source: Caselaw Access Project

author: Mr. Justice Catron Mr. Justice Baldwin Mr. Justice Thompson

license: Public Domain

text:
    The Bank of the United States, Appellant, vs. Elizabeth Lee, Edmund J. Lee, and Richard Smith, Appellees.
    R.' B. L. in. 1809, then residing in Virginia, for a valuable consideration, Made a conveyance in trust for the benefit of his wife, of certain personal property, and slaves, which deed was duly recorded according to the provisions of the act of the legislature of Virginia. The property thus conveyed, remained in the possession of the husband and wife, while they resided in Virginia; and in 1814, R. B. L. removed to the District of Columbia, with his wife and family, and brought with him the slayes and property conveyed in trust for his wife.'. In 1817, R. B. L. borrowed a sum of money of the Bank of the United States, on his'promissory note, endorsed by one of the trustees named in the deed of trust, of 1809. .At the time the loan was made, R. B. L. executed, a deed of trust ofi eleygiv slaves, and among them were the slaves and the household- furniture conveyed'by the' deed of 1809, to secure the bank for the amount of the Iban. In 1827, R. B. L. died, entirely insolvent During his residence in Washington, being in reduced circumstances, he sold some of the slaves, conveyed by the deed of 1803, for the support of his family ¡ without objection by his wife or her trustees. In 1834, the debt, to the bank being, unpaid, a bill was filed against Mrs. E. L., the wife of R. B. L;, and the trustees, .in order to., compel the surrender of the remaining slaves, and the household furniture, to the trustee for the bank, for the sale of the same, to satisfy the debt due to" the bank: held, that the deed of 1809, vesting the property in Mrs. L.’s trustees, was effectual, according to.the laws of Virginia, to protect the .title thereto, against the subsequent creditors, or pur-' . chasers from R. B. Lee, and that the removal of R, B. L. and his wife, into the District of Columbia, with the property conveyed to. the trustees'for the use of Mrs. L., did not affect or impair the validity of the deed of trust "
    A liberal construction should be given to the clause .of the Virginia! statute, for the suppression of fraud. This, is the well established rule in the construction, of the statute of Elizabeth, which the first section of the Virginia statute substantially adopts.
    If A sells, or conveys his lands or slaves to B,'and then produces to another his previous' paper title, and obtains credit on the goods or lands, by pledging them for money loaned, he is guilty of fraud; arid if the true owner stands by, arid does not make his title known, he will be bound to make good the contract, on the principle that he Who holds his peace when he ought to have spoken, shall not be heard now that he should be silent. He is deemed, in equity, a party to the fraud.
    ON appeal from the Circuit Court of the United States, for the county of Washington, in the District of Columbia.
    ■ The appellant ’filed a bill in the Circuit Court, stating, that in 1817, Richard Bland Lee represented himself to be the .owner of certain after mentioned property, then in his possession; that he applied to the bank for a loan of @6000, and offered to eonvey the said* property in trust, to secure the repayment of said sttm of money; that the loan was made, and a deed of trust executed and delivered, on the 11th-June, 181-7, .to' Richard Smith, as trustee ; that the said Lee 'died in 1827, intestate and insolvent, leaving said d^bt unpaid; that no'administration was taken oil-his estate; that his-widow. Elizabeth Lee, the' défendánt, has taken -possession of said property.-and withholds it from said trustee, alleging that it had been previously conveyed by her said husband, in January, 1809, to trustees, for ner use.-
    The bill, charges, that the said deed of. the. 9th January, 1809, if ever made, was a voluntary and fraudulent deed; and, therefore, void against the.complainants, who are bona fide purchasers, for a valuable consideration -without notice: that the considerations expressed in the said deed are false,-or, if true, insufficient to give it solidity; that at the date of the' said deed, Richard Bland Lee was largely indebted, and incompetent at law to make the same; that 'if the said deed had every legal requisite, it was executed in Virginia, and never was recorded in Washington county, in the District of Columbia, to which placó the said Lee and his wife removed, bringing with them the said property, or was other notice given to the public then of its existence:- that E. J. Lee, the surviving trustee, in the deed of- the 9th January, 1809, and Mrs, Lee, herself, knew that the complainant had loaned the @6000 to Richard Bland Lee, upon his representations that he was the owner of the said property, and that Richard Bland Lee had conveyed the same to Richard Smith, to secure the payment of the said sum of money; and never communicated to the complainants, or to Smith, until several years after the death of Richard Bland Lee, the existence of the deed of the 9th January, 1809.
    The bill prayed that the deed of the 9th January may be produced, the execution thereof and the recitals .therein fully proved; and that it may be declared fraudulent and void against the complainants. ■
    Elizabeth Lee, in her answer, admits the loan, and the execution of the deed to Richard Smith, but avers she was ignorant of its execution until long after it had been delivered, and never consented thereto; she denies any knowledge of the representations made by Richard Bland.Lee, respecting the ownership of said property, when he applied for the loan.
    She says, that on the 9th January,-1809, shé and her husband, then living, and having a long time before dwelt in Fairfax county, Virginia, and the property in the deed mentioned therein, being in the said, county, she agreed with her husband to relinquish her right of dower in certain lands in Spotsylvania county, Virginia, in which, her husband held five-eighths of eight, thousand acres; and also to convey her right in certain Fairfax land, containing two thousand one. hundred acres, her separate/ property, to trustees, to secure a debt of @10,034 28, due from her husband to Judge Washington; in consideration of which, and of her execution of the conveyances and relinquishment of her dower, her husband agreed to convey to E. J. Lee, William Maffit, and R. Coleman, certain slaves, &c., of which those mentioned in. the bill of complaint are part, for her use;; that it was ■ agreed that hér said husband should be authorized to sell any part of the said property, with consent of a majority of the said trustees, provided he should convey to the said trustees other property, to .the full value Of that sold. She avers that, in execution of this agreement,-and'in consideration of-the deed of the slaves, &c., of the 9th January, 1809, she executed, the deed of the Spotsylvania land, and relinquished her dower therein; that on -the 9th January,-1809, she conveyed the land in Fairfax, to secure Judge Washington’s debt; and on the same day her husband, in fulfilment of his part of the agreement, made and executed the deed of the 9th January, 1809, to É. J. Lee, Maffit, and Coleman, of the slaves, &c., which deed was duly .proved ánd recorded in Fairfax County Court, within eight month's from its date; in which said county, she still continued for some time to reside with her husbandL and where she continued to hold the said property. The- deeds are exhibited with the answer.
    She declares the -agreement to have been bona fide, and without fraud, and claims to be the owner of said property. She admits her husband sold part of the property, with the consent of her trustees, and other part under the pressure of great distress, without their consent, after they removed to Washington; that her husband died in 1827; that they lived together until his death; and that her possession of the property, being domestic servánts and household furniture, could not be separated from his, and was consistent with the deed.
    The case is stated more, at large in the.opinion of the Court. '
    The Circuit Court decreed that the bill should be dismissed; and the complainants prosecuted this appeal.
    For the appellant, Coxe and. Mr. Sergeant contended:—
    I. That the deed of 9th January, 1809, was, from the beginning, fraudulent and void.
    1. Because on the face of said deed no valid consideration appears; but. the same is voluntary, by a person largely indebted, in favour of his wife and children. .
    2. Because no such agreement, as is set forth in defendant Elizabeth Lee’s answer, is proved; although put in issue by the pleadings, and strict proof is required by the complainants.
    3. Because it is admitted that .the property recited in said deed to have' been conveyed to Turner and others, was merely conveyed, by way of mortgage; to secure a debt due to Judge Washington;' which debt has been paid from other sources, and the said property so mortgaged has been exonerated from said incumbrance.
    4. Because no such deed as is recited in the deed of 9th January, 1809, as having been then madé to Ludwell Lee, appears ever to have been executed.
    5. Because the deed of 16th July, 1809, from R. B. Lee and Elizabeth his wife, to Ludwell Lee, does not correspond with the description in the recital of the deed of 9th January, 1809. •
    . II. Because the continued posses_sion, use, and enjoymént by said R: B. Lee, of the said property, purported to be conveyed by the deed of 9th January, 1809, was evidence of a continued ownership; and avoids said deed as against subsequent bona fide purchasers and creditors, without notice.
    III. That said deed, so executed in Virginia; will not' validate the possession, use, and enjoyment of said property in the city of Washington.
    IV. Because' the whole case exhibits a case of gross and palpable fraud, which ought not to stand in a Court of Equity.

      For the appellees, Mrí Marbury and Mr. Coolie insisted,
    that the deed of January 9th, 1S09, is valid-against thl§- complainants. That, .considered aa.a voluntary settlement, it is good against the complainants, they being subsequent creditors.
    . That .the , said deed was made for good and valuable considerations. between the parties.
    That there is ho evidence to charge Mrs. Lee, or her trustee,-with any fraudulent practice on the complainants,” in the concealment of their title to the property at any timé.
    That the possession of Richard Bland Lee, after his removal .to, the District, of Columbia, was consistent with the- deed, and the necessary consequence of his relation to Mrs. Lee.'
    •That it was nbt necessary to record the deed in the District of Columbia, on the removal of the parties and of the property tcTWashingtoncity.
    That .the power reserved to Mr. Lee, to dispose of the property with the consent of the trustees, is not a badge of fraud; and does not affect the validity of the deed in which that power is reserved.
    That the sale by Richard Bland Lee of portions of the. said trust property, without the assent of the trustees, cannot affect the title of Mrs. Lee to that part which he did- not sell.
   Mr. Justice Catron

delivered the opinion of the.Court.—

. The bill alleges, as a principal ground of relief, fraud in fact, iñ inception of the conveyance sought to be set aside': this being denied by the answers, it is incumbent that. fraud in fact should be proved by the complainants; and which,, they insist, is established by the proofs. As the pleadings and- exhibits furnish almost the entire evidence, it becomes material to set them out to a‘ considerable extent. And in extracting the facts, from, which it is supposed tve. are authorized to infer fraud, it. must be done with, reference to the bearing of the local and peculiar laws of Virginia on. the trans-' action. . ' ' '

It appears that, in 1817, Richard Bland Lee, the husband of Elizabeth Lee, the respondent, borrowed from the Bank of the United Stages, at their office of discount át Washington, $6,000 on his note at sixty days, (renewable at the pleasuré of the bank,) and endorsed by Ed. J. Lee and Walter Jones: and further to secure the repayment of the money, executed a deed-of trust for eleven slaves, and sundry household goods, valued at $7,200, to- Richard Smith, the cashier of office of discount, with-power to the trustee to sell iii default of payment, after giving-thirty days’ notice.. The deed also pledged some outstanding claims, not necessary to be noticed, as they proved to be of no material value.. The debt not having been paid, after long indulgence, suit was brought,’and a recovery had, against Richard Bland Lee, and Walter Jones, .one of the endorsers; but no part of the judgment has been satisfied,

In 1834 the president, directors, and company of the bank filed their bill against Edmund J. Lee, Elizabeth Lee, ¿nd Richard Smith, the trustee; alleging that Richard Bland Lee died in 1827 intestate; that no one had administered on his estate, and that Elizabeth Lee had converted the Slaves and household goods to her own use. after the death of her husband; that she was executrix in her; own wrong, and bound to pay the debt; but refused to do so, asserting the property pledged to pay the bank debt by her late husband, had been conveyed by him, as early as 1809, to Ed. J. Lee, William Maffit, and Richard Coleman, in trust for the sole and separarte usé of the said Elizabeth; that s^e had exhibited the deed to the complainants, but which they aver was voluntary, fraudulent, and void, as against them, because they were purchasers for a valuable consideration, without notice of such deed; as also creditors of Richard. Bland Lee, the grantor. That the considerations set forth in the deed are not truly stated; but, if truly stated, they are wholly insufficient to give validity to. the same.' That Richard Bland Lee, at the date of the deed in 1809, was largely indebted, and incompetent in law to make such deed for the benefit of his wife and family.

That if the deed was duly executed, and upon legal and adequate consideration when made, yet the same was executed in the commonwealth- of Virginia; that the trustees had never acted under it,' or taken possession of the property embraced in it; but had suffered Richard .Bland Lee, the'grantor, at all times, and without interruption, from the date 'of the deed to the time of- his death, to retain possession of the property, and to use, enjoy, and dispose of the same, and hr’d himself out to the world as the true and absolute owner; and especially, that the trustees had permitted the grantor to bring the slaves and furniture from Virginia to the District of Columbia and. county of Washington, about the year 1814, and there to continue his use and enjoyment of the same, as if he were the absolute, entire, and unqualified owner thereof.

That the deed was never recorded in the county of Washington, nor notice given to the public, or the complainants, of its existence, during the lifetime of Richard Bland Lee, nor.for some years after his death; but he was permitted- to obtain credit and contract- debts upon the faith of his being thé sole and absolute owner of the slaves and goods described in the deed; and permitted to sell and dispose of parts of the same without any assertion of right or title on the part of the trustees or said Elizabeth.; and that Ed. J. Lée, the only surviving trustee, and the said Elizabeth, knew that the complainants had made the loan of the $6,000 to Richard Bland Lee, in the full faith that IS was the real and unqualified owner of the property; and knew he had made and executed the deed of trust to Richard Smith, to secure the repayment of the money; yet they «did not communicate to the complainants the existence of the deed made for the benefit, of the said Elizabeth, during the lifetime of Richard Bland Lee, nor until several years after his death; nor did said Ed. J. Lee, or Elizabeth, intimate in any manner, or give the complainants, or. their trustee, reason to suspect that there was any- defect in the title derived under the deed to Richard Smith; nor that Ed. J. Lee, or Elizabeth, had any title or claim, or pretended to have, to the slaves and furniture.

The foregoing allegations present two aspects; 1st, That the deed pi 1809 was fraudulent and void in its inception: and, 2d, That if valid in Virginia, it not having been recorded in the county of Washington, (formerly a part of Maryland,) and the continued possession of the property covered by it haying remained with the grantor, both in Virginia and here, up to the time of his death; was such ¿‘fraud upon creditors of, and purchasers from, Richard Bland Lee, .as to destroy the effect, of the conveyance.

The, deed of 1809, amongst other things, Sets forth that Richard Bland Lee owed Judge Washington $10,034 28; and, as a part of. the consideration, Mrs..Lee had joined her husband in a mortgage' to trustees for Judge Washington’s use, pledging her separate estate to secure the debt. These specific facts the bill does .not set forth; but, by way of interrogatory, asks the defendants to answer, whether the debt mentioned in said deed, as being due to Judge Washington, had ever been paid; by whom, and from what funds; and the respondents are required to produce the deed.

It also appears that the complainants, commenced an action of feplevin against Mrs. Lee for. the slaves and household goods; and which' was, by an agreement of the parties, suspended until the termination of this suit. . ' . .

Ed. J. Lee answers, that the deed of 1809! was executed by. Richard Bland Lee, to himself and others,; as trustees for Elizabeth Lee, the wife of said Richard Bland Lee; that it sets forth the true consideration for the same; that the respondent is the only surviving trustee; that he never did give 'notice to the complainants, pf the existence of the deed; but that he did not know, until shortly before Richard Bland Lee’s death, that he had made the- deed of trust ito Richard Smith; • and which never received respondent’s assent. That he cannot state, from general recollection, how the debt due tp Judge Washington Avas paid;, but it. is-his impression .it was paid' either by stock in the Bank of Alexandria; which belonged to Elizabeth Lee, and was held in trust for her' by her brother Zacheus Collins, deceased; or by a sale of part of the farm called Langley.

Elizabeth Lee answers, that the loan of $6,000 was made.by the bank as charged; but that she was ignorant of the execution of the deed of trust to Richard. Smith, to secure the- repayment of the money, until long after the deed had been delivered and the loan •made: denies she ever assented thereto, or waived her rights to the slaves, or any part of the property purporting to have been conveyed by the deed.. Admits the recovery of the judgment as alleged; and that Richard Bland Lee died iii 1827, intestate and insolvent ; and that no one has administered on his estate.

- And,.further answering, says, that on the 9th day of January, in the year 1809, the said Richard B. Lee and this respondent, then dwelling, and having for a long time before dwelt in the county of Fairfax, in the state, of Virginia, and the slaves and other personal property hereinafter mentioned, then being in the said county, she agreed with the said Richard to relinquish her right of dower in a certain tract of land in the county of Spotsylvania, in the commonwealth of Virginia, on the Rappahannock river, containing eight thousand acres, more or less, of five undiyided eighth parts, of which the said Richard Bland Lee was seised in fee simple, and to join the said Richard in a conveyance thereof to Ludwell Lee.

She also, on the same day, agreed to join her said husband in the execution of a deed of trust to Henry Smith Turner, Thomas Blackburn, and Bushrod Washington, Jun,, conveying to them two tracts of land in the said.county of Fairfax, one situated on the river Potbmae, near the Little Falls thereof, containing sixteen hundred acres, more or less; the other being the estate on which the said Richard and this.respondent then resided, containing five hundred and thirty acres, more or less; which tracts of land Were then held in trust for this respondent,: which last mentioned conveyance was to be made to the said Turner and others, in trust to secure the payment of the sum of tén thousand and thirty-four dollars and twenty-eight cents, due from the said Richard to the Honourable Bushrod Washington. And in consideration of the execution of the said conveyance by this respondent, and of her thereby relinquishing her dower in the said Spotsylvania lands, and.her right to the said lands in Fairfax, the said Richard, on his part, agreed-to convey to Edmund J. Lee, William Mafiit, and Richard Coleman, all .the household and kitchen furniture, carpeting, beds, bedsteads, bed furniture, plate, chinaware, glass, tables, chairs, table linen, carpets, sideboards, bureaus, wardrobes; and all kinds of furniture, then in their said dwelling house and kitchen; estimated to'be worth sixteen hundred dollars; and the following slaves, that is to say: John, and his wife Alice, and their’ children Patty, Betty, Henry, Charles, Johnny, Margaret, Milly, and Frank; Ludwell, and his wife Nancy, and their children Caroline, Harriet, Frederick, Ludwell, and Barbara; Henny and her child Eleanor; Rachel and her child Rachel; two .sisters,- Kitty and Letty, and their brothers, Alexander and Alfred; George, (a blacksmith,) Harry, (a carpenter,) Harry,- (a wagoner,) Tom, (a carter,) Thornton, (a cook,) Samuel, (a smith,) and John, (a ploughboy,) to be held by the said E. J. Lee, William Mafiit, and Richard Coleman, and the survivors and survivor of them, and thei executors and administrators of such survivor, in trust, for the use of this respondent, during her life; and after her death, to pass to her heirs ,§it law, provided she died intestate,- or to such persons as she might-bequeath the same to by her last will and testament, so as she should make the same pass fully and completely, and without limitation or condition,.to her heirs-or legatees: It was further agreed by the said Richard'and this respondent, that the said Richard should be authorized,, at any time during his life, to sell or otherwise dispose, of any part of the said slaves and furniture, with the consent of a majority of the said trustees, or of the survivors or - survivor of them, or of the executors or administrators of the last survivor, provided the said Richard should convey to the said trustees, nr to the survivors or survivor, or the executors or administrators of the. last survivor, other property, real Or personal, to the full value of the said furniture or slaves; so sold or disposed of. And it was further agreed, that if the said Richard should fully pay the said debt to, the Honourable Bushrod Washington, without selling any part of the lands to be conveyed to the said Henry S. Turner and others, in trust, as aforesaid, and then held in trust for- the said Elizabeth, then that the conveyance' to be made as aforesaid, to the said Eí J.. Lee, William Maffit, and Richard Coleman, should become null and void, as. to the slaves Ludwell, Thornton, Henry, Butler, Tom, Samuel, Jack, and Eleanor.

And the said Elizabeth avers, that in execution of the said agreement, and in consideration of the conveyance by the terms thereof to be made to the said E. J. Lee, William Maffit, and Richard Coleman, for her use, in manner and on the terms aforesaid, she did, on the 16th day of July, 1809, in due form of law, with the said R. B. Lee, execute and deliver to the Said Ludwell, a conveyance in fee -of the said lands in Spotsylvania, thereby relinquishing her claim of dower therein. And did, with the said Richard, in due. form of law, on the 9th day of January, 1809, execute and deliver to the said Henry S. Turner, Thomas Blackburn, and Bushrod Washington; Jun.,.a deed for the said lands, in Fairfax county, whereby she conveyed her right to the said lands last mentioned, to the said Turner and others, in trust, to secure the payment of the said debt, due from the said Richard B. Lee to the Honourable Bushrod Washington, in the manner provided by the said agreement. And that the said Richard did, on.the same day, iñ execution of the said agreement, on his part, execute and deliver to the said E. J. Lee, William Maffit, and Richard Coleman, a conveyance, whereby he transferred and conveyed to them the said slaves and furniture before mentioned, to be held in-trust for this respondent, in the manner and on' the terms before stated, which said deed was duly proved and recorded, within eight months from the date thereof, in the County Court of the county of Fairfax, in which the said Richard and this respondent continued still to reside, and -in which the said slaves‘and furniture still remained. And this defendant herewith exhibits the said three; deeds severally, marked, Exhibits, No. 1, No. a, and No. 3. This respondent avers, that the said agreement "before, mentioned, was made between the said Richard and her; and the said deeds executed in pursuance thereof, fairly and bona fide, without any intention to defeat, defraud, hinder, or delay any creditor of the said Richard. She is advised,' and insists that they were duly proved'and recorded, according to-the laws of the state of Virginia, and that, under the same, she is a bona fide purchaser • of the said slaves and furniture, according to the terms of the said .deed'to E. J. Lee and others; and that the said deed fully protects her, in the .right to the said property conveyed, according to the terms.thereof, against all creditors of the said Richard, and all purchasers subsequently to the date thereof. And this respondent has before herewith exhibited, a's part of her. answer to said deed* with the certificate of proof and record' thereof,, by the clerk óf the County Court of Fairfax county, marked Exhibit No; 3.

This respondent admits that no sale of the Fairfax lands was made under the said deed to Henry S. Turner and others; she, therefore, makes no claim to the slaves, Ludwell, Thornton, Henry, Butler, Tom, Samuel, Jack, and Eleanor; that none of the said last mentioned slaves are in her possession or subject to her control, nor were they so when the complainants issued out their writ of replevin in their hill mentioned, or at the time they instituted this suit.

In this case it is agreed, that the following facts be, and they are hereby, admitted as true, reserving all objections to the admissibility of the facts as competent testimony in the case, viz. That Richard Bland'Lee and his wife Elizabeth, one of the defendants, resided at Fairfax county, in the state of Virginia, on the 9th January, in the year 1809, and said Richard B. Lee then held the negroes and other personal property, mentioned in the deed of that date, from said Richard B. Lee, to Lee, Maffit, and Goleman, filed with.defendant Elizabeth’s answer, and marked Exhibit No. 3.

That the said R. B. Lee and his wife Elizabeth were housekeep. ers, and resided together, in Fairfax county, at the date aforesaid, that the said negroes and other personal property continued in their .possession after'the deed of the 9th January* 1809, had been made, in like manner- as such possession had been held before said deed was made, and so continued until they removed to Washington City, in the year 1814 or 1815, when they brought-said negroes and other property, from Fairfax county with them to the city of Washington. That from the period of said removal to Washington, said personal property, as distinguished from the negroes* was assessed bv the officers of the corporation as the property of the said Richard B. Lee.

■ That four of the said negroes were, for the first time, in the year 1818, assessed to said Richard B. Lee. That prior to the 9th day of January, in the year 1809, the said Richard B. Lee was séized in fee of five' undivided eighth parts of 8000 acres of land in Spotsylvania county, in the state of Virginia, which was conveyed by said Richard B. Lee and said Elizabeth his wife, to Ludwell Lee in fee simple.

The execution,, due acknowledgment, and recording of the deed and bills, yf sale, exhibited with the defendant Elizabeth Lee’s answer, is admitted.

The execution and service of the notices exhibited with the answer of the defendant, Edmund J. Lee, is admitted.

It is admitted that the deed of the 9th January, 1809, was delivered to the trustees therein named, and that they agreed to act, but never took possession of the property therein mentioned, or of any part of it.

It is also agreed that the deeds referred to. in E J. Lee’s, Elizabeth Lee’s, and Richard Smith’s answers, severally, were duly executed, acknowledged, and recorded, and are to be received and treated as parts,.of the record in this case. '

On these, pleadings, exhibits, and admissions, various positions are assumed as grounds of relief.

The deed of January 9, 1809, recites that Mrs. Lee had executed a- deed to Ludwell Lee, relinquishing her right of dower, to the 5000 acres of land' in Spotsylvania; whereas, the deed to Ludwell Lee, relinquishing the dower interest, bears date subsequently, in Julyr_1809,

It is insisted for complainants, that the recital was false, and that this part of the consideration had must be rejected. We do not think so. The "transaction is of nearly thirty years’ standing, and not so open to explanation as a more recent one; it may be, that, a deed had been executed by Mrs. Lee, as recited, to Ludwell Lee, and that it was afterwards superseded by another: be this as it may* Richard Bland Lee was estopped by the recital in his own deed; and Mrs. Leé’s trustees, bound to performance on her part, supposing thé- recital to have been untrue. The substance of the contract was, that she should relinquish her dower interest to Ludwell Lee; and she did relinquish it, obviously in compliance with the agreement;. and that it was done in July, instead of the preceding January, is an immaterial circumstancé. The husband’s alienee acquired the disencumbered estate in consideration of the deed sought to be impeached; and in a Court of Equity, cannot deprive the wife of the slaves, without doing equity to jher, by restoring the lands now beyond our reach; provided the transaction was bona fide.

The other part of the consideration was the deed ■ of trust (of January 9th, 1809) by which the Fairfax estates of Sully and Laiigley were pledged for the payment of the debt due to Judge Washington. These estates .were the separate and sole property of Mrs. Lee; and not' being subject to execution by the laws of Virginia, the creditor had hot the slightest claim upon them, and it would have been most unwise for Mrs. Lee to have onerated them without ample indemnity.

Judging, of the probabilities in 1809, from future results, between that tune and the death of Richard Bland Lee, in 1827, and we are inclined to 'conclude, that Mrs. Lee, with the ardour common to her sex,, mistook her true interest in making the exchange of her lands for the slaves and household goods: that she has been greatly the sufferer, is free from (loubt. The Virginia estates have passed into other hands, to satisfy her husband’s creditors: most of the slaves have been sold to supply his improvidence and necessities: and. the little that is left of the property secured to Mrs. Lee, (down to the humblest utensil,) is now sought to be appropriated to the satisfaction of the judgment on which the bill is founded.

That the.deed of trust to Henry S. Turner, and others, to secure Judge Washington’s debt, was executed in good. faith, is not controverted; the objection is, that the debt was paid by means independent of the lands mortgaged; and the mortgage discharged. The consideration, therefore, given by Mrs. Lee for the slaves and other property secured to her separate, use, is fully proved; and was ample when the contract was made; and this is all that rested upon the respondents to establish, to resist the claim of the complainants on the first aspect of the bill; that which alleges the deed to have been fraudulent in its inception.

But an after circumstance is invoked as furnishing evidence favourable to the complainants.. In the interrogating part of the bill, the respondents are required to ¿nswer, whether the debt mentioned in the deed of 1809, as due to Judge Washington, had ever been paid; by whom, and from- what funds ? Edmund J. Lee¿ responds, that he had no distinct recollection on the subject: Mrs. Lee admits that no sale of the Fairfax lands was made under the deed to Henry S.- Turner, and others, but that the eight slaves, who in such eyent were to be returned to her husband, nad been disposed of by him, &c. If'Mrs. Lee meant to say, that the trustees had not sold by virtue of the deed of trust for Judge Washington’s benefit, then she answered truly; if,however, she is to be understood as answering, that the estates pledged were not applied, in part, to the extinguishment of the debt, then' she was mistaken. Sully, the homestead, was sold to’Francis Lightfoo.t Lee., in February 1811,for eighteen thousand dollars; embracing the five.hundred acres which was Mrs. Lee’s individual property, and including two hundred and seventeen acres in addition; out of which sum Judge Washington was paid seven thousand four hundred and fifty dollars. The estate was not conveyed by the trustees, but by Richard Bland Lee, the respondent Elizabeth, and Bushrod Washington, with covenants of title and warranty. The conveyance upon its face recites in the fullest manner, that seven thousand four hundred and fifty dollars of the purchase money had been paid by Francis Lightfoot Lee, to Judge Washington, in discharge of the balance of debt due to him. There can be little doubt, Mrs. Lee, in her answer was mistaken, in admitting to her prejudice that the Fairfax lands had not been appropriated to the payment of Judge Washington’s debt. Her principal object seems to have been to disavow all claim of title to the eight slaves.

Suppose, however, that Judge Washington’s debt had been paid by other means, and the Fai fax lands disencumbered of it; could the fact influence this cause. That it could not is manifest. The complainants, by their bill, do not seek to come in' under, the deed to Turner, and others; nor under that to Edmund J. Lee, and others: if they had, and if the fact had been established, that Mrs. Lee, by the payment of the debts from independent means, retained her-lands, and the slaves also, then a Court of Equity would treat her as a trustee for Richard Bland Lee, and let in the complainants as his assignees, to subject the slaves, &c. to the payment of the bank debt. But the bill charges that the deed to Edmund J. Lee, -and otherfe, was fraudulent, and void in'its-inception ;• presenting no case, founded on the subsequent transaction alluded to: and the Court cannot notice it other than as evidence to fix the fraud on the respondents in executing the deed sought to be set aside; which if valid then, must be deefned so now. The capacity of the "husband to contract through the intervention of trustees, with the wife, and to make a valid conveyance, founded on a bona fide consideration paid out of the wife’s separate estate, has not been questioned; nor is the doctrine, open to controversy.

That a liberal construction should be given to the clause in the Virginia statute, for the suppression of fraud; we admit; this is the well established rule in construing the statutes of Elizabeth; which the first section of the Virginia statute substantially adopts. (Heydon’s case, 3 Rep. 1 Black. Com. 88.) Fitzhugh vs. Anderson, 2 Hen. and Munford, 304.

:©n the second ground on which relief is sought, it is insisted, the complainants are entitled' to have satisfaction out of the property claimed by Mrs. Lee.

“I. Because the. continued possession, use, and enjoyment by said Richard Bland Leé, of the said property, purported to be conveyed by the deed of 9th January, 1809, was evidence of a. continued ownership, and avoids said deed as against subsequent bona fide purchasers and creditors,' without notice.

II. That ¿aid deed, so. executed, in Virginia) will not validate the possession, use, and enjoyment of said property m the city of Washington.”

The investigation of this assumed ground of relief, involves considerations affecting the nuptial relation.

' We are asked to deal with the conduct of a wife, living in harmony with her husband, as if she was a third person; and. to decree against her because she-did not expose her husband to the community in which they lived, and.especially to the complainants, when within the wife’s knowledge he was holding out her property as his own; and using.of it as his own, and obtaining credit upon the'-faith that he was the true and absolute owner.

That Richard Bland Lee did deal With and use the property in controversy, as if it had been his own, whilst he resided in this city;. and that the community did believe him> the true owner, and give, him credit on the faith of the property, is no doubt true; and it is very probable that Mrs.-Lee knew, the fact, but continued passive and silent on the subject.- She denies, however, that she had any knowledge of the execution of the deed of trust to Richard Smith, .until long after it had been made; and the answer, being responsive to the allegations in the bill, is [conclusive of the fact denied; there being no proof to the contrary:

Was it a duty incumbent on Mrs. Lee tp advertise the community in which she lived, that her husband had no title to the property on the faith of which .he was obtaining, credit;' but that it was hers ? This would have been charging' the husband with fraudulent conduct; for it cannot be denied, that if A sells and conveys his slaves or lands, and then produces to another his previous paper title, and obtains credit upon the goods or lands by pledging them for. money loaned, he is guilty of a fraud ; and if the true owner stands by and does not make his title known, he will be bound to make good' the contract; on the principle that he who holds his peace when he ought to have spoken, shall not be heard now that he should be silent. He is deemed in equity a party to the fraud.. flow far the principle applies in a case of the wife of a fraudulent vendor standing by, we are not called on to decide; and wish to be understood as not deciding. - Mrs. Lee’s is not that.caso; to say the most, she was only passive and silent, in regard to her rights generally ; although she may have had knowledge that Mr. Lee was obtaining credit on the faith of her property; and the question is, was it her ■ duty to have acted otherwise ? All we need say- is, that a Court of Chancery cannot hold Mrs. Lee responsible, because of her silence

Then as to the question of possession.continuing with the-grantor, Leave the relation of man and wife between Richard Bland Lee) •and Elizabeth Lee, out of view, and it would be impossible that any-one could' have been misled .by Mr's, Lee having the possession:.; she having the sole and exclusive beneficial interest and right of possession. The. difficulty arises from a circumstance, the existence of which the statutes of Virginia contemplated and provided for. By the act of 1785, it is declared, that where any-reservation or limitation shall be made.of a use, or property, by way ef condition, reversion, remainder, or otherwise, in goods and chattels, the pOs session whereof shall remain in another, the same shall be, taken, as to creditors and purchasers of the persons remaining in possession, tó be fraudulent, within the first section of the act; -and that the absolute property is with the possession; unless such reservation or limitation of a use, or property, is declared by will or by deed, proved by two 'witnesses in the general Court, or the Court of the county wherein one of the parties lives, within eight months after the execution thereof.

- The statute of Virginia has been adopted in Tennessee; where it has been holden, that a deed like the. present, founded on a good ' consideration, and separating the title from the possession, was" within the statute, and must be recorded: but when recorded, creditors and purchasers of him who retains the possession must take notice of it; and that the recording exempts the property from liability to execution. Crenshaw, vs. Anthony, Martin and Yerger’s R. 110. I The great object of the-act was to secure the settlement of slaves by the intervention of executors; and trustees, so as to retain them in the family;- and this could be done by a bona fide gift of a husband,,(not materially indebted at the time,) to a wife or. children; if the deed was duly recorded, to the exclusion not only of subsequent creditors, but subsequent purchasers also) contrary to the 37th of Elizabeth; whereby .(in the language of the Supreme Court of Tennessee, in Marshall vs. Booker, 1 Yerger’s R. 15) “an extravagant, spendthrift husband, may provide for his wife and children, before they are overtaken by ruin.” But we can say with Lord Hardwicke, in . Russell and Hay ward against Hammond, (1 Atk.) “ that we have hardly known one case, where a person conveying was deeply indebted at the time of such gift, that it has not been 'deemed fraudulent.” In' Virginia, therefore, the possession of Mrs. Lee was in accordance firith the established practice, and is in no degree subject to imputation.

It is insisted, however, that iWhen Richard Bland Lee removed into Washington City, the: statute of Maryland operated on the Virginia title of Mrs. Lee, and defeated it for the benefit of purchasers from her husband.

The statute declares, that no- goods, or - chattels, whereof the vendor^ shall, remain in possession, shall pass, alter, or change, or any property.thereof be transferred to any purchaser, &c., unless' thÁ same be by writing, and acknowledged, before one provincial justice, or one justice of the county where such seller shall reside, and be within .twenty days recorded in the records of the saíne county. 1729. ch. 8. sec. 5.

The statute has no reference to a case-where the title has been .vested by the laws of another state; but operates only on sales, mortgages, and gifts; made in Maryland. The writing is to be recorded in the same county where the seller shall reside, when i$ is executed. The seller, Richard Blan,d Lee, residing in Virginia, it w,as impossible for Mrs. Lee to comply with the act. That the Virginia deed secured to Mrs. Lee the same rights here that it did in Virginia, we apprehend to be, to some extent, an adjudged, question. It has frequently arisen in the state Courts. The case of Smith vs. Burch, 3' Harris and Johnson, was this: In 1804, Brodhag -.owed Jones, and gave a deed of trust on slaves to secure the debt', ' (three thousahd dollars,) executed to Smith, as trustee. The parnés resided in Georgetown, where the act of. Maryland of 1729, continued 'in force after this District was separated from Maryland. The deed of trust was duly proved, and. recorded in the District of Columbia; Brodhag retaining the possession of the slaves. In Í805, Brodhag .removed to Alleghany county, Maryland, and continued in possession of the slaves, as .-apparent owner, until August 1809, when the sheriff of Alleghany seized on them by virtue of -an execution against Brodhag, in favour of Deakin’s executors; and Smith, the trhstee;-sued Bruce, the sheriff, in trespass. In that case (as in this) Brodhag had given in the slaves to the assessor of taxes; and had:sold’p.art of them between 1804 and 1809.

The Court of Appeals of Maryland, in substance, held, that file act of 1729 did riot affect the case; and the only proof required to sustain the plaintiff’s title,, was the bill of sale, (as it is denominated;) and that it-lay on the defendant to prove fraud in fact in order to avoid it.

In 1804 the jurisdictions exercised in the District of Columbia, and the state of Maryland, were as distinct as those of Virginia and the' District,; so that the case of Burch vs. Smith was similarin respect to conflict of jurisdiction with the one before the Court.

The same point came up in Tennessee, and met the decision of thé Supreme Court of that state.

The following are the material facts-in.the Tennessee case:

In 1812, in Lunenberg county, Virginia, Daniel Crenshaw sold and conveyed certain slaves to Richard Herring, who soon after contracted for the purchase of a tract of land from Daniel Crenshaw, lying in the same county; but Nancy Crenshaw, the wife of Daniel, refused to relinquish her right o£ dower: and to induce her to do so, Herring agreed with her and her son, Cornelius Crenshaw, to convey to the latter, in trust for his mother, and for her sepárate use, two of the slaves previously purchased from Daniel Crenshaw. The deed was duly executed arid recorded in Lunenburg.

In 1814 Daniel Crenshaw and his wife removed to Tennessee, carrying the slaves with them; Cornelius the trustee continuing-to reside in Virginia.,

Iri Tennessee, to all appearance, Daniel Crenshaw was the true owner of the slaves, and acquired credit on the faith of the property. He Was improvident, for which reason, manifestly, the wife caused the slaves to be secured to herself: and it may be remarked that similar motives have led to many, not to say most of this description of conveyances in the states where the provisions of the act of 1785 of Virginia, prevail.

In 1821, Stacy recovered a judgment against Daniel Crenshaw in the .county of his residence in Terinessee, by virtrie of an execution, founded on which Arithony, the sheriff, seized upon the slaves; and Cornelius,Crenshaw, as his mother’s trustee, sued the sheriff in detinue. The Circuit Court held the deed of trust void by force,of the statute, of Tennessee, (which is very nearly a transcript of that of Virginia,) because the deed had ,not been recorded iri Tennessee; a verdict was rendered for the defendant; and the plaintiff prosecuted his writ of error to the Supreme Court, where the judgment was reversed.

The Court held, that the deed made in Virginia, separating the title and possession, was of a character to be operated upon by the act of 1785 of Virginia; and had the deed not been recorded there, as. to creditors and purchasers, the title would have been deemed to be with the possession: but having been recorded there,, a title fair and unimpeachable, vested in the trustee, and cestui que trust, Nancy; that being valid‘in Virginia, the statute of Tennessee could not affect it. Furthermore:

The Court .refused to hold the wife responsible, because she had continued passive and silent in regard to her separate right to the slaves; by which individuals might have been, and in all probability were, induced to believe her husband the true owner, and to give him credit on the faith of the property. In that case, as in this, the wife had done no affirmative act, designedly to draw in the creditor to trust her husband;' and the Court believed, by remaining silent she had violated no duty; nor been guilty of any deceit on which a forfeiture of her right could be pronounced.

The deed in controversy is also embraced by the 4th section of the statute of Virginia, which, amongst other things, provides for the recording of all deeds of trust and mortgages, upon acknowledgment or proof according to the directions of the act; it having been holden by the Courts of Virginia, and this Court, (3 Hen. and Mun. 232; 3 Cranch. 150,) that deeds conveying chattels are included within the section referred tó. And the deed vesting the property in Mrs. Lee’s trustees, Having been duly recorded in the manner required by the statute, it was effectual according to the laws of Virginia, to • protect the title against subsequent creditors of, or purchasers from, Richard Bland Lee.

Upon the whole, we are of opinion the decree below dismissing the bill, should be affirmed.

Mr. Justice Baldwin

dissented.

Mr. Justice Thompson

did not sit in this cause.

This causé came on to be heard on the transcript of the record from the Circuit Court of the United States, for the District of Columbia, Holden in and for the county of Washington, and was argued by counsel. In consideration whereof, it is decreed and ordered by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.


author: Mr. Justice M'Lean

text:
    The Bank of the United States, Appellants, vs. George W. Peter and others, Appellees.
    ít is a well settled principle in equity, that a judgment creditor, where he is compelled to payoff prior encumbrances on land to obtain the benefit of his judgment, may, by assignment, secure to himself the rights of the .encumbrances; and the same, rule applies, where a junior mortgagee is obliged to satisfy prior mortgages. He stands as the assignee of such mortgages, and may claim all the benefits under the lien that could have been Claimed by his assignor. But the effects of this principle may be controlled by acts of the parties.'
    ON appeal from the Circuit Court of the United States for the county of Washington in the District of Columbia.
    This case was argued by Mr. Sergeant and Coxe, for the appellants, and by Mr. Key, for the appellees.
   Mr. Justice M'Lean

delivered, the opinion of the Court.—

This is an appeal from the decree of the Circuit Court,' for the District of Columbia.

The facts out of which the controversy arises are substantially as follows:

At April term, 1822, the Union Bank, of Georgetown, recovered .two judgments against George Peter, amounting, exclusive of costs,to the sum of seven thousand nine hundred and thirty-four dollars.

On the 9th April, 1824, George Peter executed a deed of trust to Thomas Peter and Robert P. Dunlop, which was supposed, at .the time, to include all the real property owned by George Peter within the District of Columbia. The conveyance was made in . trust, to indemnify Thomas Peter, who had become the endorser of George to a large amount. A great number of debt's were enumerated in the deed, and among others, one to the Bank of the United States of twelve thousand dollars; which were designed to be paid in whole or in part, by the sale of the property included in the deed of trust.

The judgments, of the Union Bank, above stated, were not embraced by the deed of trust.

Before any act was done under this deed, Dunlop relinquished the trust to Thomas Peter, his co-trustee.

On the 19th May, 1824, the Bank of the United States recovered a judgment of five thousand dollars against George Peter, as endorser or drawer with John Petér.

'In September,’ 1829, the.property conveyed in trust was'sold, by Richard Smith, cashier of the branch Bank of the United States; who had been appointed by Thomas. Peter, with the consent of the creditors, to act as agent in the premises. The nett proceeds of the sale, deducting certain charges, were $-37,285 90, an amount insufficient to discharge all the debts.-

The judgments of the Union Bank, though not included in the deed of trust, constituted a lien pn all the real property of George Peter in the district; and in order to give unencumbered titles to purchasers at the above sale, Richard Smith, with the consent of the creditors and Thomas Peter, paid those judgments out of the proceeds of the sale; but satisfaction was not entered upon the record. . The payment was stated to be for the use of the Bank of the United States; arid writ's .of scire facias have been brought to revive the judgments.

It having been discovered that the trust deed of .the 9th April, 1824, did not include all the property of George Peter within the district; on the 1st October, 1829, he executed another deed of trust to' Thomas Peter; for ten lots in the city of Washington, which were required to be sold, and the proceeds applied in’paying certain judgments against George Peter as drawer, and Thomas Peter as endorser. One Pf the judgments specified was obtained by the Bank of the United States. And on 7th May, 1830, another deed of trust was executed by George Peter to Thomas Peter, including the above ten lots and one other lot in trie city of Washington. This deed was designed to remedy some- defect or informality in the first deed for the ten lots, and to convey one other lot; the same judgments are recited as- in the first deed, and the same trust declared.

These eleven-lots were sold by Richard' Smith, in October, 1829, and May, 1830, for #5280 70.

In 1834, Thomas Peter died, and- this proceeding is carried on by his executors; - who, with George Peter, filéd their bill stating the above facts, and. praying that Richard Smith • and the Bank of the United States be decreed to pay over the proceeds of the sale of the eleven lots, in their possession, to the creditors named in the trust deed of 9th April, 1824. This application s made on the ground that as the judgments of the Union Bank were a lien upon the-eleven lots, and were paid out of the trust funds, the trustee, in behalf of the creditors and himself, has a right, in equity, to the proceeds of the sale of these lots, under the lien of the judgments.

- This claim is resisted by the Bank of the United States, on the ground that the judgment-obtained by the bank for #5000, in May, 1824, long before the execution of the deed of trust for these lots, constituted a lien upon them, after, the discharge of the judgments of the Union Bank. There were other judgments against George Peter, rendered in May, 1824, which were not provided for in the trust deed of April, 1824, and which claim a proportionate interest with the Bank of the United States; in the lien on the eleven lots. This claim is not resisted by the Bank of the United States, which claims out of the proceeds of the sale of the eleven lots, as its dividend, the sum of #2428 62.

And the question in this controversy is, whether the proceeds of the sale of the eleven lots shall be paid to the creditors named in the deed of trust of the 9th April, 1824; to the Bank of the United States, on their judgment, and on the other judgments of IViay, 1824, under which the lien is set up; or to the creditors named in the trust deeds of these lots of 1829 and 1830.

Although the bill in this case, in its specific prayer, does not ex tend beyond an application of this fund under the. first deed of trust; yet there are" certain- agreements and admissions pn the record, which authorize the Court to make, a final decision in the .case.

It seems that a satisfaction has not been entered on the judgments of ithe Union Bank, although they have been paid, in' full. The entry that this payment was made for the use of , the "Bank of the United States, can have no effect favourable to the Bank, on the present question; , Under the trust deed, the Bank of the United States had büt a common interest with the other creditors named, in discharging or controlling the lien of these judgments. And. it is pn the discharge of this encumbrance by the trustee, out of the trust fund, that he sets up the right in equity, in behalf of himself and the creditors named in the deed, to be subrogated to all the rights of the-Union Bank as plaintiffs in the judgments.

. • It is a well settled principle in equity, where a judgment-creditor, who is compelled to pay off prior encumbrances on land to obtain the benefit of his judgment, may, by assignment, secure to himself the-rights of the encumbrances. And the same rule applies where a junior' mortgagee, to save his lien, is obliged to satisfy prior mortgages on the same estate.. He stands as the assignee of such mortgages, and may claim all the benefits under the. lien that could have been claimed by lffs assignor.

But the effect of this principle is controlled in the- present case, by the subsequent acts of the parties.

If the lien of the judgments of the Union Bank had been unconditionally extinguished, the lien of the judgment of the Bank of the United States, and the other judgments of the same date, Would have attached to the eleven lots; but this effect has also been controlled by the acts of the parties.

The judgments of the Union Bank were not paid until January, 1830. So that prior to this time, on no principle could the lien of these judgments be held to be extinguished. And before this timé the trust deed was executed.

This deed was executed on the 1st October, 182.9, and it contains the following recital: “Whereas, the said George Peter is indebted to the president, directors, and company of the Bank of the United States; to the president and directors of the Unión Bank of Georgetown; and to the president and directors of the Farmers’ and Mechanics’ Bank of Georgetown, in divers large sums of money, for which the said George Peter gave his several promissory notes, payable to the said Thomas Peter, and by him endorsed to the said banks, upon which notes, judgments have been obtained,” &c. And the lots are conveyed to Thomas Peter in trust for the payment of the. above judgments; and were sold in October, 1829, and May, .1830, by Richard Smith, agent for the trustee and the creditors named in the deed. He was cashier of the branch Bank of the United States, at Washington, and represented the interests of the bank in the proceeding.

From these facts it appears, that before the judgments of the Union Bank were satisfied, and consequently before there 'was any pretence, that the lien of these judgments on these lots was extinguished, with the consent and approbation of all the parties interested, the deed of the 1st October,'1829, was executed. That this arrangement was made with the approbation of the Bank of the United States, is clear from the face of the deed, and the agency Of Smith in selling the property.

Except by virtue of the trust deed, Smith had no right to sell the property; and acting as he did for the creditors named in the deed, among which the Bank of the United States was prominent, ft is too late for the bank, after the.sale, to disavow his agency.

The contingent lien of the bank on the eleven lots, by virtue of its judgment, in May 1824, does not seem to have been considered by the-bank or the trustee, when the trust deed was executed as of any value. It depended' entirely on the' unconditional extinguishment of the lien under the judgments of the Union Bank.

It is contended, that as the judgments of the Union Bank were a lien Upon all the real estate of George Peter in the district, that the Court would have directed executions op' these judgments to be levied on the property of Peter, other than the eleven lots; so as to have left them to be sold under the judgment of the Bank of the United States. And that the same rule should now prevail.

The answer to this is, that before the judgment of the Rank of the United States was rendered, the first deed of trust was executed, which embraced all the property of Peter in the district, except the eleven lots.- That this deed was valid, and that the rule would have been applied as between the lien of the Union Bank and the grantee of the first deed of trust, but riot as to subsequent liens. •

Here are tíre judgment lien and the trust deed, covering thé same property, except the eleven lots, which are covered by the judgments, but not by the deed. The judgment of the Bank of the United States created no lien. Under such circumstances,' the Court, could not have postponed .either the lien of the Union Bank or the. rights under the deed of trust, in behalf of the judgment of the Bank of the United States; but would have directed that the eleven lots should be sold, under the judgments of the Union Bank.

■. This would have been the correct rule under these conflicting rights; but the case turns on the deeds of trust of 1829 and 1830, which conveyed the title, subject only to the prior lien of the judgments of the Union Bank. And this was doné with the consent of the agent of the Bank of the United States.' We think this consent, as shown in the deeds, and the sale of the eleven lots, connected with the facts of the case, goes to establish the trust deeds $ and that the proceeds of the sale of these lots must be paid over on the judgments specified in the deeds according to their respective priorities.

As the decree of the Circuit Court is not in accordance with this view of the case, it must be reversed; and the case senf. down for further proceedings.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington, arid was. argued by counsel. On-consideration whereof, it is adjudged and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, reversed; and this cause be remanded to the said Circuit Court for further proceedings to be had therein in conformity to the opinion of this Court.


author: Mr. Justice Catron

text:
    Charles King, Appellant, vs. Josias Thompson and others, heirs at law of George King, deceased, Appellees.
    A bill was filed claiming a specific performance of an alleged contract to convey a house and lot in Georgetown, for the benefit of the wife of the complainant, the complainant having expended a large sum of money in improving the property, in the expectation that it Would be conveyed as required by the bill.. The Court not considering that sufficient evidence of an agreement to convey the property was givenj ordered that the property should be sold, and out of the proceeds'that advances made by the complainant should be repaid. The property sold for a sum far less than the amount expended. Held that the balance unpaid after the sale, was not a debt due by the estate of the father of the wife, and could not be claimed of his representatives.
    ON appeal for the Circuit Court of the United States of the District of Columbia, for the county of Washington. -
    In December, 1822, .the appellant filed iii the Circuit Court; a creditor’s bill in the usual form, against the appellees, praying for the sale of the real estate of George King, deceased, in aid of his personal esfate. It appeared that George King had died intestate, and insolvent, in 1820 ; and with the assent of the defendants a decree of sale of his real estáte was made in January, 1823. - Under this decree sales were made, repotted, and confirmed; and in March, 1831., a final sale of all the real estate was made except a house and lot on Civil alley in Georgetown, which sale, on the claim of Josias Thompson and wife, was set aside in April, 183Í. Ás the sales were made, aúdits of the accounts of the estate'and-thé claims were made from March, 1,827, to March, 1836. On the- last report of -the auditor, coming before the Court, Alexander Caldwell, administrator of Josias Thompson, who had become deceased, exhibited to the Circuit Court a claim against George King tor a dividend out of. the assets of his estate; and on his motion the auditor’s report was recommitted.
    The record made the case of George King’s heirs and others, appellants, vs. Josias Thompson and wife, 9 Peters, 204, apart of this case. Josias Thompson and wife, in the case referred to, had claimed of the heirs of George King, that the house and lot on Civil, alley in Georgetown should be conveyed to them, alleging that an agreement to that effect had been made with them in his lifetime by George King, Josias Thompson having married the daughter of George King; and in consideration of this agreement, Josias Thompson had laid out four thousand dollars in buildings and improvements on the lot. The Courf not being satisfied upon the evidence that a decree for the conveyance of the property should be made, ordered that a sale of the property should be made, and that the proceeds should be first-applied to repay to Josias Thompson the sum of four thousand dollars laid out on the same, and that the. balance should be paid over fpr the benefit of .the creditors of George King.
    Under .this decreo the property was sold, and it produced the sum of eight hundred and twenty-seven dollars, leaving of the sum expended by Josias Thompson, three thousand one hundred and seventy-three dollars, unpaid. ■
    In April, 1837, the administrator of Josias Thompson claimed from the estate of George King a dividend, on the sum of four thousand dollars, the amount laid out on the house and lot, being two thousand six hundred and4wenty-six dollars, less the sum of eight hundred and twenty-seven dollars, the proceeds of the house and lot.
    This claim was made on the allegation that Josias Thompson was a creditor of George King to the amount of four thousand dollars, by the expenditure of that sum- on the house and lot; and that he was entitled to come in and have, on that amount, an equal dividend with the other creditors of the estate of George King, deducting the proceeds of the property in Georgetown.
    The Circuit Court made a decree allowing to the administrator of Josias Thompson the amount claimed by him; and the defendants prosecuted this appeal. ■
    The case was argued by Mr. Clement Cox for the appellant, and by Coxe for the appellees.
    Mr. Cox for the appellant insisted:
    1. That the decree in-.9 Peter’s Rep. 2Q4, does not operate as an estoppal of the exceptions, the issues in this case being different. — 1-Starlde on.Evidence, 202; Collinson vs. Owens, 6 Gill; and Johns. 4. 11.
    2. That otherwise the exceptions iii- the Circuit Court were well taken, and ought to have been allowed. He cites, in support of the 1st exception taken below, 9 Peter’s Rep. 204; Briscoe vs. King, Cro. Jas. 281: and in support of 3d exception, Strike vs. M'Donald and Son, 2 Har. and Gill, 181; Harwood vs. Rawling’s Heirs, 4 Har. and John. 126; Duvall vs. Green, Ib. 270.
    As to the first point. The parties in this case are different from those before this Court in the case in 9 Peters. These are creditors of George King; and as that was a proceeding for a specific performance of an alleged contract with George King, to Which these creditors could not be parties, the decree of the -Court could not be aii estoppal.
    In that case no claim of indebtedness was raised or presented, against the estate of George King. It was commenced and prosecuted on the allegation that the property on which the money had been expended, had been promised to the wife of Josias Thompson, the daughter of George King; and its sole purpose was to obtain a conveyance of the property.
    There was no contract made with George King, upon which the money was expended by Josias Thompson, for the benefit of George .King; and this Court will not see in the case any thing to found a contract of this nature. The whole object of the proceeding in the case in 9 Peters has been obtained. The complainant in.that case has drained, the whole of the proceeds of the sale of the house and lot.
    The claim of Josias Thompson was' complete, such as it was at the death of George King in 1820; and until 1837 no assertion is made by Josias Thompson or by any one for him, that the estate of George King was indebted to him. In his lifetime, Josias Thompson made no claim; it was left to his' administrator to present and assert it. It is at an end, by force of the statute of limitations. _
    . A mortgage does not imply a personal obligation for the payment of any portion of the debt which the property mortgaged may not produce by a sale. The saving in a mortgage is for the benefit of the mortgagor, Briscoe vs. King, Cro. Jas. 281.
    Coxe for the appellees
    contended that the decree of the Circuit Court was right. It was founded on the report of/the auditor, who it is to be presumed had full evidence of the facts on which the report is'founded.
    The lien on the house and lot for advances made by Josias Thompson, was established by the decree of the Court in the case in-9 Peters. The balance, beyond what the house and lot would produce by a sale, was a debt due by the estate of George King. The claim of the administrator of Josias Thompson is in full accordance with the principles established by this Court, in its decision in 9 Peters.
   Mr. Justice Catron

delivered the opinion of the Court.

In 1812, Thompson married the daughter of King, who, being a man of considerable estate, offered to give Thompson a house and lot in Georgetown, then in a dilapidated state, if Thompson would repair the premises so as. to make them a comfortable residence; King saying, he intended the property for his daughter, the wife of Thompson.

Thompson accepted the offer, went into possession, and expended in repairs and improvements, four thousand dollars.

About 1816, Thompson .claimed to have the property conveyed to him by King, who refused; but offered to vest the title in trust for Thompson’s wife.. Thompson made several alterative propositions ; one amongst others, that the house and lot should be valued as of the date when it was put into his possession; and that he would pay the amount over to King, and take a title; which proposition the latter accepted: or, offered to convey a part of the lot, including the house, to Thompson, and another part to Thompson’s wife. Under these circumstances, Thompson continued to occupy the.premises for a time, and afterwards removed from, and rented them.; King setting up no claim to have the property returned to him. ,

In 1820, he died, and the title descended on his heirs. King, at his death, was largely indebted, say 36,000 dollars, and much over the means of payment; his creditors filed a. bill to have satisfaction of their demands, out of the real as well as personal estate: and the trustee appointed by the Circuit Court to sell the property, amongst other lands, sold that claimed by Thompson. The latter filed his hill to' avoid the sale, and for a specific performance against King’s heirs, the trustees of the creditors, &c.; the record in which cause, as reported in 9 Peters’ Reports, is, by the exceptions and an agreement, made a part of this proceeding.

The creditors denied the existence of the title set up by Thompáon; claiming the house and lot as subject to King’s debts, and went tp issue. The Court -below decreed specific performance, from which the defendants appealed to this Court, where the decree below was reversed. But Thompson having an alternative prayer in his bill, claiming priority of the general creditors of King, in the form of a lien on the property, to the value of the improvements he had put upon it; this Court-held, that although there was not sufficient- evidence to authorize a decree for title, still Thompson had, by the rules of a Court of Equity, a lien for the money expended on the improvements: and the cause was remanded with a mandate that the property should be. advertised and sold, and the proceeds of the sale be applied: first, to the. satisfaction of the money expended by Thompson in making the improvements; and the balance, if any, to be paid over for the benefit of the creditors of King.”

The property was accordingly sold, and brought little more than 800 dollars, leaving upwards of 3000 dollars unsatisfied.

The trustee of the creditors of King’s estate, from time to time, made various sales and reports; and at April term, 1837, reported that Alexander Caldwell, the administrator of Thompson, (then deceased,) had presented as a debt due from the estate, the balance not refunded to Thompson by the sale of the house and lot. The other creditors resisted,the claim, as forming no demand on the estate; and insisted Thompson’s remedy extended only to the property improved and fixed with the lien, by the decree of the Supreme Court. But the Circuit Court óvérruled the exception, and adjudged that Thompson’s administrator should come in for an-equal dividend with the general creditors.

From this order the creditors appealed. Thompson, by his bill to subject the house and .lot, claimed a priority of lien, and had it¡ allowed to him, in exclusion of,the general creditors; he proceeded against the thing, and’did not set up any personal demand extending beyond the lien, against the other estate of King: and we are clearly of opinion none exists. And therefore order, that so much of the proceeding in the Circuit Court, as allowed the administrator ,of Thompson to come in with -the general creditors of King, to receive a dividend founded on said claim, be reversed; and that the cause be remanded for further proceedings.

This cause ¡came on to be heard ón the transcript of the record from the Circuit. Court of the United States, for the District of Columbia, holden in and for the county of Washington, and was argued by .counsel. On consideration whereof, it is adjudged and decreed by this Court, that so much, of the decree of .the said Circuit Court in this cause, as allowed the administrator of Thompson to come in with the general creditors of King, to receive a dividend founded on his claim, be, and the-'same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said Circuit Court,• for further proceedings to be had, therein, in conformity to the opinion of this Court.


author: Mr. Justice Wayne

text:
    The United States, Appellant, vs. The heirs of F. M. Arredondo, and others, Appellees.
    A concession of thirty-eight thousatid acres of land was made in 1817, by the governor of East Florida, to F. M. Arredondo, in consideration of services to the crown of Spain. The petition to the governor, asking for the grant, described the situation of the land;' and asks, as the survey could not be made for want of surveyors, and the "surveyor appointed by the government having other occupations, could not attend, that the issuing of the title should be suspended until the.plot of the land could be obtained; but that in the mean time the decree of the governor on the petition should serve the petitioner as the title. To this application the assent of the governor was given, by a decree, ordering a concession in conformity with the petition. "No survey was made under the concession, while Florida remained under the dbminion of Spain, or at any time after the cession of the territory to the United States. The Court held, that want of a survey does not interfere with the title of a grantee. The land granted must be taken, as near as may be, to place described in the petition, and cannot be taken elsewhere; and if it cannot be found there, the grantee has no claim to an equivalent; and if it shall be found to- interfere with previous grants to third persons, the concession will, be lessened in quantity according to the extent of the rights of third persons; and an equivalent, for such diminution cannot be surveyed elsewhere.
    The acts of Congress for ascertaining claims and titles to lands in Florida, whilst they recognise patents, grants, concessions, or orders of survey, as evidence of title when lawfully made; do not permit, in case of a deficiency in the quantity from any cause whatever, the survey to be extended on other land.
    ON appeal irom the Superior Court of East Florida.
    This case was submitted to the Court by Mr. Grundy, the Attorney General of the United States.
   Mr. Justice Wayne

delivered the opinion of the Court.—

This is an appeal from the Superior Court of East Florida,.which confirmed the claim of the appellees to a cession or grant of land, made by the governor of Florida to Fernando de la Maza.Arredondo.

- The concession was made on the 24th March, 1817, for thirty-eight thousand acres of land, in absolute property, without' prejudice to a third party, situated on the -two banks of a stream which enters the Suwanee river, called Alligator creek, beginning at about seven miles west of an Indian town called Alligatortowir, situated north-westwardly about forty miles distant from Payrestown, and about eighty miles from Buena Vesta, which parts of the country aré known under the name of Alachua. In the .petition for this concession, the petitioner asks, in consideration that the situation and then state of the province did not permit the survey and demarcation of the tract to be made, -and also the survey could not be made for want of a surveyor-r-tbe surveyor appointed by the government having other occupations, which prevent - him from repairing to that part of the province — he-asks the governor to suspend the issuing of the title to the property until the .plot of the saidvtract could be obtained; but in the mean -time • that the grant which the governor might be pleased to.give him, by his decree, should serve him as the title thereto; to which the governor responds by declaring, that the titles corresponding to the concession,.will be issued to the petitioner as soon as he shall present the plot made by the surveyor; and in the mean time,-that his decree shall be an equivalent thereof in all its parts; of which a certificate shall be given to the petitioners; authenticated in due form, in order that- the petitioner may prove said grant, and enjoy the said lands, and dispose of them as he sees fit.” The authenticity of the petition and concession, is proved by such testimony as this Court has always deemed sufficient for such purpose. It appeárs also, by documents in the record, which are mentioned .in the appellee’s petition to the Court for the confirmation of this concession or grant, that after the concession was made, the grantee, fof>a full and valuable consideration, sold and conveyed, this tract of land, and the title in fee to the same was vested in Moses E.*-Levy, one of the appellees in .this cause; and that the said Levy did afterwards by indenture, grant, bargain, and sell, by way of exchange for other lands, the one undivided, moiety or half part of said land and its appurtenances, in fee simple, to Fernando and Joseph de la Maza-Arrendondo. It does not appear by the record that a survey was made of this concession, whilst Florida continued a province of Spain; or that it has been since surveyed. Nor does it appear by any evidence in the cause, that the locality of the concession has been definitely- ascertained.

We do not consider the want of a survey, as interfering with the right of the party to the land: granted; but it must be taken near as may be, as it is described in the petition — where it was asked for, and as .-it' was granted, aqd cannot be taken elsewhere. If. it cannot be found .there, the appellees have no claim to an equivalent. Of if, upon the survey, it shall be found to interfere with previous grants tp third partied, the concession will be. lessened in quantity according to the extent of the rights of third parties, and an equivalent for*such diminution cannot be surveyed elsewhere. Such are the terms of the concession, that the land is to be surveyed in the place where the petitioner designates, without prejudice to, a third p'arty.” It gives no right to an equivalent or another location, if it cannot be found'at or near the place designated. An equivalent is not secured by the concession, in terms; nor is it by the customs or us'ages of. Spain; nor by any law or ordinance of Spain. ’ And it is proper here to'remark, that the acts of Congress for ascertaining claims and titles to land in Florida, whilst they recognise patents, grants, concessions, or orders of survey, as evidence of title when lawfully made; do not permit, in case'of a deficiency in the quantity from any cause whatever, the survey to be extended on other lands. But this concession’ calls for a natural object, a creek, and is designated as beginning on the creek, about seven miles west of an Indian town called Alligatortowm A survey may l c , be made so as to give the appellees the benefit of the concession, according to the description in the petition, supposing that Alligator. creek exists, and that Alligatortown can be found: for, by running a line due west from the, centre of the. town until it strikes the creek, then extending that line west for a base line of the' survey, making the centre of the creek equidistant from its extremities, and then running down the cféek on both sides of it, towards the-Suwanee, without regard to the windings of the creek, being cut by the downward lines; the .concession may be described by-survey, so as to answer the description of being on the' two banks of the stream or creek, ■ Or, in the event of no such creek existing within or at the distance of seven miles from'Alligatortown, or at a reasonable distance over seven miles to the west of it; then, by beginning the survey seven miles west of the town, making aline due west the base of the survey, and running from its extremities towards the Suwanee, or in any other direction; if it shall be found ■by running them, towards the Suwanee, the rights -of third parties wouldbe interfered with, then the,survey of thirty-eight thousandacres could be made, so as to give the appellees the benefit of the concession, in accordance with those liberal and equitable principles uniformly applied by this Court in the construction of claims to land in Florida, granted before the treaty with Spain transferring Florida to the United States. ■ If, however, neither Alligator creek can be found, nor any creek to the west of Alligatortown, entering into the Suwanee, within or at seven miles distance from the town, or a. reasonable distance therefrom, and if Alligatortown- cannot be found; then if is the opinion of this Court, that the remaining description in the petition, of the locality-of the concession, is too indefinite to enable a survey to be made, and that the appellees can take nothing under the concession- We have been the more particular upon this point, that the mandate which this Court shall, give to have a survey made, may not be misunderstood by the officers whose duty it will be to have the survey executed. The decree of the Superior Court of East Florida is affirmed.

■ This cause came on to be heard on the transcript of the record from the Superior Court for the district of East Florida, and was argued by counsel. On consideration, whereof; it is adjudged and decreed by this Court, that" the decree of the said Superior Court, in this cause, so far as it declares the claim of the petitioners to be valid,be, and the same is hereby, affirmed in all respects; and that a survey be made of the lands contained in the said concession, according to the terms thereof, for the number of acres, and at the places therein designated; provided it does not interfere with the rights. of third parties. And it is further ordered by the Court, that a mandate be issued to the surveyor of public lands, directing, him to do and cause to be done, alLfhe acts and things enjoined on him by law, and as required by the opinion and decree of this Court in this cas'e; and that this case be remanded to the said Superior Court for further proceedings to be had therein in conformity to this decree, and the opinion of this Court, which must be annexed to the mandate.