Sprague v. Thurber

• Decision Date: 01 August 1891
• Citation: 22 A. 1057,17 R.I. 454
• Parties: SPRAGUE v. THURBER et al.
• Court: Rhode Island Supreme Court

22 A. 1057

17 R.I. 454

SPRAGUE

v. THURBER et al.

Supreme Court of Rhode Island.

Aug. 1, 1891.

Bill by Charles H. Sprague against Willlam H. Thurber and George T. Paine to reform a bill of sale of an interest in a schooner.

Francis W. Miner and William G. Roelker, for complainant.

John C. Pegram, for respondents.

MATTESON, C. J. This is a bill to reform a bill of sale. January 2, 1888, Gorham Thurber, being the owner of one-fourth of the schooner Charles H. Sprague, sold and transferred the same to the complainant by a memorandum of sale, of which the following is a copy: "Providence, R. I., Jan. 2, '88. Chas. H. Sprague, bought of Gorham Thurber, one-quarter (1/4) interest in the schooner Chas. H. Sprague, as per above receipt. Rec'd payment. Gorham Thurber." At the same time, pursuant to an understanding between them, the complainant signed and delivered to Thurber a receipt and declaration, of which the following is a copy: "Providence, Jan'y 2, 1888. Received of Gorham Thurber, in trust for collateral security and other purposes, my note in his favor for $5,000, dated July 2, 1877, payable on demand, with interest; also a bill of sale of one-quarter (1/4) interest in the schooner Chas. H. Sprague; both to be held by me and in my name as trustee for the said Gorham Thurber, for the payment of his one-half responsibility in certain notes or renewals in full or in part given in my name or his, and indorsed by either of us, as joint owners in a certain corner of' land in Minneapolis, Minn., except a $50,000 mortgage note at the Mech. Savings Bank; to be held by me (or otherwise mutually agreed) until this trust is fulfilled by the payments of said notes. Thereafter whatever balance of the full amount may remain, to be returned to said Thurber, or to his order. The income from this trust to be paid to the said Thurber, until he shall have defaulted in paying his one-half of the principal and interest on our joint indebtedness for the said Minneapolis lot, and improvements thereon, save the $50,000 mortgage note. In case of his death, the income from this trust, after the joint notes and interest are paid, to be paid to his daughter Mrs. Hettie T. Sprague; should she die, then to his daughter Alice Thurber; should they two die, the principal and income to be divided equally to the surviving grandchildren of the said Gorham Thurber. Chas. H. Sprague. The word 'Grand' interlined as intended by Gorham Thurber, and named to and understood by Chas. H. Sprague. Gorham Thurber." September 6, 1888, Gorham Thurber died, leaving a last will ana testament, which was duly admitted to probate, and in which the respondents, George T. Paine and William H. Thurber, together with the complainant, are named as the executors and trustees; all of whom duly qualified themselves to act, and are now acting, as such executors and trustees. The complainant entered into possession and control of the said one-quarter interest in said schooner, and of the note for $5,000 in he declaration of trust referred to, and has collected the interest and income therefrom, and retained the possession and control of said trust property from January 2, 1888, to the present time. The bill, after setting forth the above facts, alleges that the notes and indorsements in the declaration of trust mentioned, connected with the Minneapolis land therein referred to, have been paid since the decease of Gorham Thurber; that the complainant has applied to the collector of customs of Providence to transfer on the registry in the office his one-quarter interest in said schooner sold and transferred to him by the bill of sale aforesaid, but that the collector refuses to make the transfer because such bill of sale does not conform to the requirements of the statutes of the United States, in that it does not specify the dimensions and description of the vessel with proper reference to its enrollment and registry, as in the act of congress provided; and that the complainant is unable to obtain such transfer unless the respondents will join with him in their capacities as executors and trustees in executing a bill of sale of said one-quarter interest in said schooner which shall conform to said statutes. The bill prays for an answer, the oath thereto being waived, and that the respondents may be compelled to join with the complainant in executing and delivering to him a bill of sale of said one-quarter interest in said schooner conforming to the requirements of the statutes of the United States, and for general relief.

The answer of the respondent Paine admits the allegations of the bill, and, further answering, avers that on or about May 24, 1883, said Gorham Thurber and the complainant purchased a lot of real estate in Minneapolis, Minn., as tenants in common, each being seised of an undivided half; that May 17. 1886, they executed a joint mortgage of this real estate to secure the payment of $50,000, and that in addition to this mortgage they issued negotiable promissory notes to the a mount of $22,000, signed by Sprague as maker, and indorsed by Thurber, for money used in the erection of a building and other improvements upon the real estate; and that, in order to secure Sprague against liability upon the notes so issued to a greater extent than his own one-half thereof, said Thurber delivered to said Sprague the one-quarter interest in the schooner, with the note for $5,000 mentioned in the receipt and declaration of trust, which note had been given to said Thurber by said Sprague for money loaned by the former to the latter, as...