Robertson v. Carson

A. and B., executors in South Carolina, and authorized by their testator to sell all his real and personal estate, and to pay the proceeds to the testator’s sons, sold the lands to C. on mortgage. C. wishing to pay the mortgage, A. received the amount of it from him in notes of the so-called “Confederate States,” surrendered the instrument and entered satisfaction upon it. C. sold the property (whether with warranty or without did not appear) to D. E. & Co., a mercantile firm, composed of the said D. and B. and three other persons, including F.; the deed, however, being made to D. and E. individually, upon such uses as they should appoint, and until they did appoint to the use of the whole five partners, according to their interests in the firm. F. afterwards retired from the fii-m, transferring, in consideration of a sum of money to be paid, his interest in the firm to his remaining partners; arid D. and E., . in order to secure the payment to F. of the sum of money, appointing the land to the use of him, F. The executors sold the personal estate also to C., who had bought the real; this sale of the personal being on credit, and X. becoming C.’s surety to the executors for payment of the price In August, 1866 — the notes of the “ Confederate States ’’ being now wholly worthless — the sons of the testator (or rather their mother, to whom they had transferred all their interests in their father’s estate) filed a bill (charging fraud and conspiracy) against the executors (A. and B.), against D. (one of the trustees to whom C. had conveyed in trust for the firm), and against X. (the surety of C. in the matter of the personal property) — nobody else being brought in — to charge the executors with all moneys received by them, to reinstate and establish the mortgage given by C., and to hold X. liable as surety in the matter of the price of the personal property. Held, that the bill could not he sustained, that C. (the purchaser from the executors), and E. (the co-trustee with D.), were indispensable parties and that if it was intended to conclude E. (in case he did not get his money from his partners) from proceeding on the mortgage given to him to secure its payment and raising anew the question of the validity of the sale of the real estate to 0., and of that by him to D. and E., he was to he made a party also.

William Carson, of South Carolina, died in August, 1856, somewhat indebted, but possessed of considerable real and personal estate, including a plantation called Dean Hall, and leaving a widow, Caroline, and two minor sons, William and James. By his will he appointed two persons, named Robertson and Blaeklock, his executors, and directed all his estate to be sold by them on such terms as they should deem judicious; and the proceeds, after payment.of his debts, to be divided into three parts, all “to be held in trust” by his executors: the interest of one-third to be paid to his widow, and the interest of the other two to be devoted to the support of his sons till they came of age; and the principal to be then paid to them. The executors, soon after his death and near the close of the year 1856, sold Dean Hall to one Elias Nonus Ball, most of the purchase-money being in the form of a purchase-money mortgage reserved to them as executors. Ball, in 1863, the rebellion being now in full action, agreed to sell it to a firm trading under the name of Hyatt, McBurney & Co., and which was composed of five persons, to wit, Hyatt and McBurney, aforesaid, and three other persons named, respectively, Gillespie, Hazelton, and McGanu. Hyatt, McBurney & Co. paid the purchase-money in “ Confederate States” notes, the usual currency during the rebellion of South Carolina. With this Ball paid off his bonds to the executors, and Robertson, one of them, surrendered his bonds and entered satisfaction on the mortgage. Ball then conveyed the plantation (by what kind of deed as respected warranty did not appear), to McBurney and Gillespie, two partners, as already said, of Hyatt, McBurney & Co., “to such uses as they or the survivors of them should appoint, and until such appointment to the use of the said Hyatt, Hazel ton, McGann, McBurney, and Gillespie, partners, trading as Hyatt, McBurney & Co., according to their respective interests in the partnership.” Hyatt, some time after, by deed, bearing date 8th May, 1863, released liis interest in the plantation, and on the last-named day, Hyatt retiring from the partnership, McBurney and Gillespie appointed the plantation to his use to secure a bond of the rémaining partners to him for $40,000, given for the purchase of his interest in the partnership. Hyatt was and now is a citizen of New York. Gillespie so also, apparently. Ilazelton was domiciled at Liverpool, England; and McGann then, as now, was a citizen of South Carolina. Ball, the purchaser, was a citizen of New Jersey. The executors, at the time they sold the plantation to Ball, sold to him also certain personal property. This was sold on credit, and one W. J. Ball became jointly bound with the said E. N. Ball, and as his surety for the payment of the price of it. McBurney and Gillespie remained in possession of Bean Hall until August, 1866, when the two sons of Carson having reached their majority, and having transferred all their interest in their father’s estate to their mother, his widow, she, describing herself as a citizen of New York, filed a bill in the court below against the executors (Robertson and Black-lock), against E. N. Ball, W. J. Ball, McBurney, and the two sons Carson; these two being made parties apparently for mere form. But from a fear perhaps of ousting the jurisdiction of the Circuit Court, if it made them parties, the bill did not attempt to make either Hyatt, who, as already said, like the complainant, was a citizen of the State of New York, Gillespie, Hazel ton, or McGann (the four persons who, with McBurney, constituted the firm of Hyatt & McBurney, and fdr whose use along with that of McBurney, the plantation had been conveyed when conveyed to Hyatt & McBurney), parties to the bill. And of those whom it sought to make parties, only Robertson and Blacklock (the executors), and McBurney and W. J. Ball were served. The purchaser, Elias Nonas Ball, was not served. [The same was true as to the sons Carson, though these last were, as already said, added for form only, and the omission to-serve them was obviously unimportant.] The purpose of the bill was: As respected the executors, to make them account in good money, for the proceeds of the sales which they had made, if the sales should stand: As respected the defendant McBurney, to set aside his purchase and re-establish the mortgage given by E. N. Ball to the executors, upon the ground that he, McBurney, paid no valuable consideration for his purchase; that the pretended payment of his bond by Ball, the mortgagor and purchaser from the executors, and the release and satisfaction of the mortgage was procured by him without valuable consideration, and was a breach of their trust by the executors. That McBurney aided and procured the executors to commit the breach of trust, and with full knowledge of the same, became possessed of Dean Hall without any valuable consideration passing from him to Ball, or from Ball to the executors, and that he should, in equity, be declared to hold the premises for the benefit of the complainant: And as respected W. J. Ball, to make him respond as surety for the debt of E. N. Ball, incurred in the purchase of the personal property. The executors, McBurney, and W. J. Ball, answered, setting up: 1st. Matter of form. That Hyatt, Hazelton, Gillespie, MeGann, and Elias Nonus Ball were indispensable parties to the bill; the answer of W. J. Ball alleging in addition,- and in regard to the sale of the personal property bought by E. N. Ball, that he, the respondent, was but a surety, and that the said E. N. Ball was the principal debtor, and the person alone acquainted with the facts of the case. 2d. Merits. That the paymeuts were made in money that was universally current in the South, money which had value, and which was received on deposit in all the banks of South Carolina at the time; that in fact the payments were made in checks on the Bank of South Carolina. It alleged further, that with this same money received the executors had paid off the debts of their testator. The court below (Chase, C. J., presiding) with some hesitation overruled the objection as to parties,* observing that “it would be a positive wrong for the Circuit Court to turn from its doors a suitor- in another State, seeking a remedy against citizens in this State, and thus deny to her, upon a doubtful question in reference to parties, a right secured to her by the Constitution;” and that the court would “strain a point in favor of the constitutional right of citizens of the several States to sue the citizens of other States in the courts of the United States.” On the merits it decreed that the surrender of the bonds of E. N. Ball by Robertson, the executor, and the satisfaction of the mortgage of Dean Hall, were done in breach of his duty as trustee, and were null and void; that the obligations were not discharged; that the mortgage of Dean Hall was a valid and subsisting mortgage, and that the complainant was entitled to the bonds and to enforce the mortgage as a security for the same. And after finding a certain sum due as principal of the mortgage, it decided that if the debt and interest were not paid by a day named, the plantation should be sold by the marshal under foreclosure. On the 15th of Juue, 1872, that is to say, after the date of filing the bill in this case, and indeed after the decree made, Congress, by “ An act to farther the administration of justice,” enacted as follows:† “Section 13. That when, in any suit in equity ... to enforce any legal or equitable lien or claim against real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of or found within the said district, ... it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer, or demur, to the complainant’s bill at a certain'IS^y therein to be designated; which order shall be served on such absent defendant, if practicable, wherever found; or, where such personal service is not practicable, such order shall be published in such manner as the court shall direct, and in case such absent defendant shall not appear, plead, answer, or demur, within the time so limited, ... it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district,” &c.