Gates v. Brinkley ( 1880 )

McFARLAND', J.,

delivered the opinion of the Court.

This litigation begun several years ago by a bill filed by Gates, Wood and McKnight, to be relieved from the payment of several notes given by them to Brinkley for the - rent or lease of certain property in Memphis, upon the ground that they had been dispossessed of the property by the United States military torces during the late war.

The relief was refused and a decree rendered by the Chancellor against the complainants for the amount of the notes less certain credits. The complainants appealed, and in this Court the decree was modified as to the amount by giving relief as to one of the notes, but rendering a decree against complainants and their sureties on appeal bond, J. D. "Williams and Samuel Mosby, for $9,146.31 and one-half the costs of this Court.

Subsequently a writ of error was prosecuted to the Supreme Court of the United. States, where the decree of this Court was reversed, and a mandate has been presented directing a decree to be entered awarding a perpetual injunction in accordance with the opinion of that Court.

It is now alleged that pending the writ of error in the Supreme Court of the United States, there, being no supersedeas,' the complainants and their sureties paid the decree of this Court in full, and motion is made to have the amount restored.

The defendant denies that the decree of this Court has been paid, but avers the facts to be, that after the decree was rendered, Mosby, one of the sureties, finding that his principals and co-security were in doubtful circumstances, under the advice of counsel for his own protection, instead of paying and satisfying the execution, purchased the judgment from Brinkley, paying him the amount thereof, and afterwards the execution was allowed to run in the name of Brinkley, but really for the use of Mosby, upon which $2,405.31 was collected out of the property of the principals, and entered as a credit on the execution for the benefit of Mosby. This course was adopted in order to keep the judgment and execution alive so it could be used for the benefit of Mosby, the surety.

We do not think this alters the case or relieves Brinkley or his representative from the consequences 'of the reversal by the Supreme Court. Whatever may have been the form, the substance is, that he has collected or received this sum of money which the Supreme Court has decided he was not entitled to. The decree of the Supreme Court of the United States was long subsequent to the supposed transfer of the judgment to Mosby, but the decree of that Court was against the executor of Brinkley, against whom the cause was revived without objection or suggestion that the claim did not belong to him.

The amount paid should be restored with interest.

The complainants also move for a decree for the sum of two small credits, which they claim to have paid upon the notes, which were allowed by the Chancellor and by this Court.

It is urged, that as it has been decided that they' were not liable for any part of the notes, they ought to recover the payments or set-ofis set up against them. Whether they follow or not, it is sufficient to say that we find nothing in the opinion or mandate of the Supreme Court upon this subject, and we cannot go beyond it, and the motion, as to this matter, is refused.

The decree of restitution should be in favor of Mosby, McKniglit and the assignee in bankruptcy of Gates and Wood, who was allowed to prosecute the writ of error in the Supreme Court jointly with McKnight. We leave them to settle between themselves their rights in the recovery.

Complainants also move for a decree for the costs of the Supreme Court, paid by them, but they have already a decree in that Court awarding execution for the amount.

They also move for the costs of this Court, paid in accordance with our decree, and the motion will be allowed.