Massie v. Buck

• Decision Date: 16 February 1904
• Docket Number: 1,252.
• Citation: 128 F. 27
• Parties: MASSIE et al. v. BUCK.
• Court: U.S. Court of Appeals — Fifth Circuit

128 F. 27

MASSIE et al. v. BUCK.

No. 1,252.

United States Court of Appeals, Fifth Circuit.

February 16, 1904

The following is thestatement and opinion of the court below (PARLANGE, District Judge):

The bill of complaint of Charles C. Buck, a citizen of Maryland against Jessie H. Massie and Robert M. White, both citizens of Louisiana, filed March 2, 1903, alleges, inter alia: That in 1891 White offered to sell to Buck for $25,000 a certain tract of land described in the bill, and which White represented to contain about 28,000 acres. That Buck accepted the propositions, and a written agreement was executed by which White agreed to sell to Buck the said lands for $25,000, of which $5,000 were to be paid in cash, $10,000 in stock of a company to be formed to develop said lands, and for the balance notes secured by vendor's lien and mortgage were to be given. That certain capitalists then agreed with Buck to form a company which would buy said lands from him if he succeeded in procuring from White a deed thereto, and that they would pay Buck therefor $150,000, of which $120,000 was to be in stock of the company, and the balance in cash and notes. In pursuance with this agreement a company was organized in New Jersey under the name of Plaquemines Tropical Fruit Company, and a resolution was passed authorizing the company to purchase said lands from Buck, on said terms, and Buck was then elected president of the company. That White refused to execute to Buck a deed in accordance with his agreement, and Buck brought suit in this court against White to compel a specific performance of his contract. That White then proposed, by way of compromise that if Buck would pay the costs of said suit, and would give him the $5,000 in cash, as provided in the agreement, and notes for $15,000 instead of $10,000, secured by mortgage, as provided in the agreement, and give him $7,000 in the stock of the company instead of $10,000 of stock, as was provided in the agreement, and would permit him to cut willows on a certain part of said lands for one year, that he (White) would execute the deed for the said lands, and also for another tract of about 4,000 acres adjoining said lands which offer of compromise Buck accepted. That Buck and White proceeded to the office of a notary for the purpose of having an act of sale to said lands passed from White to Buck, and another from Buck to the fruit company, but it was then suggested by Charles Louque, who was then Buck's attorney, that as Buck was the only officer of said company present in Louisiana, and would therefore have to accept the sale to the company, Buck ought not to be its vendor, and the attorney advised that a third person accept the sale for Buck from White and make the transfer to the company. Thereupon the acts of sale to said lands from White to Louque, one for $10,000, and two for $5,000 each, all secured by vendor's lien and mortgage; and the consideration of the sale from Louque to the company was $150,000-- $10,000 in cash, and the assumption by the company of the three notes of Louque and $120,000 in stock of the company. That, in lieu of the $10,000 cash payment recited in the act of sale, White accepted $5,000 cash and $7,000 in stock of the company, and White returned one of the $5,000 notes, leaving outstanding in his hands the $10,000 note and the other note for $5,000. The fruit company at once went into possession of said lands and began to make extensive improvements thereon, and up to the time of the decision of the suit of the state of Louisiana against said fruit company and Buck, which will be referred to more fully hereafter, had expended more than $30,000 in improving said land. That in January, 1892, the state of Louisiana brought suit in the civil district court for the parish of Orleans, La., against Buck and the fruit company, claiming that the state was the owner of all the lands first described in the act of sale from White to Louque, lying west of and behind a certain 1,320 acres originally patented to one C. C. Packard. That the defendant company called Louque in warranty, who in turn called White in warranty. That the civil district court rendered judgment in favor of the state but reserving the rights of the defendants, Buck and the fruit company, and of Louque, against White as warrantor. That this judgment was affirmed by the Supreme Court of the state, and the judgment is final. State v. Buck, 46 La.Ann. 656, 15 So. 531 et seq. That since the said judgment in favor of the state became final the state has transferred to other parties all of said lands and the fruit company has been evicted therefrom. That the fruit company has not left to it since said eviction even said 1,320 acres, because Buck believes and charges that said tract does not contain more than 700 acres, and maybe less. That subsequently, in the suit of R. M. White v. Augustus Leovy, 49 La.Ann. 1660, 22 So. 931, et seq., a decree was rendered in April by the Supreme Court of the state, the effect of which was that White never had title to the tract of 4,000 acres secondly above mentioned. That the result of the two decisions of the Supreme Court of the state is that White had and conveyed title to and Louque and the fruit company acquired less than 1,320 acres out of a total of 32,000 acres which formed the consideration of said sales. That in 1897 White brought suit in the district court for the parish of Plaquemines on the $5,000 note of Louque against Louque and the fruit company to foreclose the vendor's lien and mortgage by executory process, and a little later Massie, who acquired the $10,000 note of Louque from White, after its maturity, instituted a similar foreclosure suit on said $10,000 note in the same court, against the same defendants. That subsequently, and before the trial, White transferred to Massie all his rights as plaintiff, and Massie was duly substituted of record as plaintiff, and the two causes consolidated. The fruit company, through its curators appointed by the court in said two suits, filed a petition against Massie and the sheriff in opposition to the seizure and sale, and prayed for an injunction without bond, and for judgment declaring said notes null and void, without consideration, and not binding on petitioner, and that the mortgage securing the same be canceled, because (1) they are not due, and the consideration for the same has absolutely failed and been extinguished, the company having been evicted from more than 95 per cent. of the lands; (2) because the notes are barred by the prescription of five years; (3) because the notes were obtained through fraud by White, he knowing at the time that he was not the lawful owner of the property sold by him for cash and for said notes. White was also made a party defendant, and judgment was prayed for condemning him to restore the said $7,000. An injunction without bond was granted, and issue was joined by Massie and White, and after trial on the merits the court, holding that there was no proof of fraud and that the notes were not prescribed, dissolved the injunction, and expressly declined to pass on the plea of want or failure of consideration of the notes, though the same was specially pleaded and strongly urged, but nevertheless dismissed the company's demand. That subsequently, under the writs issued in said consolidated cause, the sheriff of Plaquemines parish, La., advertised for sale on November 3, 1900, and on that day sold and adjudicated to Massie, the plaintiff, for the sum of $2,000, certain property which the bill describes as containing 1,320 acres, as defined in the decision of the Supreme Court. State v. Buck, 46 La.Ann. 656, 15 So. 531, et seq. That no appeal having been taken by the fruit company from said judgment up to and within three days of the expiration of a year from its rendition, Buck, as a stockholder in said company, and in his individual capacity as the real purchaser from White and the real vendor to the company, took an appeal from said judgment to the Supreme Court of the state, and on ...