Cleghorn v. Love, 24 Ga. 590

Cleghorn v. Love

24 Ga. 590 | Ga. | 1858

McDonald; J.

By the Court. delivering the opinion.

This litigation concerns the negroes sold at the May Sheriff’s sale, 1849, and charges a fraud in the purchase, by the repression of competition, under the pretence, by the purchasers, that they intended to buy them in, for the benefit of the debtor and his family — by selling the property at private sale to the best advantage, pay the debts of the defendant in execution, and save something if possible for his wife. The bill *603proposes to hold them to the trust, and to compel them to execute it.

The arrangement to make this purchase, if made in the first instance, in good faith, as it probably was, was made, as it would seem, from some of the evidence, with the privity of the complainant, but he was absent from the sale, having left the State before that time.

According to the allegations in the bill and the proofs at the hearing, the conduct and declarations of the three persons concerned in the purchase, Alexander, McDougald and Cleghorn, they having become the purchasers of the negroes, though they were bid off by one of them, created a trust in them for Love’s creditors and his wife. The circumstances show that the creditors wore apprized of the transaction, for the money was not paid to the Sheriff and we hear no complaint from them. Indeed-there is positive proof from one of them, Mustain, that he was privy to it. The negroes were purchased for much less them the amount of the execution debts of the defendant, although their value exceeded it considerably. The complainant was not without interest in this matter, although the trust was for the benefit of the creditors and the wife of complainant, for if not carried out as promulgated at the sale, his debts would be left unpaid, and he subjected to harassment by his creditors. The object of the bill was to bring the parties sued before the Court for an account of the whole matter.

[1.] At the hearing, it seems from one of the grounds in the motion for a riew trial and the opinion of the Court delivered thereon, though it does not appear elsewhere in the record, that a motion was made to dismiss the bill, because it states conflicting equities. It is one of the maxims of a Court of Equity that it will not do justice by halves^ and what constitutes its chief value is, that it can bring before •it all parties engaged in a transaction, and however diversified their interests and liabilities may be, it can frame a decree giving each complainant his right, and holding each defendant *604to his proper accountability. I am not to be understood as intimating that different subjects matter may be united in one bill against the same defendant; or that very dissimilar matters growing out of the same transaction, against several defendants, may be joined in the same bill.

But, when investigating one of several branches of a case growing out of the same transaction, the others are to some extent involved, they should all be inquired into in one suit. To illustrate by this — if the defendants instead of paying the debts of the complainant, take an assignment of them, when paid from the proceeds of the sale of the property purchased at the Sheriff's sale, neither the creditors nor the wife, are in■juredby that transaction, the creditors are paid, but the wife is injured by their refusing afterwards to pay over to, or settle on her, the surplus of the proceeds after purshasing up the debts. If those things be done they are breaches of the same trust, and the inquiry into one brings before the Court, the violation of the other, for the wife is entitled to the surplus aftér paying the debts, and the amount of debts paid, or to be paid, must he ascertained. It is, therefore, competent for the Court, in a single suit, to adjust the rights oí all the parties who complain of breaches of trust growing out of the same transaction, when an investigation of one involves an inquiry into the other.

[2] If the defendants, or either of them sold the negroes, at any reasonable time after the purchase, by which I mean, allowing time to find a purchaser, the first issue to be tried, is whether the sale was free from fraud and for a fair value, and the proceeds faithfully applied to the debts, if so the trust is so for executed; if not, and the sale was fraudulently made for less than the value of the property, hut the proceeds were applied to the debts, then the dedendants are accountable for the difference between the full value the time and the price' at which they were sold and interest on that* difference.

[3] The sale of negroes in April had no connection with *605the sale in May. The record exhibits nothing to show that that evidence was properly admitted. The price for which they sold is no . evidence of the value of negroes sold a month •afterwards. The difference may have been in the value of the negroes. It does not appear that the defendants pretended to set up that debts paid by the April sales, were paid by the proceeds of sales in May.

So in regard to the sale of the city lots. The debt paid by that sale was not produced as h debt paid by' the sale of the negroes.

[4] Lee’s testimony as to what Alexander told him at the market house was properly admitted. He says the three purchasers took him aside, and what the one who spoke said was in the presence and hearing of the others.

[5] This Court cannot determine, whether what Alexander said, when he sold the negroes to Billing, was properly admitted, or not, as it does not appear in the record, but if what he said, was said while doing an act in execution of the trust, it was properly admitted.

The parts of the bill and answer proposed to be read in evidence to the Tury are not set forth in the record, and this Court cannot therefore determine whether they were properly ruled out or not.

We are not prepared to say that the verdict of the Jury is not in conformity to some one of the aspects of the case presented to them by the Court in its charge.

[6] The plaintiff in error sets forth a long charge of the Court, presenting the case in many different views and there is a general exception to the entire charge. The exceptions must be plainly and distinctly set forth, or the Court cannot notice them. Jlcts of 1855-6,p. 201.

[7] The verdict is sufficiently certain to ascertain the subjects on which it is to operate, and to enable the Court to cause the decree to be executed.

[8] The verdict of the jury, is, we think, against the weight •of evidence under the law, applicable to facts in proof. It *606appears from the evidence that many of the negroes were sold shortly after the purchase, principally in payment of the debts and. according to the witnesses of complainant, they sold for their value, 'or so near it, that the difference furnishes no evidence of fraud in those sales. Those debts according to the the terms of the trust became extinguished as debts of Love'; but for the trustee to take an assignment of them, and keep them open is a fraud, he may be compelled, as the Jury have required him to do, to satisfy the whole of them, whether they be due by judgments, executions, notes or open accounts. If the property was fairly sold, and the debts embraced within the trust paid, there is nothing to complain of in a Court of Chancery. But it appears that negro woman Polly and her children are still in the possession of defendant Cleghorn. He claims to have purchased them of one of his co-trustees* Dealing of that sort among the trustees themselves in respect to the trust property, without the assent of a cestui que trust, competent to assent, are void. They, cannot be supported. The defendant Cleghorn is accountable for the present value of Polly and her children, and their descendants if any, together with their hire. If the proceeds of the sale of other trus^ property arenot sufficient to reimburse him for all the debts oí Love which he has paid, the proceeds to be considered as having been applied at the time they were received, or ought to have been received, then .he is entitled to be allowed any unpaid balance with interest from that time to the time of trial, or at which the value of Polly and her children is estimated.

The verdict is larger than an account thus taken would warrant. If it had been increased by an allowance to the complainant of the reasonable expenses of prosecuting the case, it would still be too large. This being the case of a trustee refusing to account when an account was demanded, and he offered no reasonable excuse for not accounting, such allowance might, perhaps, have been made, but there is noth*607ingin the pleadings or evidence which shows that the verdict was at all increased by such allowance.

[9] The trustees are all liable. They are co-trustees, and it is the duty of each one to look after the trust property and to see that there is no misappropriation of it by a co-trustee^ This is the general rule, and there is nothing in the record to take this case out of. its operation. Perhaps if one trustee committed the beach of trust on which the account is decreed, the Court might so mould its proceedings as to require the guilty party to respond first. I do not say it would do it. It certainly would not if the cestui que trust is to be delayed by it. The verdict against all is right.

[10.] Whether the Jury was right in refusing to allow the payment to Boswell, we have perhaps substantially decided in that part of the decision wherein we have said that the verdict of the Jury is against the weight of evidence. Ifthe debt was embraced within the trust, it was right to pay it. From the evidence of Dr. Billing, Love had said to him previous to the sale, and before he left for Mexico, that Alexander would arrange his claims, and that after his return he informed him how it had been done and of the payment to Boswell, and he said it was all right. The inference is pretty strong that Alexander was the agent of Love in-this business, and that he sanctioned on his return what he had done in respect to the payment of Dr. Boswell’s debt. There may have been good reasons for it, for Dr. Boswell had had some of the same property levied on as Calhoun’s, and that levy had been dimissed on an understanding between them, (Calhoun and Boswell) that his claims should be paid from the proceeds of (he May sales. Calhoun, it is true, had ho power to bind Love or his property to that engagement, but Love’s subsequent assent to the doing of the very thing by his own agent, is strong evidence that it was done by his authority, and upon a motive • sufficiently strong to amount to a consideration. He might have been desirous of avoiding a contest with Calhoun’s cred-tors in respect to the property.

*608[11] The request of the defendants counsel to the Court to charge the Jury as setforth in the 16th ground in the motion for a new trial, was not, as a whole, warranted by the evidence in the case, but I am of opinion that the trust is a valid one for Mrs. Love and that she, through her next frien'd, can enforce it, and that, properly, she ought to have been made a party complainant to the bill. If a dcree be rendered for the complainant, it ought to be in trust for his wife. If there be any creditors of Love unprovided for, if existing at the time of the Sheriff’s sale, and not paid, nor any parties to this bill, there is nothing to pervent their being heard against the settlement.