The above appellants seek a review in this court of the judgment of ing a judgment of the supreme court of the district enjoining the appellants from the further prosecution of an action of ejectment brought by them against appellee Coleman in the supreme court of the district, to recover a one-fifth interest in a house and lot in the city of Washington, in the possession of Coleman as tenant of appellee Leffert L. Buck, who claims to be the owner thereof. The appellees, Buck and Coleman, commenced this suit in April, 1898, and in their bill of complaint they alleged the bringing of the action of ejectment on or about July 26, 1897, by William H. Brainard, as one of the heirs of his brother, the late Charles F. Brainard, to recover an undivided one-fifth interest in the real estate mentioned. The bill further alleged that the complainant Buck was the brother of one Cornelia A. Braninard, whose husband was Charles F. Brainard, both of whom lived in the city of Washington up to the time of the death of Charles on May 13, 1881, and the [184 U.S. 99, 100] widow thereafter continued to live in that city until her death on March 31, 1892. On June 12, 1872, Charles F. Brainard, the husband, made and executed his last will and testament, by which he devised and bequeathed to his wife all of his property of every kind and description for her own use and benefit. Afterwards and on July 18, 1879, there was conveyed to Charles F. Brainard by deed the premises in question. After the death of Charles F. Brainard and on March 31, 1882, his widow, by deed, duly conveyed her title to the premises to her brother, the complainant Buck. The bill then contained the following averments:
The bill then set forth the names of the surviving heirs at law of Charles F. Brainard, and averred that some of them had quitclaimed the property to the plaintiff Buck. It is also averred that from the time of the death of Charles F. Brainard his widow lived in the house, and that she conveyed the premises to Buck by deed on March 31, 1882, and that he believed that the legal title was in him until the commencement of the ejectment suit, when he was advised that the will of Charles F. Brainard did not convey the property to his sister for the reason that it was acquired by Brainard after the execution of the will, which did not operate to convey after-acquired property.
For relief, the bill asked that the plaintiffs in the action of ejectment might be perpetually enjoined from further prosecuting the same, and that it might be declared that the land in question was charged with a trust in favor of, and ought to be held for, the use and benefit of the plaintiff Buck, and that the defendants, or such of them as should appear to have the legal title to the lands, should be decreed to convey such legal title free and clear of all encumbrances done or suffered by them or any or either of them unto the plaintiff Buck.
The defendant William H. Brainard demurred to the bill on the ground, among others, that the promise set forth in the bill was not in writing or signed by the deceased, Charles F. Brainard, and was within the meaning of the statute for the prevention of frauds and perjuries; also that Buck had been guilty of gross and inexcusable laches in bringing his suit.
The demurrer was sustained with leave to the plaintiffs to amend. Pursuant to such leave the plaintiff served an amended bill, which was a full and complete bill, taking the place of the original, and restated all the facts set forth in the original bill, but left out the above quoted 8th paragraph. The complainants in the 9th, 10th, 11th, and 12th paragraphs of the amended bill made the following averments:
The defendants demurred to this amended bill on the same grounds stated in the demurrer to the original bill, and also on the ground that a new and different cause of action had been set up in the amended bill from the one in the original bill. The demurrer was overruled, and the defendants thereupon answered, in which, among other things, they denied complainants' allegation as to the payments for the premises by Buck, and averred that the purchase money for the premises had been paid out of Charles F. Brainard's own funds in cash or by his notes secured by deed of trust, which notes were subsequently paid by Brainard.
Upon the trial there was a final decree in favor of the complainants, and the defendants were enjoined from prosecuting [184 U.S. 99, 104] the action at law, and they were directed to convey, quitclaim, and release the real estate unto the complainant Buck, and in default of their doing so it was adjudged that the decree then given should operate and stand as such conveyance, quitclaim, and release.
Messrs. Leo Simmons, H. T. Taggart, and D. W. Baker for appellants.
Messrs. E. V. Brookshire and Nelson L. Robinson for appellees.
Mr. J. Coleman for Leffert L. Buck, appellee.
Mr. Justice Peckham, after stating the above facts, delivered the opinion of the court:
The appellants insist that the supreme court of the District had no power to authorize the amendment which was made by the appellees to their original bill in this suit, because, as they assert, the cause of action set forth in the amendment is new, different, and distinct from that set forth in the original bill, and that therefore the demurrer to the amended bill should have been sustained.
We fully agree with the courts below in holding that the allowance of the amendment was within the discretion of the court, and that the demurrer on the grounds stated was properly overruled. The case comes within the principle of Jones v. Van Doren, 130 U.S. 684, 690 , 30 S. L. ed. 1077, 1079, 9 Sup. Ct. Rep. 685. The purpose in both bills was the same,- to establish a resulting trust in favor of the complainant Buck on account of the transactions set forth in the bills; and while the reasons are stated more fully in the amended bill, and in some respects differently from those in the original bill, yet the purpose is the same, arising from the same transactions and based upon the same general rule of law applicable to resulting trusts.
Upon the merits of the case, the two courts below have come [184 U.S. 99, 105] to the same conclusion. The general finding of the trial court in favor of the complainants was a finding in their favor of all the material facts alleged in the amended bill, and those facts have been repeated and affirmed in the court of appeals, and we are now asked to review and reverse those findings upon the testimony contained in the record. It ought not to be done in this case. It is the settled doctrine of this court that the concurrent decisions of two courts upon a question of fact will be followed, unless shown to be clearly erroneous. The Carib Prince, 170 U.S. 655 , 658, sub nom. Wuppermann v. The Carib Prince, 42 L. ed. 1181, 1185, 18 Sup. Ct. Rep. 753, and cases there cited. After examining the evidence in the case, we are not convinced that the findings of the court below were erroneous, but, on the contrary, it seems to us that they are justified by the evidence.
In regard to the evidence on the part of the complainants given on the trial, defendants assert it to be different from and inconsistent with the statements of fact contained in the amended bill, but a careful perusal of the whole evidence fails to convince us that there exists any such real and material inconsistency, but, on the contrary, the evidence substantially corroborates and justifies the averments of the amended bill.
The account book of the deceased Brainard was put in evidence, and some criticism has been made by counsel for the defendants in regard to the manner in which the deceased kept his accounts, as evidence in that book, and some faint claim seems to have been made that the book showed that moneys had been sent by Brainard to Buck instead of the reverse, as claimed by Buck. This criticism arises on account of the position of the words 'Dr.' and 'Cr.' with regard to the statement of the account between the two people. However, a perusal of the accounts in the book, taken in connection with the statement of the account between the parties made by Brainard in his lifetime and in his handwriting and given to complainant Buck, shows beyond any controversy that the moneys were advanced by Buck to Brainard, and not the reverse. There is really no contradiction of the evidence on the part of the complainants that it was the money of Buck, and his alone, which paid for the property in question.
From the evidence which was taken upon the trial, and upon [184 U.S. 99, 106] which the trial court gave judgment in favor of the complainants, the court of appeals itself found the facts similar to the averments in the amended bill, and stated them as follows:
We think the law in this respect was correctly stated by the court below.
The defendants also rely upon the defense of laches on the part of the complainants, in that they permitted so long a time to elapse after they knew that the title was in the name of Brainard.
We also agree with the court below that this defense is not sustained. When the knowledge came to the complainant [184 U.S. 99, 108] Buck that the title was in Brainard, Buck asked him to transfer it to the complainant, and stated that he (Buck) would pay the balance of the purchase money unpaid on the premises. This Brainard disliked to do, and wanted Buck to wait and see if he (Brainard) could not make payments, and thus keep the house for himself. During this time Brainard was ill, and, as it subsequently appeared, was then suffering from Bright's disease, although he did not then knew the cause of his illness, and the complainant says that he acquiesced because he did not wish to worry Brainard, and so the matter ran on for a little while, and was terminated by the sudden death of Brainard without anything having been done.
This did not amount to any settlement, nor did it in any way bar the rights otherwise existing in favor of the complainant Buck. It was a mere hope expressed on the part of Brainard that he might thereafter be able to pay for the house and a passive acquiescence on the part of the complainant that such effort might be made. As is said, nothing was ever in fact done, and no real alteration was ever made in the position of the two parties.
We have, then, the conditions of the title taken to the property in the name of Brainard, unknown to the complainant at the time, and the money furnished by Buck to Brainard as his agent, and put into the purchase of the house and lot. Subsequently, and a short time before the death of Brainard, Buck discovers the fact, and Brainard and his wife are then living on the premises. He knows that Brainard has made a will in favor of his wife, for he has been told by Brainard that upon his death everything was to go to her, and wants his sister to have a home, and is entirely satisfied in that way. He believed that the property would pass to the wife by the will in case of the death of Brainard. After Brainard's death, his widow (complainant's sister) remains in the house, and Buck contributes to her support while living there. She conveys the premises to him by deed, and he supposed that he thereby acquired full title to the premises, and paid the balance of the purchase money. After the death of his sister he takes possession of the property, and has continued in possession ever since, and it [184 U.S. 99, 109] was not until after the commencement of the action of ejectment that the complainant Buck had any knowledge that the legal title to the premises did not pass to his sister under the will of her husband, because it was acquired subsequently to that will. That action of ejectment was commenced in 1897, and this bill was filed April 15, 1898. These facts, we think, are sufficient to excuse all the delay that has been shown to exist in this case. It is covered by the principles laid down in Ruckman v. Cory, 129 U.S. 387, 389 , 32 S. L. ed. 729, 9 Sup. Ct. Rep. 316, and Townsend v. Vanderwerker, 160 U.S. 171, 185 , 186 S., 40 L. ed. 383, 388, 16 Sup. Ct. Rep. 258.
Upon this subject we fully agree with what was said by Mr. Justice Shepard, in delivering the opinion in this case in the court of appeals, as follows:
The last objection made by the appellants consists in an assertion that in no possible view of the evidence, even upon a proper bill, could Buck be properly held to be entitled as a matter of equitable right to more than a decree for an accounting, wherein he should be credited with advances of money made by him to Brainard in the latter's lifetime and invested by the latter in the property, and further credited with the sum paid by him after Brainard's death in the settlement of Brainard's debt to the building association secured by the deed of trust (thus subrogating him to the rights of the association), and charged with rents and other proper offsets and with an equitable lien on the property for the balance thus found to be due, if any.
Taking the facts as found by the courts below, this claim is not well founded. The moneys of the complainant Buck were used by his agent Brainard in the purchase of the premises, and at the time of the death of the agent the whole purchase price had not been paid. After his death that balance was paid by Buck, who thus paid every dollar that has gone into the purchase price of the premises, and the substance of the whole evidence tends directly to show that while the funds were used by the agent with the assent of his principal, Buck, the taking of the title in Brainard's name was unknown to his principal. Buck's money, and Buck's money alone, has been paid for the whole premises, and there is neither equity nor justice in refus- [184 U.S. 99, 111] ing him the legal title to the property purchased with his own money.
The judgment should be affirmed.