Lewis Collier, Plaintiff In Error v. Josiah Stanbrough

• Decision Date: 01 January 1848
• Parties: LEWIS A. COLLIER, PLAINTIFF IN ERROR, v. JOSIAH STANBROUGH
• Court: U.S. Supreme Court

47 U.S. 14

6 How. 14

12 L.Ed. 324

LEWIS A. COLLIER, PLAINTIFF IN ERROR, v. JOSIAH STANBROUGH.

January Term, 1848

THIS case was brought up, by a writ of error, issued under the 25th section of the Judiciary Act, from the Supreme Court for the Western District of Louisiana.

In 1838, David Stanbrough was appointed, by the local authority in Louisiana, curator of the estate of one Harper, deceased.

In 1840, he was sued as curator, in the Circuit Court of the United States for the Eastern District of Louisiana, by the Farmers' Bank of Virginia. Judgment was rendered against him, which became final on default.

On the 6th of February, 1841, Stanbrough, the curator, exposed to sale some property of Harper, the deceased, which was in the inventory taken by the Probate Court of Madison, which court granted the order for a sale. Dougal McCall became the purchaser, for the sum of $11,433.66, divided into three payments of $3,811.22 each, for which he gave three promissory notes, payable to the order of David Stanbrough, curator, at the Merchants' Bank of New Orleans, on the 1st of January, 1842, 1843, and 1844. And in order to secure the payment of the notes, he executed a mortgage upon the purchased property.

At some time subsequent to this, but when the record does not show, a fieri facias was issued upon the judgment which the Farmers' Bank of Virginia had obtained against Stanbrough, the curator, and a levy was made upon the three notes above mentioned.

On the 31st of December, 1841, David Stanbrough, the curator, filed a petition, in the nature of a bill in chancery, to the Court of Probates in the Parish of Madison, praying, amongst other things, for an injunction to restrain the marshal from further proceedings upon the execution.

On the 10th of March, 1842, the court granted the injunction as prayed for.

On the 1st of April, 1842, Stanbrough filed a supplemental petition, stating that the parties enjoined continued to advertise the notes for sale, praying that proceedings might be had against the parties for a contempt of court, that the editor of the paper might be enjoined from further publication of the advertisement, and that Dougal McCall might be enjoined from paying the notes to any person except the petitioner. An injunction was issued accordingly, on the same day.

This injunction being afterwards dissolved, the marshal proceeded to sell, on the 9th of April, 1842, the property levied upon, being the three notes of McCall given to Stanbrough, the curator. The property was offered for sale and sold to Lewis A. Collier, the plaintiff in error in the present case. A transfer in writing was made of said property by the marshal to Collier. The seizure of the notes was made by notifying David Stanbrough, in whose hands they were, that they were thereby seized by virtue of the execution, but they never came to the corporal possession of the marshal. The transfer was returned to the office of the clerk of the Circuit Court of the United States, and there duly recorded.

On the 30th of July, 1842, Josiah Stanbrough, the defendant in error in the present suit, filed a petition in the Ninth District Court of the State of Louisiana, stating that the first note of

McCall, which became due on the 4th of January, 1842, had been protested for non-payment; that it had been transferred by the curator, the payee, to one Jesse Stanbrough, and by the said Jesse to him, the petitioner.

He therefore prayed for an order of seizure and sale of the property mentioned in the mortgage, for cash enough to pay the note then due, and upon a credit sufficient to meet the other payments as they should become due in succession.

On the same day, an order of seizure and sale was issued in conformity with the prayer of the petition.

On the 14th of December, 1842, Collier filed a petition in the same court, viz. the Ninth District Court of the State of Louisiana, in which he recited the facts in the case, and then alleged that Josiah Stanbrough had illegally and fraudulently obtained possession of the note then due; that David Stanbrough, the curator, had become leagued with Josiah Stanbrough to defraud the petitioner and all other creditors of Harper's estate; that if the petitioner was not the legal owner of the notes, then they were the property of Harper's estate; that Josiah Stanbrough never gave any value for them; and, finally, praying for an injunction against all parties concerned, which should afterwards be made perpetual.

An injunction to stay further proceedings was accordingly issued.

On the 4th of May, 1843, Josiah Stanbrough filed his answer, denying all the allegations of the petition, and averring that the property of the succession of Harper, whilst administered in the Probate Court of Louisiana, could not be legally subjected to any writ of execution from the federal courts, and claiming twenty per cent. damages.

Before the cause was tried, the following admission of facts was filed, viz.:——

LEWIS A. COLLIER v. JOSIAH STANBROUGH.

Ninth District Court of the State of Louisiana, for the Parish of Madison.

The plaintiff in injunction relies upon the following facts, and he cannot go safely to trial without the documents necessary to prove them:——

1. Some two or three years since, a judgment was obtained in the United States Circuit Court for the Eastern District of Louisiana, against David Stanbrough, as curator of the succession of Jesse Harper, deceased, upon a claim against the succession of said Harper, at the suit of the Farmers' Bank of Virginia (perhaps the suit is styled 'The President, Directors, and Company of the Farmers' Bank of Virginia v. David Stanbrough,

curator of the estate of Jesse Harper'); all which will appear by the judgment.

2. Some twelve or fifteen months since, an execution (a fieri facias) issued from said United States Circuit Court, at the instance of the plaintiff in said suit, and under said execution a levy was made on the three notes mentioned in the petition of the plaintiff in injunction; and, after due advertisement, the property was offered for sale, and was sold to Lewis A. Collier, the plaintiff in injunction, and a transfer, in writing, was made of said property, by the marshal, to said Collier. The seizure of the notes relied on was made by notifying David Stanbrough, in whose hands they were, that they were thereby seized by virtue of said execution, but they never came to the corporal possession of the marshal; all which will appear by the execution, the return of the marshal thereon, and the conveyance of the marshal to Collier as aforesaid.

3. Said transfer was returned to the office of the clerk of said United States court, and there duly recorded.

The statement of facts, on which the plaintiff in injunction relies, as mentioned above, and which facts are hereinbefore enumerated, is admitted by the defendant in injunction to be true.

BEMISS, J. DUNLAP, B. M. BRAWDER, Attorneys for Defendants.

The plaintiff in injunction admits that the notes in controversy were never appraised, and that the sale was made without appraisement, and that the notes in question belonged to the succession of said Harper, which said succession, at the time the said seizure was made, in manner stated above, was in due course of administration in the Probate Court of the Parish of Madison.

R. C. STOCKTON, Att'y for Collier.

The following facts were also admitted, viz.:——

Admitted, that Lewis A. Collier is a creditor of Jesse Harper's estate, and that for two years, at least, the said succession has been insolvent.

Admitted, that the judgment in the case of the Farmers' Bank of Virginia against David Stanbrough, curator of the succession of Jesse Harper, deceased, rendered in the United States Circuit Court of the Eastern District of the State of Louisiana, was made final on default.

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