United States v. Duncan.

• Decision Date: 31 December 1850
• Citation: 25 F.Cas. 927,4 McLean 607,2 Peck 523,12 Ill. 523
• Parties: UNITED STATESv.DUNCAN.
• Court: Illinois Supreme Court

4 McLean 607
12 Ill. 523
25 F.Cas. 927
2 Peck (IL) 523

UNITED STATES
v.
DUNCAN.

Circuit Court, D. Illinois.

Dec. Term, 1850.

[12 Ill. 524]

In equity.

Mr. Williams, U. S. Dist. Atty.

Smith & Brown, for petitioners.

DRUMMOND, District Judge.

In the year 1835, Joseph Duncan, whose representatives are the defendants in this case, became one of the sureties of William Linn, receiver of public monies at Vandalia, in this state.

[12 Ill. 525]

The principal having failed to comply with the duties imposed on him by law, the sureties became liable in the bond given to the United States. At the June term, 1841, of this court, the United States recovered three several judgments at law against the sureties. Duncan, among others, for the aggregate sum of $29,191 05. At the time these judgments were obtained, none of the sureties, except Duncan, had any available property, and Linn, the principal, was insolvent. On the 22d of December, 1843, the United States realized on these judgments the sum of $23,532 65. In January, 1844, Joseph Duncan died, disposing by will, of his real and personal estate, but making no provision other than the usual one for the payment of his debts, for the amount due the United States. At the time of his death, he was seized of a great many tracts of land lying in different counties of this state, and in Morgan county, his place of residence. The judgments of 1841, in this court, not covering the defalcation of Linn, the plaintiffs instituted suit at law, to the December term of this court, 1844, against William Thomas, as administrator, etc., of Joseph Duncan, the executors having resigned or ceased to act; and at that term recovered judgment against the administrator, de bonis testatoris, for the sum of $48,151 61. In February, 1846, the United States filed a bill in this court, setting forth most of the facts detailed above, and asking for a discovery of the title papers and estate of Duncan; insisting upon the priority of the plaintiffs; and praying for an account of the money due the United States; of the personal estate of Duncan; and of the value, rents and profits of the real estate; and that if the personal estate was not sufficient, the real estate might be sold to pay the debt due the plaintiffs. To this bill, the widow, heirs, executors, devisees, etc., of Duncan were made parties. During the progress of the cause, the value of the widow's dower was agreed upon and amicably settled, and she relinquished. [See Case No. 15,002.] Answers were put in by the defendants, and at the June term, 1846, a decree was rendered in favor of the United States for the sum of $49,156 15 (that being all that was due except what had not been collected under the judgments of 1841), and ordering the real estate of Duncan to be sold, and the proceeds to be paid to the United States, ‘first paying prior liens, if any.’

[12 Ill. 526]

Under this decree, various sales of real estate out of Morgan county have taken place, under the direction of a commissioner, for which very considerable sums have been realized, part of which have been paid over to the United States, but there remains the sum of $4,052 subject to the order of the court. [See Case No. 15,005.] Personal property to the amount of $300 was sold under the judgment of 1844.

There were two judgments recovered against Duncan in his life time, in the circuit court of Morgan county, of this state, one by McConnell and others for $333 76, in November, 1841, and the other by Matthews for $497 35 in March, 1842. On the 10th of November, 1845, Doremas, Suydam & Nixon filed a bill in the same court against William Thomas, administrator, etc. of Duncan's estate, alleging that certain personal property which the executors of Duncan had sold, and the proceeds of which, amounting to $960 60, it seems they had applied to the payment of taxes on real estate and expenses of administration, belonged to a firm of which one James M. Duncan and Joseph Duncan, in his life time, were partners, and that the plaintiffs were creditors of that firm, and claiming that they (Doremas, Suydam & Nixon) should be re-paid the money so used by the executors, and that they should be substituted in their place; insisting it was a former claim. James M. Duncan, also one of the sureties of Linn, was a party to this bill, but he was insolvent. The administrator in his answer denied the partnership, and referred to the claim of the United States and their priority, and to the proceedings in this court, which he set forth at length; but the circuit court of Morgan county, by a decree rendered on the 17th November, 1847, found that the partnership did exist, as stated in the bill; that at the death of Duncan, the goods and chattels referred to, and the proceeds of which had gone into the hands of the executors, were liable for the partnership debts, wherever traced, and ordered that the plaintiffs should be paid out of the estate of Duncan. To Doremas & Nixon, $766 48; to Wm. A. Ranson & Co., $194 12. The latter had been made parties and Suydam had died pending the suit. The court further adjudged that inasmuch as it did not appear the administrator had any assets in his hands, he should pay the above sums out of assets thereafter to come into his hands, or which might remain in his hands after the settlement of his accounts as administrator. It

[12 Ill. 527]

is proper to add, that an objection was made in the answer of Thomas, because the United States were not made parties, but the court decided that it was not necessary to make them parties.

It was conceded that the judgments of 1841, rendered in this court, were a lien on all the real estate of Duncan within the state; that the decree of June term, 1846, operated to the same extent, upon the real estate in the hands of the heirs, devisees, executors, etc., of Duncan;² and that the judgments of the Morgan circuit court operated only upon real estate within the county of Morgan. The judgments and decrees rendered in the circuit court of Morgan county, are yet in force, not being paid or satisfied, except some partial payments hereafter mentioned. The judgments at law of this court recovered in 1841, being only paid in part, the United States in 1847 issued alias executions on those judgments, and the marshal levied them on lands lying in Morgan county of which Duncan had been seized, and they were sold by the plaintiffs.

Joseph Duncan, at the time of his death, did not possess sufficient property, including real and personal, to discharge the debt he owed the United States, the lands out of Morgan county not being of value enough to satisfy the decree of June term, 1846. And it does not appear that there was more than sufficient property in Morgan county, to meet the balance due on the judgments of 1841 of this court. In this condition stood the case, when, on the 15th of June, 1847, McConnell et al. and Matthews filed their petition in this court. The petition of McConnell et al. alleges that under the decree of 1846, sales of lands without the county of Morgan had taken place, upon which had been made $3,555 20, which, it insists ought to be, as to the lien of their judgment, a credit on the judgments at law of the United States of June, 1841-that there are

[12 Ill. 528]

lands out of the county of Morgan more than sufficient to satisfy those judgments, and that the United States are proceeding to sell real estate in Morgan county. The petition calls for the interposition of the court to arrest the sale; to marshal the securities so as to give them the benefit of their lien, by throwing the judgments of the United States of 1841, upon lands out 1of Morgan county and that the sum made $3,555 20 be applied upon those judgments. The petition of Matthews is, in all respects, similar to that of McConnell et al. A fi. fa. had issued on the judgment of McConnell, and $60 00 had been obtained on it. A fi. fa. had also issued on the judgment of Matthews, and real estate had been levied on, and $393 00 made by the sale of it. The executions in each case were issued within a year after the judgments were obtained respectively. On the 23d of December, 1847, Doremas & Nixon, and A. Ranson & Co., likewise filed a petition setting forth most of the facts heretofore mentioned, and alleging that this court had taken full administration of the estate of Duncan-that their decree of the Morgan court of November, 1847, had been rendered useless-that there was no priority of payment to the United States, till the estate was ready to be disbursed-that taxes and costs of administration were to be first paid-that under the circumstances they stand as the state and individuals, and were clothed with their rights-that there was more real estate to be sold, and their partnership fund had increased the amount to be disbursed in this cause-and asking that their decree be paid out of money received from the sale of real and personal estate, or, if that be not proper, that the commissioner of this court be ordered to sell land enough to satisfy the sum named in their decree, and pay it over to them.

Various supplemental petitions were filed by all the parties, from time to time, bringing before the court the proceedings that have since taken place in this cause, and particularly stating that other lands, out of Morgan county had been sold, under the decree of June, 1846, and the money received, and that the sum of $3,789 56 was made by sale of land in Morgan county under the judgment of 1841. The petition of O'Donoghue, which was filed on the 10th of January, 1849, states that he had purchased a lot of land at a

[12 Ill. 529]

sale made by the commissioner in this cause, which lot was sold as a part of the estate of Duncan; that he paid the commissioner for it, and that Duncan had no title to it, having before his death by deed duly recorded, conveyed it to the Illinois College, and he seeks to have the sale by the commissioner annulled, and to have the money paid by him...