1. When a party offers in evidence an instrument concerning real
estate which has been acknowledged or proved so as to be admitted
to record and read in evidence, the burden of proof is on the party
denying its execution. The fact that a person whose name is signed
as a subscribing witness is alive and is not called to testify
leaves a strong inference that its execution cannot be
disproved.
2. A woman married a man by whom she became the mother of two
children. She subsequently discovered that he had a wife living
from whom he had not been divorced. He then made to her an
assignment of a mortgage.
Held that the assignment was a
meritorious act and not impeachable for immorality of
consideration.
3. The difference between a judgment and writ of partition at
common law, and a partition by decree in chancery as it affects the
title is that the former operates by way of delivery of possession
and estoppel, while in the latter the transfer of title can be
effected only by the execution of conveyances between the parties,
which may be decreed by the court and compelled by attachment.
4. Some of the states confer upon their chancery courts
authority to make such a conveyance by a master commissioner, or
they provide that the decree itself shall operate as such
conveyance and vest the title in the parties to whom the premises
have been severally allotted; but where, in a suit in equity for
partition, no such authority or provision exists, the proceeding,
while it may be effectual as a division and an allotment of the
property, does not pass the title thereto.
5. Where a decree erroneously declared the nature of the estate
of each co-tenant, and three days thereafter deeds
inter
partes were made which do not follow the decree, and where,
twelve years afterwards, a bill in chancery was brought to perfect
the partition by compelling conveyances in accordance with the
decree, the court may inquire into the equities of the parties
arising out of the surrounding circumstances, and refuse to order
conveyances in accord with the title as found by the former decree,
when it would be inequitable to make such order.
6. If such former decree was made by consent of the party
against whom the error was committed, and who received no valuable
consideration, and if no one is interested but volunteers, or those
who purchased with full notice of the facts, no order for
conveyances will be made, but the parties will be left to rely for
their title on those which were interchangeably made to each other
in accordance with the respective allotments.
7. No person can be an innocent purchaser for value under the
first decree who was attorney for the plaintiff, and who purchased
from him while the suit to enforce it was pending.
Page 106 U. S. 680
MR. JUSTICE MILLER delivered the opinion of the Court.
This is an appeal from a decree of the Circuit Court for the
Northern District of Illinois. The issues raised by the pleadings
are so well stated in the opinion of the district judge, sitting in
the circuit court on rendering the decree, that we cannot do better
than to state them in his language.
"By the original bill the complainant Elizabeth Flaglor charged
that she was the sole surviving child of Charles D. Flaglor,
deceased; that one Augustus Garrett died in the City of Chicago
some time in the year 1848, seized of lot 25, in block 9, in the
Fort Dearborn addition to Chicago, together with a large amount of
other real estate, leaving Eliza Garrett his widow, and no children
nor descendants of a child or children, and leaving a will, which
was duly probated in Cook County, whereof said widow, Eliza
Garrett, James Crow, and Thomas G. Crow were duly appointed
executors, in which will said Garrett duly disposed of and devised
his estate, and among other devisees in said will was the said
Charles D. Flaglor; that in the year 1851 a bill for partition was
filed in the circuit court of Cook County by said Eliza Garrett,
James Crow, and Thomas G. Crow against Letitia Flaglor, Frederick
T. Flaglor, and Charles D. Flaglor, and Lucy Louisa Flaglor and
Elizabeth Flaglor, children of said Charles D., all of whom, it was
alleged, were interested in said will; that upon the answers of the
defendants to said bill, proofs taken, and the report of
commissions, a decree was entered that partition be made of the
real estate of which said Augustus Garrett died seized, among the
persons to whom the same was devised by said will, and said lot 25,
in block 9, was allotted and set apart to said Letitia Flaglor
during her life, remainder over to said Charles D. Flaglor for his
life, remainder in fee to his children him surviving, and on
failure of children him surviving the fee to
Page 106 U. S. 681
said James Crow and Thomas G. Crow; that the parties entered
into possession of the several parcels of real estate as set apart
to them, and executed and delivered to each other interchangeably
deeds of conveyance, so as to invest each of the parties to said
bill with the title in severalty to the portions of said estate so
set apart and allotted to them, and also a certain written contract
in regard to the interests of the children of said Charles D. in
the property set off to said Letitia and Charles D."
"The bill then alleged the death of said Letitia and Charles D.
Flaglor, and that complainant Elizabeth was the sole surviving
child of said Charles D., and entitled as such to an estate in fee
to the lands so set off and allotted by said decree to said Letitia
and Charles D., and prayed that said James and Thomas G. Crow, as
surviving executors of the will of said Garrett, be required to
execute proper deeds of conveyance of the fee to said lot 25 to
said complainant Elizabeth, and that said Jessell and the other
tenants in possession account for and pay over to complainant the
rents, issues, and profits of said lot by them received after the
death of said Charles."
"The bill also charged that said Charles D. Flaglor, on or about
the nineteenth day of August, 1857, made and executed to Frederick
T. Flaglor, his father, a certain mortgage deed of said lot 25, to
secure the payment of the sum of $20,000, on the first day of
November, 1867, together with interest thereon at the rate of six
percent per annum, payable annually, and that said defendant
Catharine Reid was the holder of said mortgage."
"Soon after filing the original bill, the said Elizabeth
Flaglor, complainant, died leaving a will whereby she devised all
her estate to her mother, Lucy C. Flaglor, and by order of court
said Lucy C., who has since intermarried with one Gay, was made
complainant, and the suit has since proceeded in her name. James
and Thomas G. Crow were served with process, but made no defense.
Jessell appeared and answered. Catharine Reid, being a nonresident,
was brought into court by publication, under the statute of
Illinois, and such steps were taken that the case on the original
bill was brought to hearing before the superior court of Cook
County at the August term, 1872, and a decree made directing said
James and Thomas G. Crow,
Page 106 U. S. 682
as executors, to convey to complainant the title in them, as
surviving executors and trustees of Augustus Garrett, and that
Jessell, who was a tenant of the premises under an unexpired lease
from said Charles D. Flaglor, surrender possession to complainant,
and that the defendant Catharine Reid release the said mortgage
made by said Charles D. to Frederick T. Flaglor, and that said
mortgage be held void as against the estate of said complainant in
said premises. In October, 1873, said Catharine Reid, by the name
of Catharine Parpart (she having intermarried with Lewis Parpart),
appeared in said cause, and on her motion said decree was opened,
and she was let in to defend in said cause, whereupon she filed her
answer."
"And afterwards, on the first day of February, 1875, she filed
her cross-bill alleging that said Charles D. Flaglor made and
delivered said mortgage in fee to his father, Frederick T. Flaglor,
and that said Frederick T., on the first day of August, 1863, duly
assigned said mortgage and the indebtedness thereby secured to her,
the said Catharine, and that the same was then held and owned by
her, and that the whole of the principal sum of $20,000, together
with interest from the second day of June, 1862, remained unpaid.
To this cross-bill Arthur W. Windett, the Connecticut Mutual Life
Insurance Company, and others were made defendants, and a
foreclosure of said mortgage was prayed. To this cross-bill answers
were filed by Mr. Windett and the Connecticut Mutual Life Insurance
Company, alleging, in substance, that, by the will of Augustus
Garrett, said Charles D. Flaglor was only devised a life estate
after the death of his mother, Letitia Flaglor, in the lands
devised to him by said will, and that it was agreed between said
Eliza Garrett, widow, and James Crow, Thomas G. Crow, and said
Letitia Flaglor, Frederick T. Flaglor, her husband, and said
Charles D., that a partition should be made among them of the
property devised by said will, and that by such partition only a
remainder for life, after the death of said Letitia, should be
vested in said Charles D., and that on his death the fee of the
property so allotted to said Letitia and Charles should go to the
children of said Charles D.; that in pursuance of said agreement,
the bill for partition was filed in
Page 106 U. S. 683
the Cook County Circuit Court, and that said Charles by his
answer appeared and consented to a decree, and that the decree in
said partition cause was made in pursuance of such consent, and
that said Charles was bound thereby and precluded from asserting or
claiming any other than a life estate in said lands, and that said
Frederick T. Flaglor and said Catharine Reid were bound by such
decree; that said mortgage was given by said Charles to said
Frederick without consideration, and that said Catharine was not a
bona fide assignee for good or valuable consideration, and
that said mortgage only conveyed the life estate of said Charles D.
in the mortgaged premises."
"Before the answer of the insurance company was filed, the cause
was, on petition of said company, removed to this Court, and on the
fifth of November, 1877, the said Catharine, by leave of this
Court, filed her amended cross-bill, alleging that all the title
and interest of Mr. Windett and the insurance company and the other
defendants were acquired after and were subject and subordinate to
the said mortgage held by her, and further alleged that said
Charles was, by the will of said Garrett, given an estate in fee
after the death of his mother, Letitia; that no agreement was ever
made by Charles to accept an estate for life, and that the fee
should go to his children; that said Charles never consented to
said decree in said partition case awarding him only a life estate
in the property set off to him; that the deeds made interchangeably
between the devisees of Garrett and the contract between said
parties made at the same time, were not made in pursuance of or for
the purpose of satisfying said decree; that said Charles had never
ratified said decree nor accepted a life estate in lieu of a fee in
the lands set off to him, and that said decree was fraudulent and
void as against said Charles."
"The answers of Mr. Windett and the insurance company to the
amended cross-bill denied all frauds or mistake in the decree in
the partition suit, and insisted that Charles and the
cross-complainant were bound thereby, and also insisted that said
decree was in accordance with and in furtherance of the interest of
the will of said Garrett, so far as it related to the estate of
said Charles in the lands allotted to him. "
Page 106 U. S. 684
On a final hearing upon the pleadings, documents, and other
testimony, the circuit court rendered a decree in favor of
Catharine Parpart, establishing the validity of the mortgage set
out in the cross-bill and its assignment to her were established,
and a decree rendered in her favor for the amount of the bond, with
interest, declaring it to be a lien on the property in controversy
paramount to that of all other parties to the litigation, and that
unless it was paid, the property would be sold for the purpose of
raising the money to satisfy the debt.
From this decree Arthur W. Windett, Lucy Flaglor Gay, and the
Connecticut Mutual Life Insurance Company took an appeal, which
brings it before us for review. The case as it presents itself to
us concerns the interest of no other parties but these, and is
limited to the proceeding growing out of the cross-bill.
The first question raised by these issues is the validity of the
mortgage made by Charles D. Flaglor to Frederick T. Flaglor, his
father, and of the assignment of that mortgage to Mrs. Parpart,
then Catharine Reid. If this be decided in her favor, the second
question is whether, at the date of the mortgage, the estate of
Charles Flaglor was a fee simple in the property mortgaged, or only
an estate for life.
As the least difficult of these questions, and the one which in
the natural order of discussion should be first disposed of, we
will consider the validity of the mortgage and its assignment.
There is but little question raised that as between Charles D.
Flaglor, mortgagor, and his father, Frederick Flaglor, the
transaction was an unexceptionable one. At that time, whether the
estate was a fee simple or a life estate, certain transactions took
place between them by which Charles became indebted to his father
in the sum of $20,000. This sum the father seemed disposed to
permit to remain in the hands of his son on the security of a
mortgage on this property. He accordingly, in the year 1857, took
from Charles his bond for that sum, payable ten years after date,
with annual interest at the rate of six percent, secured by this
mortgage. The interest was promptly paid, notwithstanding the death
of Charles in 1858, up to the death of his father in 1865. There is
no reason therefore to doubt the validity of the mortgage as
between these two.
As regards the assignment of the bond and mortgage by Frederick
T.
Page 106 U. S. 685
Flaglor to the present appellee, it is assailed on several
grounds, which resolve themselves into a denial of the execution of
the assignment and the immorality of the consideration on which it
was made.
The assignment itself is on a separate piece of paper from the
mortgage and the bond, and the signature is made by the cross-mark
of Flaglor instead of being in his own handwriting. As Flaglor was
a man of some education, and it is shown that about that time he
was in the habit of writing letters and signing his own name to
them, that circumstance is deemed suspicious.
The relations at that time existing between him and Catharine
Reid, which will be hereafter considered, are supposed to increase
the force of these suspicions; also the fact that the bond and
mortgage were permitted to remain in his possession.
In answer to this, it is to be considered that Flaglor was a
very old man, easily shaken by illness, and it was probably during
some such attack, when he might not have been able to write, that
he determined to do the act of justice which dictated this
assignment. Original specimens of his signature, written within a
short time of this transaction and produced to this Court, show a
shaky and difficult handwriting, and lead to the conclusion that if
he was ill, it would be extremely natural to have somebody write
his name, which he authenticated by making a cross under It.
Its execution is attested as sealed and delivered in his
presence by W. G. McDonald as a witness, and the original paper
produced before us shows that the name of Flaglor is in the same
handwriting as that in the body of the instrument, which is
apparently that of the witness.
There is another consideration, however, of very great weight in
favor of the validity of the assignment. Its execution was proved
shortly after the date it bears, before a justice of the peace, in
accordance with the laws of the State of New York, where Flaglor
then resided, and the certificate of this fact, with that of the
clerk of the proper court, were such that by the laws of Illinois
it was admitted to record in the County of Cook of that state, and
is by that law
prima facie evidence of its execution by
Flaglor. When this assignment and certificate were produced in
evidence, the onus of proving that it was not the
Page 106 U. S. 686
act and deed of Flaglor devolved on the appellants. The witness
W. J. McDonald was living at the time that the deposition of the
appellee was taken in New York to prove the execution of the paper.
McDonald was competent to prove what was done in regard to the
execution of the assignment, and the fact that the appellants, with
a knowledge of the case made by the certificate of acknowledgment
and the positive testimony of Catharine Reid, did not call the man
whose name was affixed to the paper as a witness to its execution
leaves but little doubt that it could not be thus successfully
impeached.
Reverting to the question of the consideration moving Flaglor to
make this assignment, the facts seem to be that Catharine Reid had
been for several years a domestic in the family of Frederick
Flaglor while he was married to and living with a second wife, and
she left his service while Frederick and his wife were yet living
together at Newburg, in the State of New York. Not long after this,
Flaglor separated from his wife and went to live in St. Johns, New
Brunswick. After being there some time, he wrote to Catharine Reid
that he was not in good health and needed somebody to take care of
him, and requesting her to come and do so. With this request she
complied, and, according to her testimony, after she got there, he
informed her that he had a divorce from his wife and requested her
to marry him. The certificate of the clergyman of St. Johns, with
both her signature and his to the fact, leave no doubt that they
were married in that place on the 23d day of January, 1862.
The fruits of this marriage were two children, both girls. They
returned to Newburg a year or so after this, and there she
ascertained that Flaglor had not been divorced from his wife, and
of course understood at once that her children were illegitimate
and that their father was liable to a prosecution for bigamy.
Flaglor at that time, as we have said, was a very old man, and it
does not appear that he and this family of his had any other means
of support than the interest accruing on this mortgage.
Notwithstanding the assault made upon Catharine Reid in
reference to her chastity and the probability of illicit
intercourse with Flaglor previous to this marriage, and the fact
much relied on that she had an undue influence over him at the time
the assignment was made, we cannot doubt that in
Page 106 U. S. 687
executing and delivering to her that assignment he did a
meritorious act, honorable and just, as the only atonement he could
make for the deception he had practiced upon her, and as placing in
her hands the means of supporting the children of whom he was the
father. It was not the case of a contract for future illicit
intercourse of the class which the authorities hold to be against
public policy, but an appropriate means of providing for the
support of a woman whom he had married while he had a wife living,
and of the children resulting from that marriage.
We are satisfied from these considerations that the mortgage in
question was a valid instrument in the hands of the appellee,
Catharine Parpart, and a lien upon such interest in the property
which it conveyed as Charles D. Flaglor had at the time he made
it.
As we have already said, the question on this branch of the
subject is whether Charles D. Flaglor at the time he made the
mortgage, owned a fee simple in the property conveyed by it or a
life estate. Such interest as he had came to him primarily by the
will of Augustus Garrett.
The first six sections of this will mention the beneficiaries of
his bounty as regards the income of his estate until the death of
his wife Eliza, Mary Banks, and Letitia Flaglor, and throws very
little light upon the question we are considering. The seventh
section, which provides for the final disposition of his property
after their decease, contains the language to be construed. It
reads as follows:
"Upon the death of my wife Eliza and of Mary Banks and Letitia
Flaglor, I direct that the whole of my estate shall then be equally
divided between Charles D. Flaglor, son of said Letitia, if he or
his legitimate children survive said Letitia (in case he be dead,
his legitimate children shall take as their father would if alive),
and the said James Crow, and the said Thomas G. Crow, each taking
one-third of the whole. But if Charles D. Flaglor be at that time
dead, leaving no legitimate children, the whole of my said estate
shall be divided between the said James Crow and Thomas G. Crow. In
all cases, the heirs and devisees of the said James Crow and the
said Thomas G. Crow, respectively, shall succeed to the right and
portion which their ancestor and
Page 106 U. S. 688
decedent would have received had he been alive, and in all cases
the heirs and devisees of the said James and Thomas, respectively,
and the children (legitimate) of said Charles D. Flaglor, shall
only succeed to and take the share or portion of income and of
estate in general which their ancestor or decedent would have had,
taking
per stirpes, and not
per capita."
The precise question here raised has been repeatedly before the
courts of Illinois, as has the whole subject of Charles Flaglor's
interest under this will, and we think it may be affirmed that, by
several well considered opinions of the Supreme Court of that
state, a construction has been established which gives to Charles
Flaglor, on the death of his mother, Letitia, a fee simple estate
under that will. Indeed, we do not understand counsel here to
seriously controvert that such is a true construction of that
instrument, and as this accords with our own, we adopt it without
further discussion.
On the death of Mr. Garrett, his will was admitted to probate on
the 28th of February, 1849, and his widow, Eliza Garrett, having
renounced the benefits of its provisions, asserted her rights to
dower, whereby she became entitled to one-half of the estate. In
1851, long before her death or that of any of these devisees, the
parties interested determined to have a partition by a proceeding
in chancery in the Superior Court of Cook County. In that
proceeding, the property which is now in controversy was allotted
to the share which went to Letitia Flaglor during her life, and
after her death to Charles D. Flaglor. Under the construction of
the will which we have just adopted, Charles D. Flaglor was, at the
time of making the mortgage to his father, the owner of the estate
in fee of the property conveyed by it, and there could be no doubt
that the mortgage constituted a lien paramount to everything else
in the way of a claim or title to the property.
The appellants here upon the decree of partition to which we
have alluded, and on certain deeds and agreements alleged to have
been made by Charles D. Flaglor in connection therewith, as
establishing and limiting his interest in this property to a life
estate, with remainder in fee to his children on his death, and
whether this contention be well founded or
Page 106 U. S. 689
not, presents the main controversy in the case. That decree of
partition, dividing the estate into three parts, does
unquestionably declare
"That the real estate by said commissioners set off and allotted
to Letitia Flaglor, Charles D. Flaglor, and his children, if he die
leaving any child or children, be and the same is hereby set off
and allotted, and the income thereof, to the said Letitia Flaglor
during her life, and the said Charles Flaglor, if he survive said
Letitia, during his life, and the child or children of said Charles
D., if he die leaving any child or children, in fee."
The first thing which suggests itself as proper to be considered
in the solution of this question is to ascertain what was the law
of the State of Illinois on the subject of partition at the date of
that decree. Looking at the statutes of the state as we find them
in the Revision of 1880, with reference to the sources from which
this Revision is taken, we find that they made provision distinctly
for two modes of effecting a partition, one of which, as declared
by the statutes of 1845, was by a bill in chancery as heretofore,
and the other by petition to the circuit court of the proper
county. Very little is said on the subject of partition in
chancery, as the provisions of the statutes are more specifically
directed to the forms of proceeding by petition in the proper
court.
The proceeding in the case which we are now to consider declares
itself on its face to be a proceeding in chancery, and the supreme
court of the state, in the case of
Wadhams v. Gay, 73 Ill.
415, in reference to this very decree, declares it to be so. We
take it for granted that the statute of Illinois, in making this
provision and in leaving the parties to proceed by bill in
chancery, intended thereby to give to a proceeding in such case the
same force and effect which a petition in chancery had in the High
Court of Chancery of England, and that the proceeding should in the
main conform to the chancery practice as thus established. As we
understand that system, it did not deal with or decide questions of
controverted title. Its purpose was to make division among the
parties before the court of real estate in which those parties had
interests or estates that were not in controversy as among
themselves.
It was another principle of the chancery jurisdiction in
partition that a decree itself did not transfer or convey title
even after the allotment of the respective shares of each of
the
Page 106 U. S. 690
parties to the proceeding, but the legal title remained as it
was before.
In this respect, a decree in chancery was unlike the writ of
partition at the common law, which in such cases operated on the
title only by way of estoppel. In the chancery proceeding, however,
this difficulty was remedied by a decree that the parties should
make the necessary conveyance to each other, which, if they
refused, they could be compelled to do by attachment, imprisonment,
and other powers of the court over them in person.
In many of the states of the Union where the equity powers of
the courts have been aided by statutes to get rid of the difficulty
of compelling parties in person to execute conveyances, the court
has been authorized to appoint a commissioner who should execute
the conveyances in the names of the parties. In other cases the
statute has declared that such a decree itself shall operate as a
conveyance of the title.
At the time that the decree was rendered in the Superior Court
of Cook County which we are considering, we are not aware that any
statute existed which gave such effect to the decree of the
chancery court in partition. We find by the Revised Statutes to
which we have alluded, sec. 29, on partition, that in the year
1861, ten years after this decree was passed, it was enacted that
in suits for the partition of real estate, whether by bill in
chancery or by petition, the court may investigate the question of
conflicting or controverted titles and remove clouds on the title
of any of the premises sought to be partitioned, and invest titles
by their decrees in the parties to whom the premises are allotted,
without the forms of conveyance of "infants, unknown heirs, and
other parties to the suit." Other powers are also conferred on the
courts in such cases.
In the case of
Whaley v. Dawson, 2 Sch. & Lef. 366,
Load Redesdale said:
"Partition at law and in equity are different things. The first
operates by a judgment of a court of law, and delivering up
possession in pursuance of it, which concludes all the parties to
it. Partition in equity proceeds upon conveyances to be executed by
the parties, and if the parties be not competent to execute the
conveyances, the partition cannot be effectually had. "
Page 106 U. S. 691
And in his works on Pleadings in Chancery, he gives this clear
statement of the nature of the equity jurisdiction in
partition:
"In the case of the partition of an estate, if the titles of the
parties are in any degree complicated, the difficulties which have
occurred in proceeding at the common law have lead to applications
to courts of equity for partition, which are effected by first
ascertaining the right of the several persons interested, and then
issuing a commission to make the partition required, and upon the
return of the commission and confirmation of that return by the
court, the partition is finally completed by mutual conveyances of
the allotment made to the several parties. But if
the infancy
of any of the parties or other circumstances prevent such
mutual conveyances, the decree can only extend to make partition,
give possession, and order enjoyment accordingly until effectual
conveyances can be made."
"If the defect arise from infancy, the infant must have a day to
show cause against the decree after attaining twenty-one, and if no
cause be shown, or if the cause shown should not be allowed, the
decree may then be extended to compel mutual conveyances. If a
contingent remainder, not capable of being barred or destroyed,
should have been limited to a person not in being, the conveyance
must be delayed until such person shall come into being, or until
the contingency shall be determined, in either of which cases a
supplemental bill will be necessary to carry the decree into
execution."
Mitford's Pleadings, Jeremy's edition 120.
See Attorney
General v. Hamilton, 1 Madd. 214;
Cartwright v.
Pultney, 2 Atk. 380; Story's Equity Jurisprudence secs. 652,
653.
Mr. Adams, in his admirable condensation of the equity
jurisdiction, says:
"The confirmation [of the commissioner's report] does not, like
the judgment on a writ of partition, operate on the actual
ownership of the land, so as to divest the parties of their
individual shares and reinvest them with corresponding estates in
their respective allotments, but it requires to be perfected by
conveyances, and the next step therefore after confirmation of the
return is a decree that the plaintiffs and defendants do
respectively convey to each other their respective shares, and
deliver up the deeds relating thereto, and
Page 106 U. S. 692
that in the meantime the allotted portions shall respectively be
held in severalty."
Adams, Equity 231.
This is precisely what was done in this case, except that no day
in court was given to the infant children of Charles D. Flaglor,
nor any decree for conveyances by them or by the other parties to
the suit.
That decree therefore did no more than to make a division and
allotment of the land, and had no effect upon the actual ownership
or upon the title of the parties, and did not even contain an order
for possession in severalty.
We must therefore look to the conveyances, which were made three
days after this decree was entered, for any limitation of Charles
D. Flaglor's interest to an estate for life in the share allotted
to him and his mother, if any such there be.
In reply to this view of the effect of the decree, it is said
that it was a consent decree, and must be held binding on Charles
Flaglor by reason of that consent. It is certainly true that on the
face of the proceeding, as evidenced by the bill of Eliza Garrett
and the two Crows and the answer of Charles and Letitia Flaglor,
the partition was one previously agreed on by all these parties,
and the bill itself gives a schedule of the different parcels of
the property to be allotted by the decree to each of the three
interests concerned in it. The bill also sets forth very explicitly
the interest of Charles D. Flaglor as being a life estate, with
remainder in fee to his children, two of whom were then alive. To
this bill an answer on behalf of Frederick T. Flaglor, Letitia
Flaglor, and Charles D. Flaglor was filed by their solicitors,
Arnold and Ley. It might admit of some question whether this answer
was intended to admit that the estate of Charles D. Flaglor was
merely a life estate; but as the Supreme Court of Illinois, in the
case of
Flagler v. Crow, 40 Ill. 414, has decided that it
showed consent, we assume it to be so.
Waiving at present the question, on which there is much
conflicting testimony, whether Charles D. Flaglor authorized these
attorneys to assent for him to that construction of his interest in
the property, we remark that the decree itself was incomplete, and
did not purport to transfer the title between
Page 106 U. S. 693
parties, nor did it order or direct that such conveyance should
be made in accordance with its provisions. This decree, however,
was entered of record on May 26, 1851, and deeds were made
inter partes on May 29. These deeds do not refer to the
decree in any manner, nor do the deeds of the other parties to
Letitia and Charles Flaglor profess to describe their interests in
the property, and the deed as found in the record from the Crows is
to Charles Flaglor alone, and none of the deeds mention his
children.
The agreement of the same date was executed by all the parties
to the partition, except the children of Charles D. Flaglor, and
seems to have two purposes, explanatory of the deeds of conveyance
made at the same time. The first of these purposes was to declare
the proportion of the debts of the estate of Augustus Garrett which
should be charged upon the interest of each of the parties, and the
second to make some explanation of the relations to the estate of
Charles D. Flaglor and his children. The purpose of the provision
on this latter subject was to have Letitia and Charles D. Flaglor
and Frederick
"to save and keep harmless the shares and portions of the estate
allotted to Eliza Garrett, James Crow, and Thomas G. Crow from all
claim or claims which any child or children of Charles D. Flaglor
may have or become entitled to under the said will or decree of any
court now made or hereafter to be made."
There is also a previous reference in said instrument to the
interests of the children and descendants of Charles D. Flaglor
which, under said will, such children or descendants may have or at
any time be entitled to.
This Court agrees with counsel for appellee that there is
nothing in these deeds or this contemporary agreement by which
Charles Flaglor agrees or binds himself or consents that his
interest in the property is a life estate. The deeds of conveyance
are absolutely silent on the subject, and do not mention the
children at all, but convey the estate to Letitia and Charles
Flaglor. The explanatory agreement was evidently intended to refer
this question to the true construction of the will, mentioning the
rights of the children to be such as they may have under that will
and guaranteeing Eliza Garrett and the Crows
Page 106 U. S. 694
against the effect of such construction of it as would make his
interest a life estate, with remainder to his children.
Assuming, then, that these conveyances
inter partes
were made as a part of the partition proceedings, they fail to
carry into effect that part of them which declares as between
Charles D. Flaglor and his children that his estate was an estate
for life. It was undoubtedly in this view of the subject that,
after the death of Charles Flaglor and his mother, the advisers of
Elizabeth Flaglor, the only surviving child of Charles, caused the
commencement of the suit in chancery in her name of which the
present cross-bill has become a part.
This bill of Elizabeth, upon its face, recites the proceedings
in the original partition suit and the contemporary conveyances and
agreement, and the death of Letitia and Charles Flaglor and one
child of Charles Flaglor, and considering the imperfection and
insufficiency of all these proceedings to vest in the complainant,
the surviving child of Charles Flaglor, the title to the real
estate allotted to him and his mother in the decree, it demands of
all the other parties to make such conveyance as will perfect her
title, and it prays for an account of rents and profits from those
who have had the property in possession. To this bill Catharine
Reid, now Catharine Parpart, was made a defendant under allegations
setting out the mortgage on which the present decree was rendered,
and alleging it to be a cloud on the title of complainant
Elizabeth, and praying that it be held to be no lien on the
property.
Much of the argument of counsel in this case and the testimony
on which the case was heard in the court below has relation, on
both sides, to the question whether Charles D. Flaglor authorized
his attorneys to give the consent to limitation of his estate which
is found in his answer to the original partition suit.
It is not to be denied that the testimony on this subject is
conflicting, as were also his declarations and actions about the
time of the rendition of that decree. We do not deem it material to
the case before us to decide this question because, as neither the
decree itself nor the deeds made three days after nor the article
of agreement assented to by the parties at the same time made any
actual transfer of title different from that
Page 106 U. S. 695
which resulted from the will of Augustus Garrett, and as the
very purpose of Elizabeth Flaglor's suit is to effect that which
was not done by that decree, the only effect which the consent of
Charles Flaglor to it could have, if he ever consented, would be to
have estopped him or someone claiming under him from contesting the
force of the decree. In this view of the subject, it is important
to recur to what took place very soon after this decree was
rendered. As soon as Charles Flaglor became aware of the
construction which was put upon the decree as regards his estate in
the property, he filed his bill of review, on the sixteenth day of
April, 1853, in the proper court, to set aside and correct it so
far as it concerned that matter. To this bill his mother and father
and two children were made defendants. A decree was rendered on the
eleventh day of May, 1854, in which the former decree in that
respect was reversed, and the one-sixth allotted to the Flaglors
was declared to be vested in Letitia Flaglor for and during the
term of her natural life, with remainder in fee to Charles if he
survived said Letitia. This decree remained in full force until
after the death of both Letitia Flaglor and Charles Flaglor, when,
in April, 1866, a writ of error was sued out from the Supreme Court
of Illinois in the name of Elizabeth Flaglor, by James Link, her
next friend, on which the decree on the bill of review was reversed
on the sole ground that the original decree of partition was by
consent, and that such consent cured all errors.
It will be observed that the decree on the bill of review
remained in force for over twelve years; that during two years of
that time, Charles Flaglor had come into the seizing of the fee
simple estate, which both that decree and the will declared to be
in him, and that it was during this period that the mortgage was
made by him on which the decree we are now considering is
founded.
Very shortly after this reversal in the supreme court, the
original bill in the present case was filed by Elizabeth Flaglor,
which was prosecuted in her name until August, 1867, when she died,
leaving a will by which she devised all her property to her mother,
Lucy C. Flaglor, now Lucy Flaglor Gay, one of the present
appellants.
Page 106 U. S. 696
Early in 1872, the suit was revived in the name of Lucy Flaglor,
and by amended bills in her name and by the cross-bill of Catharine
Parpart, formerly Catharine Reid, the issues in regard to the
controversy now before us were finally raised. No person now
interested in this controversy obtained any interest whatever in
this property by any purchase or by any transaction by which they
parted with money or other valuable consideration until the
purchase by Arthur W. Windett from Lucy Flaglor after her bill of
revivor had been filed, and no one else but him and the Connecticut
Mutual Life Insurance Company, another one of the appellants, have
ever parted with anything of value on the faith of any of the
transactions previously recited, except it be Frederick T. Flaglor,
who loaned his son Charles the money on the mortgage now in
question.
It is impossible to see how the doctrine of the estoppel can
operate in favor of any of these appellants. Such interest as
Elizabeth Flaglor and Lucy Flaglor, her mother, had or acquired was
by inheritance or devise. Neither of them ever paid a dollar or
parted with anything of value or did anything to their detriment by
reason of any act or deed of Charles D. Flaglor, nor by reason of
the original decree of partition and the deeds made under it. The
one was his child and took under his rights; the other was his wife
and the mother of his child, and took under his will. Windett is
therefore the first person who can pretend to have parted with any
consideration for the title which he asserts to this property, and
the insurance company holds under him. But both these parties
became purchasers and acquired their interest during the pendency
of this suit, and were bound to know that they purchased subject to
its result. The existence of the mortgage which they now contest
was recited in the original bill by Elizabeth Flaglor, and in the
bills of revivor and supplemental bills filed by Lucy Flaglor, and
Catharine Parpart was a party to all those bills, and her right to
a paramount lien was referred to and she was made a party in regard
to it in them all.
It is urged in favor of the appellants that a decree
pro
confesso, by a default on the publication of notice, was made
against Catharine Parpart declaring her claim invalid, and that
very soon after this and before that default was set aside,
Windett
Page 106 U. S. 697
received his deed from Lucy Flaglor. It is strenuously urged
that this fact confers upon him the character of an innocent
purchaser for value and removes him from the category of a
purchaser
pendente lite. But this argument is not
sound.
The decree
pro confesso, taken without any actual
service on Parpart, could, within a period fixed by the laws of
Illinois, be set aside upon her appearance and motion to that
effect, and it was so done in this instance, and she was permitted
to come in and file her answer and cross-bill. Mr. Windett was
bound to know when he purchased the inconclusive character of the
decree
pro confesso on which he now relies, and that it
was not in his power and that of Lucy Flaglor to defeat the right
which the law gave to the absent defendant and render it of no
avail by this transfer of title. In addition to this, it is
impossible in any light to regard Mr. Windett as an innocent
purchaser, since he was the attorney and counselor in that suit of
Elizabeth Flaglor during her lifetime, and of Lucy Flaglor
afterwards, and so remains to the present hour. It a also in
evidence that he was well aware of the existence of the mortgage
and its possession by Catharine, and at one time had promised it
should be paid, and at another time had entered into negotiations
for its purchase, all of which was prior to the date of the deed
from Lucy Flaglor, under which he now asserts title.
The Connecticut Mutual Life Insurance Company also acquired its
interest
pendente lite. That interest arises under a
mortgage given by Windett to secure the loan of money, and it
appears by the record that in addition to this mortgage they took
other security, in consequence of the uncertain condition of the
title. They have also the security of Mr. Windett's personal
obligation.
The only party in the litigation before us who has any just
claim to the protection of an innocent purchaser without notice is
the appellee, Catharine Parpart. The mortgage which she now holds
was given to Frederick Flaglor by his son Charles, for which the
father gave full value at the time when Charles stood seized of the
estate in fee simple to the property in controversy, according to
every source of information open to anyone upon inquiry. Under the
will of Augustus Garrett,
Page 106 U. S. 698
the title of Charles was clear; under the conveyances made
between parties subsequent to the decree of partition and the
contemporary agreement, it was clear. The decree itself, the only
thing which cast any shadow upon that title, had, upon bill of
review, been set aside in that respect, and the title of Charles
declared to be an estate in fee, and the remainder of the decree
stood affirmed as a division of the property. Under these
circumstances, the right of Frederick Flaglor to feel secure in
taking the mortgage on the property which he did from his son
Charles, in the faith that he was secured by a good title, is much
stronger than that of Mr. Windett and the insurance company,
purchasing during the existence of the litigation which pointed out
clearly the defect in their title.
Without deciding whether Charles Flaglor ever gave his consent
to the original decree, we remark in the first place, as we have
said before, that that decree did not
proprio vigore
transfer title from or to anyone. In that suit, as between Charles
D. Flaglor and his children, there were no adversary proceedings,
and such decree as was had, being dependent upon consent, did not
operate as a judicial decision by the court of the rights of
Charles and his children. There was therefore neither a judgment of
the court nor any valuable consideration passing from the children
to Charles to bind him to such consent beyond that of an ordinary
gratuitous promise, which may be retracted before it is performed.
The deeds and the agreement made three days after the decree show
that if at any time Charles Flaglor had given his temporary consent
to the decree, he had determined so far to retract as to keep the
matter in his own power, and the bill of review and the decree
which he obtained upon that review, and all his subsequent conduct
in regard to the property, left no doubt in the mind of anyone that
he had determined to assert his full right of ownership in fee
simple under the will.
It is in the face of all these circumstances that, many years
after her father's death and many years after the execution of the
mortgage in this suit, proceedings were commenced in the name of
Elizabeth Flaglor, then a child, to secure the benefit which her
advisers supposed the original decree of partition conferred on
her.
Page 106 U. S. 699
Under all the circumstances of this case, the diligence with
which Charles D. Flaglor repudiated the supposed consent and had it
set aside by a regular bill of review, the long period of twelve or
fifteen years in which the matter was permitted to lie in that
condition, the facts that the daughter and her mother are all
volunteers and that Windett is a purchaser with notice of the
litigation and taking part in it as an attorney in the case, and
the insurance company holding their interest also with full notice
of the facts, we think it would be inequitable to make a decree now
to do what was left undone in a former decree, and which seems to
have been so left by the intention of the parties to it. We cannot
better express ourselves than in the following language from the
opinion of the court in the case before referred to:
"We do not regard that it militates with the doctrine of the
conclusive effect of what is
res judicata that where there
is an incomplete decree, and it is ineffective for want of the
provision of any means for its execution, and an application is
made to a court of equity to supply the imperfection so as to
render the decree effective, then it is admissible to look at the
real nature and character of the decree as it may appear in the
light of surrounding circumstances for the purpose of determining
whether there is such an equitable ground for action as will move a
court of equity to interpose. Equity will penetrate beyond the
covering of form and look at the substance of a transaction, and
treat it as it really and in essence is, however it may seem. In
outward semblance this partition decree is a decision of court upon
the relative rights of Charles D. Flaglor and his children, under
the will of Garrett. In essential character, it is but the
judicially recorded supposed agreement of Flaglor. And upon an
appeal to equity by original bill to lend its assistance for
carrying it into execution, because of an omission in the decree in
providing any means of its execution, it would seem reasonable that
the same rule of the court's action should obtain as in case of any
solemn agreement under seal, and where there are manifest the
elements of injustice, mistake, surprise, misapprehension, and want
of consideration, to remain passive."
Wadhams v. Gay, 73 Ill. 414.
Decree affirmed.