DC LAND & BLDG. CO., v. McInerney

• Decision Date: 27 March 1933
• Docket Number: No. 5622.,5622.
• Citation: 64 F.2d 554
• Parties: D. C. LAND & BLDG. CO., Inc., v. McINERNEY et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

64 F.2d 554 (1933)

D. C. LAND & BLDG. CO., Inc., v. McINERNEY et al.

No. 5622.

Court of Appeals of the District of Columbia.

Argued February 10, 1933.

Decided March 27, 1933.

F. Regis Noel, of Washington, D. C., for appellant.

Benjamin S. Minor, Maurice D. Rosenberg, and W. C. Sullivan, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from a judgment of the lower court sustaining demurrers filed to the amended declaration by the several appellees, also motions to strike filed simultaneously therewith, and dismissing the case.

The facts set out in the declaration are briefly as follows: The appellant corporation was the owner of certain real estate situate in the District of Columbia of the fair market value of $80,000, encumbered by a certain deed of trust, appellant's equity therein being of the value of $50,000 at the time in question. At the same time the appellees John J. McInerney and Harry M. Bralove were the owners of an apartment house located in the District of Columbia, subject to a first deed of trust dated March 1, 1926, executed to Harry L. Rust and George Calvert Bowie, trustees, to secure notes for $85,000 due to the H. L. Rust Company. On February 10, 1927, the appellant entered into a contract with McInerney and Bralove whereby appellant exchanged its equity in the property held by it for the apartment house subject to the deed of trust for $85,000, which appellant agreed to assume and pay. The H. L. Rust Company, of which Harry L. Rust, Sr., and George Calvert Bowie were officials, was prior to and after the execution of the contract the rental agent for the apartment house. On March 1, 1927, deeds of conveyance were executed and delivered between the parties in performance of the contract. Appellant thereby assumed to pay the first trust of $85,000 upon the apartment house, and at the same time executed a second deed of trust thereon to secure its promissory notes in the sum of $21,250 to William Bralove and Martin McInerney, as trustees. On March 20, 1931, the trustees, Bralove and McInerney, at the request of the Federal Security & Mortgage Company, the holder of the notes secured by the second deed of trust, sold the apartment house under the deed of trust at public auction for the sum of $5,000, subject to the first deed of trust. The purchaser at the sale was acting as the agent of the Federal Security & Mortgage Company.

In its declaration the appellant alleges that appellees, to wit, John J. McInerney and Harry M. Bralove, Harry L. Rust, Sr., and George Calvert Bowie, trustees, H. L. Rust Company, William M. Bralove, Martin McInerney, trustees, and Federal Security & Mortgage Company, had combined and conspired in the...