Lang v. Lee

• Decision Date: 17 June 1825
• Citation: 24 Va. 410
• Parties: Lang v. Lee and Others
• Court: Virginia Supreme Court

24 Va. 410

Lang v. Lee and Others

Supreme Court of Virginia

June 17, 1825

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This was an appeal from the Williamsburg Chancery Court, in which Lang brought a suit against Lee, Browne, Tiernan & Sons, and Henley.

The bill sets forth, that Lee executed a deed, on the ___ day of March, 1819, whereby he conveyed to Browne all the stock of goods then in the possession of the said Lee, and the undivided moiety of a schooner, her tackle, & c. upon trust to secure a debt due from Lee to Lang, the amount of which is not specified, and indemnify Lang for certain securityships, which he had entered into for the said Lee: that the amount of debts could not be conveniently ascertained when the deed was executed, and a paper was attached to the deed, in the proper hand writing of the said Lee, on the 10th of March, notifying the trustee, Browne, that the amount of the trust was $ 5150, which, on a rough estimate, was thought the probable amount: that at the time of executing the deed, the said Lee was indebted to the complainant, on various accounts, in the sum of $ 3285 63 cts. and interest, from which is to be deducted $ 510 96 cts. since received in goods, in July or August preceding: that the complainant was also bound as surety for Lee, on a note, on which suit had been brought and judgment obtained thereon, for which he expected daily to be called on. This note the complainant estimated at $ 300: that the said Lee was indebted to Gray, Keirle, and Tiernan & Sons, in different sums, the former of whom had sent on to the complainant, his note, to collect: that it was agreed that Tiernan & Sons should have the benefit of any surplus of the funds arising from the deed, after satisfying the debts due to the complainant, and those for which he was surety: that the said Lee, afterwards, on the 4th of August, 1819, executed a deed conveying all the property embraced by the before mentioned deed (except the undivided moiety in the vessel and her tackle, & c.) to Henley, as a trustee, to secure the payment of $ 1519 26 cts. and interest, due by him to Tiernan & Sons: that before the execution of this last deed, the said Henley, and Tiernan & Sons, and the agent and attorney of the said Tiernan & Sons, had knowledge of the execution of the first mentioned deed, or had heard such reports of its existence, as should have put them on enquiry: that Henley had since taken possession of the property embraced in the last deed, and made sale thereof, to the amount of $ 1200 or $ 1300; and the complainant apprehends that he will part with those funds, though they are liable to the first deed. He therefore prayed that Henley might be injoined from parting with the funds, whether in money or bonds, or other securities, till the future order of the Court: that they might be applied to the payment of the debts due to the complainant by the said Lee, and to indemnify and save him harmless, according to the purposes of the deed to the said Browne: that Lee might be restrained from selling the undivided moiety of the said vessel, & c.: that he might be compelled to deliver up the same to the said Browne, to be sold immediately, and the proceeds held subject to the order of the Court, & c.

The Chancellor awarded the injunction, until the further order of the Court.

Tiernan & Sons answered, admitting the execution of the deed of trust to Browne, as stated in the bill; but averred that it was expressly understood by Lee and Lang, that the debt due to them was provided for in the said deed, and that the respondents were to participate in the property conveyed, in proportion to the amount of their respective demands: that when the memorandum was handed in, their demand was included in the sum of $ 5150: that the goods which they furnished Lee, and which created their present claim, were furnished upon the recommendation of the said Lang, who introduced the said Lee to the respondents, and advised them that he was worthy of credit, and that the respondents furnished the said goods, upon the faith of that representation; the said Lee being an entire stranger to them: that at the time Lang introduced Lee to the respondents, the said Lee was insolvent, and not worthy of credit; and that Lang knew the fact; as was proved by the circumstance of the said Lang procuring the said deed, immediately after the return of him and Lee, from Baltimore, with the goods, and by many other circumstances: that Lee, at the time when this debt was created, was largely indebted to Lang, which Lee had no means of paying; and that as soon as Lee got possession of the goods, Lang took the deed aforesaid: that since the said deed was obtained, Lang actually procured of the said Lee, $ 500 worth of the said goods, which were applied to reduce his claim against Lee: that the respondents finding that they were about to lose their entire debt, by the insolvency of Lee, and the practices of Lang, did procure, through their attorney, the deed to Henley, as a trustee; but they deny that they, or their attorney had, at that time, ever seen the said deed, or that it was recorded, although they admit that their attorney had heard that such a deed existed, & c.

Browne states in his answer, that he was not interested in the suit, being a mere trustee: that such a deed as has been described, was executed by Lee to the respondent: that he was frequently called on by Lang to enforce the deed; but none of his applications to Lee for the stock of goods, or books and accounts, were attended to: that when the deed was drawn, the parties had not fixed on any balance due from Lee to Lang, or the amount of Lang's responsibility as surety for Lee: that shortly after, the respondent received a memorandum of the sum to be expressed in the deed, & c.

Lee states in his answer, that he did make a deed of trust to secure the complainant in a debt which the respondent owed him, and to indemnify him against some debts for which he was bound as surety for the respondent; of which latter description was the one due by the respondent to Tiernan & Sons, because the complainant was the cause of the respondent's purchasing the goods of Tiernan & Sons, and without whose aid the respondent could not have purchased, he being an entire stranger in Baltimore: that the complainant stated to the respondent, that he felt himself bound to pay the debt to Tiernan & Sons, or to see it paid, as he (the complainant) had carried the respondent to Baltimore, introduced and recommended him: that under this impression, the deed aforesaid was executed, and the debt to Tiernan & Sons was included in the sum of $ 5150, as stated in the memorandum: that the respondent's debt to Lang, was considerable, at the time the purchases were made in Baltimore; and after their return from Baltimore, the respondent executed the deed aforesaid to Lang, conveying the goods which he brought on with him, and which remained unsold at the time of the deed: that the goods which the respondent had, at the time that he returned from Baltimore, if they had been sold at auction, would not have commanded money enough to pay the sum demanded by the said Lang; although if Lang had taken them back at the same prices that they were sold by him to the respondent, it is probable they would have been sufficient: But the said goods were bought by Lang, at very high prices, and would not have sold for near what they cost: that after the respondent had begun to decline in his business, Lang purchased several hundred dollars worth of the goods, which the respondent had bought of Tiernan & Sons, and he bought with a knowledge that they were the same goods: that the complainant having refused to let Tiernan & Sons participate in the trust fund, he executed the second deed to Henley, because he thought it right he should do so, & c.

The deed to Browne is sufficiently described in the opinion of Judge Carr.

Keirle, a merchant in Baltimore, deposed, that in October, 1818, Lang came to his store, and priced his goods, and enquired his terms. After some conversation respecting the mode of payment, the deponent finally agreed to allow six months credit, and a draft upon Baughan: that soon afterwards, Lang and Lee came to his store, and commenced laying off the goods: that Lee would first shew the goods to Lang, and with his approbation, took them, but not otherwise: that after the goods were packed, Lang called and marked the trunks, and requested the bills to be made out, one in the name of Lee, and one in the name of Lang: that after Lang had examined the bills, he requested a draft to be drawn for the whole amount of the two together, and when it was made out, he desired Lee to sign it, which he accordingly did: that the deponent, not being acquainted with Lee, observed to Lang, that if the draft was not paid by Baughan, he should hold him accountable for the amount. To which Lang replied, that he should remit funds to meet it before it became due, & c.

Morgan a clerk in the house of Tiernan & Sons, deposed, that he was present when Lee was introduced to Tiernan & Sons by Lang, in October 1818, on whose recommendation, they let him (Lee) have goods: that in a day or two afterwards, Lang came to select the goods, looked over them, said he would call again, and went away: that next day, Lang called repeatedly during the day, and enquired if Lee had come: that during the same day, Lee also called repeatedly, and anxiously enquired if Lang had come, saying that he wished to proceed to the selection of the goods, and he did not wish to select them, without his presence: that during the selection, Lee would accept any piece upon Lang's recommendation, he (Lang) saying " we will divide...