Williams v. Bankhead

APPEAL from the Circuit Court for the Eastern District of Arkansas; the case being thus:

In 1853, James H. Branch, a cotton planter, in Desha County, Arkansas, opened an account with George McGregor, Nathan Alloway, and James Bankhead, of New Orleans, partners, under the name of McGregor, Alloway & Co., commission merchants, and in that and subsequent years became largely indebted to them for advances and supplies. In 1854 he executed to them an open mortgage on his plantation and slaves to secure all balance of indebtedness, whatever it might be from time to time. In 1859 the firm sued him in the Circuit Court of the United States for the Eastern District of Arkansas for an alleged balance of $20,000. He denied that he owed more than $8000, and in 1860 he filed a bill in the court below for an injunction and an account, referring incidentally to the mortgage which he had given, as part of the history of their transactions. Bankhead, already mentioned as a member of the firm of McGregor, Alloway & Co., and who finally succeeded to the entire interest in it, filed an answer to the bill, giving his version of the accounts, and praying a foreclosure of the mortgage and sale of the plantation to pay the balance due. It seemed that a cross-bill was also filed by him, but it was not contained in the record as it came to this court. The civil war having suspended the proceedings, the case was redocketed in 1866. Branch died in 1867, and his administrator, one McNiell, revived the original chancery suit in his own name. In 1870 Bankhead filed a supplemental cross-bill, alleging that he had learned that Branch, when he gave the mortgage, did not have a complete title to the plantation, but only a contract for the purchase thereof, which he had not complied with, and that by proceedings in the State court of Desha County it had been decreed that, unless the balance of purchase-money was paid, the property must be delivered up to the vendor (one Isaac Bolton), and that the payments which Branch had made, amounting to $3666.66, with interest from 1854, should be refunded to his said administrator, McNiell; and that by subsequent proceedings in the same case, wherein the administrator had allowed a decree to be taken against him pro confesso, this sum was directed to be paid to Mary, the widow of the said James H. Branch, under a pretended marriage settlement. This supplemental bill of Bankhead submitted that the decree did not conclude his, Bankhead's, rights, 'as he was not a party thereto, and the merits of his cause were not in fact adjudicated by the court, as he in fact knew nothing of the pendency of the claim or suit at the time.' He now prayed, therefore, that this money might be paid to him on his claim. McNiell, the administrator of Branch, Seth Bolton (devisee of Isaac Bolton, the vendor of the plantation), and one Williams, the tenant in possession of the plantation, were made parties to this supplemental cross-bill. They answered it and excepted to it, and it was ordered to be struck from the files.

McNiell, in his answer, referring to the $3666.66, and undertaking to give a history of it, and mentioning as part of the same that Bolton had agreed to sell to Branch for a much larger sum, payable in instalments, a plantation on which James H. Branch paid the $3666.66 on account, giving bond with a certain Joseph Branch as security for the remaining instalments, continued thus:

'The remaining instalments upon said land being due and remaining unpaid, Bolton commenced a suit in chancery in the Desha Circuit Court to enforce their payment against said land, and made the said James H. Branch, Joseph Branch, George McGregor, Nathaniel Alloway, and said James Bankhead, all parties defendant to said suit, the said James H. and Joseph Branch as resident, and the said McGregor, Alloway & Bankhead as non-residents of the State of Artansas, and filed with his bill the proper affidavit that said McGregor, Alloway & Bankhead were non-residents; that all of said defendants were notified of said suit according to law, the resident defendants by process, and the said non-resident defendants by order of publication, duly executed by advertisement, as required by law, and proof thereof regularly made and filed with the papers of the cause.'

It appeared from the answers of McNiell and Williams to the supplemental cross-bill, and to a subsequent petition filed by Bankhead, that the plantation had come to the possession of Williams under the widow of Branch, and that he held by virtue of a lease from her, at the same time having a contract for the purchase of the property from the administrator as soon as the widow's claim should be satisfied.

A portion of the proceedings and a copy of the decree in the Desha County Court were annexed to the said cross-bill. It showed quite clearly that the widow and minor children of Branch had appeared in that suit, and that the former had filed a cross-bill setting up her claim to the land or to the fund in question, which had been adjudicated in her favor. But the name of Bankhead was nowhere specifically mentioned as a party to the proceeding. There did, however, appear these following orders of court, in the caption or style of which the name of his partner, McGregor, was mentioned:

'STATE OF ARKANSAS,

COUNTY OF DESHA.

'Be it remembered that at a Circuit Court begun and held in and for the county of Desha, on the chancery side thereof, &c. . . . present and presiding, the Hon. W. M. Harrison, judge.