Watson v. Fletcher

• Decision Date: 04 May 1850
• Citation: 48 Va. 1
• Parties: WATSON v. FLETCHER. FLETCHER v. WATSON.
• Court: Virginia Supreme Court

48 Va. 1

WATSON v. FLETCHER.

FLETCHER v. WATSON.

Supreme Court of Appeals of Virginia.

May 4, 1850

1. A Court of equity will not lend its aid for the settlement and adjustment of the transactions of a partnership for gambling. Nor will it give relief to either partner against the other founded on transactions arising out of such partnership whether for profits, losses, expenses, contribution or reimbursement.

2. Though the pleadings do not shew that the transactions sought to be settled and adjusted, arose out of a partnership for gambling; yet if this appears from the evidence taken before the commissioner who was directed to settle the accounts, it is proper for the Court to recommit the accounts, and direct an enquiry into the consideration on which the claims of the parties are founded.

3. One of the partners qualifies as administrator of the other, and there is personal property belonging to the partnership which had been bought and used for the partnership purposes. The administrator cannot question the title of his intestate to his moiety of this property, on the ground that it was bought and used for gambling purposes.

4. The whole, and not a moiety, of the personal property belonging to the partnership must be sold, and the proceeds divided between the living partner and the estate of the deceased partner.

5. Two partners own real estate jointly. One of them dies, having made a will subjecting his whole estate to the payment of his debts, and having, subsequent to making the will, conveyed real and personal estate of his own to his sole devisee and legatee. The surviving partner qualifies as administrator with the will annexed; and then files a bill against the devisee and legatee, charging that his testator was largely indebted to him, and seeking to set aside the conveyances as without consideration, and void as to creditors, and to have his claims established. He then offers for sale his testator's undivided moiety of the real estate owned by them jointly. HELD: That having by his bill invoked the jurisdiction of the Court to establish the validity of his claims as creditor, and the invalidity of the conveyances, he thereby placed his whole trust and authority under the control and direction of the Court; and it was an abuse of his fiduciary relation to proceed to sell the said real estate before an adjudication of the matters in controversy between himself and the devisee and legatee; and the sale was properly restrained by injunction at the suit of the devisee and legatee.

On the 26th of February 1844, Thomas R. Comer made his will, by which, after directing that his debts should be paid, he gave the whole residue of his estate, real and personal, to Ellen Fletcher; and he appointed Samuel H. Myers his executor. On the 11th of April following, Comer, upon the consideration as stated in the deed, of 1500 dollars, conveyed to Ellen Fletcher a house and lot on L street, near Bacon Quarter branch; and on the same day by another deed, on the consideration as stated therein, of 300 dollars, he conveyed to Ellen Fletcher all the personal property in said house. Comer died on the 23d of April 1844, and his will was duly admitted to probat in the County court of Henrico, when Samuel H. Myers having refused to qualify as executor administration with the will annexed, was committed to Thomas D. Watson.

On the 6th of June 1844, Watson, in his own right, and as administrator with the will annexed of Comer, filed his bill in the Superior court of chancery for the Richmond circuit, against Ellen Fletcher, in which, after stating the foregoing facts, he said that he was only induced to qualify as administrator with the will annexed upon the estate, because he was a large creditor of Comer. That Comer and himself had purchased jointly, a house and lot on 14th street, in the City of Richmond, for which they agreed to give 8000 dollars, of which the complainant had paid the whole amount; and a deed had been made to Comer and himself for the house and lot; so that complainant had a claim against Comer's estate for 4000 dollars, and an equitable lien on Comer's moiety of the said house and lot; and it was doubtful whether the said moiety would reimburse the complainant the advances made by him. That in addition to this debt, Comer was indebted to the complainant in the following sums, viz: 415 dollars, with interest from the 18th of April 1840; 2795 dollars 87 cents, with interest from the 15th of October 1842; and 1000 dollars for money loaned to him or paid for him, for which sums complainant had vouchers; thus making Comer's indebtedness to the complainant about 8000 dollars.

The plaintiff further charged that few, if any, debts were due to Comer; and that the whole means which could be relied on from this source, would not be more than 1000 dollars; and this, with the moiety of the house and lot aforesaid, would not exceed 5000 dollars of available means for the payment of Comer's debts. That at the time of making his will, he had sufficient capacity for executing such a paper; but between that period and the 11th of April, when the deeds aforesaid were executed, from constant excitement, his mind became greatly impaired, and he was on the 11th of April, totally incapable of discreetly disposing of his property, or entering into any contract; and for this reason, the said deeds ought to be treated as nullities. That moreover, the said Ellen Fletcher, who was a free mulatto, and had been the mistress of Comer for some years, never paid one dollar for this property; that she never was worth 1800 dollars, but that she was at all times, dependent on Comer for the support of herself and her relations. That the property thus conveyed was worth at least 4000 dollars: that the conveyances were fraudulent, and were contrived and designed to defeat the payment of the debts of Comer. That the said Ellen Fletcher had entered upon and taken possession of the real and personal estate so conveyed to her, and the complainant apprehended that for the purpose of consummating the fraud, she would sell the personal property conveyed to her; which would then be wholly lost to the estate and creditors of Comer, as Ellen Fletcher had no means to make satisfaction for the value of the property. He therefore prayed for an injunction to restrain the said Ellen Fletcher from alienating the said house and lot; and that the Court would direct the sheriff to take possession of the personal property aforesaid, and hold the same subject to the future order of the Court, unless Ellen Fletcher should give bond with approved security to have the same forthcoming subject to the final decree of the Court. That the Court would set aside the deeds aforesaid, and subject the said property to the payment of Comer's debts; and grant to the plaintiff such other and further relief as might seem just and equitable.

The Court overruled the plaintiff's application for an injunction in his character of administrator with the will annexed of Thomas R. Comer; and also rejected his motion to enjoin the sale of the real property charged in the bill to have been fraudulently conveyed by Comer to the defendant, being of opinion that the lis pendens created by filing the bill, afforded adequate protection; but on the ground of the defendant's alleged insolvency, the Court awarded to the plaintiff in his individual character an injunction to restrain the defendant from selling the personal property conveyed in one of the deeds of the 11th of April 1844, until the further order of the Court.

On the 25th of June, Ellen Fletcher filed her bill in the same Court against Thomas D. Watson in his own right, and as administrator with the will annexed of Thomas R. Comer. She stated the death of Thomas R. Comer, and the admission of his will to probat; and further stated that at the time of his death, he was the partner of Thomas D. Watson, and that they were the joint owners of a house and lot on 14th street in the city of Richmond; and that they were jointly and equally interested in numerous and large outstanding claims against various individuals; and that Watson was indebted to Comer for his share of numerous debts which were due to them jointly, and had been collected by Watson, some of which she mentioned, and among them a debt of 3000 dollars and upwards collected by Watson of James Garden of the county of Charlotte. This debt was secured by a deed of trust upon land and slaves, which were sold to satisfy it, and were purchased by Watson, and retained by him; thereby making him chargeable to Comer for one moiety of the debt.

She further charged that Watson had advertised the undivided moiety of the house and lot on 14th street, for sale at public auction, upon the pretence that Comer was largely indebted to him, which she charged, was not true if a fair settlement of accounts between the said Watson and Comer was had. That though Watson held a bond of Comer's for about 2500 dollars, the amount of that bond, and probably no part of it, was due, if a fair settlement was made, and the credits to which Comer was entitled, were allowed. That although Watson may have made the payments to Galt for the house and lot on 14th street, the payments were not made out of his own private funds; and that Comer made large payments for the repairs and improvement of said house, for which he was entitled to credit. That under these circumstances, even if Watson was entitled to sell the house and lot, which she was advised was at least questionable, yet it would be unjust and injurious to the complainant to permit him to sell an undivided moiety thereof before a settlement of his account with Comer was had, so as to ascertain whether a sale would be necessary. She therefore prayed that...