Mallory vs. Mallory's adm'r.

chase an undivided interest in the Green tract of one hundred and ten acres, which he could not do without selling her land, to which she objected, it was agreed that the Green tract should be purchased, and the title conveyed to her; whereupon, she consented that her husband might sell her land. He made the purchase of the Green tract, and then sold her land on precisely the same time he had purchased on. When she and her husband were going to the appointed place to make her title, it is proved that she lagged behind, and was weeping; when, being overtaken by an acquaintance and relative, he inquired the cause of her distress, when she informed him that she had agreed that her husband might sell her land, and that he had done so, and she was then on her way to sign away her right, but that she did not wish to do so; had repented that she had ever agreed to it, and thought she would return and not do so.

This witness then overtook the husband and mentioned the unwillingness of the wife to part with her land, when they paused until the wife came up; when the husband said he had purchased the Green tract, but could not pay for it without selling her land, and would be loser by reason thereof, and again assured her the title of the Green tract should be made to her, so that it would be a home for her and her children; that she need not be afraid of losing her home through any misfortune that might overtake him, and gave her other assurances also; when she again said, with such understanding she would go on and relinquish her title, which she did.

The husband appropriated the proceeds of her land, directly or indirectly, to the payment of the Green tract, and only about a month before his death expressed the intention of soon having the deed from Green made to VOL. V-30

Mallory vs. Mallory's adm'r.

his wife, in pursuance of their agreement; but was soon after taken sick, of which he died, never having obtained from Green the title.

There is no evidence showing that Mrs. Mallory knew that even the title bond was taken in her husband's name.

This case does not fall within section 20, chapter 80, 2 Stanton's Revised Statutes, 230, which is only applicable when the legal title is conveyed by deed to one person, the consideration being paid by another, and that, too, with the knowledge or consent of the party paying the consideration.

There was not only a resulting trust, as recognized by our equity jurisprudence, unmodified in this case by the statute, from the husband to the wife, but, as held by this court in Simms vs. Spalding (2 Duvall, 121), the creditors of the husband cannot have the land, purchased by the wife's means, subjected to their debts, when he has not obtained the legal title, and they are compelled to resort to equity to get it, without a proper settlement on the wife to a reasonable extent.

As the administrator, representing the creditors of the deceased husband in this case, is compelled to resort to the chancellor to subject the land to the payment of debts, so far as the personalty is insufficient, and to obtain the legal title, the court will see that justice is done the wife, and prevent the conversion of her land, contrary to the stipulated understanding with her husband, into other land, and vest the legal title in him or his heirs, or subject it to the payment of his debts in contravention of the trust.

Mrs. Mallory is then entitled to an absolute conveyance of the legal title of the Green tract of land, to the amount her land sold for, of some five hundred and seventy dollars, and then to be endowed in the re

Morton and wife vs. Peter Smith, &c.

mainder of the Green tract also-in that part inherited by her deceased husband from his father, and also that purchased by him from his brother.

The judgment, not being in accordance with these views, is reversed, with directions for further proceedings consistent herewith.

CASE 36-PETITION EQUITY-JULY 5.

Morton and wife vs. Peter Smith, &c.

APPEAL FROM FRANKLIN CIRCUIT COURT.

The profits of a fair, held by colored people of Frankfort, are required to be applied to the purposes for which the fair was held. Selfconstituted trustees have no right to divert the fund from those

purposes.

JOHN MASON BROWN,

JOHN B. JAMES and

A. J. JAMES,

For Appellants.

For Appellees.

JUDGE PETERS DELIVERED THE OPINION OF THE COURT:

The preponderance of the evidence conduces to the conclusion, that, at the suggestion of some of the colored women of Frankfort, a preliminary meeting was held prior to the 25th of December, 1865, to arrange for the holding of a fair in the city, to commence on the evening of the day named, by the colored people; the object of which was, in part, to raise means to aid

Morton and wife vs. Peter Smith, &c.

in paying for a lot of ground in the city, or its vicinity, purchased from Mr. E. A. Dudley, on which to erect a school-house for the education of colored children; but as to what particular purpose the residue of the funds were to be applied, does not very clearly appear, as the evidence on that point is, to some extent, conflicting; but it was certainly benevolent and praiseworthy.

Of the few women who engaged in the enterprise, the appellant, Nancy Morton, was the most active, and unquestionably contributed most to its success. She rented the room in which it was held, and was, perhaps, the only colored person who could have gotten it. She alone was held responsible for the good conduct of those who attended the fair, and the protection of the house and property. She had the house put in order for the reception of the company, and on her credit the toys, and other articles vended at the fair, were obtained.

If appellees did anything more than to have the time and place for the holding of the fair announced at the church or churches, on several public occasions, until after the experiment of the first evening was made, and the liberal and zealous support with which it had met indemnified those who furnished the means of carrying it on and encouraged them to continue the fair on successive evenings, with the prospects of increased patronage and larger returns, this record does not disclose what it was.

And then, on the 26th of December, 1865, as is shown by the date on the paper which they caused to be drawn up, appellees held a meeting (whether any others were present or not does not appear), when they resolved that a fair be had, and carried on under the "influence of the Baptist institution; the proceeds of the fair to be appropriated and equally divided between the school and the ground on the hill."

Morton and wife vs. Peter Smith, &c.

Whether they assumed to act as trustees of the church or the school, is not explained; nor does it appear what they meant by the terms "Baptist institution;" but, according to their own resolves, one half the proceeds were to be applied to the benefit of a school-some school-and the other half to pay for the "hill property," as it is described; which, as may be understood from the evidence, referred to the ground purchased of Dudley for the erection of a school-house.

This meeting, on the 26th of December, was not authorized or sanctioned by those who had actually gotten up the fair, if, indeed, they were apprised of it until af ter it had been held; they certainly did not participate in it, nor did Nancy Morton ever agree that the proceeds should be controlled and disposed of by this self-constituted body of trustees.

This writing, which is exhibited by appellees as evidencing the objects of the fair, or the purposes to which the money arising therefrom was to be applied, does not, in terms, provide that any part was to be used in paying a debt for which appellees were bound. It is alleged in the pleadings, and there is some proof tending to show, that a part of the proceeds were to be appropriated in making a present as a testimonial of respect to, and appreciation of, the services rendered by Mr. Hawkins, in conducting the school in the city which he was at the head of. But however that may be, they all concur that a part of the profits of the fair was to be applied to pay for the hill property, as it is called; as yet, however, no part has been applied in that way.

Appellants aver, in their amended petition, that they do not claim the sum sued for (and they certainly have no right to claim any part of the funds raised by the fair) for their own use and benefit; but they pray the same