Ulrici v. Papin

• Decision Date: 31 October 1847
• Citation: 11 Mo. 42
• Parties: ULRICI, ADM'R OF DELASSUS. & MCCARTY v. PAPIN ET AL.
• Court: Missouri Supreme Court

11 Mo. 42

ULRICI, ADM'R OF DELASSUS. & MCCARTY

v.PAPIN ET AL.

Supreme Court of Missouri.

October Term, 1847.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

A. HAMILTON, for Appellant.

GAMBLE & BATES, for Appellees.

1. The bill shows conclusively that the land, by far the greater part of it, if not the whole, does not lie in St. Louis county; and so the suit could not be brought there, by the positive provision of the statute. Rev. Code of 1835, p. 506, § 2; and the Rev. Code of 1845, is word for word the same. 2. This is plainly multifarious. Whatever lands C. D. Delassus had, descended, immediately upon his death, to his heirs, subject only to the payment of debts. The administrator had nothing to do with them; even in a contingency of debts exhibited, and an ascertained deficit of personal assets, his agency is through the courts, and as ministerial as the sheriff's in executing a fieri facias. And McCarty claims by derivative title Object to be disputed, and has made the heir (Auguste Delassus) a party a party defendant, in order that he may dispute it. So it appears that two separate matters of litigation, in which different persons must be the parties, are put in the same bill. To show that this is multifarious, there is no occasion to search for legal proof. A very recent case decided by this court, with authorities ready collated to my hand, is all that need be cited. 9 Mo. R. 293, Jones v. Paul et al. 3. The pretended deed from Auguste Delassus to McCarty, is made part and parcel of the bill. It is all the title he sets forth. As an instrument conveying title, it is obviously defective. To say nothing of its want of due authentication (being apparently made in Louisiana) and its lack of registry in the counties where the lands are alleged to lie, it is, except as to the two tracts described, and perhaps even as to them, void for uncertainty. See Newman v. Lawless, 6 Mo. R. and Ashley v. Evans, 7 Mo. R. There is no justice nor propriety in involving Leduc's representatives in a litigation between McCarty and A. Delassus, about the validity or the extent and operation of that deed. His title at law, as against A. Delassus, being defective, he is not entitled to a discovery or other aid in equity. Story's Eq. Pl. p. 426, § 558; Mitford's Ch. Pl. 155. 4. The making of Theodore D. Papin a defendant individually, is objectionable on the same grounds of multifariousness as are stated under the second point. In addition to the authorities there cited, see Edwards on Parties, 10 to 15.5. A defendant is not bound to discover anything that may subject him to a penalty or forfeiture. Here, not only would a penalty be incurred, but the bill expressly invokes the penal sanctions of the statute. See Story's Eq. Pl. p. 423, § 553; Mitford's Pl. 194. 6. “He who asks equity must do equity.” The court should not entertain a bill where it is plain that the complainants seek to gain whatever they can, without exposing themselves to the coercive decree of the court. 7. Same, in principle, precisely, as the last. 8. All the above points are in substance embraced in this. In addition, it appears in the bill that Leduc devised the lands to Hypolite Papin, and that H. Papin is dead, and that the lands are descended from or have been devised by him to his numerous children, some of whom are married, and some are infants, and in condition not to be affected by the claims of the complainant of a latent equity arising out of constructive mortgage, or pretended fraud and imposition, of which they had no notice.

SCOTT, J.

This is a suit begun by a bill in chancery. The bill in substance states that C. D. Delassus died at New Orleans, about the 1st of May, 1843, intestate, leaving an only son, Auguste Delassus, his heir at law. That administration on the estate of said Delassus has been committed to the said Ulrici, one of the complainants, in the State of Missouri. That since the decease of said Delassus, his said son has conveyed, by deed of the 7th September, 1843, to the said Lewis B. McCarty, all his lands, of whatever description and wherever situated, for the sum of $40,000. That Charles Delassus, prior to and on the 5th July, 1817, was seized of a great many lands in the then territory of Missouri, by virtue of grants, concessions, or orders of survey, before that time made by the Spânish government, and at that period unconfirmed. That said Charles Delassus, at the time, and for several years previous to the cession of Louisiana, on the 30th April, 1803, was Lieut. Governor and Commandant of the province of Upper Louisiana. That prior to his appointment in Upper Louisiana, he was Commandant of the post of New Madrid; that while in command of that post, he took into his service M. P. Leduc, late of the county of St. Louis. That said Leduc was employed as a scrivener, and in other matters in which said Delassus needed aid. That Leduc acquired the confidence of Delassus and was employed by him in matters of private business, and as his private secretary as Commandant and Governor. That Leduc continued with Delassus until the 10th of March, 1804, when he delivered up the government to Amos Stoddard, the representative of the United States. That shortly thereafter, the said Delassus removed to New Orleans, where he remained until 1815 or 1816, when he returned to Missouri, and settled near St. Louis on a small farm. That during the absence of Delassus, Leduc, who did not accompany him, had the management of all his concerns in Upper Louisiana, and continued his superintendence after his return. That from time to time, he loaned small sums of money to Delassus at a high rate of interest, until at length he obtained from him a promissory note, of the date of the 15th July. 1817, for $2,472 55, payable six months after date. That Delassus continued to borrow small sums, and obtained about $2,400 on notes negotiated by Leduc. That by excessive usury, and compound interest, on the 5th July, 1822, as appears by an account made out at that time, these notes amounted to the sum of $9,822, of which the sum of $3,621 was usury. That said account was not, until fourteen years after, submitted to Delassus, when an agreement was made that it should bear a special interest. That Leduc, on the 28th August, 1822, for the nominal consideration of $1,250, obtained from Delassus four valuable slaves, being all the slaves possessed by him. That shortly after his return to Missouri, Delassus mortgaged the small farm on which he resided to B. Douchouquette for the sum of $2,800, to be paid on or before the 20th December, 1823. That in 1825, he returned to New Orleans, in a state of utter destitution, and afterwards the mortgage was foreclosed, and Theodore Papin became the purchaser, by which Delassus was deprived of the only piece of confirmed land he held in this State; all the rest of his lands being unconfirmed. That for a nominal consideration, the said Leduc obtained from Delassus several tracts of land, the claim to which was afterwards confirmed, amounting to upwards of 70,000 arpents, and also the half of an unconfirmed claim purchased by Delassus from P. Chouteau, which half contained about 268,494 arpents. That Leduc was the attorney in fact, and the confidential agent of Delassus, when all of said conveyances were made, and in that capacity, in the fall of 1836, received from P. Chouteau, on account of Delassus, the sum of $18,666. That in the month of December, 1836, Delassus visited St. Louis for the first time since his removal in 1825, among other purposes, for that of obtaining a settlement with Leduc. That shortly after the arrival of Delassus, Leduc presented to him an account, in which he claimed a balance of $23,133 23; that to said account was appended an article or instrument, in the hand-writing of Leduc. which is as follows:

"For security of payment of which sum (said balance of $23,133 23), the undersigned have agreed, and do agree, as follows, to wit: that Marie Philip Leduc having in his hands the transfer of the bond of James Mackay for a part of the tract of land of thirty thousand arpents granted to said Mackay the 13th October, 1799, also a deed of sale for the remainder of a tract of land of seven thousand and fifty-six arpents, granted to Deluzieres, in the county of St. Francois, of which a part belongs to William Alexander; the deed of sale of said land so made to Leduc is recorded in the county of St. Francois, the 6th December, 1835; also, 6,056 arpents, part of a square league granted to Louis Curtois, jr., and sold by said Curtois to said Leduc, by deed recorded in the office of the recorder of the county of St. Louis, book F, p. 5; also, 20,000 arpents on the Salt river in the county of Pike, making part of a tract of land of 30,000 arpents granted to M. Delassus the 10th February, 1798; the deed of sale from M. Delassus to Leduc is recorded in the said county of Pike, book F, p. 268, for the 30,000 arpents, of which ten thousand arpents belong to said Leduc, and the other twenty thousand arpents are only in his hands as security, as above it is mentioned; also 268,494 arpents, or thereabouts, part of a grant made to James Clamorgan, on the Mississippi below New Madrid, by grant of the 9th August, 1796, which land Mr. Strother is authorized to sell at twelve and a half cents per arpent, and on which lands Messrs. Lawless and Strother have interest by contract, it is well understood that on the proceeds of said sales, after having satisfied the contract of Messrs. Lawless and Strother, the said Leduc shall retain the said sum of twenty-three thousand one hundred and...