Andrews v. Solomon

WASHINGTON, Circuit Justice.

From the evidence given in this cause, it distinctly appears, that E. Solomon, the defendant, was the agent of the complainants, for protecting the whole of this property, as well as for the sale of it. That he informed them of the sales he had made of the five lots, and that which he expected to make of the two lots; and he intimated to them, very clearly in one of his letters, that it would be necessary, notwithstanding those private sales, to go through the form of a public sale. He stated to them that he had sold the five lots for 3,200 dollars, and was in treaty for the sale of the ’other two for 1,600 dollars. No evidence has been given to show that the complainants, or either of them, did, at any time object to the sales of these lots, or to the prices at which they were sold. The sales under the venditioni exponas, though merely formal as to the parties immediately interested in that property, were rendered necessary to protect the titles against the creditors of H. Solomon: for which purpose alone the note was pm-chased and the proceedings on it instituted by E. Solomon.

Without stopping, for the present, to notice the informalities which the proceedings in this cause exhibit, I shall proceed upon the complainants’- case as presented by themselves, to inquire where is their equity against any of the defendants, except E. Solomon? The gravamen of the bill is, that although E. Solomon was the agent of the complainants, he nevertheless contrived, covertly, to have their property seized and sold under execution, for about one-fourth nominally of the sum at which he had actually sold it by private bargain. These allegations may, and certainly do afford a very good reason for compelling E. Solomon to account for the purchase money actually received by him; but not for setting aside the sales of this property, sanctioned as they were by the complainants. If the sheriff’s deeds passed to the grantees the legal estate -in these lots, a court of equity will protect that estate, unless the purchasers were guilty of a fraud, or purchased with a knowledge of a fraud in those under whom they claim. But what evidence is there of fraud in any part of these transactions? It is not even pretended that the price at which these lots were sold, was inadequate to their value; nor is it pretended that the private sales of them were made without authority. If, on the other hand, the sheriff’s deeds did not pass the legal estate, then the objection to those conveyances is purely of a legal nature, and consequently the complainants are not entitled to relief in a court of equity.

As to title five lots, the real beneficial purchasers were the children of Jacob Reese. G. Bickham acting as the agent of their guardian for their use. It is said that their title must be affected by the fraud of that agent Be it so. But there is no fraud proved against Bickham, as has before been stated. Jacob Reese, therefore, and his sons, the cestui que use in the sheriff’s deed, have both the legal and the equitable estate in this property. As to the two lots, which were purchased by Bickham for E. Solomon, and by him conveyed to P. Gaul, it is contended, that the title is not protected by the act of assembly, because that act ought not to be construed to apply to purchases made by the plaintiff himself, or to mere formal sales under execution as this was. As to this argument, I give no opinion, but will for the present admit it. Still the complainants cannot succeed in setting aside the sales of these lots, without showing themselves to be entitled to this relief upon some ground of equity. Now, in addition to the observations before made in relation to the five lots, it may be observed, that, as to those conveyed to Gaul, he is not even charged in the bill with notice of any fraud or other circumstance to invalidate his title in a court of equity; and, in his answer, he asserts himself to be a bona fide purchaser, without notice of any of the circumstances alleged against Bickham and E. Solomon.

Having spoken of informalities in the proceedings in this cause, it may be proper to state them more particularly, for the information of the bar. Subsequent to the filing of this bill, the court, upon the motion of the plaintiff, permitted the complainants to amend by making Jacob Reese and his sons defendants, but no amended bill was filed. The original, or rather the only bill filed in the cause, contains no allegations against these new made defendants, nor are their names even mentioned in it During the argument, and as soon as this omission was discovered, the court gave leave to the complainants to file an amended bill; not to state any new matter, which would have been improper at that stage of the cause, but merely to call upon these new defendants to answer the original bill. But, even if the complainants had made out a proper case for the interference of equity, in reference to the title of Bickham, still the court would be compelled to dismiss the bill as to these defendants, since there is no allegation against them to which they could answer. It is true they have answered, but this does not entitle the complainants to relief against them, since they have not shown in their bill any ground for such relief. Mitf. Eq. PI. 87.

The preceding part of this opinion was intended to show, that, upon the merits of the cause, the complainants are not entitled to relief against these defendants, and consequently that they cannot suffer on account of the informality just stated. As to the liability of E. Solomon, to account for the purchase money received by him for the above seven lots, with legal interest thereon, there can be no doubt The court therefore direct an account as to these sums, and dismiss the bill with costs against the other defendants.