Miller v. Courtnay

Statement by Mr. Justice BREWER: This was an action of ejectment commenced by Jason G. Miller in the circuit court of the United States for the district of Nebraska on February 21, 1887, to recover of the defendant the possession of certain real estate situate in an addition to the city of Lincoln, in that state. After answer and reply, the case, on November 15, 1887, came on for trial before a jury, which returned a special verdict finding the facts. Upon such special verdict, judgment was, on motion, entered in favor of the defendant. The plaintiff thereupon sued out a writ of error from this court. Since the filling of the record, Jason G. Miller has died, and the action has been revived in the name of Mary P. Miller, his devisee.

The testimony given on the trial was not preserved by any bill of exceptions, and the questions which arise are upon the sufficiency of the facts found to sustain the judgment. It appears from these findings that on August 21 1867, the title to the land passed to Luke Lavender, the common source of title of plaintiff and defendant. On November 4, 1873, Henry Atkins obtained a judgment against Luke Lavender in the district court of Lancaster county, the county in which the land is situated. Executions were issued, from time to time, on this judgment, and levied on the property in controversy. Finally, on March 22, 1879, the sheriff sold the property to Martha I. Courtnay, wife of the defendant. this sale was confirmed by the court, and the sheriff's deed duly executed. Lavender was personally served with process, and the proceedings, from the commencement of the action to the execution of the sheriff's deed, were regular in form. The title thus acquired she subsequently conveyed to the defendant, though not till after the commencement of the present action. On April 17, 1884, Lavender filed his petition in the same court against Henry Atkins, Martha I. Courtnay, and D. G. Courtnay, this defendant, in which he alleged his ownership, in 1873, of the property in controversy, as well as other real estate; the rendition of several judgments against him during the years 1873 and 1874, among others, that if favor of Atking; that the property then belonging to him was worth $75,000 over and above any homestead exemption; that all the judgments against him amounted, in the aggregate, to less than $10,000; that, notwithstanding this, through the wrongful conduct of said Atkins, John S. Gregory, the defendant in this case, (who was a son-in-law of said Atkins,) and James E. Philpott, who was acting as his (Lavender's) attorney, his entire property was sold on executions issued on these judgments, and still leaving a balance unsatisfied. The various steps by which this result was accomplished-such as having irresponsible parties present at the sales, and bidding on the property offered far above its real value, and thus preventing sales to bona fide bidders; circulating reports as to incumbrances upon the property; inducing the plaintiff, Lavender, to file a voluntary petition in bankruptcy in the United States district court, and then to abandon it-are all stated at length in the petition. The prayer was that the sales made on the judgments owned or controlled by Atkins, Courtnay, or Gregory be set aside; that an account be stated of the amounts due under such judgments; and that plaintiff be allowed time in which to pay such amounts, or, in lieu thereof, that new executions and sales be ordered.

The defendants appeared and answered, and on November 5, 1885, a decree was entered, finding the issues as to this land in favor of the plaintiff; the language of the finding and decree being as follows:

'That the plaintiff is entitled to redeem the same, and to be restored to the possession thereof upon the payment, within six months next ensuing, of the sum of two hundred and thirty-four dollars, with interest thereon at the rate of seven per centum per annum from March 22, 1879, until the same is paid into court for said defendants, to which defendants except. It is therefore ordered, adjudged, and decreed that, upon the payment by the plaintiff of said sum into court for the defendants within the time aforesaid, the sheriff's sale of March 22, 1879, and deed to said lands, to wit, the southwest quarter of the northwest quarter of the northeast quarter of section twenty-five, township ten north, of range six east in Lancaster county, Nebraska, be set aside, annulled, and held for naught, and the title to said lands be quieted in the plaintiff as against all claims or title that said defendants or either of them, and all persons holding or claiming to hold under them or either of them, may have or claim to have under and by virtue of said sale and deed, and that the defendants and each of them convey to plaintiff all right, title, and interest by them, or either of them held or claimed in and to said lands by virtue of said sale and deed; and that plaintiff have possession of said lands and execution therefor; and that, in default of the plaintiff making such payment within the time aforesaid, it is ordered, adjudged, and decreed that the title in and to the said lands, to wit, the southwest quarter (1/4) of the northwest quarter of the northeast quarter of section twenty-five, township ten, range six east, in Lancaster county, Nebraska, be quieted in the defendant Martha I. Courtnay,-to which defendants except. This decree, however, is not to affect any judgment or execution lien or liens which said defendants, or either of them, may have or hold on said lands; and plaintiff excepts thereto, and prays an appeal therefrom, which is allowed; and the court further finds, as to the rest and residue of said lands in the petition described, the issues joined in favor of the defendents, and against the plaintiff; and it is further ordered and decreed that the title in and to all the rest and residue of said lands in the petition described be quieted in the defendants.'

Subsequently, this stipulation was filed:

'This cause is settled, and the judgment and decree rendered in the district court of Lancaster county is in all things affirmed, and all errors are waived by the plaintiff; and the said plaintiff waives that part of the decree in this case which gives said plaintiff the right to redeem certain parts of said premises mentioned in said decree; and the said Luke Lavender and wife deed all of said premises mentioned in the said decree to D. G. Courtnay; and defendants herein agree to pay all the costs, and judgments is rendered for the same in favor of the plaintiff.

D. G. Courtnay,

'Atty. for Defts.

'Luke Lavender.

'This 18th day of December, 1885.' And on the 28th of December, 1885, the decree was modified in accordance therewith. On the day of the signing of this stipulation, Lavender and wife executed and delivered to the defendant a warranty deed which included, with other real estate, the premises in controversy. Further findings were as follows:

'That the consideration received by the said Luke Lavender, and paid and given by the said Dominic G. Courtnay, for the settlement of the said suit under the said stipulation, and the delivery of the said stipulation, and the delivery of the said deed ender and Julia A. Lavender, his wife, as above found, was the sum of five hundred dollars cash paid to Lavender by said Courtnay, and the discharge and release by said Courtnay and Martha I. Courtnay and Henry Atkins of all the judgments held by them, or any of them, against the said Luke Lavender, amounting, in the aggregate, to about the sum of fourteen thousand dollars.'

'And we further find and say that Luke Lavender did not pay, within six months next accruing of the said decree, the sum of $234, with interest thereon at the rate of 7% per annum from March 22, 1879; neither did any person pay, or offer to pay, the same; and no sum of money whatever has ever been paid, as required by the terms of said decree.'

It also appears that on February 21, 1883, Lavender and his wife, by two deeds, quit-claimed the premises to the plaintiff, the granting clause in each reading as follows:

'Have remised, released, and quitclaimed, and by these presents do, for themselves, their heirs, executors, and administrators, remise, release, and forever quitclaim and convey, unto the said party of the second part, and to his heirs and assigns, forever, all their right, title, interest, estate, claim, and demand, both at law and in equity,' etc.

Walter J. Lamb, Arnott C. Ricketts and Henry H. Wilson, for plaintiff in error.

Dominic G. Courtnay, for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.