The court below had power to authorize the amendment made to the
bill. It is the settled doctrine of this Court that the concurrent
decisions of two courts upon a question of fact will be followed,
unless shown to be clearly erroneous, and in this case, after
examining the evidence, it seems to this Court that the findings of
the court below were justified by it, and that they established
that a trust resulted in favor of Buck.
The above appellants seek a review in this Court of the judgment
of the Court of Appeals of the District of Columbia in this case
affirming a judgment of the Supreme Court of the District enjoining
the appellants from the further prosecution of an action of
ejectment brought by them against appellee Coleman in the Supreme
Court of the District, to recover a one-fifth interest in a house
and lot in the City of Washington, in the possession of Coleman as
tenant of appellee Leffert L. Buck, who claims to be the owner
thereof. The appellees, Buck and Coleman, commenced this suit in
April, 1898, and in their bill of complaint they alleged the
bringing of the action of ejectment on or about July 26, 1897, by
William H. Brainard, as one of the heirs of his brother, the late
Charles F. Brainard, to recover an undivided one-fifth interest in
the real estate mentioned. The bill further alleged that the
complainant Buck was the brother of one Cornelia A. Braninard,
whose husband was Charles F. Brainard, both of whom lived in the
City of Washington up to the time of the death of Charles on May
13, 1881, and the
Page 184 U. S. 100
widow thereafter continued to live in that city until her death
on March 31, 1892. On June 12, 1872, Charles F. Brainard, the
husband, made and executed his last will and testament, by which he
devised and bequeathed to his wife all of his property of every
kind and description for her own use and benefit. Afterwards and on
July 18, 1879, there was conveyed to Charles F. Brainard by deed
the premises in question. After the death of Charles F. Brainard
and on March 31, 1882, his widow, by deed, duly conveyed her title
to the premises to her brother, the complainant Buck. The bill then
contained the following averments:
"8. The plaintiffs further show that the plaintiff, Leffert L.
Buck, was the brother of the said Cornelia A. Brainard, and that
her husband, the said Charles F. Brainard, was in his lifetime
employed as a clerk in the Treasury Department; that he had little
or no means of support outside of the salary which he received, and
that the plaintiff, Leffert L. Buck, being willing to aid and
assist his sister, and being solicited by her and her husband so to
do, furnished and advanced the money to pay for the said property
and premises first above described; that the said premises were
purchased with money so advanced by the said plaintiff, L. L. Buck,
in part directly to the said Brainard to pay for and on account of
said property and in part to the wife of the said Brainard, and in
part in taking up and paying encumbrances which had been put upon
said property for the purchase price thereof; that said money was
so advanced and said property purchased for the sole and only
purpose of giving to the said Cornelia A. Brainard, the sister of
the said L. L. Buck, a home, and that it was so understood by the
said Brainard at the time of said purchase; that the said property
was conveyed to the said Brainard instead of to his wife for the
reason that, prior to said conveyance, the said Brainard had
executed his will, by which said will he had devised and bequeathed
to his said wife all of his property of every kind, and it was
understood and believed by the said Brainard and his wife that, if
she should survive him, the property would descend to her, and that
in event she should not survive him, her said husband, she would
have a home on said property during her lifetime,
Page 184 U. S. 101
and that, during said period, said Brainard should hold the
title to said property as trustee for said plaintiff, Leffert L.
Buck."
The bill then set forth the names of the surviving heirs at law
of Charles F. Brainard and averred that some of them had
quitclaimed the property to the plaintiff Buck. It is also averred
that from the time of the death of Charles F. Brainard, his widow
lived in the house, and that she conveyed the premises to Buck by
deed on March 31, 1882, and that he believed that the legal title
was in him until the commencement of the ejectment suit, when he
was advised that the will of Charles F. Brainard did not convey the
property to his sister, for the reason that it was acquired by
Brainard after the execution of the will, which did not operate to
convey after-acquired property.
For relief, the bill asked that the plaintiffs in the action of
ejectment might be perpetually enjoined from further prosecuting
the same, and that it might be declared that the land in question
was charged with a trust in favor of, and ought to be held for, the
use and benefit of the plaintiff Buck, and that the defendants, or
such of them as should appear to have the legal title to the lands,
should be decreed to convey such legal title free and clear of all
encumbrances done or suffered by them or any or either of them unto
the plaintiff Buck.
The defendant William H. Brainard demurred to the bill on the
ground, among others, that the promise set forth in the bill was
not in writing or signed by the deceased, Charles F. Brainard, and
was within the meaning of the statute for the prevention of frauds
and perjuries; also that Buck had been guilty of gross and
inexcusable laches in bringing his suit.
The demurrer was sustained with leave to the plaintiffs to
amend. Pursuant to such leave, the plaintiff served an amended
bill, which was a full and complete bill, taking the place of the
original, and restated all the facts set forth in the original
bill, but left out the above quoted eighth paragraph. The
complainants in the ninth, tenth, eleventh, and twelfth paragraphs
of the amended bill made the following averments:
"9. That from March 12, 1875, until June 3, 1880, the said
plaintiff, Leffert L. Buck, sent to the said Charles F. Brainard,
for investment as agent for him, the said Leffert L. Buck,
various
Page 184 U. S. 102
sums of money, the particular amounts of which and the dates at
which they were received by said Charles F. Brainard, deceased, are
stated in 'Exhibit D,' hereto annexed, and authorized the said
Charles F. Brainard, as agent for him, the said Leffert L. Buck, to
invest the same in real estate, bonds, and securities in the City
of Washington; that, on or about the 18th day of July, 1879, the
said Charles F. Brainard purchased the said property and premises
hereinbefore described for the sum of $6,350, and paid on said
purchase price the sum of $2,550 out of the moneys so sent to him
for investment by the said plaintiff, Leffert L. Buck, as
aforesaid; that, upon said purchase, the said Charles F. Brainard
took the deed of said property to himself without the knowledge,
consent, or authority of said plaintiff so to do; that said deed is
the same deed hereinbefore mentioned as 'Exhibit B;' that
thereafter, and on or about March 12, 1880, said Charles F.
Brainard made a further payment of $1,266.66 on said property out
of said moneys so sent to him for investment by said plaintiff,
Leffert L. Buck, as aforesaid; that, on the 8th day of June, 1880,
there still remained in the hands of said Charles F. Brainard out
of the said moneys so received by him for investment as agent for
the said plaintiff, Leffert L. Buck, the sum of $793.58, no part of
which has ever been repaid to or received by said plaintiff; that,
on or about the 25th day of July, 1879, said Charles F. Brainard
executed to John F. Waggaman and James A. Harban, trustees, a deed
of trust on said property to secure payment of the balance of the
purchase money then unpaid thereon, and that said deed of trust was
executed without the knowledge, consent, or authority of said
plaintiff, Leffert L. Buck; that, after the 8th day of June, 1883,
and before his death, the said Charles F. Brainard made further
payments on said property, not exceeding in amount the sum of $650,
out of the said moneys so received by him from said plaintiff for
investment as aforesaid, the particular dates of which payments
plaintiffs are unable more definitely at this time to state, for
the reason that the books and accounts of the Western Building
Association, to which said payments were made, have been destroyed.
"
Page 184 U. S. 103
"10. That, after the death of the said Charles Brainard, the
plaintiff Leffert L. Buck was informed by his said sister, Cornelia
A. Brainard, that she held the legal title to said property under
the last will and testament of her said husband, which is the
instrument hereinbefore mentioned as 'Exhibit A,' and that there
remained unpaid upon said trust deed the sum of $1,971.81; that
thereupon, and on or about the 17th day of March, 1882, said
plaintiff, Leffert L. Buck, paid the balance due upon said trust
deed, which was thereupon discharged, to-wit, the sum $1,971.81,
and thereafter, and on the 31st day of March, 1882, the said
Cornelia A. Brainard conveyed the said property to him by the deed
referred to as 'Exhibit C,' and the said plaintiff, Leffert L.
Buck, thereupon and on that day entered into and has ever since
remained in undisturbed possession of said premises."
"11. And the plaintiffs further show that all of the moneys that
were paid for the purchase of said property, including the whole
consideration thereof, were paid by the plaintiff Leffert L.
Buck."
"12. And the plaintiffs further show that not until after the
said action at law No. 41,274, which is the suit of said William H.
Brainard against James Coleman, had been brought had the plaintiff
Leffert L. Buck any information that the legal title to said
premises did not pass to his sister, the said Cornelia A. Brainard,
under the will of her said husband, Charles F. Brainard."
The defendants demurred to this amended bill on the same grounds
stated in the demurrer to the original bill, and also on the ground
that a new and different cause of action had been set up in the
amended bill from the one in the original bill. The demurrer was
overruled, and the defendants thereupon answered, in which, among
other things, they denied complainants' allegation as to the
payments for the premises by Buck, and averred that the purchase
money for the premises had been paid out of Charles F. Brainard's
own funds in cash or by his notes secured by deed of trust, which
notes were subsequently paid by Brainard.
Upon the trial, there was a final decree in favor of the
complainants, and the defendants were enjoined from prosecuting
Page 184 U. S. 104
the action at law, and they were directed to convey, quitclaim,
and release the real estate unto the complainant Buck, and in
default of their doing so, it was adjudged that the decree then
given should operate and stand as such conveyance, quitclaim, and
release.
MR. JUSTICE PECKHAM, after stating the above facts, delivered
the opinion of the Court.
The appellants insist that the Supreme Court of the District had
no power to authorize the amendment which was made by the appellees
to their original bill in this suit, because, as they assert, the
cause of action set forth in the amendment is new, different, and
distinct from that set forth in the original bill, and that
therefore the demurrer to the amended bill should have been
sustained.
We fully agree with the courts below in holding that the
allowance of the amendment was within the discretion of the court,
and that the demurrer on the grounds stated was properly overruled.
The case comes within the principle of
Jones v. Van Doren,
130 U. S. 684,
130 U. S. 690.
The purpose in both bills was the same -- to establish a resulting
trust in favor of the complainant Buck on account of the
transactions set forth in the bills, and while the reasons are
stated more fully in the amended bill, and, in some respects,
differently from those in the original bill, yet the purpose is the
same, arising from the same transactions and based upon the same
general rule of law applicable to resulting trusts.
Upon the merits of the case, the two courts below have come
Page 184 U. S. 105
to the same conclusion. The general finding of the trial court
in favor of the complainants was a finding in their favor of all
the material facts alleged in the amended bill, and those facts
have been repeated and affirmed in the Court of Appeals, and we are
now asked to review and reverse those findings upon the testimony
contained in the record. It ought not to be done in this case. It
is the settled doctrine of this Court that the concurrent decisions
of two courts upon a question of fact will be followed unless shown
to be clearly erroneous.
The Carib Prince, 170 U.
S. 655,
170 U. S. 658,
and cases there cited. After examining the evidence in the case, we
are not convinced that the findings of the court below were
erroneous, but, on the contrary, it seems to us that they are
justified by the evidence.
In regard to the evidence on the part of the complainants given
on the trial, defendants assert it to be different from and
inconsistent with the statements of fact contained in the amended
bill, but a careful perusal of the whole evidence fails to convince
us that there exists any such real and material inconsistency, but,
on the contrary, the evidence substantially corroborates and
justifies the averments of the amended bill.
The account book of the deceased Brainard was put in evidence,
and some criticism has been made by counsel for the defendants in
regard to the manner in which the deceased kept his accounts, as
evidence in that book, and some faint claim seems to have been made
that the book showed that moneys had been sent by Brainard to Buck
instead of the reverse, as claimed by Buck. This criticism arises
on account of the position of the words "Dr." and "Cr." with regard
to the statement of the account between the two people. However, a
perusal of the accounts in the book, taken in connection with the
statement of the account between the parties made by Brainard in
his lifetime and in his handwriting and given to complainant Buck,
shows beyond any controversy that the moneys were advanced by Buck
to Brainard, and not the reverse. There is really no contradiction
of the evidence on the part of the complainants that it was the
money of Buck, and his alone, which paid for the property in
question.
From the evidence which was taken upon the trial, and upon
Page 184 U. S. 106
which the trial court gave judgment in favor of the
complainants, the Court of Appeals itself found the facts similar
to the averments in the amended bill, and stated them as
follows:
"Leffert L. Buck was a civil engineer and a bachelor. His
residence was in the City of New York, but his professional
engagements called him to different parts of the world. He
testified that he went to Peru in 1875, and before leaving sent
about $200 to Brainard for investment. He continued to send sums of
money from time to time from 1877 to 1880, and during the latter
year, Brainard invested from time to time in bonds which he sold
for reinvestment."
"Brainard kept an account book, which has been preserved, and
the entries therein of money received from Buck correspond with a
statement rendered to the latter and produced by him in
evidence."
"Buck testified that he suggested the joint purchase of the
house and lot in controversy, which Brainard wrote him could be had
for $6,350. Brainard made the purchase at that price on July 18,
1879, making a cash payment thereon of $2,550 with Buck's money, as
the account book shows. The remainder was raised by mortgage. The
account book, under the same date, shows the charge of the cost of
recording the deed, and of insurance against Buck. The deed was
made to Brainard."
"Buck testified that, early in 1880, he learned that the deed
was in the name of Brainard alone, and suggested to the latter to
convey to him and he would pay the balance, and Brainard and wife
could occupy the house as a home. Brainard was then in bad health.
He did not wish to make the transfer then, saying that, when he
recovered, he would be able to go on and pay the balance on the
property, and would also be able to pay for Buck's half, and he
thought that better than to go to the expense of making two
transfers. He said that, in any event, the property would go to his
wife with everything that he had in case of his death. He was sick
and nervous, and Buck did not press the matter. Brainard died of
Bright's disease, and was suffering therefrom at the time, though
it was not then known. "
Page 184 U. S. 107
"On March 12, 1880, he paid $1,266.66 on the mortgage with
Buck's money in his hands."
"Sometime after that Brainard made a statement in writing of the
cost of the property, showing the payments made with Buck's money,
and stating therein that he proposed to convey to Buck a half
interest in the property, and to give him his note for the excess
paid over one-half. He expected to be able to pay back to Buck this
excess, and also to finish paying for the property."
"Buck testified that he did not agree to this, but let matters
run on because of Brainard's nervous condition, and because he
expected the will of Brainard would invest the legal title in his
sister. Brainard died without completing the payment for the
property."
"Mrs. Brainard remained in possession, claiming under the will,
but conveyed the title to Buck, who paid the last mortgage,
amounting to nearly $2,000. Mrs. Brainard made her home there until
she died on March 31, 1892. Buck was frequently there, and
contributed to her support. When she died, he leased the property
and has since collected the rents, kept the property in repair, and
paid all the taxes."
"Without going into further details, it is sufficient to say
that the evidence on behalf of Buck, corroborated on all material
points by the entries in the book of Brainard, shows clearly that
the purchase of the property was made with his money in the hands
of Brainard for investment, and that Brainard was his agent and
trustee, and not his debtor for money lent for the purpose. From
these facts, it is clear that a trust resulted in favor of Buck,
which entitled him to a conveyance of the legal title. 2 Pom.Eq.
sec. 1037."
We think the law in this respect was correctly stated by the
court below.
The defendants also rely upon the defense of laches on the part
of the complainants, in that they permitted so long a time to
elapse after they knew that the title was in the name of
Brainard.
We also agree with the court below that this defense is not
sustained. When the knowledge came to the complainant
Page 184 U. S. 108
Buck that the title was in Brainard, Buck asked him to transfer
it to the complainant, and stated that he (Buck) would pay the
balance of the purchase money unpaid on the premises. This Brainard
disliked to do, and wanted Buck to wait and see if he (Brainard)
could not make payments, and thus keep the house for himself.
During this time, Brainard was ill, and, as it subsequently
appeared, was then suffering from Bright's disease, although he did
not then knew the cause of his illness, and the complainant says
that he acquiesced because he did not wish to worry Brainard, and
so the matter ran on for a little while, and was terminated by the
sudden death of Brainard without anything having been done.
This did not amount to any settlement, nor did it in any way bar
the rights otherwise existing in favor of the complainant Buck. It
was a mere hope expressed on the part of Brainard that he might
thereafter be able to pay for the house and a passive acquiescence
on the part of the complainant that such effort might be made. As
is said, nothing was ever in fact done, and no real alteration was
ever made in the position of the two parties.
We have, then, the conditions of the title taken to the property
in the name of Brainard, unknown to the complainant at the time,
and the money furnished by Buck to Brainard as his agent, and put
into the purchase of the house and lot. Subsequently, and a short
time before the death of Brainard, Buck discovers the fact, and
Brainard and his wife are then living on the premises. He knows
that Brainard has made a will in favor of his wife, for he has been
told by Brainard that, upon his death everything was to go to her,
and wants his sister to have a home, and is entirely satisfied in
that way. He believed that the property would pass to the wife by
the will in case of the death of Brainard. After Brainard's death,
his widow (complainant's sister) remains in the house, and Buck
contributes to her support while living there. She conveys the
premises to him by deed, and he supposed that he thereby acquired
full title to the premises, and paid the balance of the purchase
money. After the death of his sister, he takes possession of the
property, and has continued in possession ever since, and it
Page 184 U. S. 109
was not until after the commencement of the action of ejectment
that the complainant Buck had any knowledge that the legal title to
the premises did not pass to his sister under the will of her
husband, because it was acquired subsequently to that will. That
action of ejectment was commenced in 1897, and this bill was filed
April 15, 1898. These facts, we think, are sufficient to excuse all
the delay that has been shown to exist in this case. It is covered
by the principles laid down in
Ruckman v. Cory,
129 U. S. 387,
129 U. S. 389,
and
Townsend v. Vanderwerker, 160 U.
S. 171,
160 U. S.
185-186.
Upon this subject we fully agree with what was said by Mr.
Justice Shepard, in delivering the opinion in this case in the
Court of Appeals, as follows:
"Buck entertained affection for, and had perfect confidence in,
Brainard. He was anxious to secure a comfortable home for his
sister. Brainard became seriously ill, and his condition was such
that Buck would not aggravate it by importunity. Besides, he was
assured that Brainard would devise the property to his sister. In
fact, Brainard had made, and executed with due formality, a will
leaving everything to his wife. This will was then, and until the
institution of the action of ejectment, supposed to operate a
conveyance of the property in question. Buck, so believing, took a
conveyance from his sister, who was childless, and paid off the
last encumbrance. He suffered her to occupy the house until her
death. In the meantime, none of the heirs-at-law of Brainard made
any claim to the property. Their apparent acquiescence tended to
confirm Buck, who was in actual possession all of the time, in the
belief that his title was perfect. There was nothing, therefore, to
suggest the necessity or importance of resorting to a court of
equity for the confirmation of that title until the institution of
the action of ejectment. When aroused to action, he was diligent in
taking it. This long, undisturbed possession, under a title
supposed to be perfect, presents a stronger excuse for delay, also,
than that held sufficient in
Ruckman v. Cory, 129 U. S.
387,
129 U. S. 389, wherein it
was said:"
"Nor has the plaintiff been guilty of any such laches as would
close the doors of a court of equity against him. He was in the
peaceful occupancy of the premises for some years prior to
Page 184 U. S. 110
any assertion of title upon the part of the defendant under the
deed of 1872. If he had not been all the time in the possession of
the premises, controlling them as if he were the absolute owner,
the question of laches might be a more serious one than it is. The
bringing of the action of ejectment was, so far as the record
shows, the first notice he had of the necessity of legal
proceedings for his protection against the legal title held by the
defendant. As proceedings to that end were not unreasonably
delayed, we do not perceive that laches can be imputed to him.
Laches are, rather, imputed to the defendant, who, although
claiming to have been the absolute owner of the lands since 1862,
took no action against the plaintiff until the ejectment suit was
instituted."
The last objection made by the appellants consists in an
assertion that in no possible view of the evidence, even upon a
proper bill, could Buck be properly held to be entitled as a matter
of equitable right to more than a decree for an accounting, wherein
he should be credited with advances of money made by him to
Brainard in the latter's lifetime and invested by the latter in the
property, and further credited with the sum paid by him after
Brainard's death in the settlement of Brainard's debt to the
building association secured by the deed of trust (thus subrogating
him to the rights of the association), and charged with rents and
other proper offsets and with an equitable lien on the property for
the balance thus found to be due, if any.
Taking the facts as found by the courts below, this claim is not
well founded. The moneys of the complainant Buck were used by his
agent Brainard in the purchase of the premises, and at the time of
the death of the agent the whole purchase price had not been paid.
After his death, that balance was paid by Buck, who thus paid every
dollar that has gone into the purchase price of the premises, and
the substance of the whole evidence tends directly to show that,
while the funds were used by the agent with the assent of his
principal, Buck, the taking of the title in Brainard's name was
unknown to his principal. Buck's money, and Buck's money alone, has
been paid for the whole premises, and there is neither equity nor
justice in refusing him the legal title to the property purchased
with his own money.
The judgment should be
Affirmed.
