Goerz v. Barstow

• Decision Date: 01 October 1906
• Docket Number: 1,493.
• Citation: 148 F. 562
• Parties: GOERZ v. BARSTOW et al.
• Court: U.S. Court of Appeals — Fifth Circuit

148 F. 562

GOERZ v. BARSTOW et al.

No. 1,493.

United States Court of Appeals, Fifth Circuit.

October 1, 1906

The bill in this case was brought by and in behalf of the heirs at law of Elias B. Barstow, who died intestate in Chatham county, Ga., in September, 1898. The scope of the bill is to recover three several tracts of land in and about the city of Savannah and an accounting for rents and profits, on the theory that Elias B. Barstow, the owner of these lands, was non compos before and from July 12, 1895, up to his death and that the defendants, through fraudulent and illegal proceedings, had procured possession and titles to the same. The appeal in this case is by part of the defendants, and relates to only one of the tracts of land, and therefore a full description of all the pleadings and evidence is unnecessary.

In regard to the tract involved in this appeal, the bill charges:

'Second. Your orators further show that E. B. Barstow died on the . . day of September, 1898, in Chatham county, Ga intestate, and that on November 3, 1898, W. W. Gordon, Jr., was duly appointed and qualified as administrator to the estate of the said Elias B. Barstow as temporary administrator, and permanent letters of administration on said estate were issued to him by the ordinary of Chatham county, Ga., on December 19, 1898, and your orators show that W. W. Gordon, Jr., administrator, consents to the filing of this bill by your orators and the heirs at law of said E. B. Barstow, deceased, for the purpose of recovering certain real estate hereinafter more particularly described. Your orators show that the said estate is entirely solvent, and that it is not necessary for the administrator to take possession of the real estate sought to be recovered in this bill for the payment of any debts of the intestate or for any other purpose, and your orators show further that under the laws of Georgia real estate descends direct to the heirs at law.

'Third. Your orators further show that said E. B. Barstow inherited in fee simple a large amount of valuable property, including a tract of about 1,176 acres on Wilmington Island, Chatham county, and several tracts in the immediate vicinity and suburbs of the city of Savannah, Chatham county, Ga.; three of these tracts being the subject of this bill, and more particularly described as follows: 5, 8, 9, 13, 16, 17, 20, on Tebeau's map, dated February 28, 1894, each containing 5 acres, except lot 20, which contained 5.26; said 50.26 acres bounded as follows: 50.26 acres, consisting of and known as lots 1, 4; south by a 50-foot street as laid down in said map; east by Waters' road; north by a 30-foot street; on the west by land of . . . Smith, as marked in said plat-- said map being of record in the office of the clerk of the superior court of Chatham county. The second tract, containing 67 1/2 acres, more or less, lying near the city of Savannah, in Chatham county, Ga., and known and designated as lots 23, 26, 29, 32, 35, on the plan of the norton tract, made March 12, 1869, recorded as '4H, folio 18.' The third tract being 20 acres, more or less, near the city of Savannah, in Chatham county, state of Georgia, known and designated as lots 14, 15, 18, 19, on a plan of the Norton tract, made by the county surveyor; said tract of four lots being bounded north by a right of way designated in said plan, east by lot 11 of said plan, south by lands of McClesky, and on the west by lands of Hull.

'Fourth. Your orators show that about the 12th of June, 1895, said E. B. Barstow contracted with Isaac Beckett, agent for Harriet H. Burch, for a loan of $1,500, $1,000 of which was to be paid at once, and the remaining $500 a short time after, and that to secure said debts said E. B. Barstow executed a deed to Harriet H. Burch to the 50.26-acre tract hereinafter described; that on the execution of said security deed $1,000 in cash was paid to said Barstow according to said agreement.

'Fifth. Your orators show that said Barstow at and before the time of entering into this contract was deranged in his mental faculties, and did not have at that time sufficient amount of reason to be capable of knowing his real situation or condition, or of knowing or understanding clearly what he was doing or perceiving the effects of his acts. Your orators show that he was doing or perceiving the effects of his acts. Your orators show that said E. B. Barstow was an old man, upwards of 60 years of age; that at and before the time of said contract, and afterwards, continuing to his death, his mind was greatly impaired and weakened, due in a large measure to the long-continued and excessive use of spirituous liquors; although possessed of large and valuable property, he was morally and physically incapable of managing his own affairs or in taking any care of himself personally; that, while owning these various tracts of land in and near the city of Savannah, he lived the life of a recluse on Wilmington Island, avoiding contact with his fellow men, without servants, and finally died alone and unattended at his home on said island on the . . . of September, 1898, intestate. Said Barstow had many insane delusions and personal traits, among them the delusion that his property was immensely valuable. He refused about the time of said contract with Burch a reasonable and bona fide offer of $20,000 for the property, the subject of this bill. He actually paid taxes on his property far above the taxable value of said property.

'Sixth. Your orators show that said Isaac Beckett is a lawyer and money lender in the city of Savannah. During the transaction resulting in the same contract with Barstow, said Beckett became acquainted with said Barstow's physical condition and physical weakness and imbecility and conceived the scheme of wrestling from said Barstow his valuable property for a nominal consideration, and as the scheme developed other defendants besides Harriet H. Burch and Isaac Beckett became connected with the illegal and inequitable transaction by the purchase of the respective tracts as herein set out; and all of said defendants purchased with notice of the rights and equities of said E. B. Barstow in these premises, and were speculating with their eyes open to the vices and imperfections of the title acquired by him to the said several tracts of land. This unlawful and fraudulent scheme to acquire Barstow's property for a nominal consideration was so far successful that within a year's time, from April 6, 1897, property reasonably and fairly worth $14,000 was sacrificed for less than $2,000. The particular manner in which the gross frauds were carried out will appear by a recital of the facts of the various transactions.

'Seventh. Your orators further show unto your honors that said Isaac Beckett purposely delayed for an unreasonable time to pay the balance of the said $500 agreed to be loaned by said Burch, and in consequence of said delay said Barstow was unable to pay his taxes, and his property was levied on for the year of 189-; that the said levy on his property for taxes greatly inconvenienced and embarrassed said Barstow, and with the said levy against the property it was rendered more difficult to secure money with which to meet his taxes, and said Barstow finally failed to pay the principal or interest due on the Burch loan on the 12th day of June, 1896, whereupon the said Isaac Beckett filed suit in the city court of Savannah against said Barstow returnable to the July term of court, although the return day of said court was less than 14 days distant from the day when said suit was filed. Said suit went by default, and judgment was taken at the November term in favor of Harriet H. Burch for the principal sum of $1,500, $109.33 interest, $160.93 as attorney's fees, said attorney's fees being included in the judgment contrary to law, and no defense was filed in said suit; Isaac Beckett thus taking unconscionable advantage of said E. B. Barstow. Your orators further show that the said Isaac Beckett, in his anxiety to sell the property of said Barstow, advertised the same in the Press, a newspaper published in the city of Savannah, Chatham county, Ga., an insufficient length of time, and was about to sell the property under the Burch judgment, whereupon Joseph H. Cronk, attorney for Barstow, stopped the sale on the ground of insufficient advertisement. Still another levy under said judgment was made, which was set aside for the lack of a reconveyance deed. Finally, Thomas Sheftall, sheriff of the city court of Savannah, levied under the Burch execution, and sold on the 5th day of April, 1897, lots 1, 4, 5, 8, 9, 12, 13, 16, 17, 20, according to Tebeau's map, dated February 28, 1894, each containing five acres, except 20, which contained 5.26 acres and being 50.26 acres in all, situated and being in Chatham county, Ga., to Isaac Beckett, agent, for the sum of $500. Your orators show that said levy and sale were illegal, fraudulent, and void. The said Isaac Beckett could not lawfully bid at said sale in capacity; he having been the attorney for the plaintiff in execution, said H. H. Burch. Said sale was further illegal, fraudulent, and void because it was an excessive levy and sale, and for inadequacy of consideration. The tract was easily capable of being subdivided, and could have been sold lot by lot, instead of which the tract of 50.26 was sold as a block for $500, when the same was easily and reasonably worth $5,000.

'Eight. Your orators further show that while said land was bid off for the nominal and grossly inadequate sum of $500 by Isaac Beckett, agent, and the whole amount in excess of the court costs should have been appropriated to the payment of the state and county taxes then due on said property, yet said Beckett...