Nelson Shelton, Appellant v. Clayton Tiffin and Lilburn Perry

• Decision Date: 01 January 1848
• Citation: 12 L.Ed. 387,47 U.S. 163,6 How. 163
• Parties: NELSON F. SHELTON, APPELLANT, v. CLAYTON TIFFIN AND LILBURN P. PERRY
• Court: U.S. Supreme Court

47 U.S. 163

6 How. 163

12 L.Ed. 387

NELSON F. SHELTON, APPELLANT, v. CLAYTON TIFFIN AND LILBURN P. PERRY.

January Term, 1848

THIS was an appeal from the Circuit Court of the United States for East Louisiana, sitting as a court of equity.

On the 1st of August, 1837, Clayton Tiffin and Lilburn P. Perry received a deed for a tract of land on the western bank of the Mississippi River, about five miles above the town of Vicksburg, and containing six hundred and forty-four acres.

On the 10th of April, 1838, Tiffin and Perry sold the same land, together with a large number of negroes, to Samuel Anderson, for the sum of seventy-five thousand dollars. The sale was stated to be for cash. But in fact the payment was to be made in this way:——

Funds supposed to be as good as cash,. $35,000

Notes secured by mortgage,.......... 40,000

-------

$75,000

John M. Perry, the father of Lilburn P. Perry, and father-in-law of Tiffin, became the agent to receive these funds. The $35,000 was again divided into two classes, viz., a debt of $13,000, which was due to Anderson by Lilburn P. Perry and John M. Perry, and which debt became thus extinguished, and a note for $18,282.65, given by Austin, Ragan, and Bohannon, payable to Anderson on the 1st April, 1839.

The sum of $35,000 being thus arranged, the balance of $40,000 was not provided for until some time afterwards, viz. on the 1st of March, 1839, when Anderson gave the following notes:——

$13,333 00/000. On or before the first day of January, 1842, we promise to pay Lilbourne P. Perry the just and full sum of thirteen thousand three hundred and thirty-three dollars, value received, for land and negroes purchased of Clayton Tiffin and Lilbourne P. Perry; for the true payment of which we bind ourselves, our heirs, &c., firmly by these presents. Given under our hands and seals, this the first of March, 1839.

SAMUEL ANDERSON, [SEAL.]

Ne varietur, July 9th, 1839.

RICHARD CHS. DOWNES, [SEAL.] J. judge parish Madison, Louisiana.

(Indorsed.)

For value received, I assign the within note to Clayton Tiffin, October 22d, 1839.

L. P. PERRY,

For his agent J. M. PERRY.

216. Filed 23d Nov., 1839.

JOHN T. MASON, Clerk.

$13,333 00/100. On or before the first of January, 1843, we promise to pay Lilbourne P. Perry the just and full sum of thirteen thousand three hundred and thirty-three dollars, value received, for land and negroes purchased of Clayton Tiffin and Lilbourne P. Perry; for the true payment of which we bind ourselves, our heirs, &c., firmly by these presents. Given under our hands and seals, this the first day of March, 1839.

(Signed,) SAMUEL ANDERSON, [SEAL.]

Ne varietur, July 9th, 1839.

RICHARD CHS. DOWNES, [SEAL.] J. judge parish Madison, Louisiana.

(Indorsed) 216. Filed Nov., 1839.

JOHN T. MASON, Clerk.

$13,333 00/000. On or before the first of January, 1844, we promise to pay Lilbourne P. Perry the just and full sum of thirteen thousand three hundred and thirty-three dollars, value received, for land and slaves purchased of Clayton Tiffin and Lilbourne P. Perry; for the true payment of which we bind ourselves, our heirs, &c., firmly by these presents. Given under our hands and seals, this the first day of March, 1839.

(Signed,) SAMUEL ANDERSON, [SEAL.]

Ne varietur, July 9th, 1839.

RICHARD CHS. DOWNES, [SEAL.] J. judge of parish Madison, Louisiana.

(Indorsed) 216. Filed 28 Nov., 1839.

JOHN T. MASON, Clerk.

On the 9th of July, 1839, the remaining part of the agreement was carried into effect, by Anderson's executing a mortgage to Lilburn P. Perry, and in favor of whomsoever may become the legal holder and owner of the above notes, of the property, land, and slaves, which had been conveyed to Anderson by the deed from Tiffin and Perry.

On the same 9th of July, Anderson executed another mortgage, reciting that he was justly indebted to Nelson F. Shelton, of Goochland county, in the State of Virginia, in the sum of $45,550, and mortgaging the same property to secure it,—'it

being understood that this mortgage is posterior to that granted by the said Samuel Anderson in favor of Lilburn P. Perry on this day.' This sum of $45,550 was divided into two notes, payable on the 1st of January, 1845, and 1st of January, 1846. Whilst upon the subject of this last mortgage, it may be as well to say that another was substituted for it, with the consent of all parties, on the 17th of March, 1840, in which Robert Anderson, of Virginia, was also included, as a creditor to the amount of $3,000. This, like the other, referred to the prior mortgage given to Perry.

It is proper now to go back a few months in the order of time.

In January, 1839, Hillery Mosely and William W. Bouldin, citizens of Virginia, filed a petition in the Circuit Court of the United States against John M. Perry and Lilburn P. Perry, alleging that the Perrys were indebted to the petitioners in the sum of $7,560, upon a promissory note. As the proceedings upon this suit, as far as the appearance of Lilburn P. Perry was concerned, were drawn into question, it is better to go through with this branch of the case entirely before recurring to any other part of it. On the 12th of January, an order of court was directed to Lilburn P. Perry, comanding him to file his answer within ten days, to which the marshal made the following return:——

'Defendant, L. P. Perry, could not be found, after diligent search and inquiry. Returned Feb. 23, 1839.

J. P. WALDEN, Deputy Marshal.'

A writ of arrest was then issued, directing the marshal to seize the bodies of John M. Perry and Lilburn P. Perry, and confine them till they should give security not to leave the State without permission of the court, to which the marshal made the following return:——

Marshal's Return.

Received 12th January, 1839; and, on the 18th same month, arrested and took defendant, John M. Perry, into my custody, from whence he was released by giving bond, with Z. H. Rawlings, Charles Johnson, and H. Lewis, as sureties, in the parish of Madison, 450 miles from New Orleans, in the Eastern District of Louisiana; which bail bond is herein returned; and Lilbourne P. Perry could not be found, after diligent search and inquiry, and executing this writ in all other things as the law directs. Returned February 23d, 1839.

(Signed,) J. H. HOLLAND, Marshal.

After this, B. A. Crawford, calling himself 'attorney for defendants,' filed an answer for John M. Perry and Lilburn P. Perry, and the cause regularly proceeded to trial, Mr. Crawford attending to it in all its stages as attorney for both defendants. In June, 1839, it was tried, and the jury found a verdict for $7,560. In July, a fi. fa. was issued, the return to which was, 'no property.' In October, an alias was issued, to which the marshal made the following return, viz.:——

Marshal's Return.

Received 23d day of October, 1839, and on the same day made demand of the amount of the within fi. fa., at the residence of the within-named defendants, John M. Perry and Lilbourne P. Perry, which was refused. I seized, on the 23d day of November, 1839, a debt due by Samuel Anderson to the within-named Lilbourne P. perry, for forty thousand dollars. There was three notes given by said Anderson to said Perry, and mortgage on fifty slaves and six hundred and forty acres of land, to receive the payment of said debt to satisfy this fi. fa., and after advertising the said claim ten entire days from the last day of the notice of seizure, and having appraisers appointed according to law, who appraised said property to be worth twenty-eight thousand dollars, cash valuation, on the 10th day of December, 1839, and then, on the same day, offered the property for sale for cash, and repeatedly crying it,—there was no sale for want of a bid to the amount required by law, and then I advertised the same property, and sold the same on the 4th day of January, 1840, on a credit of twelve months, when Samuel Anderson became the purchaser thereof for the sum of five thousand dollars, he being the highest and last bidder, for which he gave his bond, with John B. Bemiss and Aaron Lilly as security; which bond I received, and the said bond is herewith returned; four hundred and thirty miles from New Orleans.

(Signed,) M. MARIGNY, U. S. Marshal.

By JOHN N. DONOHUE, Deputy U. S. Marshal.

In January, 1840, a capias ad satisfaciendum was issued against both the Perrys for the balance of the judgment after deducting the proceeds of the sale to Anderson, to which writ the marshal made the following return:——

Marshal's Return.

Received Thursday, the 16th January, 1840, and after diligent search and inquiry, the within-named defendants, John M. Perry and Lilbourn P. Perry, could not be found in the

Eastern District of Louisiana,—distance five hundred miles from New Orleans.

(Signed,) M. MARIGNY, U. S. Marshal.

By JOHN N. DONOHUE, Deputy U. S. Marshal.

The marshal soon afterwards executed the following conveyance to Anderson:——

STATE OF LOUISIANA, Parish of Madison:

Whereas I, John N. Donohue, deputy United States marshal in and for the Eastern District of the State of Louisiana, by virtue of a writ of fieri facias issued from the Circuit Court of the United States for the Ninth Circuit in and for district and State aforesaid, at the suit of Mosely and Bouldin v. John M. Perry and Lilbourne P. Perry, I did seize a certain debt owing by Samuel Anderson to said Lilbourne P. Perry, as evidenced by three promissory notes, dated 1st of March, 1839, due in the years 1842, 1843, and 1844, each for the sum of thirteen thousand three hundred and thirty-three dollars, payable by said Samuel Anderson to the said Lilbourne P. Perry, which notes are 'paraphin' on the 9th of July, 1839, together with the mortgage intended to secure said notes or debts, recorded in the office of the parish judge of the parish of Madison, in the parish and State aforesaid, in the record-book of conventional and legal...