Hawkins v. Chapman

Bowie, J., delivered the opinion of the Court. The counsel of the parties to this cause, in their briefs and arguments concede, that the main questions presented by the record are, 1st. Whether there are proper parties, which necessarily involves the true construction of the instrument sought to be enforced as a deed of trust. 2d. Whether the 'claims set out in the deed are barred by laches and lapse of time ?

The original bill was filed in the County Court of Charles county, as a Court of Equity on the 1st of March, 1827, by Francis W. Hawkins, as trustee, for William • Hamilton and Edward Hamilton, executor of Edward, against Elizabeth ⁹² Chapman, widow of Samuel Chapman, and John G. Chapman and others, his children and heirs. The bill charged that Francis P. Hamilton and wife, on the 8th of May, 1809, executed to the complainant a deed of trust, for the purpose of securing and indemnifying the said William and Edward for certain securityships which they entered into -for the said Francis P. Hamilton, as by copy of the deed therewith exhibited, and which it is prayed may be taken as a part of the bill, will appear. The bill further charged, that in consequence of superseding those claims, Edward and William, in the life time of Edward, were compelled to pay the judgments. That the land so as aforesaid conveyed became liable to other judgments and demands, which the said William and Edward Hamilton, anxious to save the said Francis P. Hamilton and wife, paid off.

The complainant charged, that no part of the money paid on these claims had been reimbursed, but Francis P. Hamilton had died insolvent, and that the said Hamilton’s oestuis que trust relied on the land conveyed by the deed of trust aforesaid, which they claimed was liable for their whole disbursements. It is further charged, that a certain Samuel Chapman, since deceased, (the husband and ancester of the defendants) some time after the execution and recording of the deed of trust, purchased the lands conveyed to the complainant, with full knowledge of the liabilities and their amounts, imposed on said lands, and estimated them in contracting for the same, as part of’ its price, and frequently promised the payment of the same, but has wholly neglected to do so. The bill further charged, that Samuel Chapman died about eighteen months previous intestate, whereby the lands had descended to his widow Elizabeth and children, John G. Chapman, Etheldra, wife of Morgan Harris, and Henry Chapman, a minor, who were in possession of the same. The complainant prayed, that the land and real estate mentioned in the deed of trust might be sold to pay and reim ⁹³ bnrse to the said William Hamilton and Edward, executor of Edward, deceased, the several sums of money so as aforesaid due and owing to them and their costs and charges, etc., and process against the widow and heirs of Samuel Chapman above named.

On the 28th of March, 1833, the joint and several answers of John G. Chapman, Elizabeth P. Chapman, Morgan Harris and wife, were filed. They admit they had been informed that a deed of trust had been executed by Francis P. Hamilton and wife to the complainant, to secure William and Edward Hamilton, “but they were not informed of the truth of this information,” and deny all the material averments of the bill. The deed of trust exhibited with the bill, after reciting that Edward Hamilton and William Hamilton have superseded for Francis P. Hamilton, five several judgments, (enumerating them,) and that the said Francis is desirous of securing them against any damage or injury which might arise in consequence of having become his security, witnessed, that the said Francis and Letitia for and in consideration of the premises, have given, and by these presents do give, grant, etc., unto Francis W. Hawkins “ all their right, title and interest of and into ” the lands, etc., “ in trust for the use and behoof of the above named Edward and William Hamilton; provided always and nevertheless, that if the said Francis P. Hamilton shall save Edward Hamilton and William Hamilton from all damage or injury which might arise, from superseding said above recited judgments, that then and in that case, this indenture to be void, etc.; otherwise, to remain in full force and virtue in law.” This synopsis of the bill, answer and exhibit, is sufficient to present the questions depending on the construction of the deed. It is contended on the part of the appellant, that the deed conveyed a legal estate in fee to Francis W. Hawkins, subject to a contingent; executory trust, to sell, and indemnify William and Edward Hamilton. ⁹⁴ On the other hand, it is insisted by the appellees, that as the deed contains no words of limitation or inheritance, it conveyed an estate for life to the grantee in trust, for the use and behoof of Edward and William Hamilton, which use was executed in the ceslúi que use, and terminated with the life of Francis W. Hawkins.

The duration and nature of the estate created and conveyed by a deed depends often as much upon the intention of the grantor and the end to be attained, as upon the language employed. The text writers and reports establish beyoud doubt that words of limitation or inheritance are not essential to create an estate iii fee; nor is the nature of the estate conveyed, whether a trust or use executed, determined so much by the terms used, as the object to be effected. In Hill on Trustees, 455, it is said, “A trustee will take the fee without the word ‘ heirs/ when necessary for the trust.” The same principle is announced in Spessard, et al., vs. Rohrer, et al., 9 Gill, 262, where the deed conveyed lands without the word “ heirs ” to a trustee, with power to sell to pay debts. “ So an assignment of an interest in trust will carry a fee without words of limitation, when the intent is manifest.” 4 Kent, 304. “ The trustee, it is believed, had the power to dispose of, the fee.” . “ It is not any estate or interest of the grantee in the deed of trust that is to pay the debts; it is the estate of the grantor from whom the estate is derived.” 4 Kent, 263. The same doctrine is announced in Farquharson vs. Eichelberger, &c., 15 Md., 72, 73 , where the case in 9 Gill is referred to and cited.

And whether the estate conveyed was a trust or use executed, is determined rather by the end to be attained than the language employed. “A gift or grant of property to a grantee or donee to be applied to a certain use or purpose, fastens-a trust on the holder of the legal estate.” Hill on Trustees, 65; Malim vs. Keighley, 2 Ves. Jr., 335; Moore vs. Darton, 7 Eng. L. & E., 174; Ware, et al. vs. Richardson, 3 Md., 505 . ⁹⁵ It is obvious the object of the grantors was to indemnify their surety. The instrument was in the nature of a mortgage, with an executory trust, conditional upon the payment of the judgments referred to, vested in the trustee.

In order to secure the Hamiltons from the damage or loss which they might incur in consequence of their suretyship, it was necessary the trustee, or grantee, should have a power to sell and convey in fee, which power, as well as the estate in fee, will be raised by implication. Hence we conclude, that by virtue of the intention of the grantors and the ends to be accomplished, the deed conveyed to the grantee the legal estate, in fee, in the lands therein described, with power to sell and convey, for the benefit of the cestuis que trust on condition; which being a naked trust, unaccompanied Avith a beneficial interest, descended to the heir of Francis W. Hawkins at Common Law, as provided by the Act of 1831, ch. 311, sec. 11. Vide Code Pub. Laws, Art. 47, sec. 24; vide Duffy vs. Calvert, 6 Gill, 487 ; Winder vs. Diffenderfer, 2 Bland, 172 , (note B.) When Francis W. HaAykins, the original complainant, died, does not appear from the record.

His death was suggested on the 30th of May, 1843. An exemplification of letters of administration on In's estate, issued by the register of wills of Charles county, on the 20th of August, 1840, was filed on the 7th of May, 1844, Avith an agreement of counsel of the same date, in Avhich it is admitted that the complainant is dead, intestate, and that administration on his personal estate has been granted to Josias Hawkins, of Charles county; and that the cause shall be treated as regularly revived in his name against the defendants. “ The necessity for the joinder of any other party as complainants or defendants being hereby dispensed with,” etc. The validity of this agreement by counsel, one of Avhom represented a stranger in interest in the cause, was incidently discussed, and it might have been material to be considered, but that its effect, and that of the order passed thereon, Avhat ⁹⁶ ever it "was, ceased with the life of Josias Hawkins, whose death was suggested 2d of March, 1850. In the interval, from 1844 to 1850, the cause was entitled, Josias Hawkins, Adm’r of Francis W. Hawkins vs. John G. Chapman, et al. The legal estate in the premises, and the trust fastened on it by operation of law, did not devolve upon the personal representative of the deceased trustee. The appearance of the administrator therefore could not revive the cause.

The case being remanded to the Circuit Court of Charles county, after the Chancery Court was abolished, John Hamilton, representing "himself to be a party in interest in the case, and entitled to receive'the money, for which it is claimed the land in the proceedings mentioned is responsible, filed his petition on the 12th of December, 1857, entitled, “In, the matter of Hawkins, trustee, vs. Chapman and others, alleging as follows: The death of Josias Hawkins having been suggested, and there being no trustee to conduct said proceedings, your petitioner respectfully prays your Honor to appoint a trustee to succeed the said Josias Hawkins, heretofore appointed by consent, to suceeed the original trustee; which said trustee, when appointed, may be substituted to all the powers and rights of the former trustee.” On which an order nisi was passed, appointing Josias H. Hawkins trustee, unless cause be shown on or before the first Monday in February, 1858. The defendants, on the 11th of May, 1858, filed several objections — among others, “That if the aforesaid trust is transferable, (which these defendants do not admit,) the Act of Assembly directs who shall execute the trust.” On the 29th of May the administrators of Josias Hawkins filed their renunciation of the trust, and on the 28th of June, 1858, it was, by the Circuit Court of Charles county in Equity, ordered, “ that no cause to the contrary having been shown,” Josias H. Hawkins be