10 D.C. 339 (D.C.D.C. 1879), 4960, Shea v. Dulin

Docket NºEQUITY.— 4960.
Citation10 D.C. 339
Opinion JudgeMr. Justice OLIN
Party NameNICHOLAS H. SHEA v. JAMES C. DULIN, WILLIAM B. MOORE, WILLIAM F. HOLTZMAN, DAVID L. MORRISON, BRAINARD H. WARNER, LEMUEL M. SAUNDERS, EUGENE CARUSI, THEODORE F. GATCHEL, M. D. PECK, JAMES L. BARBOUR, AND JOHN A. HAMILTON.
AttorneyHanna & Johnson , for complainants. Birney & Birney, Edwards & Barnard , and E. Carusi , for defendants.
CourtSupreme Court of District of Columbia

Page 339

10 D.C. 339 (D.C.D.C. 1879)

NICHOLAS H. SHEA

v.

JAMES C. DULIN, WILLIAM B. MOORE, WILLIAM F. HOLTZMAN, DAVID L. MORRISON, BRAINARD H. WARNER, LEMUEL M. SAUNDERS, EUGENE CARUSI, THEODORE F. GATCHEL, M. D. PECK, JAMES L. BARBOUR, AND JOHN A. HAMILTON.

EQUITY.— No. 4960.

Supreme Court, District of Columbia.

September Term, 1879

I. In a bill by a judgment creditor, it is absolutely necessary to aver that an execution has been issued and duly returned nulla bona ; and it is not sufficient simply to aver that the defendant has no property subject to execution.

II. It is not competent for a court of equity, at the instance of a subsequent incumbrancer, to divest trustees of the title to property vested in them for a particular purpose, in special confidence and with certain discretionary powers, and to substitute in their place, without their consent, any other person or persons to make a sale of the property or to execute the trust, in the absence of fraud, incompetency, misconduct, irregularity, or other special equity.

The case is stated in the opinion of the court.

Hanna & Johnson , for complainants.

Birney & Birney, Edwards & Barnard , and E. Carusi , for defendants.

OPINION

Mr. Justice OLIN

This is an appeal from a decree of the special term in equity, vacating a sale of sub-lot 8, square 365, in this city, made by the defendants Warner and Morrison to the defendant Gatchell, appointing a new trustee and directing a resale of said lot, in a suit instituted by the complainant as a judgment creditor of the defendants Dulin and Moore.

The cause was heard on the bill and the answers.

From the pleadings it appears that on December 11, 1875, this lot was conveyed to the defendants Dulin and Moore subject to two deeds of trust thereon; the first to the defendants Warner and Morrison to secure the payment of a certain promissory note of the said Dulin and Moore for $2,000, the other to the defendant Saunders to secure another note for $500, made by the same parties.

On April 6, 1876, the complainants recovered a judgment on the law side of this court against the defendants Dulin and Moore for $200, interest and costs, and on May 12, 1876, issued a fieri facias thereon.

On May 16, 1876, complainant filed his bill in this cause making the trustees under said deeds of trust and the holder of the note under the one last recorded parties thereto.

At the time of filing the bill the execution issued on complainant's judgment had not been returned nulla bona , and it was not so returned until July 5, 1876.

The complainants asked that the whole title to this lot, and certain other real estate mentioned in the bill, be sold, and the proceeds of sale distributed among the parties entitled.

On September 26, 1876, Warner and Morrison filed their answer, stating that as trustees under said trust, and in pursuance of the provisions thereof, they sold the said lot to Gatchel on June 14, 1876, and had executed a deed of the same to him, and that on the 22d of the same month the latter conveyed the same to the defendant Warner and one William H. Ward to secure a note made by Gatchel to the order of George E. Emmons for $2,000.

The sale under the deed of trust and the execution of the deed to Gatchel, and of the trust to secure Emmons, all transpired prior to the return of the fieri facias on the complainant's judgment against Dulin and Moore.

No proceedings were instituted...

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