Robertson v. Chapman

• Decision Date: 02 April 1894
• Docket Number: No. 255,255
• Citation: 152 U.S. 673,14 S.Ct. 741,38 L.Ed. 592
• Parties: ROBERTSON v. CHAPMAN et al
• Court: U.S. Supreme Court

152 U.S. 673

14 S.Ct. 741

38 L.Ed. 592

ROBERTSON

v CHAPMAN et al.

No. 255.

April 2, 1894.

Wm. A. Fisher and Alex. H. Robertson, for appellant.

George E. Hamilton, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This was a suit by Alexander H. Robertson, trustee of the estate of Ella V. Davis, deceased, against Samuel M. Chapman, Milton D. Polk, and others, to set aside certain conveyances of real estate. The circuit court dismissed the bill. Complainant appealed.

This appeal brings up for review a decree dismissing a bill brought by the appellant for the purpose, among others, of obtaining a decree setting aside, and canceling of record, certain deeds and mortgages alleged to have been made in fraud of his rights.

The principal question in the case is whether the real estate covered by those deeds and mortgages was acquired by the appellee Polk in violation of his duty to the appellant.

Ella V. Davis, a citizen of Maryland, died in 1881, leaving a will, by which Augustine C. Dalrymple was appointed a trustee, with power to sell and convey such estate of the testatrix as did not yield an income, and could not be leased to advantage.

Dalrymple renounced the trusteeship, and on the 3d of June, 1881, by an order of the proper court of Maryland, William A. Stewart was appointed in his place as trustee. Stewart, subsequently, on the 6th day of April, 1885, resigned that position, and the present appellant was substituted in his place.

The testatrix, at her death, was the owner of numerous lots in Plattsmouth, Cass county, Neb. In the fall of 1885 the appellant, Robertson, visited that city for the purpose of effecting a sale of them, if, upon investigation, it was deemed best to do so. He employed the appellees Samuel M. Chapman and Milton D. Polk, partners in the practice of the law as Chapman & Polk, to attend to the probating of the will in Cass county, and to obtain a judgment of the proper court construing the will and authorizing a sale of the lots. While in Plattsmouth, after conferring with real-estate agents and others, to whom he was introduced by Chapman, and who were familiar with the value of property in that city, he fully determined to sell these lots. The only question, he testified, 'was to find a purchaser at $4,000.'

After returning to Baltimore, the place of his residence, Robertson received a letter from Chapman, dated October 22, 1885, in which the latter said: 'We have been canvassing the sale of the realty belonging to the Davis estate, and $4,000 is the best offer we can get,—$1,000 down, and the balance when a deed is made and confirmed by court. I have prepared petition to sell, and will take first order next week. If a sale of this property is consummated, it should be done before winter sets in, as you cannot then, in all probability, get a fair offer before matters open up next spring. Looking this property over, I am, as you well know, very firmly convinced that you should sell it now, as a long, hard winter will, in the condition it now is, unquestionably reduce it in value.'

Under date of November 14, 1885, Polk, in the name of his firm, wrote to Robertson: 'A man here, by the name of O'Donohoe, says he will give $4,000 for that property,—$1,000 cash, balance in three equal annual payments, at 7 per cent., secured by mortgage on that, together with mortgage on other property, so that the security will be ample. Not long ago, he offered $4,000 cash; but times are dull here now, and he says the time-payment offer is the best he will do. If the above is satisfactory to you, you can advise us; and we will arrange the matter to close up the trade with him as soon as possible, as money matters are getting close here, with no flattering prospect of better times soon. We are yours to command. The above is the best we have been able to do, thus far, but, if not satisfactory, let us hear from you at your convenience.'

To this letter, Robertson replied, under date of November 17, 1885, as follows: 'Yours of the 14th is before me. I am decidedly of opinion that the property in your city should be sold, and that, too, at once. I think the offer a fair one, and you are authorized to accept the same. Plase send me the mortgage and notes as soon as consummated.'

On account of the absence from Plattsmouth of both Chapman and Polk, some delay occurred in the preparation of the deed, mortgage, and notes. But, on the 12th of December, 1885, the papers were mailed to Robertson; Polk, in the name of his firm, writing: Polk, in the name of his firm, mortgage, and notes of O'Donohoe. He did not like giving his notes before he got his deed, but finally he signed everything up in proper shape. Now, there are some taxes due and payable against the property; and I agreed with him that, when he paid the $1,000 (on the receipt of his deed), we would accept tax receipts for those taxes, in lieu of the amount of taxes in currency. Court is in session, and we expected to have had a decree before this, but have not. No doubt will have by time deed reaches us. Money matters are very close here. * * * You can send us deed, and we will collect and remit to you, or, if you do not know us well enough to be satisfied, and do not care to inquire of any bank in this city, you can send deed to First National Bank, with full instructions.' To this letter was this postscript: 'O'Donohoe claimed he might want to pay off those notes next fall, and would not sign unless they were made so he could pay them if he chose to do so. I did not think it would make any difference with you.'

Under date of December 17, 1885, Robertson returned the deed, notes, and mortgage to Chapman & Polk, with directions to record the mortgage, returning the original to him, and to deliver the deed when a decree for the sale of the property was passed. In this letter, Robertson said: 'Please see that a decree is passed by your court, authorizing sale, before you deliver deed. Under our arrangement, fee of $400 was to be charged, and divided between us.' Polk, in the name of his firm, replied, December 22, 1885: 'Yours of recent date at hand, with deed duly executed, and mortgage, which I forgot to seal, in my hurry to get it off in the mail. I have sealed the same, and will place on record as soon as we get decree and O'Donohoe pays in the money.'

On the 22d of January, 1886, Polk inclosed to Robertson a draft for $449.15, as the balance in cash due on the first payment for the property bought by O'Donohoe. In that letter, Polk said: 'I reserved our fee of $200 out of the $1,000, together with the taxes. * * * I will send complete statement in a day or two, with duplicate tax receipts, together with what money is in bank here, belonging to you.' Under date of January 26, 1886, he inclosed a statement to Robertson, indicating that he had received the cash payment of $1,000, and accounting for it as follows: 'Paid fee, $200; paid taxes, $319.50; remitted, $449.15.' This left a balance of $31.35. In a postcript to this last letter, Polk said: 'Now, shall I remit you the balance due, or shall I apply it on taxes? The balance on taxes will have to stand until note is due, and be deducted from that, I suppose. I think, from the way things have been running, that a sale at $3,000 would have been profitable for the estate.'

On the 28th day of January, 1886, the mortgage given by O'Donohoe and wife to the appellant, as trustee, to sucure the notes executed by O'Donohoe, was filed in the proper office for record.

On the 3d of April, 1886, Polk wrote to Robertson: 'If you would like the money on the note which falls due first, send it to Citizens' Bank, at Plattsmouth, for payment, at an early date.'

Under date of May 1, 1886, Polk wrote to Robertson: 'Your favor of recent date at hand. The note you speak of was duly received by the bank, and is in their hands for payment. I traded O'Donohoe out of the property; and had a note of $800, which was due several days ago, that I expected to put right on that note, as I have assumed the payment of them; but the party did not pay promptly, as I expected. He says, however, he will get me the money as soon as he can, which will not be long. If nothing happens, I want to pay the other two notes in August.' This letter is without date, but Polk fixes May 1, 1886, as the date, while Robertson fixes the month of February, 1886, as the time when he was first informed by Polk that he bought the property from O'Donohoe. It should be stated, in this connection, that Chapman had, upon examination, reached the conclusion that a decree to sell the property was unnecessary, and that the trustee had authority, under the will, to make a sale.

The record contains many letters that passed between Polk and Robertson in 1886, 1887, and 1888, which, upon their face, show that the latter, after receiving the letter of May 1, 1886, treated the former as the owner of the property, by purchase from O'Donohoe.

Prior to the institution of the present suit, Polk had fully paid the first of the notes given by O'Donohoe, and a portion of the second note; and Polk and wife sold and conveyed some of the lots, and mortgaged others.

On the 21st of August, 1888, O'Donohoe wrote the following letter to Robertson:

'M. O'Donohoe, Attorney and Solicitor. Plattsmouth, Neb., August 21st, 188...