5 D.C. 445 (C.C.D.C. 1838), 9707, Moncure v. Dermott

Docket Nº:9707[1]
Citation:5 D.C. 445, 17 F.Cas. 595
Party Name:MONCURE et al. v. DERMOTT.
Attorney:Mr. Jones and Mr. Swann, for defendants Mr. Key and Mr. Dunlop, contra, Mr. Jones and Mr. Swann, in reply. Mr. Jones, for defendant, After the cause had been argued to the jury by Mr. Dunlop, for plaintiffs, Mr. Key, for plaintiffs, Mr. Jones, for defendant,

Page 445

5 D.C. 445 (C.C.D.C. 1838)

17 F.Cas. 595

MONCURE et al.

v.

DERMOTT.

No. 9707 [1]

Circuit Court, District of Columbia.

March 1838. [2]

         This was an action of covenant [by Richard C. L. Moncure and Walter T. Conway] upon the following instrument: ‘ Whereas Mary James has executed her bond or note, dated the 28th of November, 1828, payable to me, on demand, for the sum of $2,620, which said bond or note was merely loaned to me for the purpose of raising money upon; and whereas I have, since the execution of the said bond or note, as aforesaid, assigned it to Philip Alexander, of Fredericksburg, for value received of him, I do, therefore, hereby bind myself, my heirs, executors, and administrators, to pay and discharge the said bond or note, with all interest that may accrue thereon, when the same shall become due and payable. Given under my hand and seal this 12th day of August, 1829. Anne R. Dermott. (L. S.)’

         The ‘ bond or note’ mentioned in the above instrument was as follows: ‘ $2,620. On demand I bind myself, my heirs, executors, and administrators, to pay to Anne R. Dermott, her executors, administrators, or assigns, the sum of two thousand six hundred and twenty dollars, for value received, with interest from the date hereof. Given under my hand and seal this 28th day of November, 1828. Mary James. (Seal.)’

         Upon which was the following indorsement: ‘ I assign the within to Philip Alexander for value received this 1st day of December, 1828. Anne R. Dermott.’

         It appeared in evidence that the following payments on account of this ‘ note or bond’ were made by Miss Dermott (the defendant) namely, 19th April, 1831, $180. December 27th, 1831, $200. February 7th, 1832, $225, and on May 8th, 1832, $395. And the following payments were made by the plaintiffs, namely, December 6th, 1833, $600. December 28th, 1833, $1,346.52; and December 31st, 1833, $435.55 in full. That this ‘ bond or note’ was made to raise money upon to pay a debt due by the defendant to Thomas Poultney & Son of Baltimore, upon the following obligation, namely: ‘ We, Mary James, Anne R. Dermott, William C. Beale, and John Moncure, of the county of Stafford, and Thomas Sedden of the town of Fredericksburg, do hereby promise and bind ourselves, our heirs, executors, and administrators jointly and severally, to pay to Thomas Poultney & Son of Baltimore, their executors, administrators, or assigns, the just and full sum of three thousand six hundred and thirty-three dollars and sixty-one cents on or before the 23d day of November, 1828, as witness our hands and seals this 31st day of March, 1826. Mary James. (Seal.) Anne R. Dermott. (Seal.) Wm. C. Beale. (Seal.) John Moncure. (Seal.) Thomas Sedden. (Seal.) Attest: J. M. Conway; as to Mary James and Anne R. Dermott.’

         On that instrument was the following indorsement:

Paid by T. Sedden, on account of
Robert James $ 629 20
Check on United States Bank at
Washington 628 33
Paid by P. Alexander 2,340 00
$3,597 53
Balance due T. Sedden, for which he
has a note of J. Moncure's 36 09
$3,633 62
         Thomas Poultney & Son, pay Thomas Sedden, Esq., cash, or order. Evan Poultney.          That on the same 31st of March, 1826, the said Mary James, (of the county of Stafford,) conveyed in trust to Arthur A. Morson, to secure and indemnify the three sureties Beale, Moncure, and Sedden, against their liability upon that note, about five hundred acres of land and thirteen slaves, in Stafford county, with power to sell the same if the debt should not be paid by Miss James or Miss Dermott. That as early as March 14th, 1828, Mr. John Moncure, in behalf of Miss Dermott, applied to Mr. Philip Alexander, of Fredericksburg, to obtain from him money to pay off this debt to Poultney & Son, and that Mr. Alexander finally determined that he would give $2,200 for a bond to be given by Miss James, payable in five years, for $3,400; but he would require a deed of trust from her (Miss James) of her land and slaves; and that the balance which would be due to Poultney & Son over and above the $2,200 to be placed in his (Alexander's) hands so that he might pay the debt to Poultney & Son and get a release of the deed of trust already given to Mr. Morson to secure the sureties Beale, Moncure, and Sedden, and take a new deed of trust for his security. That Miss James was the defendant's aunt, and the defendant either lived with her, or near her, at the time the negotiation was going on with Mr. Alexander about raising the money, and was in habits of intimacy with her. That Miss James and Mr. Alexander were well acquainted with each other. That the money to be raised was solely to pay off the debt to Poultney & Son, for which Miss James was bound as principal, and had given a deed of trust upon her land and slaves. That on the 8th of December, 1828, the said Mary James conveyed her land and slaves to John Moncure in trust to secure to Mr. Alexander the payment of her bond on the 1st of December, 1830. That on the 24th of November, 1828, (four days before the date of Miss James's bond) Mr. Alexander, in a letter to Mr. John Moncure, who was conducting the negotiation on the part of the defendant, says, ‘ and as the profit on the transaction in which I am about to engage will be small, I will have nothing to do with it unless every thing is clear and perfectly indisputable.’ He then makes particular inquiry as to Miss James's title to the land and slaves; and says, ‘ it is absolutely necessary that I should have all this information before I engage in the transaction. There is now but little time left to obtain it; perhaps too little. If I pay the $2,350 on Wednesday, it must be with the distinct understanding that, if the business be not arranged to my entire satisfaction, that Mr. Sedden, Mr. Beale, and yourself refund me the money I pay; which will leave you all precisely in the situation you would be placed if I had nothing to do with the business.’ ‘ I cannot pay the money on Wednesday, without having a distinct understanding with Mr. S., Mr. B., and yourself as to the repayment of the money I pay in case the business shall not be arranged to my satisfaction.’ And in the postscript he says, ‘ you entirely misunderstood my views, if you supposed I was willing to purchase paper to produce me twelve per cent. on the money paid at the end of five years. My view was that it should, upon the money advanced, produce me annually twelve per cent. You will find, upon a calculation, that the sum I advanced, by compounding the interest at the end of each year, will not produce to me more than about eight per cent. Now it can hardly be expected that I would advance money and wait five years upon a security somewhat doubtful, and at last to...

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