Greal v. Taylor

• Decision Date: 24 May 1897
• Docket Number: No. 75,75
• Citation: 167 U.S. 688,17 S.Ct. 961,42 L.Ed. 326
• Parties: MacGREAL et al. v. TAYLOR et al
• Court: U.S. Supreme Court

167 U.S. 688

17 S.Ct. 961

42 L.Ed. 326

MacGREAL et al.

v TAYLOR et al.

No. 75.

May 24, 1897.

[Syllabus from pages 688-690 intentionally omitted] Henry E. Davis, for appellants.

Job Barnard and Wm. F. Mattingly, for appellees.

Mr. Justice HARLAN delivered the opinion of the court.

By deed dated March 8, 1886, and duly recorded, an unimproved lot or parcel of land in the city of Washington known as lot 49, in square 111, was conveyed by Henry C. Porter to Seymour Cunningham and John S. Blair to secure the balance of the unpaid purchase money therefor due to one William Brough, evidenced by Porter's two promissory notes, each for $1,250, bearing even date with the above trust deed, and payable to the order of Brough.

On the 3d day of September, 1887, Porter conveyed the same property to Robert E. Moore and his wife, Carlotta M. Moore, to have and to hold the same to the grantees, their heirs and assigns, as tenants by the entirety. As part of the consideration for this last conveyance, the grantee, Carlotta M. Moore, agreed to assume and pay the debt to Brough.

By deed bearing the same date as the one from Proter to Moore and wife, and executed contemporaneously therewith, Robert E. Moore and Carlotta M. Moore conveyed the premises to Charles Early and Joseph T. Dyer in trust to secure the sum of $1,600, being the balance of the deferred purchase money due to Porter, and evidenced by the promissory note of Moore and wife, payable to the order of Porter.

On the 29th day of April, 1888, Robert E. Moore died, and the premises in question became the absolute and separate property of Carlotta M. Moore in fee simple, subject to the prior liens.

In 1889, Mrs. Moore borrowed from Sarah Utermehle the sum of $8,000, for which she executed her note, dated October 22, 1889, payable three years after date, with interest at 6 per cent. per annum, payable quarterly. In order to secure the payment of that note, she conveyed by deed on the same day the above premises and appurtenances to William R. Woodward and Leroy M. Taylor and their heirs as joint tenants, with the usual provisions for a release of the lien in case of the payment of the note; and also in trust to permit her, her heirs or assigns, to use and occupy the described land and premises, and the rents, issues, and profits thereof, to take, have, and apply to and for her and their sole use and benefit, until default should be made in the payment of the debt thereby secured or any installment of principal or interest, as the same became due and payable, or any proper cost, charge, commission, or expense in and about the same. That deed contained the clause usually found in such instruments, authorizing the trustees, upon any default in the payment of the debt or of any installment of principal or interest, as the same should become due and payable, or any proper cost, charge, commission, or expense in and about the same, to sell the land and premises at public auction upon such terms and conditions, at such time and place, and after such previous public advertisement, as they or the survivor of them should deem advantageous and proper; and to convey the same in fee simple to and at the cost of the purchaser or purchasers thereof, who were not required to see to the application of the purchase money.

The last-named transaction was consummated pursuant to an agreement between Mrs. Moore and Mrs. Utermehle, and under the following circumstances: Mrs. Moore was in default in respect of the payment of the sums secured by the above trust deeds of 1886 and 1887, and being threatened with a foreclosure and sale under those deeds, and having no property except the premises in question, and desiring also to improve the same by the erection of a substantial building for the purposes of a home, applied to Mrs. Utermehle for a loan of $8,000 for the period above named, to be secured by a deed of trust, in the usual form, on the land and premises. She represented the title to the premises to be good and unincumbered otherwise than by the above trust deeds. Her application, the bill states, was accompanied by an assurance upon her part that she would immediately commence the construction of a substantial brick building upon the lot and premises, with suitable provisions to secure the payment or application of all the proceeds of the loan 'not required to take up the said overdue notes, representing said unpaid purchase money, taxes then due, expense of examination of title to said land and premises, conveyancing and other incidental expenses incurred on account of the negotiation of said loan, all of which were also to be taken up or paid therefrom towards such construction.' Relying upon said premises, and the proposed security offered by her, $8,000, was loaned by Mrs. Utermehle to Mrs. Moore. Out of that sum, pursuant to the agreement or understanding between Mrs. Moore and Mrs. Utermehle, the latter took up the notes representing the unpaid purchase money secured by the above trust deeds, and paid the taxes then due on the property, together with the expense of examining the title and other expenses, all amounting to $3,291.99, which sum was paid directly by Mrs. Utermehle to the holders of the notes and the parties to whom the expenses and taxes were payable. Thereupon Mrs. Moore procured the services of J. W. Myers, a builder, and entered upon the construction of a substantial brick dwelling upon the lot and premises, as agreed upon, and as the condition of the loan to her, and the balance of the $8,000 was expended in the purchase of materials furnished for and used in its construction, and to pay laborers, mechanics, and others for work done thereon. The house was completed, and is known as 'No. 1612 Nineteenth Street Northwest.' Mrs. Moore moved into it about two months after its completion.

Subsequent to the loan Mrs. Moore married the appellant Wilburne P. MacGreal, and the house and lot is occupied by them as a home.

Before the present suit was instituted, Mrs. MacGreal under date of June 13, 1890, addressed to Mrs. Taylor a communication, as follows: 'In response to your recent communication calling attention to my nonpayment of interest upon the note held by you as the representative of Mrs. Utermehle, I would say that I consider that I have not been well treated in the entire transaction, and, inasmuch as the property now owned by me is threatened with a suit to enforce mechanics' liens now already filed, I have taken legal advice upon the subject. As I was a minor at the time of these transactions,—the execution of the deed of trust, &c.,—I am advised that the affirmance or disaffirmance of the contract rests in my direction [discretion] when I become of age. I therefore will not pay the interest demanded, and at the proper time will take such action as I may be advised to protect my rights.'

Subsequently, on the 23d of June, 1890, she executed and placed of record an instrument, in which she gave notice that she disaffirmed the deed of trust of October 22, 1889, and the note described in it. On the same day she executed the following paper: 'I hereby disaffirm a certain contract alleged to have been entered into between one Joseph W. Myers and myself October 28, 1889, and I disclaim any and all liability thereunder, for the reason that at the time of the making of said alleged contract I was a minor under the age of twenty-one years, and became of age June 20, 1890; of all which take due notice.' And on June 27, 1890, she executed, and recorded July 14, 1890, a deed disaffirming the deed of trust executed to Taylor and Woodward, upon the ground that said deed had been executed and delivered when she was a minor.

The quarter-yearly installment of interest due the 22d day of April, 1890, on the debt secured by the deed of October 22, 1889, not having been paid, and after notice to Mrs. MacGreal of its nonpayment, this action was instituted by Mrs. Utermehle on the 23d of June, 1890, for the recovery of the amount due on the note given to her, and for a decree for the foreclosure of the deed of trust of October 22, 1889, and a sale of the property in satisfaction of the amount due to her.

She asked for such other and further relief in the premises as the nature of the case required.

Admitting the execution of the deed to Woodward and Taylor, and the note therein described, Mrs. MacGreal resisted the relief asked upon the ground that at the date of the execution of the deed and note she was under the age of 21 years, and within a reasonable time after reaching full age she made and placed upon record an absolute disclaimer of the alleged contract; of which disclaimer, and the reasons assigned therefor, it is claimed, Mrs. Utermehle, the original plaintiff and testatrix of the appellees, had due notice. Her husband disclaimed in his answer any personal knowledge of the matter in dispute, and insisted that the bill did not state facts entitling the plaintiff to the relief asked. Woodward and Taylor, trustees, answered, admitting the allegations of the bill, and expressing their submission to any decree that might be just and proper. Indeed, the arrangement between Mrs. Utermehle and Mrs. MacGreal was made in good faith on each side.

It is not disputed that Mrs. MacGreal arrived at full age on the 20th day of June, 1890. And it may be stated, as the result of the testimony, that when the deed of October 22, 1889, was executed, no inquiry was made as to her age, nor did she make any representation on that subject.

In the supreme court of the District of Columbia a decree was rendered dismissing the bill. But in the court of appeals of the District that decree was reversed, and a decree passed which adjudged that there was due from Mrs. MacGreal to the executrices of Mrs. Utermehle the sum of $8,000, with interest at the rate of six per cent. per annum until paid, and the costs of suit; and directing that, on default in the payment of principal,...