BATCHELOR V. BRERETON, 112 U. S. 396 (1884)

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U.S. Supreme Court

Batchelor v. Brereton, 112 U.S. 396 (1884)

Batchelor v. Brereton

Argued November 14, 1884

Decided December 1, 1884

112 U.S. 396


S, the wife of B, joined with him in a deed to H of land of B, in trust for the use of S, during her life, and at any time, on the written request of S, and the written consent of B, to convey it to such person as S might request or direct in writing, with the written consent of B. Afterwards, B made a deed of the land to W, in which H did not join, and in which B was the only grantor, and S was not described as a party, but which was signed by S and bore her seal, and was acknowledged by her in the proper manner. Held that the latter deed did not convey the legal title to the land, and was not made in execution of the power reserved to S.

The question in this case relates to the proper distribution of the proceeds of the sale of a parcel of land in lot 9, in square 455, in the City of Washington under a decree of the Supreme Court of the District of Columbia. William H. Brereton and Samuel Brereton (also hereinafter called Samuel Brereton, Jr.), being tenants in common of the land, Samuel and Sarah A. his wife, executed to Peter Hannay a deed dated September 29, 1859, of the land in question, chanrobles.com-redchanrobles.com-red

Page 112 U. S. 397

with some other land in lot 9, which was duly recorded. The deed names Samuel and his wife as the parties of the first part. It recites that Samuel, being seized of the one-half undivided interest in the land, desires to assign and convey the same in such manner that the said one-half interest shall inure to the benefit of the said Sarah A. during her natural life, and that to that end he executes the deed. By it, he conveys to Hannay, and to his heirs and assigns, forever, all his title to one-half of the land,

"to have and to hold the said undivided one-half interest in the said lands and premises, to him, the said Peter Hannay, his heirs and assigns, in and upon the trusts hereinafter mentioned and declared, and for no other use, trust, or purpose whatsoever, in trust for the sole use and benefit of Sarah A. Brereton, . . . the wife of the said Samuel Brereton, during her natural life, free from all ownership, control, and obligation to and for her said husband, except so far as herein provided for; to permit the said Sarah A. Brereton to receive the rents, issues, and profits of the said undivided one-half interest of said Samuel Brereton in and to said described lands and tenements, and the same to apply to and for her sole use and benefit, and upon this further trust at any time hereafter, upon the written request of said Sarah A. Brereton, and the written consent of said Samuel Brereton, to sell, dispose of, or convey the said undivided pieces or parcels of ground and premises, absolutely, in fee simple, in trust, or for such term or time, and for such uses and purposes, and to such person and persons, as the said Sarah A. Brereton, with the written consent of the said Samuel Brereton, may request or direct, in writing, as aforesaid."

The deed further provides that, if Samuel shall survive Sarah A. the land shall revert to him, and that, if she shall survive him, the land, after her death, shall go to his heirs, or according to his direction given by will or other instrument in writing. Neither in the granting clause nor in the habendum is there any mention of the grant of any interest except the interest of Samuel.

The particular question in this case depends on the effect of a subsequent deed, dated June 1, 1874, and duly recorded. That deed begins thus:

"This indenture, made this first (1st)

Page 112 U. S. 398

day of June, in the year of our Lord one thousand eight hundred and seventy-four (1874), between Wm. H. and Sam. Brereton, of the City of Washington, District of Columbia, parties of the first part, and Wm. H. Ward, of same city and district, of the second part."

It then recites that William H. and Samuel owe to Charles Batchelor $3,500, on a promissory note made by them, payable to him three years after June 1, 1874, with interest at ten percent per annum. It then proceeds: "Now, therefore, this indenture witnesseth that said parties of the first part" have conveyed and do convey to the party of the second part, his heirs and assigns, the land in question, with some land in lot 8, describing it, and all the title of the parties of the first part to it, to have and to hold in trust for the payment of said note, and with power, on default in its payment, to sell the land at auction, and convey it, and out of the proceeds of sale to pay the note. The deed concludes as follows: "In testimony whereof, the said parties of the first part have hereunto set their hands and seals," and is signed thus: "WM. H. BRERETON [L.S.], SAM. BRERETON [L.S.], S. A. BRERETON [Seal]."

To this deed is appended the following certificate:

"District of Columbia"

"County of Washington ss.:"

"I, B. W. Ferguson, a justice of the peace in and for the county aforesaid, do hereby certify that W. H. Brereton, Samuel Brereton, and Sarah A. Brereton, parties to a certain deed, bearing date on the first (1st) day of June, A.D. 1874, and hereto annexed, personally appeared before me, in the county aforesaid, the said W. H. Brereton, Samuel Brereton, and Sarah A. Brereton, his wife, being personally known to me to be the persons who executed the said deed, and acknowledged the same to be their act and deed, and the said Sarah A. Brereton, being by me examined privily and apart from her husband, and having the deed aforesaid fully explained to her, acknowledged the same to be her act and deed, and declared that she had willingly signed, sealed, and delivered the same, and that she wished not to retract it. "

Page 112 U. S. 399

"Given under my hand and seal, this 23d day of June, A.D. 1874."

"B. W. FERGUSON [Seal]"

"Justice of the Peace"

On the 30th of May, 1876, Samuel Brereton died intestate, leaving him surviving his widow, the said Sarah A. and an infant son, James I., his only heir at law.

Subsequently, Ward, the trustee under the deed of trust of June 1, 1874, and under another and prior deed of trust to him in favor of the same Charles Batchelor, advertised the land for sale at auction. Batchelor had died, and Mary Ann Batchelor had been appointed his executrix. To prevent this sale, Sarah A. Brereton, on the 4th of February, 1879, filed the bill in this suit, making as defendants James I. Brereton, William H. Brereton, Peter Hannay, William H. Ward, Mary Ann Batchelor, as executrix, and some other parties who claimed an interest in or lien on the land. The bill, after setting forth the trust deed to Ward, of June 1, 1874, avers: "Your oratrix further shows unto this honorable court that, although she sealed, signed, and acknowledged the conveyance" of June 1, 1874,

"she did not otherwise join in it, nor is she mentioned therein as a party thereto; that said conveyance does not convey nor purport to convey any right, title, interest, or estate of your oratrix in and to said property, or the right, title, interest, or estate of any person or persons other than that of the said William and Samuel, whose alleged indebtedness said conveyance was designed to secure, and your oratrix is advised and believes, and so charges, that, except to renounce her dower interest in said property, to which your oratrix would have been entitled in case said deed from Samuel Brereton, Senior, to the defendants William Brereton and Samuel Brereton, Junior,"

being the deed of February 2, 1854, hereafter mentioned,

"under which deed said conveyance to said defendant Ward was made, had been operative and effective, the joinder of your oratrix in the execution and acknowledgment of said conveyance was wholly unnecessary and without effect. "

Page 112 U. S. 400

The meaning of this last averment is this:

On May 1, 1851, Samuel Brereton, Sr., the father of William H. and Samuel, Jr., conveyed the land in question, with some land in lot 8, to William H. and his heirs, in trust for the use and benefit of Mary Ann, the wife of the said Samuel, Sr., for her life, with remainder in fee for the use and benefit of said William H. and Samuel, Jr., as tenants in common. The said Mary Ann having died, Samuel Brereton, Sr., on the 2d of February, 1854, executed a deed to William H. and Samuel, Jr., in fee, as tenants in common, of the land covered by the deed of May 1, 1851. The bill avers that, by reason of the deed of May 1, 1851, Samuel Brereton, Sr., no longer had any interest in the premises which the deed of February 2, 1854, purported to convey, and that that deed was inoperative. The meaning of the allegation that the conveyance to Ward of June 1, 1874, was made under the deed of February 2, 1854, is that the only description in the conveyance to Ward of the land it covers says that it is parts of lots 8 and 9,

"as the same is more particularly described by metes and bounds in a deed from Sam. Brereton to Wm. H. and Sam. Brereton, Jr., dated the second day of February, 1854."

The bill avers that Ward is intending to sell the interest of the plaintiff in the land in question, claiming that it passed to him by reason of her having signed and acknowledged the deed of June 1, 1874, notwithstanding the before-mentioned circumstances of such signature and acknowledgment. The bill prays for an injunction restraining Ward and Mrs. Batchelor from selling the property, and for a sale, under the direction of the court, of the interest in it of all the parties to the suit, and the proper distribution of the proceeds. A temporary injunction was granted.

The answer of Mrs. Batchelor sets up that the entire title to the land was vested in Ward, as trustee, to secure the $3,500 note. The land was sold at auction under a decree of the court, by a trustee, a reference was made to an auditor to state the trustee's account, and "the legal distribution of the fund among the parties in interest," and the sale was confirmed.

In July, 1880, the auditor made his report. In it, speaking chanrobles.com-redchanrobles.com-red

Page 112 U. S. 401

of the deed to Ward of June 1, 1874, he says:

"The signature of Sarah A. Brereton appears to the said deed, with her seal. She also united in the acknowledgment attached to the said deed, the said acknowledgment being made in the proper form prescribed by the statute regulating that matter in this district. It will be observed that she is not a party named in any of the recitals of the said deed, and that the trustee, Hannay, is neither mentioned as a party nor does he unite in any manner in the execution or acknowledgment of the conveyance. . . . It is asserted upon the one hand that this deed cannot be recognized here, inasmuch as the trustee is not in any manner a party to it and inasmuch as it is left uncertain what might have been the intention of the complainant, Sarah A. Brereton, in affixing her signature and uniting in the acknowledgment of the same. Upon the other hand, it is argued that the paper is such an act of the said Sarah A. Brereton as will induce a court of equity to recognize it as the exercise upon her part of the power of appointment, or a direction to her trustee, and to enforce the same as such, and, this distribution being in a court of equity, and being the act of a court of equity, the instrument in question will be so treated and enforced. . . . I am constrained to look upon the paper as absolutely void so far as [Sarah A. Brereton] is concerned, for the purpose of this proceeding. . . . I have therefore . . . treated this conveyance as that of William H. Brereton alone, and as not conveying or affecting the interest or estate of the said Sarah A. Brereton, and the distribution to the indebtedness secured by this deed of trust is therefore made from the share of the said William H. Brereton, so far as the same is available."

Mrs. Batchelor filed exceptions to the report of the auditor in which she claims that the deed of trust to Ward, of June 1, 1874,

"is a good and valid lien as well upon the moiety of, or interest in, the land described in the bill, held by Peter Hannay, trustee, as upon that of William H. Brereton,"

and she therefore excepts to the allowance of every item in the report which treats "the said deed of trust as invalid and not a lien upon the moiety or interest held by Hannay." chanrobles.com-redchanrobles.com-red

Page 112 U. S. 402

On a hearing by the court at special term, the exceptions filed by Mrs. Batchelor were sustained so far as they related to the deed of June 1, 1874, and the court, in its decree, declared that deed to be a valid lien and charge on both moieties of the land sold, and the report was overruled so far as it appropriated the proceeds of sale in favor of Sarah A. Brereton and James I. Brereton, as against the deed of June 1, 1874. The court in general term, on an appeal by the plaintiff from the decree sustaining Mrs. Batchelor's exceptions, reversed the decree in special term so far as it sustained the exceptions in regard to the effect of the plaintiff's signature to the deed of June 1, 1874, and her acknowledgment thereof, and overruled the exceptions and confirmed the report of the auditor. From the decree to that effect, Mrs. Batchelor has appealed to this Court.


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