Summary
This was an appeal from the Circuit Court of the United States for East Louisiana, sitting as a court of equity.
On the 1st of August, 1837, Clayton Tiffin and Lilburn P. Perry received a deed for a tract of land on the western bank of the Mississippi River, .about five miles above the town of Vicksburg, and containing'six hundred and forty-four acres.
On the 10th of April) 1838, Tiffin and Perry sold the same land, together with a large number of negroes, to. Samuel Anderson, for the sum of seventy-five thousand, dollars. The sale was stated to be for cash. But in fact the payment was to be made in this way: —
Funds supposed to be as good as cash, '. . $ 35,000
Notes secured by mortgage, . . . 40,000
$75,000
John M. Perry, the father of Lilburn P. Perry, and father-in-law of Tiffin, became the agent to receive these funds. The $35,000 was again divided into two classes, viz., a debt of $ 13,000, which was due to Anderson by Lilburn P. Perry and John M. Perry, and which debt became thus extinguished, and a note for $ 18,282.65, given by Austin, Ragan, and Bohannon, payable to Anderson on the 1st April, 1839.
The sum of $ 35,000 being thus arranged, the balance of $ 40,000 was not provided for until some time afterwards, viz. on the 1st of March, 1839, when Anderson gave the following notes: —
$ 13,333^. On or before the first day of January, 1842, we promise to pay Lilbourne P. Perry the just and full sum of thirteen thousand three hundred and thirty-three , dollars, value received, for land and negroes, purchased of Clayton Tiffin and Lilbourne P. Perry; for the true payment of which we bind ourselves, our heirs, &c., firmly by these presents. Given under our hands and seals, this the first of March, 1839.
Samuel Anderson, [seal.]
Ne varietur, July 9th, 1839.
Richard Chs. Downes, [seal.]
J. judge parish Madison, Louisiana.
(Indorsed.)
For value received, I assign the within note to Clayton Tiffin, October 22d, 1839.
L. P. Perry,
For his agent J. M. Perry.
216. Filed 23d Nov., 1839.
John T. Mason, Clerk.
$ 13,333~ f whomsoever may become the legal holder and owner of the above notes, of. the property, land, and slaves, which had been conveyed to Anderson by the deed from Tiffin and Perry.
On the same 9th of July, Anderson executed another mortgage, reciting that he was justly indebted to Nelson F. Shelton, of Goochland county, in the State of Virginia, in the stun of $ 45,550, and mortgaging the same property to secure it, — “it being understood that this mortgage is posterior to that granted by’the said Samuel Anderson in favor of Lilburn P. Perry on this day.” This sum of $ 45,550 was divided into two notes, payable on the 1st of January, 1845, and 1st of January, 1846. Whilst upon the subject of this last mortgage, it may be as well to say that another was substituted for it, With' the consent of all parties, on the 17th of March, 1840, in which Robert Anderson, of Yirginia, was also included, as a • creditor to the amount of $ 3,000. This, like the other, referred to the prior mortgage given to Perry.
It is proper now to go back a few months in the order of time.
In January, 1839,-Hillery Mosely and William W. Bouldin, citizens of Yirginia, filed a petition in the Circuit Court of the United States against John M. Perry and Lilburn P. Perry, alleging that the Perrys were indebted to the petitioners in the sum of f> 7,560, upon a promissory note. As the proceedings Upon this suit, as far as the appearance of Lilburn P. Perry was concerned, were drawn into question, it is better to go through with this branch of the case entirely before recurring to any other part of it. On the 12th of January, an .order of court was directed to Lilburn P. Perry, commanding him to file his answer within ten days, to which the marshal made the. following return : —
“ Defendant, L. P.. Perry, could not be found, after diligent Search and inquiry. Returned Feb. 23, 1839.
“ J. P. Walden, Deputy Marshal."
A writ of arrest was then issued, directing the marshal to seize the bodies of John M. -Perry and Lilburn P. Perry, and confine them till they should give security not to leave the State without permission of the court, to which the marshal made the following return : —
Marshal's Return.
Received 12th January, 1839 ; and, on the 18th same month, arrested and took defendant, John M. Perry, into my custody, from whence he was released by giving bond, with Z. H. Rawlings, Charles Johnson, and H. Lewis, as sureties, in the parish of Madison, 450 miles from New Orleans, in the Eastern District of Louisiana; which bail bond is .herein returned ; and Lilbourne P. Perry could not be found, after diligent search and inquiry, and executing this writ in all other things as the law directs. Returned February 23d, 1839.
(Signed,)
J. H. Holland; Marshal.
After this, B. A. Crawford, calling himself “ attorney for defendants,” filed an answer for John M. Perry and Lilburn P. Perry, and the cause regularly proceeded to trial, Mr. Crawford attending to it .in all its stages as. attorney for both defendants. In June, 1839, it was tried, and the jury found a verdict for $ 7,560. In July, a fi.fa. was issued, the return to which was, “ no property.” In October, an alias was issued, to which the marshal made the following return, viz. : —
Marshal’s Return.
Received 23d day of October, 1839, and on the same day made demand of the amount'of the within ji. fa., at the residence of the within-named defendants, -John M. Perry and Lilbourne P. Perry, which was refused. I seized, on the 23d day of November; 1839, a debt due by Samuel Anderson to the within-named Lilboume P. Perry, for forty thousand dollars. There was three notes given by said Anderson to said Perry, and mortgage on fifty , slaves and six hundred and forty acres of land, to receive the payment of said debt to satisfy this fi. fa., and after advertising the said claim ten entire days from the last day of the notice of ¡seizure, and having appraisers appointed according to law, who appraised said property to be worth twenty-eight thousand dollars, cash valuation, on the 10th day of December, 1839, and then, on the' same day, offered the property for sale for cash, and repeatedly crying it, — there was no sale for want of a-bid to the amount required by law, and then I advertised the same property, and sold the same on the 4th day of January, 1840, on a credit of twelve months, when Samuel Anderson became the purchaser thereof for the sum of five thousand dollars, he being the highest and last bidder, for which he gave his hond, with John B. Bemiss and Aaron Lilly as security ; which bond I received, and the said bond is herewith returned; four hundred and thirty miles from New Orleans.
(Signed,)
M. Marigny, U. IS. Marshal,
By John N. Donohue,
Deputy U. S. Marshal.
In January, 1840, a capias ad satisfaciendum was issued against both the Perrys for the balance of the judgment after deducting the proceeds of the sale to Anderson, to which writ the marshal made the following return : —
Marshal’s Return.
Received Thursday, the 16th January, 1840, and after diligent search and inquiry, the within-named defendants, John M. Perry and Lilbourn P. Perry, could not be found in the Eastern District of Louisiana, — distance five hundred miles from New Orleans.
(Signed,) M. Marigny, U. S. Marshal.
By John N. Donohue,
Deputy U. S. Marshal.
State of Louisiana, Parish of Madison :
Whereas I, John N. Donohue, deputy United States marshal in and for the Eastern District of the State of Louisiana, by virtue of a writ of fieri facias issued from the Circuit Court of the United States for the Ninth Circuit in and for district and State aforesaid, at the suit of Mosely and Bouldin v. John M. Perry and Lilbourne P. Perry, I did seize a certain debt owing by Samuel Anderson to said Lilbourne P. Perry, as evidenced by three promissory notes, dated 1st of March, 1839, due in the years 1842, 1843, and 1844, each for the sum of thirteen thousand three hundred and thirty-three dollars, payable by said Samuel Anderson to the said Lilbourne P. Perry, which notes are “ paraphm ” on the 9th of July, 1839, together with the mortgage intended to secure said notes or' debts, recorded in the office of the parish judge of the ■ parish 'of Madison, in the parish and State aforesaid, in the record-book of conventional and legal mortgages, pages 27 and 28, where there are fifty slaves and six hundred forty acres of' land mortgaged to secure the payment of said notes and mortgage, seized as the .property of said Lilbourne P. Perry, and having exposed the same to public sale as aforesaid, on a credit of twelve months, when Samuel Anderson became the purchaser thereof at the price of five thousand dollars, for which he gave his bond with John B. Bemis and Aaron Lilly as his securities, payable in twelve months after the date thereof, all in due form of law, and which bond I hereby acknowledge to have received.
Now, therefore, know all men by these presents, that I, the said deputy as aforesaid, do, in consideration of the premises, and by virtue of the act in such cases made and provided, grant, bargain, sell, assign, and set over to the said Samuel Anderson, his heirs and assigns', all the right, title, and interest or demand, which the said Lilbo'arne P. Perry had, in and to the said debt, notes, arid mortgage, as before described, on the twenty-third day of November, A.'D. 1839, or at any time since, or to any part thereof; to hold the same to the said Samuel Anderson, his heirs and assigns for ever, hereby subrogating (as far as my act in the premises can) said Samuel to all the rights which the said Lilbourne P. Perry had or has, in, under, and to the aforesaid mortgage ; and the said Samuel Anderson being present hereby accepts this conveyance, and hereby specially mortgages-the above-described debt and mortgage to secure the final payment of the purchase-money, and all interest and-costs that may accrue in the premises.
Done and passed in .-the State and. parish aforesaid in presence of* John B. Bemiss and Aaron Lilly, competent witnesses, who have signed with me, said deputy U, S. Marshal, and Samuel Anderson, this 4th day of January, 1840 and said Samuel Anderson before signing.
(Signed,)
John N. Donohue.
Having traced this suit to its termination, we must turn our attention to another.
On the 23d of November, 1839, Lilbum P. Perry, by Martin, Richardson, and Stacy, his attorneys, filed ,a petition in the • District Court in and for the parish of Madison, setting forth Anderson’s indebtedness to him upon the' mortgage and notes above, described for $ 40,000, and stating his belief that Anderson was about to leave the State of Louisiana, and that he. would, unless restrained by the conservative process of the court, remove his property out of the State before the debt or any part of it became payable. He therefore prayed for a writ of attachment to be levied upon the plantation, crops, and negroes. At the time ox filing this petition; Perry filed also the original promissory notes, being three in number, for $ 13,333 each, payable 1st of January, 1842, ’43, ’44. With the petition was filed also the affidavit of John M. Perry, signing himself “ agent for L. P. Perry,” who was stated to be absent from the Staté of Louisiana.
The attachment was ordered and issued; but on the 27th of- November, John M. Pepry filed in court the following, viz. j —
Instructions.
Lilbourne P. Perry
v.
Samuel Anderson.
) > )
9th District Court. — An attachment.
I, John M. Perry, acting as agent for Lilbourne P. Perry, plaintiff in above-entitled suit, hereby direct Thomas B. Scott, of the parish of Madison, to return the writ of attachment now in his hands, in the suit of Lilbourne P. Perry v. Samuel Anderson, No. 216, on the docket of said District Court for the parish of Madison, to the clerk’s office of said court, without making any seizure or service on said writ of ¿ttachment; and I furthermore hereby direct said sheriff and clerk, that all proceedings had, ot to be had, under said attachment, be dismissed and discontinued.
(Signed,)
JOHN M. PERRY,
Agent for L. P. Perry, Clayton Tiffin, J. H. Martin, Geo. W. Grove.
Received on the 27th November, A. D. 1839, and served on the 28th of same month and year, by handing a certified copy of this ■writ" of attachment to the defendant, Samuel Anderson, in person, at the court-house in Richmond, and then was instructed by] the plaintiff in this case not to levy the attachment, but to return it to the clerk’s office, as will be seen by reference to the within order from, him. Service $ 2.
(Signed,)
T. B. Scott, Sheriff.
The cause remained in this condition for nearly a year, when Anderson filed the following answer, on the 18th of November, 1840 : —
Lilbourne P. Perry
v.
Samuel Anderson.
The defendant came into-court, and for answer to plaintiff’s petition in this suit filed, denies all and singular the allegations therein contained .and set forth. And for further answer thereto he says, that the notes mentioned and appended to plaintiff’s petition were executed and delivered to the petitioner, as set forth therein ; also, that the mortgage set forth was executed as set forth, and for the purposes as shown in said mortgage.
This defendant for further [answer] sets forth, that on the 23d day of November, A. D. 1839, John N. Donohue, deputy United States marshal, in virtue of a writ of fieri facias, then in his hands, which issued from the Circuit Court Of the United States for the Ninth Circuit, in the Eastern District of Louisiana, at the suit of Mosely and Bouldin against John M. Perry and Lilbourne P. Perry, seized upon the several promissory notes mentioned in, and appended to, plaintiff’s petition, and the mortgage' securing the same ; and afterwards, to wit, on the 4th day of January, A. D. 1840, proceeded to sell the said notes and mortgage, iff satisfaction of the said fieri facias of Mosely and Bouldin v. John M. Perry and Lilbourne P. Perry, when this defendant became the purchaser of said notes and mortgage, at the last and highest bid. All of which will more fully appear by the annexed copy of said marshal’s sale, which is herewith filed, and made part of this answer.
This defendant further shows, that, at the time of the seiz- ■ ure of the said notes and mortgage, they were due and payable to Lilbourne P. Perry only, and were his property at the time of said seizure by the deputy marshal as aforesaid. And defendant further shows, that the indorsement made on the back of one of the notes due on the 1st of January, 1842, was not madé at the date thereof, to wit, on the 22d of October, 1839, but was'made after the said seizure so made by the marshal as aforesaid ; and said assignment was only dated for the purpose of evading said seizure. All of which this defendant will be prepared to show on the trial of this .suit.
This defendant therefore shows and alleges, that by virtue of the purchase made by him at the marshal’s aforesaid, the said debt, mentioned and shown by said note sued on, and the mortgage securing, have been discharged and extinguished by confusion, and by this defendant’s becoming the owner of the said debt and mortgage.
Defendant therefore prays that plaintiff’s demand be rejected, and that the notes sued on and. mortgage may be decreed to be discharged and extinguished by the confusion created by said sale, as before set forth.
(Signed,)
John B. Bemiss, Att'y for def'ts.
On the 18th of May, 1841, the counsel of Perry made the following motion: —
L. P. Perry
v.
Samuel Anderson.
Plaintiff' by his undersigned counsel moves that this suit be dismissed at his costs.
Marti**, Richardson, & Stacy, Attorneys.
And on the 20th of May, 1841, the following was entered on the minutes of the court.
Lilbourn P.¿Perry
V.
Samuel Anderson.
Motion filed by plaintiff’s counsel to dismiss this suit at plaintiff’s costs.
Ordered, that the motion to dismiss be sustained, and that this suit be dismissed at-plaintiff’s cost, by consent of the parties. It is also ordered, that the three notes on file in said suit be not withdrawn therefrom by either party, unless upon an order of this court, previously and contradictorily rendered with the other party, after due notice to him; and defendant has leave to withdraw documents marked A, by leaving a certified copy with the clerk.
Motion.
Lilbourn P. Perry )
v. > 216.
Samuel Anderson. )
The defendant herein moves this honorable court for a rule on plaintiff,, to show cause why the notes sued on in above-entitled suit should hot be given up to him upon his leaving a certified copy of said notes, they being the property of said defendant, &c. Bemiss & Pierce,
Att’ys for defendants.
Judgment.
By reason of the law and the evidence in this case, and by reason of a motion of plaintiff’s counsel thereto, it is ordered, adjudged, and decreed, that judgment be rendered, as if nonsuit in this case, and that the notes herein filed be not withdrawn until' leave [be] obtained ; and that the plaintiffs pay the costs of suit, to be taxed. Read and signed in open court, this. 3d day of June, A. D. 1841.
B. G. Tenny, Judge 9th Dist.
The cause remained in this position for nearly a year, a bill having' been filed in the mean time, viz. on the 21st April, 1842, in. the Circuit Court of the United States, by Tiffin and Perry against Anderson and Shelton. This bill (which is the present case) will receive particular notice after the history of the proceedings in the Parish Court shall havé been finished. /
On the 11th of May, 1842, the following motion was made in the Parish Court: —
Motion to withdraw dotes filed, and it is ordered by the court, that L. P. Perry, the plaintiff in this suit, show cause on Thursday, the 19th instant, why the application should not be granted.
Answer.
Lilbourn P. Perry
v.
Samuel Anderson.
) > )
Ninth District Court, parish of Madison.
The plaintiff, Lilbourde P. Perpy, for cause against the rule taken upon-him by. Samuel Anderson,- why the notes sued on should not be withdrawn, and delivered up to said Anderson, shows, that the plaintiff has taken a voluntary nonsuit in the above cause, after issue joined, which issue has never been either; tried or decided; but that plaintiff now stands on the record as the owner of said notes, and he denies that said Anderson can have an -order of this court for the delivery to him of said notes until it shall have been decided in a suit, regularly brought for that purpose, that said Anderson is the owner of said notes, -which issue he denies can be tried upon the said defendant’s rule-to show cause ; wherefore, and for other reasons equally apparent, he prays that defendant may be discharged at his costs.
D, S. Stacy, Att'y for pl’ff.
On the 19th of May, 1842, the court overruled the above - exceptions, and prdered the trial of the rule to proceed; when a motion was made on the part of Perry for a continuance, and an affidavit of John M. Perry filed in support of the motion. The affidavit stated the absence of a material witness, Viz. Crawford, the attorney in the suit of Mosely and Boulding against John M. Perry, and Lilburn P. Perry,, and that he expected to prove by him that Jie, Crawford, put in an.answer-by mistake for the said Lilburn P. Perry, and that he, said Crawford, 'never had any authority from the . said Lilburn P. Perry, or from any duly authorized attorney, or agent of said Lilburn P. Perry, to put in said answer, or to make any answer or plea of any description whatever, or in any manner whatever to represent said Lilburn P. Perry in said suit. John M. Perry also .filéd the following affidavit: —-
“ John M. Perry, agent and attorney in fact of the plaintiff in the above-entitled suit, makes oath,.that he is the agent of Lilbourn P. Perry, the said plaintiff; that said Lilbourn P. Perry .is absent at- this time from the State of Louisiana, and he, said Lilbourn. P. Perry, resides in the State of -Missouri, and has resided in'said State of Missouri for several years past; that Lilbourn P. Perry has not been within the vicinity of the State of. Louisiana for nearly of quite two years past,, and that ever since the said Lilbourn P. Perry left the State of Louisiana, which affiant believes was in the fall of the year. 1838, and became a resident in the State of Missouri, affiant has been, as he is-now, the agent and attorney in fact of the said Lilbourn P. Perry.
“ Affiant swears, that not until Wednesday, the 18th day of May, in the year 1842, was affiant apprised that any such motion as that now before the court, made-on the part of Samuel Anderson, had been made, nor had affiant any knowledge, that any such motion was intended to be 'made on the part of. said Anderson, or any one claiming under him.
“ Affiant swears further, that Bennet A. Crawford, who resides in the city of New Orleans, is a witness whose testimony is material for the substantiation of the claims of the said Lilbourn P. Perry on the trial of said motion; that the said Lilbourn P. Perry cannot go safely to trial without the.evidence of said Crawford, and that he expects to prove by said Crawford such facts as will show the said Anderson has no title in and to said notes.
“ Affiant swears,-also, that since he was informed of .the existence of said motion, he has not had time to procúre the testimony of said Crawford, and that he cannot procure said testimony of said Crawford in time to go to trial at the present term of this court, but he, affiant, expects to procure said testimony of said Crawford só as to go to trial at the next term of this honorable court; and finally, that this affidavit is not taken for the purpose of delay, but only to obtain substantial justice;
“ John M. Perry.”
The court having ordered the trial of the rule to proceed, the counsel of Perry declined to make any further appearance, • and took a bill of exceptions, which was signed by the judge.
Anderson then offered in evidence the proceedings consequent upon the judgment in the case of Mosely and Boulding against John M. Perry and Lilburn P. Perry, the execution, the sale to Anderson, and the deed to him by the marshal, all of which have been stated above.
On the 19th of May, 1842, the court rendered the following judgment: —
“ On a rule to show cause. — By reason of the law and the evidence being in favor of the defendant, and against the plaintiff, Lilbourn P. Perry, and the defendant’s answer to the plaintiff’s petition, and the evidence being considered, and the defendant, Samuel Anderson, having proved to the satisfaction of the court, that he has, since the institution of this suit, become the true and legal owner of the three notes sued on, and the indebtedness set forth in plaintiff’s petition having been extinguished by confusion, it is ordered, adjudged, and decreed,, that the defendant, Samuel Anderson, have judgment in his favor, and against the plaintiff, Lilbourn P. Perry, and that said Samuel Anderson be decreed- to be the true and legal owner of the said three notes, the same being extinguished by confusion, and that the same be adjudged and decreed to be delivered up to said defendant, Samuel Anderson, and that the said L. P. Perry pay the costs of this suit, to be - taxed. Done and signed in open court, this 1842.
“ Thos. Curry,
District Judge, Ninth Judicial District.”
From this judgment an appeal was prayed and. granted to the Supreme Court of the State of Louisiana.
On the 3d of December, 1842, Anderson received the original notes from the clerk of the court.
We must now turn our attention to another suit.
It has been already stated, that on the 17th of March, 1840, Samuel Anderson acknowledged himself indebted to Nelson F. Shelton, of Yirginia, to the amount of $ 45,550, and to Robert Anderson, also of Yirginia, to the amount of $ 9,000; and that he mortgaged all the property which he had purchased from Tiffin ánd Perry to secure those debts, making this last mortgage posterior to that to Tiffin and Perry.
On the 3d of April, 1841, Nelson F. Shelton and Robert Anderson filed a petition in the Ninth District Court for, the State of Louisiana, holding sessions in and for the parish of Madison, setting forth the mortgage, and praying that the sheriff might be ordered to seize and sell, for cash, so much of the mortgaged property as would pay their respective debts.
On the 12th of April, . 1841, the judge issued the order, as prayed. 5
On the 10th of July, 1841, the sheriff returned that he had offered the property at public auction, “ and Nelson F. Shelton, sen’r, and Robert Anderson, the plaintiffs herein, being present, bid for said property the sum of thirty-six thousand dollars, which being the highest bid or offer made, and being over and above two thirds of the cash valuation of the same, the ’said property was adjudicated to Nelson F. Shelton, sen’r, and Robert Anderson, at and for the said sum. of thirty-six thousand ($ 36,000) dollars, subject to all the privileges and mortgages encumbering the same; wherefore, in virtue of the premises herein set forth, and of the law in such case made and provided, and for and in consideration of the price above described, I, Thomas B. Scott, sheriff as aforesaid, do sell, transfer, and convey unto the said Nelson F. Shelton, sen’r, and Robert Anderson, in proportion to the claim of each plaintiff in said writ of seizure, all the right, title, and interest of the said defendant,. Samuel Anderson, in and to the before described, and all the appurtenances thereunto belonging, unto them, the said Nelson F. Shelton, sen’r, and Robert Anderson, and their heirs or assigns for ever.
“ In testimony whereof, I have hereunto set my hand, at the parish of Madison, State of Louisiana, on this the sixteenth day of June, eighteen hundred and forty-one, in the presence of Alexander T. • Steele and Edmond Cavelier, competent witnesses, who have signed with me the said sheriff.
(Signed,)
Tho. B. Scott,
Sheriff of the Parish of Madison, Louisiana.”
It is not necessary to insert in this statement two suits which are inserted, in the record, which were cafried on, one in the Circuit Court of the United States by Tiffin, upon his own account, against Anderson, upon three promissory notes, amounting in the whole to $ 12,065, and the other in a court of Mississippi by Anderson, for the use of Clayton Tiffin, against Austin, Ragan, and Bohannon, upon the note for $ 18,282, which Anderson had considered a part of his cash payment, as above narrated. Both these suits ended in judgments which produced no fruits.
We come now to the suit in the Circuit Court, which was the basis of the present appeal.
On the 21st of April, 1842, Clayton Tiffin and Lilburn P. Perry filed a bill on the equity side of the Circuit Court of the United States. They state themselves to be residents of the city of St. Louis and.citizens of the State of .Missouri, and file the bill against Samuel Anderson, Robert Anderson, Nelson F. Shelton, Hillery Mosely, and William W. Bouldin. The bill recites the sale to Samuel Anderson,' the deficiency in the cash payment, the execution of the notes and mortgage by Anderson, the suit against him by Lilburn P. Perry, the suit against Perry by Mosely and Bouldin, the judgment, the sale of the whole interest to Anderson for $ 5,000, the /¿reclosure of Shelton’s mortgage with an intent to defraud,, and then avers, that, at the institution of the suit by. Mosely and Bouldin against Perry, the latter was not a citizen of Louisiana, but of Missouri.; that he was never served with process, and never employed any one to appear for him; that the judgment was thereby wrongfully recovered, and is void; that admitting the validity of the judgment, yet the subsequent proceedings were irregular ; that the landjAnd slaves never were the sole property of Perry, and that Anderson knew it; that the first note was specially indorsed té Tiffin as a part of his share; that this was done before it was seized as being the property of Perry. The bill then prayed that the judgment of Mosely and .Bouldin might be set aside, that their mortgage .might be foreclosed, and for general relief, and for an injunction.
The defendants, Samuel Anderson and Nelson F. Shelton, demurred to the bill for want of equity, which being overruled, they severally pleaded to the jurisdiction of the court, that said Shelton, and all the other- defendants except Samuel Anderson, were citizens of the State of Yirginia. Upon these pleas, evidence was taken on both sides, and on that evidence the pleas were overruled.
The defendants who had pleaded and Robert Anderson then put in their answers to the bill. The grounds of defence set up and relied upon by the defendants were, —
1st. That it was part of their original contract of purchase that the complainants would receive, in satisfaction of the cash payment, the debt due to Samuel Anderson by John M. and L. P. Perry, and the note on Austin, Ragan, and Bohannon; that complainants knew the drawers and the value of the note, and that, but for their agreement to receive these notes, he would not have given the. price at which he purchased; and that, therefore, they have no right to claim of him any thing on account of their failure tp collect , said note of the drawers.
2d. That, before the execution of the three notes secured by the mortgage, Samuel Anderson and John M. Perry gave three note's, for about the aggregate amount of $S 12,000, to the said Clayton Tiffin, with the understanding and. agreement, that thereafter, when the said mortgage notes were executed, one of them was to be given to him for the said three first-mentioned notes, which were then to be surrendered up. That this had not been .done. On the contrary, the complainants retained all the three mortgage notes, and that said Clayton Tiffin had not only not surrendered the three other notes given to him, but had suéd on them in the same United States Circuit Court, and had recovered judgments thereon, and that, therefore, the mortgage debt ought to be credited by the amount of those judgments.
3d. That Samuel Anderson had, in good faith, purchaséd and paid for the said three mortgage notes, amounting to $ 40,000, when seized and sold on the 4th of January, 1840, by the marshal, under execution from the same United States Circuit Court, on a judgment therein obtained by Mosely and Bouldin against the said Lilburn P. Perry and John M. Perry; that the said Lilburn P. Perry appeared to that suit by a licensed attorney-at-law; that all the proceedings in the suit, and in virtue of the execution, were regular and legal; and that the sale under said execution, and his purchase, had been decided to be valid by the District Court of the Ninth District of Louisiana (a State court), in a suit of Lilburn P. Perry against the said Samuel Anderson; and that thereby the said mortgage debt was “extinguished by confusion,” as was adjudged by the said State court; and that, on the faith of the validity of said proceedings, the said defendants, Nelson F. Shelton and Robert Anderson, had instituted a suit, in April, 1841, in the said District Court for the Ninth District of the State of Louisiana, on a mortgage in their favor, given to them by the said Samuel Anderson (subsequent, however, to the mortgage given to the complainants), and on the 14th of June, 1841, by virtue of an order of seizure and sale in the said suit, caused the said mortgaged property (the same previously mortgaged to complainants) to be sold by the.sheriff, and became themselves the purchasers (at the price of $ 36,000), and took possession under their purchase. To prove all this, they refer to the record of said suit, and rely on these several purchases of Samuel Andérson, and of Nelson' F. Shelton and Robert Anderson, as extinguishing or precluding the claim of the complainants.
The complainants filed a general replication.
With respect to the third ground of defence, the testimony of Mr. Crawford was taken, who, it will be recollected, was the attorney who appeared for Lilburn P. Perry in the suit against him by Mosely and Bouldin.
Evidence of Mr. Crawford.
1st. Are you a counsel and attorney at law, practising as • such at the bar of the State of Louisiana, and were you in the year 1839 ?
He. answers, Yes.
2d. Did you appear in your aforesaid capacity in the defence of a suit instituted by Mosely and Bouldin, in , 183 ,
against John M. Perry and Lilburn P. Perry, in the Circuit Court of the United States for- the Eastern District of Louisiana ?
To the 2d. He answers, Yes.
3d. Will you please state if you ever received any authority, either directly or indirectly, from Lilburn P. Perry, or from any one on his behalf, to appear and represent and defend his interest in said suit?
To the 3d. He answers, he has no recollection of having received any authority, either directly or indirectly, from Lilburn- P. Perry, or from any one on his behalf, to appear and represent and defend his interest in said suit, other than what might be inferred in a letter from John M. Perry, informing him that he would see upon the records of the court of the United States a suit, commenced against him and others by H. Mosely and Bouldin, and his wish to employ him to defend it. In no other part of his letter is reference made to the name of Lilburn P. Perry.
4th. Were you, or not, employed by John M. Perry alone for his defence, without any direction or request to appear on. behalf -of Lilburn P. Perry; and was, or not, your appearance • on behalf of the defendants in said suit an inadvertence on your part ?
To the 4th. He answers, he was employed by J. M. Perry in said letters aforesaid, arid without any directions or request to appear on behalf of Lilburn P. Perry, other [than] what may be inferred from the . letters aforesaid. Deponent regards his appearance on behalf of any other person than John M. Perry, in said suit as an inadvertence on his part.
5th. Did you, or not, know, at the time of your said appearance, that the said Lilburn P. Perry had never been served with process of citation in said suit, and that, at the time of its institution, he was a citizen of Missouri, residing in' the city of St. Louis?
To the 5th. Deponent did not know, at the time of his said appearance, that Lilburn P. Perry had never been served with process of citation, and only presumed that it has been done ; and accordingly misled him, as far as it has been done in the answer of John M. Perry. Deponent did not know, of his own knowledge, that, at the time of the institution of the said suit, Lilburn P. Perry was a citizen of St. Louis, Missouri.
Cross-Interrogatories.
1st. If you filed an answer and amended answer to the suit of Mosely and Bouldin against John M. Perry and Lilburn P. Perry, in the federal court, early in 1839, in the name of both .defendants, did you never receive any instructions from Lilburn P. Perry to do so, or as to the suit? Did he never converse with you about the suit, either before or since ? Did he never write to you in relation to it, either before or since ?
To the first cross-interrogatory, he saith: In relation to the answers referred, to in the said interrogatory, deponent has no recollection of having received any instructions from Lilburn P. Perry on the subject; nor of his having conversed with him about the suit before filing said answers;' nor of his having conversed with him about the said suit until after the rendition of judgment against him; nor of his having ever written to him in relation to it, either before or since its institution.
2d; Was not John M. Perry his agent or attorney in- fact ? Did you not see in his hands authority to act for Lilburn P. Perry ?" Have you not reason to believe, and what reason, that he had authority to defend that suit ?
To the • 2d cross-interrogatory. Deponent does not know that John M. Perry was agent, or attorney in fact; deponent never saw in [his] hands any authority to act. for Lilburn P. Perry; deponent had no reason to believe that John M. Perry had authority to defend the said suit for Lilburn P. Perry.
3d. Was not John M. Perry the father of Lilburn P. Perry? Was he not his agent generally in Louisiana? Did not Lilburn P. Perry at some time avow and ratify the act done by John M. Perry for him ?
To the 3d cross-interrogatory. John M. Perry has been regarded as the father of Lilburn P. Perry ; deponent has no knowledge of his being his agent generally in Louisiana; deponent has no knowledge that Lilburn P. Perry ever avowed or ratified the acts done by John M._ Perry for him.
4th. Was there any defence for Lilbnrn P. Perry which-John M. Perry did not make ? Are you not satisfied that the claim of Mosely and Bouldin against him was perfectly just ?
To the 4th cross-interrogatory. .1 know of no other defence for Lilburn P. Perry, than what is stated in my answers to the interrogatories of the plaintiff, and in my answers to the foregoing cross-interrogatories. I have no personal knowledge of the claim of Mosely and Bouldin, and have not heard or seen any thing to satisfy me that it is just.
5th. Do you know, or can you set forth, any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be material to the subject of this your examination, or the matters in question in this cause ? if yea, .set forth the same fully and at large in your -answer.
To the 5th. I do not know, nor can I set forth, any other matter or thing which may be of benefit or advantage to the parties at issue in this cause, or either of -them, or that may be material to the subject of my examination, or the matters in question in the cause.
On the 27th of June, 1843, the Circuit Court pronounced the following decree.
Court, United States. — In Equity, June, 1843.
This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged, and decreed, that the complainants are justly, legally, and equitably entitled to payment of the sum prayed for in their bill of complaint, as the unpaid consideration-money for the purchase of the plantation and slaves described in said bill, and purchased from the complainants by the respondent, Samuel Anderson ; that said sum has not been paid, satisfied, or extinguished, notwithstanding the allegations. and matters of defence set forth in the answer of the respondents ; that the entire property mortgaged by the respondent, Samuel Anderson, to the complainant, Lilboúrne P. Perry, is in law and equity subject to the payment of said sums ; that' the lién and mortgage exist upon said property, in the possession of the respondents, Robert Anderson, and Nelson F. Shelton, the third possessors thereof, notwithstanding the matters of defence which they have severally set forth in their answer to the bill of complaint. . And therefore, in order to carry into effect this decree, and secure to the complainants their legal and equitable rights, it' is ordered, that the marshal of this court do forthwith take into his possession the property described in the mortgage from Samuel Anderson to Lilbourne P. Perry, and restore -the same to the possession of the complainants, or their legal representative ; and if, • within sixty days thereafter, the • said respondent shall well and truly pay, or cause to be paid, the complainants, or their legal representative, the sum of forty thousand dollars, with interest thereon from the first day of January, 1842, until paid, the same being the unpaid consideration for the purchase of said property from the said complainants, then said property shall be relinquished to respondents.
And it is further ordered, that the complainants, upon being restored to the possession of said property, do give bond, in the sum of twenty thousand dollar's, conditioned for the restoration of said property, and the proceeds thereof, from the time of their being placed in possession by the marshal, to- the respondents, in case said respondents shall see cause to appeal from this decree to the Supreme Court of the United States, and the decree of this court be reversed upon said appeal.
It is further ordered, that the respondents pay the costs of this suit.
(Signed,)
Theo. H. McCaleb, U. ¡S. Judge.
An appeal from this decree brought the case up to this court.
It was argued by Mr. Jones, for the appellant, Shelton, and Mr. Crittenden, for Tiffin and Perry ; but the length to which this case has already reached renders it impossible to give any other than a very brief sketch of their arguments.
1. Four of the five defendants are averred, in pleas and answers under oath, to have been citizens, not of Louisiana, but of Virginia, at the time, of the institution of the suit; and two of them, Mosely and Bouldin, being admitted not Jo have beén citizens of Louisiana, we maintain that the other two, R. Anderson and Shelton, are proved to have been in the same predicament. But we hold the admitted defect of citizenship in the first two above fatal to the jurisdiction, whatever may be the weigh*-of evidence as to the citizenship of the other two.
2. The case made out by the bill is not one susceptible of relief in equity ; but one wherein a plain, adequate, and complete remedy might have been had at law.
Taking up the second. point first, he contended that it was not a case where equity would interpose, because the Louisiana code gites. a more simple remedy. The object of the complainants is to set aside the judgment of Mosely and Bouldin against Perry. This can be done by an action of nullity and rescission. Code of Practice, 604-616 ; 7 Cranch, 88, 90.
1st point. There are five parties here, and four not citizens of Louisiana. But parties must be of the sanie State with each other. 3 Cranch, 267 ; 5 Wheat. 424, 434.
There is a difference between citizenship and residence in a State. Merely residing there does not confer citizenship. In Louisiana, a person wishing to acquire citizenship must give notice. 2 Dig. Laws La. 308.
As to setting aside the judgment, the rule is, that a party may justify under a judgment. 6 Peters, 8 ; 10 Peters, 449 ; 6 Cranch, 173 ; 4 Dali. 8 ; 4 Cranch, 328.
The fact of an attorney’s having authority to appear is not traversable. The only remedy to the party aggrieved is an action against the attorney. 1 Tidd, 95 ; 3 Howard, 343.
said that the objection to the jurisdiction of the court, founded on the allegation that there was a sufficient remedy at law, could not be maintained. How has this court lost this branch of its' equity jurisdiction ? In Pennsylvania, they try equity cases in an action of ejectment ; but this court has not considered this as a sufficient, reason for waiving its equity jurisdiction. So, in Louisiana, law and equity are all mixed up together. Besides, here is an equitable lien on the property for the cash payment, which can only be enforced in equity.
As to citizenship. . The proof is, that the parties lived in Louisiana for three years, and built a house upon. the property. We found them there. They claim the option of being citizens. A citizen of the United States residing in any State is a citizen of that State. 6 Peters, 762.
As to thé judgment of Mosely and Bouldin. Perry was represented in court by an unauthorized attorney, and therefore the judgment does not bind him. 9 Wheat. 829 ; 1 T. R. 62 ; 2 Desaussure, 380 ; Caldwell v. Shields, 2 Rob. ; 6 Johns. 296 ; ibid. 317, 318 ; 2 Watts, 493; 3 Pa. Rep. 75 (Judge Grier says this has been overruled); 3 Robinson, 94; Code of Practice, art. 605.
Even if the judgment was valid, the sale was not made “according fo law. If the property was immovable, then the requisite notice has not been given. Code of Practicej art. 670.
' Slaves are' considered immovable. Civil Code, art. 461. Here every thing was sold, land, slaves, and notes. Civil Code, art. 462, 2424, 3249..
All formalities must be complied with in a forced sale. 3 La. Rep. 421; 4 ib. 150,207; 11 Martin, 610, 675 ; 8 N. S. 246.
The thing sold was the entire debt of $ 40,000. But. it did not all belong to the defendant, and was bought for $ 5,000 by ' the very man who owed the $ 40,000, and who must' have known that one half belonged to Tiffin. The evidence shows that Anderson knew that the first note had -been indorsed to Tiffin. (Mr. Crittenden here referred to and commented upon it.)
By the Civil Code, art. 2622, Anderson must be a trustee for his vendor, who can reclaim • the property by repaying what it cost. Story, Eq. § 789, 1211, 1212, where cases are cited; Grattan’s Rep. 188; 2 Mylne & Craig, 361; 7 Dana, 46 ; Civil Code, art. 21" 1958 - 1960, 2619.
(Mr. Crittenden then commented upon the proceedings of the parish court.)
As to the judgment of Mosely and Bouldin. It is objected, that the defendant never was served with process ; but that is cured by an appearance. Was there one ?■ The record says yes. A sworn attorney appeared and answered for both defendants. If the correctness of this is impeached, it is for the other party to do it, and they must do it clearly. There must be the plainest evidence. Crawford is the only witness. We might object to the interrogatories. They are all. leading ones. But he shows that he bad authority. He was employed to defend the suit. What suit ? Against both defendants. He refers to letters. Why did he not produce them ? Is there any evidence that John M. Perry had no authority to employ counsel ? There is not. Why did he not swear so ? He was as good a witness as Crawford. In an affidavit, John M. Perry swears that he is the agent and attorney of Lilburn P. Perry. A "bond is signed L. P. Perry, “by his attorney, John M. Perry.” Crawford’s evidence is therefore only negative.
(Mr. Jones then proceeded to reply to the other arguments of Mr. Crittenden upon the facts of the case.)
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
