Abraham v. Ordway, 274

Citation39 L.Ed. 1036,15 S.Ct. 894,158 U.S. 416
Decision Date20 May 1895
Docket NumberNo. 274,274
PartiesABRAHAM et al. v. ORDWAY et al
CourtUnited States Supreme Court

H. O. Claughton and F. N. Mackey, for appellants.

J. J. Darlington, for appellees.

Mr. Justice HARLAN delivered the opinion of the court.

On the 22d day of May, 1869, Bernard Burnstine—his wife Elizabeth uniting with him in the deed—conveyed to Levi Abraham certain real estate in the city of Washington in trust for the sole and separate use of the wife, with power in her at any time to dispose of the property in whole or in part, or to incumber it by deed or by will, or by other instrument in the nature of a last will and testament.

The deed provided that the trustee should permit the wife, her executors, administrators, and assigns, to have, hold, use, possess, and enjoy the trust property; to receive its rents, issues, and profits as if she were a feme sole; and if she disposed of it the trustee was not to be responsible therefor, nor for the application of its proceeds.

The deed upon its face recites that it was made pursuant to a mutual agreement between the grantors to live separately and apart from each other during their lives.

Subsequently, on the 10th of May, 1870, Mrs. Burnstine obtained a divorce, and shortly thereafter, June 24, 1870, married one Solomon Caro.

On the 24th of September, 1870, Mrs. Caro executed to Harriet Ordway a promissory note for $3,000, payable in two years from that date, with interest at 10 per cent. To secure its payment, Levi Abraham, the trustee in the Burnstine deed,—Mrs. Caro uniting with him,—executed to John E. Norris, trustee, a deed covering the above real estate. This deed recited that the note was given to secure the just indebtedness of Mrs. Caro toH arriet Ordway. But the bill alleges and the demurrer admits that it was, in fact, given for money borrowed from the payee by Solomon Caro. This last deed was in trust that Mrs. Caro, her heirs and assigns, should have, hold, use, and enjoy the premises, and their rents, issues, and profits to take, receive, and apply to her own use until some default or failure occurred in the payment of the debt or some part of the debt due to Mrs. Ordway. It also provided that upon the written request of the latter, as the legal holder of the above note, the trustee should proceed to sell and dispose of the premises, or so much thereof as might be deemed necessary, at public sale to the highest bidder, upon such terms and conditions as the trustee deemed best for the interest of all parties concerned, giving due notice of sale.

On the 21st of December, 1874, Elizabeth Caro joined with Levi Abraham in a deed conveying the real estate in question to Elizabeth Rebecca Abraham in fee.

Caro having abandoned his wife, she obtained from the supreme court of the District of Columbia, on the 20th of October, 1876, a decree of divorce and a restoration of her maiden name of Elizabeth Abraham. The latter paid interest on the above note for about eight years. But having ceased to make such payments, the property was sold at public auction on the 6th of January, 1879, pursuant to the terms of the Norris deed of trust; and on the same day Norris executed to Mrs. Ordway, the purchaser, a deed conveying to her the property in fee. After this purchase, Mrs. Ordway took possession of the property, and received the rents and profits thereof.

Elizabeth Rebecca Abraham, the grantee in the deed of December 21, 1874, died August 10, 1886, intestate, leaving the appellants as her only heirs at law.

Levi Abraham, the trustee, died on the 28th of April, 1876. Norris died on the 4th day of February, 1887.

The appellants brought this suit upon the theory that the above note having been executed by Elizabeth Abraham while she was a married woman, the wife of Caro, was void; that the deed of trust to Norris was, for that reason, of no effect as security for its payment; and that the conveyance by Norris to Mrs. Ordway created a resulting trust for the benefit of the plaintiffs.

The prayer of the bill was for a decree requiring the defendant Harriet Ordway to convey all her right, title, and interest in the estate in question to the plaintiffs, and account to them for rents and profits.

The defendants demurred upon the ground that the plain- tiffs did not by their bill present a case entitling them to relief in a court of equity. The demurrer was sustained, and the bill dismissed. That decree was affirmed in the general term.

After the decree below was perfected, the defendant Harriet Ordway died, and the present appellees are her devisees.

Counsel express gratification that an opportunity is presented in this case for the construction of what is known as the married woman's act of April 10, 1869, in force in the District of Columbia, particularly the section providing that 'any married woman may contract and sue, and be sued in her own name, in all matters having relation to her sole and separate property, in the same manner as if she were unmarried.' Rev. St. D. C. § 729.

We do not deem it necessary at this time to consider the scope of that act, nor to determine whether it was correctly interpreted in Schneider v. Garland, 1 Mackey, 350. The case can be disposed of upon a ground that does not involve the construction of that statute, and which cannot be ignored, whatever conclusion might be reached as to the power of Elizabeth Abraham, while she was the wife of Solomon Caro, to charge the estate in question with the payment of the $3,000 note. That ground is that the plaintiffs, and those under whom they assert title, have been guilty of such laches as to have lost all right to invoke the aid of a court of equity. Nearly 19 years elapsed after the execution of the e ed to Norris before the present suit was brought. And, although the plaintiff Elizabeth was the wife of Caro when that deed was made, she was divorced in 1876, nearly 13 years before the institution of these proceedings. She paid interest on the debt of $3,000 for about 8 years, without, so far as the bill discloses, protesting that she was not legally bound to do so. Some of those payments must have been made after her divorce from Caro, and while she was an unmarried woman. She did not pretend to have been ignorant of the public sale, under the Norris deed, at which Mrs. Ordway purchased the property at the price of $2,750. Nor did she pretend to have been unaware at the time, of the fact that Mrs. Ordway, after her purchase, went into possession and continuously received the rents and profits of the estate.

It appears also upon face of the bill that, in 1874, Levi Abraham and the plaintiff Elizabeth, then Elizabeth Caro, conveyed this property to Esther Rebecca Abraham. Whether this deed was recorded or not the bill does not state. But the grantee in that deed did not die until August 10, 1886, nearly 12 years after the...

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    ...... platting and survey conflict with their boundaries. ( Abraham v. Ordway, 158 U.S. 416, 39 L.Ed. 1036, 15. S.Ct. 894; Willard v. Wood, 164 U.S. 502, 41 L.Ed. ......
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