Where the complainant set up in his bill that a deed, power of
attorney, and other writings, all which, as alleged, were executed
in contemplation of a suit for the recovery of his patrimonial
inheritance of which he had been unjustly deprived, were obtained
by imposition and fraud, and also that a deed, executed by him in
the adjustment of the estate among the parties participating in the
litigation to recover it, was obtained by like fraud and
imposition,
held that upon the pleadings and proofs, the
allegations are not sustained; on the contrary, the transactions in
both respects referred to were fair, open, and unexceptionable.
This was a bill filed by Collins, to set aside certain
agreements upon the ground that he had been imposed upon and
deceived by Thompson and the other defendants in error.
The facts are all stated in the opinion of the Court.
The circuit court dismissed the bill, and Collins appealed to
this Court.
Page 63 U. S. 247
MR. JUSTICE NELSON delivered the opinion of the Court.
The bill was filed by Collins, to set aside certain conveyances
of a tract of land situate in the City of Mobile, and particularly
a deed from him to the defendants, bearing date the 15th February,
1851, on the ground of fraud and imposition in the procurement of
said conveyances.
The pleadings and proofs are very voluminous, the pleadings
alone covering nearly one hundred, and including the proofs,
exceeding five hundred, closely printed octavo pages. The bill is
very inartificially drawn, being stuffed with minute and tedious
detail of what might have been proper evidence of facts
constituting the ground of the complaint, instead of a concise and
orderly statement of the facts themselves. This has led to an
equally minute and extended statement of the grounds of the defense
in the several answers of the defendants.
In looking closely, however, into the case and into the nature
and grounds of the relief sought, and principles upon which it must
be sustained, if at all, it will be found that the questions really
involved, as well as the material facts upon which their
determination depend, are few and simple, and call for no very
extended discussion.
The father of Collins, the complainant, died in 1811, seized, of
an interest in the tract of land in dispute. He left three sons,
the complainant being then some two years old. The tract
subsequently passed into the possession of one Joshua Kennedy, by
collusion between Inerarity, the administrator of Collins the
elder, and Kennedy, the latter also afterwards
Page 63 U. S. 248
obtaining a deed of the land from the heirs at law by fraudulent
representations.
In 1844, Thompson, one of the defendants in the present suit,
residing in the City of Mobile, and having some knowledge of the
original title of Collins to the land, and of the means by which
the heirs had been deprived of it, visited the complainant, then
residing in Texas, and being the only surviving heir, with a view
to purchase his title, or to obtain an arrangement with him in
respect to it, so that a suit might be instituted for the recovery
of the estate. An arrangement was agreed to accordingly, and a
conveyance of the land executed by the complainant and his wife to
Thompson; also, a power of attorney, authorizing him to institute
suits for the recovery of the land -- Thompson, at the same time,
executing a bond of indemnity to the complainant against all costs
and responsibilities, in consequence of the suit. The complainant
was to receive $10,000, in the event of a recovery. A suit was
subsequently instituted in the name of the complainant against the
heirs of Kennedy, in April, 1844, in the Circuit Court of the
United States for the Southern District of Alabama; was heard upon
the pleadings and proofs at the April term of the court, in 1847,
and a decree rendered in his favor; which, on an appeal to this
Court, was affirmed at the December term, 1850. The case, as
reported in this Court, will be found in
60 U. S. 10
How. 174.
The litigation extended over a period of some seven years, and,
in the progress of it, besides Thompson, who had made the original
arrangement with the complainant, three other persons had become
interested, and had contributed their services and money in
bringing it to a successful termination.
After the affirmance of the decree in this Court, and
confirmation of the title in complainant, all the parties concerned
met in the City of Mobile, at the office of the solicitors, for the
adjustment of their respective claims to the property recovered.
Its value had increased, during the progress of the suit, from
about $100,000, according to the estimate, to some two or three
times that amount. The complainant had originally stipulated for
the sum of $10,000. In this adjustment, one-third
Page 63 U. S. 249
of the whole estate was set apart to him, and one-sixth to each
of the other four persons. Conveyances according to this division
were executed on the 15th February, 1851. The complainant
therefore, according to the general estimate, received $100,000,
and the other four associates $50,000 each.
Now the fraud alleged in the bill, and which is mainly relied on
for setting aside this adjustment and division of the estate
between the parties, is placed upon two grounds:
1. In obtaining the deed of the land, powers of attorney, and
other stipulations relating to the title, dated the 13th January,
1844, preparatory to the institution of the suit in which the
property was recovered; and
2. In the adjustment and division of the property among the
several parties above mentioned, after the recovery had taken
place, and which was consummated by the deed of 15 February,
1851.
1. It is insisted on behalf of the complainant that at the time
he executed the deed, powers of attorney, and the other writings in
1844, he was unacquainted with the value of the property or the
condition of the title; that Thompson, who procured these
instruments, and the authority to commence the suit, was well
acquainted with both; that he fraudulently depreciated the value of
the property, and exaggerated the difficulties and expense
attending the litigation, and thereby deceived the complainant.
This is the substance of the charge.
There is, however, a very brief but most conclusive answer to it
upon the pleadings and proofs in the case. It is that MR. JUSTICE
CAMPBELL, whose firm had been subsequently employed by Thompson to
bring the suit against the heirs of Kennedy, declined the retainer,
and refused to have anything to do with it, unless the complainant
should not only be made sole plaintiff in the suit, but should have
a substantial interest in the estate sought to be recovered; should
attend as the party in interest in conducting the proceedings, and
take part in the preparation for trial; and insisted that the
preliminary arrangement made by Thompson, including the deed of the
property and agreement for the payment of the $10,000, should be
abrogated and given up. All of which was agreed to by Thompson and
the other parties concerned, and the
Page 63 U. S. 250
suit was commenced and carried on to a final determination,
under this new arrangement. The complainant attended, and
participated in the preparation of the case, assisted in procuring
and in the examination of the witnesses, and admits, in his bill,
that he attended every term of the court at Mobile, while the cause
was pending, and until the decree in his favor.
The whole arrangement, therefore, between the parties in respect
to the property, entered into with a view to the institution of the
suit, which is complained of, having been given up, and a new one
substituted, which was not only unexceptionable, but highly
equitable and just, as concerned the complainant, the charge of
fraud and imposition depending upon it, even if originally it had
any foundation, falls with it. We shall not stop to inquire into
the merits or justice of that arrangement, for, having been given
up, they are wholly immaterial in any view of the case, as
presented upon the evidence before us.
2. The remaining ground of fraud relied on in the bill is that
on the day of the arrival of the complainant at the City of Mobile,
from his residence in Texas, and which was his first visit to the
city after the judgment in his favor in this Court, he was
requested to attend at the office of the solicitors, in the
evening, and attended accordingly, where he met the defendants, and
was then, for the first time, informed that they had been
interested in the prosecution of the suit, and had expended much
time and money in the litigation, and were therefore expected to
participate in the division of the property recovered. That
complainant was taken by surprise when the suggestion was made at
the meeting, by the solicitor, that in the division, one-sixth part
of the estate should be given to each of the defendants, and
including Primrose, and only one-third to himself. That he was
unprepared to act with judgment in the matter, having been wholly
unadvised of the object of the meeting, or of the persons who were
to be present; that no time was given him for reflection or
counsel; that he was ignorant of the value of the property, and
incapable of acting understandingly upon the subject, and had no
information as to the amount he was thus suddenly called on to give
away.
Page 63 U. S. 251
That a deed was immediately prepared by the solicitor, to carry
into effect the division as suggested, and was executed, and that
this meeting was arranged by pre-concert, and after consultation
between the defendants and others, for the purpose of entrapping
and deceiving the complainant. The deed referred to is that of 15th
February, 1851, which is sought to be set aside.
This is the second ground of fraud substantially as charged in
the bill, and it will be necessary to look into the answers and
proofs in the case, with a view to see if it is sustained.
The answer of Thompson, which is responsive to this particular
charge, is a denial of every material fact and circumstance upon
which the allegation of fraud rests. It states that one or two days
after the arrival of the complainant at Mobile, he requested him
(the respondent) to go with him to the office of the solicitor that
evening; that he had made an appointment with the solicitor to meet
the respondent, and other persons interested in the suit, there, in
order to come to an understanding and adjustment of their
respective interests. The matters of the adjustment formed the
subject of their conversation during the afternoon, and down to the
time of the meeting. That the respondent explained to him the
understanding he had with his associates, the other defendants, the
services they had rendered in the suit, and the advances of money
made therein; that after all the parties had assembled at the
office, the subject was again talked over at length, and, in the
course of the conversation, the solicitor was referred to, and
desired to suggest what, in his judgment, would be a reasonable
adjustment and division of the property. Whereupon he suggested a
division into six parts -- two parts to the complainant, and one to
Thompson and each of his three associates; that this appeared to be
generally acquiesced in, and it was proposed by someone that the
papers should be drawn and executed. But the solicitor objected,
and advised them to postpone the execution, and reflect upon the
matter, and when they had come to determination among themselves,
it would be time enough to make out the papers; that the
complainant expressed great pleasure and satisfaction at the
division;
Page 63 U. S. 252
other of the parties were not satisfied. But in a few days, all
met at the office of Primrose, one of the parties in interest, when
the deed of the 15th of February, 1851, was voluntarily executed,
carrying into effect the division.
The answer of Cleveland, another of the defendants, is equally
explicit. He states that the subject of the division was talked
over at the office of the solicitor; that all expressed
satisfaction at the division suggested, except Primrose, who
objected to the allowance of two shares to the complainant, he
insisting that the time and labor of others had chiefly contributed
to the success of the suit, and that complainant had originally
expressed a willingness to be content with a small sum; that the
solicitor repelled the idea, and said, that although others had
been chiefly instrumental in carrying the case through, the title
was in the complainant, and he ought to have the largest share;
that the solicitor advised the parties to consider the matter, and,
if he could aid them, to call on him; that the deed carrying into
effect the division was not executed till several days, and
respondent thinks a week, after this, at the office of
Primrose.
James Campbell, another of the defendants, states that, after
the meeting at the office, the subject of the interests of the
parties was talked over; that upon the division suggested by the
solicitor all concurred, except Primrose, who represented his
claims higher than those of complainant; that he had rendered
greater services, and was entitled to a greater share. He
depreciated complainant's title to the estate, insisting that he
alone could have made nothing out of it, and had always said he
would be satisfied with some negroes and cattle; that the solicitor
replied to him, that without complainant's title there could have
been no recovery; and that, whatever others had done, still the
title was in the complainant, and that he, the solicitor, had
undertaken the suit with the distinct understanding and agreement
that complainant was to have a substantial interest in the
recovery. The respondent denies that the deed was drawn or executed
the evening of the meeting, nor until several days afterwards.
These several answers are directly responsive to the charges
Page 63 U. S. 253
in the bill, and are to be taken as true, unless overcome by the
proofs. Instead of impeaching, the proofs are all in support of
them.
Primrose, a witness on the part of the complainant, and who was
one of the parties in interest, and present at this meeting,
confirms the facts as above stated. In his answer to 43d
interrogatory, he says in substance that, after conversation at the
meeting relating to the subject before them, all seemed willing to
leave the division to the solicitor, who thereupon suggested
one-third to the complainant and one-sixth to each of the others;
that he the witness objected, as giving too great a share to the
complainant, and that he made some remarks about the condition of
the title, when he and the others undertook the suit; that
complainant at that time had said he would be satisfied with a
comparatively small sum, and that the solicitor replied to him,
that the title to the property was in the complainant, besides
making other observations which he the witness did not
recollect.
This witness further says, in answer to the 43d
cross-interrogatory, speaking of the division,
"All but myself did acquiesce. So far as I could judge, the
complainant was satisfied, and I was disappointed. . . . Judge
Campbell maintained Collins' right to two shares against me. The
parties talked some of the matters over freely and considerably. It
consumed a winter's evening, or greater part of it. . . . I do know
Collins was pleased, and considered the settlement fair, just, and
liberal towards him."
Judge Campbell the solicitor, has also been a witness in the
case. He states that after some reference to the subject at the
meeting and interchange of views, one of the parties stated that he
was willing to abide by his opinion as to the share he should be
entitled to, and others indicated a wish that he would make some
suggestions as to the proper adjustment. In answer to which, he
suggested a division of the property into six parts, and that two
should be assigned to the complainant; that Primrose expressed
dissatisfaction, insisting the part to be assigned the complainant
was too large; that his title was good for nothing, and that the
success in the
Page 63 U. S. 254
suit was owing to the ability with which it was prosecuted, that
complainant did not expect so large a share; that he had said all
he wanted was a few negroes and some cattle.
The witness further states, that he took pains to answer these
objections; and, after some further conversation, the parties left
his office; that he told them when they left to take into
consideration what had been said, and that if he could be of any
service to them, to call at his office again; that no agreement was
arrived at that evening, and no papers drawn up of any agreement
between the parties; that the deed of February, 1851, was not
prepared by him till several days after this, and that he had not
learned of its execution till the week after its preparation.
It is useless to pursue the inquiry further, as the proofs in
the case are all one way, and show that there is no foundation
whatever, not even colorable, for the charge of fraud set forth in
the bill.
Besides the entire want of proof to sustain it, the evidence
shows that possession of the property was taken by the parties
jointly, after the settlement, in the summer of 1851. Extensive and
valuable improvements were made in the course of the years
1852-1853, under the direction of the complainant and others. The
sales in 1853 had amounted to $92,000, as stated in the bill.
The property continued under the joint management of the parties
for the period of some three years, without complaint or
dissatisfaction on the part of Collins, when suddenly, without any
apparent reason or changed condition of affairs between him and his
associates, he seems to have taken up the delusion that he had been
circumvented, and deceived into an inequitable settlement of the
estate among the parties, in February, 1851, and for the first time
set up a claim to the whole of it.
It is suggested in the bill, that the large sales made of the
property in 1852-1853 afforded the complainant the first evidence
of the great value of the estate, and it appears, from other
portions of the case, that the increased and increasing value of
the property had the effect to unsettle the views and
Page 63 U. S. 255
opinions upon which he had acted in the settlement with his
associates in February, 1851, and led to a strong desire to recall
and review them.
But the suggested ignorance of the great value of the property
at the time of the settlement is against all the proof in the case.
His bill, filed against the heirs of Kennedy in April, 1844, for
the recovery of this property, contains the following allegation:
"Your orator charges that the said property was worth $20,000 and
upwards in 1820, $75,000 in 1830, and is probably worth $200,000 at
this time."
The great value of the property, compared with the consideration
paid by Kennedy, was a very material fact in the case. Besides, the
complainant had spent much of the time pending that litigation in
the City of Mobile, in which the property was situate, and must
have been familiar with its value, present and prospective. He was
then in the prime of life, and possessed of more than ordinary
intelligence in business matters, as is apparent from his
correspondence, to be found in the record.
Having succeeded in the recovery, and obtained possession of the
estate, he seems to have forgotten the obligations he was under to
his associates. Their exertions and means had been mainly
instrumental in raising him from poverty to affluence. They had
advised him of his claim or title to the property, collected the
necessary evidence to establish it, employed the counsel, and even
furnished him Collins with the means of support, and to enable him
to cooperate in the prosecution of the suit pending the litigation.
The suit was severely contested, and was of some seven years'
duration.
Still stronger evidence that, after his success, he was ready to
forget his obligations to those mainly contributing to it, is the
fact that his solicitor has not even escaped his insinuations of
bad faith in his connection with the suit, though it was disclaimed
on the argument by his counsel, thus contradicting all his opinions
and feelings, strongly and repeatedly expressed pending the suit,
and long after its termination and the settlement between the
parties. The solicitor had no interest in the property or in its
distribution. His fee was not
Page 63 U. S. 256
dependent upon it. He was, therefore, wholly disinterested in
the matter, and well situated to act as the friend of all parties
in the settlement.
As we have already stated, before the commencement of the suit,
he refused to be connected with it unless the complainant should be
permitted to have a substantial interest in the estate, and
repudiated the arrangement by which he was to receive only $10,000.
After the recovery, and in the settlement among the parties, he
stood firmly by this original understanding, and insisted that he
should have a double share. So far as appears from the evidence, it
is entirely owing to the sense of justice and firmness of Judge
Campbell the solicitor that the complainant is now in the
possession and enjoyment of some $100,000 of his patrimonial
inheritance, instead of the $10,000 for which he himself had
stipulated.
The decree of the court below is affirmed.