102 Ky. 359 | Ky. Ct. App. | 1897
delivered the opinion op the court.
The appellant, James A. Briggs, as executor of C. M. Briggs, filed bis .amended and supplemental answer and cross-petition in the suit of McLemore, 'Guardian v. Briggs, Executor, pending for the settlement of his intestate’s estate in the Jefferson Circuit Court, chancery division, in which he averred that since the last settlement of his accounts he had succeeded in collecting from the United States Government the “cotton claim” referred to in previous settlements; and that Amanda M. Walker, and the Ohio Valley Banking and Trust Company as administrator of the estate of A, L. Shotwell, deceased, were asserting some sort of claim against the money so collected by him; and he asked that in order to a final settlement of his accounts those parties be required to set up whatever claims they had.
Accordingly, the parties named, being the present appel-lees, did appear and assert their claims, and after a trial of the issues involved, judgment was rendered, distributing-the sum collected; namely, $44,000, among three parties, viz.: James A. Briggs, as executor of C. M. Briggs, Amanda M. Walker, as assignee of her husband, and the Banking and Trust Company, as administrator of Shotwell; the shares of each being fixed according to the terms of a writing'to'be noticed presently. IThat Walker andsthe company should have been allowed any part of this cotton claim is. the subject matter of Brigg’s complaint in this appeal.
“April 18, 1802. C. S. MOREHEAD.”
At the same time, C. M. Briggs executed and delivered to Samuel J. Walker, who was the son-in-law of Governor Morehead, the following writing:
“In consideration of the sale and transfer this day made to me by G. S. Morehead of all the cotton on his two- plantations near Eggs Point in the State of Mississippi, as specified in said sale and transfer, in writing, I hereby assume and agree to pay to Samuel J. Walker the sum of forty thousand dollars, due and owing to said Walker by said C. S. More-head, upon condition, however, that I realize sufficient amount from any cotton on or from said plantations or proceeds of same, together with about twenty-five thousand dollars due me from said C. S. Morehead for moneys advanced and liability for him as surety; also about ten thousand dollars, more or less, being a claim of A. S. Shot-well as he may hereafter establish against said C. S. More-head; but in case I should not realize sufficient to pay all of said claims or amounts above named in full, then I am to puy
“April 18, 1862.”
Briggs at once took steps to get possession of the ootton, 'but by reason of the operations of the Federal and Confederate forces in Its vicinity, was unsuccessful. The cotton, was finally seized by the Federal aulhorities, who sold it and the money was paid into the Treasury of the United -States.
C. M. Briggs died in 1875, after unsuccessful and repeated ■efforts to obtain the money tor which his cotton sold. Thereafter his executor undertook the task, and finally, in June, 1888, through his attorneys, obtained the passage of the following act of Congress:
“Be it enacted, etc., That the Court of Claims is hereby •given, subject to the proviso hereinafter mentioned, like1 jui’isdiction to hear and determine the claim of the legal representatives of C. M. Briggs, deceased, for the proceeds of four hundred and fifty-five bales of cotton, now in the Treasury of the United States, alleged to have been
“Provided, however, That unless the said court shall, on a preliminary inquiry, find that said Briggs was in fact loyal to the United States government, and that the assignment to him hereinafter mentioned was bona fide, the court shall not have jurisdiction of the case, and the same-shall, without further proceedingss, be dismissed;
“And provided further, That if the court shall find that the alleged assignment from one Morehead to said Briggs, of date April eighteenth, eighteen hundred and sixty-two, under which said Briggs claimed sáid cotton, was intended only as security to said Briggs for indebtedness, and against contingent liabilities assumed by him for said Morehead, judgment shall be rendered for such portions of the proceeds of said cotton as will satisfy the-debts and claims of said Briggs, to secure which said assignment was given;
“Provided, Said judgment shall not be paid out of the general fund in the Treasury arising from the sale "of captured and abandoned property, but shall be paid out of the special fund charged to and accounted for by Captain G. L. Fort, .assistant quartermaster at Memphis, arising from the sale of the two thousand two hundred and nine bales of cotton received by him, with which claimant’s' cotton was intermingled, said claimant to receive only the.
Under the provisions of this act, the executor filed his petition in the Court of Claims, where after an investigation, he was allowed the sum of eighty-eight thousand dollars {.f88,000); to one-half of which, however, the attorneys for the claim 'were entitled, in pursuance of their contract with C. M. Briggs. Thus there came to his hand, in March, 189-1, the sum of f44,000, as the proceeds of the cotton sold to him in the contract of April 18, 1862, and to the distribution of which in the particular manner therein pointed out he stood pledged in his contract of the same date.
The appellees base their claims to a pro rata share of this 144.000 on the writing signed by Briggs. No question is raised as to Amanda M. Walker's ownership of the claim in favor of Samuel J. Walker, whose widow she is; and there is no serious dispute as to the amount of the Shotwell debt.
At the inception of the litigation over these claims, the executor contented himself with a general denial from want of knowledge or information of the averments of the pleadings of the appellees, but after some preparation of the case he filed an amended pleading and rested his defense on certain facts connected with the prosecution of the claim in the Court of Claims which he contended estop-ped the appellees from asserting their demands, and established that C. M. Briggs alone, or his estate, was entitled to the entire sum collected. This pleading was filed over the objections of the appellees, bet upon final hearing their de
The averments, briefly stated, are that the passage of the' *act in virtue of which recovery was made possible was a pure matter of grace on the part of the Government for the-sole benefit of C. M. Briggs’ estate; that the claim had long before been barred by limitation and was in fact worthless except for this act of grace. That in the action in the Court of Claims, it was Anally determined that C. M. Briggs was-loyal to the United States, and for this reason, amount of recovery was limited to such sum as would satisfy the debts! and claims alone of O. M. Briggs against Morehead, and no recovery was or could have been allowed on anything owing Walker or Shotwell by Morehead. And, moreover,, that the most important, and material evidence he could procure in the prosecution of the claim in that court was furnished by Walker and Shotwell, who testified that the sale of the cotton by Morehead to Briggs was absolute and in good faith, on account of Morebead’s indebtedness to Briggs, existing prior to the sale, and for nothing else. That the interest of Walker and Shotwell in the claim, if they intended to assert any, was fraudulently suppressed' and oncealed by them, and this was a fraud on the Government, He files as part of his pleading, copies of certain depositions of Shotwell, taken before the Court of Claims,, and likewise a copy of Walker’s affidavit. He also called in-question the execution of the paper of April 18, 1862, purporting to hare been signed by7 Briggs, and denied its genuineness. This, however, he afterwards retracts, and no attention need he paid to this feature of his defense.
Shotwell’s statements were to the same effect, but he testified further that he did have an interest of one-third in the claim under a contract with Briggs, and that the sale Avas for the purposes in the writing and for nothing else.
These statements were all true except, perhaps, the last one of Shotwell, and as it is not shown certainly that Shotwell knew of the writing which had been delivered to Walker, he may not have told an untruth intentionally. But in any event it was wholly immaterial and did not deceive or defraud the Government.
It is averred in the appellants’ pleadings that no allowance was made to Briggs and “he only received and recovered from the United States such sum as was owing directly to his testator by said Morehead.” Here it is confessed that.
•The obligation of Briggs, however, was to pro rata whatever sum he might get out of the cotton, and with this obligation, the Government, as we have seen, was not concerned.
'We attach no importance to the suggestion that the Government saw fit to waive the plea of limitation. Individuals do this sometimes and there was strong reason why the Government should do so in this case; for it is manifest there was no delay on the part of the claimant in presenting and urging his claim. The allowance to Briggs was certainly not a gratuity. The claim was to be established by proof and determined in a court and was to be paid not out of the general funds in the Treasury arising from the sale of captured and abandoned property, but out of the sales of cotton by Captain Fort, with which the claimant’s cotton became intermingled and then only in the proportion which his cotton bore to the net proceeds of the Fort sales.
The judgment below allows the executor $2,200 as his ■commission on the amount collected, and adjudges the appellees entitled to recover such proportion respectively of the sum of $41,800 as their respective demands against the estate, namely $40,000, and $6,681 (amount fixed for Shotwell debt) bear to the aggregate of the three sums of $25,000, $40,000 and $6,681.
It is urged for appellant that he is entitled to counsel fees, to be deducted before distribution of this fund, and so
On the cross appeal it is suggested that the executor should account for interest on the fund collected in March, 1894, until the rendition of the judgment in July, 1895. We think not, because it does not appear that he used the-funds or made it profitable, or that he could have done so safely in view of the litigation.
The judgment on the original and cross appeal is affirmed.