Tindall v. Wesley

• Decision Date: 05 February 1895
• Docket Number: 96.
• Citation: 65 F. 731
• Parties: TINDALL et al. v. WESLEY.
• Court: U.S. Court of Appeals — Fourth Circuit

65 F. 731

TINDALL et al. v. WESLEY.

No. 96.

United States Court of Appeals, Fourth Circuit.

February 5, 1895

On the 16th of February, 1892, the plaintiff below, Edward B Wesley, through a trustee, purchased from the commissioners of the sinking fund of the state of South Carolina the lot of ground in the city of Columbia on which stands the building known as 'Agricultural Hall.' The property was sold at public auction, and the purchase price was $16,165. The state of South Carolina had been the owner, and this sale was made in pursuance of an act of her general assembly. The purchase was made for the plaintiff below by one J. W. Alexander, as his trustee. Alexander fully complied with the terms of sale by paying to the state treasurer, W. T. C. Bates, one-third of the purchase money, and executing to him his bond and a mortgage of the premises for the residue of the stipulated price, and received a deed for the property in due form executed by the commissioners of the sinking fund of the state, and delivered by Bates, the state treasurer. In the advertisement of sale, in the bond taken for the deferred installments of the purchase money, and in the mortgage securing them, leave was given the purchaser to anticipate the deferred payments at his pleasure. The deed of conveyance recites that it was made by the commissioners of the sinking fund, by direction and appointment of the plaintiff below, to J. W. Alexander, to hold the same in trust for the use of the plaintiff below, his heirs and assigns forever, and to permit the cestui qui trust to have and possess the same, and to enjoy the profits, and in trust to convey the same to him his heirs and assigns, on request, or to such person as he might direct and appoint. Afterwards, namely, on the 11th day of February, 1893, Alexander did, upon request, convey the lot and premises in fee simple to him, Edward B. Wesley, who was a citizen of the state of New York. On the 13th day of February, 1893, this suit was brought. The suit is by complaint, and is, in South Carolina, a statutory action, equivalent to and a substitute for the common-law action of ejectment. One of the provisions of the statute law of South Carolina is as follows: 'The secretary of state shall take charge of all the property of the state, the care and custody of which is not otherwise provided for by law. He shall hold the same subject to the directions and instructions of the commissioners of the sinking fund. ' There was no provision of law for other custody of the subject of this suit than that of the secretary of state, J. E. Tindall. The immediate custody of the building was in a watchman,-- J. R. Boyles,-- appointed by Tindall, whose duty it was to 'watch, guard, and take care of the premises. ' He is one of the defendants below. The complaint avers that the plaintiff below was a citizen of New York, sets up his title to the premises in dispute by describing his purchase from the commissioners of the sinking fund, and the deeds conveying title to him, which gave him the right of possession; and complains that the defendants below, Tindall and Boyles, wrongfully entered into the premises and ousted him, and have been in possession since his purchase on the 20th of February, 1892, and still are withholding the same from him.

The defendant below Tindall, for his first answer, denies each and every allegation of the complainant. For his second answer he says that on the 20th of February, 1892, he was, and has since continued to be and is, secretary of the state of South Carolina; that the premises described in the complaint were and are the property of and in the possession of the said state, in actual public use. For his third answer he says that he has no right, title, interest, or estate in the said premises of any kind whatever, but that the same are in his custody as secretary of state. The answer of Boyles is similar to that of Tindall, averring that he is in the employment of Tindall as secretary of state, has no title in the premises, and is engaged only in watching, guarding, and taking care of the premises. The state of South Carolina is not a party to the suit in any form. She did not come into court to make suggestion of her title to the premises in dispute, and for that purpose only, as was done in Kaufman v. Lee, 1 Sup.Ct. 240. She left her relations to the property to be gathered exclusively from the pleadings and the evidence.

Among other testimony taken at the trial was the following, given by W. H. Lyles, one of the counsel for the plaintiff below which refers to occurrences on the morning of the 13th day of February, 1893, the day on which this suit was brought, and before the complaint was filed: 'Question by the Court: The transaction of the sale had been completed? A. Yes, we had taken the formal delivery of the deed, and had delivered the bond and mortgage, and taken the receipt, put it in our pocket, and went out of the room; then came back, and told Dr. Bates (treasurer of the state), that we had the privilege of anticipating the payment. By counsel for the plaintiff below: Q. State again the conversation you had with Mr. Tindall? A. On the day this action was commenced, before we put the papers in the hands of the deputy marshal for service, I went down to the building itself. I found Mr. Boyles, the defendant, in possession of the building, and I told him I had come down to demand possession of the building. He told me he was there in the custody of the building, under the instructions of the secretary of state, and that he was instructed not to give up the possession of the building to me, and I would have to see the secretary of state. I went immediately to his office, having had some trouble in the first case about the matter, and I told him of my conversation and Mr. Boyles' statement to me that he was holding the property under the instructions of the secretary of state. He said I had stated the matter correctly; that he was instructed by the commissioners of the sinking fund to hold that property as the property of the state of South Carolina, and he couldn't give the possession of the property to me; that he held it as agent of the board of the sinking fund commissioners of the state of South Carolina. ' During the cross-examination of W. H. Lyles, one of the witnesses and one of the counsel for the plaintiff below, the following proceedings took place: 'Q. You say you took the deed and went out of the office? A. Yes. Q. You came back almost immediately. A. Came back within the space of 3 or 4 minutes. Q. What then took place? I want to know what occurred between you and Mr. Muller (Lyles' partner) on the one hand, and Dr. Bates (state treasurer) on the other, when you went out of the room and immediately returned? (The court directs the jury to withdraw.) Q. You and Mr. Muller went out of the state treasurer's office, and almost immediately returned. Now, what occurred between the state treasurer on the one hand and Mr. Muller and yourself on the other? A. We returned within five minutes,-- I think within two minutes. We called the state treasurer's attention to the fact that the bond which had been delivered by us for Alexander contained a clause which authorized him to anticipate it at any time; and we told him, on behalf of Mr. Alexander, we desired to pay that bond and mortgage immediately. We then drew out the revenue bond scrip, known as the Blue Ridge Railroad Bond Scrip,' which we counted out to the amount of a few cents or dollars in excess of the amount due on the bond and mortgage, allowing interest on the bond and mortgage from its date up to the date of this transaction, and we told Dr. Bates we tendered that in payment of the bond and mortgage. We demanded no receipt. We demanded nothing. Q. And it was refused? A. Yes, the advertisement was not referred to. Q. Was it not the purpose of the transaction to create an issue in the United States circuit court, in order to test the validity of the revenue bond scrip? Was not that the object of the purchase? A. The object of the purchase from the beginning was to create an issue as to the validity of the revenue bond scrip; but as to the United States circuit court, we were not-- Q. Then, when you bought it, you did not intend to pay for it in good money? A. We did, and considered the scrip as good as money. Q. When you made the purchase, you made it with a view of...