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Dade v. Irwin's Executor. 2 H.

2n 383 19h 278 2b 551: 7 wa618 15 wa 228

JANE DADE, Complainant, . THOMAS IRWIN, Jun., Executor of
Thomas Irwin, deceased, and WILLIAM L. HODGSON, Defendants.

2 H. 383.
A decrec having been made for a sale of real property conveyed to a trustee to secure pay-

ment of a debt, a bill does not lie to restrain the sale on account of a claim to set-off an independent debt, no peculiar equity, such as the insolvency of the debtor, the plaintiff in

the first suit, having intervened. Courts of equity do not take jurisdiction to compel offsets of unconnected debts, generally;

there must be some special ground for the relief, such as mutual credit on the faith of the

A court of equity will not interfere to compel an offset of a stale and suspicious claim.

The case is stated in the opinion of the court.

Neale and Brent, for the appellant.

Jones, contrà.

[ * 389 ] STORY, J., delivered the opinion of the court.

This is an appeal from the circuit court of the District of Columbia, sitting in Alexandria.

In the year 1824, the appellant, Jane Dade, became indebted to Thomas Irwin, the testator, and executed two deeds of trust for the security of the debt. At the November term of the circuit court of Alexandria county, 1830, Irwin, the executor, filed his bill to obtain a decree of the sale of the estate so conveyed in trust; and a decree was made without objection for the sale, the appellant admitting the justice of the claim; and the original trustee having become insane, William L. Hodgson was appointed trustee to make the sale. After sundry delays, the trustee advertised the estate for sale on the 28th of November, 1834; and on the day preceding the intended sale the present bill was filed by the appellant for an injunction against the sale. The bill made no objection to the original debt or decree, but simply set up a claim, by way of set-off or discount, of a totally distinct nature, and unconnected with the original debt, as due by the testator to her, and for which she alleged in her bill that she ought to receive a credit, to which in equity and strict justice she was entitled. The claim thus set up had its origin in this manner. In May, 1821, James Irwin gave his note for $826.63 to John Adam or order, for Mrs. Dale, for money borrowed of her, which note was indorsed by Adam, and on the same day James Irwin, as collateral security therefor, assigned to Adam a debt due to him by Alexander Henderson for cordage sold him by Thomas Irwin (the testator) as his agent, and for which the assignment alleged Thomas Irwin was liable, having received Henderson's note without the consent of

Dade v. Irwin's Executor. 2 H.

James Irwin. Upon the back of this assignment there now purports to be the following indorsement: “If the within debt cannot be recovered from Alexander Henderson, I am liable for the same, provided full time be allowed for the prosecution of the suit.” The supposed note referred to in the assignment, was dated in January, 1804, and was for the payment of $901.83 to the order of Thomas Irwin, and was signed by Alexander Henderson and Co. This note the bill alleged to include the debt due to James Irwin. Judgment was obtained upon this note in 1805. Afterwards Henderson, in 1806, became insolvent, and in 1816 a bill in equity was filed for the satisfaction of the judgment out of supposed effects in the hands of certain garnishees, which suit was not finally disposed of until October, 1835, and was then abated by Henderson's death.

The answer to the present bill by Thomas Irwin, the [ * 390 ] executor, denied the whole equity thereof. It denied that James Irwin ever executed the supposed assignment. But he admitted the origin of the debt due by Henderson and Co., and that the note taken by the testator, included it; but that Henderson, having become insolvent, he was not liable for that amount, and charged it in his accounts against James Irwin and Co. He also denied the supposed indorsement on the assignment to be genuine, but alleged the same to be a sheer fabrication.

The injunction prayed for by the bill was granted, and afterwards the court directed an issue to be tried by a jury to ascertain whether the testator's signature to the indorsement was genuine or not. That issue was tried by a jury, who were unable to agree upon a verdict. The order for an issue was then rescinded, and the cause came on for a final hearing in 1839, when the bill was dismissed with costs. There is a great deal of evidence on both sides as to the genuineness of the signature of the testator, and also as to the appearance of the ink of the indorsement being that of recent writing. It is also remarkable that in the long interval between the time when the deed of trust was given in 1824, and the time when the sale was advertised and the bill filed, no demand was ever suggested by or on behalf of Mrs. Dade for the present supposed debt due her as a set-off or otherwise. On the contrary, although repeated and earnest applications were made for delay of the sale, from the time of the decree in 1830 until the advertisement in 1834, and some correspondence took place on the subject, no allusion whatsoever was made to any such supposed claim or set-off; but an entire silence existed on the subject. It is also somewhat singular, that when the bill

upon the trust deed was filed and the decree therein obtained, no suggestion was made by Mrs. Dade in answer thereto of this supposed

Dade v. Irwin's Executor. 2 H. claim, nor any postponement of the decree of sale asked


this account.

Now, upon this posture of the case, several objections arise as to the maintenance of the suit. In the first place, the present bill is of an entirely novel character. It is not a bill of review, or in the nature of a bill of review, founded upon any mistake of facts, or the discovery of any new evidence. It admits in the most unambiguous terms that the decree was right. Then, it sets up merely a crossclaim or set-off of a debt arising under wholly independent and unconnected transactions. Now it is clear that courts of equity

do not act upon the subject of set-off in respect to dis[ * 391 ] tinct and "unconnected debts, unless some other peculiar

equity has intervened, calling for relief; as, for example, in cases where there has been a mutual credit given by each upon the footing of the debt of the other, so that a just presumption arises that the one is understood by the parties to go in liquidation or set-off of the other. In the next place, the remedy for Mrs. Dade, if any such debt as she has alleged exists, is at law against the executor; and there is no suggestion that the estate of the testator is insolvent, and that his assets cannot be reached at law. So that the bill steers aside of the assertion of any equity upon the foundation of which it can rest for its support.

In the next place, the nature and character of the claim itself, now for the first time made, long after the decease of both the Irwins, and thirteen years at least after its supposed origin. To put the case in the least unfavorable light, it is a matter of grave doubt whether the indorsement of the testator's name on the assignment is genuine or not. That very doubt would be sufficient to justify this court in affirming the decree of the court below, and leaving Mrs. Dade to her remedy at law, if any she have. But connecting this with such a protracted silence for thirteen years, without presenting or making any application for the recognition or allowance of the claim to the testator or his executor, it is impossible not to feel that the merits of the claim at such a distance of time, can scarcely be made out in favor of the appellant. It is stale, and clouded with presumptions unfavorable to its original foundation, or present validity. Besides, in cases of this sort, in the examination and weighing of matters of fact, a court of equity performs the like functions as a jury; and we should not incline, as an appellate court, to review the decision to which the court below arrived, unless under circumstances of a peculiar and urgent nature.

The decree of the circuit court is, therefore, affirmed with costs.

1 See 2 Story, Eq. Jurisp. $$ 1435, 1436.

Minor v. Tillotson. 2 H.

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WILLIAM J. MINOR, and CathaRINE, his Wife, Plaintiffs in Error, v.

Shubal Tillotson.

2 H. 392. If the record of an action at law in Louisiana contains the evidence, but no bill of exceptions,

and nothing raising any points of law distinct from the evidence, this court cannot revise the judgment on a writ of error.

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The case is stated in the opinion of the court. For a motion to dismiss at a former term, see 1 H. 287.

Walker, for the plaintiffs.

Webster, contrà.

M'LEAN, J., delivered the opinion of the court.

This case is brought here by a writ of error, to the circuit court for the eastern district of Louisiana.

The action was commenced in the circuit court, to recover possession of certain tracts of land specified in the petition, and for damages, &c.

The defendant set up a title to the premises and pleaded prescription, under the various laws of Louisiana.

* This cause was before this court at January term, 1833, ( * 393 ) on a writ of error, and was reversed and sent down for further proceedings. In the court below, the death of the plaintiff was suggested, and a supplemental petition was filed, making his heirs and representatives parties to the suit. The pleadings were amended, and a jury being called and sworn, evidence was heard by them, and certain exceptions taken to its admissibility by the defendant. But afterwards, by consent of parties, the jury, before they rendered their verdict, were discharged. The cause was then submitted to the court, under an agreement between the counsel, that “ the documents filed in the cause, the plans, and written depositions, contain all evidence and exhibits on which this cause was tried by the court; the whole was read, subject to all legal exceptions except as to the form of taking the verbal testimony; and all other objection to the testimony, accounts, and plans, are to be argued as though the bills of exceptions were drawn out in form, signed and filed. The agreement is made for a statement of the facts in the case.”

A large mass of evidence was received from both parties, consisting of concessions and grants under the Spanish government, intermediate conveyances, documents showing proceedings in regard to the title under the laws of the United States, and parol testimony,

Minor v. Tillotson. 2 H.

involving a great variety of facts, on a consideration of all of which a judgment was rendered by the circuit court for the defendant.

From the record, it is impossible for this court to say on what grounds of law or fact the circuit court gave judgment. No point as to the admissibility or effect of the evidence was raised on the record by the plaintiffs in error in the circuit court. It seems to have been supposed that the above agreement of the counsel, that the evidence in the cause should be considered as a statement of facts, subject to all legal objections, though no objections were stated, was sufficient ground for a writ of error on which a revision of the legal questions in the case might be made in this court.

In this view, the writ of error must be considered as bringing all the facts before this court, as they stood before the circuit court. And this court, exercising a revisory jurisdiction, would be required to try the cause on its merits. This is never done on a writ of error, which issues according to the course of the common law. Under the Louisiana system a different practice may prevail. But, we had supposed, that since the decisions of the case of Parsons v. Bedford et al. 3 Pet.

445, there could be no misapprehension in regard to the [*394 ] * proceedings of this court on a writ of error. In that case,

the court say: " It was competent for the original defendant to have raised any points of law growing out of the evidence at the trial, by a proper application to the court; and to have brought any error of the court in its instruction or refusal, by a bill of exceptions, before this court for revision. Nothing of this kind was done or proposed. No bill of exceptions was tendered to the court, and no points of law are brought under review." And the court go on to consider the effect of the act of 1824,' in regard to the Louisiana practice, and hold that that law does not change the exercise of the appellate power of this court.

The case referred to had been tried by a jury, but in regard to the revisory power of this court, on a writ of error, there is no material difference between that case and the one under consideration. In both cases the facts were upon the record, and this court were called upon to determine the questions of law arising upon the facts.

In the case of Parsons, the court do say: “That if the evidence were before them, it would not be competent for the court to reverse the judgment for any error in the verdict of the jury.” And they say, the refusal of the court, to direct the evidence to be entered on the record, as required under the Louisiana practice, was not matter of error.

14 Stats. at Large, 62.

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