Gorham v. Wing

• Decision Date: 21 October 1862
• Citation: 10 Mich. 486
• Court: Michigan Supreme Court
• Parties: Charles T. Gorham v. Nelson H. Wing and others

10 Mich. 486

Charles T. Gorham v. Nelson H. Wing and others

Supreme Court of Michigan

October 21, 1862

Heard May 27, 1862; May 28, 1862; May 29, 1862,

Appeal in Chancery from Washtenaw Circuit.

Decree set aside, and the bill dismissed with costs to the defendants, of both courts.

A Felch, for complainant.

G. V N. Lothrop, for defendants.

ChristiancyJ. Manning and Campbell, JJ., Martin, Ch. J. concurred in the result.

OPINION

Christiancy J.:

The first question is, whether the bill makes a case which entitles the complainant to relief?

Complainant claims to derive title to the lands in question through a sale on an execution issued by the Circuit Court of the United States for the District of Michigan, on a judgment recovered in favor of the United States on the 4th of January, 1847, in an action of assumpsit for moneys received by Lee as Receiver of the United States Land Office at Green Bay, between October, 1837, and the first day of April, 1842.The sale was made by the marshal, December 22d, 1847, to the United States.The bill merely sets forth the sale made by the marshal, the receipt on the execution by the U.S. District Attorney of the $ 1,500 purchase money bid by the United States for the property, and the giving of a certificate of sale by the marshal (which on reference appears to be dated December 22, 1847, and states that the sale will become absolute at the expiration of one year, unless previously redeemed "in the manner prescribed by the statutes of Michigan and the rules of this court").The bill does not allege the execution of any deed by the marshal in pursuance of the sale, nor in any manner refer to the existence of such deed: but, in the derivation of complainant's title, after stating the certificate of sale, proceeds to state a sale and conveyance of the property by the United States to one Timothy Stillman, and then deduces the title through several intermediate conveyances, down to complainant.It also, in a subsequent portion of the bill, avers that the land had not been redeemed from the sale.

By way of showing the pretended title under which defendant Arnold claims, the bill states the execution of three several official bonds by said Lee as receiver, and by certain sureties therein mentioned, the first dated July 29th, 1837, the second December 9th, 1837, and the third November 15th, 1838.None of the parties to this suit executed the first bond, but defendant Wing was one of the sureties in the second, and defendants Wing and McCauley, and one Joseph Arnold(father of defendant Arnold), were, among others, sureties in the third.The bill avers three several settlements or statements of account between the United States and Lee, as receiver.That on the one of December 9th, 1837, there was found due to the United States from said receiver $ 1,311.92, on that of November 15th, 1838, $ 5,028.14, and on that of April 1st, 1842, $ 1,500.31.That on the eleventh day of June, 1842, the defendants Wing and McCauley, pretending to said Lee that they were liable to the United States for large sums of money on account of said bonds, and in consequence of the supposed defalcation of said Lee, etc., and pretending that they were anxious that the property of said Lee (being the land in question) should be held in trust by them for the sole and only purpose that the same could be turned out by them to satisfy any deficiency there might be in the accounts of said Lee with the United States, induced Lee to execute and deliver to said Wing and McCauley a deed of conveyance of the said land, with warranty, which deed was absolute in form, and was duly acknowledged and recorded, as a deed of conveyance; but that at the time of the execution and delivery of this deed, Wing and McCauley executed under their hands and seals, and delivered to said Lee, their bond or writing obligatory, which is set out in hoec verba, and which, after reciting the fact of the conveyance to Wing and McCauley, is conditioned as follows:

"If Thomas Lee bears Nelson H. Wing and William McCauley harmless for certain bond or bonds said Wing and McCauley have signed as surety for said Lee, to the United States, as Receiver of Public Moneys of the Land Office at Green Bay, then said Wing and McCauley agree to re-deed to said Lee the above described land.It is understood that if the United States can hold legally said Wing and McCauley, as said Lee's surety, that said Wing and McCauley have a right to turn this property out to satisfy the demand at any time they see fit, and they the said Wing and McCauley, are to have the above land until they are discharged by the United States from any liability in consequence of having signed as surety for said Lee.It is thought said Wing and McCauley are now clear, but said Wing and McCauley take this deed of said land to bear them harmless, lest they might have to bear the expense, one or both of them, of a law-suit with the United States."

This bond, declaration of trust, or defeasance, does not appear to have been acknowledged or recorded.

The bill then states that, on the 29th day of December, 1844, a suit was brought by the United States, against defendant Wing, as surety on the second bond, and that on the first day of July, 1844, on a trial in the Circuit Court of the United States for the District of Michigan, it was made to appear that said Thomas Lee was not indebted to the United States, but that the sum claimed in that suit had been paid and satisfied; and that thereupon said Wing had judgment.That on the 26th September, 1843, another suit was brought by the United States in said court against said Wing, upon the third bond; that on the 22d July, 1844, a judgment was recovered by stipulation against said Wing for $ 50,000, to be discharged on payment of $ 1,500.31 and interest at six per cent from April 13th, 1842.That on the 30th September, 1843, suit was commenced by the United States against McCauley on said third bond, and that on the 17th June, 1844, judgment was recovered against him by default for $ 50,000, to be discharged on payment of $ 1,696.41.That complainant is informed and believes that judgments were also recovered against many or all the other persons named as sureties in said bonds.That on the 10th of April, 1852, Lee caused said judgments against Wing and McCauley, as well as those against all the other sureties, to be discharged of record.

The bill then states that said Wing and McCauley, on the 28th day of June, 1850, severally pretending to have "some right, title and interest in fee simple" in said land, executed and delivered their several deeds of conveyance of the same to defendant Arnold, which were duly acknowledged and recorded--charges, upon information and belief, that said Arnold at the time was informed and well knew, that Wing and McCauley had not then, and never had, any right, title or interest in said premises, or any right to sell or convey the same; that he well knew that they had only the right to turn out said premises to satisfy any claim the United States might have against Lee and his sureties, by reason of his defalcation as receiver, etc.; that he had notice of the levy and sale to the United States, and that the United States and their grantees were the legal and equitable owners thereof; and that the said Wing and McCauley held the said lands in trust only for the United States, subject to any indebtedness the United States might at any time have against said Lee and his sureties, on account of any deficiency in the accounts of said Lee, as receiver: and that "said Arnold well knew that all the right, title and interest of said Wing and McCauley in and to said premises were extinguished by the levy and sale of said premises on said judgment and execution"(against Lee).That Wing and McCauley sometimes pretend that they have been compelled to pay sundry sums of money in the employment of counsel and in defending said suits, etc.; but charges that Lee employed all necessary counsel, that there was no appearance on the part of McCauley; that in the suit against Wing judgment was rendered against him on stipulation, and that Lee employed counsel and defended said causes, and was at all necessary expense.That Lee remained in possession till September, 1850, and then surrendered the land to Williams, one of the complainant's grantors, and took a lease from him till the first of April, 1851; that said lease was assigned by Williams to Thayer (through whom complainant derives title) when Williams conveyed to Thayer, September 20th, 1850.That after this lease, in the fall of 1850, defendant Arnold went into possession by force, and compelled Lee to remove from the same: and that neither Wing and McCauley nor Arnold ever had possession in any other way.That complainant believes there is danger that Arnold, Wing and McCauley will sell, dispose of, and convey, or otherwise incumber said premises, unless restrained by injunction.That complainant has applied to Wing, McCauley and Arnold, and requested them to convey to him, etc., so that the cloud upon his title might be removed.

The bill calls for an answer without oath.

The prayer for relief is that said Wing and McCauley and Arnold may be decreed to deed and convey said premises to complainant, or that the deed from Lee to Wing and McCauley, and that from Wing and McCauley to Arnold, may be set aside and held for nought; and for other relief, etc.; and prays an injunction.

It is clear from this statement of the bill that it proceeds upon the theory that the United States had obtained, by the sale on the execution, all the right and title which Lee held in the land at the time of the levy and sale, whether that right was the legal estate or a mere equity, and...