Lapas attēli
PDF
ePub

but would enable the court to give the plaintiff that measure and kind of relief which, under the circumstances, was proper and possible. Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. Rep. 771, is a late and instructive case on this subject, and very much in point.

There the bill alleged that a bond for a conveyance of land had been obtained from the vendor by fraud, and that the purchase price had not been paid according to the contract, and prayed that the bond might be canceled, for an account of the rents and profits and the amount paid on the purchase, that the title of the plaintiffs be quieted as against the vendee, and "such other relief as equity may require." At the final hearing the plaintiffs were permitted to amend the prayer of the bill, as to ask in the alternative for a decree for the balance of the purchase money, and a lien on the land to secure the payment of the same.

[ocr errors]

On appeal, the supreme court affirmed the allowance of the amendment, saying, in effect, that it did not make a new case, but only enabled the court to adapt its relief to that made by the bill and sustained by the proof.

And, finally, it is now objected that the plaintiff is simply the last assignee of a contract or contracts for the title to, or interest in, real property; and, as it does not appear that all the assignors could have maintained this suit on the ground of their citizenship, he cannot do so. It was stated by counsel on the argument, and not denied, that as a matter of fact all such assignors had the citizenship to enable them to maintain this suit.

But it is not so alleged in the bill, which is drawn on the theory that the plaintiff is, and those through whom he claims were, successors in interest of Rice and Clark, Layton & Co., and not assignees of a mere right of suit on a contract to convey. And so the bill alleges that since May 4, 1874, the plaintiff Gest, "by a regular chain of conveyances and assignments," has acquired "all the right, title, and interest" which Rice and Clark, Layton & Co. then had in said property, or the rents, issues, and profits thereof. This being so, he is the owner of the property in equity, subject to the lease made to Carter and Packwood. The legal title was wrongfully obtained by the latter after their sale to Rice, and they hold the same in trust for their vendee. A sale and conveyance of the property to Gest under such circumstances, or of all the right, title, and interest of Rice and Clark, Layton & Co. therein, is the sale and conveyance of the beneficial interest in the property, and not the mere assignment of a right of action thereabout. Manning v. Hayden, 5 Sawy. 363; 1 Perry, Trusts, § 227. This author says:

"The right of a party who has been defrauded of the title to his land is not a mere right of action to set the deed aside, but it is an equitable estate in the land itself, which may be sold, assigned, conveyed, and devised."

See, also, Bean v. Smith, 2 Mason, 268; M'Donald v. Smalley, 1 Pet. 620.

A decree will be entered that the property be sold by the master clear of all liens, claims, and incumbrances held, claimed, or owned by the

parties to this suit, or any of them, and that the proceeds of such sale be applied as follows:

(1) To the payment of the taxable costs and disbursements of the plaintiff and the plaintiff in the cross-bill, including any unpaid expenses of the receivership; (2) to the payment of the notes 1 and 2 to the plaintiff in the cross-bill, Henry M. Abell, with interest at the rate of 10 per centum per annum from date; (3) to the payment to the plaintiff, William H. Gest, of the sum of $18,151.34, with interest at the rate of 10 per cent. per annum from the date of the filing of the bill herein, the same being the amount paid by Gest's predecessors in interest on notes 3, 4, 5, 15, and 16, in Schedule B of the agreement of 1874, and made and delivered in pursuance of the agreement of 1873; and (4) to the payment of the sum due the defendant Grover on the note and mortgage assigned to him by C. M. Carter, and the remainder of the notes in Schedule B, and not otherwise herein provided for, in equal parts; provided that note 6 in said schedule, payable to J. W. Virtue, on October 23, 1873, for $2,200, be first paid to the plaintiff, Gest, with interest from November 2, 1878, out of said proceeds, equally with said note and mortgage.

The surplus of $8,671.87 is hereby first applied on notes 4 and 5 in said schedule as of the respective years in which it accrued, and the remainder on the notes in said schedule not herein specially named and otherwise provided for, as therein numbered, and for all the exigencies of this suit, and the distribution of the proceeds of the sale herein, this surplus shall be taken and deemed to have been duly applied as herein directed, when and as it accrued.

BURT v. COLLINS et ux.

(Oircuit Court, N. D. Illinois. July 22, 1889.)

1. QUIETING TITLE-FRAUDULENT JUDGMENT AT LAW.

A bill in equity to establish a title acquired by purchase at an execution sale under a judgment by default in complainant's favor will not be enter tained where the proof shows that the debt on which the judgment was ob tained had been fully paid before the commencement of the action.

8. SAME UNCONSCIONABLE SALE UNDER EXECUTION.

It is an additional reason for dismissing such a bill that the execution, which was for but $1,000, was levied upon two separate parcels of land, worth in the aggregate $25,000, and both parcels sold together and bid in by complainant for the amount of the judgment.

In Equity.

ter's report.

Bill to remove cloud from title. On exceptions to mas

E. A. Sherburne, for complainant.

P. McHugh, for defendants.

BLODGETT, J., (orally.) In this case the master has filed a report finding that the complainant's bill is not supported by the proof, and that it should be dismissed for want of equity. The complainant has filed exceptions to the master's findings, and these exceptions have been argued at length in a brief filed in behalf of complainant. Without discussing at length the proofs in the case, I will briefly say that an examination of the proof satisfies me with the findings of the master. The master has traveled over an unnecessary area of ground in coming to his conclusions, but he finds that the proof on the part of the complainant, inasmuch as the complainant has the burden of proof, is not sufficient to entitle the complainant to the relief prayed for, and recommends that the bill be dismissed. I am of opinion that other reasons might be urged in support of the master's findings aside from those he has discussed in his report. The bill is for removing what the complainant calls a cloud upon his title to certain real estate in this city,-two separate pieces,-the title of the complainant having been acquired by the issue of a writ of attachment against the defendant Thomas F. Collins, as a non-resident of Illinois, to collect the sum of about $905, alleged to be due and owing from said Thomas F. Collins to the complainant. The attachment was levied upon these two pieces of real estate, and with no personal service of process, and no appearance in the case on the part of the defendant Collins, jurisdiction was obtained by the publication of notice pursuant to the attachment laws of Illinois, and judgment taken by default, and an order for a special execution for the sale of the property levied upon. At the sale under this execution complainant became the purchaser, and now seeks to obtain a decree that the title to this property, which is in the name of the defendant Mrs. Collins, was held by her solely in trust for her husband at the time of such levy and sale, and that her husband, the defendant Thomas F. Collins, was at the time of such levy, judgment, and sale the real and equitable owner of said property.

The testimony in the case shows some very questionable transactions between Collins and the complainant in regard to dealings in certain gas company bonds; that out of such dealings grew the issue to the complainant of a due-bill for $905, upon which the attachment suit was brought. The answer denies that there was anything due complainant on this due-bill at the time this attachment suit was brought, and a clear preponderance of the proof, I think, supports this denial; as two witnesses testify to the full payment of this due-bill, and complainant alone testifies that it is unpaid.

I take it that the law is well settled that no one who is not an actual and bona fide creditor can have relief in a court of equity in a case like this. There must be an actual, valid indebtedness as the foundation of an attachment proceeding like the one in question to give the plaintiff a standing in a court of equity to ask for a perfection of his title acquired by such attachment. With a note or due-bill in his hands he might impose upon a court of law by the production of his evidence of debt as the foundation of his attachment suit, and obtain a judgment there; but

when he seeks for relief in a court of equity he must come in with clean hands and an honest case, which I think the testimony shows this complainant has not. Secondly. He sold in satisfaction of the judgment, which amounted to a little over $1,000, including interest and costs, two separate pieces of property in different parts of the city, with no relation to each other, one worth $15,000 and the other $10,000, as the proof shows; thus acquiring, if Thomas F. Collins was the real owner, $25,000 worth of property to satisfy an indebtedness of barely $1,000. The two properties were certainly divisible, and perhaps each one of them was also susceptible of further division, and the attempt of the complainant to obtain title to so large an amount of property for so small a consideration seems to me so unconscionable a proceeding as to merit no aid from a court of equity.

For these reasons the exceptions to the master's report are overruled, the report confirmed, and the bill dismissed for want of equity.

UNITED STATES v. HUTCHESON et al.

(Circuit Court, S. D. Georgia, E. D. February 4, 1889.)

1. POST-OFFICE-POSTMASTER-ADJUSTMENT OF ACCOUNT.

Where the quarterly returns of a postmaster, in which are reported receipts for sale of stamps, etc., and amount of commission claimed for cancellation of stamps, have been regularly rendered to the department, and have been passed upon by the auditor, and the balances therein found to be due the gov ernment have been each quarter carried into a general account, held, hat such action by the auditor is a complete allowance of the commissions claimed, and adjustment of such quarterly returns.

2. SAME WITHHOLDING COMMISSION.

Where the credits on the general account kept by the auditor against the postmaster, and made up as above stated, show that the postmaster has fully paid all balances so charged, so that a complete balance could be struck upon such general account, held, that in such case there is a complete settlement of the account, and that thereafter the commissions covered by such adjusted accounts were not within the power of allowance by the postmaster general. so as to give him the right to "withhold" the same within the meaning of the act of congress of June 17, 1878, (20 St. at Large 140.) There was nothing to "withhold."

8. SAME

BALANCE SHOWN-PRIMA FACIE EVIDENCE.

If the postmaster general, in the exercise of the power conferred upon him by the act of June 17, 1878, before the allowance of credit for commissions is made, directs that it shall not be made, and it is not made, but in lieu thereof credit is given on the account kept with the postmaster for the amount of the allowance deemed reasonable by the postmaster general, the balance shown due the government by such an account would be prima facie sufficient, but. not conclusive evidence against the postmaster.

4. SAME-CHARGES OF FRAUD.

Where an account of a postmaster, regular on its face, has been adjusted and allowed by the proper accounting officers, and fully paid, such officers cannot, after the term of office of the postmaster has expired, evolve ex parte a balance in favor of the government, founded solely upon a general and vague al

legation of fraud in accounts formerly passed upon, so as to make such balance prima facie evidence against the postmaster and his sureties. Such allegations must be specific, and sustained by competent evidence.

(Syllabus by the Court.)

At Law.

Du Pont Guerry, U. S. Atty.

Lester & Ravanel, for defendants.

SPEER, J. The district attorney has brought suit in behalf of the government against the defendants on a postmaster's bond. The government has offered in evidence a certified copy of the bond, a certified copy of a demand for $1,296.26, and what purports to be a transcript of the account kept by the post-office department with the defendant, Mary P. Hutcheson, as postmaster at Marysville, Ga.; and appended thereto are copies of the quarterly returns or accounts current of the said postmaster, rendered to the post-office department during her incumbency of the office. This account and the returns are under one certificate from the department, the language of which is that the writing annexed to the certificate is "a true and correct statement of the account from October 1, 1878, to June 30, 1885, of Mrs. Mary P. Hutcheson, late postmaster at Marysville, in the state of Georgia, and that the papers thereto appended are copies of papers pertaining to his accounts in the office of the sixth auditor." The government has also offered in evidence a certified copy of an order made by the postmaster general, which is in the following words:

"POST-OFFICE DEPARTMENT. OFFICE OF THE POSTMASTER GENERAL. "Order No. 230. WASHINGTON, D. C., Oct. 30, 1886. "Being satisfied that Mary P. Hutcheson late P. M., Marysville, Johnson Co., Ga., has made a false return of business at the post-office at said place during the period from Oct. 1, 1878, to June 30, 1885, in order to increase her compensation beyond the amount she would justly have been entitled to have by law, now, in the exercise of the discretion conferred by the act of congress entitled An act making appropriations for the service of the post-office department for the fiscal year ending June 30, 1879, and for other purposes,' approved June 17, 1878, (section 1, c. 259, Supp. Rev. St.,) I hereby withhold commissions on the returns aforesaid, and allow as compensation (in place of such commissions, and in addition to box-rents) deemed by me under the circumstances to be reasonable during the period aforesaid the rate of $10 per quarter, and the auditor is requested to adjust her accounts accordingly. "WM. F. VILAS, Postmaster General."

An inspection of the certified copies of the accounts current or quarterly returns of the postmaster shows that they are made upon the forms prescribed by the department, and that there are parallel columns provided for the figures, stating the amount of the different items of the account as rendered by the postmaster, and as found by the auditor upon adjustment. It further appears from the figures entered in red ink, in the column provided for the entries by the auditor, that the finding of the au

« iepriekšējāTurpināt »