Mackall v. Casilear

• Decision Date: 22 December 1890
• Citation: 11 S.Ct. 178,137 U.S. 556,34 L.Ed. 776
• Parties: MACKALL v. CASILEAR et al
• Court: U.S. Supreme Court

137 U.S. 556

11 S.Ct. 178

34 L.Ed. 776

MACKALL v. CASILEAR et al.

December 22, 1890.

Brooke Mackall, Jr., filed his bill of complaint in the supreme court of the District of Columbia on the 1st day of June, 1885, against George W. Casilear and wife; Leonard Mackall and wife; Don Barton Mackall; Benjamin Mackall; Louise Owens and husband; Catherine Christy and husband; Edmund Brand and Mary E. Keller, alleging that Leonard, Don Barton, and Benjamin were his brothers, and Louise Owens and Catherine Christy his sisters, all being the sole surviving children of Brooke Mackall, Sr., and Martha Mackall, his wife, and that Edmund Brand and Mary E. Keller were the sole surviving children of Louis Brand. The bill then stated that on or about December 21, 1863, complainant became owner in fee-simple, through a conveyance to him from Charles W. Pairo, George Randolph, executor, and Brooke Mackall, Sr., of lots in the city of Washington, D. C., as follows: Lot 2, square 5; lots 3 and 7, square 17; lot 3, square 31; lot 15, squae 4 1; lot 2, square 42; lot 5, square 43; lot 12, square 56; lot 10, square 62; lots 13, 14, and 17, square 76, —and a copy of the deed was annexed. That on or about May 5, 1866, complainant executed his promissory notes to the order of his father, and a deed of trust to said Brooke Mackall, Sr., as trustee, which deed was acknowledged before the latter as notary public, upon lot 2, square 5; two parts of lot 12, square 56; and lots 14, 17, and part of 13, square 76,—which was recorded June 5, 1867, and a copy whereof was annexed. That there was no consideration for these notes, but they were made for the accommodation of complainant's father for the purpose of borrowing money for the benefit of both, but no money was borrowed, and it was not intended that any claim on the notes should be set up against the complainant, and there was no default in the payment of the same. That about seven years after, a variance occurring between complainant and his father, his father having possession of the notes, without complainant's knowledge or consent, advertised said property for sale, except one subdivision of lots 13 and 14, square 76, which had in the mean time been otherwise disposed of by complainant. That the advertisement (a copy of which was annexed) was published only on three successive days, though the trustdeed required a publication of 60 days. That it was intended that the sale should be kept concealed from complainant, and it was not held on the premises, but at the rooms of the auctioneer. That no bidders were present, and at the instance of his father the property was struck off nominally to one Joseph B. Hill, but really for the benefit of complainant's father no money being ever paid by Hill, and his name being used that it might not appear that the trustee was a purchaser at his own sale. That this was a scheme devised by the father to divest the son of his property and obtain it himself, without paying anything whatever for it. That, in pursuance of such scheme, a deed (a copy of which was annexed) was executed by Brooke Mackall, Sr., as trustee, to Hill, for the nominal consideration of $2,000, though Hill paid nothing. And complainant charged that the deed was void and of no effect. This deed was dated June 26, and recorded July 2, 1873.

The bill further averred that on or about March 13, 1867, complainant conveyed to one Morsell (a copy of which deed was attached) lot 15, square 41, and lot 5, square 43, in trust to secure complainant's promissory note for $1,000, payable one year after date, to the order of his father, which note was indorsed over to Mills and wife, and was paid in full, and so admitted to be paid by a deed conveying the same property, dated July 14, 1868, by Morsell, Mills, and wife, and complainant to Louis Brand to secure in trust complainant's promissory note for $2,000, payable to his father's order one year after date, (a copy of which instrument was attached;) that the $2,000 note was an accommodation note, and made to raise money for the common benefit of both parties, but no money was raised, and there was no consideration for the note; that about five years thereafter, there occurring a variance between father and son, the father, in pursuance of a similar scheme as that charged as to the other parcels, procured Brand to advertise the property for sale, and, though publication for three weeks was required, the advertisement was published only four times successively, and for three days; that this was without the consent or knowledge of complainant, and without written request as prescribed, and the place of sale was at the private rooms of the auctioneer; that there were no bidders at the sale, but at the request of Brooke Mackall, Sr., lot 15, square 41, and sublots 2, 3, 4, and 5, lot 5, square 43, were struck off to Hill at the nominal sum of $2,000, he paying no money, and Brooke Mackall, Sr., being the real purchaser and no payment or account was made to complainant, whereupon a conveyance in the had w riting of Brooke Mackall, Sr., was executed by said Louis Brand, trustee, to Hill, a copy of which was annexed, showing that the deed was recorded July 28, 1873; and complainant charged that the sale and deed were void. Complainant further averred that on the 4th of August, 1873, Hill executed a conveyance (a copy of which was annexed) to John C. McKelden and Edward McB. Timoney, as trustees, to secure a note of $3,000 of B. Mackall, Sr., to F. A. Casilear, due in one year from the date thereof. That said trustees and said Casilear had full knowledge of the defects of title herein mentioned, and were not bona fide purchasers or creditors. That in October, 1874, default having been made by B. Mackall, Sr., in payment of the note of $3,000, the trustees McKelden and Timoney advertised the property secured in the deed of trust to them for sale, and thereupon the complainant, at the date and place of sale so advertised, and before the sale, read a notice, and caused copies thereof to be served upon Timoney and McKelden, and Williams the auctioneer, which notice was attached to the bill, and was to the effect that Timoney, McKelden, and Williams had no authority to sell the premises, and that Mackall, Jr., would insist upon all his legal rights to the premises against them, and against any purchaser or purchasers thereof, and protested against the sale. That the trustees proceeded to sell, and thereupon Casilear bid in the property at $2,722.95, and a deed was given by McKelden and Timoney, as trustees, of sublots 2 and 3 of lot 5, square 43; lot 17, square 76; and two parts of lot 12, square 56. That on the 13th day of January, 1874, Hill, as trustee and in his own right, and B. Mackall, Sr., joined in a conveyance to Leonard Mackall, as trustee, of lot 15, in square 41; sublots 2, 3, 4, and 5 of lot 5, square 43; lots 13, 14, and 17 in square 76; and two parts of lot 12, square 56, for the use and benefit of Mackall, Sr., and subject to his absolute control and disposal. That Mackall, Sr., departed this life, February 28, 1880, and the brothers and sisters of complainant claim the property so conveyed to Leonard Mackall as trustee, as his heirs and devisees. That Casilear claims title to lot 17, square 76, and two parts of lot 12, square 56, as derived from the deed of Mackall, Sr., to Hill, and to sublots 2 and 3 of lot 15, square 43, as derived from the deed of Brand to Hill. That complainant's brothers and sisters claim title to lots 13, 14, and 17, square 76, and two parts lot 12, square 56, as derived from the deed of B. Mackall, Sr., to Hill, and lot 15, square 41, and sublots 2, 3, 4, and 5, square 43, as derived from the deed of Louis Brand to Hill, which two deeds of B. Mackall, Sr., are declared to be void, but a cloud upon the property. And that complainant, though not having the legal title, but being equitably entitled thereto, was entitled to have such deeds with all subsequent claims of title decreed null and void. Complainant further stated that some of the reasons for the delay which had occurred in his not before having filed a bill to set aside the said conveyances were as follows: 'As to Casilear, he at all times has protested against his claim, notifying him at the time of his purchase that he should not submit to the sale, and he has since then been engaged in negotiations from time to time with him, orally and by mutual correspondence in writing, which he has hoped would result in a settlement and adjustment of their differences in regard to the property held by him. He has received large amounts by way of rents and profits of said property, and has made no substantial improvements thereon. As to the remainder of such property, he says that soon after the execution of the deeds made in 1874 the said B. Mackall, Sr., became reconciled to complainant, they living together and sharing the benefit of all property possessed by each in common. He, said B. Mackall, Sr., constantly assured complainant that he would rectify all that was wrong in said conveances to the best of his ability, which...