Oliver v. Piatt, 44 U.S. 333 (1845)
U.S. Supreme CourtOliver v. Piatt, 44 U.S. 333 (1845)
Oliver v. Piatt
44 U.S. 333
In cases of trust, where the trustee has violated his trust by an illegal conversion of the trust property, the cestui que trust has a right to follow the property into whosesoever hands he may find it, not being a bona fide purchaser for a valuable consideration, without notice.
Where a trustee has, in violation of his trust, invested the trust property or its proceeds in any other property, the cestui que trust has his option either to hold the substituted property liable to the original trust, or to hold the trustee himself personally liable for the breach of the trust.
The option, however, belongs to the cestui que trust alone and is for his benefit, and not for the benefit of the trustee.
If the trustee, after such an unlawful conversion of the trust property, should repurchase it, the cestui que trust may, at his option, either hold the original property subject to the trust or take the substituted property in which it has been invested, in lieu thereof. And the trustee, in such a case, has no right to insist that the trust shall, upon the repurchase, attach exclusively to the original trust property.
Where the trust property has been unlawfully invested, with other funds of the trustee, in other property, the latter, in the hands of the trustee, is chargeable pro tanto to the amount or value of the original trust property.
What constitutes notice of a trust?
An agent, employed by a trustee in the management of the trust property, and who thereby acquires a knowledge of the trust, is, if he afterwards becomes possessed of the trust property, bound by the trust, in the same manner as the trustee.
Where, upon the face of the title papers, the purchaser has full means of acquiring complete knowledge of the title from the references therein made to the origin and consideration thereof, he will be deemed to have constructive notice thereof.
A co-proprietor of real property, derived under the same title as the other proprietors, is presumed to have full knowledge of the objects and purposes and trusts attached to the original purchase, and for which it is then held for their common benefit.
A purchaser by a deed of quitclaim without any covenant of warranty, is not entitled to protection in a court of equity as a purchaser for a valuable consideration, without notice, and he takes only what the vendor could lawfully convey.
A warranty, either lineal or collateral, is no bar to an heir who dues not claim the property to which the warranty is attached by descent, but as a purchaser thereof.
Whether a bill in equity is open to the objection of multifariousness or not must be decided upon all the circumstances of the particular case. No general rule can be laid down upon the subject, and much must be left to the discretion of the court.
The objection of multifariousness can be taken by a party to the bill only by demurrer, or plea, or answer, and cannot be taken at the hearing of the cause. But the court itself may take the objection at any time-at the hearing or otherwise. The objection cannot be taken by a party in the appellate court.
Lapse of time is no bar to a subsisting trust in real property. The bar does not begin to run until knowledge of some overt act of an adverse claim or right set up by the trustee is brought home to the cestui que trust. The lapse of any period less than twenty years will not bar the cestui que trust of his remedy in equity, although he may have been guilty of some negligence, where
the suit is brought against his trustee, who is guilty of the breach of trust, or others claiming under him with notice.
Where exceptions are taken to a master's report, it is not necessary for the court formally to allow or disallow them on the record. It will be sufficient, if it appears from the record, that all of them have been considered by the court, and allowed or disallowed, and the report reformed accordingly.
There is no principle of the common law which forbids individuals from associating together to purchase lands of the United States on joint account at a public sale.
The record was very voluminous, consisting of nearly eight hundred printed pages. The acts and declarations of the parties were given in evidence, running through a period of twenty years, and the case being an appeal from the decree of the circuit court as a court of equity, all this matter was brought up to the Supreme Court. It is impossible, therefore, to put into this statement all the circumstances which had a bearing upon the point in issue, which was whether a trust did or did not continue in a valuable body of land. The leading incidents in the history of the case are these:
In the summer of 1817, two distinct companies were formed at Cincinnati for the purpose of purchasing lands at the public sales of the United States to be shortly held at Wooster, in the State of Ohio, the object being to lay out and establish a town in the reserve of twelve miles square on the Miami of Lake Erie, since called the Maumee River.
One company, called the Piatt Company, was composed of the following persons: John H. Piatt, William M. Worthington, Gorham A. Worth, and Robert Platt, the plaintiff in the suit below, and now defendant in error.
The other company was called the Baum Company, and composed of the following persons: Martin Baum, Jacob Burnett, William C. Schenck, William Barr William Oliver (one of the plaintiffs in error), Andrew Mack and Jesse Hunt.
What the articles of agreement were between the members of the Piatt Company the record did not show.
On 7 June, 1817, the Baum Company entered into the following articles of agreement, Mack being admitted to half a share, the whole interest was divided into thirteen parts, whereof Mack held one-thirteenth and each of the other persons two-thirteenths:
"We, the undersigned, agree to enter into a partnership for the purpose of purchasing lands and lots at the public sales to be held at Wooster, on the seventh and fifteenth of July next, and for the purpose of effecting the said purchases, we agree to borrow, at the Office of Discount and Deposit at Cincinnati, the sum of eight thousand dollars, for which sum, and for all purchases made by our agents, either at the public sales or otherwise, we hold ourselves
jointly and equally liable. And we do further agree that William C. Schenck, William Barr and William Oliver shall be our agents to explore the lands and make the purchases. And we do agree to confirm and comply with any contracts that our agents aforesaid may make on our account. And it is further agreed that our said agents shall be authorized to take in any other partner or partners that they may see proper, on such terms as they may esteem advantageous. And it is further agreed that in consideration of the services to be performed by the agents above, their expenses, incident to making the purchases aforesaid, shall be defrayed by the other individuals comprising the company."
"In witness whereof we have hereunto set our hands and seals at Cincinnati this the seventh day of June, eighteen hundred and seventeen."
"MARTIN BAUM [SEAL]"
"JESSE HUNT [SEAL]"
"J. BURNET [SEAL]"
"W. C. SCHENCK [SEAL]"
"W. BARR [SEAL]"
"WILLIAM OLIVER [SEAL]"
The Piatt Company appointed Robert Piatt its agent.
On 23 June, 1817, Worthington, John H. Piatt and Worth addressed a letter of instructions to Robert Piatt, their agent, directing him how to proceed, and enclosing $4,000 to make the first payment on the lots of land which he might purchase.
The agents, having made their selections, met at Wooster to attend the sales, and then ascertained that they had each selected the following tracts, viz., 1, 2, 3, 4, 86, and 87. In consequence of this, the following agreement was entered into, viz.:
"We, the undersigned, agree, on behalf of the companies we represent, to-wit: William C. Schenck, of Warren County, Ohio, and William Oliver, of Cincinnati, Ohio, for themselves and for Jacob Burnet, Martin Baum, Jesse Hunt, William Barr and Andrew Mack, all of Hamilton County, Ohio, and Robert Piatt, of Boon County, Kentucky, for himself, and for William M. Worthington, John H. Piatt, and Gorham A. Worth, all of Hamilton County, Ohio, to purchase at the public sales, in July, 1817, at Wooster, lots numbered 1, 2, 3, and 4, at, and including, the mouth of Swan Creek, in Township No. 3, in the United States reserve, at the foot of the rapids of the Miami of the Lakes, for the joint benefit of both companies -- that is, one company to have one-half interest in the whole, and the other company to have the other half, each company paying one-half of the purchase money. It is further agreed that Robert Piatt, in behalf of his company and the company of Schenck and Oliver, shall be the bidder for lots Nos. 1 and 2, and William Oliver for lots Nos. 3 and 4, they being the above four lots at the mouth of Swan Creek. "
"In witness whereof, the parties have hereunto interchangeably set their hands and seals, this 17 July, 1817."
"W. C. SCHENCK [SEAL]"
"WILLIAM OLIVER [SEAL]"
"ROBERT PIATT [SEAL]"
And afterwards the following:
"The undersigned have agreed to purchase, for the joint benefit of their companies, lots or tracts of land numbered 86 and 87, opposite the mouth of Swan Creek, on the same principles that lots numbered 1, 2, 3, and 4, at the mouth of Swan Creek, were purchased, as per agreement between William C. Schenck and William Oliver, for themselves and others, and Robert Piatt, for himself and others, bearing date 17 July, 1817."
"ROBERT PIATT [SEAL]"
"WILLIAM OLIVER [SEAL]"
On 18 July, 1817, in conformity with the above agreements, William Oliver bid in lots Nos. 3 and 4, and on 19 July, Robert Piatt bid in tracts 1, 2, 86 and 87. The original certificates for the tracts bid in by Oliver, were made out in his name, and for the tracts bid in by Piatt, in the names of himself, John H. Piatt, Worth, and Worthington, in conformity with the letter of instructions addressed to him on 23 June.
On 21 July, 1817, Robert Piatt bid in, for the separate account of the Piatt company, the following other tracts, viz.:
North-west quarter-section 2, township 3.
South-west quarter-section 2, township 3.
South-west quarter-section 3, township 3.
North-west quarter-section 3, township 3.
South-east quarter-section 3, township 3.
The first installment of the purchase money for which was paid by the Piatt company.
On 4 August, 1817, Robert Piatt settled an account with the Piatt company, giving them credit for the four thousand dollars above mentioned, and charging them with one-half of the installments which had been paid upon Nos. 1, 2, 3, and 4, and with the whole of the installments which had been paid upon Nos. 86 and 87, and upon the five quarter-sections.
After the return of the agents to Cincinnati, a meeting of both companies was held; the acts of the agents at Wooster were ratified, and the two companies were, in respect to their joint purchases, consolidated in a new company called the Port Lawrence Company. Martin Baum was appointed trustee, for the purpose of carrying out a resolution of the company that a town should be laid out upon a part of the land. It was further agreed that Oliver should be appointed an agent to lay out the town and make sale of the lots, and he was directed, in performing this duty, to call to his
assistance William C. Schenck, another of the original members of the Baum Company.
Each of the companies purchased other lands upon its own private account.
On 14 August, 1817, Oliver executed a bond to Baum in the penal sum of twenty thousand dollars, the condition of which was as follows:
"Whereas the above named Martin Baum hath this day constituted and appointed the before-bound William Oliver his agent with power to lay out a town at the mouth of Swan Creek, on the Miami of the Lakes, and hath authorized the said William to sell and dispose of the lots in said town, agreeably to a letter of instructions, and to receive payment for the same from the purchasers, and to execute and deliver certificates, in the nature of title bonds, for the lots by him sold. Now the condition of the above obligation is such, that if the said William Oliver shall in all things well and truly execute the trust reposed in him by the said Martin Baum, and shall render a true account of his proceedings, when required, and shall faithfully pay over to the said Martin all moneys by him received for or on account of sales made in the town to be laid off by him, as aforesaid, when thereto required, then, and in such case, the above obligation shall cease and determine, otherwise remain in full force and virtue."
On the same day, Baum executed a power of attorney to Oliver, as follows:
"Know all men by these presents, that I, Martin Baum, of Cincinnati, in the State of Ohio, for divers good causes and considerations me thereunto moving, have made, constituted, and appointed, and by these presents do make, constitute and appoint William Oliver, of said place, my true and lawful attorney, for me and in my name, to sell and dispose of the lots in a town to be laid off at Swan Creek, on the Miami of the Lakes, agreeably to a letter of instructions therewith delivered, and to receive payment for the same from the purchasers, and to execute and deliver certificates, in the nature of title bonds, for the lots by him sold, and to all lawful acts requisite for effecting the premises, hereby ratifying and confirming all that my said attorney shall lawfully do therein by virtue hereof. In testimony whereof,"
On the same day, Baum delivered to Oliver a letter and a set of instructions. The letter is as follows:
"Cincinnati, August 14, 1817. "
"SIR: You will observe by the power of attorney this day handed to you that you are appointed an agent to lay out a town at the mouth of Swan Creek, on the Miami of Lake Erie. Your appointment is for one year, commencing this day, for which services so rendered you are entitled to receive from the proprietors twelve hundred dollars. And the proprietors of the lands lying in that
country, but which is a distinct concern from the above, have agreed to allow you three hundred dollars for attending to their separate business."
"Your obedient servant,"
"MR. W. OLIVER"
The instructions were as follows:
"Cincinnati, 14 August, 1817"
"DEAR SIR: As agent for the proprietors of the land recently purchased at Swan Creek, you will, immediately upon the receipt of these instructions, proceed to that place and commence the laying off a town. General Schenck, who accompanies you, will assist in the survey of the ground, in determining the site, and in the arrangement and formation of the plat. In running the streets, and in the division of the lots, it is not the wish of the proprietors that interest or convenience should be sacrificed to form; that the growth of the place should be retarded by a useless adherence to any particular figure, or to any fanciful uniformity of squares. The number of lots to be laid off may be from three to five hundred, and, with the exception of water lots and fractional sections, of about sixty feet in front, and one hundred and twenty feet in depth. The principal or central street should be at least one hundred and sixty feet wide; others from eighty to a hundred; the alleys from twelve to fifteen. Let there be three lots, each of one hundred and twenty feet square, set off for public uses, churches, schools &c., and one, of two hundred and forty feet square, for courthouse and jail. There should also be reserved one or two suitable lots out of the town for burying grounds. It is not, however, the intention of the proprietors to tie the agent down to any specific number of feet and inches in the width of the streets or size of the lots, but they leave to him the exercise of his own judgment, and recommend to him the use of that sound discretion which his better knowledge of the ground, and his practical information, will enable him to display, to the interest and advantage of all concerned."
"As soon as the surveys have been made, and a plat of the town formed, it is necessary that a copy of them should be immediately forwarded to the proprietors, as also a notice of the time of sale, which, if, practicable, should correspond with the time of holding the treaty with the Indians, and on this subject it is necessary that the agent should obtain the earliest information. In the disposition and arrangements of the lots for sale, let one-third of the whole number taken in different sections of the town be reserved for the use and benefit of the proprietors, or for future disposal."
"The terms of sale, one-fourth down, and the residue in three equal annual installments, with interest from date, if not punctually paid, subject, however, to such variations as the judgment of the agent may dictate, or particular circumstances require. An immediate correspondence is to be opened by the agent with Martin
Baum, Esq., of this city, who will act as trustee for the proprietors, and any information given to him in relation to the business of the agency, the sale of lots, and the progress of the town, that may be thought of any consequence to the interests of the proprietors, or that may be required by the trustee. It is the intention of the proprietors to give public notice of the time of the sale, and it is necessary that this notice should be as general and as widely spread as possible; the agent will therefore immediately, upon the times being fixed, forward the proper advertisement to Detroit, Buffalo, Albany, New York, Philadelphia, Pittsburgh, Chillicothe, and to the trustee in this city, for publication. The instructions of the trustee are, in all respects, to be regarded as coming from the proprietors themselves."
"Wishing you a safe and pleasant journey, and an easy and prosperous management of the trust committed to your care, we remain, with great respect &c., your obedient servant,"
"Trustee of the Proprietors"
"To Major WM. OLIVER."
"In another part of the record, the same paper is found, with a few and unimportant variations, but the names of these persons are signed to it, viz., Barr Mack, Burnet, Worthington, Hunt, John H. Piatt, Worth and Baum."
"The agents proceeded to lay out a town, and on 20 September, 1817, offered the lots for sale, according to the following advertisement: "
"Terms of sale"
" Terms of sale of lots in the Town of Port Lawrence: one-fourth down; the balance in three equal annual installments, with interest from the date of purchase, if not punctually paid, and if the whole amount of the purchase money is not paid when the last installment becomes due, the lots now purchased shall revert to the proprietors of Port Lawrence. The undersigned reserve the privilege of one bid on each lot offered."
"W. C. SCHENCK,"
"WILLIAM OLIVER, Agents"
"Miami Rapids, Sept. 20, 1817"
At the sale, seventy-nine lots were sold. Two of them, viz., Nos. 223 and 224, were purchased by Oliver himself, with the assent, as he alleged in his answer, of the company, and of Martin Baum, the trustee.
On 5 October, 1817, Schenck gave to Oliver the following receipt:
"Miami Rapids, Oct. 5, 1817"
"Received from William Oliver, agent, eight hundred and fifty-five dollars and thirty-three cents, the proceeds of sales of lots in the
Town of Port Lawrence, for which I am accountable to Martin Baum of Cincinnati."
"$855.33 [Signed duplicates] W. C. SCHENCK"
In January, 1818, Oliver went to Port Lawrence and spent the winter there. In May, 1818, he returned to Cincinnati, about which time he was elected cashier of the Miami Exporting Company, and entered upon the duties of his office on the 1st of July, 1818.
On 14 August, 1818, Oliver, as it was alleged by him in his answer to the bill, sold and transferred one-half of his interest in the Baum Company, and also in the Port Lawrence Company, to Steele & Lytle, they assuming all outstanding liabilities, and in an early part of the ensuing spring, the remaining half of his interest in both companies to Embree & Williams.
On 19 September, 1818, Oliver and Worthington made a division of the lots in the Town of Port Lawrence, between Martin Baum and John H. Piatt, these persons representing their respective companies. One hundred and fifty-seven lots were assigned to Piatt, and one hundred and fifty-eight to Baum.
On 24 April, 1820, Congress passed an act entitled "An act making further provision for the sale of the public lands," changing the mode of selling lands from credit to cash, and reducing the price from two dollars to one dollar and twenty-five cents per acre. The effect of this law, and of the general embarrassment in the business of the country which occurred about this period, was, as it was alleged in the answer to the bill, to depress the prospects of the companies before mentioned, and the pecuniary condition of the individual members thereof, to such an extent that they resolved to abandon the lands, and forfeit them to the United States, rather than pay the installments which were still due. But before this was done, the intention was changed by another act of Congress.
On 2 March, 1821, Congress passed "An act for the relief of the purchasers of public lands prior to the first day of July, 1820," which allowed a purchaser to file a relinquishment of the land so purchased, upon which the whole purchase money had not been paid, and apply the sums which had already been paid for such land, to the completion of payments which might be due upon any other land.
On 15 September, 1821, Oliver transferred to Baum the certificates of Nos. 3 and 4, which he had bid for at the public sale, as heretofore described; and on 17 September, John H. Piatt, Robert Piatt, G. A. Worth, and William M. Worthington, united in transferring to Baum the certificates Nos. 1, 2, 86, and 87, which they had bid for at the sale; and by the same instrument the last-mentioned parties also transferred to Baum the certificates for the five quarter-sections, which it has already been stated the Piatt Company purchased on their own private account, at the
public sale. Both transfers were absolute, to Martin Baum, his heirs and assigns, forever.
On 27 September, 1821, Baum, to whom the certificates had thus been assigned, filed by Micajah T. Williams, his attorney in fact, a relinquishment of tracts Nos. 1 and 2, and requested that the proceeds of former installments might be applied to the completion of the payments still due upon 3, 4, 86, 87, and the five quarter-sections. The consequence of this transaction was that as Nos. 1 and 2 had been bought at a much higher price than the other tracts, the credit acquired on the books of the government by their relinquishment was more than enough to complete the payments for all the other lands mentioned above, and a surplus existed, in the form of land scrip, which might either have been sold or applied to a payment for other lands. Four hundred and seventy-four dollars and fifty-nine cents of this scrip belonged to the Piatt Company, and was applied by the Baum Company in payment for lands which that company had purchased. The following is the account:
On 27 September, 1821, Oliver made a memorandum, or addressed a letter to some person, stating several particulars which he had attended to at Maumee, directing the land to be run out, counsel to be employed &c.
On 20 January, 1822, Baum presented a petition to Congress representing that he had laid out a town upon tracts Nos. 1 and 2, and sold a number of lots to persons to whom he was bound to give a title; that in consequence of the late law of Congress reducing the price of public lands, he had been obliged to surrender them, and praying that Congress would authorize an immediate sale of those two tracts of land, so as to give him an opportunity to repurchase them at a fair price, and thus be enabled to fulfill his engagements to those who had purchased of him.
On the 10 September, 1822, Baum gave to Oliver the following certificate:
"Cincinnati, Sept. 10, 1822"
"It is hereby certified, that there is due William Oliver, from the Port Lawrence Company, two hundred and thirteen dollars and seven cents, which the said Oliver refunded, by request of the company, to purchasers of lots in Port Lawrence, the title of which has been relinquished to the United States by the company, it being the
amount due on the shares originally owned by John H. Piatt, Robert Piatt, G. A. Worth, and William M. Worthington."
"Agent for the Port Lawrence Land Company"
On 25 of December, 1822, Baum addressed a letter to Hon. E. A. Brown, Washington City, enclosing his petition, to be again presented, and saying, amongst other things,
"Though it is signed by myself only, still others have an interest in it, to-wit, Jacob Burnet, William Steele, M. T. Williams, S. R. Miller, John Rowan, of Kentucky; but, for the sake of convenience, all the lands of the company were transferred to me. The petition gives a true statement of facts; the grounds why those tracts were surrendered to the United States; the injurious operation of the law of Congress (called the relief law) in the case; and the just claim which (I think) I and my associates have on the government for redress,"
In January, 1823, Baum came into arrangements with some of those who had purchased town lots, and to whom he was unable to give a title, agreeing for himself and his associates to repurchase the lots and refund the money which he had received on them.
On 3 February, 1823, Oliver addressed the following letter to Robert Piatt, which was received by him:
"Cincinnati, February 3, 1823"
"DEAR SIR: I have been anxious to see you in relation to the Port Lawrence business, and was on the eve of setting off yesterday for your house, but have concluded to write, requesting the favor of your attention to the matter. In consequence of the company's securing the Port Lawrence property, they are liable to the purchasers for the money received for lots, and as some of my friends in Detroit were disposed to bear pretty hard on me for advising them to purchase, I authorized Colonel Hunt to redeem the certificates of sale from those who had purchased by my advice. The payments made in this way were upwards of $400. M. Baum's company has refunded its proportion, but my claim ($213.07, which is from 19 September, 1822) against you is unsatisfied, and as we are at a loss to know the particular interest of the members of your company, I must ask the favor of your stating the present proprietors, and their respective interests in the concern. Please say when it will be convenient for you to arrange your proportion, as also to request Mr. Grandon to pay on his share or shares. Respectfully, your obedient servant,"
"R. PIATT, Esq."
On 6 February, 1823, Baum addressed another letter to Mr. Brown upon the subject of his petition, representing that the case was a ruinous one to him and his associates &c.
On 3 June, 1823, Oliver exhibited an account against
"Martin Baum and his associates," running from 1818 to June, 1823, and bringing them in debt to Oliver in the sum of $1835.47.
On 27 August, 1823, Baum mortgaged to Oliver tracts Nos. 3, 4, 86, and 87, to secure the payment of the above sum of $1,835.47 with interest from the 1st of September, 1823. The payment was to be made on or before 1 January, 1824.
On 31 January, 1824, Baum addressed a letter to the proprietors of the Maumee and Sandusky Land Company, accompanied by an account between himself and the proprietors of Port Lawrence. The letter was as follows:
"Cincinnati 31 January, 1824"
"To the Proprietors of the Maumee and Sandusky Land Co."
"DEAR SIR: Enclosed, I hand you a statement of the Port Lawrence land speculation, by which you can see how that business stands, to-wit, a balance due me by the company of upwards of $4,755, and is daily increasing with interest. Suits have been commenced against me for the restoration of the money which was paid the company for lots, and the amount of improvements made thereon, as well as for damages. I was obliged to borrow money to compromise and quiet those claims, for fear of incurring heavy damages, great expenses, and much trouble, and probably a total loss of the company's property by sales, or judgments and executions. The lands have consequently been mortgaged for the money borrowed, and unless it is shortly refunded, the lands may yet be sold under the mortgage; it is therefore necessary that the proprietors pay to me their respective quotas, to save their lands from sale. I am extremely anxious to close this business, and therefore propose that I will exonerate you from paying any more money, if you will sell and convey me your interest in all those lands. But, lest you should think that I wish to make speculation out of you, if you will exonerate me from paying any more, I will sell you my interest in these lands, and will thank you to accept the latter proposition. It is needless to go into an explanation, as the account will do it of itself, and my proposition will satisfy you as to the prospects of gain. Please inform me soon what course you intend to pursue."
One of these letters appears to have been directed to Mr. Robert Piatt, and another to W. M. Worthington, Esq.
On 23 April, 1824, Baum authorized and empowered Major William Oliver to lease, let, and rent all the lands, in and outlots, houses, and other property which he owned, or of which he had the control, situate and being within the United States reservation on the Maumee River for the then present season, and also to collect all rents which might be then due on all or any of the said property.
On 28 August, 1824, Baum addressed a letter to G. A. Worth, Esq., a part of which is as follows:
"Cincinnati, 28 August, 1824"
"DEAR SIR: Your favor of 10 April last came duly to hand -- contents noticed. The land speculation has truly been an unfortunate business, and no one can be more tired of it than I am, for it's I who has to stand the brunt of the company -- suits, judgments, executions, with all its attendant vexations. First, our agents were crazy in making purchases at such high rates -- then the madness of Congress in reducing the price of the public lands -- change of times -- scarcity of money -- the impossibility of managing that species of property where so many are concerned; the change of sentiments of persons in holding real estate; in fact all and everything has operated against such speculations; and were I relieved of that concern, an immense burden would be taken off my shoulders, &c."
On 21 September, 1825, Baum gave to Oliver the following power:
"Cincinnati, 21 Sept., 1825"
"I have and hereby authorize and empower Major William Oliver to lease, let, and rent all the lands, in and outlots, houses, and other property which I own, or of which I have the control, situate, lying, and being within the United States reservation, on the Maumee River, for the ensuing season, and also to collect all rents or other moneys due me in and about the town of Maumee and Port Lawrence."
On 5 October, 1825, Oliver commenced proceedings in attachment in Michigan by making the following affidavit:
"Martin Baum, agent for John H. Piatt (since deceased), Robert Piatt, G. A. Worth, and William M. Worthington, to William Oliver, debtor, for the sum of two hundred and thirteen 7/100 dollars, being the amount refunded to purchasers of the lots in Port Lawrence, by request of said Baum, with interest from 10 September, 1822."
"Michigan, Monroe County, ss.: "
"I, William Oliver, of lawful age, do solemnly swear that the sum mentioned in the above account is justly due from the persons therein named; that they do not reside within the Territory of Michigan, and that he has reason to fear, unless an attachment issues upon the property of the persons above named, his debt cannot be recovered."
"Sworn this 5 October, 1825, before me,"
"PETER P. FERRY, Justice of the Peace"
On 7 October, 1825, an order was filed in the office of the Clerk of Monroe County Court, for an attachment against the
rights and credits, moneys and effects, goods and chattels, lands and tenements of the parties above named. The writ was issued on the same day.
On 15 October, 1825, an attachment was laid upon the
Southwest quarter of section 2, township 3.
Northwest quarter of section 3, township 3.
Southwest quarter of section 3.
Southwest quarter of section 4.
The three first of these were included in the original purchase by Piatt and subsequent transfer to Baum. The fourth belonged to some other transaction and is not involved in this case. The whole four were appraised collectively at $1,200.
The suit went on, no one appearing for the defendants, until October, 1826, when it appearing that notice to defendants in attachment had been published nine months, judgment was entered against them, a fieri facias issued, and, on 5 April, 1828, the property was sold to Charles Noble for $241.60, who on the same day conveyed it to Oliver.
Having traced out the proceedings under the attachment to their consummation, it is necessary to go back to the year 1825.
On 13 October, 1825, Oliver filed a bill in the Supreme Court of the Territory of Michigan, sitting as a court of chancery, to foreclose the mortgage which had been given by Baum on 27 August, 1823. Baum being a nonresident, a notice to him to appear was published for nine weeks successively in a newspaper published at Monroe.
On 7 December, 1827, the bill was taken pro confesso, and 5 September, 1828, the court decreed that the property should be sold, which was accordingly done. Oliver became the purchaser, and received a deed from the register, who had been directed to make the sale.
To return again to the chronological order of events.
Congress having made a donation of land to the University of Michigan, the trustees of that institution resolved, on 25 June, 1827, to accept of No. 1 in lieu of a section, in the expectation that in the event that lot No. 2 should revert to the United States, then the same should be considered a part of the section to which they were entitled under the act, and requested the chairman to advertise the Treasury Department thereof.
On 20 July, 1827, Baum addressed a long letter to the Commissioner of the General Land office, giving a history of the Port Lawrence Company, and expressing a desire to repossess Nos. 1 and 2. He then says
"It has been hinted that the trustees of the Seminary Lands of the Michigan Territory have had sufficient influence to delay the sale, with a view to get the privilege of locating these two tracts for that purpose. If this is the fact, I protest against such an arrangement. They have no claim to them whatever, but
mine is a strong one, and I am determined to pursue it in every possible way till I obtain justice."
In August, 1827, Oliver went to Detroit to ascertain if the tracts 1 and 2 could be obtained from the university, but nothing was then done.
On 18 October, 1827, Charles Noble wrote to Benjamin H. Piatt, one of the heirs of John H. Piatt, who had died, and enclosed him a copy of the proceedings in the attachment at the suit of Oliver.
On 18 February, 1828, Piatt acknowledged the receipt of this letter, and desired further information.
On 1 April, 1828, Noble replied, and enclosed a copy of the advertisement of the auditor for the sale of the three quarter-sections of land as before mentioned. The sale was to take place on 5 April, 1828.
On 12 August, 1828, Oliver opened a negotiation with the University of Michigan, proposing to give other lands in exchange for Nos. 1 and 2, which was prosecuted without success for some time.
On 1 September, 1828, Charles W. Whipple, the Assistant Register of Michigan, executed to Oliver a deed for Nos. 3, 4, 86 (excepting sixty acres, which Baum had sold to Prentiss and Tromley in 1823) and 87. The deed recited the proceedings for a foreclosure of the mortgage, and conveyed the property to Oliver, his heirs and assigns forever.
On 13 January, 1830, Congress passed an act, entitled "An act to authorize the exchange of certain lots of land between the University of Michigan and Martin Baum and others."
On 16 August, 1830, Oliver (called in the proceedings of the board the agent of Martin Baum and others) appeared before the trustees of the university on the subject of the exchange of lands, which subject was discussed from time to time.
In December, 1830, Oliver (having previously received an assignment of the final certificates from Baum) obtained patents for the following:
Lot No. 3.
Lot No. 4.
Northwest quarter of section 3.
Southwest quarter of section 3.
Southeast quarter of section 3.
Southwest quarter of section 2.
Being the whole of the five quarter-sections originally purchased by the Piatt Company, except the northwest quarter of section 2.
On 7 February, 1831, an exchange took place between Oliver and the university, the negotiation therefor having resulted in an agreement. Oliver ceded to the trustees:
Lot No. 3, except ten acres reserved.
Lot No. 4.
The northwest quarter of section 3.
The southwest quarter of section 3; and
The southwest quarter of section 2.
The university deeded to Oliver lots Nos. 1 and 2, and authorized the President of the United States to issue a patent or patents to the said William Oliver.
On 4 March, 1831, a patent was issued to Oliver for these lots Nos. 1 and 2.
On 16 May, 1831, Oliver sold to Baum and Micajah T. Williams each one undivided third part of lots Nos. 1, 2, 86, and 87, excepting sixty acres of No. 86, which had been sold by Baum to Prentiss and Tromley. Each of the two parties was to pay $1,555. The necessary provision was made for laying out a town on the property where Port Lawrence was formerly laid out, making partition &c. The 8th article was as follows:
"The parties agree to admit a fourth person as a proprietor -- a man of enterprise and character -- on equal terms with themselves, on his establishing himself permanently at Port Lawrence, and devoting himself to the improvement of the place."
On 19 September, 1832, under the article just mentioned, Stephen B. Comstock was admitted to have an undivided fourth part.
On 22 October 1833, Oliver repurchased from Baum's heirs (for he had died before this time) the whole of Baum's interest under the contract of 16 May, 1831.
On 8 May, 1834, Oliver and Williams sold to Edward Bissell one-fourth part of lots Nos. 1 and 2, for $7,000.
On 23 May, 1834, Oliver sold to Williams an undivided moiety of 86 and 87.
On 17 October, 1834, Oliver sold to Pratt and Taylor one undivided sixteenth part of Nos. 1 and 2, for $4,000. They were also to erect a warehouse, two dwelling houses, and arrange for a line of steamboats to stop at Toledo, as the town was now called. And on the same day he sold to Smith and Macy another undivided sixteenth, on the same terms.
On 30 June, 1835, Oliver sold a portion of the property to Lynde and Raymond, for $13,000; in September, 1835, another portion to Lot Clark, for $1,000, and in January, 1836, another portion to Philander Raymond, for $22,000.
On 21 April, 1836, Robert Piatt, the appellee in the present case, filed his bill of complaint in the Circuit Court of the United States for the District of Ohio, against Oliver and others. But before narrating the proceedings under this bill, it is proper to close the history of the transactions of the parties by stating that on 5 May, 1837, Oliver received a deed from the trustees of the University of Michigan for the property which he had given to
them in exchange as previously related. The property thus conveyed to Oliver consisted of tracts Nos. 3 and 4, the southwest quarter of section No. 2, the northwest quarter of section No. 3, and the southwest quarter of section No. 3. The consideration was $5,000, and the sale was stated in the deed to be made "pursuant to a contract entered into between the said trustees and the said William Oliver, on the twenty-fourth and twenty-fifth days of October, 1834."
To return to the bill, which was filed in 1836. It made Oliver and Williams and a number of other persons, who were the representatives of the original parties, respondents, most of whom appeared. After the pleas, which were filed by the defendants, were overruled, an amended bill was filed.
These bills recite the formation of the Piatt and Baum Companies; their union in the Port Lawrence Company under the circumstances already related; the acceptance of the trust by Baum; the assignment to him of the certificates of purchase the appointment of Oliver as agent; his acceptance thereof; the instructions, bond, and power of attorney; the laying out of the town; the sales of lots, for which the respondents are called upon to account; the relinquishment of Nos. 1 and 2; the application of the credits arising therefrom to the completion of the payments due upon the other tracts; the understanding of the parties that Nos. 1 and 2 should be repurchased for the benefit of all concerned, whenever it should be possible to do so; the application to Congress; the death of John H. Piatt, in 1822; the formation, some short time thereafter, of a fraudulent combination and confederacy between Baum, as trustee, and Oliver and Williams, as agents, for the purpose of cheating the members of the Piatt Company out of their entire interest and claims; that in pursuance of this fraudulent combination Baum issued to Oliver the certificate of debt; that the complainant resided at a short distance from Cincinnati; that about that time, and prior, and long subsequently thereto, he was during some part of nearly every week in Cincinnati in company with said Baum and Oliver, or one of them; that they knew the complainant to be a man of property, well able and willing to pay his just debts; that neither Baum nor Oliver ever gave him the slightest information that any such certificate had been given; that he had received a letter from Oliver, dated on 3 February, 1823; that the mortgage given by Baum to Oliver was without authority, and fraudulent and void; that the assignment of the certificates for the quarter-sections was also fraudulent and void; the circumstances under which the exchange of lands took place with the University of Michigan; the circumstances also under which Williams became interested; that the proceedings in Michigan were coram non judice and void; that if they vested a title in Oliver, it was to constitute him a trustee for the complainant with others, and that Oliver and Williams were acting with a sole view
to benefit themselves at the expense of the complainant and the other co-proprietors.
The bill then enumerates the original parties who were dead, states their representatives and the assignees of the living, and prays that they may all be made defendants.
It then prays for an injunction, a receiver &c.
Most of the parties answered, but a notice of Oliver's and Williams' will be sufficient.
Oliver's answer admitted the formation of the Baum Company, of the Port Lawrence Company, but denied that after the sales any agreement was made to unite the interests in the several tracts; the appointment of Baum as the trustee of the Port Lawrence Company, but denied that the object of the trust was fully stated in the bill; alleged that Baum was authorized to sell and dispose of any of the property on speculation, or for payment of claims against the company &c.; that Baum had also a right to dispose of the quarter-sections to pay the debts of the Piatt Company; admitted the instructions, except some of the signatures; the laying out of the town; the power of attorney from Baum; the letter from Baum fixing the appointment for one year, and the compensation therefor; the sale of lots in the town; alleged that he surrendered up the agency to Baum at the time of his appointment as cashier of the Miami Exporting Company, and that he then closed up his accounts; that his subsequent acts as temporary agent were only to accommodate Baum; that he and Baum had erected a warehouse on one of the lots which he had purchased at the sale, which circumstance drew him often to the town; that he had transferred one-half of his interest in the Baum Company to Steele and Lytle in 1818, and the remaining half to Embree and Williams in 1819; admitted the relinquishment; denied the intention to repurchase; that Baum authorized to negotiate with the university, but that he did so in his own right and upon his own account; alleged that the certificate of debt and mortgage were given upon bona fide considerations; that the members of the Piatt Company, and especially the complainant, were repeatedly urged to satisfy the claims and release the lands; that he, the respondent, bid the full value for the lands, and more than they would have been sold for to others for cash; that the assignment of the certificates was in good faith; explained the reasons which led to an exchange of land with the university; that he purchased back from the university the lands which he had conveyed to it, long after all agency for the companies or for Baum was ended and settled up; denied all fraud and combination; admitted that he had united Baum and Williams in the subsequent attempt to build up a town, and relied upon the lapse of time, the defaults, laches, and acquiescence of the complainant and the statutes of limitation, in bar of the claim set up in the bill. The respondent, moreover, admitted or explained a number of papers respecting
which he had been interrogated, and then prayed that his answer might be considered as a cross-bill.
The answer of Williams admitted the formation of the Baum Company, the subsequent formation of the Port Lawrence Company; averred that in the spring of 1819, Embree, the partner of the respondent, whilst the respondent was absent in Illinois, purchased from Oliver an interest of one-thirteenth in the Baum Company; admitted the relinquishment to the United States of Nos. 1 and 2, which was made by the respondent himself; that the proceeds of the large number of tracts standing in the name of Baum, and thus relinquished, were ascertained in gross, and a credit entered to that amount on the lands retained; that the proceeds of tracts Nos. 1 and 2, were $4,817.55 1/2, and the amount due to the United States, on tracts 3, 4, 86, 87, was $1,372.36, and upon the five quarter-sections $1,248; averred that he did not know what became of the balance of $474.60, except that John H. Piatt and Baum arranged it to their mutual satisfaction; denied that there was any agreement, understanding, or intention, amongst the members of the Port Lawrence Company, to repurchase tracts 1 and 2; averred that after the relinquishment the members of the Port Lawrence Company abandoned Baum, and left him to settle the liabilities of the company as he could; denied all knowledge or belief that the complainant or Baum attended the public sales in 1827 with the intention of repurchasing said tracts for the benefit of the company, but on the contrary intended to purchase them on account of other persons; denied all knowledge or belief that Oliver was authorized by Baum to open a negotiation with the trustees of the Michigan University; averred that in May, 1831, Oliver offered to sell to the respondent one-fourth of tracts 1 and 2, 86 and 87, except sixty acres of 86, for a specified sum, and at the same time offered another fourth each to Martin Baum and Jacob Burnet, which offer the respondent accepted, taking one-third instead of one-fourth, as Burnet declined becoming interested; and in 1832, the respondent purchased an additional sixth from Oliver, which purchases together gave him an interest of one-half, for which he received a deed in fee simple from Oliver and wife; averred that at the time of paying the purchase money and receiving the deeds, he had no notice or knowledge of any right, title, claim, demand, or interest, of the complainant, or the Port Lawrence Company, or any of the members thereof, nor had he any notice, knowledge, information, suspicion, or belief, of any fraud, or breach of trust, or other transactions, matters or things, affecting the titles of said lands, but maintained that he purchased the same bona fide, in good faith, and for a full and fair consideration actually paid.
To all these answers a general replication was filed.
In December, 1840, the bill was taken as conferred by all the defendants who had failed to plead, demur, or answer, and the cause
came on for hearing upon the bills, answers, replications, testimony and exhibits, when the court passed the following decree:
"The court does here find that the law and equity of the case are with the complainant, but because the Court here is not fully advised as to the exact nature and extent of the relief to which the complainant is entitled, so as to enable it to render up a final decree in the premises, it is therefore adjudged, ordered, and decreed that this cause be, and the same is hereby, referred to Aaron F. Perry as special master commissioner, who is hereby instructed to make out, and report to us at our next term, an amount of the sales made in whole or in part of tracts one, two, three, four, eighty-six, eighty-seven, and the five quarter-sections, designating the date and amount of sales in each tract, title made, moneys received and due, and also an account of all moneys expended, either in the purchase or improvement of each tract, by the defendants Williams and Oliver, or either of them, including compensation for the agency exercised in the general management of the property, and such other matters of fact and calculations as either party may deem necessary, in order to a just and equitable decree in the premises, and for that purpose he is hereby invested with power to demand the production of any books, papers, and accounts in possession of either of the parties, to examine them, if necessary under oath, touching any particular matter or thing connected with the matters in contest, to examine and take the deposition of witnesses, to withdraw any exhibit or paper now on file with the clerk, giving a receipt therefor, and perform every act necessary to a proper adjustment of the accounts and transactions of the parties. He is hereby required to deliver to each party demanding the same, a copy of his report, twenty days previous to the next term of this Court, until which time this cause is continued."
In addition to the points upon which the master was directed in the decree to report, the solicitor for the complainant stated twenty-five others, and the respondent fourteen, as matters of fact and calculation which they respectively deemed necessary.
On 3 July, 1841, the master presented a very voluminous report, occupying nearly five hundred pages of the printed record.
To this report the complainant filed twenty-one exceptions, and the defendants ten. They related chiefly to matters of detail and account, which it would be difficult to understand unless the whole report were here inserted.
In July, 1842, other parties were made in place of those who had died; and John Rowan, a citizen of Kentucky, filed his answer voluntarily, claiming an interest of six-thirteenths in the Baum Company.
At the same term, the court referred the case to Edward D. Mansfield, master, to report the deduction of title as claimed by each of the parties.
On 22 July, 1842, the master, in conformity with the above reference, reported the deduction and then condition of the several titles.
At the same term, additional parties were made to represent the dead, and the case was again referred to Mansfield, with the following instructions, viz.:
"To state separate accounts of the compensation which, under all the circumstances, ought to be made to the said William Oliver and to the said Micajah T. Williams for their services, and also an account for expenses in the procurement, management, and improvement, in the value of the trust property, consisting of tracts 1, 2, 86, 87, and the ten acres in No. 3, and that the said master also restate separate accounts touching the moneys or other proceeds arising to said Oliver and Williams, from sales made prior to the filing of the bill, of any parts of said trust property, and also of the account of said Oliver against the Port Lawrence or Piatt Company for advances not heretofore reimbursed."
"In estimating services, expenses &c., the master is to have reference to the advantage derived from said expenses and services &c., as well to tracts Nos. 3 and 4, and the half-section No. 3, and southwest quarter-section No. 2, township 3, as to the tracts before named. And that in performing this order, the master, besides having reference to the papers, depositions &c., now on file, may take further testimony, or further examine the parties if he deems it necessary."
On 27 July, 1842, the master filed a report, entering minutely into the several matters of account, to which four of the defendants took four exceptions.
On 29 July, fresh parties were made in the place of some more who had died, and the master made two additional reports, to which Oliver and Williams took twelve exceptions.
On 30 July, the court pronounced the following final decree:
"1st. That Philip Grandin and Hannah C. Grandin his wife, Marry P. Ewing, Egbert T. Smith and Sarah R. Smith his wife, Nathaniel G. Pendleton, William J. Van Horn and Margaret Van Horn his wife, John Spencer and Susan Spencer his wife, Samuel Perry, as administrator of Martin Baum, deceased, Jacob Burnet, the administrator of William C. Schenck, deceased, William J. Van Horn, as administrator of William Barr deceased, having been duly served with process requiring them to appear and answer the complainant's bills, and they not having appeared, plead, demurred to, or answered the same, as required by the rules of this Court, the said bills, and the matters therein contained, are hereby, as against them respectively, declared to be taken as confessed."
"2d. That the rights of the defendants, Isaac Dunn, the unknown heirs of William Steele, deceased, Alexander Findley and Ann Ellen Findley his wife, Woodhull S. Schenck, Andrew Mack, Israel T.
Canby, and Gorham A. Worth, who are not inhabitants of the State of Ohio, or found within the District of Ohio and jurisdiction of this Honorable Court, if any they or either of them have, or hath, in and to the lands and premises in question, be, and the same are hereby, reserved to them respectively, in as full and ample a manner as if this decree had never been rendered."
"3d. That Eleanor Baum, Egbert T. Schenck, Elizabeth Schenck, James F. Schenck, Jr., Susan Louisa Pendleton, Martha Pendleton, George Hunt Pendleton, Elliott Hunt Pendleton, Ann Pierce Pendleton, Nathaniel Pendleton, Mary Barr William W. Barr and David Barr the infants, defendants, are hereby respectively allowed six months after attaining majority, to show cause, if any he, she, or they, hath or have against this decree."
"4th. And the court further decree that all bona fide sales, interests, and undivided interests, in and to lots in the Town of Toledo, in the ten acres of tract number three, and in the lots 86 and 87, made by the said Oliver and Williams, before the filing of the original bill in this case, together with the sixty acres sold by Martin Baum to Tromley and Prentiss in tract 86, be, and the same are hereby, ratified and confirmed; and as to any of said sales not yet perfected by conveyances, and as to which the outstanding claims upon the purchasers have been reported on, it is decreed that the same inure to the said Oliver and Williams, and they are empowered to receive the amounts due thereon to their own use, and to convey the land to the purchasers. And all donations, appropriations, and dedications of any parts of said several tracts of land for any public use heretofore made, be, and the same are hereby, confirmed to the original purpose of the donation, appropriation, or dedication. And inasmuch as Benjamin S. Brown, to whom, by the resolution of the proprietors, on 17 September, 1837, the lots Nos. 109, 110, 111, were to be conveyed for the purpose of the appropriation of those lots, has departed this life, it is ordered, with the assent of the parties to this suit, in interest, that Richard Mott be, and he is hereby, appointed trustee, instead of said Brown, to carry out said appropriation. And the partition heretofore made between the said Oliver and Williams, and their assignees of interests, be, and the same is hereby, ratified and confirmed to the respective parties thereto, according to the original intent of the same; and it is further decreed that the lease made by the said Williams to Garret D. Palmer, on 24 November, 1840, be, and the same is hereby, confirmed; and the rents accruing and to accrue on said lease, since 1 July, 1842, inure to the benefit of the parties in interest, as settled by this decree."
"5th. That the said Oliver and Williams hold the legal title to the following tracts of land mentioned in the pleadings, not otherwise disposed of in this decree, that is to say: tracts 1 and 2, 86, 87, and ten acres of tract 3, in trust, for themselves and the other
members of the Port Lawrence Company, so-called, and those now holding and representing their interests, as tenants in common, in the proportions affixed to their names, that is to say, dividing the whole into 2832 parts, then the said trust is:"
For Alexander H. Ewing . . . . . . . . . . 989 6-10 parts
John Rowan . . . . . . . . . . . . . . . . 496 6-10
Robert Piatt . . . . . . . . . . . . . . . 219 5-10
John G. Worthington. . . . . . . . . . . . 219 5-10
William Oliver . . . . . . . . . . . . . . 165 5-10
Micajah T. Williams. . . . . . . . . . . . 82 8-10
the heirs of William M. Worthington. . . . 219 5-10
the heirs of John H. Piatt . . . . . . . . 439 parts
"For the said heirs of J. H. Piatt, being Benjamin M. Piatt, Abraham S. Piatt, Hannah C. Grandin wife of Philip Grandin, each one-fourth part of the said 439 parts, and for the heirs of Francis Dunn the other fourth, viz.: John P. Dunn, Jacob P. Dunn, George Dunn, Strange S. Dunn, Hannah M. Tousey wife of George Tousey, Sarah Jane Layton wife of William Layton, each one-seventh of said fourth, and Francis E. Smith, and Adam C. Smith, each one-fourteenth of said fourth."
"6th. And the court do further order, adjudge and decree, that the said Oliver and Williams do, within five months from the date of this decree, by deeds, with special covenants, to be prepared by each of said parties for their respective interests, convey to each of said parties, in fee simple, the undivided proportion of said trust estate affixed to his or her name as aforesaid, together with the undivided interests in the same proportions in the wharves, ferries &c., heretofore reserved for the use of the said Oliver and Williams in their former conveyances; and also the same proportions of all public edifices, materials, and advantages heretofore reserved to the said Oliver and Williams, saving to the said Oliver and Williams the hotel materials, and also, in the same proportions, the interests remaining in the said Oliver and Williams in and to the following common and other property, that is to say, lots numbered 109, 110, 111, 119, 120, 121, 162, and 163, in the Town of Toledo, and any others in which there is any such interest in said Oliver and Williams, they, the said Oliver and Williams, retaining in themselves only the proportions pertaining to them and ascertained as aforesaid. And it is further decreed that the said Oliver and Williams permit the said parties respectively, to enter into the possession and enjoyment of their said portion of said estate as tenants in common. And it is further ordered and decreed, that the said Oliver and Williams, do, within the said sixty days, transfer to the said parties respectively, without recourse, in the same proportions, the demand on the books of said Oliver and Williams against Andrew Palmer, as agent, now amounting, according to the report of the master, to the sum of $5,568.79, and the like demand against Edward Bissell, now amounting, according to said report, to the sum
of $2,427.35; and also the like demand against Stephen B. Comstock now amounting, according to said report, to the sum of $976.62; the said three sums being reported as due from the said Palmer, Bissell, and Comstock of moneys which came to their hands as agents connected with the sale of lots and improvements in said Town of Toledo."
"7th. It is further ordered and decreed, in respect of the moneys heretofore received by the said Oliver and Williams, or either of them, from sales, rents, or otherwise, arising from either of said tracts of land, which is not allowed to the said Oliver and Williams for compensation for their services, or for expenses on account of said trust property, that there remains in their hands, as said trustees, the sum of $2,237.35, which said sum is held by them in trust for themselves and the other parties, in the same proportions heretofore found and decreed as to the said trust lands; and apportioning the same according to said rule, the parties will be entitled to the following sums: "
To said Alexander H. Ewing . . . . . . . . . . . . . . . . $781.76
John Rowan . . . . . . . . . . . . . . . . . . . . . . . . 392.35
Robert Piatt . . . . . . . . . . . . . . . . . . . . . . . 173.40
John G. Worthington. . . . . . . . . . . . . . . . . . . . 173.40
William Oliver . . . . . . . . . . . . . . . . . . . . . . 130.78
Micajah F. Williams. . . . . . . . . . . . . . . . . . . . 65.39
Alice Worthington, executrix and trustee of Wm. M. W. . . 173.40
heirs of John H. Piatt . . . . . . . . . . . . . . . . . . 346.80
"And of the share of the said John H. Piatt, the following are the portions of his heirs, that is to say,"
To Benjamin M. Piatt . . . . . . . . . . . . . . . . . . . $86.70
Abraham S. Piatt . . . . . . . . . . . . . . . . . . . . . 86.70
Hannah C. Grandin. . . . . . . . . . . . . . . . . . . . . 86.70
John P. Dunn . . . . . . . . . . . . . . . . . . . . . . . 12.33
Jacob P. Dunn. . . . . . . . . . . . . . . . . . . . . . . 12.33
George Dunn. . . . . . . . . . . . . . . . . . . . . . . . 12.33
Strange S. Dunn. . . . . . . . . . . . . . . . . . . . . . 12.33
Hannah M. Tousey . . . . . . . . . . . . . . . . . . . . . 12.33
Sarah Jane Layton. . . . . . . . . . . . . . . . . . . . . 12.33
Francis E. Smith . . . . . . . . . . . . . . . . . . . . . 6.16
Adam C. Smith. . . . . . . . . . . . . . . . . . . . . . . 6.16
"And the court order and decree, that the said Oliver and Williams pay, within five months from the date of this decree, the said several sums, except those opposite their own names, with interest; and in default thereof, that execution issue therefor, as at law."
"8th. That the said William Oliver, having held the legal title to the southeast quarter of section 3, township 3, in the said reserve, as trustee, in trust for the complainant and the other members of the Piatt Company, on 25 July, 1835, at the time he sold
and conveyed the same to William J. Daniels, for the sum of $1,000, whereby the said complainant and the other members of said company, their heirs or legal representatives, became, and are now entitled to their proportionate shares of the avails of said sale, with the interest which has accrued thereon, amounting, in the aggregate, to $1,420 -- that is to say, each are entitled to the proportionate shares of said avails annexed to their names respectively, viz.,"
The complainant, one-eighth part . . . . . . . . . . . . $177.50
Alexander H. Ewing, three-eighth parts . . . . . . . . . 532.50
John G. Worthington, one-eighth part . . . . . . . . . . 177.50
Alice Worthington, as executrix and trustee of Wm.
M. Worthington, dec'd, one-eighth part. . . . . . . . 177.50
The heirs of J. H. Piatt, dec'd, two-eighth parts. . . . 355.00
That is to say, of the share of the said John
H. Piatt, his heirs are entitled as follows, to-wit:
Benjamin M. Piatt the sum of . . . . . . . . . . . . . . 88.75
Abraham S. Piatt . . . . . . . . . . . . . . . . . . . . 88.75
Hannah C. Grandin. . . . . . . . . . . . . . . . . . . . 88.75
John P. Dunn . . . . . . . . . . . . . . . . . . . . . . 12.68
Jacob P. Dunn. . . . . . . . . . . . . . . . . . . . . . 12.68
George Dunn. . . . . . . . . . . . . . . . . . . . . . . 12.68
Strange S. Dunn. . . . . . . . . . . . . . . . . . . . . 12.68
Hannah M. Tousey . . . . . . . . . . . . . . . . . . . . 12.68
Sarah Jane Layton. . . . . . . . . . . . . . . . . . . . 12.68
Francis E. Smith . . . . . . . . . . . . . . . . . . . . 6.34
Adam C. Smith. . . . . . . . . . . . . . . . . . . . . . 6.34
"It is therefore further decreed that the said defendant, Oliver, do, within five months from this date, pay to the complainant and the heirs and legal representatives of the original proprietors of the Piatt Company the above sums, annexed to their respective names, with interest from this date, or that executions issue therefor as on judgments at law."
"9th. That Mary P. Ewing, in her own right, and the said Alexander H. Ewing, in right of his wife, the said Mary P. Ewing, being invested with the legal title to the northwest quarter of section 2, township 3, in said reserve, as trustee, in trust for the complainant and those now holding and representing their interest in the Piatt Company; that is to say, in trust for the persons, and in the proportions annexed to their respective names, as follows:"
The complainant, one-eighth part . . . . . . . . . . 20 acres
Alexander H. Ewing, three-eighth parts . . . . . . . 60
John G. Worthington, one-eighth part . . . . . . . . 20
Alice Worthington, executrix, and trustee of Wm
M. Worthington, dec'd, one-eighth part . . . . . . 20
Heirs of John H. Piatt, dec'd, two-eighth parts. . . 40
That is to say,
Benjamin M. Piatt. . . . . . . . . . . . . . . . . . 10
Abraham S. Piatt . . . . . . . . . . . . . . . . . . 10
Hannah C. Grandin, wife of Philip Grandin. . . . . . 10
John P. Dunn . . . . . . . . . . . . . . . . . . . . 1 3/7
Jacob P. Dunn. . . . . . . . . . . . . . . . . . . . 1 3/7
George Dunn. . . . . . . . . . . . . . . . . . . . . 1 3/7
Strange S. Dunn. . . . . . . . . . . . . . . . . . . 1 3/7
Hannah M. Tousey, wife of George Tousey. . . . . . . 1 3/7
Sarah Jane Layton, wife of Gm. Layton. . . . . . . . 1 3/7
Francis E. Smith . . . . . . . . . . . . . . . . . . 5/7
Adam C. Smith. . . . . . . . . . . . . . . . . . . . 5/7
"It is therefore further decreed, that the said Alexander H. Ewing and Mary P. Ewing his wife, do, within sixty days from the date of this decree, by deed, with special covenants (to be prepared by each of said parties for their respective interests), convey to the said parties in fee simple, except the said John G. Worthington, to whom a conveyance of his proportion has already been made, the undivided proportion of said trust estate affixed to his or her name as aforesaid; they, the said Alexander H. Ewing and Mary P. Ewing, retaining in themselves the proportion pertaining to them as ascertained as aforesaid. And it is further decreed, that the said Alexander H. Ewing and Mary P. Ewing permit the said parties respectively to enter into the possession and enjoyment of their said portions of said estate as tenants in common."
"10th. As to the account on file and reported upon by the master, for advances made by Martin Baum for the Port Lawrence Company, the courts find that the amount of the same, with interest to this time, is $2,063.96, which is chargeable upon the said trust estate, and the court further finds that the said claim is now held by the defendant, Alexander H. Ewing, and should be apportioned to the several interests in said property, except the proportion of the said Oliver and Williams, which has been satisfied. The proportions of said demand remaining to be satisfied are as follows, to-wit: "
John Rowan to pay . . . . . . . . . . . . $360.08
John H. Piatt's heirs to pay. . . . . . . 320.38
Robert Piatt to pay . . . . . . . . . . . 160.19
J. G. Worthington to pay. . . . . . . . . 160.19
Wm. M. Worthington's heirs to pay . . . . 160.19
Alexander H. Ewing's share. . . . . . . . 721.29
William Oliver's share. . . . . . . . . . 120.36
M. T. Williams'(8 Pet.) share . . . . . . . . . . 60.18
"And thereupon the court further decree, that the said John Rowan, the heirs of John H. Piatt, according to their portions ascertained in this decree, Robert Piatt, John G. Worthington, the heirs of Wm. M. Worthington, shall each pay the proportion of said account affixed to their names, with accruing interest, within five months, or in default, that execution issue against each for his or her proportion. "
"11th. As to the claim set up by Robert C. Schenck's answer to lot No. 1 in the original plat of Port Lawrence, which was sold to William C. Schenck, and for which Martin Baum, trustee, in his lifetime issued a certificate to Egbert T. Smith, who afterwards assigned the same to the said Robert C. Schenck, who now holds it in his own right, the bill is dismissed, without any prejudice to his, the said Schenck's right, and he has leave to withdraw from the files of this Court his answer and other papers relating thereto."
"12th. As to the costs in this suit, it is ordered, that the costs of this suit be paid by the defendants, according to their several interests ascertained by this decree, within four months, into the hands of the clerk, one docket fee only to be taxed, and that to the complainant, and in default of payment, execution may issue as by law. And the court allows to master Perry the sum of $618 for his services and expenses, to be taxed in the costs -- of which there has been paid to him $50 by the defendant, A. H. Ewing, and $50 by the said Robert Piatt; the balance of the allowance only to be paid said Perry, and the said Ewing and Piatt to be credited with their said advances. And the court allow to the master Mansfield, to be taxed, the sum of $75, for his services in this case."
From this decree an appeal brought the case up to this Court.