Grant Udell and Jacob Miller, Plaintiffs In Error v. Alexander Davidson

• Decision Date: 01 January 1849
• Citation: 7 How. 769,12 L.Ed. 907,48 U.S. 769
• Parties: GRANT B. UDELL AND JACOB MILLER, PLAINTIFFS IN ERROR, v. ALEXANDER B. DAVIDSON
• Court: U.S. Supreme Court

48 U.S. 769

7 How. 769

12 L.Ed. 907

GRANT B. UDELL AND JACOB MILLER, PLAINTIFFS IN ERROR, v. ALEXANDER B. DAVIDSON.

January Term, 1849

THIS case was brought up from the Supreme Court of the State of Illinois, by a writ of error issued under the twenty-fifth section of the Judiciary Act.

The facts in the case are sufficiently set forth in the opinion of the court.

A motion to dismiss it, for want of jurisdiction, was made by Mr. J. Mason Campbell, which motion was sustained by him, and opposed by Mr. Coxe.

Mr. Chief Justice TANEY delivered the opinion of the court.

A motion has been made to dismiss this case, for want of jurisdiction.

It appears that a man by the name of Gregory had obtained, by residence on the land mentioned in the proceedings, a right of pre emption, under the act of Congress of 1838. But, before he paid the price fixed by the government in such cases, or made the entry, he sold his right to Miller, one of the plaintiffs in error. Miller afterwards conveyed to a man by the name of Joslyn, in secret trust for himself, and subject to his control. Subsequently to this conveyance, Joslyn, by the direction of Miller, conveyed to Udell, the other plaintiff in error, in trust to sell to the highest bidder, and apply the proceeds to the payment of the creditors of Miller, pro rata, if they were not sufficient to pay all demands.

Udell accepted the trust, and, after having done so, made an agreement with Gregory, by which Gregory was to enter the land at the proper office, at the pre emption price, and then convey to Udell in trust, for the benefit of Miller's creditors, reserving a small portion of the land to Gregory himself. Udell was to furnish the money to enable Gregory to make the entry.

Under this agreement, Udell executed a release to Gregory of all his right to the land, in order to enable him to make the entry as pre emptioner, and at the same time took from him a note for a thousand dollars, which was to be given up if Gregory made the conveyance according to his agreement.

The land was worth a thousand dollars. The government price to the pre emptioner was only two hundred dollars, which sum was advanced by Udell to Gregory. One hundred and fifty dollars of this money belonged to the creditors of Miller, and was so applied at his request, and upon his statement that this application would be for the interest of his creditors. The remaining fifty was advanced by Udell, to be repaid out of the proceeds of the land, when sold. But it does not appear that the defendant in error, or indeed any of Miller's creditors, sanctioned this transaction at the time, or had knowledge of this application of the trust funds.

With the money thus obtained, Gregory made the entry, and then executed a deed to Udell. This deed, upon the face of it, is absolute, and contains no trust for the creditors.

After having thus obtained a conveyance, Udell refused to execute the trust, and therefore the defendant in error, as one of the creditors of Miller, in behalf of himself and the other creditors, filed a bill in chancery, setting out more at large the facts above stated, and praying...