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of 1793 forbids any injunction from a federal court to restrain the prosecution of a suit in a state court; and this act has never been repealed, either expressly or by implication, except as to proceedings in bankruptcy. Rev. St. $ 720; Peck v. Jenness, 7 How. 625; Taylor v. Carryl, supra; McKim v. Voorhies, 7 Cranch, 279; Diggs v. Wolcott, 4 Cranch, 179; Watson v. Jones, 13 Wall. 679; Haines v. Carpenter, 91 U. S. 254; Dial v. Reynolds, 96 U. S. 340.

For these reasons, I am of opinion that the judgment of the state court should be affirmed, and I am authorized to say that Mr. Justice GRAY concurs with me in this conclusion.

(110 U. S. 238) CHOUTEAU and others v. BARLOW, Surviving Executor, etc., and

others.

(January 28, 1884.)

DECREE OF CIRCUIT COURT REVERSED-QUESTION OF FACT-AGREEMENT OF

DIESOLUTION OF COPARTNERSHIP.

The decree of the circuit court was reversed on a question of fact as to whether

an agreement of a certain character was made between the copartners in a firm, on its dissolution, as to the interest which the copartners should have in the future in a portion of its assets.

239

Appeal from the Circuit Court of the United States for the District of Minnesota.

Melville C. Day and Roscoe Conkling, for appellants. W. P. Clough and Wm. D. Shipman, for appellees. *BLATCHFORD, J. The bill of complaint in this case was filed in January, 1876, in the circuit court of the United States for the district of Minnesota, by Samuel L. M. Barlow, sole surviving executor of the last will, and trustee of the estate, of John F. A. Sanford, deceased, (his co-executor and co-trustee, Frederick C. Gebhard, having died in 1867,) and the widow and two of the three children of Sanford, as plaintiffs, against the following defendants: Charles P. Chou. teau and Julia Maffitt, the heirs at law and legatees and devisees of Pierre Chouteau, Jr., deceased; the executors of the will of said Pierre Chouteau, Jr.; the heirs at law and legatees and devisees of John B. Sarpy, deceased; the executors of the will of said Sarpy; the widow and residuary legatee and devisee of Joseph A. Sire, deceased; the sole surviving executor of the will of said Sire; Benjamin C. Sanford, the other child of Sanford; and numerous persons alleged to claim an interest in some of the land which is the principal subject of the suit. The averments of the bill, so far as they are material, are as follows: Pierre Chouteau, Jr., Sarpy, Sire, and Sanford, in 1842, formed a copartnership under the firm name of P. Chouteau, Jr., & Co., for the purpose of dealing in real and personal property at St. Louis, Missouri, and in the region of country Tying to the northward of that city. The capital was to be furnished, and the profits and losses were to be shared by the several copartners in the following proportions: Chouteau, 58 per cent.; Sarpy, 16; Sanford, 16; Sire, 10. In 1849 a change was made, whereby the assets were to be owned, and the profits and losses to be shared, in the following proportions: Chouteau, 48; Sarpy, 17}; Sanford, 17}; Sire, 17}. In 1852 the copartnership was dissolved by mutual consent. During its existence it bought and paid for with copartnership funds acre lands and town lots in Wisconsin and Minnesota, to hold and sell for the profit and benefit of the copartnership, and among them certain lots named in schedules to the bills. As to some of the lots the title was taken in the name of one Borup, and in September, 1855, he and his wife conveyed the same to said copartnership with other lands belonging to it, which he held in the same way. As to others of the lots the title was taken in the name of one Sibley, and in September, 1855, and February, 1856, he and his wife conveyed the same to said copartnership with other lands belonging to it, which he held in the same way. In March, 1857, one Robert conveyed to said copartnership other land in St. Paul, Minnesota, which it then possessed and paid for with copartnership funds. Besides the land named in schedules to the bill, town lots in various town and villages, and acre lands in various counties in Minnesota, were purchased and paid for by said copartnership, and conveyed to it by deeds. The property so conveyed to it was the property of its said members in the proportions last mentioned. Sire died in 1854, and Sarpy and Sanford died in 1857. In December, 1859, Benjamin C. Sanford released to the widow and the other two children of his father all his interest in the estate of his father. Pierre Chouteau, Jr., died in 1865.

The bill then contains the following averments, which set forth the particular question in controversy :

“The said copartnership was dissolved by the said John F. A. Sanford, deceased, retiring therefrom, and removing from St. Louis, where he then re sided, to the city of New York, to there reside and carry on business in copartnership with the said Pierre Chouteau, Jr.; and, as your orators are informed and believe, it was agreed upon between the said Sanford and the other three copartners, and particularly the said Pierre Chouteau, Jr., as one of the conditions of the withdrawal of the said Sanford from the copartnership, that he, the said Sanford, should release to the said Chouteau alī his interest in and to the assets of the said copartnership, except the lands and town lots thereof in Minnesota; and that in consideration thereof, and of his withdrawal from the said copartnership, the said Chouteau should save him, the said Sanford, harmless, on account of the debts of the said copartnership, and should assure to him, free from any debt or liability growing out*of the copartnership affairs, the share of him, the said Sanford, in and to the said lands and town lots, being seventeen and one-third one-hundredth (173-100) parts thereof. In pursuance of such agreement the said Sanford did, as your orators are informed and believe, upon the dissolution of the said copartnership, and as part of the arrangement between the copartners for such dissolution, released to the said Pierre Chouteau, Jr., all his interest in the assets of said copartnership, except in the said lands and town lots; and the said Chouteau afterwards, and in his life-time, realized all said assets so released, and applied them to his own use."

The gravamen of these allegations is that Pierre Chouteau, Jr., took from Sanford a release of all his interest in the copartnership assets, except the lands and lots in Minnesota, and was to save San. ford harmless from all debts of the copartnership, and Sanford was to have his 17} per cent. of the said lands and lots, free from any debts or liability growing out of the copartnership affairs; and that Pierre Chouteau, Jr., realized all the assets so released and applied them to his own use. It is to enforce this claim to the proceeds of the Minnesota lands and lots, free from the debts of the copartnership, that this suit is especially brought.

The bill then sets forth the following matters: On the dissolution of the St. Louis copartnership Sanford removed to the city of New York, and there engaged in business in copartnership with Pierre Chouteau, Jr., under the firm names of Pierre Chouteau, Jr., & Co., and Chouteau, Sanford & Co., in which copartnership he continued to carry on business until his death. After the death of Sanford, and after the issuing to Messrs. Gebhard and Barlow of letters testamentary on his will, and in November, 1859, Pierre Chouteau, Jr., and Messrs. Gebhard and Barlow, as such executors and trustees, entered into an agreement or compromise concerning all the mutual dealings between Chouteau and Sanford in relation to the business of the New York firms, and concerning all indebtedness and liability of every nature and kind of Sanford to Chouteau. By the terms of said agreement or compromise Messrs. Gebhard and Barlow were to release to Chouteau all the interest of Sanford in the assets of the New York firms, and in consideration thereof, Chouteau was to release to Messrs. Gebhard and Barlow, and to the heirs and legal representatives of Sanford, all claims and liabilities against Sanford or his estate, due or owing, or to become due or owing, to Chouteau, on account of any prior transactions between them. Upon the making of such agreement or compromise, Messrs. Gebhard and Barlow submitted the same to the surrogate of the county of New York, and he, on Novem. ber 25, 1850, made an order allowing the agreement or compromise to be entered into and carried out. Afterwards, and on December 1, 1859, Messrs. Gebhard and Barlow, to carry out said agreement or compromise, signed, sealed, and delivered to Pierre Chouteau, Jr., their deed, whereby they, as executors and trustees, released to him all the right, title, and interest which Sanford, at the time of his death, had in or to the assets of the New York firms; and Chouteau, on the same day, in pursuance of said agreement or compromise, and to carry it out on his part, signed, sealed, and delivered to Messrs Gebhard and Barlow his deed, releasing the heirs next of kin, legatees, devisees, and legal representatives of Sanford from all causes of action, claims, and demands, in law or equity, which he, Chouteau, ever bad, or which he, his heirs, executors, or administrators thereafter could or might have, against Sanford or against his heirs, next of kin, devisees, legatees, executors, or administrators, by reason of any matter whatsoever.

The bill further avers that no accounting or settlement of the af. fairs and business of the said St. Louis copartnership had ever been had except as was thereinbefore stated. It further alleges as follows: Since the death of the four copartners, the defendants C. P. Chou. teau and Mrs. Maffitt, claiming, as the heirs at law and devisees of Pierre Chouteau, Jr., to own all the said real estate of the copartnership, sold and conveyed to various persons certain of said lots and lands, and received therefor large sums of money, without the knowl. edge or consent of the heirs, devisees, or legal representatives of San. ford, and in fraud of their rights, and for less than one-half of the actual value at the time of sale, of the property sold, and for the purpose of defeating the rights of the plaintiffs in the property, leav.: ing certain lands and lots unsold; and that those made defendants, as claiming an interest in some of the lots of land, took such interest through conveyances from the defendants C. P. Chouteau and Mrs. Maffitt, with notice that the lots belonged to the heirs, devisees, and legal representatives of Pierre Chouteau, Jr., Sire, Sarpy, and Sanford, and not merely to their grantors, and with notice that the plaintiffs, as the successors in interest of Sanford, were the owners in fee-simple of an undivided 174-100th parts of said lots.

An answer on oath is waived. The prayer of the bill is (1) that the defendants may account touching the affairs and property of said copartnership and touching the proceeds of any of such property; (2) that there may be set off to the plaintiffs, as of the estate of Sanford, 174-100th parts of the unsold lots described in the schedules to the bill, and of any other real property owned by the St. Louis copartnership that had not been sold and conveyed by C.P. Chouteau and Mrs. Maffitt to parties other than the heirs, legatees, and legal representatives of Sire and Sarpy, or to other parties for their use and benefit; (3) that the plaintiffs recover from C. P. Chouteau and Mrs. Maffitt, as part of the estate of Sanford, 173-100th parts of the sums, whether in money or securities, received by them as the prices of the lands and lots so sold and conveyed by them, other than the lots and lands described in said schedules; that for the amount of the plaintiffs' share of said money and securities, they be adjudged to have a lien on the interests of Č. P. Chouteau and Mrs. Maffitt in and to the lots and lands described in said schedules; and that such interests be sold to satisfy such lien.

C. P. Chouteau and Mrs. Maffit, and the executors of Pierre Chou. teau, Jr., the executors of Sarpy, the widow of Sire, his surviving executor, and Benjamin C. Sanford, put in a joint and several answer to the bill, not on oath. It denies that the copartnership bought or paid for with copartnership funds the lands referred to in the bill, for the purpose of holding or selling the same for its profit or benefit; but avers that all lots or lands, whether described or not in the bill or its schedules, which were held or owned by said copartnership at its dissolution, were taken in payment of, or in settlement or compromise of, indebtedness due to it from persons then indebted to it, and not otherwise; and that all lots and lands held by it at the date of its dissolution were a part of its assets at that date, and were chargeable with the payment of its debts. It denies that the property mentioned in the bill as acquired by Borup was acquired by him for the benefit of said copartnership, and avers that he purchased said property and took the conveyance thereof in his own name, without the consent or knowledge of said copartnership, and conveyed the same to the new copartnership, formed after the dissolution, in settlement of his indebtedness owing to said new copartnership. It denies that the title to the property mentioned in the bill as acquired by Sibley was taken in his name for the benefit of said copartnership, and avers that the property was received from Sibley in settlement of indebtedness owing to the new copartnership formed after the dissolution. As to the town lots and acre lands mentioned in the bill as being additional to the land named in the schedules to the bill, and owned by said copartnership prior to its dissolution, the answer avers that all those lots and lands were firm assets, taken, in the ordinary business of the firm, in payment or settlement of indebtedness theretofore owing to it. It denies that any part of the lots or lands referred to in the bill as having been conveyed after the dissolution of the firm was intended to be conveyed to any firm in which said Sanford was a member or interested. It then alleges as fol. lows:

"On the contrary thereof, these defendants say, that, on the thirty-first day of December, 1852, said copartnership in said bill of complaint named was duly dissolved, and said John F. A. Sanford withdrew therefrom, and then and there, for a valuable consideration to him paid by said Pierre Chouteau, Jr., did sell, assign, transfer, and set over unto the said Pierre Chouteau, Jr., all and singular his share and interest in and to the assets of said partner. ship, of all and every kind and description whatsoever, including his interest, (if any he had,) as a member of said firm, in and to the said lots and lands in said bill of complaint described, and all and every part and parcel thereof, and from thenceforth said Sanford never had or claimed to have any interest in, or right to a share in, the proceeds of said lands or lots; and that, after the withdrawal of said Sanford from said copartnership, the business theretofore transacted by said copartnership at St. Louis and in Minnesota was continued by said Pierre Chouteau, Jr., John B. Sarpy, and Joseph A. Sire, under the same firm name of Pierre Chouteau, Jr., & Co., and all conveyances of land taken in such firm name, from and after the dissolution aforesaid, in any manner or for any purpose, were taken solely and exclusively for the benefit of said three last-named parties, as such firm, and not otherwise."

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