McCormick v. Knox

APPEAL from the Supreme Court of the District of Columbia.

The pleadings and evidence in this case disclose the following state of facts:--

Prior to Oct. 3, 1871, R. W. Bruff was the owner in fee of certain real estate in the city of Washington. On the day just mentioned he executed to Albert J. Meyer his promissory note of that date for $5,000, payable in five years, and secured it by a deed of trust on the property, with power of sale, to one Wimer as trustee. On June 29, 1872, Bruff conveyed the property to Mary J. Wheeler, who on July 1, 1872, for his accommodation, made her note of that date, payable one year thereafter to his order, for $2,000, and to secure it executed a deed of trust on the same property to William H. Ward as trustee, with power of sale in case of default in the payment of the note.

On July 13, 1872, Bruff, for himself and his partner, one Holtzclaw, executed to the Freedman's Savings and Trust Company a note for $3,000, and as collateral security therefor deposited with the company forty shares in the Capitol Hill Building Association, and the above-mentioned note of Wheeler, secured as aforesaid. Payments were made upon the note of Holtzclaw & Bruff, so that on April 9, 1873, there appeared to be due thereon the sum of $1,045.

On June 3, 1873, Wheeler conveyed the property to Michael McCormick, by deed of that date, which, though absolute on its face, it is clear from the evidence was merely given as security for a pre-existing debt.

The Freedman's Savings and Trust Company having become insolvent, three commissioners were appointed under an act of Congress to take possession of and administer its assets. They entered on their duties about July 12, 1874. Default having been made in the payment of the balance due on the note of Holtzclaw & Bruff, and also in the payment of the note made by Wheeler, the commissioners directed Ward, the trustee, to proceed to execute the trusts imposed on him by Wheeler's deed of July 1, 1872. He accordingly advertised the property. It was sold at public auction on March 17, 1876, and bid in by the commissioners, to whom Ward, the trustee, made a deed of conveyance.

The note for $5,000, which was held by Meyer, having become due, he insisted that it should be paid, and threatened. if it were not paid, to cause the property to be again advertised and sold under the trust deed to Wimer. The commissioners thereupon paid him the amount due on the note, namely, $6,128, and received from the trustee, Wimer, a deed of release to the property.

After the conveyance of the property by Ward to the commissioners, they took possession of it, and received its rents until March 17, 1879.

On March 15, 1879, McCormick filed the bill in this case against the commissioners. He founds his title to relief upon the deed made to him by Wheeler on June 3, 1873. The prayer of his bill is, that, on account of certain alleged informalities, the sale made by Ward, trustee, to the commissioners, be declared void and his deed cancelled, that an account be taken of the balance due on the note secured by the trust deed to Ward, and that the rents received by the commissioners while in possession of the property be set off against such balance, and for general relief.

The commissioners filed an answer and a cross-bill. In the latter they pray that the sale made to them by Ward, the trustee, be ratified and confirmed, and their title to the property declared to be good and valid.

McCormick answered the cross-bill, in which he denies the right of Ward, the trustee, to sell the property, the regularity of the sale, &c.

There are other pleadings in the case which are not necessary to be stated.

By virtue of an act of Congress approved Feb. 21, 1881, the court made an order substituting Knox, the present appellee, for the three original commissioners. Upon final hearing on the pleadings and evidence, the court, in special term, made a decree to the effect that McCormick or Wheeler might redeem the property by paying the balance due on the note for $3,000 made by Holtzelaw & Bruff to the Freedman's Savings and Trust Company, and also the amount paid by the commissioners on the note held by Meyer, and the sums paid by them for taxes, insurance, and repairs upon the property in question, after deducting the rents collected by them; but in case said sums were not paid within thirty days after confirmation of the auditor's report ascertaining the same, the sale and deed by Ward, the trustee, to the commissioners, should stand ratified and confirmed. McCormick appealed from this decree to the court in general term, by which it was affirmed, and he has brought the case to this court by appeal from the latter decree.

Mr. John J. Weed and Mr. William A. Meloy for the appellant.

Mr. Enoch Totten for the appellee.

MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.