Burd v. Smith

• Decision Date: 01 January 1802
• Citation: 4 Dall. 76,1 L.Ed. 748,4 U.S. 76
• Parties: Burd, Plaintiff in Error, v. Smith, Lessee of Fitzsimons et al. High Court of Errors and Appeals of Pennsylvania
• Court: U.S. Supreme Court

4 U.S. 76

4 Dall. 76

1 L.Ed. 748

Burd, Plaintiff in Error, v. Smith, Lessee of Fitzsimons et al.

High Court of Errors and Appeals of Pennsylvania.

January Session, 1802

ERROR from the Supreme Court, on a judgment entered in pursuance of the following agreement:

'Montgomery county.

'Richard Smith, lessee of Thomas Fitzsimons, William M'Mutrie, Samuel W. Fisher, Philip Nicklin, and Isaac Wharton, v. Edward Burd.

'Ejectment for 130 acres of land in Perkiomen township, in Montgomery county.

'It is agreed that the above action be entered, as an amicable action of trespass and ejectment, on the Circuit Court docket of Montgomery county, as of March term 1800; that a declaration and pleadings be filed, and issue joined conformably thereto that the annexed state of a case be filed as of June term 1800, in the nature of a special verdict, with an entry of the confession of lease entry and ouster; that judgment be rendered thereon for the plaintiff, without prejudice to the title, or right, of either party; that a writ of error on the said judgment be taken from the Supreme Court, tested as of the last day of last December term of the same Court, and returnable in the same Court on the first day of March term following; that the said judgment be affirmed, of course, in the said Supreme Court, as of the same term, without prejudice to the right of either party; and that no advantage be taken of any error in the form of the said proceedings, but every thing be done to give them validity.'

The material facts, contained in the case, to which the agreement refers, were these: 'That the title deeds of the land, mentioned in the declaration, were delivered to Mr. Dallas, by Mr. Blair M'Clenachan, previous to the 2d day of September 1797, to enable him to draw a trust deed from M'Clenachan to him and Mr. Huston; which was, accordingly, drawn, and delivered by Mr. Dallas to Mr. M'Clenachan for the purpose of having the same executed.

'That on the 2d of September 1797, Blair M'Clenachan was seised in fee of the premises; and, at the same time, was indebted, on his separate account, and in partnership with P. Moore to divers persons (some of whom resided in Europe, and in other places beyond seas) in large sums of money, amounting, in the whole, to 435,073 dollars, and upwards. Many of the creditors had commenced suits in the Supreme Court against Blair M'Clenachan, and against M'Clenachan and Moore, which were depending on the said 2d of September 1797; in some of them judgments were obtained on the 4th of September 1797, to the amount of 216,018 dollars; in others, judgments were obtained in December and March terms then next following, to the amount of 22,720 dollars; and on the said judgments, or some of them, executions had issued.

'That Blair M'Clenachan and P. Moore, jointly, or separately, not being able to satisfy and discharge the said debts, Blair M'Clenachan, on the 2d of September 1797, made and executed a certain indenture for several estates, including the premises in the declaration mentioned, to A. J. Dallas and John H. Huston, containing (among other things) the following trusts, conditions, and stipulations:

'Upon the special trust and confidence and to the sole intent and purpose that they the said Alexander James Dallas and John H. Huston and the survivor of them and the heirs of the survivor shall sell and dispose of the lands and premises hereby conveyed and granted in such manner as the said trustees or the survivor or the heirs of the survivor shall deem most adviseable for the general interest of the aforesaid creditors and upon the receipt of the purchase monies, or securities for the same, the premises so sold by deed or deeds to grant and convey unto the purchaser or purchasers thereof in fee simple and that they the said Alexander James Dallas and John H. Huston and the survivor of them and the heirs of the survivor shall pay and distribute the monies arising from such sale or sales (after all costs, charges and expences attending this trust being deducted and paid) towards the payment and discharge of the debts of all such the aforesaid creditors, as shall in writing agree to accept the same within nine months after the date hereof at such times as the said trustees shall deem the most adviseable, rateably and in proportion according to the whole amount of the said debts of him the said Blair M'Clenachan and of the said partnership firm of Blair M'Clenachan and Patrick Moore, and to pay unto the said Blair M'Clenachan his executors, administrators, or assigns, the proportion of all such creditors as shall not signify their acceptance within the specified time to the intent that he may therewith and thereout compound with and satisfy such creditors. And if the monies arising from the sale or sales of the lands and premises aforesaid shall be more than sufficient to answer the purposes aforesaid, that they the said Alexander James Dallas and John H. Huston and the survivor of them, and the heirs of the survivor shall pay the overplus monies unto the said Blair M'Clenachan his executors, administrators, or assigns. And the said Blair M'Clenachan for himself, his heirs, executors, and administrators doth covenant, promise and agree to and with the said Alexander James Dallas and John H. Huston and each of them and the survivor of them and the heirs and assigns of them and the survivor of them in manner and form following that is to say that he the said Blair M'Clenachan and his heirs shall and will from time to time and at all times hereafter upon the reasonable request and at the proper costs and charges of them the said Alexander James Dallas and John H. Huston or the survivor of them or of the heirs or assigns of them or of the survivor make execute and deliver or cause to be made, executed and delivered unto the said Alexander James Dallas and John H. Huston or the survivor of them or the heirs or assigns of them or of the survivor all such further and other acts deeds conveyances and assurances in the law whatsoever, for the better and more perfect granting conveying assuring and vesting the lands and premises aforesaid in them the said Alexander James Dallas and John H. Huston and the survivor of them and the heirs and assigns of them and of the survivor upon the trust and confidence aforesaid as the said Alexander James Dallas and John H. Huston or the survivor of them or the heirs or assigns of them or of the survivor or their or either of their counsel learned in the law shall reasonably devise, advise or require. And the said Blair M'Clenachan and his heirs the said lands and premises hereby granted or mentioned, or intended to be hereby granted with the appurtenances unto the said Alexander James Dallas and John H. Huston and the survivor of them and to the heirs and assigns of them and of the survivor of them, against him the said Blair M'Clenachan and his heirs and against all and every other person or persons whomsoever lawfully claiming or to claim by from or under him them or any or either of them shall and will well and truly warrant and forever defend by these presents.' And this indenture was acknowledged on the 4th of September 1797, by the said Blair M'Clenachan, in the absence of Mr. Dallas, one of the trustees, and no proof was given whether the other trustee was present, or not. It was recorded in Philadelphia on the 24th of November, and in Montgomery county, on the 27th of December, 1797.

'That the yellow fever prevailed in the city of Philadelphia from the latter end of August, until the latter end of October, or beginning of November, 1797; during which the said trustees were absent from the city; but a communication with some of the printers of the city was kept open, during the whole period, by the medium of the post-office.

'That on the said 4th day of September 1797 Edward Burd (the defendant in the ejectment) obtained a judgment in the Supreme Court, against the said B. M'Clenachan, for 5,333 dollars, and 33 cents, besides interest and costs, with a stay of execution for 60 days. A fi. fa. was issued and returned upon this judgment, in the usual form to ground a testatum; and, on the 15th of November 1797, a testatum fi. fa. was issued to the sheriff of Montgomery county, which was delivered to the sheriff on the next day. On the 24th of November, levy was made upon the premises in the declaration mentioned; on the 8th of December an inquisition was held on the premises, which were condemned; on the 7th of March 1798, a vend. exponas issued to the sheriff of Montgomery, and the premises were, thereupon, in due form sold to the said Edward Burd, for 930l.; on the 27th of March 1798, the sheriff made, and acknowledged in open Court, a deed for the premises to the said Edward Burd; and shortly afterwards delivered to him the possession.

'That the said Edward Burd had no knowledge, or notice, of the execution, or existence, of the deed of trust to Dallas and Huston, or of the proceedings under it, until subsequent to the 12th of December 1797.

'That, on the 24th of November 1797, the trust deed was in the possession of the trustees, or one of them, by delivery of the said B. M'Clenachan; but when the same was so delivered is not known. The other title deeds remained in the possession of Mr. Dallas during the yellow fever of 1797, and until they were delivered by him to the lessors of the plaintiff.

'That, on the 15th of December 1796, an advertisement was published, calling a meeting of the creditors of B. M'Clenachan, and of M'Clenachan and Moore; and at the meeting, on the 17th of December, the creditors appointed a committee, though the minutes of the appointment, &c. were not signed. This committee, on the 19th of December 1796, published an advertisement called a caution, against making any purchases, or accepting any conveyances of B. M'Clenachan's estate, from him, or his children; to which M'Clenachan published an answer, on the same day; and,...