Armstrong's Heirs v. Campbell

• Decision Date: 31 March 1832
• Citation: 11 Tenn. 201
• Parties: ARMSTRONG'S HEIRS v. CAMPBELL.
• Court: Tennessee Court of Appeals

11 Tenn. 201

ARMSTRONG'S HEIRS

v.CAMPBELL.

Supreme Court of Errors and Appeals of Tennessee.

March Term, 1832.

OPINION TEXT STARTS HERE

Bill filed in January 1823, states that in May, 1799, Martin Armstrong contracted with defendant to attend to his land business in East Tennessee, and to sell lands there situated, etc., upon an allowance of one-third. That under said agreement defendant sold large quantities of land in Martin Armstrong's lifetime, and concealed the sale, under pretence that they could not be identified. That in November, 1806, defendant, with a view to defraud Martin Armstrong, sold a large quantity of warrants to James Trimble, for a pretended false consideration, with a secret contract that Trimble was to re-convey half to defendant, and pay a higher price for the residue. That in pursuance of said agreement, Trimble drew warrants, transferred one-half to defendant, and paid him for the other half at a high price, deducting therefrom divers large sums for expenses, which defendant, by his contract with Martin Armstrong, was himself to have borne. That upon said warrants defendant has entries and grants in his own name, and is in peaceable possession and the enjoyment of the rents and profits, etc. That Martin Armstrong in his lifetime, and complainants since his death, have repeatedly called on defendant for a settlement, which he as often avoided or refused. That at the time of said contract, and ever since, till his death, Martin Armstrong was superannuated and incapable of doing business of importance, which was the reason of defendant's conduct.

That between 1802 and 1805, defendant, by fraud, procured conveyances from Martin Armstrong of one tract of 5,000 acres, and another of 5,760, which descended to him from John Armstrong, without any consideration, or upon one wholly inadequate; that he took possession of them, has enjoyed them ever since, and claims them as his own.

That by an agreement between General Robertson and Martin Armstrong, a certain judgment obtained by William T. Lewis against said Martin Armstrong was satisfied by Robertson; after which defendant procured an assignment of, and pretends that he purchased said lands under the assignment at sheriff's sale. That Martin Armstrong died in 1807 or 1808, intestate, and that no admistration was ever taken out on his estate, and that complainants are his heirs at law.

That defendant received large sums of money for lands and warrants before and since Martin Armstrong's death, and utterly refuses to settle under various pretences.

The prayer, after a number of interrogatories, is, that defendant may be compelled to account of and concerning the foregoing premises, and that the same may be referred to the clerk and master, to ascertain the various sums of money received by defendant for sales of land and land warrants, and also the value of land warrants at and since that period; and that defendant may be compelled to pay such sums as may be found due; and that said defendant may be divested of all right or claim to the two tracts of land aforesaid, one of 5,000 acres and the other of 5,760 acres, respectively, and account for the rents and profits thereof; and that he may be divested of the legal title to all the lands entered or granted in his name, upon warrants drawn from grants of the said Martin Armstrong, and that the same may be vested in complainant, and for such other and further relief as the premises require and justify.

The answer admits the agreement or contract entered into in May, 1799, as set forth in the exhibit, which is a copy of the contract, and alleges that the said Martin Armstrong himself stated, that in pursuance of it, defendant made many and persevering efforts to find and identify the lands of Martin Armstrong, embraced by said contract, which were ineffectual. That grants did not agree with entries, and could not be found; which state of things continued until the legislature authorized the issuing of certificates for lost land, soon after which defendant entered into an arrangement with James Trimble, in November, 1806, by which he sold and transferred to Trimble a large amount of land claims, with the expectation and understanding that he (Trimble) would draw certificates for said land, they being well understood to be what was called lost lands. That said sale was for fifty cents per acre, upon a credit of one, two and three years, which is insisted to be a fair and full price. That Trimble, being unwilling to purchase so largely, would not make the purchase, unless defendant would take one-half of the purchase, or become responsible to Armstrong for one-half, which defendant agreed to do; that said arrangement was fair, bona fide, public, without imagination of fraud, and known to all who chose to enquire about it; and was soon after placed upon the records of the country. The quantity of land thus sold was 10,150 acres, of which defendant was, by the contract under which he acted as Armstrong's agent, in making the sale, entitled to one-third; so that all he could possibly have gained by the trade with Trimble, upon the supposition that he intended to commit a fraud, was a right to purchase 1,691 acres, at fifty cents an acre; an advantage, if any, certainly too small to influence a man of ordinary honesty, property and standing in society. Answer also insists, that there was a provision in the contract, by which he was created Armstrong's agent, and under which he acted in the sale to Trimble, by which he was allowed to act in the whole matter according to his “skill and judgment,” which, defendant says, was purposely introduced to give him latitude as an agent, and prevent him from being restricted in the exercise of his functions, by all the rules of law and equity applicable to agencies in general; and he insists that in the whole matter he acted according to his best “skill and judgment.” Answer further states, that by the agreement between Trimble and defendant, Trimble was to dispose of such warrants as he thought fit, over and above his half, and account for one-half the proceeds to defendant. Denies that the price to be given by Trimble was lower, because certificates had not been obtained, as, in fact, most of the preliminary facts had been ascertained, and some steps taken towards procuring the certificates, before the agreement with Trimble; and that all subsequent expenses were to be borne by Trimble, the purchaser. States, that of the claims sold to Trimble, two certificates of 1,000 acres each were transferred to him by Trimble, that they might be located under a contract defendant had with Anderson and Strother; and they were located for defendant and said Trimble jointly, though solely in the name of defendant, defendant binding himself to convey to Trimble one-half. That these warrants were laid on the land in Lincoln county, 270 acres of which were lost by interfering claims. That subsequently defendant and Trimble made a contract, by which Trimble gave his half of the two tracts in Lincoln, now amounting to 1,730 acres, to defendant, (and some boot) for his defendant's half of 2,000 acres on Poplar creek in East Tennessee, not connected with the Armstrong claims at all, being bought of one Moore. That this trade was made in April, 1809, before the 270 acres were lost, and long after the certificates of 1,000 acres each had been located in Lincoln, and the land granted; and that in said trade, the Lincoln land was estimated at but one dollar per acre, not, in fact, a better price, all things considered, than fifty cents an acre, for the warrant. Answer of the defendant further insists that, at all events, he had a right to consider the 1,730 acres, or the certificates by virtue of which those tracts were entered, as part of his one-third, which he was to get from Armstrong, under their contract. That grants issued in his name for those lands in Lincoln in May, 1808, that he took possession of it in November, 1809, and has retained it ever since, which possession has been open, notorious and adverse, and which he insists is a bar to any claim for it, by virtue of the several acts for the limitation of actions. The answer professes a willingness to account for, and pay over, all the moneys actually received; but insists, as the lands were sold in the lifetime of Martin Armstrong, that his administrator would be the proper person to settle with, and that complainants have no right to bring this action for the proceeds of the warrants sold; and that such, also, was the opinion of Jenkin Whiteside, esq., the attorney in fact of complainants, with whom, it will be seen, that various conferences were held by defendant upon the subject of a settlement of this business, from whom nothing was withheld, and who never could surmount the difficulty of the want of an administrator to account with. Answer admits that about 2,500 acres of the warrants, other than those sold to Trimble, have been located in the Western District, and granted to Martin Armstrong's heirs, of which he claims one-third, after paying locator.

As to the two tracts of land, of 5,000 and 5,760 acres, defendant says the 5,000 acre one he bought of Martin Armstrong and paid for fairly, took open, notorious and exclusive possession, under his deed in 1810, which he has continued ever since. That after the first purchase, which was in 1803, he caused an execution to be levied on it in 1807, founded upon a judgment against John Armstrong's heirs, under which he bought it again for $1,000, and claims the benefit of said purchase, etc.

As to the 5,760 acre tract, he says that he bought that portion of the tract which lay in the Indian boundary, which was about two-thirds, and claims no more; says the purchase was fair, in good faith and as much given for it as it was worth under the circumstances. Insists on possession, lapse of time, statute of limitation, as to both tracts. The claim set up in the bill as to those two...