Peckham v. Union Finance Co., 5052.

• Decision Date: 06 April 1931
• Docket Number: No. 5052.,5052.
• Citation: 60 App. DC 104,48 F.2d 1016
• Parties: PECKHAM v. UNION FINANCE CO. et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 104, 48 F.2d 1016 (1931)

PECKHAM v. UNION FINANCE CO. et al.

No. 5052.

Court of Appeals of District of Columbia.

Argued March 6, 1931.

Decided April 6, 1931.

W. Bissell Thomas, of Washington, D. C., for appellant.

James S. Easby-Smith and Francis W. Hill, Jr., both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from an order dismissing a petition claiming damages for malicious prosecution of a civil case.

The appellant as plaintiff below filed a declaration containing in substance the following allegations, to wit: That in February, 1925, plaintiff was the owner of lots 31, 32, 33, and 34 in square 1749, in a subdivision of Washington, and conveyed the same to the Century Homes Corporation, receiving as consideration the promissory note of the corporation for $8,000 secured by a deed of trust upon the lots, and an agreement that lot 34 should be reconveyed to her after the erection of a house thereon; that the Century Homes Corporation fraudulently induced plaintiff to withhold the deed of trust from record, and thereupon fraudulently and without consideration delivered its promissory note for $5,000 with a deed of trust on lot 31, to a "straw man," who in turn delivered the same to the defendant the Union Finance Company as the principal in the fraudulent transaction; that defendants Ward, Brayshaw, Hurst, Roth, and Hill were officers and agents of the Union Finance Company, and promoted the fraud; that in January, 1926, plaintiff discovered the fraud, and induced the Century Homes Corporation to convey the four lots to Kinnear and Smoot as trustees to carry out the terms of the original contract; but before the trustees could proceed with this duty the defendant the Union Finance Company fraudulently caused a sale of lot 31 to be made under the deed of trust securing the $5,000 promissory note aforesaid, whereby nominally the sum of about $1,150 was credited upon the note; and that afterwards, to wit, on August 3, 1926, the Union Finance Company commenced a suit in equity in the Supreme Court of the District of Columbia against the plaintiff together with the Century Homes Corporation, Kinnear and Smoot, trustees, and others as defendants; that in its bill of complaint the Union Finance Company set out the execution of the $5,000 promissory note and deed of trust aforesaid by the Century Homes Corporation, and the amount remaining due and unpaid upon the note, and also set out the subsequent conveyance of the four lots by that corporation to Kinnear and Smoot, trustees, as aforesaid, stating also that the Century Homes Corporation was hopelessly insolvent and that the trustees aforesaid were unable to carry out the provisions of the trust; that the prayer of the bill was that a receiver be appointed to take over, conserve, and liquidate the assets of the Century Homes Corporation, that the trust agreement between the company and Kinnear and Smoot, trustees, be set aside, and that the real estate conveyed thereby be conveyed to the receiver, and that the plaintiff the Union Finance Corporation and other creditors who may intervene may be allowed to prove their just claims against the Century Homes Corporation to be allowed by the receiver. The declaration further discloses that a decree was thereupon entered by the court sustaining the allegations of the bill and finding the several amounts due from the Century Homes Corporation to the Union Finance Company and other intervening creditors; and that after the lapse of several years the suit was dismissed as to the present plaintiff. It was also alleged in the declaration that the suit commenced by the Union Finance Company on August 2, 1925, as aforesaid, was fraudulent, malicious, without probable cause, and was begun with intent to injure plaintiff and impair the value of her interest in her property, and that it had the effect of preventing a profitable refinancing of the transaction because of the cloud which it cast upon the title of the lots; all to plaintiff's damage, for which she prayed judgment.

The declaration was rightly dismissed, for the reason that the suit brought by the Union Finance Company against the...