Bunel v. O'Day

• Decision Date: 06 October 1903
• Docket Number: 179.
• Citation: 125 F. 303
• Court: U.S. District Court — Western District of Missouri
• Parties: BUNEL v. O'DAY et al.

125 F. 303

BUNEL v. O'DAY et al.

No. 179.

United States Circuit Court, W.D. Missouri, Southern Division.

October 6, 1903

Syllabus by the Court

A compromise of suit between imputed brother and sister where the question of legitimacy of the sister is involved because of its scandalous character is such a proper subject of domestic adjustment as to invite the favor of the court. If free from fraud, no matter how unjust the defendant may have regarded the charge, or what different result subsequent developments might probably produce, it should stand. The value consists in the release from an uncertain position with its anxieties, from apparent danger, and from inevitable expenses and trouble. Such compromises are especially favored by the courts when of the nature of family settlements.

While it is the duty of counsel acting as guardian ad litem for a defendant to advise with and safeguard his client as far as he can in the matter of a compromise agreement, yet when such client, on the approach of her majority, without the connivance or concurrence of her counsel, separates herself from him, and enters into a compromise agreement with her adversary brother, neither law nor the ethics of the profession require that her counsel should go out and hunt her up and thrust his advice upon her; and where at the time of the consummation of the compromise agreement, when she had attained her majority, he admonishes her of the effect of her act, and she nevertheless enters into such agreement, she has no claims upon a court of equity to interfere.

The adversary counsel has a right to advise and assist his client to the most advantageous compromise in his behalf, provided he neither makes, nor causes to be made, to the adverse party, any false statement of fact, with a view of inducing such compromise in reliance upon the truth of such statement. He has the right to deal with the adversary at arm's length.

When one of the questions in suit is whether or not the defendant is the daughter of a former husband of the mother, the fact that the mother, both prior to and during the pendency of the litigation, may have stated to the daughter, in anger, that she was not born in lawful wedlock, and such imputation may have been among the inducements influencing the daughter to compromise the suit, such fact would not warrant the court in vacating the compromise without a judicial inquiry and ascertainment as to whether such imputation was true or false.

The rule of law that when the marriage relation is once proven to exist nothing shall be allowed to impugn the legitimacy of the issue, short of proof of facts showing it to be impossible that the husband could be the father, is not a conclusive presumption, but is one that disappears when the truth appears. The proof to repel it is as to the degree.

Where a part of the consideration to be paid by complainant for such compromise was the sum of $10,000, to be placed with a named trust company, the interest thereon to be paid to the defendant during her natural life, the fact that the written memorandum of such undertaking does not express the consideration therefor nor fix the time when such deposit should be made does not render it nonenforceable. The consideration can be shown by parol, and the law would imply that the deposit should be made in a reasonable time, according to the surrounding circumstances; besides, the cause being yet pending in a court of equity, the court has plenary power, as a condition to the recognition of the operation of the settlement, to require the deposit to be made in a given time; and where the beneficiary of such deposit, before a reasonable opportunity has been afforded the complainant to make such deposit, gives notice of the repudiation of the entire compromise agreement, she cannot complain that such deposit was not promptly made or could not be enforced.

The fact that the husband is joined with the wife as a codefendant in a suit in equity to avoid the effect of the judgment of a foreign court, adjudging her to be equally entitled with the complainant to a share in a certain trust fund, and to recover from her and her curator the property, real and personal, obtained by them under such alleged fraudulent judgment, does not require that he should join her in a compromise agreement, or in an answer confessing the bill, as under the Missouri statute she is as to such property a feme sole, and as such can be sued alone, either at law or in equity.

Where, pursuant to the terms of such compromise agreement, the defendant wife conveys certain real estate to the complainant and other real estate to complainant's counsel in payment of his fees, the request of the defendants to file in the original suit a cross-bill bringing such counsel for the first time into the litigation, seeking to set aside such compromise and deeds as having been fraudulently obtained, is denied, as not being properly within the office of a cross-bill.

The conduct of lawyers and retainers thrusting themselves into litigious strife, by becoming largely interested in the result, animadverted upon by the court.

F. S. Heffernan, for complainant.

W. D. Tatlow and Allen & Rathbun, for defendants.

PHILIPS District Judge.

The complainant brought suit in equity in this court to avoid, for fraud and perjury in its procurement, a decree rendered by the Supreme Court of New York City, state of New York, in a suit brought at the relation of the New York Life Insurance & Trust Company (hereinafter for convenience called the trust company), by which it was adjudged that the defendant Mary was a legitimate child of one Charles Emile Bunel, deceased, father of complainant, and as such legitimate child was entitled to share equally with the complainant in a certain trust fund held by said trust company, created by the father of said Charles Emile Bunel for the benefit of said Charles and his heirs at law, the said Charles having died.

The bill of complaint charges that said Mary was in fact a child begotten in illicit intercourse between the mother of said child and one Alfred Earles, who has since married the mother of said child. The bill alleges that in October, 1884, in a suit instituted early in that year by said Charles Emile Bunel for divorce from the said mother, he was divorced from her on the ground of her illicit cohabitation with said Alfred Earles, resulting in the birth of said Mary, after trial of the issues of fact in said suit; that while complainant was a minor of tender years he was taken by his foreign guardian to France, in Europe; and that, when said trust company filed a bill in equity in said Supreme Court of New York City for the ascertainment and determination of who were the beneficiaries of said trust, certain named parties in southwestern Missouri, where said Charles Emile Bunel and his former wife had resided, organized a conspiracy for the purpose of having it made to appear that said Mary was the legitimate child and heir of said Charles Emile Bunel, and was therefore entitled to share in said trust fund, and to that end they confederated with the mother, Mrs. Earles, and with the counsel and guardian ad litem of the said complainant in said suit in the Supreme Court of New York City, and by false and perjured testimony, concocted and gotten up by the conspirators, deceived, mislead, and imposed upon the said court, whereby it was led into rendering the judgment declaring that the said Mary was the lawful heir of said Charles Emile Bunel, and entitled as such to an undivided equal part of said trust fund with the complainant; that under and by virtue of said judgment a large amount of money and property had passed into the hands of one John O'Day, as the curator and guardian of said Mary, then a minor of tender years, who was appointed such curator and guardian by the probate court of Greene county, Mo.

The supplemental bill of complaint charges that said John O'Day, as curator aforesaid, was guilty of waste and misappropriation to his own use of a large amount of property ostensibly belonging to his ward, for which he had not accounted; that, on the death of said John O'Day, his son, the defendant John O'Day, Jr., had been appointed by said probate court the successor as curator and guardian of said Mary, and that he as such curator and guardian had come into and yet holds the possession of a large amount of property, personal and real, so coming to said Mary as aforesaid. The bill seeks to have said Mary and said last-named guardian and curator enjoined from further availing themselves of said fund and property, and for an accounting with the curator, and for general relief.

During the pendency of this litigation, and after both the complainant and said Mary had attained their legal majority, to wit, on the 16th day of October, 1902, the complainant and said Mary reached a compromise agreement of said litigation, by which said Mary was to and did file her answer herein, under oath, admitting the material allegations of the bill. In consideration of said agreement of compromise the complainant conveyed to said Mary a life interest in 93 acres of land on the Boulevard near the city of Springfield, Mo., estimated to be of the value of $9,300, and the home that said Mary now lives in, in the city of Springfield, and an obligation on complainant's part to deposit for her use and benefit the sum of $10,000 in said trust company, the said Mary to draw semiannually the interest thereon during her natural life, and also assumed the payment of certain indebtednesses of the said Mary.

On the 12th day of November, 1902, she filed with the clerk of this court a motion, in the nature of a petition, for leave to withdraw her said answer, and for leave to file an...