De Roux v. Girard's Ex'r

• Court: U.S. Court of Appeals — Third Circuit
• Citation: De Roux v. Girard's Ex'r, 112 F. 89 (3rd Cir. 1901)
• Decision Date: 02 December 1901
• Parties: DE ROUX et al. v. GIRARD'S EX'R et al.

112 F. 89

DE ROUX et al. v. GIRARD'S EX'R et al.

United States Court of Appeals, Third Circuit.

December 2, 1901

Carrie B. Kilgore and James Scarlett, for appellants.

John G Johnson, J. Percy Keating, and John M. Gest, for appellees.

Before ACHESON and GRAY, Circuit Judges, and KIRKPATRICK, District judge.

ACHESON Circuit Judge.

This bill in equity was brought on January 25, 1898, by John Joseph Etienne Louis De Roux and Etienne Armaud De Roux against Ellen E. Girard, widow, executrix and sole devisee of John Augustus Girard, deceased, Mary De Witt Cuyler, widow and administratrix of the estate of Theodore Cuyler deceased, Thomas De Witt Cuyler, C. C. Cuyler, Eleanor De Witt Cuyler, and Theodore De Witt Cuyler, children of Theodore Cuyler, deceased, Charles Tete, and others. Pending the suit, the death of Mary De Witt Cuyler was suggested, and C. C. Cuyler, administrator of her estate, was made a defendant. On April 9, 1899, Ellen E. Girard died, and the executor of her will, the Pennsylvania Company for Insurance on Lives, etc. (one of the appellees) was substituted as a defendant.

The complainants in the bill are children and the heirs at law of Marie Celeste De Roux, who was a niece of Stephen Girard, and one of his heirs at law. The subject-matter of the suit is the alleged interest of Marie Celeste De Roux in what are called the intestate farm or timber lands and coal lands (in all 12 tracts) of Stephen Girard, situate principally in Schuylkill county (but partly in Columbia county), Pa. Upon the death of Stephen Girard, in 1831, Madame De Roux, as one of his heirs, acquired an undivided 1/21 share in these lands. The bill alleged that in the year 1845, by purchase from Francoise Fenelon Vidal, another of Stephen Girard's heirs, Madame De Roux acquired a further undivided interest in these lands, thus making her then entire interest an undivided 1/9 share; and that upon the death of Madame Vidal, in June, 1861, she acquired under the will of the latter a further undivided interest, to wit, a 1/45 share. The bill impugns as fraudulent, as against Madame De Roux, a purchase-money mortgage executed by her and her husband and others to John Augustus Girard, Theodore Cuyler, and others, on December 26, 1857, upon which foreclosure proceedings were instituted on February 28, 1863, a final judgment against the defendants (the mortgagors) entered on July 13, 1863, and sheriff's sales thereunder made, and sheriff's deeds to the purchasers executed, delivered, and recorded, in the year 1864. The bill charges that Theodore Cuyler fraudulently caused to be included in this mortgage interests of Madame De Roux in the above-mentioned lands, which she did not intend to include therein, and did not know were so included, and that he fraudulently caused the same to be sold at the sheriff's sale under the foreclosure proceedings, he (Cuyler) purchasing at the sheriff's sale the interest of Madame De Roux in the coal lands so fraudulently included in the mortgage, and Charles Tete, with knowledge of the fraud, purchasing at the sheriff's sale her interest in the farm lands so fraudulently included in the mortgage; and that John Augustus Girard, Theodore Cuyler, and Charles Tete, conspiring and intending to defraud Madame De Roux of her rights in the coal lands, by deeds of conveyance among themselves, which were executed immediately after the sheriff's sale, became tenants in common in certain proportions in Madame De Roux's interests in the coal lands so collusively mortgaged and sold; and that they, the said John Augustus Girard, Theodore Cuyler, and Charles Tete, and those claiming under them, have been ever since continuously in the collusive and fraudulent receipt and enjoyment of the rents, issues, and profits of and from the interests of Madame De Roux in said coal lands. The scope of the prayers for relief is indicated by the following paragraph, taken from the appellants' brief:

'An accounting was asked for from Tete and the estates of Girard and Cuyler, and a decree charging the estate of Theodore Cuyler as trustee for Marie C. De Roux, and also a decree for the payment to the complainants of whatever should be found due them; also a decree for a reconveyance to the complainants of the said separate estate of Madame De Roux thus collusively and fraudulently obtained from her by Tete, Girard, and Cuyler, and held from her and her heirs, by them and their representatives.'

The bill sets forth that Louis Francois De Roux, the husband of Marie Celeste De Roux, died on February 23, 1874, and that she died on November 26, 1892. John Augustus Girard, as appears from the date of the probate of his will, died prior to September 19, 1870. Theodore Cuyler, the bill states, died on April 13, 1876.

The evidence in the case is principally documentary, and consists in large part of public records. The facts hereinafter stated appear therefrom. In 1850 the heirs at law of Stephen Girard (including Madame De Roux) instituted an action of ejectment in the circuit court of the United States for the Eastern district of Pennsylvania against the city of Philadelphia to recover the 12 tracts of land mentioned above, which action resulted in a verdict and judgment for the plaintiffs, who were put into possession of the lands by habere facias possessionem in the fall of 1853. The attorneys for the plaintiffs in that action were John M. Read, Esq., and Theodore Cuyler, Esq. By deed dated June 10, 1854, the heirs of Stephen Girard (including Madame De Roux) conveyed to John M. Read and Theodore Cuyler an undivided 15 per centum of each and all of said 12 tracts of land. That deed contains in its premises, and just before its conveying clause, these recitals ('the parties of the first part' being the heirs of Stephen Girard, and 'the parties of the second part ' being John M. Read and Theodore Cuyler), namely:

'Whereas, the said several tracts, pieces, or parcels of land, estates, and premises did all of them, upon the decease of said Stephen Girard, pass into the possession of the mayor, aldermen, and citizens of Philadelphia, who alleged and pretended a title to have and possess the same, and thereupon it was agreed between the said parties of the first part then claiming the said lands and the parties of the second part that they, the said parties of the second part, should undertake and conduct proceedings in the law for the recovery of the said tracts, pieces, and parcels of land, estates and premises, and as a compensation for their services rendered in such legal proceedings should receive an interest in all such lands equal to fifteen per cent. of their full amount and value; and whereas, such legal proceedings have been successfully conducted, and by final process issuing out of the circuit court of the United States in and for the Eastern district of Pennsylvania actual possession of the said lands has been delivered unto the said parties of the first part; and whereas, it is designed and intended by these presents to fulfill the before-mentioned agreement, and in good faith to grant, convey, and confirm unto the said parties of the second part the said interest in said tracts, pieces, or parcels of land, estates, and premises, equal to fifteen per cent. of their amount and value.'

On December 26, 1857, by a deed of that date, John Augustus Girard and Ellen E., his wife, Caroline E. G. Peale and her husband, Harriet G. Clark and her husband, Francoise F. Vidal, John M. Read, and Theodore Cuyler sold and conveyed their respective interests in the Girard farm or timber lands above mentioned to Marie Celeste De Roux and Louis Francois De Roux, her husband, and Anne Stephanie De Lentilhac (sister of Madame De Roux) and Alfred De Lentilhac, her husband, for the consideration or price of $23,111.13, and on the same day these vendees executed to their vendors a purchase-money mortgage for the entire consideration money, $23,111.13, payable in five years, with interest payable semi-annually. This mortgage, by plain description and unequivocal calls, covered the entire interests of Marie Celeste De Roux and Anne Stephanie De Lentilhac in all the above-mentioned Girard farm or timber lands and coal lands. The mortgage was duly executed in the city of Philadelphia by the mortgagors in person, and with separate acknowledgments, before an alderman, by Madame De Roux and her sister, Madame De Lentilhac. The annexed certificate of the alderman is dated December 26, 1857, and sets forth:

'The said Marie and Anne Stephanie, being by me examined separate and apart from their respective husbands, the contents thereof being first fully made known to them, did declare that they did voluntarily, and of their own free will and accord, seal, and as their act and deed deliver, the said indenture of mortgage without any coercion or compulsion from their said husbands.'

The mortgage was duly recorded on February 24, 1858. As we have seen, the allegation of the complainants is that it was the intention of their mother to mortgage only the interests conveyed to her by the deed of December 26, 1857, and that the inclusion of anything more in the mortgage was without her knowledge, and a fraud upon her.

Undoubtedly, under the pleadings, the burden of proof to establish the alleged fraud is upon the complainants, even if it be conceded (as is contended by them) that for want of personal knowledge by some of the defendants their answers do not have the probative force of a responsive answer in equity on oath made upon actual knowledge.

Now, we have attentively read and considered the entire proofs, and fail to discover evidence to sustain any of the allegations of fraud contained in the bill. The circumstances relied on as indicating bad faith on...