Peeler v. Lathrop

• Decision Date: 07 December 1891
• Citation: 48 F. 780
• Parties: PEELER v. LATHROP.
• Court: U.S. Court of Appeals — Fifth Circuit

48 F. 780

PEELER v. LATHROP.

United States Court of Appeals, Fifth Circuit.

December 7, 1891

STATEMENT OF CASE.

On December 31, 1889, appellee filed in the circuit court the following bill:

'Mrs Fannie E. B. Lathrop, a citizen of the state of Louisiana residing in New Orleans, exhibits this, her bill of complaint, against Richmond Peeler, a citizen of the state of Mississippi, residing in the western division aforesaid. Complainant shows that on the 25th day of February, 1888 and for many years prior thereto, the said Peeler was a mortgagee in possession of complainant's two tracts of land in Warren county, Miss., known as the

'Upper' and 'Lower Butler Places on Old River,' which are particularly described in Exhibit A. hereto, to which reference is hereby made for a more particular description thereof; holding the same under an agreement that the rents of said land should be credited on the debt and on the taxes on the lands, which he, said Peeler, was to pay. That on that day they had a settlement of said matters, and said Peeler represented that the rents of the Lower place, which he had actually received, net, after payment of all the taxes on the lands, which he said he had paid, amounted to about enough to pay said debt, and that he had not received any rents from the Upper place at all. Relying on the truth of said representations, complainant accepted a deed from said Peeler for said lands, a copy whereof is herewith filed as Exhibit A, and prayed to be taken as part hereof, and gave him a receipt in full. Now complainant shows that said Peeler had, in fact, as he then well knew, and as she has since discovered, collected rents from said Upper place to a large amount,-- the exact amount, however, she is unable to state,-- and that he had negligently suffered large portions of said land, to-wit, lots 7 and 8, sec. 8, and lots 3 and 4, sec. 15, all in township 17, range 3 east, in Warren county, Miss., to be sold for the very taxes he had undertaken and was in duty bound to pay, and which he claimed he had paid; so that complainant has lost such portions entirely, and is damaged to the full extent of their value, for which he should compensate her. Complainant stakes that said Peeler was a trustee in the matter, intrusted with the lands for the purpose aforesaid, and bound to exercise the utmost diligence and good faith; that he was a man of good reputation, and she had no reason to suspect any misrepresentation, bad faith, or deception; that she did not live in this community, and knew nothing about the facts. Complainant further showed that said Peeler had neglected said business, and hence had not collected as much rent as said lands were reasonably worth, or as they, by the exercise of even ordinary diligence, would really have brought, although be charged for his pretended attention to the business. That, if he had attended to it, he would have realized a very large sum of money in excess of his debt years before the date of said settlement, and she claims that he should be held accountable for the rents so lost by his fault. Complainant is informed and believes that there is due her from said defendant forty-nine hundred dollars, for which she asks a decree. The premises considered, complainant prays that said Richmond Peeler may be required to answer this bill on oath, and to answer showing the amount of his debt, with interest; the amount of taxes paid by him, and when, and on which parcels; the amount of rents actually collected by him from both places, and what rents he failed to collect as aforesaid; that an account be stated of such matters and of the value of the lands which by his failure to pay the taxes thereon has been lost to complainant; and that he may be decreed to pay the balance of the rents over and above his debt and interest and taxes, and also the amount of damages she has sustained by the loss of said land as aforesaid. Or, if mistaken in the relief prayed for, complainant prays for such other further or general relief as may be equitable in the premises.'

No further proceeding seems to have been had in the case until July following, when an agreement of counsel was filed to the effect that filing an answer should not prejudice defendant's right to file a demurrer and have judgment thereon; and at the same time the death of defendant was suggested, and an order of revivor was entered against Mrs. Clementine G. Peeler as administratrix. On January 3, 1891, the defendant filed a sworn answer, in substance as follows:

She admits on the 25th day of February, 1888, the said Richmond Peeler was in possession of the lands mentioned in said bill; but respondent denies that the said R. Peeler was in possession of said lands as mortgagee, and denies that they were the lands of said complainant; but, as she is informed and believes and states the fact to be, that some time in 1867 or thereabout one B. J. Butler, who was the father of complainant, as a member of the firm of Butler, Terry & Co., doing business in the city of New Orleans as cotton factors, became indebted to the said Peeler, for proceeds of cotton consigned to him, in a large sum, to-wit, $3,260, which, becoming bankrupt, he was unable to pay. That on the 21st of April, 1866, one E. S. Butler executed a deed of trust conveying said lands to trustees, to secure to B. J. Butler four bills of exchange for $1,000 each, accepted by Butler, Ferrell & Co. That for the non-payment of said bills said deed of trust was, on the 14th day of January, 1871, foreclosed, and at the sale thereof the said Peeler became the purchaser for the sum of $1,800. That before said sale, to-wit, on the 19th day of February, 1870, said B. J. Butler assigned two of said bills of exchange to the said Peeler, and agreed in writing that they should have priority over the other two as collateral for the payment of said debt; and it was also then agreed on the part of said Peeler as follows:

'And I agree that I will, whenever the said account and interest shall be fully paid to me, transfer and assign said two bills of exchange and deed of trust to said Baxter J. Butler, or to whom he may direct; or, if said land mentioned in said deed of trust shall be sold and bought by me, or in my name, that I will, upon payment of said account and interest, convey the same to the said Baxter J. Butler, or to whomever he may direct.'

-- That, after the said lands were bought by the said Peeler as aforesaid, the said Peeler, on the 22d of September, 1873, made an agreement with C. W. Butler, wife of B. J. Butler, wherein he promised to carry out the agreement made before then with B. J. Butler; and, upon the payment of said debt, to convey the lands to C. W. Butler, or to whom she might direct. It was further agreed that the said Peeler should be repaid any taxes he might pay, and any rents received by him should be credited upon said debt.

Respondent avers that said agreements were the only agreements in writing made by the said Peeler in reference to said lands; that at the time they were made neither the said B. J. Butler nor C. W. Butler were the owners of said lands, or of the equity of redemption therein. Respondent denies that complainant was at the time of said settlement the owner of said land, and avers that said conveyance to her was without any consideration, and is void. But, further answering in reference to said settlement, this respondent denies, as hereinbefore stated, that any false representation was made by said Peeler to said complainant; and, on the other hand, avers that at said settlement the said Peeler informed complainant of the fact that nearly or quite all of his accounts had been destroyed by fire,-- once in 1886, and once a few years before then. That from his recollection of the average amounts of rents collected and taxes and improvements paid, and the amounts paid to Mrs. C. W. Butler, he was unwilling to claim that a balance was still due him. That the settlement was avowedly made upon his statements, based upon his memory, and thereupon he executed to the said complainant a deed to said land, and in consideration of such settlement and acquittance received from her, in writing, a full discharge of all liability in the premises.

Respondent denies that the said Peeler received in his life-time, and while in possession of said lands, an amount for rent of the same, which, after deducting therefrom taxes and other lawful charges, exceeded the said debt and interest due him. Respondent says that she is unable to make a statement of what rents were received, because some time in 18--, and again in 18--, nearly all the books and accounts of the said Peeler were destroyed by fire. She states, however, that on the 1st of January, 1876, a statement was made by which it appears for the years 1871 and 1872 he received for rent $1,400, and for the years 1873 and 1874 he received $510, and paid out for taxes, etc., some $500, leaving a balance then due him in the sum of $2,751.72; that he expended at different times since said settlement large sums of money in making necessary repairs, and in building fences, which in one year amounted to some $600, being the cost of putting a wire fence around said place; that the maintenance of a fence was costly, owing to the said overflows washing the same away. For the reason that all of said accounts were burned respondent is unable to state definitely the exact amount of said repairs. She avers, however, that the said complainant, and, after the death of her father, her mother, was constantly advised of the extent of the income from said place. That in 1888 the said Peeler, not having his accounts, they having been burned, came to a settlement as aforesaid, based upon his recollection that in point of fact...