Garry Taylor, Appellant, vs. Lester Noble and James Rogers, Appellees

Garry Taylor, Appellant, vs. Lester Noble and James Rogers, Appellees. fIN CHANCERY.) Where A jioans of B a^.sum of mpnoy for the taking up of public lands; and as security for the repayment of such loan and the interest thereon, for one year, B takes a certificate from the Government office .where the land is entered; in his own name, he lias claim upon the land, and has the disposal of it, subject to the provisions, upon which the money is advapeed;. and if, by the agreement for the loan or advancement of the money, it is stipulated that B reserves the right to convey a part of the* land to a third person, Within, or at the expiration of the time for the repayment of .the mpney and. interest, if he shall consider that such third person ha« a.vejaim thereto, a conveyance by B to suel},. third person will J>0 upheld, provided the conveyance.,is not made in fraud of A andjw done, if) good faith by B.-, Where, in the case statéd, C whs induced to bestow labor, 'aud make improvements, upon lands, of which A had entered a pre-emption right, which was about to expire, upon the assurance by A that he should have one half of the land, and A applies to B to advance the money td obtain a certificate of the land from the fcfovternment and B takes such certificate in his own nanfe as security - for the repayment of the money, reserving the right to convey one half thereof to O, and B does make a conveyance to C in good faithj .and upon the supposition that C is entitled thereto, under the agreement between A and C, and C pays to B the one half the purchase money of the land, the Court will not disturb such conveyance, on a bill filed by A against B and C, who set up and establish such a. defence. This -was an appeal from ’the decree of tlie ¡Circuit Court of Dodge county, heard on bill, answer's and proofs. The appellant filed his bill, claiming and alleging thereby that in the year 1846, he applied to the defendant; Noble, for the loan of #200,00, for one year at, an interest of twelve per cent per annum, in order to entér for the complainant (the appellant) certain lands, belonging to the Government, within the Green Bay District, and proposed to give as security for such loan the land to be located,and upon which the complainant then lived — and that the complainant would, within one year, or within a reasonable time afterwards, pay the defendant Noble, such loan, at the rate per cent aforesaid, and upon such repayment, Noble should convey the land to complainant, (the agreement being, that the land should be entered in the name of Nobid) by a good title. That upon the proposed conditions the defendant loaned the before mentioned sum of money, and upon repayment of the money and interest defendant was to reconvey the premises to complainant. That upon the receipt of the' money, complainant entered the land in question ih thé proper Government Office, in the name of defendant* Noble, and took for him the proper certificate and delivered the same to him — complainant remained in possession of the land as had been previously agreed upon between him and Noble. That in May, 1847, complainant offered to repay the loan aforesaid to Noble, and then demand of him a conveyance of the premises. But Noble refused to receive the money or convey the premises, but agreed to extend the time of the payment of the loan until the first of July, then next ensuing. That before the expiration of the time, granted, complainant caused to be tendered to Noble the amount of the loan, with interest, and demanded a conveyance of the premises. But Noble refused to receive the money or give the conveyance. That at about 'the first of July, T847, Noble, with his wife, conveyed the west half of the quarter Section, fey deed, to Rogers-, one of the defendants, and put him 'into possession. The bill prayed a conveyance of the whole of the land from Noble and Rogers and their respective wives, on payment of the loan and interest, and offered the payment of the same. The bill was subsequently amended, by alleging that Rogers had executed a mortgage upon the premises, to Woodworth, and making him, by said amendment, a party defendant. The defendant-, Noble, in his answer, denied that he entered into the alleged agreement,or loaned the complainant ■the money alleged in the bill — or agreed at any time to convey the complainant the land, as alleged in the bill. He sets up that in June 1846, the complainant and one Rich came to him and-stated that complainant had a preemption elaim on the N. W. quarter of.section 23, which had<exr pired and.that he, complainant, wantedto secure the land, defendant replied that he thought it could, be secured— that he might help complainant and would see him again. That shortly afterwards, Rich stated to defendant that there was a difficulty between complainant and defend-, ant, Rogers, the brother in law of complainant, in regard to.tlie land, and advised him to do nothing about it. Defendant statecLthat if .there was likely to be any difficulty he .would have .nothing .to do with the land. That shortly after this, the .complainant came.to the defendant and, de-¡sáred him to enter the-land or to loan him, the complainant, the money, with which he could do it. That defendant: declined doing either on account of the pending difficulty with Rogers. That soon after the last mentioned interview, complainant called.upon defendant again, at which time, at complainant’s solicitation, it was agreed upon by and between complainant and defendant, no one else being present, that defendant would enter the land in his own name and that at the end of a year he would convey eighty acres thereof to complainant upon his paying $100,00 and interest at 12 per cent, and that defendant, would .convey to the defendant, Rogers, the other eighty, acres upon like payment by him; but if defendant should not,-wish so .to. convey to said Rogers, he would convey the whole to complainant. That under this arrangement defendant entered the land,and upon no other; and paid to Martin Rich, #200,00, to enter the lands in defendant’s, name, and that Rich did enter it,- and returned to defendant a duplicate certificate. That a short tinw before, the.defendant Rogers, stated to-the defendant. Noble, that he, Rogers, had a\pre-emption claim,, qn the. same land, and was; working it, and desired to,hire the. money to enter it,,biff defendant declined to help hipn. That defendant is informed and -believes, that!after the land was entered as .before stated, all differences .between complainant and defendant, Rogers, in respect of, the land, were settled by their, submitting them to,arbitration; and that by the decision of the arbitrators the west half of the land was awarded to Rogers;,- and by said award, Rogers was to pay complainant forty-nine dollars and sixty-nine cents, and should also pay to defendant, Noble, the Government price of that part of the, land, with interest, from the, time it was entered, at the rate of 12 per cent.; and thab Rogers, complied with such award, and paid the complain-., ant and defendant Noble in the manner directed by the-said award. That defendant conveyed the land .•awarded; to Rogers on. the day alleged in the bill. That,on-. th«-. same day of the conveyance to Rogers, defendant ten-., dered a deed to complainant of the residue of the land,.,, complainant stated to defendant that if, he could not have, the whole of the land he did .not want any of it, and re-., fused the deed. That the complainant’s solicitor, before, the time of the conveyance .by. defendant to Rogers, came to him and tendered the necessary money to pay the sum advanced by defendant to enter the land, with the stipulated interest thereon, and demanded, in behalf of complainant, a deed to be given to him of the whole of the land, but defendant did not make the conveyance or receive the money. Denies that he ever agreed to convey the whole of the land to Taylor — or that he received a duplicate certificate from Rich, as security for any pur- * posej but alleges that the certificate belonged to him, de-.. fendant. Sets up, from information and belief* that de¿ fendant, Rogers, went upon the land before it was entered,, made improvements thereon, under the promise by complainant, that he should have one half the land, and that complainant had recognized the right of Rogers to the west half of the land. That the defendant made the conveyance to Rogers in accordance with his stipulation with complainant, and before the land was entoi'ed. The defendant Rogers, set up, in his answer, that he received a deed of conveyance of one half the land in question' from the defendant Noble, in pursuance of an agreement made between them. That in the winter of 1846, complainant requested defendant to come to him* the complainant, stating that if defendant would come and live with him, defendant might have one half the land in question. That defendant did go; complainant then told him he might have the west half of the land, and complainant went with defendant and ran the line. Complainant was then living on the east half of the land. Defendant then, commenced working the land and built a house thereon, in July, 1846, and has since resided there-. That in June, 1840, defendant told complainant he thought complainant’s pre-emption claim was not good; and complainant replied that if defendant thought so, he might claim the said land, and defendant did, on the 10th day of June, of that year, file his pre-emption claim to the whole. That differences and disputes arose between defendant and complainant in regard to the land, which were submitted mutually, to the arbitrament of Rice, McConnell, .and Perkins, who met, and heard complainant and defendant, and awarded that defendant should have all the right and interest ,of complainant, in the west half of the land, and that defendact should pay complainant forty-nine dollars and sixty nine cents; and defendant paid the sunt awarded to the complainant and supposed c'dthpláinanl satisfied. Proofs were taken on the part of complainant and 'defendants in regard to the arrangement and agreement between the complainant and the defendant, Noble, in regard to the entering the land in question; considerable of which was vague and uncertain, tending on 'thé one hand, to show that it was an agreement between complainant and Noble, alone, and in which the defendant Rogers, had no right or interest; and, on the other Hand, that the defendant, Noble, reserved the right of convoying to the defendant,Rogers, one half of the land, if, in his own opinion, at the expiration of a year, he should think proper to do so. Much vague and uncertain testimony was also produced on the part of the defendants, whereby it was claimed to have been shown that an arbitration had been had between the complainant and the defendant, Rogers, as to the right of the latter, to the one half of the Innd, and an award to that effect, made in his favor. But it did not appear that any other than an oral award • was made, and that quite uncertain, as to the terms, and the subject matters émbraced in it. Proof, also,-was taken, the effect of which, fit was claimed by the defendants, estab* lished the fact, that the complainant had induced! iKe defendant, Rogers, to remove upon the land' an'd improve it, finder the promise from the claimant that he' should have the one half of it by paying the-government price; but ‘this proof was presumptive, ratlief tfiah' direct and. positive. The Circuit Court decreed a conveyance by the defendants, Noble and Rogers, to the complainant, of the whole of the quarter., section, upon the payment to Noble, by the complainant, of two hnndred dollars, and interest thereon, at the .rate of twelve per cent, per annum. From this decree the defendants appealed, to this Court. Collins BilUnghurst, counsel for appellants, made and argued the following point?, viz: 1st. That the .complainant’s .evidence did,not establish, the agreement set out.in the bill. That if a contract be vague and uncertain, or. the evidence to .establish it.be insufficient, Equity Courts .will not enforce it. 2d Wheaton’s Rep., 336. 1 Young. 348. 3d, Yerger, 18. 5 Wen,dell, 638., 6 John Ch. R., 222. 1 st,Desausure, 250. 2d. That the answer set up a different agreement from that alleged by the bill. That in such. a case a complainant could not have a decree, unless he prove the contract he has set up aliunde; and that, in this qase the Complainant had failed to do. lsi Peters C.- C., 380; 3' Iftfiurdock, 33. 3d. .That the answer of a.defendant is to be held evi-. ■dence until disproved by two .witnesses or what is equl-. valept. Story’s Eq. PL, Sec. 875. lsi Story 172. That the oath of the defendant to , the answer put in by. h,im cannot be waived by the bill, except by the consent of the parties, or the order of the Court. lsi Hof,. Ch. Pr., 234. ■ 2 Paige 307. lsi Barbours Ch. Pr.t 143; 107’an<|.85. 4th. That if the agreement set out in the bill had been proved as stated, it was afterwards varied by parol, upon consideration paid therefor. Hence Equity will not decree a performance; 2d Story Eq. Jur. 92 § 770 and note 1, page 95. That the consideration consisted of the relinquishment by Rogers of his pre-emption of 'the 'land. 5th. That the acquiescence'bf 'Taylor and Rogers, in 'the award made between thena, embraced and-settled the 'conflicting claims for the land. 5th Little's 'Rep. 71. 6th. That the submission to arbitrate the disputes between Taylor and Rogers being voluntary, and they acquiescing in the awkrd made, and Rogers having paid and Taylor received the sum awarded, though not such ’kn arbitration as 'the Statute 'contemplates; yet the parties to it were bound and concluded by it, so far as ■Chancery is available to give relief. ■ 4f/i Peck. 507; 2d, •Story Eq. Jur., 926 § 1458. 7th. That complainant never, in fact, offered to refund to Rogers the amount awarded by the' arbitration, 8th. That the answers were fully sustained by the ^proofs, 'Connit and Gillét, counsel for the'appellees, made-and argued the following points: 1st. That'the equitable title of tbeland in question ’was '■in complainant, and that the defendants, Noble !and Rogers, were his trustees. 1st John. 'C: M. 582. 1st ■John Ch. R. 566. Story's Eq. Jur., .§ 1260. 2d. ■ That no valid contract has been shown under which Rogers can claim any part of the land. 3d. That the assumed arbitration between complainant and Rogers, had no validity or force to affect the title of the land in the complainant. 4th. That if there were any validity or force in the arbitrament and. award, it could only be enforced by a bill in Chancery. It could not be enforced in this suit unless such a case had been proved as would have entitled Rogers to a decree for a specific performance, had he filed a bill for that object. 5th. Whether the award was valid or not,, Noble acquired no right, oi; power to convey to Rogers as based upon such awai;d, and in hostility to the claim of Taylor. 6th., The gwayd was not in conformity with the Statute. Old Revised Statutes, 279* 7th. The decree should be modified so as to give Noble interest on the money advanced,by him up to the time it was tendered him by coipplainapt, apd as to all else it should be affirmed. [MAJORITY — Hubbell, J.] By the Court. Hubbell, J. Taylor, the complainant, and Rogers, pne of the defendants* who are brothers-inr law, in dune, 1846, resided on the lands which a..re the subject of the present controversy. Both had made substantial improvements, but neither had a pre-emptive right, nor the means of purchasing the land. from, the Government.' In this state of things, Taylor applied to Noble for a loan of two hundred dollars to enter th,e land; and a,n arrangement was finaljy made, by which the money was advanced. Noble, however, declined wholly to interfere in the matter, unless he could have the right to convey one-half of the land to Rogers, in case he should think it proper to do so, within one year. Subject to this express condition, the money was put into the hands of Taylor, and the title of the land was taken in Noble’s name, to secure the repayment of the, money with twelve per cent. Interest, at the end of one year. Pursuant to the alleged stipulation, Noble conveyed eighty acres of the land to Rogers, on the payment to him of one-half of the money advanced and interest. Taylor- files his bill to compel a conveyance to him, by the defendants, of the whole one hundred and sixty acres. This is the whole case, as I understand the testimony. It is not material to inquire whether there was a technical borrowing of the money by Taylor, or, whether he became liable to repay the whole principal and interest Noble advanced the money voluntarily, and had a perfect right to dictate the terms of the arrangement; and Taylor, by accepting it, became bound by those terms. , As the money was advanced with the alleged condition annexed, the conveyance to Rogers was perfectly legal and proper, unless there was some fraud or oppression in the proceeding; and I can discover nothing of the kind. On the contrary, the motives and conduct of Noble seem to have been equitable and commendable; securing to both oi the parties an equal share of the Government land on which they had settled with the just expectation of obtaining a title. Whether the division lines were struck precisely where the respective interests of the ocenpants, if nicely balanced, would require, this ■Court cannot determine, because the testimony does not show that any specific bound was fixed, in the arrangement between Taylor and Noble. It is enough that substantial justice was done. Much testimony was produced to show that all the differences between the parties had been settled by a friendly arbitration before the filing of the bill. The binding force ■qf common law arbitration, when properly conducted, is not to be denied. But, in the present instance, the proceedings are quite too 'loose and uncertain to admit of their being adopted and enforced by this Court; and this ” decision would not be materially varied if they were. ■ The decree of the Circuit Court is erroneous, for the ■reasons before stated, and it must be reversed with costs.