Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1869-07-23
SUPREME COURT.
Condensed Decisions, Reported f
the Memphis Appeal by H.
Clay King, Esq.
TOR

No. 81. Mary Ann SchOOnOver VS..
Geo. ". Lincoln and Daniel c. Love.
From the Chancery Court Of Mem
phis.
Facts: In 1861, Geo. W. Lincoln
purchased a lot in Memphis from one
Rogers, paying Rogers with his own
money, but making the title in fee
simple to defendant Love. Lincoln
took and retained possession, made
improvements, and claimed TO be the
owner, renting it and exercising other
acts of ownership. In 1862, Lincoln
sold part of the lot and conveyed it in
tee simple to Joseph SchOonOver, who
paid for il S25,0G0 in Confederate mon
Ry. tilis deed was never 'Fegisteted,
and has been lost The bill alleges
that Love holds the title in trust Tor
G.. W. Lincoln. The separate answer
OF Lincoln and Love aver that Love
holds the title for the use and benefit
of Mrs. Mary c. Lincoln, wife Of q.
W. Lincoln. There IS no direct proof
as to the creation of this trust. Mrs.
Lincoln is not made a party to the
suit. In 1865, Mrs. Lincoln filed her
bill against Joseph SchoonOver and
his tenant, setting up a claim to the
lot, which bill was dismissed upon the
demurrer Of the defendants therein,
and that decree-has not been appealed
from. At the time Of SchOOnOVer's
purchase, the books of the Registers
Office Of Shelby county, in which the
deed to Love was registered, had been
removed in Consequence of the war,
and We're not accessible. The bill al
leges that Joseph SchoOnoYer bought
without knowledge that the legal title
TO the lot was in Love, and upon the
positive assertion of G. w. Lincoln
that the absolute title was in him, G..
w. Lincoln, who answers without
oath, and states in his answer that he
told SchOOnover at the time Of his
purchase that the legal title was in
Love, who held ii for tbs benefit Of
Mrs. Lincoln, and the same fact IS
charged on information and belief in
Loves answer; but there is no evil
dence that SchOOnover had such no
tice, and / think from the circum-
stances that he had not. The answers
OF G. w. Lincoln and Love allege that
the Confederate money paid by SchOOn-
over for the land was counterfeit, and
insist that the sale was V0ia for this
reason, as well as by reason Of the ille-
gality of the currency, even if il had
been genuine. Bill prays that the
complainant NAV be decreed to be en-
titled to the equitable title to said lot,
by virtue Of Joseph SchoOnOver's pur-
chase, and that the legal title may be
diYested out Of Love and vested in
her, and for general relief.
The question meets Us at the outset,
whether Mrs. Lincoln had in fact any
equitable interest in the property APP
parent from the facts on the record.
When G. w. Lincaln paid for the land
and took the legal title in the name of
Love, a trust resulted to g. w. Lin
coin, unless the conveyance was actu-
ally made by Rogers at the time in
trust for Mrs. Lincoln. If the trust at
the outset resulted TO G. W. Lincoln,
a trust could not thereafter be created
for Mrs. Lincoln without a declaration
Of such trust by G. w, Lincoln.
There is no proof that the trust was
originally created for Mrs. Lincoln, or
that G. W. Lincoln afterwards declared
such trust. The presumption, from
the facts stated and admitted In the
answers Is, that the trust resulted in
favor OF q. w. Lincoln, and the state
ment IN the answer of the Affirmative
fact that Love holds the title in trust
for Mrs. Lincoln, and that he is in
formed and believes that the deed was
made for her benefit, is not so respOn-
sive TO the bill as to require it to be
disprOved by complainant. There is
no testimony upon this point, but
think the circumstances admitted and
proved tend to support the allegation
in the bill, 1t must, therefore, be held
upon the case as presented in this re-
cord that the legal title to the prem
ises was held by Love in trust for G.
w. Lincoln.
Was Mrs. Lincoln a necessary party
to this suit? She might certainly
have been made a party, and If the
objection had been properly taken, we
might have held that the complainant
was bound to make her a party. But
as the case shows that Mrs. Lincoln
has no equitable interest, the bill will
not now be dismissed upon the mere
improved allegation of the other par
ties that she has an interest, the de
cree in this case viii not conclude her,
and the complainant may perhaps be
exposed to further litigation in which
different proof may be made. But as
the complainant appears to be entitled
TO relief against the parties before the
Court, we will not now dismiss the
bill, because there is third party who
may possibly contest her rights.
The Court may take the objection
for want of parties of its own motion,