therein mentioned, &c. On this proof, the instrument was entered for record, on the 18th of February, 1802, with the clerk.

The other proofs and exhibits in the cause deduced the title to the lot in question, to the appellants, but it is deemed unnecessary to state them.

The cause was brought to a hearing in the court below: and

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on the eighth of May, 1809, the chancellor pronounced his decree, that the bill of the appellants be dismissed, with costs.

The reasons for the decree were thus assigned by

The Chancellor.

The controversy in this case arose on the validity of the certificate endorsed on the discharge of Benjamin Griffen to John Birch, as a conveyance of the right of the former to certain lands, to which he had become entitled for his services in the revolutionary war.

The deduction of the legal rights under that certificate, to the appellants, if it was valid, was not questioned.

But on the part of the respondent, it was insisted,

1st. That the certificate was a nullity as a conveyance, no consideration being expressed in it.

2dly. That as a contract, it was void by the statute of frauds. The act of the 11th May, 1784,^[11] directed letters patent to issue to the persons entitled, to be located in the manner therein prescribed ; thus vesting the right of location in the persons for whose services the bounty had been provided, or those entitled to their interests; but requiring a combination of the acts of the party, the surveyor-general, and the board of commissioners of the land-office, to attach their equitable floating interest in its locality to a particular parcel of land. The letters patent were by that act to be granted to the persons whose services they were intended ta remunerate;^[12] but, intermediate the origin of such right, and obtaining those letters patent, none other than such floating interest'existed. It, however, related to land, and every agreement or assignmentrespecting it must be tested by the legal principles applying to land.

The 10th section of the act for the prevention of frauds,^[13] which is of an import similar to the 9th section of the 29 th Car. II. c. 3. enacts, that no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest,' of, in, or out of any messuages, manors, lands, tenements, or hereditaments, shall at any time thereafter be assigned, granted, or surrendered, unless it be by deed or note, in writing, signed by the party so assigning, surrendering or granting the same.

The 11th section of the same act corresponds with the 4th section of the 3d chapter of the English statute, which enacts, that no action shall be brought, §tc. under any contract or sale of lands, tenements or hereditaments, or any interest in or concerning thema

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unless the agreement, upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party charged therewith.

The endorsement on the discharge merely Birch is entitled to all the lands which Benjamin Griffen is entitled to, either from the state or the continent.

No consideration is expressed, and no words legally competent to convey have been made use of. If the intent was clearly to be inferred, the formal granting words might be supplied; but the effect of the want of consideration is not so easily surmounted.

This certificate, in its terms, is neither a contract nor a grant 5 It is not a note of a contract, for it does not specify the stipulations on either side. If it operated as a grant, it could only be for the life of the grantee, as there are no words indicating an intent of disposing of the inheritance; and there are no circumstances disclosed from which that intent can be collected; for the word “ entitled” is perfectly vague and indefinite, and equally susceptible of being applied to an estate indefinitely as to duration, whether for years, for life, or in fee.

The construction of the.4th section of the English statute has been given in the case of Wain v. Warlters,^[11] that the consideration is part of the agreement, and the whole agreement must be set forth.

The doctrine of nudum pactum is there said not to be altered by the statute, for it did not mean to enforce any promise not valid before. The consideration might be illegal, or the promise might have been made on a condition precedent. The statute requires the agreement to be in writing, but here there is no consideration, which must be part of the agreement, to support it

The solidity of this reasoning has since been admitted, and enforced, and distinguished from the 17th section of the statute.^[12]

The same doctrine has been adopted by the supreme court of this state,^[13] and the exposition of the statute must be alike both in the courts of common law and in equity. The statute is equally binding on both, and there appears to be no ground for the distinction attempted on the part of the appellants.

On these grounds I was of opinion, that the complainants’ bill ought to be dismissed, with costs.

Van Vechten, for the appellants,

contended, that the only question was as to the validity of the instrument given by Griffen ti>*

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Birch. It is not void for want of a consideration. It was not n@= • cessary that the consideration should be expressed in the deed; it is enough that a consideration was averred in the bill, and proved.^[11]

The instrument is not void by the statute of frauds. The cases relied on by the court below apply only to undertakings by third persons. The 14th section of the statute-)- merely requires that all grants and assignments of trusts should be in writing signed by the party. The instrument or certificate in this case amounts to a declaration of trust. The soldier had only an equity founded on the concurrent resolutions of the legislature, and the several acts passed. The act of 1790 allows the patent to be issued to the soldier, and to relate back; and recognises and,confirms these assignments by soldiers, as transferable interests. Birch had the beneficial interest; and Griffen was merely a trustee for him. If there had been competent words of conveyance, the party would have had his remedy at law, and the court of chancery would have had no jurisdiction. Equity regards the intent and not the words of an instrument. The affidavit of Griffen, accompanying the certificate, shows that it was his intent to convey his claim to Birch. The instrument was an assignment of an equity, and sufficient for that purpose.^[13]

Again, the purchase by the respondent was made with notice of the claims of the appellants. Whatever is enough to put the party on inquiry, is sufficient notice.^[10] This the respondent had ; and he is not, therefore, a bona fide purchaser.

Henry and T. A. Emmet, contra,

said, that the respondent did not rely on a want of notice, but on the ground of the validity of the transfer of the soldier’s right to Birch. What equity has a soldier in a mere gratuity, or bounty-land ?

The agreement has no granting or operative words to make it a conveyance. There is no consideration expressed; though it was averred in the bill, and proved. The quantity of interest is not expressed, and that must appear from the instrument itself. It cannot be shown by any thing extrinsic, or dehors the deed. If it was a conveyance, then it was only of a use for the life of Birch, and the appellants had a complete remedy at law, and are not entitled to come into a court of equity. If it is an agreement only, then, under the statute of frauds, nothing can be supplied by parol. But it must be complete and explicit, in itself, as to the consideration, the want of. which cannot be supplied by parol, unless alleged to

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have been omitted by fraud or mistake, which is not pretended.^[11] Under the statute of frauds, the consideration of an agreement is an essential part of it, and must appear on the face of the contract. This has been repeatedly decided, both in England and in this eountry.^[12]

The bill does not seek to reform a contract on the ground of fraud or mistake; but it seeks a specific execution. This court cannot add words of inheritance, and change an estate' for life into a he. A court of chancery will not decree the specific execution of a defective contract.^[13] It must first be reformed.

The appellants seek equity; but is it equitable to enforce such a speculating contract made with a drunken soldier, selling his right for a song ?

The appellants claim title to lot No. 57. in Aurelius, under a deed from Benjamin Griffen, the soldier who drew the lot, and in whose name the patent issued. This deed was made on the 27th of March, 1784, and was drawn on the back of the original discharge, and though no consideration was expressed in the deed, yet the appellants have averred and proved a valuable consideration given. The respondent claims under a subsequent conveyance from the same soldier; and the sole question is, whether the appellants are entitled, under the first deed, to the relief prayed for by their bill.

It is not pretended that the respondent is a bona fide purchaser without notice. It is in proof that he purchased with a knowledge of the assignment to Birch, under whom the appellants claim; but the defence is, that the soldier’s deed to Birch was not sufficient, in law or equity, to entitle him to the land, or, at least, to any greater interest than a life estate.

The Onondaga commissioners appear to have thought otherwise; for they awarded that the equitable title was in the appellants, and that the respondent held in trust for them. After a car ful consideration of the case, I am of the same opinion.

When the soldier assigned over his right to Birch, in 1784, he had no legal title. He had only an equitable claim upon the state, founded upon the concurrent resolution of the legislature, of March, 17 83. It was not requisite, therefore, that he should make use of the same formal and technical conveyance that would have been proper, if he was conveying an estate in fee. It was only an assignment of an equitable interest, and it was sufficient

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■ if he used words that denoted clearly and explicitly his intention. The deed here was on the back of his discharge, and it declared Birch was entitled to all the lands that he was entitled to, either from the state or continent, for his services as a soldier. T’his was a full declaration of trust. No person could possibly ' mistake its meaning; and there is no just pretence that it was not fairly procured, and for a price that was, at that day, deemed an adequate consideration. It is probable that a large portion of the titles to the military .lands were originally assigned in the same brief manner. It was an authority to the assignee to receive the patent to his own use ; and if the law had not afterwards directed the letters patent to issue, in all cases, in the name of the soldier, this authority would no doubt have been deemed suffi- . cient .to have procured the patent in the name of Birch, or his assignee; The issuing of the patent in the name of the soldier did not invalidate the equitable claim of Birch; for the soldier took it as trustee to the party to whom the equitable interest . had been transferred.

The act of the 6th of April, 1790, expressly provided that “ all grants, bargains, sales, devises and other dispositions” of the land made by the soldier, before the issuing of the patent, should be deemed valid. It also declared that the patent should have a retrospective effect, and that the land should be deemed to have vested in the patentee and his heirs, from the 27 th of March, 1783. The act of the 5th of April, 1803, went still further, and declared that the lands should be deemed to have been vested in the soldier at the time of his death, though he died before the 27th of March, 1783. These statutes were made not to devest, but to confirm and enlarge the interest which the soldier may have passed before the date of the pat ent. The statutes were made for the benefit of purchasers, and to render their titles valid in a court of law, equally as if the soldier had been seised in fee at the time of the conveyance. And ■courts of law, when any such conveyances are brought before them, are to give them the same operation as if they had been executed by the party seised; and such have been the decisions of the supreme court.

But these statutes never meant to weaken or defeat any equitable trust which may have been created by any deed competent to raise such a trust, though incompetent to convey the fee at law. The court of chancery has exclusive cognisance of cases of trust, and is charged with the duty of seeing them fulfilled ; and in doing so it acts in furtherance of the liberal pro

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visions and intent of the statutes. Suppose that‘Griffen, instead of the deed in question, had executed a bond to Birch, and bound himself, by the consideration which it is proved he received, to convey that interest to Birch, or such other person as Birch should appoint, would not equity compel him to execute that trust ? Most undoubtedly 5 and so it was decided in a case which I shall presently mention.

There never was a greater mistake, as I apprehend, than the supposition that this transfer of the soldier’s right to Birch is to be tested by the strict technical rules of a conveyance of land at; common law, and that Birch did not take the whole interest of the soldier, because the word heirs was not inserted in the assignment.

If Griffen, at the time, had been seised in fee of the land, as an estate at law, the argument would have had weight. But surely that formality was not necessary to pass a mere undefined claim upon the government, for Griffen had nothing else to convey but an interest in trust. That would be contrary to all the rules relative to the creation or assignment of a trust. The act of 28th February, 1789, on this very subject, is sufficient to justify a contrary conclusion; for that act directs the commissioners of the land-office to require from each soldier entitled to bounty lands, an assignment of his claim to lands under any act of congress, to the surveyor-general, for the use of the people of this state. There is no particular form of an assignment given, nor any thing intimated about a conveyance with the usual and apt words of inheritance. No doubt such an assignment, as the one in this case, would have been deemed sufficient to vest this state with the interest in the .soldier’s claim upon congress, and I am persuaded, that if the fact were investigated, no more formal assignments were taken.

It is a well settled principle, that no particular form of words is requisite to create a trust. The intent is what the courts look to. (2 Fonb. 36. note. 3 Ves. jun. 9.) A trustee or cestuy que trust will take a fee without the word heirs, when a less estate will not be sufficient to satisfy the purposes of the trust. This has been frequently ruled in chancery, and the court of K. B. during the time of Lord Mansfield, made the same decision at law. (2 Atk. 72. 578. 1 Ves. 491. Amb. 93. 3 Burr. 1684.) In Moorecroft v. Bowding, (2 P. Wms. 314.) A. purchased an estate in the name of a third person, who gave a bond to convey it to such person and uses as A. should appoint; and the lord chancellor held that the third person was a trustee to A., who had, in

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equity, a specific right to the land, and he was decreed to convey. Here, a bond was held sufficient to create a trust in fee. But what puts this point beyond all doubt, is the doctrine of the common law on the subject of uses and trusts. Before the statute of uses, if a man had bargained and sold his land for a valuable consideration without inserting the word heirs, the court of chancery would have decreed an execution of the use in fee, because the use was merely in trust and confidence, and because this was according to the conscience and intent of the parties. But after the statute of 27 Hen. VIII. as the uses were transferred and made the legal estate, a different rule took place. (1 Co. 87. b. 100, b.) ,A trust is merely what a use was before the statute of uses. It ' is an interest resting in conscience and equity, and the same rules l apply to trusts in chancery now which were formerly applied to v uses. And in exercising its jurisdiction over executory trusts, the court of chancery is not bound by the technical rules of law, but takes a wider range in favour of the intent of the party. This principle seems to be well established, and it has been ably vindicated by Fonblanque. (Vol. 1. 396. note. 400. note. Vol. 2. 18.)

To apply, then, this doctrine to the present case; the soldier, after the assignment of his claim upon the state to Birch, and after the issuing of the patent in his name, became seised in trust for Birch, or those to whom Birch had assigned his interest; and instead of dismissing the appellants’ bill, the court of chancery ought to have decreed an adequate legal conveyance to be made by the defendant to the appellants. The defendant purchased of Griffen knowing of the assignment, and, therefore, he was a purchaser chargeable with the trust, and as much bound to execute the trust as the soldier himself. The clearest justice, and clearest principles of a court of equity are in favour of such a decree.

A good deal was said, upon the argument, about the statute of frauds, but it appears to me that the objection is wholly inapplicable. This is not a case of an agreement about the sale of lands ; it is a complete assignment by deed of an equitable claim; and the 12th section of the act (sess. 10. c. 44.) says, that all declarations or creations of trust, or confidence, of any lands, shall be proved by some writing, signed by the party enabled to declare the trust.

My opinion, accordingly, is, that the decree ought to be reversed.

having formerly given an opinion, and being re

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lated to one of the parties, did not sit or give any opinion in the cause.

It being the unanimous opinion of the court that the decree of the court below ought to be reversed; it was thereupon ordered, adjudged and decreed that the decree of the court of chancery be reversed; that the respondents be decreed to convey the premises, in the bill of complaint mentioned, to the appellants, and that the respondent be enjoined from further proceeding at law upon the deed from Benjamin Griffen, as set up in his answer in the court below, and that the record and proceedings be remitted, &c.

Judgment of reversal.