Sanger v. Nightingale

This is an appeal from the circuit court of the United States for the Southern district of Georgia. The decree from which this appeal is taken, dismissed a bill brought by William H. M. Sanger, the appellant, to foreclose a mortgage. The bill was brought against William Nightingale, as executor of Phineas M. Nightingale, his father, Mrs. Ellen D. Nightingale, the widow, and John K. Nightingale and others, children, of Phineas, deceased, the maker of the original mortgage. Sanger, the plaintiff below, was a citizen of New York, and the other parties were mainly citizens of the state of Georgia. This mortgage was made in the city of New York, on December 6, 1869, by Phineas M. Nightingale, who was a resident of Georgia. It conveyed to Sanger, the appellant, certain property in the state of Georgia, known as 'Camber's Island,' in the Altamaha river. Three notes of $10,000 each accompanied the mortgage, payable, respectively, in one, two, and three years, with semi-annual interest at the of rate 7 per cent. per annum. It was to secure the payment of these notes that the mortgage was made, and it was duly recorded January 28, 1870, after having been properly acknowledged. No money was ever paid upon this mortgage, either by way of principal or interest. Nightingale, the mortgagor, died in April, 1873, and William Nightingale became the executor of his will.

There were several mortgages no this property prior to the one to the plaintiff, which were properly recorded so as to constitute notice to Sanger, as well as to all other subsequent purchasers or incumbrancers. When Sanger came to file his bill to foreclose his mortgage, which he did April 8, 1883, it became necessary for him to bring these mortgages to the attention of the court. The principal and only one of them, as the case presents itself to us, which is necessary to be considered, was one made by Nightingale on January 30, 1855, to Charles Spalding, which included Camber's island, and a very large amount of landed estate besides, as well as some 120 slaves residing upon the estate so mortgaged. This mortgage had been assigned, for the consideration of $100,000, by Spalding to Edmund Molyneux, who afterwards died, and his widow and heirs had removed to England. The executor of the estate of Molyneux had taken judgment against Nightingale before his death for the sum due on the bonds secured by the mortgage to Spalding, and he had also foreclosed the mortgage of Nightingale to Spalding, the property had been sold, and a deed made by the sheriff under that sale to William Nightingale, son of Phineas. All this occurred in the life-time of the latter.

The bill of complaint of Sanger assails this proceeding by which the mortgage to Spalding was foreclosed, and the title of the property came into the hands of William, as the result of a fraudulent combination on the part of Phineas M. Nightingale, his debtor, and William Nightingale, as representing the children of Phineas M. Nightingale, Mrs. Molyneux, and the executor of Molyneux, to defraud him of his just claims under the mortgage of December, 1869. In reciting the means by which this fraud was carried out, he says that Phineas M. Nightingale, the mortgagor in both mortgages, conveyed on July 21, 1870, to Mrs. Molyneux, the widow and real party in interest as heir or devisee of Molyneux, then dead, a tract of land known as 'Dunginess,' which was received by Mrs. Molyneux and intended by Nightingale to be a complete satisfaction of the Spalding mortgage. He further asserts that the Spalding bonds and mortgage were then turned over to P. M. Nightingale, either by a written assignment, or accompanied with an indorsement showing that they were satisfied; that P. M. Nightingale afterwards procured this mortgage to be foreclosed, and Camber's island sold under it, and bought in by his son William without any consideration being paid for it, and solely for the purpose of cutting off the right of Sanger under his mortgage.

The answer of the Nightingales denies this combination and fraud, and by way of explanation says that Dunginess was received by Mrs. Molyneux at the sum of $25,000, credited on the Spalding mortgage; that a question at that time existed as to how far the loss of the slaves who had been emancipated, which were included in the mortgage of Nightingale to Spalding, and the consideration of which was the land and negroes mortgaged, would be treated as a failure of consideration; that this question was also settled at the time that Dunginess was conveyed to Mrs. Molyneux, and that an adjustment of that matter was made by which, after the receipt of the deed of conveyance of Dunginess, it was agreed that the sum of $51,250 remained due upon that mortgage. They denied all combination to defeat the plaintiff in his mortgage. They asserted that the foreclosure of the mortgage was a bona fide attempt to enforce the collection of the remaining sum of $51,250, and that William Nightingale gave his note for the sum of $30,000 for which the property was sold.

The plaintiff afterwards filed an amended bill, in which he adopted the version of the settlement between Mrs. Molyneux and Phineas M. Nightingale, by which Dunginess was received as part payment only, and the mortgage was foreclosed for the remaining sum, after deduction for the loss of the slaves, the balance of the bonds remaining unpaid. But, in regard to the foreclosure proceedings on that mortgage, he says that, at the time they were instituted, the debt was barred by the limitation law of March 16, 1869, of the general assembly of Georgia, and that at the time the bonds and mortgage on which that proceeding was instituted were taken by the children of said Phineas M. Nightingale, by the assignment and transfer of the executor of the Molyneux estate, the said bonds and mortgage were all past due, and barred by said act of 1869. He further avers that the failure of said Phineas to plead the statute of limitation in bar of the foreclosure does not and cannot affect the right of the complainant to now avail himself of said statute of limitation. He then requests the court to decree the said foreclosure void, by virtue of said limitation law, against the claim and right of complainant.

H. B. Tompkins, for appellant.

[Argument of Counsel from pages 180-182 intentionally omitted]

A. R. Lawton, for appellees.

MILLER, J.