HICEOK· t1. WOOD;-,
'(
the two states: 'The of the bridge, by the. county of DOlli.. phan was.exeessive,but the agreed statement of facU! shows the exact proportionth1tt is west of the center of the channel. The decree will therefore ,be that, upon payment within 60 days by the complainant of that proportion of the entire tax which the length of that portion of the bridge in Kansas bears to the whole, an injunction will issue restraining the collection of the balance. Failing to make such payment, the suit will be dismissed.
HIcxOK
17.
WOOD.
(Ci1'C'ldt CO'lIh't, S. D. New York. December 80,
L
T.aUST&-RIGltTTO FOLLOW TRUST
Ftnros. Defentdant'sfather held the title to lands upon a secrettrustforthe complainant. He conveyed t.l1is land to the ,defendant without and upon a secret trust for himseif. Defendant,by direction of his father, exchanged this land for the equity of· redemption in other land, wbicb was SUbject to several mor1;gB/ites, taking the title in bis OWIl name upon a secret trust for his father. Tllis exchange was made for thebeneflt. of the complainant, and pursuant to a secret agreement between the eompll1inant and the defendant's fatber·. The defendant had no notice of the equities of the complainant in eitber parcel of land. Subsequently tbe defendant, at the direction of bis fatber, conveyed: tbe equity of redemption to satisfy the incumbrances. He bad no notice at tbat time oUbe equities of tbecomplaiDant. BeZd, t)lat. he.incurred no. liability to complainant as a trustee. A.lai> held, upon tbe evidence. tbat tbe complainant Dad. rati1led the conveyance of the equity of redemption, to satis!y tile incumbrances. .
2.BAMB-I4TJIIIOATION OF CONVEYANOE.
i
In Equ'ity. CarliBle Norwood, Jr., for complainant. A. H. Stoiber, (Joseph H. Choate, of cOlilnsel,) for defendant.
WALLACE, J. In September, 1878, FernandocWood conveyed to his BOn, the present defendant, certain real estate situate at Bergen P'oint, N. J., without consideration, and about the same time the defendant, at the request of Fernando Wood, exchanged this p.roperty with one Shaw fo:ltertain real estate in New York city known as the ":5ixty-Third Street P.roperty," then subject to certain mortgages. The complainll.ntavers in' the present bill of complaint that the Bergen Point property was in fact hers, the title being held upon a parol trust for her sole benefit by Fernando Wood; that the exchlinge for the Sixty-Third street property .was' made for, her sole benefit,and upon a parol trust to that effect betweep Fe,rnando Wood and 'herself; that she I!lubsequently paid to Fernando Wood tnoneys sufficient to' pay the mortgages upon the SixtyThird street property, and for tbat purpose,which moneys were received by the defendant, who applied some ofthem, and retained others for his own blmefit;· and that the defendant has refused to account for the oftheJBergenPoint property,. or the Dloney 'SO received by him.
nDEBAL REPORTER,
vol. 41.
lM79, to satisfy the incumbrances thereon, and the complainant insists that, as the defendant was not a purchaser of the property for a valuable consia:eration, it waS impressed in his hands with the trust, as it would have been in the hands of Fernando Wood, and he must account for the value of her interest therein. The following facts are disclosed by the evidence in the record: In the spring of 1872 the complainant applied to Fernando Wood for pecuniary assistance to enable her to acquire a home, consisting of a house and lot, at Bergen Point, N. J., where she was then residing with her husband. Mr. Wood advanced her $300, she herself paid in $250 '''wards the purchase, and June 12, 1872, she received a deed of the property from the prior owner, subject ,to two mortgages, -one for $4:,000, R.uda second for $1,750j arid thereupon she executed to Wood a mortfor $30.01 to; secure him for his)olln... had no means or her own, and her relations with her husband were strained. When due shE! was t01Jleet it, the $300 mortgage to Mr. Wood and applied to'hhn for furtherassistancej and soon after, in June, ,1873, Mr. Woodpaidit'p for her the $1,750 the accrued interest thereon,tpgether. with a small. judgment. which had· been obtained against hl;lr,' and the amounts,· together with th, amount of ,l1iS ,own , mortgage, were included in a new mortgage from her to him for $2,300. About this time ,the her and Mr. Wood seem to have assumed a more confidential and intimate characterj and somewhat later Mr. Wood foreclbsed Ms mortgage, arid in April. 1874. bought the-property in at the foreclosure sall;l,lilnd wok a deed to himself, .sut>ject to the prior mortgage of $4,000. "This was done far her benefit. and in part to protect her from any interference by her husband, from whom, in the In July, 1874, Mr. Wood:paid mean time, she had become off the prior mortgage, which, witli the accrued Interest, amounted to $4,325, and in: Fehrll8ry; 1875; he .gave her a receipt, acknowle.dging payment to him "in full of all demands on account of Bergen Point prop; erty'." . In the SUmmer or {all of ,1875 complainant became a member . of Mr. Wood's household, and from that time until he died resided with . him as one of his family, taking care of his children, and accompanyir:t,g "him wherever he went for any stay. Soon afterwards he ';'ty, bought for her a $20,000 house, on Fifty-Ninth street, New tbe.deedbeiogexecuted to he:r, sul)ject to Po mortgage of $6,500, he subsequently paid off. In 1876 he ailt to exchange the Bergen property for vacant real estate)n, the . city of New York (the Sixty-Third street property) subject to mortgages on which $18,000 \Vas unpaid.J\.t tllis,time ¥r., Wood was . embarrassed,and conveyed the title,to .a11 real estate held by him to ,his son, the defendant. PUrBua,nt to an, understllnding between Mr. Wood Bergen ,.property: for the and the complainant, . equity .the Sixty-Third .street property was effected, early in September, 1876,. Mr. Wood executed, a ,dee.d,.of Bergen '.rhe of Point property to
'the Sixty-Third street property was conveyed by the defendant in· May,
HICKOK ". WOOD.
21
property to the owner of the Sixty-Third street property, and thereupon the latter executed a deed of the property to the defendant, conveying it subject to the payment of the existing mortgages thereon. From that time until the spring of 1880 the defendant had the general management of the real estate belonging to his father in the city of New York, consisting of many different pieces of property, and, acting under the instructions of his father, executed many conveyances thereof. In August, 1878, Fernando Wood wrote to the defendant that he could not pay the mortgages, taxes, and assessments on the Sixty-Third street property; that theie was then over $400 interest dup., besides taxes and assessments, and he should abandon it. Foreclosure proceedings were commenced, upon the mortgages. After various unsuccessful efforts to sell it, Fernando Wood finally procured Mr. Crimmens to purchase it, and, assume the payment of the incumbrances, paying him $500 as a .for doing so. Thereupon, May 2, 1879, the defendant conveyed the, property to Crimmens. The interest on the mortgages had been paid until 1878, in part by the defendant out of moneys of his fain part by Fernando\Vood himself; but ,no part oLthe principal sum, bad b.een paid except. the sum of< $500, which was paid in February, Fernando Wood knew all the facts, and in making the conveyance to Crimmens the defendant acted merely as the' instrument of his father. From 1875 to 1879, inclusive, Fernando Wood was a member of con" gress, and resided· a considerable part of his time in Washington. During these years, especially in 1877, the complainant received considerable sums of money as presents, some being given to her by him directly, and some indirectly, through other persons in Washington. After 1876 ,she also received the rents for the house he had given to her street, $150 to $200 per month, when it was not vacant. on The moneys derived from these sources were intrusted by her to Mr. Wood to keep and invest for her, or to use temporarily for his own purposes. In the springof 1877 there was a crisis in his financial troubles, .and he prepared to prevent his creditors from stripping him of what he had. In AprH of that year he wrote complainant a letter, containing a .statement that he had more than enough money of hers in hill hands to pay the mortgages and taxes on the l:;ixty-Third street property. About this time he gave her a written receipt for $3;800, "to be applied, as r6-' .quired, for mortgages and taxes on Sixty-Thlrdstreet property," and two others, without date, one for $1,200, and one for $1,050, "sent J. L. R. Wood [the defendant] on account of Sixty-Third street pr9P-erty." About the same time he'also gave her three notes or due-bills, -two for $2,000 each, and for $1,000. Until after the death of Fernando.Wood. the defendant ,had no information that the complainant had any il)tere$tin the Bergen :£>oint property, or in the, Sixty-Third street property, or that any of the moneys he had received from his or from the complainant. lnMay, 1889, rather carne being to go abroad,he desired to have an adjustment with his 1ather respecting the transactions in he had acted as .his agent; ..
FEDERAL}Bl:POBq.ER,: vol.
41.
"
and thereupon: Fernando Wood'exeoutedto him a bond of indemnity to save him 'harmless from all acts done in his agency, specifying,among other things, the conveyance ,toCrimmens of the Sixty-Third street property. Fernando Wood died in,February, 1881. At the time of his deathcomplaifiant held his obligations, payable to her, for a large amount·. 'Among them was a note dated June 17,1879, for $8,000, "for moneys held in trust." Her claims against his estate, which were subsequently paid by his executors, amounted to $24,000. The evidence iuthe record leaves no room for doubt that at the time Fernando Wood had the title to the Sixty-Third street property taken in the name of the defendant he intended to have the property held for the complainant!s benefit,subject to the existing incumbrances. He expected that,it.would appreciate in value, and be a desirable investment for her. From that time until his expectations were disappointed, and the property becnme so depreciated that it was not worth the incumbrances.upon it, he doubtless intended to set apart out of his. gifts of money toher,o!' out of the moneys'he treated as hers, enough to pay off the incumbrances, so thatBheshould have the property free and clear. Apparently this intention sometimes took specific form, as when he gave ber the receipts· for money "to be applied to" or "on account of" that property. · Those receipts may' represent money which she had actually received, and then intrusted to him, or may represent sums intended as a present to her at the time, and which he designed to apply to the Sixty-Third street property. ltmay be that they were given merely as apart of his plan to protect her, alid make a provision for her futute at the expenseA)fhis creditors. Although he nevet sent the SUIDS mentioned in these receipts to the defendant, and never applied them him.self for the purposes indicated In the receipts, yet there is no reason to believe that he intended to mislead the com plainant, or do her any injustice, for he always treated her with lavish generosity and kindness. He waaso solicitous that she should be safe that he gave her written vouchers for everything he intended to regard as hers. The time came, however, when· he '\Vas unwilling to 'carry the property any longer, partly because he wasilnable to do so conveniently, amI partly beCause he no longer thought it a desirable investment. There is no direct evidence to that effect, but thecircnmstanceS ofthe case indicate most cogently that the complainant was fully aware of the situation at the time of the conveyance to Crimmens, and knew "that the property WIlS not worth any more thlln the incumbrances upon.' She wass constant companion of: Fernando Woddafter, as weUas'before, the conveyance of the property toCrimmens, visiting Eui'ope with him.,and staying there four or five months sh6rtlyslter it took place. The note fol' $8,000 given to ber 41{or moneys held intrust," shortly after the conveyance, was prob· ably given by fernando Wood 'and received by her as an equivalent for all the moneys which he had treated as hers, rernaining in his hands,' beyond the amount for which held his obligations. There is no idencethat he held any moneys in 'trust rorher, other than in this way, .. when the $8)000; note was made.. ..
.
WORTHINGTON V. CITY OF BOB'l:ON.
'23
Upon these facts there is no equity in the complainant's case, and nothing which entitles her to favorable consideration at the expense of the defendant. The defendant has not profited by her loss, even if she has sustained any. He acted in good faith in all he did, so far as she and.Fernando Wood were concerned. If he had surmised that she had any interest in the property, facts which appear in the record would have justified him in assuming that his father had full authority to deal with its.!l he pleased. The bill is dismissed, witbcosts.
WORTHINGTON
etal. v.
CITY OF BOSTON.
(Oircuit Oourt, D. L '.
11, 18110.) ,
as.t.Mte.'
'A city 6rdinance, provided that thEl'board make : nO'oontl'act or purchaselDvolvmg an expEmdltura of more tl:1jj,n $10,000 WIthout first adve!ttlsing for bids; . Afterwards the city council PWJsed an order authorizing the board, ,tacexchange cert-ain pumping-engines. HeW,: tllat ,lI>n ex:chanfllmllde without forbids, at an expenditure of mOre tnan'IIO,o.oo,was .Got binding on the CitY,the order not abrogating the terms of the ordinance. · ' Nor-did the fact that the pumping-engines to be proa1U'edin sucli ease were pat,. eD¥- rel,ieve the board froD:). of
,
'
This,'is an action to recOver damages forannlleged breach of oontract, dated?tl.hiy 19,1885. ,By this'contract the plaintiffs were to furriishtwo . fqf, the city of BostQIi the surn. 5.7.5.. city of refused to receive the ground : that the Boston water board, through whomthecOIltJ:lJ.ct was made,·ha;d De Buthority to make anycontrapt involving more than $10,000 without first advertising for proposals, which was not done in this case. It'is " the damagesosustained by the pJ,aintiffs, if is. .Hable on ,the contract, are $35,000. The be under.stoo\,! to sonwportions of the agreed statement f/l.Cts. .T he city of Bostoll was, to 1875, and! since has been, authorized to ',take water from Lake Cochituate, (called,' also, "Long ,Pond,")'Sudbury river, and My,stic lake, aqueducts, dams, lay pipes, establish hydrants, and supply its inhabit'.ants 'wHhwater, in sucb manner., by such agents,' officers, and servants, as city councilshaJ,l from time to time .Qrda.in, appoint, and di,rect, a.nd previous to the year 1875 had established the Cochituate water board' and 'the Mystic water board' to exercise: these powers,subject to the Of the :city. Chapter 80 of the' Statutes of Massa-,chusetts for the Year so jar as it is material.in this case,ia as fol-
At Law.
of
lows: .
'"
' , ' :'
'''The. city council of tbecity of Boston ltJ;lown as the 'Boston Water Board,'
by
a water able and