4 Pet. 190
7 L.Ed. 828
APPEAL from the district court of the western district of Virginia.
The appellees, who are citizens of Maryland, filed their bill in the court of the United States, for the western district of Virginia, in which the material allegations set forth are, that on the 22d of June 1809, Grizzle Taggart, mother of John Taggart, conveyed to William Copeland Goldsmith and James Caldwell, all her estate for the uses and purposes mentioned in the deed exhibited with the bill. A part of the estate so conveyed consisted of a debt due to the said Grizzle from Keller and Foreman of Baltimore, which was secured by a mortgage on valuable real property, called the Salisbury Mills.
That about the year 1817, Caldwell, who was the nephew of Grizzle, importuned her and her son John and his wife, to consent to permit him to receive the money due on the mortgage, and to use it in the purchase of an estate called the White Sulphur Springs, situate in Greenbrier county, Virginia, and which belonged to the heirs of Michael Bowyer; and to induce them to yield their assent, he represented that estate to be very valuable, and promised that he would encumber it (when purchased) by a mortgage to secure the money which he should receive from Keller and Foreman.
The complainants further state, that consent was accordingly yielded on the conditions proposed; in consequence of which Caldwell (who was then sole trustee, the other being dead,) received from Keller and Foreman the sum of fifteen thousand seven hundred and sixty dollars and seventy cents, in discharge of their mortgage, which he appropriated to the purchase of several shares of the copartners of the said Michael Bowyer in the said estate, or said therewith for some shares previously purchased.
Some time afterwards, as the complainants further allege, in order to satisfy Grizzle Taggart of the propriety of his purchase, and that the security promised would be ample, Caldwell brought her from her residence in Baltimore to the White Sulphur Springs. That she returned about the beginning of October 1817, well pleased with the property; that Caldwell promised to execute the mortgage immediately after her return, but that in a very short time Grizzle departed this life, without it having been done.
A few days after this event, Caldwell, secretly and unknown to the complainants, as they state, executed a mortgage in favour of Jeremiah Sullivan and others, on his interest in the White Sulphur Spring estate, to secure the sum of twenty thousand dollars. A second mortgage, to secure the same debt, was executed by Caldwell, bearing date the 15th of September 1819, and both were duly recorded (and are in the record). It is stated that some defect unknown to the complainants, was supposed to exist in the mortgage of the 24th of October 1817, which was the reason for the second being executed.
After the death of Grizzle Taggart, her son, John Taggart, as the complainants state, applied to Caldwell to execute the mortgage which he had promised on the White Sulphur Spring estate. He then informed the said John, that he had executed the mortgage of the 24th of October 1817, before mentioned, on which the said John upbraided him with his breach of trust. Caldwell then promised to extinguish the incumbrance out of the annual profits of the estate, and to make provision for the debt created as before mentioned. Nothing however was done; the complainants being without any written evidence of their claim until the 9th of September 1823, when Caldwell executed a paper, exhibited with the bill, acknowledging the sum of fifteen thousand two hundred and sixty dollars and seventy cents to be due on account of principal, and two thousand nine hundred dollars on account of interest.
The bill further states, that the mortgagees, Jeremiah Sullivan and others, instituted a suit to foreclose the equity of redemption; but before the case was brought to a hearing, a certain Richard Singleton purchased the mortgage and obtained a transfer thereof; that to secure the money paid for the mortgage and other money advanced, he obtained a deed of trust from Caldwell on his interest in the estate, that is four-sevenths obtained by purchase, and one-seventh in right of his wife, who is a daughter of Michael Bowyer.
The complainants further state, that the profits of the said estate are great; but that such is the imprudence of Caldwell that he has never paid any part of the principal or interest on the mortgage, either before or since Singleton acquired it; that he is incurring other large debts, and that he has no other means to pay the money due to them except his interest in the White Sulphur Spring estate. They insist that they hold an equitable lien on that estate so far as Caldwell's interest extends; and they pray that it may be subjected to their debt; that another trustee may be appointed to execute the trust created by the deed of the 22d of June 1809, and for general relief.
To this bill James Caldwell and his wife filed a joint answer, sworn to on the 30th of September 1827, the material statements of which are the following:
He admits the execution of the deed of the 22d of June 1809; though he states that he was not apprized of its existence until after it was recorded. He admits that he received from Keller and Foreman the sum of fifteen thousand seven hundred and sixty dollars and seventy cents, due to Grizzle Taggart, and embraced in the deed executed by her; but he alleges that he was her debtor to that amount, and that to secure the debt he had given a deed of trust to Nicholas Brice, as trustee. That at his request, Grizzle and her son John consented to release his deed of trust, so as to enable him, Caldwell, to sell the property (Salisbury Plains) to Keller and Foreman, which was accordingly done, and he received the money. That the release exhibited with the answer was executed by Nicholas Brice, Grizzle Taggart, John Taggart and Mary his wife, when he was not present.
He alleges that Brice agreed, on his behalf, without consulting him, that the debt due from him to the said Grizzle, or a part thereof, should be vested in bank stock, and that the agreement and instrument of writing mentioned in the release contemplated that object; that he never executed any such writing, though he was informed before the delivery of the release of the proposition to invest the money due from him in bank stock, and refused to accept it on that condition, of which the parties interested were informed; but that the release was afterwards, by their consent, or without objection from them, delivered. That he was unwilling to accept the release on the condition proposed, because his object in desiring it was the use of the money.
He alleges that the money which he obtained from Keller and Foreman was applied to the payment of his debts, and not to the purchase of the White Sulphur Springs, or any interest therein, or any thing due therefor.
He denies that it was his object to invest the money obtained by him in the White Sulphur Spring property; or that he obtained the release by any such representation, or by any promise to give an incumbrance thereon. That he acquired the White Sulphur Spring property with other funds, and never contemplated securing the debt due to Grizzle Taggart on that property; but expected to pay it out of a large debt due to him from another person, which he failed to realize.
He admits that Grizzle Taggart visited the White Sulphur Springs; that he returned with her in 1817; but denies that she was brought there with the views mentioned in the bill. He says he does not recollect, and has no reason to believe that a single word passed between him and her in relation to his giving a mortgage or other lien on that property, either during the said visit, or at any other time.
Caldwell denies that there was any stipulation between him and John Taggart and Mary his wife, or either of them, that the debt should be secured by a mortgage on the White Sulphur Spring property. He states that he does not recollect that the said John ever upbraided him with a breach of trust. He admits that he had a conversation with John in 1819, upon the subject of his giving the mortgage to secure other persons, and that John Taggart then said, that he ought, in the first place, to have secured the debt in which he was interested. In reply to which, he stated that he was willing to secure that debt by a lien on the property, as soon as the other was extinguished, which he supposed he would be able to do after the lapse of some time. Previous to this, Caldwell states that he has no recollection of having conversed with John Taggart on the subject of giving a lien, though the fact of his having executed the other mortgage was known to John as early as 1817.
He states that he does not believe that John Taggart ever thought that he had deceived him. That there was no privacy in giving the mortgages of the 24th of October 1817 and 15th of September 1819, which he admits he executed to secure the same debt. As evidence to show that John did not believe he had been deceived, he exhibits a letter from him which is in the record.
He admits the execution of the paper exhibited with the complainants' bill, bearing date the 9th of September 1823; the pendency of a bill to foreclose the equity of redemption on the mortgage of the 15th of September 1819; the subsequent purchase of Richard Singleton, and the execution of a deed of trust for his benefit, as stated in the bill.
James Caldwell then proceeds to state in his answer, the interest which he has in the White Sulphur Spring property. 1. That his wife is entitled to one-seventh, as one of the heirs of Michael Boyer. 2. That she is entitled to another seventh, by virtue of a conveyance made to her by her brother, John Bowyer. 3. He claims one-seventh, by purchase, from William Bowyer, to whom he paid only one hundred dollars of the purchase money. The contract is referred to, and filed among the papers of this court. He states that William Bowyer is dead, having made a will which is exhibited and copied into the record. 4. He claims another seventh by purchase from William Bedford, who is stated to have purchased the interest of Thomas Bowyer, a son of Michael. That for this interest he stands indebted six thousand dollars, with interest, for which a deed of trust was executed on the property purchased, a copy of which is exhibited; and a suit has been brought to enforce this lien. 5. He claims the interest of James Bowyer, another son of the said Michael. The remaining two shares, he states, are in Frances Bedford and Elizabeth Copeland, daughters of Michael Bowyer.
Caldwell insists, that if, contrary to his expectation, the complainants should establish a specific lien, on any part of the said property, that it can only extend to such interests as he owned when such lien originated; and that it ought not to be extended to defeat the rights of others, or their equitable lien for purchase money due to them from him: and he requires that their rights shall be precisely ascertained and adjusted, before any effort shall be made to enforce such lien in favour of the complainants, and that partition shall be made according to the rights of the parties.
Caldwell further states, that an indenture was executed by him and his wife, and the other persons interested, by which it was agreed that all the lands and tenements of which Michael Bowyer died seised, should be divided between the parties, by commissioners chosen for that purpose, except two hundred acres, including the White Sulphur Springs, buildings, &c. which should be held in common; that this partition has never been made. He insists that if the complainants should establish the lien demanded by them, that partition should be made according to said agreement, and his part in the two hundred acres first subjected.
He admits that the White Sulphur Spring estate is valuable; but regrets that the profits are not as great as estimated by the complainants. He deems it unnecessary and irrelevant to exhibit a schedule of his receipts and expenditures, or an account of his management and history of his domestic affairs. He states that he is desirous of paying all the debts which he owes, and particularly that claimed in this case, the justice of which he has never denied; that he trusts an apology will be found for not having effected that sooner, in the embarrassed situation of his affairs. Such was the condition of the White Sulphur Spring property when he obtained possession, that he has been compelled to incur many expenditures to make it at all productive. He has well founded hopes, that if he is suffered to continue his exertions, that in a few years he will be able to do full justice to all the world; but that the interests of his creditors require that he should not be destroyed by an unmerciful pressure of their demands.
Caldwell objects to the measure of relief sought by the complainants, as not being warranted by the laws of the land, the principles of equity, or the dictates of justice. So far as they set up any pretended parol agreement, he insists that it is within the operation of the statute of frauds and perjuries; of which he prays the benefit, as if it had been specially pleaded. Caldwell moreover states, that he feels it his duty to protect the trust fund committed to his care from any appropriation not contemplated by the donor. He denies the right of the complainants to take that fund from the control of the trustees; or to exhaust or expend the principal; and says that the interest, or profits only, can be applied to the use of the cestui que trusts.
The defendant, the wife of James Caldwell, states that her interests in the White Sulphur Spring property are, in some respects, different from those of her husband; and that she is advised that no agreement made by him, in which she has not concurred, in the form prescribed by law, affects her rights, derived by descent, devise, or conveyance. She refers to a copy of the deed (which is not in the record) executed by her brother John Bowyer, to show that she is entitled to the sole and exclusive use and benefit of his share. As to the interest of her deceased brother, William Bowyer, she contends that she is entitled to the same, or the purchase money thereof, during her life, in the same exclusive and separate manner; and that after her death, the property passes to her children and nephew. She refers to the agreement between her husband and the said William Bowyer, to show that the latter had the privilege to revoke the contract, if the purchase money should not be paid; which privilege she says passed to her by the will of the said William, which privilege she claims to exercise, so far as the same may be necessary for her complete protection. She prays that she may be permitted to answer separately, or that her rights may be investigated and decided, as if she had done so. She says she has no knowledge of the justice of the debt claimed, and how it originated.
Depositions were taken in the district court, establishing certain facts which are sufficiently referred to in the opinion of this court; and when the cause came on to a hearing, the court made the following decree:
This cause came on to be heard on the bill, answers, exhibits, and examination of witnesses, and was argued by counsel. On consideration whereof, and for reasons set forth in a written opinion filed among the papers in this cause, it is adjudged, ordered and decreed, that the defendant, James Caldwell, do forthwith execute a proper deed of mortgage to Silas H. Smith, who is hereby appointed trustee for that purpose, providing for the annual payment to the said trustee, of the legal interest on the sum of fifteen thousand seven hundred and sixty dollars and seventy cents, the amount of the sum withdrawn by the said defendant from the trust fund; to commence this day; to be paid by the said trustee to John Taggart during his life, and on his death, that the principal, with any interest that may accrue after the death of the said John, to be paid to the children of said John and Mary his wife, according to the provisions of the deed executed by Grizzle Taggart on the 22d of June 1809, and filed among the papers in this cause. And it is further adjudged, ordered and decreed, that the said defendant pay unto the plaintiff, John Taggart, the sum of seven thousand five hundred and thirteen dollars and forty cents, being the amount of interest now due on the said sum of fifteen thousand seven hundred and sixty dollars and seventy cents; and in case the said defendant shall make default in the payment of the said sum of money, so that the same or any part thereof shall remain due and unpaid on the 5th of August next, then it shall be the duty of the marshal of this court to proceed to sell all the right, title and interest which the defendant may have in the White Sulphur Spring estate, in the county of Greenbrier, for ready money; having first advertised the time and place of sale, in some newspaper published in Richmond, Staunton, and Lewisburg, for thirty days before such sale, and that he report his proceedings to this court. And it is further adjudged, ordered and decreed, that the said defendant pay unto the plaintiffs their costs expended in the prosecution of this suit.
From this decree the said James Caldwell prayed and obtained an appeal to the supreme court of the United States.
The case was argued by Mr Wirt for the appellant, and by Mr Sheffy for the appellees.
Mr. Wirt contended, 1. That the necessary and proper parties had not been called before the district court when the decree was pronounced.
2. That as to those who had been called before the court, the cause had not been matured for a decree, when the same was pronounced.
3. That the decree is inconsistent with the relief prayed for by the bill.
4. That the decree was not justified by the evidence in the cause.
5. That even if such a decree could have been justified by the general evidence, it would only have been after the prior liens on the property had been marshalled, by the report of a master commissioner, and the remaining interest of Caldwell in the property precisely ascertained and fixed by the decree.
Mr Sheffy, for the appellees, argued; that there is no error in the decree injurious to the rights of the appellant.
Mr Justice JOHNSON delivered the opinion of the Court;