William Byers, Appellant v. Francis Surget

• Decision Date: 01 December 1856
• Citation: 15 L.Ed. 670,19 How. 303,60 U.S. 303
• Parties: WILLIAM BYERS, APPELLANT, v. FRANCIS SURGET
• Court: U.S. Supreme Court

60 U.S. 303

19 How. 303

15 L.Ed. 670

WILLIAM BYERS, APPELLANT, v. FRANCIS SURGET.

December Term, 1856

THIS was an appeal from the Circuit Court of the United States for the eastern district of Arkansas, sitting in equity.

It was a bill filed by Surget, a citizen of Mississippi, to set aside a sale made under the circumstances, which are fully stated in the opinion of the court.

The Circuit Court decreed that the purchase of the lands by Byers was fraudulent and void, and ordered the sale to be set aside. Byers appealed to this court.

It was argued by Mr. Lawrence for the appellee, no counsel appearing for the appellant.

Mr. Justice DANIEL delivered the opinion of the court.

The appellee, Francis Surget, a citizen of the State of Mississippi, instituted his suit in equity in the Circuit Court of the United States for the eastern district of Arkansas, against the appellant, the object of which suit was to annul as fraudulent and void a sale of lands belonging to the appellee, made by the sheriff of Jackson, in Arkansas, on the 18th of May, 1846. These lands, situated in the county and State above mentioned, are described in the pleadings according to the public surveys, amounting to more than fourteen thousand acres, and estimated in value at from forty or seventy thousand dollars, and were sold by the sheriff in satisfaction of a claim for $39, and conveyed to the appellant for the sum of nine dollars thirteen and one-half cents.

The Circuit Court having pronounced the sale and conveyance fraudulent and void, and decreed a surrender and reconveyance of the lands by the appellant to the appellee, the former party has appealed from that decree to this court.

The facts of this cause, as collated from the pleadings, and as established by the proofs, are substantially as follows:

The appellee, during the year 1835, separately, and in his individual right, entered and purchased of the Government of the United States, at their land office at Batesville, in the State of Arkansas, a number of tracts or parcels of land, situated in the county of Jackson, in the State aforesaid, all of which are known and designated on the plats of the public surveys, and are enumerated and set forth in the bill. In the same year, (1835,) about the 10th of November, the appellee, together with John Ker, Stephen Duncan, and William B. Duncan, formed a partnership under the name and style of William B. Duncan & Co., and, in the name and behalf of that firm, entered and purchased of the United States, at their land office at Batesville, various other tracts, lots, and parcels of land, lying in the same county and State, known and designated on the plats of the public surveys, and described and set out in the bill. Sometime in the year 1836, the partnership of William B. Duncan & Co. was, by mutual consent, dissolved; and the property, real and personal, belonging to the firm, including the purchases and entries of land made by them, was by like consent divided, and the portion of each partner allotted to him, and by him held in severalty. The portions assigned and allotted, under this distribution, to Stephen Duncan and William B. Duncan, as members of the partnership of William B. Duncan & Co., are particularly set out and described in the bill. Subsequently to the dissolution of the partnership of William B. Duncan & Co., and to the transfer to each partner of his respective rights and interest therein, Stephen Duncan and William B. Duncan, by deeds bearing date, the one on the 29th of December, 1836, and the other on the 23d of March, 1837, sold and conveyed to the appellee in fee simple, together with sundry other tracts and parcels of land, the lands, lots, and parcels, before mentioned as having been transferred and assigned to said Stephen and William B., as members of the firm of William B. Duncan & Co., all of which lots and parcels of land, so conveyed to the appellee by Stephen and William B. Duncan, as well as the portion thereof belonging to the appellee, as a member of the firm of William B. Duncan & Co., and the several lots and parcels of land originally and separately entered and purchased by the appellee in his own right, were included in the levy and sale impeached by the bill.

In the year 1840, four years after the dissolution of the firm of William B. Duncan & Co., an action was instituted in the name of that firm, by William B. Duncan, in the Circuit Court of Jackson county, in the State of Arkansas, against one Noadiah Marsh, for a breach of covenant; and in that suit, under the plea of a subsequent discharge in bankruptcy, the court gave judgment in favor of the defendant for costs of suit.

The bill charges that this suit instituted against Marsh was posterior in time to the dissolution of the partnership, and was commenced and prosecuted without the authority or knowledge of the other members of the recent partnership, who all resided beyond the limits of the State of Arkansas; and further avers, that the first knowledge of the existence of the suit on the part of the appellee was imparted to him by a communication informing him of the sale of his land. This allegation in the bill with respect to the period at which the suit against Marsh was instituted, and with respect also to the person by whom instituted, and the ignorance on the part of the appellee of the institution of that suit, is fully sustained by the deposition of William B. Duncan, and by the facts that the deeds from the other partners to the appellee, executed after the dissolution, bear date in the years 1836 and 1837; the action at law against Marsh not having been commenced until 1840, September 5th.

But should it be conceded that the partnership was in full existence at the time of the institution of the suit against Marsh, and that the suit had been ordered or sanctioned by the firm, yet a judgment for costs against them, upon a ground which controverted neither the justice nor the legality of their claim, presents an anomaly in judicial proceedings, as irreconcilable with reason as it is believed to be without precedent.

Upon this extraordinary judgment, the appellant, as the attorney for the defendant in the inferior court, assumed to himself the power to tax the costs adjudged to the defendant; to tax them not in the capacity of clerk, the agent created by law for the performance of that service, nor in that of the legal deputy or subordinate of that officer, but, as it has been asserted, as a sort of amicus clerici, and with equal benevolence, or in order to remedy the ignorance and imbecility which, by way of justification of the appellant's acts, it is attempted to be shown, characterized the ministers of the law in that unfortunate locality, assumed to himself the power and the right not only of selecting the final process, but of prescribing also the description and the quantity of the property which he chose to have seized in satisfaction of that process; of furnishing a list of the parcels and amount which he chose to have thus seized; of ordering the sheriff to levy upon the whole of what he had so described; of preparing himself and furnishing to the officer such advertisements for the sale of the property levied upon as he approved; of requiring of the sheriff, under peril of responsibility for refusal, towards the satisfaction of an execution for thirty-nine dollars and ten cents, peremptorily to make sale of more than fourteen thousand acres of land, estimated by the witnesses from forty to seventy thousand dollars; and finally, under a proceeding irregular in its origin, commenced by himself, and by him controlled and managed to its consummation, of becoming the purchaser of the property estimated as above, for the sum of nine dollars thirteen and one-half cents.

Such is the history of a transaction which the appellant asks of this court to sanction; and it seems pertinent here to inquire, under what system of civil polity, under what code of law or ethics, a transaction like that disclosed by the record in this case can be excused, or even palliated? To the appellant must necessarily be imputed full knowledge of this transaction; he was the attorney for the defendant in the State court; he is shown to have been not only the adviser, but virtually the executor, of every step taken for the enforcement of the judgment...