Rothwell v. Dewees

• Decision Date: 01 December 1862
• Citation: 17 L.Ed. 309,67 U.S. 613,2 Black 613
• Parties: ROTHWELL v. DEWEES
• Court: U.S. Supreme Court

67 U.S. 613

2 Black 613

17 L.Ed. 309

ROTHWELL v. DEWEES.

December Term, 1862

Appeal from the Circuit Court of the United States for the District of Columbia.

Mr. Bradley, of Washington City, for A pellants.

Mr. Swan, of the District of Columbia, for Defendants.

Mr. Justice MILLER.

The appellees in this case, who were the defendants in the Circuit Court, hold the real estate, which is the subject of this controversy, by inheritance from their father, William Dewees. The title of Dewees was a deed from the Corporation of Washington City, made August 29th, 1836, on a sale for taxes. It seems to be admitted on all sides that this deed vested the legal title in Dewees, and that it is valid in his heirs, unless the plaintiffs shall be permitted to redeem from said sale, and have the deed set aside for reasons set forth by them in their bill.

The property in question was conveyed by Robert Morris, in 1796, to Joseph Ball and Standish Forde. Forde was then doing business in Philadelphia as a merchant, in partnership with one John Reed, and died about the year 1806 or 1807, leaving the mercantile firm insolvent. Shortly after Forde's death, Reed, the surviving partner, conveyed all the partnership property to William Paige, of Philadelphia, by deed of assignment for the benefit of creditors; and in the schedule attached to the instrument of assignment is included the property thus conveyed by Morris to Ball & Forde. This instrument is dated December 12th, 1807.

On the 18th of September, 1833, William Paige, as assignee of Reed, surviving partner of Reed & Forde, entered into a written agreement with William Dewees, the defendants' ancestor, in reference to this property; the substance of which is briefly this:

Dewees was to take charge of the property, and redeem it from any tax sales which had already been made, and for which the time of redemption had not expired. He was to pay all future taxes, and all the expenses incident to sales of lots to be made by himself, for which he was furnished, with a power of attorney by Paige. The money for all these taxes and expenses he was to advance, except a sum of about two or three hundred dollars, which was supposed to be in the hands of the Treasurer of Washington City, belonging to Reed & Forde, arising in some way out of sales for taxes already made. His compensation for all this was, that, after deducting his advances and interest from the proceeds of sales made by him, he was to have one-third of the remainder of such proceeds.

It appears that Dewees acted fairly under this arrangement for about three years; making advances to redeem the property where it had been sold for taxes, and paying the accruing taxes, until he had advanced about $900. He then not having sold any of the property, nor realized anything from it in any other way, permitted it to be sold for taxes and bought it in himself, and took the corporation deed already mentioned of the 29th of August, 1836. He died on the 3d of September following. On the 10th of April, 1837, Paige, the assignee, by regular power of attorney, appointed Andrew Rothwell, one of the complainants, his agent, with authority to sell lots, to procure partition, and to make settlement with the heirs and representatives of Dewees. In 1841, Robert Smith was, by a decree of Court, appointed assignee in place of Paige, who had died; and in 1846 said Smith quit claimed, and released to Rothwell all the right, title, and interest which he had as such assignee, in the property now in dispute. The complainant, Rothwell, also procured deeds of conveyance to himself and his co-plaintiffs, Naylor and Smith, from several persons describing themselves as heirs of Standish Forde, of their interest in the same property.

Rothwell Smith, and Naylor then filed their bill in Chancery against the defendants, one of whom is Rothwell's wife, praying to be permitted to pay the sum with interest which William Dewees had paid for his tax deed, and to have said deed set aside.

After the suit had progressed for some time, the other appellant, Robert S. Forde, filed a petition to be admitted as a party plaintiff, on the ground that he was a grandson and an heir-at-law of Standish Forde, and entitl d to redeem for his share.

The Court dismissed or overruled the petition of Robert S. Forde to be made a party, and, on final hearing, it dismissed the bill as to complainants, Naylor and Smith, and decreed that Rothwell, in his purchase from Robert H. Smith, the assignee of John Reed, should be held to be trustee for himself and wife, and the other defendants, heirs of Dewees; and that the defendants should make contribution to him, in payment of the sum so paid by him to Smith, and for taxes afterward paid by him on the property.

From this decree Robert S. Forde and the original complainants appeal.

The first question to be considered arises from the action of the Court in dismissing Forde's petition. It is clear that if Forde had any title or interest in the property, it was a legal title, and no obstruction is seen to the assertion of that legal title against the defendants, in a Court of law.

That Court is the appropriate one to settle the conflict growing out of the legal title derived...