PENN v. BUTLER, 4 U.S. 354 (1801)
Syllabus
U.S. Supreme Court
PENN v. BUTLER, 4 U.S. 354 (1801)4 U.S. 354 (Dall.)
Penn
v.
Butler.
Butler
v.
Penn.
Penn
v.
Penn.
Same
v.
Same.
Circuit Court, Pennsylvania District.
May Term, 1801
THESE were bills in equity, involving a great variety of facts respecting the disposition of the estates of the late proprietary family: but the principal object of all of them, was submitted for the opinion of the Court, on the following agreement:
'It is agreed, that these suits be
submitted for the opinion of the Court, upon the following
statement of facts, admitted by
all the parties, except the fact, that Anthony Butler, for his own accommodation, and without the consent, knowledge, or approbation, of John Penn the elder, took, inter alia, in part payment of certain sales herein after mentioned, certain bonds and mortgages, in the joint names of John Penn the elder, and John Penn the younger, as obligees and mortgagees; which fact, it is agreed, shall be decided by the Court, on evidence to be produced; and that such formal decrees be eventually drawn and entered in each, as will effectuate the opinion which the Court shall pronounce.
'Case. John Penn the elder, and John
Penn the younger, after the act of assembly of Pennsylvania, passed
November 27th 1779, entitled 'an act for vesting the estates of the
late proprietaries of Pennsylvania in this commonwealth,' remained
seised and possessed, as tenants in common, of all their manors,
reserved tracts, &c. in Pennsylvania, with power to sell in
fee: three-fourth parts being the property of John Penn the
younger; and one-fourth part being the property of John Penn the
elder. On the 19th of November 1787, John Penn the elder appointed
John F. Mifflin his attorney, with power to sell and convey,
&c. to receive payment for lands sold either in money or
securities; and to substitute any agent or agents. And on the 23d
of December 1787, John F. Mifflin substituted Anthony Butler. On
the 29th day of June in the year 1787, John Penn the younger,
appointed Robert Millegan and John F. Mifflin his attornies, with
power to sell, and convey, &c. to receive payment for lands
sold, either in money or securities; and to substitute any agent or
agents. And on the 29th day of June in the year 1787, Robert
Millegan and John F. Mifflin substituted Anthony Butler. John Penn
the younger afterwards revoked the power of attorney, which he had
granted to Robert Millegan and John F. Mifflin. And on the 29th of
April 1788, John Penn the younger appointed the said Anthony Butler
his attorney, with powers to sell and convey, and to receive in
payment money or securities.
'By virtue of the several powers
above stated, Anthony Butler did, at sundry times, sell several
tracts of land, belonging to the said John Penn the elder, and John
Penn the younger, as tenants in common, in the proportions
aforesaid; and in payment therefor (inter alia) took, for his own
accommodation, without the consent, knowledge, or approbation, of
the said John Penn the elder, certain bonds and mortgages, in the
joint names of John Penn the younger, and John Penn the elder, as
obligees and mortgagees. After the time of taking the said bonds
and mortgages, to wit, on the 9th of February 1795, John Penn the
elder died, leaving Anne Penn and John F. Mifflin executrix and
executor of his last will and testame t. [4 U.S. 354, 356]
Opinions
v.
Butler. Butler
v.
Penn. Penn
v.
Penn. Same
v.
Same. Circuit Court, Pennsylvania District. May Term, 1801 THESE were bills in equity, involving a great variety of facts respecting the disposition of the estates of the late proprietary family: but the principal object of all of them, was submitted for the opinion of the Court, on the following agreement:
U.S. Supreme Court
PENN v. BUTLER, 4 U.S. 354 (1801) 4 U.S. 354 (Dall.) Pennv.
Butler. Butler
v.
Penn. Penn
v.
Penn. Same
v.
Same. Circuit Court, Pennsylvania District. May Term, 1801 THESE were bills in equity, involving a great variety of facts respecting the disposition of the estates of the late proprietary family: but the principal object of all of them, was submitted for the opinion of the Court, on the following agreement:
'It is agreed, that these suits be
submitted for the opinion of the Court, upon the following
statement of facts, admitted by
Page 4 U.S.
354, 355
all the parties, except the fact, that Anthony Butler, for his
own accommodation, and without the consent, knowledge, or
approbation, of John Penn the elder, took, inter alia, in part
payment of certain sales herein after mentioned, certain bonds and
mortgages, in the joint names of John Penn the elder, and John Penn
the younger, as obligees and mortgagees; which fact, it is agreed,
shall be decided by the Court, on evidence to be produced; and that
such formal decrees be eventually drawn and entered in each, as
will effectuate the opinion which the Court shall pronounce.
'Case. John Penn the elder, and John
Penn the younger, after the act of assembly of Pennsylvania, passed
November 27th 1779, entitled 'an act for vesting the estates of the
late proprietaries of Pennsylvania in this commonwealth,' remained
seised and possessed, as tenants in common, of all their manors,
reserved tracts, &c. in Pennsylvania, with power to sell in
fee: three-fourth parts being the property of John Penn the
younger; and one-fourth part being the property of John Penn the
elder. On the 19th of November 1787, John Penn the elder appointed
John F. Mifflin his attorney, with power to sell and convey,
&c. to receive payment for lands sold either in money or
securities; and to substitute any agent or agents. And on the 23d
of December 1787, John F. Mifflin substituted Anthony Butler. On
the 29th day of June in the year 1787, John Penn the younger,
appointed Robert Millegan and John F. Mifflin his attornies, with
power to sell, and convey, &c. to receive payment for lands
sold, either in money or securities; and to substitute any agent or
agents. And on the 29th day of June in the year 1787, Robert
Millegan and John F. Mifflin substituted Anthony Butler. John Penn
the younger afterwards revoked the power of attorney, which he had
granted to Robert Millegan and John F. Mifflin. And on the 29th of
April 1788, John Penn the younger appointed the said Anthony Butler
his attorney, with powers to sell and convey, and to receive in
payment money or securities.
'By virtue of the several powers
above stated, Anthony Butler did, at sundry times, sell several
tracts of land, belonging to the said John Penn the elder, and John
Penn the younger, as tenants in common, in the proportions
aforesaid; and in payment therefor (inter alia) took, for his own
accommodation, without the consent, knowledge, or approbation, of
the said John Penn the elder, certain bonds and mortgages, in the
joint names of John Penn the younger, and John Penn the elder, as
obligees and mortgagees. After the time of taking the said bonds
and mortgages, to wit, on the 9th of February 1795, John Penn the
elder died, leaving Anne Penn and John F. Mifflin executrix and
executor of his last will and testame t.
Page 4 U.S.
354, 356
'There are in the hands of Anthony Butler, a number of bonds and
mortgages, taken as aforesaid, in each and all of which bonds and
mortgages, the said John Penn the younger is interested three
undivided fourth parts; and the aforesaid executors of John Penn
the elder are interested the other one undivided fourth part.
'Questions. 1st. Whether John Penn
the younger, as surviving obligee and mortgagee, is entitled to
have and receive from Anthony Butler, all the said bonds and
mortgages, for the purpose of collecting and distributing the money
thereby secured and made payable, according to the respective
interests of the parties?
'2d. Or, whether the executors of
John Penn the elder, are entitled to receive one fourth part in
value of the said specific bonds and mortgages, for their separate
use and benefit?
'3d. Or, whether the Court will
consider the bonds and mortgages, under the circumstances of the
case, as several, as well as joint, to be followed with the
consequences inferable from such principle?'
On the hearing, Mr. Butler's testimony stated, 'that he was, at
first, the separate agent of John Penn, the younger, when Mr. T.
Francis was the separate agent of John Penn, the elder; that during
this period the bonds, for purchase money of lands sold, were
separately taken, according to the interests of the parties; that
in September 1787, he became the agent of both the Penns, but
continued, for sometime, to take separate bonds; that the
purchasors complained of the expense of giving separate bonds and
mortgages, and he then determined to take them for the joint use of
his principals; that he received no instructions upon the subject,
from either party; and that he was not, in fact, aware of any
difference between taking the bonds jointly or severally.' It,
also, appeared, that Mr. J. R. Coates had been appointed the agent
of John Penn, the younger; and the general question was, whether
Mr. Butler should be directed to deliver up the joint bonds and
mortgages to him, as the agent of the surviving obligee?
Ingersoll and Mifflin contended, against the claim of the
surviving obligee, 1st. That it was founded merely on the mistake,
and misapprehension, of the agent, acting for two parties, having
distinct interests, and giving separate powers. 2d. That, under
such circumstances, a Court of equity can, and ought to, apportion
the securities, by a fair division of them; so that each party may
possess the entire interest and remedy in his proportion. 3d. That
even if an apportionment could not be made, the Court will appoint
a receiver, to collect and divide the joint fund, in the regular
proportions. On these points, the following books were cited: 3 P.
Wms. 158. 21 Vin. Abr. 509. pl. 4. Carth. 16. 1 Eq. Abr. 293.
Page 4 U.S.
354, 357
3 Vez. jun. 628. 631. 399. 2 Com. Dig. 255. 258. 1 Eq. Abr. 290.
A.
Rawle and Dallas, in support of the claim of the surviving
obligee, urged, 1st. That the point of law is clearly in favour of
of the claim; and to set aside a plain rule of law, there must be
strong, controuling, principles of equity, in favour of the
opposite party. 2d. That the act of taking joint securities was not
a mistake, or error; but a deliberate act for the accommodation of
purchasors. 3d. That there was no suggestion of a fraud, a breach
of trust, wilful laches, or probable insolvency, in reference to
the surviving obligee. 4th. That there is, therefore, no foundation
for the interposition of the Court to appoint a receiver; nor to
justify a Court of equity in compelling the parties to accede to an
arbitrary apportionment of the securities. On these points were
cited, Yelv. 177. Vent. 34. 3 Dy. 350. Sheph. 363. 356. 2 Brownl.
207. 1 Eq. Abr. 290. 2 Pow. 263. Ambl. 311. 1 Dall. Rep. 248.
Wallace v. Fitzsimons. 2 Com. Dig. 110. 209. 213. 255. 2 Vern.
556.
THE COURT.
The COURT were decidedl of opinion, that, at law, the surviving
obligee was entitled to the possession of the joint securities,
that he might recover the amount; and that there was no ground
laid, on the present occasion, for the interposition of a Court of
equity. [Footnote 1]
Footnotes
Footnote 1 On this clear
intimation of the opinion of the Court, Mr. Coates liberally
declared, that if the executors of John Penn, the elder, would
concur in giving him immediate possession of the securities, he
would not charge a commission, for collecting and paying their
proportion of the amount; and the proposition was, accordingly,
agreed to
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