Opinion
(December Term, 1856.)
1. Where words of inheritance are omitted in a deed, by the ignorance or mistake of the draftsman, a Court of Equity will supply them.
2. Where an executor sells lands, under a mistake of his power, and the proceeds are applied to the payment of debts, and the purchaser is evicted by the heir-at-law, the land, in Equity, will be subjected to indemnify the purchaser to the extent to which it was liable to the debts — the purchaser being subrogated to the rights of the creditor.
CAUSE removed from the Court of Equity of Mecklenburg county.
Boyden and Wilson, for plaintiffs.
Osborne, for defendants.
On the 29th of April, 1829, Thomas Kendrick borrowed of Robert I. Dinkins $1200, and gave his note, payable one day after date; at the same time he executed to James Dinkins, as trustee, a deed in trust for four hundred and fifty acres of land, lying on Sugar Creek, in Mecklenburg county, to secure the repayment of the same. The deed provides, that if the money is not repaid on or before the first day of the next January, it shall be lawful for the trustee to sell the premises and make the money; but if it shall be paid on or before that day, the trustee is to reconvey the same to the said Thomas Kendrick and his heirs and assigns. To which is added, a general warranty of the land to the said James Dinkins and his heirs; but there are no words of inheritance in the conveying part of the deed; so that only an estate for the life of the trustee was, in law, conveyed to him. Thomas Kendrick died in October, 1829, and Stephen Fox administered on his estate. James Dinkins, the trustee, died in 1830, leaving a last will and testament, in which Lewis Dinkins was appointed executor, who duly qualified.
The money secured by the deed in trust not having been paid in the year 1830, Lewis Dinkins, supposing that he had power, as executor, to act as trustee, advertised and sold the premises at public auction, when the cestui que trust, Robert I. Dinkins, bought the same at the price of $1660. He receipted the note held on Kendrick in full, for principal and interest, amounting to $1321,80, paid the remainder of the purchase-money, to wit, $338,20, (which was paid over to Fox, the administrator of Kendrick,) and took a deed in fee simple from Lewis Dinkins, the executor.
In 1832, Robert I. Dinkins sold the land in question and made a deed in fee for the same to Benjamin Person, who took immediate possession thereof, and on the 12th of December of the same year, sold the same, by a deed in fee simple, to Eli Springs, the ancestor of the plaintiffs, who took possession, which he continued until his death in 1833, and the plaintiff Tirza, as the widow, and her children, as heirs-at-law of the said Eli Springs, have continued the possession ever since.
In 1845, the defendants, William Harven and his wife, Margaret, brought an ejectment against the plaintiff Tirza Springs, and having recovered judgment therein, were about to enforce a writ of possession, and to turn the plaintiffs out of possession. The plaintiffs, in their bill, allege that the omission of words of inheritance, in the deed from Lewis Dinkins to Robert I. Dinkins, was made by the ignorance or mistake of the draftsman, for that it was fully intended to convey the land in fee simple.
The prayer is for a correction of this deed so as to meet the intention of the parties, and for an injunction to stay the execution of the writ of possession, also for general relief.
The defendants answered. There was replication to the answer, also commissions and proofs taken. The cause being set down for hearing was sent to this Court.
We are entirely satisfied that it was the intention of the parties to convey a fee simple estate by the deed from Kendrick to James Dinkins, and that the word "heirs" was omitted by ignorance or mistake on the part of the draftsman. Besides the stipulation that, upon the payment of the $1200, Dinkins is to reconvey to Kendrick and his heirs, and the covenant of warranty by Kendrick and his heirs to Dinkins and his heirs and assigns, the object of the deed, and the purpose for which it was made, speak for themselves and show that Dinkins was to have the fee simple, with the power to sell and raise the money in the event of default on the part of Kendrick. If this was the only difficulty in the way of the plaintiffs, they would have a clear equity for the conveyance and perpetual injunction as prayed for, under a familiar doctrine of this Court.
But the sale of Robert Dinkins was not made by James Dinkins, the trustee, but by Lewis Dinkins, his executor, who had no power to sell, and, of course, Robert Dinkins acquired no title to the land. To mend this difficulty, the plaintiffs must have recourse to another well established doctrine of this Court, namely, that of "substitution." According to this doctrine, the plaintiffs are not entitled to the land, but have an equity to be substituted to the place of the creditors of Kendrick, whose debts were paid with the money received from Lewis Dinkins, arising from the sale of the land. That money discharged debts for which the land was liable, and as the defendants take the land, of course they take it subject to the repayment of the money, by means of which the land was exonerated. Scott v. Dunn, 1 Dev. and Bat. Eq. 425, is in point as to the application of the principle, and also as to the mode of redress. There it is said, "The doctrine of substitution is not founded on contract, but on the principle of natural justice; unquestionably the devisees cannot be injured by the mistake of the executor as to the extent of his power over the land, but that mistake should not give them unfair gains."
In our case, supposing the mistake in reference to the omission of the word "heirs" to be corrected, a resulting trust would have descended to the defendant Margaret, as heir of Kendrick, subject to the payment of the debt secured by the deed, and also to the other debts of Kendrick, which his personal estate was not sufficient to satisfy. As to the debt secured by the deed, the plaintiffs' right to substitution is unquestionable; but in regard to the balance of the purchase-money paid by Robert Dinkins to Lewis Dinkins, and by the latter paid over to Fox, the administrator of Kendrick, the right of substitution will depend upon the fact whether that fund was liable for the payment of the other debts of Kendrick, and that will depend upon the sufficiency of the personal assets.
These facts can be ascertained by a reference, and there will be a decree for the sale of the land unless the defendants elect to pay said amount, with interest from the time of the sale, after deducting the rents and profits of the land. In other words, the land must stand as a security for the debts from which it has been exonorated, and thus, "while the defendants are not injured by the mistake of the executor as to the extent of his powers, that mistake will not be made use of to give them unfair gains."
There must be a reference for an account, and the cause is retained for further directions.
PER CURIAM. Decree accordingly.