1. Where a suit in equity, to enforce a lien on property within
the district, was pending at the time of the passage of the Act of
June 1, 1872, 17 Stat. 196, and a party who was not an inhabitant
of, or found within, the district was thereafter, by an amended
bill, made a defendant,
held that the court could acquire
jurisdiction in the mode prescribed by the thirteenth section of
that act.
2. The objection that the defendants to an amended bill were all
necessary parties to a supplemental bill filed in the same cause
cannot be made for the first time in this Court.
3. A., seised of lands situate in South Carolina, died in 1858.
By his last will and testament, he appointed B. his executor, with
power to sell them and hold the proceeds in trust for his widow and
two minor children, the interest on one-third of said proceeds to
be paid to the widow and that on the other two-thirds to be applied
to the education and support of the children until they should
attain the age of twenty-one years, when the principal was to be
paid to them. B. sold the lands to C. in 1857 for $50,000,
receiving therefor $15,000 in cash and the latter's bonds for the
deferred payments, secured by a mortgage on the lands, which was
duly recorded. In 1861, the widow removed to New York, where she
has since resided. In 1803, C. sold the lands to D. for $100,000 in
Confederate treasury notes. In that currency, C. paid his bonds to
B., who surrendered them, entered the mortgage as satisfied, and
invested the currency in Confederate bonds. The children having in
1806 come of age and assigned their interest in the estate to their
mother, she, on the ground that the surrender of C.'s bonds and the
cancellation of the mortgage were procured by fraud, brought her
bill praying that the bonds of C. be decreed to be subsisting
securities, and the mortgage a valid lien on the lands. The court
below decreed accordingly.
Held that the decree was
proper.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This case was before us at a former time.
86
U. S. 19 Wall. 94. The decree of the circuit court was
reversed and the cause remanded for further proceedings. Such
proceedings have been had, and it is again before us by appeal. A
brief statement of the facts and of the further history of the case
is necessary.
Page 99 U. S. 568
William Carson, of South Carolina, died in August, 1856, leaving
a widow, Caroline, and two minor sons, William and James. He left
considerable personal property, and a plantation known as Dean
Hall. By his will he appointed Robertson and Blacklock his
executors, and directed all his estate to be sold on such terms as
they should deem proper. The proceeds, after the payment of his
debts, were to be divided into three parts, to be held in trust by
his executors. The interest of one-third was to be paid to the
widow. The interest of the other two-thirds was to be devoted to
the education and support of the two sons until they should come of
age. The principal was then to be paid over to them.
The executors sold Dean Hall to Elias N. Ball, and took his
bonds and mortgage for a part of the purchase money. In 1863, Ball
sold the property to Hyatt, McBurney, & Co., a firm consisting
of Hyatt, McBurney, Gillespie, Hazletine, and McGhan. The
conveyance was made to Gillespie and McBurney. The firm paid for
the property in Confederate treasury notes. Out of the proceeds
Ball paid his bonds to Robertson, and took them up and discharged
the mortgage. Blacklock, the other executor, was then absent from
the country, and upon his return refused to recognize the
transaction. Hyatt sold his interest in the plantation to the other
members of the firm, and Gillespie and McBurney gave him a lien
upon it to secure the payment of the purchase money. When the
executors sold this property to Ball, they sold to him also a
considerable amount of personal property on credit, and took his
bond, with W. J. Ball as surety, for the price.
As the sons of the testator came of age they transferred their
entire interest in the estate of their father to their mother. She
filed the bill to set aside the cancellation of the mortgage upon
Dean Hall as fraudulent and void, and to charge Elias N. Ball and
his surety with the amount due upon their bonds given for the
personal property. The bill did not make any member of the firm of
McBurney & Co. a party, except McBurney. Hyatt, it appeared,
was a resident of New York, of which state the complainant was also
a resident and citizen. Elias N. Ball was made a party, but was not
served with process. The circuit court decreed in favor of
Page 99 U. S. 569
the complainant. This Court held that Hyatt was not an
indispensable party, as the decree would not affect his rights; but
that Ball and Gillespie were such parties. The decree was therefore
reversed, and the cause remanded for further proceedings.
After the cause was reinstated in the circuit court, the
complainant filed an amended bill. In the meantime, Elias N. Ball
had removed to the State of New Jersey, had there gone into
bankruptcy, and Elias N. Miller had been appointed his assignee.
Ball afterwards received his discharge and died. The defendants
named in the bill were McBurney, McGhan, Gillespie, and Hazletine,
being all the members of the firm of Hyatt, McBurney, & Co.,
except Hyatt, Robertson, and Blacklock, the executors, and Elias N.
Miller, the assignee in bankruptcy of Ball. We hold, as we held
before, that Hyatt is not an indispensable party. Hazletine could
not be found. He was thereupon notified pursuant to the Act of
Congress of June 1, 1872, 17 Stat. 198, sec. 13. It is objected
that the act could not apply to a suit pending when it was passed.
It was not applied retrospectively, but only as to parties sought
to be brought into the case more than a year after its passage.
Such a result is consistent with its terms. There is no reason why
it should not be so applied. It is a remedial statute, and should
be liberally construed to accomplish the end in view. This
construction is abundantly supported by well considered
authorities.
Southwick v. Southwick, 49 N.Y. 510;
Ex
parte Lane, 3 Metc. (Mass.) 213;
Holyoke v. Haskins,
9 Pick. (Mass.) 259;
Rader v. Southeasterly Road, 36
N.J.L. 273;
Tilton v. Swift & Co., 40 Ia. 78;
People v. Mortimer, 46 Cal. 114; Cooley, Const.Lim.
381.
But as we held before, and still hold, that Hazletine was not an
indispensable party, we forbear to pursue the subject further. He
is sufficiently represented by his copartners, Gillespie and
McBurney, in whom is vested the legal title of the Dean Hall
property. Both of them appeared and answered. Miller, the assignee
in bankruptcy of Ball and Gillespie, was ordered to appear and
plead, answer, or demur to the bill. Both acknowledged service of
the order. This brought them effectually before the court. In
McBurney's answer, he insisted
Page 99 U. S. 570
that Miller, as assignee, and the facts of Ball's bankruptcy,
discharge, and death, could be brought into the case only by a
supplemental bill. The court thereupon ordered such a bill to be
filed for that purpose, and it was filed accordingly. It made
Miller alone a defendant. Here it has been insisted that all the
other defendants to the amended bill should have been made parties
to the supplemental bill also. To this objection it is a sufficient
answer that it does not appear to have been taken below. It cannot,
therefore, be taken here. Were we to hold otherwise, we should in
this respect exercise original, instead of appellate, jurisdiction.
There are other answers equally conclusive, but it is needless to
consume time by adverting to them.
It is also objected that William Carson and James Carson, the
sons of William Carson, deceased, had only a right of action, and
that this right could not be transferred to the complainant. This
is an inverted view of the subject. The bill charges fraud,
conspiracy, and spoliation. If the charge is untrue, the bill
should be dismissed. If otherwise, there is a recoil upon the
wrongdoers, and those intended to be despoiled are unaffected.
Their rights are just what they would have been if the scheme had
been neither conceived nor executed. A different result would be a
legal solecism.
All the obstructions are thus removed from our way to the
examination of the merits of the case.
The last amended bill is silent as to the sale of the personal
property, and the decree relates only to the bonds of Ball for the
purchase money of the plantation and the mortgage securing them
upon that property. The decree charges upon the property the amount
due on the bonds, and directs the mortgage to be enforced in all
respects as if the bonds had not been surrendered and the mortgage
had not been cancelled. McBurney and McGhan are the only
appellants. Our further remarks will be confined to the subject of
the decree.
The executors sold the property to Ball in the spring of 1857
for $50,000. He paid $15,000 down, and gave his bonds for the
balance, secured by a mortgage upon the premises, as before stated.
The property was valuable, and the amount due was well secured. The
debt was payable only in lawful money
Page 99 U. S. 571
of the United States, and the executors had no right to take any
thing in payment but such money or its equivalent. Such was the
condition of things in the spring of the year 1863.
The civil war was then flagrant in South Carolina. McBurney says
that, having a large quantity of cotton on hand and the city being
blockaded, his firm "were willing to change some of their
investments into real estate until peace should be restored." This
was shrewd and wise. The sole currency there was Confederate money.
The Dean Hall property lay invitingly before them, but was
encumbered by a heavy mortgage for the benefit of the widow and the
orphans. The plan was conceived of acquiring the title and getting
rid of the mortgage, both by means of Confederate currency. They
thus executed it: they gave Ball $100,000 in Confederate notes for
the property, and took a conveyance from him. They placed a part of
the Confederate money in his hands, as McBurney says, "to enable
him to pay off his bonds to said executors and to satisfy said
mortgage." Robertson received payment in this paper and thereupon
gave up the bonds, and as soon as he could get access to the record
entered satisfaction of the mortgage. He invested the notes in
Confederate bonds, which became utterly worthless at the close of
the war.
McBurney & Co. and the Carsons thus changed places. The
former still hold the broad acres, while the latter have lost every
dollar of their investment, so well secured at the outset upon the
property. They became, as it were, the insurers of the fate of
battles and of the result of war. There was evidently a plot.
McBurney & Co. were its contrivers, Ball was their instrument,
Robertson was their dupe, and the Carsons were the victims.
If the case stopped here, we could not hesitate as to what our
judgment should be. But in its strictly legal aspect, it is equally
free from doubt.
In
Ward v.
Smith, 7 Wall. 451, this Court held that a valid
payment could not be made to an agent in the Confederate States
during the rebellion in any thing but lawful money of the United
States, or banknotes of the current value of their face, without
the consent of the creditor.
In
Horn v.
Lockart, 17 Wall. 570, an executor had sold
property,
Page 99 U. S. 572
invested the proceeds in Confederate bonds, and his conduct had
been approved and ratified by a decree of the probate court. It was
held by this Court that the investment was void, that the decree of
the probate court was a nullity, and that the executor was liable
to the distributees in good money for the full amount involved.
Fretz v.
Stover, 22 Wall. 198, in its most prominent
features, is not unlike the case before us. There, a citizen of
Pennsylvania, just before the breaking out of the war, took the
bond of a citizen of Virginia, secured by a deed of trust upon real
estate. The attorney of the creditor was the trustee in the deed.
During the war the attorney received payment in Confederate notes,
and Virginia banknotes of no greater value, the entire capital of
the bank having been converted into Confederate bonds. After the
close of the war, the creditor sued for his debt. This Court
adjudged that the transaction between the attorney and the debtor
was illegal, fraudulent, and void, and decreed the enforcement of
the bond and deed of trust.
The question has been raised whether Robertson acted, touching
the bonds and mortgage of Ball, as executor or trustee. The matter
is immaterial in this case. An executor guilty of a
devastavit, whereby assets are diverted from their proper
application, and a trustee guilty of a breach of trust, and their
accomplices, if they have any, are held liable upon the same
principle and to the same extent.
Field v. Schrieffelin, 7
Johns. (N.Y.) Ch. 150;
Hill v. Simpson, 7 Ves. 152.
There can, however, be no doubt upon the point suggested.
"Where the will contains express directions what the executors
are to do, an executor who proves the will must do all which he is
directed to do as executor, and he cannot say that though executor
he is not clothed with any of those trusts."
3 Williams, Executors, 1796.
Proving the will is an acceptance of the trust.
Mucklow v.
Fuller, Jacob 198. Where a trust is created by a will and no
trustee appointed, "the executor is bound to act as such trustee."
Holbrook v. Harrington, 16 Gray (Mass.) 102. In such case,
the sureties in the bond of the executor are liable for his
defaults, whether in one sphere of duty or the other.
Page 99 U. S. 573
Newcomb v. Williams, 9 Metc. (Mass.) 525;
Prior v.
Tulbott, 10 Cush. (Mass.) 1;
Door v. Wainright, 13
Pick. (Mass.) 328;
Towne v. Ammidown, 20
id.
535.
Decree affirmed.