Kirk v. Williams

• Decision Date: 10 April 1885
• Citation: 24 F. 437
• Parties: KIRK, Trustee, etc., v. WILLIAMS, Ex'r, etc.
• Court: U.S. District Court — Western District of Tennessee

24 F. 437

KIRK, Trustee, etc., v. WILLIAMS, Ex'r, etc.

United States Circuit Court, W.D. Tennessee.

April 10, 1885

The defendant's testator, Joseph R. Williams, sold a lot in Memphis to C. M. Fackler, taking a deed of trust to secure the purchase money. Fackler settled the property on his wife and children by a deed of settlement, making the plaintiff and another trustees. The purchase money remaining unpaid and interest having accumulated, t e settlement trustees, to avoid a sale for the purchase money, reconveyed to Williams by a deed dated February 28, 1866, and signed by them and Mrs. Fackler, whose husband had died leaving children. It is not signed by Williams, but contains the clause quoted by him in the paper to be hereinafter inserted as a part of this statement of facts. He accepted the deed and went into possession, remaining until his death, in February, 1881, and paid the interest quarterly, in advance, during this time. For reasons given in the subsequent correspondence he withheld the deed from record, and it was not registered until after his death. His widow and devisee remained in possession until, by a proceeding in the equity courts of the state, the lien reserved in the deed was foreclosed. This is an action of assumpsit for the balance of the purchase money amounting now to $6,508.08. The defendant pleads the statute of frauds, the statute of limitations, and plene administravit. From an agreement of parties filed, and from other proof, it appears, in addition to the foregoing facts that when Williams would pay the interest, by draft or otherwise, he sent to Mrs. Fackler a written receipt, which she signed, some of which are mentioned in nine letters filed and proved in the record, covering remittances of interest on the $10,000 from July 15, 1878, to December 4, 1880, all in his handwriting. One of the receipts written wholly by him, which was not signed but retained by her, is produced. It reads as follows:

'Received of Joseph R. Williams three hundred dollars, in full of interest up to first July, 1877, on the sum of $10,000, specified and secured to be paid in deed of J. J. Fackler and E. C. Kirk, trustees, and myself, (then Anna R. Fackler,) to Joseph R. Williams. $150 of this $300 was invested in sight draft on Paris, France, and remitted to me from New York in December, 1876, for interest up to April 1, 1877; and $150, being in full of the interest as stated up to first July, 1877, was invested in sight draft on Paris, France, in New York, and remitted to me and received by me, as shown by this receipt.'

Some time in 1877, Blount, the present husband of Mrs. Fackler, at her request, applied to Williams for some evidence of the contract of purchase, because he had withheld the deed from registration, and received from him a paper wholly in his handwriting, but not signed, which reads as follows:

'No. 67 UNION STREET.

'Joseph R. Williams' deed to C. M. Fackler, November 9, 1857. Conveyance in trust by Fackler to Sheperd and Jones, as trustees, to secure purchase money. Deed of C. M. Fackler to J. J. Fackler and E. C. Kirk, trustees, tenth August, 1859, conveys subject to lien created by deed to Shepherd and Jones, trustees, (purchase money) in trust 'for the use and benefit of Anna Kirk Fackler, wife of said Calvin M. Fackler, that the same shall not be subject to his control in any way, or liable for his debts or contracts in any form;' also, ' that whenever, in the opinion of said trustees, or the survivor of them, it may be thought to the interest of said Anna K. to sell or dispose of the premises, the same may be sold, upon condition (1) that the said Anna K., of her own free will, consent to the same; and (2) that the proceeds thereof shall be invested for her separate use and benefit under the same provisions which guard the conveyance to her; that whenever the said Anna K. shall be capable, under the law, of holding this property in her own name free from the debts or contracts of said C. M. Fackler, that it shall be the duty of said trustees, or survivors of them, to convey it to her during her natural life, and after her death to her children by the said C. M. Fackler; that, in the event of a sale or change of occupancy, the right is hereby reserved to Joseph R. Williams, in preference to all others, of purchasing the premises at a fair price;' also 'in the event of the death of the said Anna Kirk Fackler, the said trustees will hold the premises hereby conveyed for the benefit of her children by the said C. M. Fackler.' The deeds mentioned are all of record. The trust deed to Fackler and Kirk was originally written so as to give the property to the wife absolutely, upon extinguishment of lien for purchase money, but Mr. C. M. Fackler would not sign in that way, and the remainder over to her children by him had to be and was added.

'On the twenty-eighth of February, 1866, after the death of C. M. Fackler, the property was sold to Joseph R. Williams for $23,000. $13,000 was due on it, and it was liable to be sold to pay that sum by the trustees, Shepherd and Jones. The lien created by this trust was extinguished by the sale, and there was left of the purchase money $10,000, specified in and secured to be paid by the deed which was then made to Joseph R. Williams by John J. Fackler and Edwd. C. Kirk, trustees, and Anna K. Fackler. This conveyance sets forth the preceding deeds, the situation of the property, the facts and reasons which make the sale a proper one, particularly so far as the interests of the children (remainder-men) are concerned, the consent of 'her own free will' of Mrs. F. to the sale, and closes as follows: 'The purchase money due said Williams, with interest to this date, is thirteen thousand dollars, and forms part of the consideration of this sale, and satisfies and extinguishes the same to that extent. The residue, being ten thousand dollars, is to become due and payable in two years from this date, and is to bear interest at the rate of six per cent. per annum, payable quarterly. But the privilege of paying the principal sooner than the time named above is reserved by said Williams, should he desire to do so. The balance is by express agreement to constitute a lien upon said property until it is satisfied, and stands subject to the trusts of the settlement in favor of Mrs. Fackler and children, and to be reinvested, as provided by the trust deed, when it can be advantageously done.' This deed was duly witnessed, but has not yet been placed on record. There were some good reasons influencing me in the interest of Mrs. Fackler and the children to withhold it from registration. I do not know that they now exist, and if they do not, upon my carefully considering the matter, which I have not done for a long time, I will cause it to be put on record. I am rather of opinion, however, that it may be best to do so, as the children will soon be of age. In keeping it from record, I, of course, only jeopardize my own interest, as the deed is my only title to the property. As the records now stand, the purchase money and lien for its payment, as shown in the trust deed to Shepherd and Jones, being extinguished and inoperative, the property, by the record, is absolute in Fackler and Kirk, trustees, for benefit of Anna K. during life, and her children of C. M. F. after her death, so that she and the children are not in danger of loss, but the contrary should the deed to me not be recorded. However, if I find no objection, after considering the matter, I will put it on record. The interest on the $10,000 has been paid up to first January, 1874.' In May, 1877, Kirk, the plaintiff here, as surviving trustee, wrote to Williams, 'demanding and requiring' that he should place the deed upon record in the register's office of Shelby county. This letter he had delivered to him by a mutual friend. Williams replied to it by the following letter, which also mentions incidentally another parcel of real estate in this city, as to which he was himself the trustee for Mrs. Blount:

'MEMPHIS, May 28, 1877.

'E. C. Kirk, Esq., New York-- DEAR SIR: I wish you would advise with some legal friend in New York, or with some clear-headed business man, as to the propriety of putting the deed on record. I do not think it is to Anna's interests, as she is now situated. The youngest of the children will be of age in less than two years, and then it can be done, if thought best. You are aware that there was no marriage contract with Col. Blount. I have received a very abusive letter from him. He seems to have taken offense at my requesting Anna to send me her direct address, as I wished to consult with her as to my answer to Gippie's bill in chancery about the Main street lot conveyed by you to Col. Fackler, which is still in suit. I stated to Anna that I wanted to know her wishes and feelings, and not Col. Blount's; that he could be consulted on law points involved, but not otherwise. You know, and Col. Blount knows, that my appointment as trustee was to stand between her and her first husband; and, if so, certainly as to the second husband; and that it was my duty to make all my communications as trustee to her in person, or, if by letter, in such mode as would be sure to reach her, and not her husband. I know that this was my duty, as it is yours. Col. Blount is not a proper adviser for either you or me. He is anxious to get hold of this trust fund, and is in a position to improperly influence Anna. There are several reasons why this deed should not go on record, and not a single one why it should. Anna will tell you that I have never failed to pay her the interest quarterly in advance. It is now paid up to first July, with $25 over, which I sent Christmas to Turner, and did not take out of

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