Lessee of Gabriel Swayze, and Mary His Wife, Plaintiffs In Error v. Robert Burke Sherman, George Jackson, and James Hinsman, Defendants

• Decision Date: 01 January 1838
• Citation: 37 U.S. 11,12 Pet. 11,9 L.Ed. 980
• Parties: LESSEE OF GABRIEL SWAYZE, AND MARY HIS WIFE, PLAINTIFFS IN ERROR v. ROBERT BURKE, D. SHERMAN, GEORGE JACKSON, AND JAMES HINSMAN, DEFENDANTS
• Court: U.S. Supreme Court

37 U.S. 11

12 Pet. 11

9 L.Ed. 980

LESSEE OF GABRIEL SWAYZE, AND MARY HIS WIFE, PLAINTIFFS IN ERROR v. ROBERT BURKE, D. SHERMAN, GEORGE JACKSON, AND JAMES

HINSMAN, DEFENDANTS.

January Term, 1838

IN error to the district court of the United States for the western district of Pennsylvania.

The case, as stated, in the opinion of the court was as follows:——

An action was instituted in the district court of the United States for the western district of Pennsylvania, by the lessors of the plaintiffs, Gabriel Swayze and wife, citizens of the state of Mississippi; for the recovery of a tract of land in Alleghany county, in the state of Pennsylvania, to October sessions, 1833.

The plaintiffs and the defendants claimed the land under a deed from John Penn, and John Penn, junior, proprietaries of Pennsylvania; the land forming part of one of the manors reserved by the proprietaries. John Ormsby died intestate in 1791, and left a son, named Oliver, a daughter, Sidney, who intermarried with John Gregg; a son named John, who married and died in the state of Missippi, leaving a daughter Mary, an infant, at the time of his decease; and who has since intermarried with Gabriel Swayze, the plaintiff in error. In December, 1807, Oliver Ormsby administered to the estate of his father, John Ormsby, and gave the usual administration bonds; but he filed no inventory of the estate of the intestate; nor did he, at any time, settle an account of his administration of the estate.

The estate of John Ormsby, deceased, was indebted to John Penn, and John Penn, junior, for the land purchased from them, in the sum of four hundred and sixty-seven dollars and sixty-four cents; and on the 6th of September, 1826, the administrator confessed a judgment in their favour, for the amount of the debt; upon which judgment, an execution was forthwith issued by Mr. Ross, their attorney, and the land of John Ormsby was levied on and sold; Mr. Ross being the purchaser of the same, for three thousand dollars. At the time of the purchase of the estate, Oliver Ormsby, the administrator, was absent. Mr. Ross declared, in the most public manner, that Ormsby, the administrator, or any of the family of the deceased John Ormsby, might redeem the land at any time, on the payment of the debt and interest. Before the sale, Oliver Ormsby, the administrator, was informed by Mr. Ross, that he only wanted the money due upon the judgment, and that he did not intend to buy the land to hold it. Ormsby, the administrator, was in possession of the land at the time of the sale, and continued in possession of it: and at the time of the sheriff's sale, or when the deed for the land was made to him, by the sheriff, Mr. Ross paid no money. The rents and profits of the land were continued to be received by Oliver Ormsby; and in April, 1831, he paid to James Ross, Esq. the sum of five hundred and twenty-three dollars, the amount of the judgment, and the interest due thereon, and took from him a conveyance of the land in fee simple; giving to the sheriff, at the same time, as administrator of John Ormsby, a receipt for the sum of three thousand dollars, less five hundred and twenty-three dollars, the amount of the payment to James Ross, Esq. in satisfaction of the debt due to the Messrs. Penns. The land consists of eighteen coal hill lots, and of thirty-five acres of land adjoining to them, and is now of great value. It was highly valuable at the time of the sheriff's sale. The defendants were in possession of the property as tenants of Oliver Ormsby, when the suit was commenced.

In March, 1828, in answer to an application for information as to the value of the estate of John Ormsby, by Mrs. Swayze, one of the lessors of the plaintiff, Oliver Ormsby wrote; 'My father, at his death, was not possessed of more property than a sufficiency to pay his debts, having, from time to time, sold to individuals, and conveyed to his children.' Evidence was also given, conducing to prove, that by a sale of two of the coal lots, the judgment could have been satisfied.

The case was tried at October term, 1835, and a verdict and judgment were rendered for the defendants, under the charge of the district judge. The plaintiffs excepted to the opinion of the court, and prosecuted this writ of error.

On the trial of the cause, the counsel requested the district judge to charge the jury, 'in matters of fraud, courts of law and chancery have a concurrent jurisdiction. It is, therefore, within the province of the jury, to inquire whether the conduct and proceedings of Oliver Ormsby, whereby the legal title to the property in dispute became vested in himself, for his exclusive use and benefit, were in fraud of the rights of his cotenant, Mary Swayze; and if they were, the verdict ought to be for the plaintiffs.' The court gave the instruction as requested, with this qualification, that the fraud should be brought to the knowledge of Mr. Ross; if he took a valid title, under the sheriff's deed, the title of his vendee would be good, under the circumstances disclosed in the evidence.

The argument of Mr. Fetterman, for the plaintiffs in error, and of Mr. Watts, for the defendants, was submitted to the court in writing, at the close of January term, 1836.

Mr. Fetterman contended, that it is now an admitted maxim at law, that fraud is cognizable at law as well as in equity; and whether that inquiry can be made in an action of ejectment, is the question. This court, in the case of Sayre's Lessee v. Ormsby et al. 8 Peters' S. C. R. 252, says, 'it is an admitted principle, that a court of law has concurrent jurisdiction with a court of chancery in case of fraud; but when matters alleged to be fraudulent are investigated in a court of law, it is the province of the jury to find the facts, and determine their character, under the direction of the court.' It is worthy of remark, that that was an action of ejectment.

We find, also, that as early as Fermor's case, 3 Rep. 77, A. the principle settled, 'that fraud vitiates all transactions;' so in 10 John. 462, Jackson ex dem. Gilbert v. Burgett, which was an action of ejectment; Kent, chief justice, in delivering the opinion of the court, says, 'courts of law have concurrent jurisdiction in all cases of fraud. Fraud will invalidate in a court of law as well as in a court of equity, and annul every contract and conveyance connected with it; a fraudulent estate is as no estate in judgment of law.' Lord Mansfield, in the case of Cadogan v. Kennett, Cowp. 434, says, 'the principles and intent of the common law, as now universally known and understood, are so strong against fraud in every shape that the common law could have attained every end effectuated by the statutes of Elizabeth:' and the same judge, in Bright v. Eynon, 1 Burrows, 395, remarks, 'fraud or covin may, in judgment of law, avoid every kind of act.' Courts of equity and courts of law have a concurrent jurisdiction to suppress and relieve against fraud. So judge Parsons, in Boyden v. Hubbard, 7 Mass. 112, 'but when a court of law has regularly the fact of fraud admitted or proved, no good reason can be assigned why relief shall not be obtained there.' So in 18 John. 111, which was the case of an ejectment in an alleged fraud in a sheriff's sale, the same principle is expressly reaffirmed; also, in Fleming v. Slocum, same book, 403-4; and in Pennsylvania, in 2 Watt's Rep. 66, Gilbert v. Hoffman, which was an action of ejectment, justice Rogers, in delivering the opinion of the court, reiterates the same principle: 'a covinous conveyance of land, is as no conveyance against the interest intended to be defrauded.' 'It is certainly not the duty of a court to protect the interest of a person who has been detected in an attempt at fraud.'

'The devisee or heir whom the vendee attempted to defraud, for the attempt affects him as well as creditors, asks the aid of the statute against this fraudulent conveyance, on the ground that his title cannot be affected by a fraudulent sale. His remedy is strictly at law, for fraud is cognizable in a court of common law, as well as in a court of equity. A fraudulent vendee has no equity, and is not entitled to claim the protection of law on that ground.' In this case, as well as in the cases of Ridell v. Murphy, 7 Serg. & Rawle, 230; Bownes' Lessee v. Craft, 8 Johnston, 118; Lazarus v. Bryson, 3 Binney, 53, 54; 5 Cowen, 67, 78; Johnston's Ferry v. Harvie, 2 Penn. Rep. 93; were actions of ejectment, in which the question of fraud was considered as proper matter of inquiry.

Unless, according to the opinion of the judge of the district court, Mr. Ross is guilty of fraud, the plaintiffs cannot recover; no matter how fraudulent the intentions and conduct of Oliver Ormsby may have been. The heir of John Ormsby cannot recover from Oliver Ormsby, unless she proves that Mr. Ross was particeps criminis. The debt for which the property was sold, was due at the death of John Ormsby; its existence was known to Oliver Ormsby, his administrator; he promised to pay it in 1820.

In Pennsylvania, lands have always been assets for the payment of debts. Graff v. Smith's Administrators, 1 Dallas, 481; Morris v. Smith, 1 Yeates, 238. Either to an action of debt, as a cause of action, or when resort must be had to a scire facias, after the death of the debtor; it issues not against the heirs, upon whom the law casts the inheritance; but against the executor or administrator, who, so far as relates to the payment of the debts, is the trustee of the real estate. Rogers v. Rogers, 1 Hopkins' Chancery Reports, 526-7, a case very similar to this, and in Brown v. Webb, 1 Watts' Reports, 411.

How does it become material to show that Mr. Ross was guilty of fraud?

It is alleged that Ormsby was guilty of an attempt to defraud his co-heirs out of this property; and if he was guilty of such, how can his situation be either benefited or injured by the fact that Mr. Ross was or was not equally...