11 Tenn. 257 | Tenn. | 1832
delivered the opinion of the court.
The original bill in the first cause, states, that on the 22d of October 1818, the defendant, Christopher, drew a hill of exchange on Stump, Eastland and Cox, at New Orleans, in favor of defendant Thomas H. for $8,200, payable one hundred and eighty days after date, which hill was accepted by the drawees, hut not paid, and endorsed by the said Thomas H. to the complainants. The drawees, about that time, became insolvent. The defendant Christopher becoming embarrassed, agreed to place a certain note for $8,000, of which he was the holder and owner, executed by S. & L. P. Gustine to W. C. Middleton, all of the State of Mississippi, and by the latter endorsed to the said Christopher, dated the 8th January, 1819, due the first March 1820, in the hands of the defendant John, as trustee, to remain there as collateral security that said bill should be paid by Christopher, the debtor, to the complainants. And said defendants agreed that said note should not be withdrawn, by either of them, until the hill was paid. Said
JOHN SOMMER VILLE, Cashier.
Before either of the parties can receive the above note, the protested draft above mentioned must be produced, or satisfactory evidence of the party demanding the note having made the payment.
JOHN SOMMERVILLE, Cash’r”
The drawer and endorser were duly notified of the non-payment of the bill, although the drawees had no effects of the said Christopher in their hands. A suit was brought in New-Orleans in the Parish Court against Fletcher as endorser. Verdict and judgment were recovered against him, but the judgment was afterwards reversed in a superior court for want of jurisdiction in the parish court, and for that cause alone, which was by mistake of counsel. Fletcher and Stump have since become insolvent. The prayer is, that they may have the benefit of said collateral security.
The answer of Christopher Stump admits the drawing and endorsing of the bill, its non-payment at maturity, and its endorsement by Fletcher; denies that he deposited the note upon the Gustines, with Mr Sommer-ville, to secure complainants in the payment of their bill of exchange; but that it was deposited with Som-merville by him, for the benefit of Thomas H. Fletcher,
On the 4th of March 1823, an amended and supplemental bill was filed by John Cox and the other complainants, against the same defendants, setting up a new and entirely distinct ground of equity, alleging that the note now in controversy, with two others of the same amount, upon the same persons, was delivered over to Cox by Stump in the spring of 1819, to be held by Cox as collateral security for the purchase money of some negroes, sold by Cox to Stump about that time, or a few days preceding; which purchase money amounted to about f>24,900. The bill states, that about the time of the deposite with Cox, these notes together with ‡200 in cash, were fraudulently taken out of the pocket book of the said Cox, by the said Stump at Natchez, he, the said Joshua, having entrusted him with his pocket book to carry to the Bank for safe keepinj|, while he was laboring under indisposition. The complainant Cox, insists that he alone is entitled to the whole of the ‡8,000 note in the hands of the receiver of the court.
I will now proceed to examine this cause, in the first place, with reference to the parties in the first bill. It will be remembered that this was peculiarly the debt of Stump; that Fletcher was an accommodation endorser, and that the complainants are the holders of the bill.— Now suppose the fact to be, as established by the defendants in their answers, that this note was deposited with Sommervilleto secure Fletcher against loss, in'consequence of his endorsement of the draft, and for his indemnity, and that Breedlove, Bradford and Robeson
But it is time to look at the proof upon this point of the cause. John Sommerville in his deposition states, that some time prior to the month of February 1820, Stump and Fletcher both being present, handed him the note mentioned in the bill and answers, with a receipt prepared for him to sign for the deposite of said note, (which receipt is copied in the statement of the case,) to which receipt he affixed his signature. That in addition to the instructions contained in the receipt, the parties stated that neither of them was to have possession of the note, until the conditions were truly complied with. That under these instructions, he received and held the note, sealed it in an envelope, and sent it to the State of Mississippi for collection. When said note was deposited with him, it was endorsed by Stump in blank; but when he forwarded it for collection, he wrote a special endorsement to himself as Cashier, over his name, to enable him to collect it, and to apply the same
But it is argued, that complainants did not make their election to accept this trust. I am of opinion, that the trust being for their benefit, the law will presume an acceptance. The filing of this bill, however, which was
Another objection is taken, that there should be a judgment at law against Flctclier and Stump, before the complainants can come into this court. The distinction in answer to it, has been well taken at the bar; that a judgment at law is only necessary where a court of equity acts as auxiliary to a court of law, but not where it acts by virtue of its original, exclusive, and substan. tive powers, as in cases of trusts; then, the trust is the equity, and it is the duty of the court to see that it is properly executed. The case in 1 John. Rep. 119, is one where there was no judgment at law. If this court could'not interfere, without a judgment at law, the trust fund might be' dissipated, and the party left without any relief. In this case, Stump admits his liability. Fletcher in his deposition says, that he was promptly advised of the dishonor of the bill, he presumes by due course of mail, and never had any idea that he could evade payment for want of notice.
It was likewise urged, with much earnestness by one
It is objected, that this court cannot make a decree for want of proper parties; that Sommerville' is nota party to the first bill, and that after the death of Stump in 1822, it was not revived against his personal representatives, and Cooper, 33-7, and 2d Maddox’s Ch. 596, have been relied upon, to show that all parties in interest must be before the court. In my opinion, this cause ought not to be decided here, in a court of the last resort, upon technicalities; nor ought we to remand it to the court below, if substantial justice can now be rendered between the parties. By looking into the record, we find that Sommerville is a party to the first suit, as well as to the cross bill, although his answer purports to be an answer to the cross bill, and that the fund which he had originally as a trustee, has been for years in the hands of the receiver of this court.
Sommerville has no interest in this matter. What is it that gives a court of equity jurisdiction? It is not the trustee as an individual, but the trust; it is the fund which was in his hands; if it were necessary, the court would now appoint a trustee; as it is not, the court will decree the money to whoever may be entitled to it As it regards the personal representatives of Stump not being a party, the objection would be equally valid in both cases; his death was suggested in 1822; he was insolvent; he answered the bill before his death, and it appears from his answer that he had no interest, whatever, in the fund now in dispute; that it belongs either to the complainants in the first bill, or to the complainants in the second. Since the suggestion of his death, he has
I will next advert to the rights which are claimed by thé complainants, Cox, Catron and M’Lemore, in the cross bill of 1820. The equity which they set up, is founded upon an alleged sale of fifis note, and promise of transfer, by Stump, to complainants Cox and Catron, with the assent of Fletcher, for the satisfaction of -their respective debts, after the same had been transferred and deposited with Sommerville, for the indemnity of Fletcher, and as it is believed, the ultimate security of Breedlove, Bradford and Robeson. The first inquiry, which presents itself, is, could such a sale impair the vested rights of the appellees? I think not, upon the authority of Shepherd vs. M’Evers, 4 John. Ch. 138. In that dase, the trust was created without the knowledge of the cestui que trusts. The court say, “these defendants, the trustees, accepted-that trust, and entered upon the execution of it, and it was not in their power, without the assent of the cestui que trusts, (in this case Breedlove, Bradford and Robeson,) or without the direction of this
But I would ask, is there any legal evidence of this sale having been made, for the rules of evidence are the same in equity as at common law? Can the deposition of Catron be received? What is his situation? It appears from the bill itself, that as agent, he agreed to pay M’Lemore $700, and the balance of the note was to be applied to the payment of the debts due from Stump to Cox and himself. Cox’s debt is alleged to be between 5000 and $8,000, leaving between 1000 and $2,000 to be applied to his own. Is not this a certain, direct and immediate interest in the event of'the suit, which must disqualify him? The distinction taken by the counsel, that this witness is competent upon the first bill, not being a party to that, although he may not be competent upon the cross bill, is not considered accurate; for the question is not, whether he is a party, but whether he is interested in the result of the suit. This witness, however, is substantially a party in the first cause; he has placed himself in that situation by the cross bill; his interest is identified with that of Cox and M’Lemore; they are all litigating together about this
I will now proceed to an examination of their equity, as stated in the amended bill of March, 1823. This bill exhibits a new and totally distinct ground of equity in favor of Cox alone, by virtue of an original lien upon these notes, having received them from Stump in the spring of 1819, as collateral security for the payment of $¡21,000. For the purpose of supporting this lien, complainants rely upon the evidence of Terrill, of Middleton, of Kyle, of Butler and Eddington. A good deal of what these witnesses say is vague, uncertain and inconclusive; there is enough, however, to incline the mind to a belief, that the three notes upon the Gustines of $8,000 each, endorsed by Middleton, (of which the note now in controversy was one) were, at some time in the spring of 1819, in the hands of Cox, as collateral security for his debt. In the view which
The last question that remains for examination, is, whether the complainants in the first bill, Breedlove, Bradford and Robeson, have forfeited their claims to the assistance of this court, by a waiver andubandonment of their rights. It is insisted that Mr Fletcher and Thomas Hill, clearly establish it. Fletcher says, “that through Captain Eastland, he offered Captain Robeson the note, provided he would pay him $>700. He (Captain Robeson) did not accept my offer.” In another place he states, “that pending the attachment at New Orleans, he wrote to Breedlove, Bradford & Co. and offered them Gustine’s note, if they would release him as endorser on Stump’s draft; to which letter he received no answer; but Mr Thomas Hill, who was then their correspondent in this place, informed him that he had received a letter from them on the subject, and that they declined receiving the note.” The statement of Hill is, “that at the request of Fletcher, he made them the proposition, to take the note in discharge of the bill of exchange;” that in reply to this letter they remarked, that they expected to recover their demand “from the property of Fletcher, in the hands of his commission merchants in New Orleans, on an attachment which they had levied on the same;” and that they also stated, “they had, by one of their firm, or by an agent, applied to the payers of the note in question by way of inquiry of them on the
The law upon the subject is believed to be this; that in order to constitute a waiver, there must be a clear, unequivocal and decisive act of the party; an act done, which shows a determination in the individual not to have a benefit which is designed for him. What was the nature of the propositions submitted by Fletcher? One was, that he would give up this note upon their paying him $700; the other was, according to Fletcher, to take the note and release him as endorser; but as Hill understood it, in discharge of the bill of exchange. Could they be required to accept such propositions? Were they not at variance with the terms of the trust? propositions, in fact, to use the language of one of the counsel, to diminish their security? They might well decline these 'propositions. Fletcher and Stump had considerable property in their hands at that time; there were other parties liable to them upon the draft; they were in hopes to make the money by the suit in New Orleans; they were informed there would be some dispute about the note. Under these circumstances, they could not be required to accept this note in absolute discharge of their debt, when they did not know whether • the money could be collected or not. This note was assigned to Sommerville for the better security of the bill of exchange, as well as to indemnify Fletcher; suppose the proposition had been made in accordance with' the trust: Are you willing that this note should remain with Sommerville for your better indemnity; and if-the note is collected, and your debt not otherwise paid, are you willing to receive this money in payment? There is no reason to believe they would have declined it. The court cannot see that they relinquished any benefit that they were entitled to from the nature of the deposite. The letter which they wrote to Stump, March 31, 182Í, does not
Decree affirmed.