Northern Chief Iron Co. v. Hosmer

The questions raised by the appellant on this appeal are purely questions of fact. If the circuit judge was right in his findings of fact, then this judgment cannot be disturbed. We cannot undertake to review the testimony bearing on the findings of fact which appellant challenges. It is very voluminous, and the merest attempt to make an abstract of the testimony would well-nigh consume a volume. Careful and thorough consideration of the record convinces us that there is no material finding which can be said to be against the preponderance of the evidence.

The important and material contentions raised by the appellant on this appeal are (1) that the conveyance of Wilson, the trustee, to Mrs. Hosmer, of March 12, 1878, was without consideration, fraudulent, and in fact passed no title, legal or equitable, to the lands in controversy; (2) that the agreement of settlement of April 18, 1878, be*90tween Mrs. Hosmer and Gilmore, did not include the lands in controversy; (3) that the equitable title passed by the decree of the supreme court of the District of Columbia of July 9, 1880, to C. D. Gilmore.

The first two contentions will be considered together. It is undoubted that these lands were partnership lands, and that the legal title was in Chipman. It may at once be conceded that Wilson, as trustee, could make no conveyance which would carry the legal title, because the lands had not been conveyed to him by Chipman; and it may also be conceded, for the sake of argument, that his conveyance would carry no equitable title, although that point is not decided. The situation then is this: Wilson had pretended to convey to Mrs. Hosmer the lands in suit, and received a consideration therefor by way of discharge of the firm' indebtedness. This, we think, is clearly established by the evidence: Gilmore, knowing of this pretended conveyance, files his bill in equity in the supreme court of the District of Columbia, and prays to have the conveyance set aside. Before trial of that action, Gilmore and Mrs. Hos-mer- settled their differences by the agreement referred to in the eleventh finding of fact, and Gilmore received under that agreement a deed from Mrs. Hosmer of a large quantity of land, including one third of these very lands in controversy, which he mortgaged back to her for unpaid purchase money. It is too clear for argument that this transaction amounted to a ratification by Gilmore of the unauthorized transfer by Wilson, and prevents him from now claiming that Wilson’s deed conveyed no title. But appellant contends that the agreement of settlement only refers in its terms to the lands sold at the Chicago auction, and. that these lands were not sold at that auction. Granting this to be true also, it seems clear from the evidence that all the parties then understood that these lands were sold at Chicago, and intended that the agreement of set*91tlement should cover them. The fact that a part of them were included in the deed and mortgage made pursuáht to the agreement of settlement would seem to be pretty conclusive evidence of the fact. This being the fact, the contract of settlement must be construed in the light of the ■surrounding circumstances, and, when so construed, the circuit judge was plainly right in holding that the settlement was intended to cover all the lands conveyed by.Wilson to Mrs. Hosmer.

This disposes of the first two contentions raised by the appellant.

The third contention falls of its own weight; for when it is shown that Gilmore ratified the attempted transfer by Wilson, he cannot be heard' to say, nor can his grantee with notice (and the plaintiff was properly held to be a grantee with notice) be heard to say, that the lands in suit remained partnership property and were covered by the terms of the decree of July 9, 1880. That decree only covered the remaining partnership property. Gilmore had, by ratifying Wilson’s attempted conveyance, converted that deed into a good conveyance of the equitable title of the partnership in the lands, at least so far as he was concerned. The plaintiff’s title then fails.

By the Court. — The judgment of the circuit court is affirmed.