Mackall v. Richards
112 U.S. 369 (1884)

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U.S. Supreme Court

Mackall v. Richards, 112 U.S. 369 (1884)

Mackall v. Richards

Argued November 10, 1884

Decided November 24, 1884

112 U.S. 369

Syllabus

When a mandate of this Court, made after hearing and deciding an appeal in equity, directed such further proceedings to be had in the court below as would be consistent with right and justice and that court thereafter made a decree which prejudiced the substantial rights of a party to the suit in respect of matters not concluded by the mandate or by the original decree, its action touching such matters is subject to review, upon a second appeal.

This suit involved the title to that part of square 223, in the City of Washington, designated as lot 7 at the southwest corner of New York Avenue and Fourteenth Street. Its building line on the avenue was about 152 feet and 9 inches in length, and on Fourteenth Street a little less, while the south line, which was at right angles with Fourteenth Street, was about 100 feet, and the west line, which was at right angles with the avenue, was about 97 feet 5 inches, in length. In June or July, 1864, the lot was subdivided by Brooke Mackall, Jr., under whose control it then was, into five smaller lots, each fronting on New York Avenue. This subdivision was not recorded in any public office, but a rough plat of it, exhibited in the record, appears upon the books of Mr. Forsythe, a surveyor and civil engineer, who made it at the instance of Mackall.

In the same year, shortly after this subdivision, Mackall commenced the erection of a building at the southwest corner of the Avenue and Fourteenth Street, known as Palace Market. That building, he testified, was "to cover two of the sub-lots on New York Avenue." In 1867, Plant and Emory, having furnished materials and performed labor on the building, commenced

Page 112 U. S. 370

suits at law in the Supreme Court of this District to enforce liens for the amount of their claims, and each obtained judgment therefor against Mackall. The part of lot 7 upon which Plant asserted a lien is thus described in his declaration:

"Beginning for the same at the northeast corner of the said square; running thence south 44 feet; thence west to the west line of the said lot; thence, in a northerly direction with the west line thereof, to the north line of the said lot, and thence, in a northeasterly direction with the said north line, to the place of beginning."

The description in Emory's suit is this:

"Part of lot 7, in square No. 223, beginning for the same at the northeast corner of said lot, and running thence south 44 feet; thence west to the west line of said lot; thence, with a line at right angles to New York Avenue, to the north line of said lot, and thence, in a northeasterly direction with the said north line, to the place of beginning."

Subsequently, A. & T. A. Richards obtained judgment in the same court against Mackall for $897.42, with interest and costs, execution upon which was levied on the same property on which Plant and Emory claimed to have liens. Under executions in favor of these several creditors the property was sold by the marshal. Alfred Richards became the purchaser at $2,500, and received a conveyance. The proceeds of the sale were sufficient to discharge in full the claims of Plant and Emory, and $646.89 of the judgment obtained by A. & T. A. Richards.

This suit was brought in 1871 by A. & T. A. Richards, a part of whose judgment remained unpaid, and other judgment creditors of Mackall, for the purpose of subjecting to the claims of themselves and other creditors who might become parties and share the expenses of the litigation, such part of lot 7 as remained

"after taking or carving out therefrom the aforesaid piece or part thereof so as aforesaid taken, sold, and conveyed by the marshal of the District of Columbia to Alfred Richards,"

etc. The bill sets forth that the title to the lot is really in Mackall, but that, for the purpose of hindering and defrauding his creditors, he withholds all evidence of it from the public records of the district. The prayer is that he be

Page 112 U. S. 371

required to discover and place on record all conveyances, or other evidences of his title, and that the remainder of lot 7, not sold by the marshal to Richards, be sold, and the proceeds applied, first, to the discharge of existing encumbrances, and then to the judgments of complainants.

Such proceedings were had that, by final decree in special term, on the first day of May, 1873, it was adjudged that the title

"to all of lot numbered 7, in square numbered 223, in the City of Washington, not heretofore sold by the marshal of the District of Columbia to the complainant Alfred Richards, is vested in the defendant Brooke Mackall, Jr., and that the same be sold,"

&c. Trustees were designated by whom the sale should be conducted. That decree was affirmed in general term. Upon appeal to this Court, the decree in general term was itself affirmed, without modification, and the cause remanded for such proceedings as would be consistent with right and justice. In this Court, the only dispute was as to the sufficiency of the evidence to show title in Mackall, and no question was made as to the indefiniteness of the description of the interest or property decreed to be sold, or as to the validity of the marshal's sale.

Subsequently, the trustees named in the original decree executed the order of sale and made report of their acts; but, upon exceptions filed, the sale was, on July 24, 1877, set aside, the order providing that before sale can be made "the amount to be sold must be definitely ascertained by some proper legal procedure." The sale was set aside partly because it appeared upon the hearing of the exceptions that the trustees announced at the biddings that they did not know, and did not undertake to state, what were the precise lines or boundaries of the ground to be sold, and would not undertake to do more than sell such part of lot 7 as was outside of that embraced by the marshal's deed to Alfred Richards, leaving purchasers to find out as best they could the extent of their purchase. Bidders were informed that,

"whether the south line of Richards' purchase runs southwesterly from the front or southeast corner of the building along the line of the fence . . . parallel to and 44 feet from New York Avenue, or whether it runs due

Page 112 U. S. 372

west along the south side of the building to its rear end, and from thence westerly to the rear end of the lot, is a legal question which the trustees do not undertake to determine."

By an order entered July 13, 1878, the cause was referred to a special auditor to report

"the proper metes and bounds of that portion of lot No. 7, in square 223, which was sold by the marshal of the District of Columbia to Alfred Richards, and also that other portion of said lot not so sold, and which is directed by the decree in this case to be sold by the present trustees."

He reported that, upon examining the testimony, the proceedings in the mechanics' lien suits, the returns upon the executions under which Richards had purchased, the advertisement of sale, and the marshal's deed of conveyance, he could not reach a conclusion as to how much ground was intended to be sold or conveyed to Richards. Exceptions by the complainants to this report were sustained, and the court, "proceeding to determine the said boundaries in accordance with the said order of July 24, 1877," directed the trustees to sell, in accordance with the terms and provisions thereof, all that portion of lot 7 lying south of a line drawn from a point on Fourteenth Street 44 feet south of the northeast corner of said lot, and running thence parallel with New York Avenue to the west line of lot 7. This order was made "without passing upon the validity of the said marshal's sale." A similar decree was passed in general term, accompanied by a recital that it should be construed "as not determining any question of title to any portion of said lot 7 lying north of said line." The present appeal is from the latter decree.

Page 112 U. S. 373

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