Charles Scott, Bailiff of William Moore, Plaintiff In Error v. John Lloyd

• Decision Date: 01 January 1835
• Citation: 9 L.Ed. 178,9 Pet. 418,34 U.S. 418
• Parties: CHARLES SCOTT, BAILIFF OF WILLIAM S. MOORE, PLAINTIFF IN ERROR v. JOHN LLOYD
• Court: U.S. Supreme Court

34 U.S. 418

9 Pet. 418

9 L.Ed. 178

CHARLES SCOTT, BAILIFF OF WILLIAM S. MOORE, PLAINTIFF IN ERROR v. JOHN LLOYD.

January Term, 1835

IN error to the circuit court of the United States for the county of Washington, in the District of Columbia.

An action of replevin was instituted in March 1825, by John Lloyd, in the circuit court of the United States for the county of Alexandria, against Charles Scott, bailiff of William S. Moore; and a declaration was filed in the common form, at September rules of the same year. In November 1827, the defendant filed the following avowry.

'Charles Scott, bailiff, &c., at suit, John Lloyd; and the said Charles Scott, by Robert J. Taylor, his attorney, comes and defends the force and injury, when, &c. and as bailiff of William S. Moore, well acknowledges the taking of the said goods and chattels, in the said place, when, &c., and justly, &c. because, h e says, that before the said time when the said, the taking of the said goods and chattels, is supposed to have been made, one Jonathan Scholfield was seised in his demesne in fee of four brick tenements, and a lot of ground, whereon they stood, on the east side of Washington street, and north side of Duke street, in the town of Alexandria, and county aforesaid, whereof the said place, when, &c., is, and at the said time, when, &c., was parcel, and being so seised, as aforesaid, of the said tenements, and lot of ground, he the said Jonathan and Eleanor his wife, afterwards, and before the said time, when, &c., to wit, on the 11th day of June 1814, at the county aforesaid, by their certain indenture dated on the said 11th day of June 1814, and here now to the court shown, in consideration of the sum of 5000 dollars by the said William paid to the said Jonathan, granted, bargained, and sold to the said William, one certain annuity or yearly rent of 500 dollars, to be enuring out of, and charged upon, the said four brick tenements and lot of ground, whereof the said place, when, &c., is parcel, to be paid to the said William, his heirs and assigns, by equal half yearly payments of 250 dollars each, on the 10th day of December, and on the 10th day of June, in every year for ever thereafter. To hold the said annuity or rent, so as aforesaid charged and payable, to the said William S. Moore, his heirs and assigns, to his and their only proper use for ever; and the said Jonathan Scholfield, for himself, his heirs and assigns, did by the said indenture, among other things, covenant with the said William S. Moore, his heirs and assigns, that he, the said Jonathan Scholfield, his heirs and assigns, would well and truly satisfy and pay to the said William S. Moore, his heirs and assigns, the said annual rent of 500 dollars, by equal half yearly payments as aforesaid, for ever, and that if the said rent should not be punctually paid as it became due, then that on every such default, it should be lawful for the said William S. Moore, his heirs and assigns, from time to time, to enter on the said four tenements and lot of ground, so as aforesaid charged, of which the said place, when, &c., is parcel, and to levy by distress and sale of the goods and chattels there found, the rent in arrear, and the costs of distress and sale; of which said rent, so as aforesaid granted, the said William became and was seised under the said deed, and by the perception thereof, that is to say, on the 11th day of December, in the year 1814, at the county aforesaid, and has since remained, and yet is seised thereof.

'And afterwards, that is to say, on the 29th day of October, in the year 1816, at the county aforesaid, the said Jonathan Scholfield and Eleanor, his wife, by their certain deed of bargain and sale, under their seals, dated on the day and year last mentioned, bargained, sold, and conveyed to the said John Lloyd, his heirs and assigns for ever, certain tenements and lots of ground, in the said town of Alexandria, whereof the said four brick tenements and lot of ground before mentioned, including the said place where, &c., is and was parcel, subject by the terms of the said deed to the payment of the said annuity or rent of 500 dollars to the said William S. Moore, his heirs and assigns, under, and in virtue of which said bargain, sale and conveyance to him, the said John entered upon the said tenements and lots of ground so to him bargained, sold, and conveyed, of which the said place where, &c., is, and was parcel, and became thereof seised and possessed, that is to say, on the said 29th day of October, in the year 1816, at the county aforesaid, and ever since has continued, and yet is so seised and possessed; and became, after the said bargain, sale, and conveyance, to the said plaintiff as aforesaid, and after his entry, seisin, and possession of the premises, including the said place where, &c. and whilst he so continued seised and possessed as aforesaid, the sum of 250 dollars of the annuity or rent aforesaid, for the half year ending on the 10th day of June, in the year 1824; and the further sum of 250 dollars of the said annuity or rent, for the half year ending on the 10th day of December, in the year 1824, became and remained in arrear and unpaid to the said William S. Moore, he, the said Charles Scott, as bailiff of the said William, and by his command and authority at the said time when, &c., entered on the said place where, &c., being parcel of the said four brick tenements and lot of ground, so as aforesaid charged, with the said annuity or rent, and liable to the distress of the said William, and took and carried away the said goods and chattels in the declaration mentioned, then and there being found in the said place where, &c., parcel of the said four tenements and lot of ground, as a distress for the said rent so in arrear as aforesaid, to the said William, as he lawfully might, and this he is ready to verify, &c.: wherefore the said Charles prays judgment for the sum of 1000 dollars, being double the value of the said rent so in arrear and distrained for as aforesaid, with full costs of suit, &c., according to the statute in that case provided.

'The plaintiff's attorney thereupon filed four several pleas, the first of which was:

'And the said John, by Thomas Swann, his attorney, prays oyer of the said indenture from the said Jonathan Scholfield and Eleanor, his wife, to the said William S. Moore, in the said cognizance mentioned, and the same is read to him in these words, to wit: which, being read and heard, the said John saith that the said Charles, as bailiff of the said William S. Moore, for the reasons before alleged, ought not justly to acknowledge the taking of the goods and chattels aforesaid, in the said place, in which, &c., because he saith that before the making of the said indenture, that is to say, on the 11th day of June, in the year 1814, at the county aforesaid, it was corruptly agreed between the said Jonathan Scholfield and the said William S. Moore, that the said William S. Moore should advance to him the said Jonathan, the sum of 5000 dollars; and, in consideration thereof, that he the said Jonathan and the said Eleanor, his wife, should grant, by a deed of indenture, duly executed and delivered to him, the said William, his heirs and assigns for ever, a certain annuity or rent of 500 dollars, to be issuing out of, and charged upon a lot of ground and four brick tenements, and appurtenances thereon erected, on the east side of Washington street, and on the north side of Duke street, in the town of Alexandria, bounded as follows beginning at the intersection of said streets; thence north, on Washington street, eighty-seven feet, more or less, to the partition wall between the fourth and fifth tenements from Duke street; thence, east parallel to Duke street and with said partition wall one hundred and twelve feet to an alley; thence with the line of the said alley eighty-seven feet to Duke street; thence on Duke street, west, to the beginning; to be paid to the said William, his heirs and assigns, by equal half yearly payments of 250 dollars, on the 10th day of December, and on the 10th day of June for ever thereafter. And it was further corruptly agreed, that he, the said Jonathan, in and by the said deed of indenture, should, for himself, his heirs, executors, administrators, and assigns, covenant with the said William, his heirs and assigns, that he would well and truly pay to him, the said William, his heirs and assigns, the said annuity or rent of 500 dollars by equal half yearly payments, on the 10th day of June, and 10th day of December, in each year, for ever thereafter, as the same should become due; and that if the same should not be punctually paid, that then it should be lawful for the said William, his heirs and assigns, from time to time, on every such default, to enter on the premises charged, and to levy by distress and sale of the goods and chattels there found, the rent in arrear, and the costs of distress and sale; and if the same should remain in arrear and unpaid for the space of thirty days after any day of payment as aforesaid, and no distress sufficient to satisfy the same could be found on the premises, that then it should be lawful for the said William, his heirs and assigns, to enter upon the premises charged, and from thence to remove and expel the said Jonathan, his heirs and assigns, and to hold and enjoy the same as his and their absolute estate for ever thereafter; and it was further corruptly agreed between the said Jonathan and him, the said William, that he the said Jonathan should enter into these further covenants in the said indenture, that is to say, a covenant that he the said Jonathan, at the time of the execution of the said indenture, was then, in his own right, seised in fee simple in the premises charged, free from any condition or incumbrance, other than such as were specified in a deed from the said Jonathan to Robert J. Taylor, dated the ___ day of _____;...