Guild v. Phillips

• Decision Date: 01 October 1888
• Citation: 44 F. 461
• Parties: GUILD v. PHILLIPS et al.
• Court: U.S. District Court — Northern District of Georgia

44 F. 461

GUILD v. PHILLIPS et al.

United States Circuit Court, N.D. Georgia.

October, 1888

Simmons & Corrigan, for complainant.

Broyles & Broyles and P. H. Bell, for respondents.

NEWMAN J.

This case is a bill filed to set aside a compromise decree heretofore taken in this court. The case in which the decree now attacked was rendered grew out of this state of facts Mrs. L. C. Guild was the wife of L. A. Guild. L. A. Guild purchased a tract of land in De Kalb county, Ga., taking a bond for title in his own name. When purchase money was paid a deed to the land was made to Mrs. L. C. Guild. Subsequently it is stated that the property was conveyed by deed from Mrs Guild to L. A. Guild. This conveyance is said to have been void under section 1785, Code Ga., no order of court having been taken approving the conveyance from wife to husband. Subsequently, however, an instrument was executed by Mrs Guild, with the approval of the superior court, as required by the statute, by which she created in the land a life-estate for herself and her husband, L. A. Guild, with remainder to their children, five in number. It further appears that differences had arisen between husband and wife, and that in the year 1884 there were living apart. L. A. Guild had a sister, Mrs. E. L. Phillips, a resident of the state of Rhode Island. In 1884 Mrs. Phillips brought suit in this court, and obtained a judgment against her brother on a promissory note for $1,153.74. Execution issued on this judgment, which was levied on the tract of land named; the contention of the plaintiff as to her right to subject the land having been, as I understand it, that this land was originally bought by L. A. Guild, the husband, and paid for by him, and that subsequent conveyances or changes in title were void as against Mrs. Phillips, the same having been without consideration, and she being a creditor at the time of the original purchase. After the levy of the execution, Mrs. Guild filed her bill in this court for herself and as next friend for her children, seeking to enjoin the sale of this land under said execution upon various grounds, among others, that there was no real indebtedness between L. A. Guild and his sister, and that the claim of indebtedness was mere pretense, for the purpose of selling the land, and enabling said L. A. Guild, by sale of same collusively, through his sister, to get title and possession away from his wife and children. Bill was answered by Mrs. Phillips and L. A. Guild, their answer being sworn to, in both of which it was claimed that the debt was a bona fide existing debt, and that the amount claimed was justly due by said L. A. Guild to Mrs. Phillips. While the bill was pending, and before a hearing, a controversy arose between Guild and his wife as to the possession of two of the children. It had been agreed when they separated that the husband should keep two of the children and the wife three; it being further agreed that they both should keep the children in De Kalb county, so that the children kept by each could be seen by the other when desired. Mrs. Guild, in her belief that her husband intended to remove the two children in his charge to his sister's, Mrs. Phillips', in Rhode Island, took out a writ of habeas corpus for their possession.

Before this writ was had, and while in the court-house with a view to a hearing, certain propositions of compromise were made, and negotiations ensued which resulted in giving the possession of the children to Mrs. Guild, and in a consent decree in the case in this court in relation to the land. The consent decree provided for a division of the land by commissioners, to be selected by agreement. One-half should be the property of Mrs. Guild, and one-half should be subject to the execution. This decree was carried into effect, and division was made in accordance therewith. The present bill proceeds to state that subsequently, something over two years thereafter, L. A. Guild became sick. During his sickness he was taken by Mrs. Guild to her home, and there nursed by her until he died. She says in her bill that before he died he said to her, in speaking of the sale of said land, that 'he and his sister had wronged her; that the papers they fixed up were a fraud. ' After the death of L. A. Guild she says that in looking over his papers she found in his trunk an instrument written by L. A. Guild, and signed by his sister, a copy of which is as follows:

'GREENVILLE, R.I., July 19, 1884.

'Whereas my brother, Lewis A. Guild, did, on the 17th of August, A.D. 1875, make and give to me, in the city of Atlanta, state of Georgia, his promissory note for valuable consideration, for the sum of $1,153.74 dollars, now, for valuable consideration and the love I bear my said brother, and divers good causes, I do hereby give, release, and forever discharge the said Lewis A. Guild from all debt, liability, and injury in consequence of said note.

(Signed) 'E. L. PHILLIPS.'

She says this writing was wholly unknown to her until she discovered it after her husband's death, during the present year, and shortly before the present bill was filed. She now asks that the compromise decree alluded to be set aside upon the ground of the concealment from her by her husband and Mrs. Phillips of the existence of this paper, and their false representations under oath of the existence of a bona fide indebtedness by the former to the latter, which she says is negatived by the discovery of this paper; and also upon the ground of coercion and undue influence in the effort to remove her children to the state of Rhode Island. To this bill a demurrer has been filed, the real grounds of demurrer insisted upon being, first, that, as to coercion and undue influence claimed to have been used to bring about the compromise decree, the bill is filed too late. There is much force in this objection, and, if the ground stood alone, it would probably control the case adversely to the complainant. She knew of any coercion brought to bear on her as well in November, 1885, when the settlement was made and decree taken, as she did in June, 1888, about two and a half years thereafter, when she filed this bill. It seems that a longer period had elapsed than should be allowed her to set up this ground of attack on the decree, especially after the death of L. A. Guild had intervened. As to the other ground of attack upon the decree, it is said by the defendant that the question of the bona fides of the indebtedness of L. A. Guild to Mrs. Phillips was made in the former litigation; that the bill then filed by Mrs. Guild asserted that there was no real indebtedness, and that the answers denied this, and that the question was settled with...