10 D.C. 113 (D.C.D.C. 1879), 4748, Hubbard v. Stetson

Docket Nº:EQUITY.— 4748.
Citation:10 D.C. 113
Opinion Judge:Mr. Justice MACARTHUR
Party Name:DIMON HUBBARD v. JAMES B. STETSON, GEORGE OSGOOD, CORNELIUS COLE, BENJAMIN A. BRISTOW, R. W. TAYLER.
Attorney:J. M. Yznaga and Bainbridge H. Webb , for complainant. Enoch Totten , for defendants Osgood & Stetson.
Court:Supreme Court of District of Columbia
 
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Page 113

10 D.C. 113 (D.C.D.C. 1879)

DIMON HUBBARD

v.

JAMES B. STETSON, GEORGE OSGOOD, CORNELIUS COLE, BENJAMIN A. BRISTOW, R. W. TAYLER.

EQUITY.— No. 4748.

Supreme Court, District of Columbia.

September Term, 1879

I. A deed absolute on its face may be shown by parol to be a security for a loan of money.

II. A single witness, swearing to an acknowledgment of the defendant that an absolute deed was a security, will not be allowed to overrule the instrument, where the answer and the testimony of the defendants deny the fact of a loan.

STATEMENT OF THE CASE.

This is an appeal from a decree of the Equity Court, passed October 19, A. D. 1876, dismissing complainant's bill with costs.

The bill filed December 27, 1875, sets forth that on or about the 8th day of December, A. D. 1870, the plaintiff borrowed of the defendants Osgood & Stetson the sum of $500, and to secure the repayment of the same executed an absolute assignment to them of certain claims which the plaintiff had against the British Government for goods and merchandise destroyed by the so-called Confederate steamers Alabama and Florida, which said claims were then on file in the State Department at Washington, D. C.; that it was distinctly understood and agreed by and between the parties at the time that the said assignment was intended by way of security only, and that the plaintiff was to have the privilege at any subsequent time of paying back the sum borrowed, with interest at current rates, and having the said assignment cancelled; that afterwards Osgood & Stetson, through their attorney, Cornelius Cole, filed their claims as assignees of plaintiff in the Court of Commissioners of Alabama Claims, and obtained an award for the sum of $9,853.11; that the plaintiff has offered and is ready to repay the said loan of $500 with interest, but that the said defendants Osgood & Stetson have refused, and still refuse, to accept the same and cancel the said assignment according to the agreement, and claim the entire amount of said award, denying that the plaintiff has any interest therein whatever.

The plaintiff then prays that an account may be taken, and a decree passed making a just and equitable disposition of said award, and that Osgood, Stetson, and Cole may be enjoined from drawing, and Bristow, Secretary of the Treasury of the United States, and R. W. Tayler, First Comptroller, from paying the...

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