Monroe County MI Archives Court.....Bernard, Vs Bougard 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 6:47 am

Source: Cases In Chancery
Written: 1837

Cases in Chancery.

Hyacinth Bernard dit Lajore v. The Heirs of Antoine Bougard and others.

Settling equities under government grant. After a confirmation of a claim to 
land by the board of land commissioners under an act of congress, and after 
patent issued, if competent at all for this court to go behind the patent to 
settle conflicting claims, it should only be done on the clearest and most 
irrefragable proofs. (a.)

Contract to mislead land board immoral and void. If two persons, claiming 
joint possession of lands, enter into an agreement that a claim by them shall 
be presented to the government land board, in the name of one alone, and that 
when the claim is confirmed to him, he shall convey a part of the land to the 
other, is immoral as tending to mislead the land board, and therefore, it 
seems, void.

Resulting trust. Where two persons claim equities in lands, and one of them 
presents a claim thereto which is allowed by the government land board, there 
is no resulting trust in favor of the other which can be enforced in equity.

The bill in this case set forth that in January, 1793, Hyacinth Bernard dit 
Lajore and one Antoine Bougard took possession of and settled a certain tract 
of land on the north side of the river Raisin, in the county of Monroe, 
containing five hundred and sixty arpents, being four hundred and sixty acres, 
which they had jointly purchased of the Indians; that the possession was taken 
jointly and for their joint benefit, and the land was possessed and used in 
common; that while so possessed, they, at their joint expense, and for their 
mutual benefit, made permanent and expensive improvements; that they continued 
their joint occupancy and improvements till March 3, 1807, and long 
subsequently, and the land was invariably considered, held, improved and 
enjoyed as their common property; that about the time last aforesaid, they 
came to a resolution for partition, and agreed to set off the easterly half to 
complainant, and the westerly half to said Antoine; that ever afterwards the 
easterly half was always taken as the separate property of complainant, and 
treated by both as such, and that he continued to occupy and enjoy the same in 
his own right, and exercised acts of ownership over it, and that his title was 
never disputed.

The bill further stated that complainant and said Antoine being ignorant of 
the proper course to be taken to obtain a confirmation of their title, 
neglected to prefer their claim until 1821, when some person advised them to 
put in their claim; that they did so under the act of congress entitled "An 
act to revive the powers of the commissioners for ascertaining and deciding on 
claims to land in the district of Detroit, and for settling the claims to land 
at Green Bay and Prairie des Chiens, in the Territory of Michigan," approved 
May 11th, 1820; that they both prepared to go to Detroit for that purpose, but 
at the suggestion of some one it was proposed, to save expense, that the whole 
lands should be confirmed to one, the expenses to be shared equally, and that 
that one should convey to the other his share; that said Antoine accordingly 
went to Detroit and made his claim, which was duly confirmed to him by the 
commissioners acting under the act of congress entitled "An act to revive and 
continue in force certain acts for the adjustment of land claims in the 
Territory of Michigan," approved February 21, 1823, and also by congress; that 
complainant continued in possession of his part until 1829, and he often 
called upon said Antoine to ascertain if the patent had been received by him; 
that in 1828, and before receiving the patent, said Antoine died, but that on 
the day previous to his death he called his children, or a part of them, 
together, informed them of complainant's rights in the premises, and enjoined 
them to convey to him; that the children afterwards, when called upon for a 
conveyance, did not deny complainant's right, but professed their willingness 
to make a deed when the patent should be received.

The bill then proceeds to allege that three of the five heirs-at-law of said 
Antoine, by separate conveyances made in the years 1829 and 1830, had each 
sold and conveyed an undivided fifth part of the whole land to one H. Disbrow, 
with intent to defraud complainant, and that Disbrow at the time of 
contracting therefor, and of receiving the deed or paying the purchase money, 
had full notice of complainant's rights, and afterwards surreptitiously and 
illegally got possession of the lands. Also that the other two heirs in 1830 
each sold and conveyed an undivided one-fifth part of the whole land to one 
Robert Clark, and that Clark bought and received deeds with the like full 
notice of complainant's rights. The bill further charges that a patent was 
issued for the land in 1829 or 1830, to said Antoine or to some one or more of 
his heirs, the complainant being unable to state particulars, as the heirs 
have it; and the bill asks for the production of the patent, prays that said 
Disbrow and Clark be decreed to convey to complainant, etc.

The defendants by plea relied upon the statute of frauds as a bar to 
complainant's claim.

They also answered fully, denying all knowledge, information or belief of the 
pretended joint purchase of the Indians; denied the pretended joint occupancy 
and improvement, and the agreement to partition; insisted that said Antoine 
alone purchased of the Indians, and took possession of the whole premises in 
question in his own right, and for his own exclusive benefit, about the time 
mentioned in the bill, and that he continued to occupy the same by himself or 
his tenants, not only to the year 1807, but to the time of his death in 1829, 
claiming the whole of the same as his own, and at all times denying the claims 
of all others. The defendants Disbrow and Clark, in their answers, denied all 
knowledge or notice of rights in complainant.

Replication was filed to the answer, and the case heard on pleadings and 
proofs. The evidence is sufficiently stated in the opinion.

A. D. Frazer, solicitor for complainant.

The case made by the bill is that of a trust, arising by implication or 
construction of law, and is expressly excepted from the operation of the 
statute relied on, by the 13th section (laws of 1819, p. 118), and may be 
proved by parol, even in opposition to the answer of the defendant denying the 
trust. The statute was never held to apply to such a case. (Wray v. Steele, 2 
Ves. & B., 388; Finch v. Finch, 15 Ves., 45; Attorney-General v. Fowler, 15 
Ves., 90; Jeremy's Equity, 88.)

The complainant's case does not rest nor depend upon the promise or 
arrangement between them, as to the manner of fortifying the title, but rests 
upon the previous equity of the case. The promise alleged is only an 
additional ground of equity. It is the occupation and improvement of the 
property by the complainant that constitutes his equitable title, and gives 
him a right to confirmation under the several acts of congress on this 
subject. (Hutcheon v. Mannington, 1 Ves., 366; Boyd v. McLean, 1 Johns. Ch., 
582; 2 P. Wms., 548; 1 Johns. Cas., 153; Decouche v. Savetier, 3 Johns. Ch., 
216; Stickland v. Aldridge, 9 Ves., 518; Livingston v. Livingston, 2 Johns. 
Ch., 539; Jackson v. Matsdorf, 11 Johns., 96.)

If the deceased did not intend to take the deed as a trust, and convey to the 
complainant, he obtained it in fraud, and, on that ground, complainant is 
entitled to have the trust carried into effect, notwithstanding the statute. 
(Roberts on Frauds, 102; 1 Com. Dig., 361, 485; 1 Madd., 239-240, 299.)

It is a clear rule, that where A. purchases in the name of B., the former 
paying the consideration, B. is a mere trustee, notwithstanding the statute of 
frauds. (Jeremy's Eq., 85.) So, if an agent locate lands for himself, which he 
ought to locate for his principal, he is in equity a trustee for his 
principal. It is equally well settled that all persons coming into possession 
of trust property, with notice of the trust, shall be considered trustees, and 
bound, with respect to that special property, to the execution of the trust. 
(1 Johns. Ch., 566.)

H. T. Backus, solicitor for defendants.

1. The action of the commissioners, both as to the right and the evidence of 
the right, is conclusive, and especially so since the confirmation by 
congress. (7 Wheat, 28, 237; Strother v. Lucas, 12 Pet., 413.) And this court 
are in no wise authorized to revise those proceedings, nor by a possibility 
could such revision be productive of any benefit to the complainant.

2. Had the complainant a valid claim, as against Antoine Bougard or his 
children, yet the real defendants, Disbrow and Clark, are bona fide purchasers 
without notice, and as such will be protected, and equity can give no 
assistance against them. (Frost v. Beekman, 1 Johns. Ch., 300; 9 Ves., 24.) 
But had the defendants had full notice of the pretended claim of the 
complainant, it would in no wise have varied their rights or altered the case, 
for the claim itself, by complainant's own showing, is a mere nullity, and in 
the language of Lord Mansfield, had the defendants known of it, they would 
also have known it was void. (Wilson v. Mason, 1 Cranch, 70, 100.) As every 
man is charged with a knowledge of the law. (1 Johns. Ch., 516; Lyon v. 
Richmond, 2 Johns. Ch., 51, 60.)

3. If any such agreement as that contended for by the complainant were in fact 
made and entered into, yet the same was null and void. 1. As being contrary to 
the policy of the law, and in fraud of the act of congress, an agreement not 
only to deceive the commissioners, but to obtain the title to the premises by 
false pretences and absolute falsehood; and all acts or agreements in fraudem 
legis, or contrary to the policy of the law, are prohibited and void. (The 
William King, 2 Wheat, 148, 153; 4 Pet, 441; 4 Johns. Ch., 254; 2 Ohio, 510; 6 
Johns., 194; 8 Johns., 444.) But 2. If the complainant's own story be true, he 
entered into a stipulation and agreement with Antoine Bougard, to commit, or 
procure to be committed, actual perjury, in the proof of the claim before the 
commissioners, and he himself aided in the commission of that positive crime; 
for as he would now have this court believe, he himself procured witness (so 
his bill and evidence state) to swear that the premises in question were the 
lawful claim of Antoine Bougard, which, by his present case, he seeks to 
disprove; and the maxim both of equity and law is, ex turpe contractu non 
oritur actio, (1 Bac. Ab., 111; 2 Binn. 101, and cases there referred to; 4 
Ves., 811; 8 Ves., 51; 2 Eq. Ca., 20; Gilbert's Eq., Rep., 153.) And 3. To any 
such agreement as that the complainant now seeks to enforce, the defendant's 
plea is a conclusive bar, and the same is void by the statute of frauds. 
(Stat. 1820, 112, 425.) It is an express trust, if anything, by parol, and 
therefore void. It is not an implied trust, or a trust in any way resulting by 
operation of law; if anything, it is a direct agreement by parol, to create a 
trust; an attempt to enforce a parol declaration of a trust. The case contains 
none of the elements of an implied or resulting trust. A resulting trust can 
only exist where the actual payment of the purchase money is clearly proved. 
(Steere v. Steere, 5 Johns. Ch., 1.) And a payment of a part, or anything less 
than the whole purchase money, will not raise a resulting trust. (1 Johns. 
Ch., 582; 2 Johns. Ch., 405; 2 Mad. Ch., 112; 3 Cow., 588; 3 Ves., 696; 1 
Ves., 366.)

But to this the complainant insists, that a trust is to be implied, for the 
purpose of preventing a fraudulent use of the statute of frauds. Trusts for 
that purpose are never implied, unless some clear and specific act of fraud is 
distinctly proved, as preventing the execution of a will or other instrument, 
creating an estate or declaring a trust. (Roberts on Frauds, 103; Thynn v. 
Thynn, 1 Vern., 296.) But the facts in this case show no such thing, and if a 
trust might be implied in the present case, it might in every one, to the 
entire prostration, of the statute.

But the complainant further insists that the facts in the case show the 
existence and creation of a trust before our statute of frauds. The fact is 
not so, and it is untenable as a legal position; 1st, because prior to our 
statute of frauds, the legal estate to the premises was not in Antoine 
Bougard; his right was a mere equity under the act of congress, and so was the 
complainant's, if he had any; no trust, therefore, could, by a possibility, 
have existed, for the obvious reason that there was no legal estate to sustain 
it. But, 2d, if, by a possibility, any could have existed before the legal 
title vested in Antoine Bougard, yet, not being in writing or declared by 
writing, even before our statute of frauds, it would have been void; for the 
rules of property are the same in equity as at law. (Gilbert's Law of Uses, 
39.) Trusts are now what uses were before the statute of uses. (Lord Anglesea 
v. Lord Altham; Holt, 736.) And both uses and trusts have always been governed 
by the same rules and the same reasons as legal estates. (Watts v. Ball, 1 P. 
Wms., 109.) For were not the rules of property the same in equity as at law, 
in the language of all the books, things would be at sea, and there would be 
the greatest uncertainty. (Banks v. Sutton, 2 P. Wms., 713; 2 Bl. Com., 337.) 
Therefore, the rule has ever been, that where a deed or writing was necessary 
before the statute of frauds, for passing the legal estate, the same formality 
was necessary to create or declare a use or trust. (Gilbert's Law of Uses, 7; 
7 Bac. Abr. Tit. Uses and Trusts, 92; 3 Atk. 151; 2 Atk., 37.) No legal estate 
whatever, by the fundamental ordinance, and laws both of the Northwest 
Territory and the Territory of Michigan, could, at any time, be created or 
transferred by parol. (Fundamental Ord., Art. 1; Lindsey v. Coats, 1 Ohio 
Rep., 113.) For these reasons, then, any pretended trust prior to the statute 
of frauds, would be a nullity.

The Chancellor.—Every material allegation in the bill is fully and positively 
denied by the answer. The defendants, nine in number, say the complainant 
never either owned or occupied the said land, or any part or portion thereof; 
but the children and heirs, on the contrary, say, from their earliest 
recollection, their father held the entire, exclusive and peaceable possession 
of the whole tract, as well the pretended eastern as the western portion; that 
the said Antoine did not, immediately before his death, or at any time, direct 
them to convey any portion of the tract to the complainant, or admit that he 
had any interest therein.

Indeed, it is hardly possible that an answer could be made more full and 
complete to all the material allegations in the bill. The defendants also set 
up and insist upon the statute of frauds.

Voluminous testimony has been taken on both sides.

The testimony has been carefully considered, and I cannot, from a review of 
it, come to the conclusion that the claim of the complainant can be sustained.

The complainant relies for the establishment of his claim upon the testimony 
of Joseph Beauxhomme, Louis Bernard, Louis Morminee, Joseph Drouillard and 
Louis Louigne.

The testimony of Beauxhomme is as to admissions made by Bougard, and is 
inconsistent with itself. He makes Bougard admit that the complainant is 
entitled to one-half, and says still that he said the two acres troubled him, 
etc.; and it is entirely at variance with the allegations of the bill, that 
the land was divided and complainant in the possession of the east half. But 
little weight can be attached to the testimony of Louis Bernard. It is in 
proof that he had previously alleged that the present complainant had no 
interest in the land in question, but that it belonged to him. Louis Morminee 
testified before the board of land commissioners that it belonged to Bougard. 
Drouillard testifies as to the original purchase from the Indians, and says it 
belonged to both complainant and Bougard. Louis Louigne substantially sustains 
the last witness, but is manifestly mistaken as to other statements which he 
makes, and so much so as at least to cast some doubt upon his testimony. There 
is such discrepancy and so much uncertainty in the showing in this case, that 
the testimony of the witnesses as to transactions of so ancient a date should 
be received with caution.

The testimony of Margaret Rivor and Narcissa Delisle, who have resided near 
the land for a long time, strongly sustains the
answers; they resided near the lands at a very early period, and never saw the 
complainant at work on the land, or heard of his claim. Indeed, the proof of 
any actual occupation by complainant, aside from the admission testified to by 
Beauxhomme, is very slight. When it is considered that the fact of a separate 
and distinct possession and occupation of the east half of the tract of land 
as alleged in the bill for so long a time, and up to a period so recent, must, 
if true, have been so notorious as to have been capable of clear and positive 
proof, coupled with the testimony as to the claim of Louis Bernard that the 
land belonged to him; and also the testimony of Durocher, that so late as 1821 
the complainant claimed the whole of the land, it is difficult to come to the 
conclusion, from anything here presented, that the claimant ever had such a 
possession and occupation of any portion of this land, either joint or 
several, as would have entitled him to a confirmation by the commissioners, 
under the act of congress of May, 1820, continuing in force the previous act 
of 1807. The claim of the complainant is probably founded on family residence; 
he was, no doubt, occasionally there when a boy. It is true, there is great 
discrepancy in the testimony. 

But after a confirmation and patent, if it is competent at all to go behind 
it, it should only be done upon the clearest and most irrefragable proof.

The point insisted upon in the argument, that the agreement, or pretended 
agreement, that both complainant and Bougard would concur in making proof 
before the commissioners of that which, according to the allegations in the 
bill, did not exist, to wit: the sole occupation and improvement of this 
property by Bougard, so as to bring him within the requirements of the act of 
congress, is immoral, is entitled to weight. The commissioners had no 
authority to confirm to any except to those who proved themselves to come 
within the provisions of the act of congress. They have never acted upon any 
claim or right of this complainant.

If the allegations in the bill are true, the commissioners have
been led by false lights to do an act which they were not authorized to do. 
And if this conspiracy had not existed, it is possible such facts might have 
been elicited as would have satisfied them that of right it should have been 
confirmed to neither the one or the other.

The ground taken by the complainant, in order to avoid the statute of frauds, 
is, that this is a resulting trust; that the complainant, being actually 
entitled to the east half, and the title having been vested in Bougard, the 
complainant may compel the heirs to execute the trust.

From the premises it will be perceived that, in the view of the court, this 
position cannot be sustained.

First. It is not sustained by such clear and undoubted proof as should be 
required in a case like the present, that the complainant was ever entitled to 
a confirmation of any portion of this trust.
Indeed, from all the facts and circumstances developed in the case, I am 
inclined to think otherwise.

Second. If it were apparent that the complainant would have been entitled to a 
confirmation, it would still be questionable whether it would come within the 
rule of an implied or resulting trust.

A resulting trust only exists where the actual payment of the purchase money 
is clearly and distinctly proved. Payment of a part, or anything less than the 
whole, will not raise a resulting trust. (Steere v. Steere, 5 Johns. Ch., 1; 
Boyd v. McLean, 1 Johns. Ch., 582.)

This was not a purchase. The occupants of these lands could not claim the 
grant of the government as a matter of strict legal right, although they may 
have had strong equitable claims. It was rather in the nature of a bounty or 
gift by the government. 

If there was any trust, it was an express trust, and by parol, not evidenced, 
or pretended so to be, either as to its existence or terms, by any written 
contract or memorandum whatever, and, to this, the plea of the statute of 
frauds, as has already been decided in this court, is a conclusive bar.

The existence of a trust may be shown by parol, but there must be some 
memorandum in writing showing its terms.

From the view I have taken of the case, all that portion of the proceedings 
and proofs which relates to the purchase by Clark and Disbrow with notice, as 
is alleged, becomes immaterial. If they had notice of the claim of the 
complainant, it was a notice that he had no valid claim. The bill must be 
dismissed with costs.

Bill dismissed.

-------------
(a.) Where, however, lands are granted by the government, by treaty or 
otherwise to individuals, and the president unnecessarily issues a patent, and 
delivers it to a person not entitled, such patent is void, and may be so 
declared by the State courts. Stockton v. Williams, Wal. Ch., 120; Same case 
on appeal, 1 Doug. Mich., 546. And this notwithstanding it is issued under a 
special act of congress. Campau v. Dewey, 9 Mich., 381.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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