Saunders v. Clark

Urner, J., delivered the opinion of the Court. The tract of land, containing thirty-five acres, involved in this1 suit, was owned and occupied by a certain Perry E. Smith, prior to his death, which occurred in or about the year 1895. The property was subject to a mortgage for $103 executed Feb. 19, 1880, upon which no interest was paid after 1884. A further lien, to the amount of $101, was imposed upon the land, by a judgment against the owner and his wife, on which execution was issued in April, 1893. ¹¹⁷ These liens were purchased at the request of the debtors by Hon.

Geo. JVt. Russum, a former member of this Court. They continued to be held by him, without any payments being made on account of either principal or interest, until four years after Perry E. Smith’s death, when, in July, 1899, he obtained a decree for a sale of the property and the application of the proceeds to the satisfaction of his claims as assignee of the mortgage and j udgment.

The widow and some of the children of the deceased owner had remained in possession of the premises, and they, with all other persons interested, were made parties to the creditor’s proceeding in which the decree for the sale was passed. Judge Russum was appointed trustee to make' the sale, and he subsequently reported to the Court that he had sold the property to- a certain Robert W. Henutt for the sum of $400. The sale was made on November 11, 1899. The same day Judge Russum, as attorney for the purchaser, and as trustee, signed an agreement which provided that the trustee and the purchaser would convey the property to Ann M. Smith, the widow of Perry E. Smith, deceased, upon the payment by her to Judge Russum of the amount due him under the decree), with interest and costs, and the reimbursement of Mr. Henutt for any expense he might incur in the meantime for taxes and improvements.

It was stipulated in the agreement, however, that the option it conferred should be null and void on and after October 1, 1900, if not exercised prior to that date. The sale was not reported to the Court until July 18, 1900, and was not ratified until the day after the expiration of the option period. Tn the following January an Auditor’s Report was filed which charged the trustee with $400 as the proceeds of the sale to Robert W. Henutt, and, after making provision for costs, commissions and taxes, applied the net balance of $273.01 to the partial payment of the indebtedness established by the decree, which amounted with interest to $382.67. The audit was finally ratified in April, 1901. ¹¹⁸ Ann M. Smith continued to occupy the property with some of her children until her death in 1908.

Erom that time until March 16, 1913, her daughters, Elmira Gould and Rosalie Smith, and the husband of the former, were in possession. The other children had been living away from the place for a number of years, except for occasional visits, one of them, Mary Saunders, having, however, furnished to her mother the money required for the payment of the taxes on the property, which was listed on the assessment records in the names of “Perry Smith’s heirs” and “Ann M. Slmith’s heirs” successively. By deed dated February 20, 1913, Robert W.- BEenutt conveyed the land to J. Oían Clark, who, on March 13, 1913, transferred it by deed of that date to Thomas L. Day, and he in turn conveyed it five days later to' Charles F. Cherry. In connection with his acquisition of a record title to the property for which he paid about $325 to the agent of the grantor, Mr. Clark effected an agreement with Elmira Gould to give him possession in consideration of the payment to her of a sum approximating $515.

The amount thus agreed upon being duly paid, the occupants of the premises thereupon moved away, and Mr. Clark delivered possession to his grantee, who relinquished it to- his successor in the title. The present suit in equity was instituted by the heirs at law of Perry E. Smith, including Elmira Gould, and its object is to have them decreed to be -the owners in fee simple of the land in question and entitled to its- possession, and to have the title conveyed to them by a trustee to be appointed for that purpose. No question has been raised as to the jurisdiction of the Court to entertain the proceeding. The main theory of the suit is that in view of the long continued occupancy of the property by Ann M. Smith and her children after the termination of the period -fixed in the option agreement, the presumption is that the privilege of purchase thereby given was exercised according to its terms.

There has been no- evidence offered tending to show affirmatively that the option was in reality availed of, but an inference to that ¹¹⁹ effect is sought to be drawn solely from the circumstance that the pre-existtng tenure of the person to whom the option was given remained so long undisturbed. This is not a sufficient ground upon which to- raise such a presumption. The mere fact that the purchaser under the decree refrained for thirteen years from an active assertion of his ownership, certainly could not,