Mackall v. Casilear

The bill further averred that on or about March 13, 1867, complainant conveyed to one Morsell (a copy of which deed was attached) lot 15, square 41, and lot 5, square 43, in trust to secure complainant's promissory note for $1,000, payable one year after date, to the order of his father, which note was indorsed over to Mills and wife, and was paid in full, and so admitted to be paid by a deed conveying the same property, dated July 14, 1868, by Morsell, Mills, and wife, and complainant to Louis Brand to secure in trust complainant's promissory note for $2,000, payable to his father's order one year after date, (a copy of which instrument was attached;) that the $2,000 note was an accommodation note, and made to raise money for the common benefit of both parties, but no money was raised, and there was no consideration for the note; that about five years thereafter, there occurring a variance between father and son, the father, in pursuance of a similar scheme as that charged as to the other parcels, procured Brand to advertise the property for sale, and, though publication for three weeks was required, the advertisement was published only four times successively, and for three days; that this was without the consent or knowledge of complainant, and without written request as prescribed, and the place of sale was at the private rooms of the auctioneer; that there were no bidders at the sale, but at the request of Brooke Mackall, Sr., lot 15, square 41, and sublots 2, 3, 4, and 5, lot 5, square 43, were struck off to Hill at the nominal sum of $2,000, he paying no money, and Brooke Mackall, Sr., being the real purchaser, and no payment or account was made to complainant, whereupon a conveyance in the had w riting of Brooke Mackall, Sr., was executed by said Louis Brand, trustee, to Hill, a copy of which was annexed, showing that the deed was recorded July 28, 1873; and complainant charged that the sale and deed were void. Complainant further averred that on the 4th of August, 1873, Hill executed a conveyance (a copy of which was annexed) to John C. McKelden and Edward McB. Timoney, as trustees, to secure a note of $3,000 of B. Mackall, Sr., to F. A. Casilear, due in one year from the date thereof. That said trustees and said Casilear had full knowledge of the defects of title herein mentioned, and were not bona fide purchasers or creditors. That in October, 1874, default having been made by B. Mackall, Sr., in payment of the note of $3,000, the trustees McKelden and Timoney advertised the property secured in the deed of trust to them for sale, and thereupon the complainant, at the date and place of sale so advertised, and before the sale, read a notice, and caused copies thereof to be served upon Timoney and McKelden, and Williams the auctioneer, which notice was attached to the bill, and was to the effect that Timoney, McKelden, and Williams had no authority to sell the premises, and that Mackall, Jr., would insist upon all his legal rights to the premises against them, and against any purchaser or purchasers thereof, and protested against the sale. That the trustees proceeded to sell, and thereupon Casilear bid in the property at $2,722.95, and a deed was given by McKelden and Timoney, as trustees, of sublots 2 and 3 of lot 5, square 43; lot 17, square 76; and two parts of lot 12, square 56. That on the 13th day of January, 1874, Hill, as trustee and in his own right, and B. Mackall, Sr., joined in a conveyance to Leonard Mackall, as trustee, of lot 15, in square 41; sublots 2, 3, 4, and 5 of lot 5, square 43; lots 13, 14, and 17 in square 76; and two parts of lot 12, square 56, for the use and benefit of Mackall, Sr., and subject to his absolute control and disposal. That Mackall, Sr., departed this life, February 28, 1880, and the brothers and sisters of complainant claim the property so conveyed to Leonard Mackall as trustee, as his heirs and devisees. That Casilear claims title to lot 17, square 76, and two parts of lot 12, square 56, as derived from the deed of Mackall, Sr., to Hill, and to sublots 2 and 3 of lot 15, square 43, as derived from the deed of Brand to Hill. That complainant's brothers and sisters claim title to lots 13, 14, and 17, square 76, and two parts lot 12, square 56, as derived from the deed of B. Mackall, Sr., to Hill, and lot 15, square 41, and sublots 2, 3, 4, and 5, square 43, as derived from the deed of Louis Brand to Hill, which two deeds of B. Mackall, Sr., are declared to be void, but a cloud upon the property. And that complainant, though not having the legal title, but being equitably entitled thereto, was entitled to have such deeds with all subsequent claims of title decreed null and void. Complainant further stated that some of the reasons for the delay which had occurred in his not before having filed a bill to set aside the said conveyances were as follows: 'As to Casilear, he at all times has protested against his claim, notifying him at the time of his purchase that he should not submit to the sale, and he has since then been engaged in negotiations from time to time with him, orally and by mutual correspondence in writing, which he has hoped would result in a settlement and adjustment of their differences in regard to the property held by him. He has received large amounts by way of rents and profits of said property, and has made no substantial improvements thereon. As to the remainder of such property, he says that soon after the execution of the deeds made in 1874 the said B. Mackall, Sr., became reconciled to complainant, they living together and sharing the benefit of all property possessed by each in common. He, said B. Mackall, Sr., constantly assured complainant that he would rectify all that was wrong in said conveances to the best of his ability, which assurance was relied upon by complainant, and was satisfactory to him. Said B. Mackall, Sr., drew up forms of reconveyance to complainant of such property or parts thereof, one of which he signed and delivered to complainant, and which are now in possession of complainant. In February, 1880, he did execute a reconveyance of all his interests in said property, which was entirely satisfactory to the complainant, though such reconveyance was attacked by his said brothers and sisters, and a decree was made adjudging the same to be void as to the property herein claimed by complainant, from which decree, however, they claim to have taken an appeal to the supreme court of the United States, and which appeal they claim is now pending, though such claim is not admitted by complainant. While such litigation was pending, however, there was, as believed by complainant, no propriety in bringing suit to enforce what he claimed to have been sufficiently performed by the execution of said deed of his father's to him of February 28, 1880, and such litigation was pending at a very recent date.'

Complainant prayed process, and that the defendants might answer the bill under oath; that the two deeds of B. Mackall, Sr., trustee, and Brand, trustee, to Hill be adjudged and decreed to be null and void, together with all deeds, etc., under the same; that complainant be adjudged to be the owner of the property free and clear of all claims and demands of the defendants, and entitled to an account; and that an account be taken, and for general relief. To this bill the defendants Casilear and wife demurred upon the ground of multifariousness, laches, and want of equity, and the other defendants also demurred upon the ground of prior decree, multifariousness, etc. The latter demurrer was sustained January 19, 1886. and the bill dismissed. On the 28th day of January it was stipulated on behalf of the Casilears that the bill might be considered as amended by adding the averments 'that the complainant had no knowledge of the sales to Hill or either of them at the time of the conveyance to McKelden and McB. Timoney;' That 'the fair value of the property sold by McKelden and McB. Timoney, trustees, to Casilear was $7,500;' and that 'Brooke Mackall, Sr., left complainant only one dollar by his will, giving all the rest of his estate to his other children,' etc. The demurrer on behalf of the Casilears was then sustained and the bill dismissed. The cause was taken from the special to the general term of the court, and the decree of the special term affirmed. Thereupon an appeal was taken to this court.

S. Shellabarger and J. M. Wilson, for appellant.

S. S. Henkle and I. J. Darlington, for appellees.

[Argument of Counsel from page 562 intentionally omitted]

Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.