Lessee of Robert Smith and Carey Butt, Plaintiffs In Error v. William Cann

• Decision Date: 01 December 1860
• Citation: 65 U.S. 398,16 L.Ed. 714,24 How. 398
• Parties: LESSEE OF ROBERT W. SMITH AND CAREY W. BUTT, PLAINTIFFS IN ERROR, v. WILLIAM McCANN
• Court: U.S. Supreme Court

65 U.S. 398

24 How. 398

16 L.Ed. 714

LESSEE OF ROBERT W. SMITH AND CAREY W. BUTT, PLAINTIFFS IN ERROR, v. WILLIAM McCANN.

December Term, 1860

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Maryland.

The facts are stated in the opinion of the court.

It was argued by Mr. Davis and Mr. F. L. Smith for the plaintiffs in error, and Mr. Campbell and Mr. Malcolm for the defendants.

The points on behalf of the plaintiffs in error were the following. The counsel contended that the instruction given by the court below was erroneous, and cited these authorities:

McMechen v. Marman, 8 G. and J., 57, 73, 74, 75.

Jackson v. Graham, 3 Caines's R., 188.

Jackson v. Scott, 18 Johnson's R., 94.

Jackson ex dem. Cary v. Parker, 9 Cowen R., 85.

Jackson ex dem. Ten Eyck v. Walker, 4 Wendell, 462.

Culbertson v. Martin, 2 Yeates, 443.

Remington v. Linthicum, 14 Peters, 84.

Young v. Alger, 3 Watts, 223, 227.

Jackson v. Bush, 10 John., 223.

In ejectment against a defendant in an execution, or those claiming under him, the purchaser of land at a sheriff's sale, having complied with the terms of sale, is entitled, as plaintiff, to recover the possession against said defendant or his alience, and the defendant will not be permitted to controvert the title by showing it to be defective, or by setting up a better outstanding title in a third person.

Remington v. Linthicum.

McMechen v. Marman.

Lessee of Cooper v. Galbraith, 3 Wash. Cir. Ct. R., 546, 550.

Jackson v. Chase, 2 John. C. L. R. 82.

Jackson v. Pierce, Id., 221.

Jackson v. Deye, 3 John. C. L. R., 422.

Bayard v. Colfax et al., Cox's Digest S. C. U. S., 272, sec. 41.

Jackson v. Davis, 18 John. C. L. R., 7.

Jackson v. Van Slyck, 8 John. C. L. R., 486.

The trusts in the deed from Brown and wife to Richard D. Fenby being fraudulent and void, the deed passed an absolute title to Fenby of the land in controversy.

Bacon's Abr., vol. 2, Bouvier's Ed., 298, 305.

Hughes v. Edwards, 9 Wheat., 493.

That the terms of trust, in the deed from Brown and wife to Fenby, not being established by any evidence, aliunde, the said trust can be considered as existing, if at all, only from the date of the deed.

Hill on Trustees, top pp. 86, 87, note 2.

The counsel for the defendant in error made the following points:

1. This action of ejectment being brought in Maryland, and the common law in that State being unchanged, the plaintiff must show, in evidence, a legal title to enable him to recover. The Maryland statute, (1810, ch. 160,) which authorizes a sale on execution at law, of equitable estates, does not chage an equitable into a legal title, and the purchaser must assert his rights in their appropriate form.

Carroll v. Norwood, 5 H. and J., 155.

Wilson v. Inloes, 11 Gill and Johnson, 351.

Hammond v. Inloes, 4 Maryland, 138.

2. To show themselves seized of a legal title, the plaintiffs in error give in evidence the deed from Brown and wife to Fenby, conveying the property which was levied on under the judgment against Fenby, and sold to the plaintiff's lessor. This deed, (Rec. 25,) which conveyed the legal title to Fenby, conveyed it to him in trust for his wife and children, and gave him but a dry legal title, with no beneficial interest in himself, and so vested nothing in him which could be attached or taken in execution upon process against him.

Houston v. Newland, 7 Gill and Johnson, 493.

Aware of this insuperable difficulty, the plaintiffs in error seek, by a charge of fraud against the deed, to extinguish the trust, and thus convert the legal ownership of Fenby into a beneficial one. But if the deed be void against creditors, by reason of the trust for Fenby's wife and children, the statute of Elizabeth avoids it in toto, and the plaintiffs in error cannot, at the same time, set it up and destroy it. If the deed be wholly void, for fraud or any other cause, then the foundation of the plaintiff's title fails, for without it Fenby had no estate. If it be relied on as the source of Fenby's title, it must be taken as it is.

Mackie v. Cairns, Hopkins, 405.

5 Cowen, 580.

5 Shepley, 369.

4 Yerger, 164.

2 Sanford C. Rep., 630, Goodhue v. Berry.

6 Gill and Johnson, 231, State v. Bank of Maryland.

Mr. Chief Justice TANEY delivered the opinion of the court.

This case comes up upon a writ of error to revise the judgment of the Circuit Court for the district of Maryland, in an action of ejectment brought by the plaintiff in error against the defendant to recover certain lands lying in that State.

The plaintiff, in order to show title to the land claimed, offdered in evidence, that Smith and Butt, lessors of the plaintiff, having sold cotton to Fenby & Brother, of Baltimore, in 1857, drew on them for the sum due, and their bills were protested to the amount of $13,708. They thereupon brought suit on the 3d of June, 1857, and recovered judgment in the Circuit Court on the 6th of April, 1858; and on the 10th of the same month they issued a fieri facias, which was on the same day levied by the marshal on the land in controversy; and afterwards on the 2d of September next following, sold at public auction. At this sale the lessors of the plaintiff were the purchasers, and received from the marshal a deed in due form.

The plaintiff further proved that a certain Robert D. Brown was seized in fee of the land at the times hereinafter mentioned, and read in evidence a deed from him and his wife, dated April 6th, 1857, whereby they conveyed it to Richard D. Fenby, one of the defendants, against whom the judgment was afterwards obtained, stating at the time he offered it in evidence, that he impeached the trusts in the deed for fraud, and intended to show such trusts to be void against him.

The deed purports to be in consideration of $7,800.50, and recited that the land was purchased by Fenby, from Brown, on the 13th of March, 1852, and then grants to Fenby, 'as trustee,' the lands in question in fee simple, in 'trust' for the sole and separate benefit of Jane Fenby, the wife of the said Richard D. Fenby, for and during the term of her natural life, in all respects as if she was a feme sole, free from all liability for the debts of her husband, and from and immediately after the death of the said Jane Fenby, in trust for such child or children, and descendants of a deceased child or children of the said Jane, as she may leave living at the time of her death. Such child, children, and descendants, to take per stirpes.

The deed gives authority to Fenby to sell and dispose of any part of the trust property, and to invest the proceeds in safe securities upon the same trusts.

The plaintiff further offered evidence tending to prove that Fenby was hopelessly insolvent when this deed was made, and that he was in possession of the land from the time he purchased it in 1852.

The defendant, McCann, then read in evidence a deed from Fenby to him, dated March 23d, 1858, purporting to be made in execution of the power conferred by the trust deed, and conveying the property in fee simple in consideration of twenty-two thousand dollars.

And the plaintiff thereupon offered evidence tending to show that this deed was intended to cover the previous fraud of the one to Fenby; that McCann was privy to this design and co-operated in it; that he paid no money; and that notwithstanding this deed, Fenby continued in possession after the land had been advertised for sale by the marshal, and that the possession was delivered to McCann only a few days before the sale was actually made.

The defendant offered evidence for the purpose of rebutting the charge of fraud against Fenby and himself, and upon the whole testimony as offered, several instructions to the jury were moved for by each of the parties, which were all refused, and the following instruction given by the court:

'The deed from Robert P. Brown to Richard D. Fenby, of the 6th of April, 1857, conveyed only a naked legal interest to said Fenby, which could not be levied on and sold under a fi. fa. issued on a judgment against him, he having no beneficial interest therein. And as the plaintiff, to sustain this action, has offered the said deed in evidence, and as without it there is no evidence of any legal title whatever in said Fenby at the date of the levying of said fi. Fa., or at any other time, the plaintiff cannot recover in this action.'

As this instruction disposed of the case, it is unnecessary to state at large the prayers offered by the respective parties, or the testimony upon which they respectively relied to prove or disprove the imputations of fraud.

In discussing the question thus presented by the decision of the court below, it is proper to state, that in Maryland the...