Swayze v. Burke
37 U.S. 11

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U.S. Supreme Court

Swayze v. Burke, 37 U.S. 12 Pet. 11 11 (1838)

Swayze v. Burke

37 U.S. (12 Pet.) 11

Syllabus

Ejectment. John Ormsby died in Alleghany County, Pennsylvania, in December, 1805, having a son Oliver, who administered to his estate. He had also a son who had married in Mississippi, and who died in 1795, leaving an infant daughter. Oliver Ormsby filed no inventory of the estate of his father, and never settled an account as administrator, and in 1826, he confessed a judgment in favor of the Messrs. Penns for a part of the purchase money of a valuable real estate which had been held by John Ormsby in his lifetime. In the suit against him for this debt, Mr. James Ross acted as the attorney for the plaintiffs, and in 1827 the real estate was sold under an execution issued by Mr. Ross on the judgment and was purchased by Mr. Ross for three thousand dollars, he having, before the purchase, given Oliver Ormsby to understand and having publicly declared that he would hold the property as a security for the debt due to the Messrs. Penns, and on the payment of the debt that he would relinquish all claim to it. In April, 1831, Oliver Ormsby paid the debt to Mr. Ross and took a conveyance of the property. At the same time, he gave a receipt, as administrator of John Ormsby, to the sheriff for the balance of the three thousand dollars. He claimed to hold the property so purchased as his own. In March, 1828, Oliver Ormsby wrote to the wife of the plaintiff in this ejectment, who was the daughter of John Ormsby, junior, stating that his father had not left more property than would pay his debts. There was evidence that less than one-tenth of the real estate would have satisfied the judgment for which the land was sold to Mr. Ross. Mr. Ross had no knowledge of any fraudulent purpose of the administrator. The daughter of John Ormsby, junior, having intermarried with Gabriel Swayze, with her husband brought an ejectment to recover a moiety of the land which

was held by Oliver Ormsby under the conveyance from Mr. Ross. The court instructed the jury that

"In matters of fraud, courts of law and chancery have a concurrent jurisdiction. It is therefore within the province of the jury to inquire whether the conduct and proceedings of Oliver Ormsby whereby the legal title to the property in dispute became vested in himself for his exclusive use and benefit were in fraud of his co-tenant Mary Swayze, and if they were, the"

verdict ought to be for the plaintiffs.

"That the fraud should be brought to the knowledge of Mr. Ross, and that if Mr. Ross took a valid title under the sheriff's deed, the title of the vendee would be good under the circumstances"

disclosed in the evidence.

By the Court: "We think that the judge erred in charging the jury that the deed to Ormsby was valid unless they should find that Ross participated in the fraud."

It is clear that a purchaser at sheriffs sale cannot protect himself against a prior claim of which he had no notice, or be held a bona fide purchaser unless he shall have paid the money.

That fraud is cognizable in a court of law as well as in a court of equity is a well established principle. It has often been so ruled in this Court.

As there is no court of chancery under the laws of Pennsylvania, an action of ejectment is sustained, or an equitable title, by the courts of that state. Such is not the

Page 37 U. S. 12

practice in the courts of the United States, and if the plaintiffs in an ejectment fail to show a paramount legal title in themselves, they cannot recover.

The case, as stated, in the opinion of the Court was as follows:

An action was instituted in the District Court of the United States for the Western District of Pennsylvania by the lessors of the plaintiffs, Gabriel Swayze and wife, citizens of the State of Mississippi, for the recovery of a tract of land in Alleghany County in the State of Pennsylvania, to October sessions, 1833.

The plaintiffs and the defendants claimed the land under a deed from John Penn and John Penn, Jr., proprietaries of Pennsylvania, the land forming part of one of the manors reserved by the proprietaries. John Ormsby died intestate in 1791, and left a son, named Oliver, a daughter, Sidney, who intermarried with John Gregg; a son named John, who married and died in the State of Mississippi, leaving a daughter Mary, an infant, at the time of his decease, and who has since intermarried with Gabriel Swayze, the plaintiff in error. In December, 1807, Oliver Ormsby administered to the estate of his father, John Ormsby, and gave the usual administration bonds, but he filed no inventory of the estate of the intestate, nor did he at any time settle an account of his administration of the estate.

The estate of John Ormsby, deceased, was indebted to John Penn, and John Penn, Jr., for the land purchased from them, in the sum of four hundred and sixty-seven dollars and sixty-four cents, and on 6 September, 1826, the administrator confessed a judgment in their favor for the amount of the debt, upon which judgment an execution was forthwith issued by Mr. Ross, their attorney, and the land of John Ormsby was levied on and sold, Mr. Ross being the purchaser of the same, for three thousand dollars. At the time of the purchase of the estate, Oliver Ormsby, the administrator, was absent. Mr. Ross declared in the most public manner that Ormsby, the administrator, or any of the family of the deceased John Ormsby, might redeem the land at any time, on the payment of the debt and interest. Before the sale, Oliver Ormsby, the administrator, was informed by Mr. Ross that he only wanted the money due upon the judgment, and that he did not intend to buy the land to hold it. Ormsby, the administrator, was in possession of the land at

Page 37 U. S. 13

the time of the sale, and continued in possession of it, and at the time of the sheriff's sale, or when the deed for the land was made to him by the sheriff, Mr. Ross paid no money. The rents and profits of the land were continued to be received by Oliver Ormsby, and in April, 1831, he paid to James Ross, Esq., the sum of five hundred and twenty-three dollars, the amount of the judgment, and the interest due thereon, and took from him a conveyance of the land in fee simple, giving to the sheriff at the same time, as administrator of John Ormsby, a receipt for the sum of three thousand dollars, less five hundred and twenty-three dollars, the amount of the payment to James Ross, Esq., in satisfaction of the debt due to the Messrs. Penns. The land consists of eighteen coal hill lots and of thirty-five acres of land adjoining to them, and is now of great value. It was highly valuable at the time of the sheriff's sale. The defendants were in possession of the property as tenants of Oliver Ormsby when the suit was commenced.

In March, 1828, in answer to an application for information as to the value of the estate of John Ormsby by Mrs. Swayze, one of the lessors of the plaintiff, Oliver Ormsby wrote

"My father, at his death, was not possessed of more property than a sufficiency to pay his debts, having, from time to time, sold to individuals, and conveyed to his children."

Evidence was also given conducing to prove that by a sale of two of the coal lots, the judgment could have been satisfied.

The case was tried at October term, 1835, and a verdict and judgment were rendered for the defendants under the charge of the district judge. The plaintiffs excepted to the opinion of the court and prosecuted this writ of error.

On the trial of the cause, the counsel requested the district judge to charge the jury

"In matters of fraud, courts of law and chancery have a concurrent jurisdiction. It is therefore within the province of the jury to inquire whether the conduct and proceedings of Oliver Ormsby, whereby the legal title to the property in dispute became vested in himself, for his exclusive use and benefit, were in fraud of the rights of his cotenant, Mary Swayze, and if they were, the verdict ought to be for the plaintiffs."

The court gave the instruction as requested, with this qualification, that the fraud should be brought to the knowledge of Mr. Ross; if he took a valid title, under the sheriff's deed, the title of his vendee would be good, under the circumstances disclosed in the evidence.

Page 37 U. S. 21

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