George v. Forest Glen Land Co.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Citation: George v. Forest Glen Land Co., 281 F. 577 (D.C. Cir. 1922)
• Decision Date: 05 June 1922
• Docket Number: 3749.
• Parties: GEORGE et al. v. FOREST GLEN LAND CO. et al.

281 F. 577

GEORGE et al. v. FOREST GLEN LAND CO. et al.

No. 3749.

United States Court of Appeals, District of Columbia.

June 5, 1922

Submitted April 11, 1922.

Appeal from the Supreme Court of the District of Columbia.

T. L Jeffords, E. C. Dutton, and Joseph T. Sherier, all of Washington, D.C., for appellants.

Paul Sleman, of Washington, D.C., and William S. Thomas, of Baltimore, Md., for appellees.

ROBB Associate Justice.

Appeal from a decree in the Supreme Court of the District overruling appellant's exceptions to a report of the auditor of that court, affirming that report, and holding that appellant George is not entitled to the relief prayed in his bill as amended.

The suit grows out of the sale to George on November 30, 1918, of the Barrister Building, so called, No. 635 F Street Northwest, this city; the sale being subject to a first trust on the property of $80,000 and a second trust of $50,000. In payment for the property George gave his note for $30,000, payable one year from date, and secured by a third trust on the property, wherein appellant Taggart was named as trustee, and, in addition, certain land in West Virginia. The third deed of trust contained a covenant securing the grantor against any loss or damage it might sustain by reason of any defect in the title to any of this West Virginia land; George guaranteeing that title 'to be good and marketable and free from any and all liens and incumbrances. ' It was further provided that, when a proper certificate of title should be presented to the grantor Land Company, a release of this covenant should be given.

It developed that there was vendor's lien on this West Virginia land for two promissory notes, of $208 each, due September 26, 1919, and September 26, 1920, respectively, and payable to John W. Swick. The note for $30,000 was not paid when due, and the trustee, by direction of the Land Company, advertised the building for sale at public auction on December 18, 1919, under the provisions of the trust. On that day George filed his bill against the Land Company and Taggart as trustee, claiming in substance that he was not in default, and seeking a preliminary injunction and accounting. Taggart filed his answer on the same day, the sale was called off, and the court on the next day signed a preliminary restraining order. Upon the filing of an answer by the Land Company the court ordered the defendants enjoined pendente lite, provided petitioner file a bond in a sum named. One week later, no bond having been filed, the order granting an injunction pendente lite was vacated and set aside. Thereupon Taggart readvertised the property for sale on January 6, 1920, but owing to inclement weather it was necessary to postpone the sale until February 11th following.

On February 10th the appellee Chester A. Parvin filed a bill against the Land Company and Taggart as trustee, alleging that he had purchased the Barrister Building from George, discharged from the deed of trust provision for indemnity against defective title to the West Virginia land. There are other averments in the bill, but they need not be mentioned here. An order restraining the sale as advertised was prayed, and on the same day George filed an affidavit in support of Parvin's bill, in which he stated that the deed to Parvin had been placed in escrow pending release by the Land Company of the indemnity provision. A temporary restraining order was issued, the Land Company filed its answer, and thereupon the George and Parvin cases were consolidated, and the application of Parvin for an injunction pendente lite denied.

The property then was readvertised for sale on March 8, 1920. The Land Company bid $19,500 at the sale, but John J. Wescott, who 'rents desk room' in Mr. Taggart's office, bid $20,000, and the property was struck off to him. Against the protest of the Land Company, and in disregard of the terms of sale, the trustee accepted Mr. Wescott's uncertified check for $5,000 cash deposit. Payment of this check being refused, when presented the following day, the property again was advertised for sale on March 20, 1920, when it was bought by the Land Company for $5,000.

On April 3, 1920, the Land Company filed a cross-bill against George and Taggart as trustee, reciting that Taggart claimed commissions amounting to $2,750 for making the sale. George answered this cross-bill, alleging that he had been unable to deliver his deed to Parvin on account of the failure of the Land Company to file a release under the indemnity covenant in the third deed of trust. Later George filed an amendment to his original bill, seeking to charge the Land Company with the difference between its original bid of $19,500 and its subsequent bid of $5,000.

After trial the court ruled that the auditor was entitled to a commission of $250, to the cost of the advertised sales and counsel fees, and to commissions on the rents he had collected; that the Land Company was entitled to reasonable counsel fees as provided in the deed of trust; and that George was not entitled to the relief prayed, except as to an accounting. Thereupon Parvin sought and obtained leave to dismiss his suit. On November 4th the auditor filed his report, and, exceptions being filed, the case was brought here.

There is no equity whatever in the bill filed by Mr. George. The...