author: Mr.-Justice BALDWIN

text:
    The President, Directors, and Company of the Bank of the United States, and the United States, v. James B. Beverly and Jane his wife, William Ramsay and Elizabeth his wife, Hamilton and James Peter, heirs of David Peter, deceased, and George Peter, surviving executor of David Peter, deceased.
    The case in 10 Peters, 562, reviewed arid confirmed.
    A fact tried and decided by a court of competent jurisdiction canriot.be, contested again between the same parties; arid'there is no difference in this respect between a verdict and judgment-at common law and a decree of a court of equity.
    But an answer in Chancery setting up, as a defence, the dismission of a foriner-. bill filed by the. same complainants,-is not sufficient unless the record be exhibited.
    A disposition by a testator of his personal property to purposes other than the payment of his debts, with the assent of creditors, is in itself a charge on the real estate, subjecting it to the payment of the debts of the estate, although no -'such charge is created'by the words of the will.

      Lapse of time is no defence where there is an unexecuted trust to pay debts, which this court, in 1836, decided to be unpaid in point of fact.
    This case grew out of that of Peter v. Beverly, which came before,this court in 1836, on an appeal from the Circuit Court of the District of Columbia, in decreeing an injunction on the proceedings of the then complainants, to -sell a part of the real estate of David Peter, deceased. A full report of that case will be found in 10 Peters, 532, et seq., wherein all the facts and circumstances attending it are fully set forth in the opinion of the court, and do not require repetition now.- The result of that opinion was a reversal of the decree below; a dissolution of the injunction; an order that the bill of the complainants be dismissed, and that the cause be remanded to the Circuit Court, with directions to carry the decree of this court into effect. This was done, and the decree consummated by a sale of the property in controversy, which consisted of those parts of the real estate of David Peter which he had by his will charged with the payment of his debts; but they being insufficient .for the purpose, the present bill was filed in order to subject the residue of the estate, not so charged directly by the will, to 'the payment of the residue of the debts of the estate. ,
    In March, 1836, the heirs or devisees of David Peter executed a deed to John Ma rbnry, áuthorizing him to sell certain property, which he accordingly did; the-amount of salés being $38,722 32 cents. •
    At a subsequent period of 1836, the Bank of the United States, in behalf of the said bank, and of the United States, and of such of the creditors of the estate of David Peter as should come into court and contribute to the expenses of the suit," filed a bill against •Geprge Peter, surviving executor, against the heirs or devisees of David Peter, and against John Marbury, trustee as aforesaid, stating that the personal estate of the said testator had been applied to the use and benefit of the heirs by the executors, in the fulfilment of the trust created by the will, and claiming that the real estate of the said testator, or the proceeds thereof, or as much as might be necessary, should be applied to pay whatever balance might remain due to the creditors, after selling and applying to that purpose the proceeds, of the city lots and the land upon which Dulin lived. It prayed, also, an injunction against Mar-bury, and for other and general relief.

      In April, 1836, the following agreement was made between the counsel of the respective parties, and filed in the cause.

      Agreement of Counsel.

    It is agreed by the parties in this cause, by their counsel, that the Bank of the United States and George Peter, who claim to be creditors of the estate of the late David Peter, for a balance of debt which may remain to them after the application of the trust estate provided in the will of the late David Peter for the payment of his debts, shall, if such balance be established against the defendants, the heirs and devisees of David Peter, as to so much of David Peter’s real estate as is conveyed to John Marbury, by deed filed as an exhibit with complainant’s bill, look to the proceeds of sales of said real estate so conveyed to the said John Marbury, in lieu and stead of the said real estate itself.
    It is further agreed, that as soon as the purchase-money of said real estate shall become-payable and be collected by said John Marbury, he shall invest the same in his own name, as trustee, in Pennsylvania State stock, bearing interest at the rate of 5 per cent., first deducting therefrom the necessary expenses, taxes due on the said property, to the day of sale, and the commissioners provided for in the said deed; the whole of the proceeds of the said sales, after such deductions made, to be subject to the order and decree of this .court in this cause for the disposal thereof, whether the said order or decree be for the payment of debts due'from the said estate of David Peter to the Bank of the United States, or to. George Peter, or other person, or - from the said.heirs and devisees, or either of them, to the said Bank of the United States, or George Peter, or either of thenb on account of any portion of the personal estate of said David Peter, used or retained by them severally; provided, also, that it is the true inte¡nt and meaning of this agreement, that the part, portion, of interest of each of said heirs and devisees, should be responsible only for so much of the claims and debts of said heirs and devisees, to said Bank of the United States, or George Peter, as he or she shall be personally responsible for; and that no one shall be held or deemed responsible for any other than him or herself.
    It is further agreed, that the Bank, of the United States, or George Peter, or either. of them, by themselves or their agent, may stop or postpone .the sale of any portion, or the whole, of the property advertised for the 15th inst., or any future attempted sale of property so conveyed to said John Marbury, if they, or either of them, should be dissatisfied with the prices bid, or offered, for said property, or any portion thereof; provided, however, that all the said property shall be sold during the present year, unless the said bank and George Peter consent to further delay.
    It is further agreed, that the three story brick house and lots appurtenant in Washington City, set forth in said deed to John Marbury, as devised in trust for William H. Peter, shall be sold jointly by the said John Marbury and the said George Peter, sen., executor of David Peter, and upon the terms mentioned in the deed to said John Marbury; and that the proceeds of the sale of the said house and lots appurtenant, after deducting expenses and taxes, shall, when the same becomes due and is collected, be invested by'the said John Marbury and George Peter, in their joint ñames as trustees, in five per cent, stock of the state of Pennsylvania, to abide the order of this court for the disposal of the same. The said John Marbury to charge no commission on. the proceeds of said sale, if the c,ourt shall be of opinion that the said house and lots appurtenant be part of the real estate of David Peter; and the said George Peter to have ho commission on the proceeds thereof, if the court be of opinion that the same is the property of the estate of William H. Peter, deceased.
    It is understood and agreed, that nothing herein contained is to be taken to amount- to an admission by the defendants, the said heirs and devisees, or either of them, that any debt is due from them, or .either of them, to the said complainants or the said George Peter ; or to prevent them, or either of them, from having the benefit of the statute of limitation, by plea or answer, or any other defence, legal o“r equitable, against the'enforcement of the claims of the complainants, or George Peter, except that the said defendants, the said heirs and devisees, do hereby waive any exception to the jurisdiction of the court, as to the personal estate in this agreement'mentioned.
    F. S. Key, for United States Bunk.

    Jas. Dunlop, Solicitor and Trustee for Geo. Peter.

    John Marbury, Sol’r for heirs, and devisees, and himself, dlpril \2ih, 1836.

      Afterwards all the defendants answered.. George Peter, the executor, claimed to be a creditor of the estate; Marbury- admitted the execution.of the deed to him and the sales under it; and the devisees, Beverly and others, pleaded the lapse of time and the statute of. limitations as a full and qomplete bar against the iclaim of the complainants.. They also denied all knowledge of an arrangement -with the Bank of Columbia; required proof of it; denied the authority of the executors to cást any further burden. upon the real estate, than such as would result from a deficiency in .the personal estaté; denied that the executors applied to the bank for indulgence; averred that the negligence of the executors alone prevented the recovery of the purchase-money of the farm from Magruder; averred that the children of David Peter were minors at ihe time of his death, and incapable of con.septing to any arrangement whatever with the banks'; that Beverlyhád no knowledge of, or-interest in, the property until 1819, when his marriage took place; that they .were never able to acquire any information, and néver did, of the complicated affairs of the estate;' praying that, the decree .of the court, dismissing a similar bill in 1827, may be as effectual as if for'mally pleaded; averring that any agreement with the banks could affect nothing móre.than the trust part of the real estate; they deny the authority of the co.ürt to decree a sale of property situated in Maryland; ■ aver that the executors received large sums of móney for which they have rendered no account; that no part of the personal estate' came into the possession of Beverly since his marriage; that if any part of it caíiie into the possession of his-wife before her marriage, it -was very.' inconsiderable-indeed; and that the personal éstate continued principally, in the possession of George Peter, the executor, by whom, it was used, wasted, and otherwise disposed of.
    On motion of the complainants, by their solicitor, the Circuit -Court-ordered ‘■‘I'hat the decree of the. Supreme Court, and the bill, answers, exhibits, depositiohs/and proofs in tlie case of Béverly v. Peter in the said record, and on file in the said cause,'be read and made use of in the hearing of this cause.”
    In January, 1840, the papers in the, cause, with the evidence already taken áñd on file, were referred to the auditor to state an account between the partiesjipon the principles of his former re- , port, and in November, 1840, he reported as follows:

      Auditor’s Report.

    The undersigned auditor of the Chancery Court for Washington county, District of Columbia, has had the papers filed in thiscausé under examination, and now submits the following report:
    That the claim of the Bank of the'United States against the estate of David Peter, with interest to the 12th day of November, 1840, and costs, is $46,119 75; and that the claim of George Peter, per statement herewith, is $26,607 78.' Thai the net proceeds of the sales of property sold by George Peter, as executor, is $17,513 66, to which maybe added the estimated value of' .two thousand acres of land in Montgomery county, Maryland; called Dulin’s, (which originally sold for a little, upwards of. $20,000,) $7500; of vacant lots in the city of Washington, $1500, and $2873? 15 being the amount awarded to the proprietor of ■ Dulin’s farm by the Chesapeake and Ohio Canal - Company, for', damages, done by running said canal through that farm,, which suiú has never been paid by the. executor of David Peter. These .several items, if the property brings this estimated value, will make the sum of $29,386 81 for trust estate.
    That the sales made by John Marbury, under an agreement made by the parties to this cause, as per report of sales, amount to $41,731 86, but owing to the non-compliance with, the terms oCsale, of some of the purchasers,'the corrected sales as .specified in Mr. Marbury’s account 'No. 2, the amount is reduced to $38,722 .32; the whole amount of the- payments received by Mr. Marbury up to the 20th-April, 1838,-is $21,711-16, from which deduct,, for expenses, taxes, surveying, auctioneer’s- bills, and the trustee’s commission $1,804 76, leaving in the hand® of •the trustee, $19,906 40, which amount, according to his report, has been vested in the -stock of the' state-of Pennsylvania, bearing interest at 5 per-cent, per annum. The corrected sales, as . above, amount to $38,722 32, to which may be added as 'follows: Wm. RaffiSay’s purchase of lots, $2084, and Wm. Stew-' art’s, $501,'which still remain for the-trustee to dispose of, and if they bring the same at which they were struck off at to Ramsay. and Stewart, will make, when: added to the $3S,722 32, the sum of #41,307 32 as gross sales; in addition to this sum, there remains twenty-four acres of land, near the city of Washington, bought at the sale by Mr. Upton, who never complied with the' terms of sale, and never has paid for, which it is believed will sell for $1000; this will make the trustee’s sales -amount to $42,307 32, and taking the expenses, commissions, &c., as before ' mentioned, it will leave in the hands of the trustee the sum' of $40,502 56. That it thus .appears, that the sales "of George '.Peter, acting Under the will of David .Peter, amount, if the sales shall be equal to the estimate here given, will be $29,386 81, and those by Mr. Marbury, $40,502 56. To these sums are to be added the amount of interest received on the notes given in payment, and the interest on the Pennsylvania stock.
    The auditor has read a,nd considered the pleas of limitation put forth by the answers of the heirs of David. Peter, and by John Marbury, Esquire, as their solicitor in this cause, and is of. opinion that it is not available, under the circumstance of this case, as it respects either Of the creditors.
    Submitted by Joseph Forrest, Auditor. .

      ■10th November, 1840.
    In -.the audit of the 10th December, 1833, the executors are charged with the following, being for property sold .in the. city of Washington to sundry persons,-viz.-: Shaw and Elliot, lots $1000; J. Kuhn, $796 86, and Francis Dodge, $175, making in the whole $1971 86. It is conténded-by George Peteb, the surviving executor, that he never received this amount, or any part thereof, but that the same was received by the heirs; as Major Petér gave deeds to the purchasers, the auditor' is of opinion, that it was rightfully charged in said audit. This amount the. executor can bring into his settlement with the heirs, but not into a settlement with the creditors of the estate.
    Joseph Forrest, Auditor.

    ’ 10th December, 1840.

    Whereupon the complainants, by their, solicitor aforesaid, filed the following exception? to the auditor’s-report:

      Complainants’- Exceptions.

    Because the auditor has charged George Peter, surviving executor, with the purchase-money, of the lots sold -to- K-uhñ' and Birth, when it was proved, that the same was not" received by him, but by James' B. Beverly, or was applied by him to the payment of debts of the deceased, for which the executor is not credited. '• F. S. Ket, for complainant. '
    Whereupon the said defendants, by their solicitor aforesaid, filed the following exceptions to the auditor’s said report, to wit

      Defendants’ Bill of Exceptions to Auditor’s Report.

    Exceptions on the- part of the heirs at law and devisees of David Peter, defendants in the above cause, to the report of Joseph Forrest, Esq., auditor, made in this cause, and filed the day of November, in the year 1840. The said defendants except to the said report,
    1. Because the auditor has allowed a claim or debt of $46,119 25, in favour of-the complainants, the Bank of the United States, against the estate of the said David Peter and the defendants, his heirs and devisees, without legal, competent, and proper evidence of the existence of such debt, or of any debt whatsoever, due-. from the said David Peter, in his lifetime, and with the payment of which these defendants ought to be charged in this suit.
    2'. Because, in stating the ’ said pretended debt or account, her tween the complainants and the said defendants, the heirs and devisees of the said David Peter, the auditor has allowed compound interest, and thus, unjustly, illegally, and oppressively increased .he said pretended .debt..
    3. ' Because, if any such debt was due from the said David Peter, in his lifetime, and at the time of his death, which happened in the year 1812, the recovery of the same against these defendants, as the heirs and devisees of the said David Peter, in consideration of any real estate descended from, or devised by the said David, to these defendapts, was barred by lapse of time and the provisions of the act,of limitations; and although these defendants, in .their answer to the bill of complaint, and at the hearing before the auditor, insisted on the lapse of time and the provisions of the act of limitations, in bár of the said debt or demand of the complainants, the auditor-rejected their said defence, and allowed the said debt or demand.
    4. Because George- Peter, the surviving executor’ of David Peter, and one of the defendants to the said bill of complaint, having elected to,come in and contribute, with the complainants,, to the expenses of this suit, file.d an account as a creditor of the estate of the said David Peter, amounting- to the sum of @26,607 78, which said sum of ■ @26,607 78, the auditor has. allowed as a just and proper charge against the estate of the said David, Peter, and for the payment of which, the real estate, devised by the said David to these defendants, ought to be sold. . Whereas, these defendants say, that there is no evidence in the cause, to prove the same, or any part -thereof,.to have existed as a debt against- the said David Peter in his lifetime, or to authorize a decree for the' sale of the real estate devised to these defendants, by the said David, for the payment of the same.
    5. Because, each and every one of the items of-charge contained in the account of the said George Peter, so allowed by the auditor, was of more than three years’ standing before the filing of the said account, by the said George Peter,.with the auditor, and before the filing of the bill of complaint in this cause- by the Bank of -the United States, against these defendants and the' said . George Peter, and was, at the timé, of the filing of the said bill of complaint, barred by lapse of time and the provisions of the act of limitations; and these defendants; at the hearing before the auditor, and before the making of his said report, as appears by the said report, insisted on the lapse of time, and the provisions of the act of limitations, as a bar to tlie claim of the said George Peter; notwithstanding which, the auditor allowed the same. .
    6. Because the report of the auditor and the account accompanying the same, are not in pursuance of the order of reference to the.'auditor, but relatero claims and account^ not embraced in such, reference.
    7. Because the said report, accounts and .statements, accompanying the same, are unsupported by legal and competent evidence in the cause, and thérefore ought to be set aside.
    8. Because the sum allowed to George Peter, as surviving executor of David Peter,, by the auditor, is for a general balance on the settlement of the executor’s account, as is alleged, for that amount overpaid the proceeds of the estate which came to the hands of the executors, to be administered; and the defendants, us heirs and devisees of the real estate of the said David ■ Peter, are not chargeable by the executors, or the survivor of-them, with the payment of such'balance. John Marbury,

      Solicitor for the heirs and devisees of David Peter.

      . On the 21st of January, 1841, the cause came on for 'hearing on the exceptions to the auditor’s, report, and th.e bill, answers and exhibits, depositions and proofs and general replication; when the court decreed that the exceptions to the auditor’s report, made by complainants, be overruled, and the exceptions of'defendants to the auditor’s report be confirmed; and that the bill of the complainants be dismissed with costs.
    From that decree the complainants appealed to this court.

      Jones and Sergeant, for the appellants.

      Cox and Reverdy Johnson, for the .appellees.
    The counsel for the appellants made the following points. That the court erred.
    1. In overruling the exception of complainants.
    2. In. confirming the exceptions of defendants, the claims of the bank and of George .Peter being sustained in the record by the proof as reported by the auditor.
    3. In dismissing the bill—
    Because: 1. The bill filed in 1827, and the proceedings thereon, were no bar to the relief now sought.
    2. Lapse of time and the statute of limitations could not,, under the circumstances of the case, operate as a Bar. .
    3. Under the arrangement made between the banks and the . executors for the benefit of the heirs, and according to the provisions of. the will,, the personal estate might properly be applied to the maintenance of the heirs.
    ■ 4. If so applied (as it was) the real .estate was liable to the debts,'whether specifically so directed by the will, or not.
    5. On that part of the real estate specifically directed to be sold for the payment of the.debts appearing to be insufficient, the rest of the real estate was liable; and' it was not necessary, in such case, to wait till an actual sale ascertained .the extent of the, insufficiency.
    6. All these grounds were maintained'in the opinion of this court in the former casé between these parties.
    In that case the court determined that the real estate specifical]y directed to be sold to pay debts, was liable to be sold for that purpose.
    This'bill avers the insufficiency of that part of the real estate (it haying been sold) to pay the debts; which is not denied in the. answer. And the appellants contend that, under the will'and by the laws of Maryland, the residue of the real estate is liable to the extent of the insufficiency.

      Jones argued that the act of Maryland of 1785, gave to simple contract creditors the 'same remedy against heirs as specialty creditors. The heirs and 'devisees in this case consumed, the personal fund, and the testator intended it should be S‘. He hád, in effect, alienated his personal estate from the payment of his debts. Where the legatees have a lien, they must resort to it: 1 P. W. 679; 2 Powell on Devises, 654. The executor can come in as a creditor. 3 P. W. 398; 3 Gill and Johnson, 324; 6 Gill and' Johnson, 4. The plea of limitations cannot avail, because the will creates a trust to pay debts which consists mainly in a charge upon the real estate. The form of making the trust is not material. If there is a charge upon the land and no trustee, the court will appoint one. 13 No. of Law Library, page 10.

      Coxe, contra.
    The proceeding is éxclusively upon the statute of Maryland of 1785, and not upon that of George II., making real estate subject to execution. But the debt must be in existence at the death, of the testator, and the executor’s claim, here, has arisen since. See 1 Harris and Johnson, 469; 2 Bland’s Chancery, 327. Tn 1 Harris and Gill, 504, the petition was dismissed because it did not aver a deficiency of personal assets. The Court of Appeals reversed this, but only upon the ground that the deficiency might ha.ve been proved. But here it is neither averred nor proved. See 1 Bland,415; 2 Bland, 250,472; 4 Gill and Johnson, 296. In 8 Poters, 144, the court consider this act of 1785 as an enlargement of chancery powers, and say that the real estate is to be sold only when there are no personal assets. This claim was not against the testator; he died in 1812, and the Bank of the United States was not chartered until 1816. If it be by assignment, none is shown. If a guardian to the infants had been appointed, he could not have touched the real estate. How, then, can the executor involve it? Law Reporter of March, 1840, page 1. As to limitations: there is only a general replication filed, and no special matter set forth in avoidance of the plea. The argument on the other side cannot therefore come in. 6 Peters, 64, says, “ where thé statute is pleaded, replication or amended bill must set forth the facts to take it out of the statute.” As to the effect of limitations, 1 Bland, 91, 470; 2 Bland, 366; 8 Peters, 528; 3 Cond. Ch. Rep. 155; 4 Harris and Gill, 126, 270; 2 Gill and Johns. 491. As to a trust reviving a debt barred by statute, 1 Russell and Mylne, 255, or 4 Cond. Ch. Rep. 413. The bill does not aver a trust; and if there be one, who is the trustee ? If it is the executor, the bill ought to have been against him alone, 2 Johnson’s Ch. Rep. 614, 623, and authorities there cited.

      H. Johnson, same side, examined,
    I. Whether the case as presented by the bill could be sustained, supposing the creditors to be the creditors of the testator at his death.
    2. Whether they were in fact such creditors.
    3. Whether the answer and proof did not meet the averments of the bill.

      4. Whether the complainants could come upon the real estate either upon the ground-of'an assigned claim to the bank, or that-the executor had overpaid.
    1. The complainants can succeed- only upon one of two grounds — upon the act of 1785, or that there was a general trust created. It is settled in Maryland, that under the act of 1785 there must be an averment and proof of a deficiency of personal assets.
    1 Harris and Gill, 504. But here the bill says there was a large personal estate. As to a general trust — how can that be,, when there is a particular part of the estate devised to pay debts, if necessary? Testator died, in 1812, and bill filed in 1S36; in the mean time the debt has accumulated, by interest, to $46,000; the-executor is a creditor to $26,000, making $72,000. The trust property is estimated at'$29,000; the personal estate, which the .testator thought might be insufficient, all gone, and the general estate is to make up $43,000. The yrhole estate will not pay the debt.
    2. They were not creditors of the original estate. The executor’s account begins .in 1813, after testator’s death, and the other creditors claim by assignment; but none is shown. ' See 7 Harris and Johns.. 134; 4 Gill and Johns. 303; 6. Gill and-Johns. 4.
    3. Answers rely upon limitations and lapse of time. Morrison v. Bell, 1 Peters, decided that the court would not try to get Out of the statute, and in.Gray and others, 1 Harris and Gill, adopts the„ same principle. Can the creation of a trust upon a part of the estate prevent the statute from protecting the rest ? Did not the testator intend that his debts .should be soon paid, and the residue of his estate go to his children, free from debt ? Between the cestui que trust and the trusted, the statute stops; but if other parties are brought in, it is different. If it is the law which makes this property responsible, then it is not the intention' of the testator ; and if so, there- was no trust, and the statute must run. 2 Story’s Equity, 735, note; 2 Sch. and Lef. 630.
    ■ 4. The dismissal of a former bill is a bar to this. 2 Story’s Equity, 740; Cooper’s Pleading, 269 — 271.; Milford,-237.

      Sergeant, in reply, for appellants.
    The hardship of this case is not on the side of_the defendants; it is one of obstinate ingenuity on their side. Debt has never been paid, and children have had the benefit of the personal, estate. No mismanagement of the fund anywhere. The creditors are worse off than the family. ' The' Bank- of Columbia broke along ago; if it had exacted its debt immediately, it would have been called a Shylock. The respondents are residuary devisees; the testator first provides for his wife, and then for his debts, and the will is the law of the case. (Mr'. S. here gave a history of the case.). The bill does not profess to be under the act of 1785. There was a special agreement of counsel, in which the defendants waived any objection to the jurisdiction of the courtj &c.: they cannot now deny that the debt was due by the testator. We were entitle.d to the real, in aid of the personal, in IB 13, and are so still. A devise of a part of the land to pay debts, does not exempt the rest. Whoever takes the-land takes it as a trustee.- Jones v. Scott,-1 Russell and Mylrie,says, that the intention of a testator to make a trust, prevents the statute, from, running. See 2 Story’s Equity, 737, 741. The question in the case is, whether the executor shall be ruined, and the legatees get the land for nothing. The family all, concurred in what was done: the heirs and‘devisees-had as much right as we had to go into chancery and have the.estate settled up. As to the former suit being a bar,, the record does not show any thing but the answer, or whether-it was dismissed “ without prejudice.”
   Mr.-Justice BALDWIN

delivered the opinion of the court.

.A summary of the points decided, and principles settled in the •former case between these parties, will save much time- in the investigation of those which are involved in this.

After taking a condensed view of the will of David Peter, the court declare, that he had unquestionable right, so far as respected his children, to charge the payment of his debts upon any part of his estate he might think proper, and that none -but a creditor could control his will in that respect; that he had constituted his widow'the trustee of the proceeds of all his estate, for the maintenance and education of his children; and inve.sted her with unlimited discretion in this respect, so'-far as the proceeds of his estate would go. Whereby the surviving executor js not accountablé for any thing so applied by her, even if she would be chargeable with a devastavit, and that the- proceeds of all his estate being thus vested in the widow, would render it necessary,' independent of any express direction in the will, that recourse be had to the real estate for the payment of the debts. 10 Peters; 502, 563. • The court then decide, that the surviving executor had power to sell, and that, it was impossible to draw any other conclusion, than that it was the intention of the testator that the sale should be so made. 10 Peters, 566. . On the inquiry whether there is any subsisting debt due from the estate of David Peter to the banks, the court say, there is no pretence that they have been paid in fact, and if not, the trust remains unexecuted, and the land still remains charged with it. If the executors have paid the banks, or the banks have accepted their notes in payment of the notes of the testator, the only effect is, that the executors became the creditors instead of the banks, and may resort to the trust fund to satisfy the debt. But the court also say, that under the circumstances of the case, there is.no ground for con-, sidering the debt of the banks to be extinguished, and they then proceed to state the result of their consideration to be this.

That the will created a power coupled with an interest that survives; that the surviving executor is the person authorized to execute that power and fulfil'that trust; that the debt due the banks has not' been extinguished, or the estate in any way discharged from the payment. That the executors, are not chargeable with negligence or such misapplication of the personal estate-as to make them responsible for the payment of these debts; and that from the auditor’s report on the accounts of the executors, exhibited to, and alldwed by him, there has at ail times been, and now is, a considerable balance in favour of the executors against the estate. The court, then, refer to the exceptions taken to the auditor’s report, and declare them to have been properly overruled by the court below, and proceed to render their .decree as before referred to. 10 Peters, 569, 570.-

So far, then, as related to the construction of the will, the disposition of the personal property, the charge of existing debts on the real estate, the power of the executor, the existence of a trust, and their duty to execute it by a sale of the property charged by the will, the decision of the court has settled’ the rules and principles on which the present controversy must be determined if they are applicable; it was made on great consideration, founded on,r uthority, and. nothing which has been urged, in the' argument of this case has caused us to entertain the least doubt of its entire conformity to the well established law of equity. So far as the evidence and facts of that case were considered and adjudicated, the .decree of this court is final and conclusive; the parties and the subjects of controversy between them were the same as are now before us; negligence and misapplication of assets were charged on the executors, the existence of debts to them or the banks was. denied by the then complainants, and now defendants, and both facts adjudged and decided adversely to them ;• and the auditor’s report was confirmed, whereby every fact it contained became established and binding on the parties in any future controversy, as to any matter thus adjudicated.

In Hopkins v. Lee, this court state the settled law of all courts to be, that, as a general rule, a fact which has been directly tried and-decided by.a court of competent jurisdiction, cannot be contested again between the same parties, in the sa. .e or any other’ court. Hence a verdict and judgment of a court of record, or a decree in chancery, although not binding on strangers, puts an end to all further controversy concerning the points thus decided between the parties to such suit. In this, there is, and ought to be, no difference between a verdict and judgment in a court of common law and. a decree of a court of equity. They both stand on the same footing. 6 Wheat. 113,114; S. P. 1 Wheat. 355; 12 Peters, 492. Whatever, therefore, our opinion might now be as to the facts adjudicated in the former case, the judicial power is incompetent to revise the evidence on which the decree was rendered, on any ground now set up in the answer of the defendants, or apparent on the present record, and they must be taken to be beyond all controvery in this or any future case between the parties. Before proceeding to consider the questions appropriate to this cause, a reference to the case- of Fenwick v. Chapman, 9 Peters, 466, will be useful, in order to ascertain-what principles were there laid down and are applicable to the ' present controversy. Adopting the general rule that the personal estate of a testator shall in all case's be primarily applied to the "discharge -of his personal debts of general legacies, unless he by express words or manifest intention exempt it, the .court thus qualify the rule; -where the testator’s intention clearly appears that a legacy shall be paid at all events, the real estate is made ■ liable on a deficiency of personal assets. So where without any assistance from the will, the nature of the thing to be done may clearly show the intention to charge the real estate with a debt; as, where the thing to be done cannot be partially performed by the executor, without defeating the instruction which directs it, and the thing itself. On this principle the court holds, that the manumission of slaves pursuant to-the directions of a will under the law of Maryland (which is the law of the eastern part of this district) operates ás a specific legacy to the slaves, and to charge the real estate with the payment of the debts of the testator, even though -he may have, at the time óf his death; no other personal property than slaves. 9 Peters, 47"!, 473. That the creditor-may be Carried into a court of equity, or voluntarily resort to it to obtain his debt,'either from, the lands or the personalty, when the testator leaves it. doubtful from what fund his debts are to be paid; that lands devised for the payment of debts, or which have become chargeable by implication, constitute a fund for the payment of debts, and an ample and plain remedy is admitted to exist in the law of Maryland, so-to apply them.'

“ The will is the executor’s law, and he is no more than the testator’s representative' in all things lawful in the will. A special legacy of all the personal property is a law to him;”, if there is an insufficiency of “ personal assets to pay debts, it is' the executory duty to file a. bill against the creditors and' all interested, in the estate.;” “praying that the lands may be made liable to the . payment of debts, that equity may be done to all toncerned, according to the law of equity.” . 9 Peters, 474, 475. When he is charged with the, sale of the testator’s lands for the payment of debts, it is his duty to execute the whole of the testator’s will,-' and in such á case the creditors* have as good a right to look to the land through him* for the payment of their debts, as they have to look to' the goods and chattels through him, 9 Peters, 477; and they must pursue their claims in equity, .or according to the statutes of Maryland' subjecting real estate to the payment of debts, to. make their debts out of the land, 9 Peters, 481, 482. These statutes are the 4 Geo. 2, adopted in Maryland, and the act of 1785., c. 72, sect. 5, which is recited in the Bank of the United States v. Ritchie, 8 Peters, 143, and which this court there declare has been construed in that state to be an enlargement of jurisdiction, and that decrees'for selling the lands of minors and lunatics, in the cases prescribed by it, have been treated by the Court of Appeals, as the exercise of other equity powers.. That these opinions of this court are -iñ accordance as well with the statutes of Maryland, and the established rules of equity in cases of this description, we ■ have no doubt; nor of their application to the present. It must therefore be taken to be a. settléd point, that a disposition by a- testator of his personal property to purposes other than the payment of his debts, with the assent- of creditors, is’ in itsélf a charge on the real estate, subjecting it to the payment of the debts of the estate, though no such charge .is created by the words, of the will. Á trust is thereby raised which devolves on the executor, who. may execute it by his own au-. th'ority, or be compelled to do it by a bill filed by the creditors, " either under the.-statute of 17S5, or in virtue of-the powers of a court of equity in relation to the execution of trusts, as the case may be; in this case there .was such á trust, fastened on the property in controversy by implication of law, and the presumed intention of the testator, which can be enforced by these comjplainants, unless some valid objection has been made, out by the respondents.

'It has been contended that the frame-of the bill is too defective to justify any action upon it, for the want of necessary averments, but when we take it in connection with the former cause to which it refers, the agreement of the parties on file, and the answer of the defendants, we think that , a satisfactory answer is at hand. The object of the -bill is clearly stated, such averments are set' forth as on its' fac. shows.some equity which requires an answer; informal as-they may be, they would stand the test of a'demurrer, especially with the aid of the agreement, by. which it appears that the defendants fully understood the nature of the plaintiff’s case, the object sought,-and the evidence on which they would rely. The answer is full to every matter of fact or law which could be averred in the best drawn bill; there has been no allegation of surprise, or any want of notice of the grounds on which the plaintiff rested his case, and the parties went to. the hearing on the; bill as it stood, fully prepared to contest their respective claims, as they had doné in the first case, of which this was .well known to be the consequence. Under such circumstances the objection is entitled to no favour], and is not sustainable as án obstacle to our action upon the merits of the cause.

The answer sets tip the'dismission of a bill.filed by the complainants in 1827, against the defendants, for the same relief as is prayed for in the present bill, as a bar thereto; but no record of such case is set out or exhibited, so that, however true the answer may-be in fact, it cannot avail in law. In this respect it is not responsive, to the bill'; it sets up distinct affirmative matter ]of defence and bar, which the defendants must prove, or it. can have ho effept for either purpose.

The statute of limitations, and. the loss of time from the death of David Peter to the filing of the bill, are also plead and relied on' as a bar, but we think that neither can apply to. this case, which is an unexecuted trust for the payment of debts adjudged by this court in 1836, to be unpaid in point of fact, and then' existing in . favour of the banks and executor, and the present bill' was filed soon after the decision was made. . The confirmation of the auditor’s report, made in that case, is conclusive to show the amount of such debts at that time; so is his report in this case as to their present amountwe cannot look through these reports for the evidence on which they were made; they have passed to judgment, and have the sanctity of re'cords.

The remaining objections to the relief prayed for by the bill, which are founded on the principles of the law or the rules of equity, are covered by the former decisions of this court; those-which arise from the evidence in the cause as to matters of fact material to our decision, are no longer open to controversy, and we are clearly of opinion that the complainants have made out their case in point of law and fact.

The decree of the Oircuit'Court must consequently be reversed. The cause is remanded with directions to make a decree in conformity with this opinion, by ordering a sale of the property in controversy, and consistently with the agreement of the parties filed of record, and the rules of equity as to the time of disposing of the several parts thereof, specifically devised by the will of David Peter. It is also directed', that the Circuit Court decree on the report of an auditor, or. as they may think proper, to what part or items of the account of George Peter, a preference ought to be given in payment over the other creditors of the estate'of-the testator, and make a final order thereon according to law and equity.

ORDER.

This cause came on to be heard on the- transcript ot 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 fry counsel. On consideration, whereof, it is now here ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, with costs, and that this cause be' and the same is hereby re-, manded to the said Circuit Court, with directions to proceed therein according to the opinion of this court, and in conformity to the principles ,of law and justice.


source: Caselaw Access Project

author: Mr. Justice DANIEL

license: Public Domain

text:
    John Lloyd, Plaintiff in error, v. George S. Hough.
    The action of assumpsit for the use and occupation of lands and houses, ex, isted in Virginia anterior to the cession of the District of Columbia to the United States.
    But this action is founded upon contract, either express or implied, and will nut lie where the possession has been acquired and maintained under a different or adverse title, or where it-was tortious-and makes- the holder a trespasser.
    This case was brought up, by writ-of error, from the Circuit Court of the United States for the- District of Columbia, holden in and for the county of Alexandria..
    The facts'in the case, and bills of exceptions,-are stated in the opinion of the courts to which,the reader is referred.'

      Semmesx for the plaintiff in error.
    Neale, for the defendant.

      Semmes, for the plaintiff,
    raised the following points.
    First bill of. exceptions. — There was error in the opinion and instructions of the court.
    1. Because' tne instruction was not given upon the whole of the .evidence of the witness, Isaac Robbins, but upon only part, which he gave upon cross-examination by the defendant in error.
    2. Because-the court allowed parol evidence of title to real estate to go to the - jury.
    3. Because, in the opinion and instruction they gave on this portion of the evidence, the court directed the jury,- if- they believed the testimony therein stated, they. “ must” find for the defendant.
    Second bill of exception. — The court ..ought to have instructed the jury, that if they believed the evidence therein stated to be frue, the plaintiff, being the fee - simple owner of. the tenement, could recover on the . implied contract as stated in the second count of the declaration, without any proof of an actual entry into the premises on the part of the plaintiff, or acknowledgment on the part of the' defendant that he considered the plaintiff his landlord, or without any proof that the defendant had actual .notice of the legal and fee simple title of the plaintiff to the premises. •

      Third bill of exception. — Evidence ought to have been admitted tó show the notoriety of Lloyd’s claim and title, tending, with other circumstances, tp bring the knowledge of it home to the defendant.
    Fourth bill — governed by same principles as second.
    On the right of the jury to weigh evidence, he cited Green-leaf, p. 292, 445,. 446, 568 ; 1 Call, 161; 2 Mod. 478.
    That an action will lie" on an implied promise, 16 East, 104; 1 Levins, 179; 2 Campb. 18; 1 Campb. 466. Debt lies for use and occupation, 6 T. R:62; 4 Day, 228.

      Neale, for the defendant,
    cited several authorities to show that interest' could not be recovered upon rent in .arrear; and to prove that this action would not lie where there was no privity of contract, cited 1 Esp. 57, 59, 61; 2 Nott and McCord, 156; 3 Serg. and Rawle, 500; 6 Conn. Rep. 1; Chitty on Contracts,.(3d Am. ed. by Troubat,) 106; 2 Tuck. Com. book 3, c. 1,-p. 19,20; 2 Campb. 11, 12.; 1 Campb. 466; Buller N. P. 139.
    As to the court directing-the júry they must find for the defendant, 5 Peters, 197; 14 Peters, 327; 1 Cranch, 300; 4 Cranch, 71; 4 Leigh, 114; 1 Wash. 5, 6; 5 Rand. 145, 194.
   Mr. Justice DANIEL

delivered the opinion of the court.

This cause is brought before this court upon a writ-of error to the Circuit Court of the United States for the District of Columbia. The questions for consideration here, arise upon the following statement! The pláintiff in error instituted in the Circuit Court for the -District of Columbia, an action of. assumpsit against the .defendant for. the use and occupation- of a bouse in the town of Alexandria. The declaration contains two counts;-the first declaring upon án express agreement between the parties for the occupation and rent, and the second counting upon-an occupation by the defendant by the permission-of the plaintiff, and upon a promise in consideration thereof. The account filed with the declaration claims an annual rent of @175, from the 1st of January, 1826, to the 1st of January, 1S39, inclusive, with interest after the expiration of each year. Upon the aboye declaration; there was a judgment by default, and a jury being empannelled upon á -writ of inquiry assessed damages against the defendant to the full amount of the plaintiff’s demand for rent and interest. This verdict the court on motion of the defendant set aside; annexing to its order the condition, that the defendant should not plead the statute of limitations ; and issue being joined between the par-, ties on the plea of non-assumpsit, a jury sworn to try that issue on the 10th of May, 1841, returned á verdict for the defendant; and thereupon the court gave judgment against-the plaintiff with costs.

At the trial instructions to the jury were prayed on behalf both of plaintiff and defendant, and exceptions taken to the rulings of the court in reference to those instructions.

The first bill of exceptions states that the defendant, having' offered to prove by competent and credible witnesses that during the entire period of his occupation of the premises, he had remaining thereon property sufficient to answer the rent, had the plaintiff chosen to distrain or sue for the same; he thereupon prayed the court to instruct the jury, should they believe from the evidence, that there had' always been upon the premisés, while occupied by the defendant, property and effects of his sufficient to have satisfied the rent, then that the plaintiff- failing or neglecting to sue or distrain for those rents, was not entitled in this action to recover interest on the rent in arrear whatever it might be, from a period earlier than the date of the writ sued out iri this cause. But the court refused' the instructions so prayed for, to which refusal the defendant excepted.

In the second bill of exceptions it is stated that the defendant, by cross-examination of Isaac Robbins, the plaintiff’s witness, proved that in the spring of -1820, defendant entered the premises as tenant, from year to year, under a parol demise from said Robbins as trustee of John Swayne, an insolvent debtor, and at the annual rent of #175, and continued to occupy the premises under said demise, paying the rent as it became due to Robbins, as trustee of Swayne, till the spring of 1824. That Robbins, in character of trustee of Swayne, paid a portion of the rents collected of the defendant to A. C. Cazehove, and a part of' them to the plaintiff, but without-the knowledge, of-the defendant: that since the spring of 1824, the defendant had paid no rent to Robbins, assigning ás a reason for refusing to pay, that the collector of the port of Alexandria, had forbidden such payment: that the defendant was still the occupant of the premises of- which the plaintiff in this cause had never, to' his knowledge, taken actual possession: that Robbins'resided in Alexandria and had sore-sided for the last thirty-seven years: that the defendant also read . in evidence a deed from Jonathan Scholfield and wife, to A. C. Cazenove, bearing date on the 13th. óf June, 1814, and duly recorded in Alexandria county, which deed (riíade a part of the. exceptions) conveyed the premises occupied by the defendant. That upon these proofs the defendant prayed the court to instruct the jury, should they believe that the defendant originally entered, and used and occupied the premises by a .parol demise ■ thereof from Robbins, as trustee of Swayne, in 1820,-and, as tenant of Robbins, paid'-him the rent until .1824, after which period Robbins ceased to .collect the rent for the reason above stated, although the defendant continued to use and occupy the premises from 1824, and still occupied them; and that the defendant did not hold' and occupy the premises either under a written or parol demise from the plaintiff prior or subsequently to. his - holding under .Robbins, or prior to the institution of this suit, but that the defendant held and occupied the premises exclusively under the original parol demise from Robbins as trustee as aforesaid, and that the defendant had no notice, of any title in the plaintiff to the premises beyond what might be presumed from the fact then shown in evidence, that a deed had been made for the.premises from Robert I. Taylor to the plaintiff and had been admitted to record, that then the jury must find for the defendant, which instruction the court accordingly gave, and the plaintiff excepted.

By the third bill of exceptions it is recited in substance that the plaintiff having offered in evidence a deed to him for the premises, dated March the 10th, 181-7, from Robert I. Taylor, trustee in a deed from Jonathan Scholfield- and wife, conveying the same property "to said .Taylor on the 26th of June, 1814, (both which deeds are parts of this exception,) and having farther proved by. Isaac Robbins that from the year 1820 to'the year 1S24, the defendant used and occupied the premises in .the declaration mentioned under a verbal rerfting from Robbins, claiming aá trustee of S'wayne under . the insolvent law, and- that said-renting by Robbins was without the knowledge or consent of .the plaintiff, (no title having been shown by the defendant in Swayne-or in Robbins claiming as his trustee under the insolvent law,) and that Robbins collected the rent of the premises from 1820 to 1824' inclusive, claiming as lessor of the defendant, and as trustee of Swayne; that he had paid over a portion of the rent thus collected to A. C. Cazenove, and a portion of it to the plaintiff, who was the owner of the fee simple under the deed from Taylor, of March the 10th, 1817; the witness not knowing whether .the defendant knew of the disposition so.made of the rent collected of him, and that he¿ Robbias,'.had not claimed rent for the premises from the . defehdaiit'since April-, 1824, having been informed that defendant had been forbidden by the collector of the customs of the port of Alexandria, to pay -rent to any one, other than the United States, and not having shown that the defendant had, at any time, paid rent either to the collector or the United States.

Whereupon, the plaintiff prayed the court to‘instruct the jury, should they believe the evidence aforesaid, that then the plaintifT hád made out such a case as entitled him to recover on the second count, for the use and occupation of the premises, for such time as the plaintiff should prove that the defendant had used and occupied the'same, after the 15th day of April, 1824, by permis- • sionpf the plaintiff. This instruction the court also refused to give, being of opinion that from the evidence so stated, it was not competent for the jury to infer'that such occupation by the defendant .was by the permission of the plaintiff, to which opinion and refusal the .plaintiff excepted.-

Fourth bill of exceptions. — The plaintiff, offered to prove that the claim of the plaintiff to the premises^ for the rent of which ■this suit was instituted, was a subject of general notoriety in the neighbourhood about the year 1820 and since, which being objected, the counsel for.-the plaintiff insisted he had a right to ask the question objected to, it being introductory to another question designed to bring home to the defendant knowledge of the fact, that the plaintiff claimed the premises used and occupied by the defendant during the time he so.used and,occupied them. The-court refused to permit the question, to which refusal the plaintiff excepted. .

By the fifth and last bill of exceptions it appears that the plaintiff moved the following instructions: That-if-the jury should believe from the evidence stated in the preceding bills of exception in this cause, that there was a deed from Jonathan Scholfield and wife (said Scholfield being admitted to have been at the time seised of a legal estate in fee of the premises) to Robert I. Taylor, which deed conveyed the fee in the premises, for the use and occupation whereof this suit was brought, and if the jury should further believe that Taylor by a deed, subsequent thereto, and set out in the plaintiff’s second bill of exceptions, conveyed the said premises to the plaintiff and his heirs, then, by the legal operation of the deed from Taylor to the plaintiff, there was such a possession transferred to the úse thereby limited and conveyed, as dispensed with proof on the part of the plaintiff, that he had actual entry on, and possession of; the premises; and that the said deed gave to the' plaintiff such a legal title thereto, and possession thereof, as could not be divested by a leasing of said premises tc the defendant by Isaac Robbins, a stranger, so as to deprive the plaintiff of his remedy against the defendant, tenant of the premises, occupying and using them, though originally leased to him by said Robbins without the plaintiff’s consent; which instruction the court refused to give, and the plaintiff excepted.

Although it has been deemed necessary to an accurate description and correct understanding of the points in the case, to state the several bihs-of exception in the record, yet; it is obvious that, the four bills sealed at the instance of‘the plaintiff, and making the second, third, fourth, and fifth in the order of the proceedings, may be embraced within the same view, as they alL relate to the establishment of one and the same conclusion, viz., the necessity of establishing an agreement either express or implied by law, for the payment of rent by the defendant to the plaintiff.

. In the argument of this cause, the counsel for the plaintiff has supposed himself called on to anticipate an objection to the remedy by action of assumpsit, for use and occupation of lands ,and houses, as not having existed in Virginia anterior to the cession of the District of Columbia to the federal government. Such an objection is regarded without just foundation, this remedy having been declared by the Supreme Court of Virginia to be always a part of the jurisprudence of tliat. state, and having been likewise recognised in her legislation, not as a remedy created by statute, but a? one enlarged and favoured, by making it a transitory instead of a local action. Vid. Sutton v. Mandeville, 1 Munf. 407;. Eppes v. Cole, 4 Hen. and Munf. 161; Sessions Acts, February, 1816, c. 15, s. 6; Tate’s Dig. 465, s. 28.

But whenever the action of assumpsit for use and occupation has.heen allowed, it has been founded and would seem necessarily to be founded upon contract either express or. implied. The very -term assumpsit presupposes a contract. Whatever, then, excludes -all idea of a contract, excludes, at the same time, a remedy which can spring from contract only, which affirms it, and seeks its enforcement. To maintain the action for use and occupation, therefore, there must be established the relation of landlord and tenant, a holding by the defendant .under a knowledge, of the plaintiff’s title or claim, and under circumstances which amount to an acknowledgment of, or acquiescence in, such title or claim, and an agreement or permission on the part of the plaintiff. The action will not -lie where the possession has been acquired and maintained under a different or adverse title, or where it was tortious, and makes the holder a trespasser.

In Birch v. Wright, 1 T. R. 387, Buller, Justice,declares “that the action for use -and occupation is founded in contract, and unless this be a.contract express or implied, the action could not be maintained, as was held by Lord Mansfield in the case cited at the bar, of Carmur v. Mercer, which was tried about two years ago.” The same principle is ruled in Smith v. Stewart, 6 Johns; 46. In the case of Henwood v. Cheeseman, 3 Serg. and Rawle, 500, it is'said by the Supreme Court of Pennsylvania, “If' the defendant occupied land by consent and permission of' the plaintiff, the jury may presume a promise, to paya reasonable rentagain, “the action for use and occupation is founded on privity of contract, not on privity of estaté.” In 2 Nott and McCord’s Reports,, 156, in the case'of Ryan v. Marsh, the law is thus laid down: “It was argued that a contract might be im-' plied, and certainly as long as the character of the act done by thp defendant was doubtful, a contract might.be implied; but when it is admitted that the possession was tortious, every characteristic of contract was excluded. No action for- use and occupation will lie, when possession has been adverse and tortious, for” such excludes the idea of a contract, which, in all cases of this action, must be express or implied.” ■

Authorities upon this point might doubtless be multiplied. We will add two others to those already cited, viz. the cases of Stocked v. Watkins’s administrators, 2 Harr, and Johns. 326; the opinion of the court on pp. 338, 339; and of Stoddert v. Newman, 7 Harr, and Johns. 251. The principles ruled in the authorities above referred to, appear to be strictly applicable to the case under consideration, and decisive of its fate. Upon an examination of the testimony, introduced by the plaintiffs, as set forth in •his four bills of exception, it cannot fail to be perceived, that if imports throughout no proof of a contract between the plaintiff and defendant, of a holding by the latter under the former, of any acquiescence in, or knowledge of title, in the plaintiff or of permission by him for the occupation of the defendant. So far from establishing these requisites for sustaining the plaintiff’s demand, it excludes each and all of them. This evidence proves beyond dispute, a possession and holding by the defendant under an agreement with Robbins, as trustee of Swayne, an insolvent debtor; páyment of rent to this trustee in pursuance of such agreement, until a claim was interposed on behalf of the United States, as creditors of the insolvent debtor; it further proves a failure or forbearance by the plaintiff to assert any interest or right to the subject, anterior to .the year 1839, about the time of the institution of the plaintiff’s aetion, and sp far as a negative is capable of proof, a total ignorance on the part of .the defendant of any right of the plaintiff, either to the rents or to the subject from which they were to issue.' Upon the above view of the evidence as disclosed in the second, third, fourth, and fifth bills of exceptions, we hold the opinion of the Circuit Court to be correct ; it is therefore affirmed.

ORDER.

This cause came on to be heard on the transcript’ o,f the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria, and was argued by counsel. . On consideration whereof, it is now here ordered and. adjudged by this court, that the judgment of the said Supreme Court in this cause be and the same is hereby affirmed, with costs.


author: Mr. Chief Justice TANEY

text:
    Charles McKnight, Appellant, v. Lawrence B. Taylor, Trustee, &c.
    There must be conscience, good faith, and reasonable diligence, to call into action the powers of .a court of equity.
    In matters of account, where they are not barred by the act of limitations,, courts of equity refuse to interfere, after a considerable lapse of time,' from considerations of public policy, and from, the difficulty of. doing entire jus-, tice, when the original transactions have become obscure by time, and the-evidence'may be lost.
    This was an appeal from the equity side-of the Circuit Court of' the United States for the District of Columbia, holden in and for the.county of. Alexandria. .
    The facts in the case are fully stated in the opinion of, the court, to which the reader is referred.

      Semmes and Jones, for the appellant.

      Lee and Bradley, for the appellee.

      Semmes, for the appellant,
    contended that the decree of the court below was-erroneous, and should be reversed for-the fol-lowing,:among other reasons.
    1. Because there is no equity in-the bill or supplemental bill, and no case made for the interference of the court.
    2. -Because it decrees debts to be paid which the record shows has already been paid.
    S. Because it decrees the debt mentioned in the schedule as that due to Thomas-Janney and Co., to be paid to John Lloyd, who claims by virtue of various assignments named in said decree.
    4. Because it did not allow the appellant, a lien on or pro rata dividend out of the trust fund for the debts paid off, apd assigned for his-use, as shown'in the record.
    5. Because the court should Have presumed payment of the debts, in the absence Of all evidence showing them still due, after the .great lapse of time j or, if the court believed them still unpaid, they should have présumed an. abandonment of the claims by the creditors from their laches and the lapse of time; and therefore erred in decreeing relief to claimants whose demands were-stale, and who had knowingly slept upon their rights:

      6. Because the court should, for like reason, have presumed a performance of the covenant contained in the deed of trust executed between the appellant and Robert t. Taylor, for payment of the schedule debts — a release of the same, or that it was abandoned or extinguished.
    7. Because, if the said covenant was any part of the grounds or foundation-of their decree, the court erred in decreeing upon it in favour of parties between whom and the covenantor there was no privity; or, if there was any such privity, then, because the covenant was a personal matter, disconnected from the trust, and upon which the' remedy was by action at law; and more especially as there was no prayer in the bill for an. enforcement of the covenant.
    8. Because, if it was right under the circumstances to give any r,elief at all, the court should have decreed only the principal of the debts found due, and should, on account of the laches, have refused to allow any interest, on .the principle on which the account of profits was denied in Acherly v. Roe, 5 Ves. 565; or, upon the principle of Pickering v. Lord Stamford, 2 Ves. jr. 212, 581, interest should have been allowed only from the filing of the bill; the plaintiffs having gone into equity for general relief, and not for an enforcement of the covenant in the deed, on which there was full remedy at law.
    On the subject of the lapse of time, he cited 5 Leigh, 350; 6 Wheat. 481; 4 Johns. 1; 9 Peters, 416; 5 Leigh, 381; .7 Johns; 556; 2 Nott and McCord, 360; 9 Leigh, 393; 2 Heldwin, 477; Cowper, 109.

      Bradley, for appellee.
    As to lapse of time: there was a covenant between McKnight and Taylor, the consideration of which was the forbearance of creditors to sue, and they did forbear. 3 Swanston, 417. As to the presumption of payment: it is not well settled whether it is a matter of fact or law. Hughes v. Edwards, 9 Wheat.; same case in Cond. Rep. 654, 655; Elmendorf v. Taylor, 10 Wheat. 152; same case in Cond. Rep. 55, 56. See also, 10 Leigh, 284.

      Jones, for appellant.
    A decree must.follow the equity of the bill, but the court below has not done it. Hellary v. Waller, 12 Vesey, settles the rule that a court of equity will put itself in the position, of a court and' jury. The trustee, here, had full legal power to sell without coming to equity, and courts act on different principles when called upon to lend their aid, than when acting regularly. Ambler, 645. The creditors, generally, do not answer or take any notice, but appear to have abandoned the claim. Only one acts. This, circumstance ought to be coupled with the staleness of the demand.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This is an appeal from the decree of. the- Circuit Court of the District ’ of Columbia, for the county of Alexandria, sitting in chancery.

It appears from the record, that the appellant Charles McKnight, by deed bearing date the 29th day of September, 1813, conveyed to Robert I. Taylor, certain real property described in the deed, situate in the town of Alexandria, upon trust, to permit the appellant to occupy the same, and to receive the rents and profits without account, until a sale should become necessary, under the terms of the deed; and if he, the said Charles McKnight, should not on :he 1st day of April, 1818, have paid the several creditors named in a schedule, annexed'to the deed, the debts thérein mentioned with interest, then the said Robert I. Taylor should, on notice of such. default from any one of the said creditors or his representatives, proceed to sell the said property, or so much thereof as might be necessary, for cash at public auction, after giving three weeks notice of the time and place of sale, by advertisement in any paper published in Alexandria, and after defraying the reasonable expenses of sale, discharge the aforesaid debts with all interest due thereon.

The bill in this case was filed in August, 1837, by Robert I. Taylor, the trustee above mentioned, ar-d after setting forth the deed of trust, proceeds to state that Thomas Janney and Co. (who are named as creditors in the schedule) had assigned the debt due to them, to Joseph Janney in trust for the payment of their creditors; and that Joseph Janney, under a provision in the deed of assignment, afterwards transferred the same to George Johnson, in trust for the same purpose; and that the complainant had been required by the said George Johnson, and by certain other creditors named in- the schedule, (hut who are not named in the bill,) to sell the-premises, so as aforesaid conveyed to him in execution of the. trust; that the debts mentioned in the schedule were due from McKnight, the appellant, and John Stewart, who had been trading under the firm of McKnight and Stewart, and that no part of any of them had been paid. -The bill further states that before the execution of this deed, the-appellant' had, on the 30th of April, 1808., conveyed a part of the same premises to a certain Jacob Hoffman, in order to secure Thomas Janney, against his responsibility as endorser on two notes discounted at' the Bank of Alexandria and the Bank of Potomac; and that the said notes had' been long before paid, although .the property had not been re-conveyed' to the appellant: that McKnight was giving out that the debts in the schedule had been all paid, and threatened to withhold possession if the trustee-proceeded to sell 'under the deed, and that from these declarations of the appellant, and the outstanding legal title, tbe sale could not be made without injury to the interests of the parties concerned, without the aid of the Court of Chancery; and prays process- against the heirs of Hoffman, (he being dead,) and against McKnight and Stewart, and all of the creditors named in the schedule; and, among the rest, against George Johnson, in order that they may be compelled to appear and answr the several matters charged in the .bill. • A supplemental bill was afterwards filed, in order to make additional parties, and for other purposes; but in the view which the court take of this subject it is unnecessary to state its contents. The creditors secured by the'deed of trust are eleven in number, their respective claims varying in amount: the lowest being $85 72, and the highest-$1227 19. The trustee,-Robert I. Taylor, is himself one, and the debt due him stated to be $214.54.

To this bill Hugh-Smith, one of the creditors, whose debt was $15.1, answered, saying merely that his claim is still due.

James Carson, another of the creditors'" whose claim • was $85 72, answered and admitted that he had been paid.

The heirs of Hoffman also answered, and admitted, that the notes intended to be secured by the conveyance to their father, had been paid; and submit themselves to such decree as the court may deem just.

. The answer of the appellant, só far as it is material to set forth its contents, statés that the claim of Thomas Janney and Co.; which was $1022 6-9, was due upon open account,, and that ¡thé respondent was entitled .to a deduction of considerably more than $300 for money overpaid by mistake on the settlement, of. a ■ former account, but that he cannot'find a memorandum in writing to establish it, which he knows did once exist; and that after the execution of the deed of trust he transferred to Thomas Janney, on account of this debt, the note of a certain Jonathan Mandeville, for $467-08, due'on the 20th of January, 1815, which, from what Janney himself afterwards told him, he believes to' have ■béen paid;-and in respect to this item, his answer is responsive to the bill. He also specifies several creditors whose, claims he states that'he 'has páid, and among them the trustee,. Robert I. Taylor, and he sets forth-the manner in which'he satisfied that debt. ' Some of the creditors mentioned in the schedule are not, however, named in his answer; and he mentions three whom he admits that he has not paid, and makes the sanie-admission as to the small balance which would be due to Thomas Janney and Co,, after deducting the credits claimed by him as above stated; but he does not admit that these debt's are yet due, and insists that there is every reason to believe that they were paid by his former partner, Stewart, who -was equally liable with himself-; or, if not paid, that it was owing to the negligence and laches of the creditor's in not proceeding against him; the respondent alleging that Stewart, after the dissolution of the partnership with him, removed to Martinsburg, in Virginia,'about the" year 1812, where he carried on a prosperous business until his death in 1825, and was fully able to pay these debts if the creditors had used proper diligence to recover them; and he relies upon the lapse of time as a good defence upon principles of equity against this proceeding.

There is a-general'replication to .this answer; and it áppears in evidence", that upon the dissolution of the partnership of McKn-ight and Stewart, in 1812, a notice of it was published in the newspapers, stating that EdcKnight was authorized to collect the debts and settle the business of the concern. And a witness was also examined on the part of tne complainant, who states,- • that from a perfect knowledge of the pecuniary situation of Stewart, from 1812, until his death, he knows that he was insolventwhen he removed from Alexandria to Martinsburg, and that he continued and died insolvent; that he had no property he could call his own, and out of which an old debt of $100 or $200 could have been made.

It also appears in evidence, that Thomas Janney and Co., on the 30th of April, 1823, assigned all their effects and claims to Joseph Janney, in trust to pay their debts. That by virtue of a provision contained .in this deed of assignment, Joseph Janney afterwards, on the 10th of August, 1829; renounced the further execution of the trust, and transferred all tire property and claims that remained .in his hands to George Johnson, in trust for the same purposes for which they had been conveyed to him. And on the 14th of November, 1837, after this hill was filed, Johnson sold and assigned all the effects and claims which he then held as trustee of Thomas Janney and Co., to John Lloyd, of Alexandria; ■and on the same day executed a power of attorney in his favour, authorizing him to receive whatever might be recovered in this suit, or on any other claims of Thomas Janney and Co., and to compromise and settle them in any manner he might think'proper. The consideration paid by Lloyd N not stated, nor indeed does it appear by the assignment, that any consideration whatever was paid. ' The deed of assignment merely states that Johnson had sold these effects and claims to Lloyd, and authorizes him to collect, compromise, and settle them.

The -bill was taken' pro eonfesso against all of the creditors who had not appeared and answered, and the Circuit Court proceeded on final hearing to decree that, the appellant should pay the full amount of the debts mentioned, in the schedule, with interest, by a cértain day specified in the decree, except those of Joseph Janney, John Leo, and James Carson, which were admitted to have, been paid; and in default of payment by the day limited in the decree, the property was directed to be sold and the proceeds applied to discharge the aforesaid debts.

This is the case in its material parts, as presented in the record". The omission of the creditors tq-appear and answer, upon which the bill as against thém was taken'pro eonfesso, was not, of com-se, regarded by the Circuit Court as. establishing their claims. The decree, we presume, proceeded upon the ground that the creditors mentioned in the schedule were entitled to the aid of the court to enforce the payment, of the whole amount originally, admitted to be due, unless the appellant could show by legal proofs that the debt had been since discharged.

Now, of the eight creditors in whose favour the decree was ' made, five of them seem to have.taken no concern in these proceedings, and for aught that appears in the record, may not have known that it was pending; certainly there is nothing to show that they ask or desire the interposition of the court in the manner sought for by the bill. Of the remaining three, one has answered and stated that his claim is still due, but does not ask for a sale, nor say any thing that sanctions, on his part, the proceedings of the trustee; and the trustee himself does not ground the bill upon his own claim, nor allege its nonpayment as the foundation of the suit, but places it entirely upon the notice and request of George Johnson and other creditors, and his own duty upon such an application to proceed to sell according to the provisions in the' deed of Crust. But, although the application is alleged to be made by other creditors, as well as George Johnson, yet no other creditor has appeared to claim the execution of the trust; and, as they were all made defendants and called to answer, and have refused' or neglectéd to appear, the bill under the provisions of the deed must be regarded as founded exclusively upon the application of the creditor named in it; and as instituted and conducted without the co-operation or request of any other creditor.

In relation to this claim, it appears that nineteen years and three months were suffered to elapse, before any application was made for the executioii of the trust by which it had been secured. No reason is assigned for this delay; nor is it alleged to have been occasioned in-any degree by obstacles thrown in the way by the appellant. As. the record stands, it would seem to have been thp result of mere', negligence and laches. The original creditors were in business ten years after the deed was made, and five years after the expiration of the credit which it gave to McKnight and Stewart. And as they became insolvent in 1823, it must be presumed that in the last-mentioned period they were themsélves pressed for money. The property is situated in the town of Alexandria, where the Iaws.of Virginia have been adopted b.y Congress; and the trustee, under these laws, had an undoubted right to sell, upon the application of any creditor, as soon as default was made, without asking the'interposition of the Court of Chancery. Such delay, under such circumstances,.by the original creditors, followed by fourteen years more by the assignees who afterwards had charge of this claim, can perhaps hardly be accounted for without' supposing that this debt had been nearly, if not altogether, satisfied in the manner suggested in the answer of the appellant. If, indeed, the suit had been postponed a few months longer, twenty years would have expired, and in that c.ase,.according to the whole current of authorities; the debts in the schedule would all have been presumed to be paid. But we do not found our judgment upon.the presumption of payment. For it is not merely on the presumption of payment, or in analogy fo the statute of limitations,-that a court of chancery refuses to lend its aid to stale demands. There must be conscience, good faith, and reasonable diligence, to. call into action the powers of the Court. In, matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere after a con- • siderable lapse of time, from considerations of public policy, and from the difficulty, of doing entire justice when, the original .trans- ' actions have become obscure- by time, and the evidence' may be lost. The rule upon this subject must be considered as settled by the decision of this court in the case of Piatt v. Vattier, 9 Peters, 416; and that nothing can call a court of chancery into activity but conscience, good, faith, and reasonable diligence ■ and where these are wanting, the court is-paési-ve and -does nothing; and therefore, from the beginning of equity jurisdiction, there was always a limitation .of suit'in that court,.

If certainly cannot be said that there, has been any thing like reasonable diligence by any. of-the creditors in the ease before us; ■ and at this distance of time, when-many, of the. parties-originally concerned are dead, we- should hardly do justice between tbe.m if we required the appellant to, pay the whole amount stated in the schedule, unless he can establish the credits he claims hy legal proofs. In fact, but one of the creditors appears to'have called for this proceeding, or to- have sanctioned the institution of this suit ;■' and the party' who now holds that pl'áim and .seeks to enforce it, has obviously no equitable .ground upon which he can ask for-a relaxation of thé rale in his' favour.' When the assignment was made to him he knew it was a disputed claim in actual litigation at the time, which had been allowed to sleep for almost twenty years, and for which it does not even appear that he paid any valuable consideration. And as to all of the creditors named in the schedule, they had originally an easy and simple remedy in their own hands, to be used or not at their own plea-: sure; and if they have suifered it'tó be lost by the lapse of time, their own negligence can give them-no right to call into action the powers, of the Court of .Chancery.

The decree of the Circuit Court must therefore be reversed, and the bill dismissed with-eosts'.

order.

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 Alexandria, and was argued by ’counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the-said Circuit Court in this cause 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, with directions to dismiss-the bill of the complainant with costs.