Imágenes de páginas
PDF
EPUB

465, and parts of lots 7, 9, 10, 11, and 12 in square 437; that the deed was purely voluntary and with the intent to defraud and delay the creditors of Kirk; and, in any event, if a consideration passed, it was upon a secret trust to reconvey to Kirk whenever the sum of $4,000 was repaid.

It also alleged that the several deeds were duly recorded, and prayed that the deed from Kirk to Stott be declared null and void as against the complainants, and that the parcels of ground mentioned in the several conveyances be sold for the payment, "first, of such sums as were shown to be due on account of debts, and next, of the amount or amounts due to complainants on their judgments, and the costs" of suit.

Special interrogatories to the several defendants were embodied in the bill.

On 21st November, 1859, summons was issued, and returned 28th November, 1859, as served on all the defendants except Garnett and Martin.

At the May Term, 1860, a decree was, for want of an appearance and answer at rules, entered pro confesso against all of the defendants, except Garnett and Martin. It ordered that parts of lots 7 and 9 in square 437, and lot 78 in subdivision of square 465, "be sold, or so much thereof as may be necessary, for the payment of said complainants' claim and others who may come in as creditors of the said George E. Kirk by petition, in the manner and form required by law and the practice of the court, and that Edward C. Carrington be and is hereby appointed trustee to make such sale," &c.

After advertisement, as required by the decree, the trustee sold lot 78, with improvements, for $1,480. In his report of sale he says: "Your trustee, having sold sufficient property to pay and satisfy the claims provided for in said bill and decree, discontinued the sale of the other property mentioned in said proceedings."

On 28th October, 1862, the report of sale, no exception thereto having been filed, was confirmed, and the cause referred to the auditor to state the trustee's account and make distribution of the fund realized. After satisfying the claims of Moore & Co. and costs of suit, there was left a surplus in the trustee's hands of $1,008.52.

In an order entered Nov. 14, 1863, it is recited that certain creditors of Kirk had filed petitions, seeking the payment of numerous judgments and claims against him. Upon the ground that he was a non-resident living beyond the jurisdiction of the court, an order was made that notice of the character and object of the petitions be given him by publication, for six weeks, warning him to appear in person or by solicitor, on or before the second Monday of January, 1864, "at rules to be held in the clerk's office" of the court, otherwise the petitions and claims would be taken as confessed against him. Due proof of publication of that order was filed Jan. 23, 1864. On 2d February, 1864, this order was entered: "It appearing to the clerk that the defendants Geo. E. Kirk, Walter Lenox, Henry Naylor, R. H. Clarke, A. A. Smith, H. B. Sweeney, John Robinson, J. H. Goddard, Jr., Job W. Angus, and Charles Stott have failed to appear and answer in this suit, it is, this second day of February, 1864, on motion of A. Lloyd (by Fred. H. Norton), solicitor for complainants, ordered by the clerk that the bill and the matters thereof be taken for confessed against the above defendants.”

By an order of the 12th of February, 1864, the cause, with the said petitions and claims, was referred to the auditor of the court, with instructions to state the trustee's account and make distribution of the balance of the fund in his hands. A report of distribution was made showing that judgments and claims were proven in excess of the funds remaining in the trustee's hands upon the sale of lot 78. His report of distribution was approved April 9, 1864.

Thereupon the trustee, Carrington, without any further order, and by virtue of the original decree of May 30, 1860, advertised, and on the 19th of April, 1864, sold at public auction, the demanded premises, being the parts of lots 7 and 9 described in the bill, to Charles O. Hamilton for $950. The sale was subsequently confirmed, and by an order of Dec. 12, 1864, the cause was referred to the auditor to state the accounts of the trustee and report a distribution. In his report the auditor says: "Pending this last reference of December, 1864, and before the case was confirmed, Kirk returned from the South, and has appeared by Mr. Laskey, his counsel, upon

this reference. The simple-contract debts are not admitted by him, but he states that he has offsets in bar against some if not all of them." Appended to the auditor's report there is the following paper: "The defendant Kirk does not admit the simple-contract debts, but contests the same, and requires the said claims before they be allowed by the auditor to be established by competent proof. R. H. Laskey, atty. for deft." The report was confirmed Feb. 5, 1865, and the purchase-money having been paid, Carrington, the trustee, by his deed of Dec. 14, 1865, conveyed the premises to Hamilton, who thereupon went into possession. The remaining facts are stated in the opinion of the court.

Mr. Albert Pike and Mr. Luther H. Pike for the plaintiff in

error.

Mr. Richard T. Merrick and Mr. Martin F. Morris, contra.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

It appears from the first bill of exceptions that, upon the trial of the cause, the plaintiff, to maintain the issue joined, gave evidence to the jury tending to prove title in himself to the land in dispute, as well as his actual possession of the premises under that title; that he had fully discharged the indebtedness secured by the two deeds of trust executed, one to Lenox and Naylor, and the other to Clarke and Smith; that Charles Stott, on the 14th of May, 1872, reconveyed to him all that portion of the premises which, on the 22d of March, 1856, he had conveyed to Stott; that he had never made nor authorized any other conveyances than those just named. He also introduced a deed from Carrington, as the supposed trustee in the case of Moore & Co. v. Kirk, &c., at the same time, however, denying its validity, and avowing that it was introduced subject to his exceptions reserved, and to be thereafter presented, as to its sufficiency in law to prove title in the defendants or either of them. It was admitted by the court subject to those exceptions. The plaintiff further gave evidence to prove that defendants were in possession of the premises at the commencement of the action, and then rested.

The bill of exceptions then shows that defendants, to sustain

their defence, and to prove title out of the plaintiff, offered to read in evidence the record of the equity suit of Moore & Co. v. Kirk, &c. Plaintiff insisted that the record of that suit was insufficient in law to maintain the issue on defendants' behalf, or to show title in them, and asked the court to inform the jury that it should not then be admitted in evidence, except subject to his exceptions as to its sufficiency in law, to be thereafter presented to the court pending the further trial of the cause. The record was so admitted. The defendants, further to maintain their defence, and to prove title in themselves, offered to introduce testimony tending to prove that, at the time of the purchase of the premises at the sale made by Carrington, trustee, in the suit of Moore & Co. v. Kirk, &c., the only improvement thereon was a two-story four-room brick house, and that, about the year 1868, the defendants erected an extensive building on the property, at a cost of some $4,000; that when they began such building, and for some time thereafter, the plaintiff Kirk resided on the adjoining premises; that during all that time he well knew of said improvements, made no objection thereto, and asserted no claim to the property, except the west three feet thereof, adjoining his ground, and which he claimed as an alley, and, even as to such portion, he subsequently informed the witness he was mistaken; and, lastly, that the plaintiff, though residing in the city of Washington ever since about the year 1865, never, to defendants' knowledge, until the commencement of this action, asserted any claim to the prem ises in dispute.

At that stage of the trial the plaintiff interposed and asked the court to inform the jury that the testimony thus offered, in reference to defendants putting improvements on the premises, was inadmissible in law, and that such issue ought to be found for the plaintiff. The court ruled that the testimony was admissible, to which plaintiff excepted. The defendants then gave the said testimony in evidence to the jury, who rendered a verdict against the plaintiff upon the issue set forth by the first bill of exceptions.

The remaining bills of exceptions present, in different forms, the general question whether the sale by Carrington, as trustee, on the 19th of April, 1864, was or was not, upon the face of the

record of Moore & Co. v. Kirk, &c., a mere nullity. Its validity is assailed by the plaintiff on various grounds, the must important of which seem to be: 1. That as Moore & Co. sued in their own behalf only, and not for the benefit of themselves and other creditors, the jurisdiction and power of the court was exhausted by the first sale (of lot No. 78), which raised an amount largely in excess of the claims for which Moore & Co. sued. 2. That the utmost which the court, upon the pleadings, could do, was to distribute such excess among the other creditors of Kirk who should appear, in proper form, and establish their claims. 3. That the court was entirely without jurisdiction to make a second order of sale, and did not assume to exercise any such power. 4. That the second sale by Carrington, having been made without any previous order or direction of the court, its confirmation, and the deed subsequently made to Hamilton, were absolutely null and void.

In the view we take of the case, it is unnecessary to pass upon these several objections. If it be assumed that the record of the suit of Moore & Co. v. Kirk, &c., was, of itself, insufficient in law to divest Kirk of title to the premises in dispute, or to invest Hamilton with title, the question still remains, whether the facts disclosed by the first bill of exceptions do not constitute a defence to the present action.

After the confirmation of the sale of April 19, 1864, before any deed had been made, and while the cause was upon reference for a statement, as well of the trustee's accounts as for distribution of the fund realized by the sales, Kirk, it seems, appeared before the auditor, by an attorney, and made objection to the allowance of the simple-contract debts which had been proven against him in his absence. So far as the record discloses, no other objection to the proceedings was interposed by him. Undoubtedly he then knew, he must be conclusively presumed to have known, after he appeared before the auditor, all that had taken place in that suit during his absence from the District, including the sale of the premises in dispute, which took place only a few months prior to his appearance before the auditor. If that sale was a nullity, the court, upon application by Kirk, after his appearance before the auditor, could have disregarded all that had been done subsequently to the

« AnteriorContinuar »