Merillat v. Hensey

34 App. D.C. 398, 1910 U.S. App. LEXIS 5819

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 1, 1910
• Docket: No. 2046
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first question for consideration is whether the appellees are bound by the decree rendered May 24,1906, in equity cause No. 24,084, as purchasers pendente lite. This is determinable by the record. The original bill was filed July 18, 1903, by Richardson and others against Thomas G. Hensey, Mellen C. Hooker, and Melville D. Hensey. This bill had no reference to the land in this controversy. It is sufficient to say that .it was a bill by shareholders in a land “syndicate” to recover profits fraudulently made by the defendants in the purchase of certain lands for said syndicate, while acting as their trustees and agents. The prayers were for discovery, injunction, accounting, and for the appointment of a receiver, and concluded with a prayer for general relief. Subpoenas were promptly served upon the defendants. On August 20, 1903, an amendment was filed by the complainants, inserting a new paragraph in the bill, following paragraph 12, entitled “12%.” This alleged that by means of the frauds charged in the original bill, defendants had wrongfully obtained money from complainants, which had been used by them in the purchase o.f other lands, the titles to which they held. Among these tracts they describe the one in controversy as follows: “A tract of land known as Dry Meadows, in the county of Washington, District of Columbia, beginning for- the same at a stone marking corner of the late Charles R. Belts’ land, and running thence with 41% due east 57.84 perches to a stone; thence north 44 degrees east 13.66 perches to a stone on Broad Branch road; thence 15% degrees west 58.12 perches Jones’s lines, thence north 60 degrees west 2.32 perches to a stone and place of beginning, containing 9.40 acres of land, more or less, title to the same being taken in the name of Thomas G. Hensey and Melville D. Hensey as joint tenants, and in trust for contributors to the purchase price thereof, by deed dated January 13, 1893, and recorded February 28, 1894, in liber 1891, folio 184 et seq., of the land records of the District of Columbia.” Additional prayers were also inserted in the original bill by this amendment, asking discovery in respect of the matters alleged in paragraph 12%, for an injunction against disposing of any property described in paragraph 12; and that a trustee be appointed to sell the interests of defendants in the real estate described in paragraph 12 of complainants’ bill, for the benefit of complainants. The defendants answered, and testimony was taken and reference made to the auditor for the statement of the amount due by the defendants. A final decree was rendered on May 24, 1906, approving the auditor’s report. Merillat and Thomas, for whom Richardson has since been substituted, were appointed trustees for the complainants, and defendants were ordered to pay them the sums of $53,819.17 and $15,445.07, which were declared to be liens on the shares of defendants in the Le Droit park land syndicate. Paragraph 9 of the decree provides that, unless the money decree be satisfied on or before June 20, 1906, Thomas G. Hensey be and is hereby adjudged to have held all of his right, title, and interest, as of date August 24, 1903, the date of the service of an amendment to complainants’ bill naming said property as having been purchased with the fruits of the fraud perpetrated on his cosyndicate members by Thomas G. Hensey, in and to the following described tract of land known as Dry Meadows (with metes and bounds as described in the amended bill). Hensey is ordered to make a conveyance thereof to the said trustees, passing all of his interest, as of August 24, 1903, and in case of his failure the decree to work a passage of the title; and the trustees are ordered to sell the same, discharged from the effects of any conveyance by said Hensey not recorded prior to August 24, 1903, in satisfaction of said money decree, etc. On October 25, 1907, said paragraph was amended, now for then, correcting the description of said Dry Meadows tract of land so as to read: “Beginning at the stone in the corner of the late Charles B. Belts’ land and running thence south 41% degrees east 57.84 perches to a stone; thence north' 44 degrees east 13.68 perches to a stone on Broad Branch road, thence north 15degrees west 58.12 west to Jones’s line; thence north 60 degrees west 2.32 perches to a stone; and thence south 50% degrees west 35 perches to the place of beginning, containing 9.40 acres of land more or less, being the same property conveyed to Thomas G-. Hensey and Melville D. Hensey, trustees, by deed dated January 13, 1893, and recorded February 28, 1894.” Book and folio as stated.

When land or an interest therein is in litigation a purchaser from or under one of the parties thereto is as conclusively bound by the results of that litigation as if he had become an actual party. And notwithstanding the particular subject-matter may not have been included in the original action or suit, it may be brought in by amendment, and the result upon after-acquired interests therein is the same. Tilton v. Cofield, 93 U. S. 163—168, 23 L. ed. 858-860; Bennett, Lis Pendens, § 95. The record shows that the conveyance under which the appellees Landon and Kimberly hold title to the six-tenths interest of Thomas G-. Hensey in the Dry Meadows tract of land was made long after the amendment bringing that land into litigation, and only four days before the decree was entered. The conclusiveness of that decree as to these pendente lite purchasers is denied upon several grounds, which will now be considered.

2. It is argued that the decree is invalid because it awards two distinct and inconsistent reliefs, namely, the recovery of the profits made by the trustees, and the declaration of a trust in favor of the defrauded parties, in the lands acquired by said profits. The bill is inartificial and may have been subject to demurrer upon that ground; the decree following the bill may have heen erroneous. Assuming this to be so, however, the court had jurisdiction of the subject-matter of the suit and of all the parties thereto, and the decree is not subject to collateral attack.

3. The next objection is that the Henseys were not made parties to the suit as trustees. The record does not support this contention. The original bill recites that Thomas G. Hensey and Hooker “are sued in their own right and as trustees; that Melville D. Hensey is sued in his own right and as agent of the trustees aforesaid and your complainant,” etc. Thomas G. Hensey and Hooker were the express trustees of the syndicate for the lands described in the original bill. In the prayers for relief Melville G. Hensey is treated as a trustee in fact, and an accounting is asked for by him also. The amended bill makes no new parties. Melville D. Hensey was a party, whether technically as a trustee or not, and could hardly claim hereafter that he was not bound by the decree in that capacity also. But the point seems to be immaterial. The present bill does not seek to remove the Henseys as trustees of the Dry Meadows syndicate, or to devest them of their naked title as such. Its substantial object was to subject the beneficial interest of Thomas G. Hensey in that land alleged to amount to six tenths thereof, to which he claimed title as an original certificate holder therein. In this respect the decree followed the bill. In so far as Landon and Kimberly, who were not original certificate holders, are concerned, the conveyance under which they claim, while purporting in some of its recitals to be a declaration of the trust in favor of certificate holders, was substantially a conveyance of the said six-tenths interest of Hensey to them. It was this equitable interest of Hensey that was sought to be subjected to the payment of the money decreed against him. It is not perceived how the effect of the decree is impaired by failure to ask relief as to the naked legal title of Hensey. If Landon and-Kimberly hold that legal title under the conveyance, they hold it subject to the decree establishing the lien upon the equitable interest, under proceedings begun before the conveyance was made. The case relied on by the appellees as holding that, to create a lis pendens, the holder of the legal title must be a party, is not in point. Miller v. Sherry, 2 Wall. , 17 L. ed. 827. In that case a general creditor’s bill brought on a judgment rendered after the fraudulent conveyance by the debtor had been made neither made the fraudulent vendee a party nor described the land conveyed to him. It was held not to create a lis pendens so as to bind a purchaser of the land, under a decree in another creditor’s suit attacking the conveyance as a fraud and making the purchaser a party.

4. Several objections made to the effect claimed for the pending litigation are founded on the pleadings therein. It is well settled that a bill to create a lis pendens must be so certain in its description of the subject-matter that anyone reading it can learn what property is involved in the litigation. Miller v. Sherry, 2 Wall. 237-250, 17 L. ed. 827-830. ■ But perfect certainty is not essential. That is certain enough which may be rendered absolutely, certain by reasonable inquiry; and that which is sufficient to put one upon inquiry is all the notice that can be required. Green v. Slayter, 4 Johns. Ch. 38-46; Boyd v. Emmons, 103 Ky. 393-403, 45 S. W. 364; Bennett, Lis Pendens, pp. 155, 156. The description in the bill; though technically defective in a single'respect, was probably sufficient to point out to the appellees, with the requisite certainty, had they read it, the particular property and the remedy sought against it. Whether so or not, it was sufficient to put them upon an inquiry which, if made with the slightest diligence, would inevitably have led to certain identification. The omission and mistake referred to occurred in the description of the metes and bounds, but adjoining lands and a public highway, presumably known to persons interested in the land, were expressly called for as indicating boundaries. Moreover, the exact quantity of the land was given, and it was described by the name “Dry Meadows,” by which it was known and called. It is so recited in the conveyance under which the appellees claim. Again, it was described as the same land conveyed to Hensey and Hensey trustees, the date of the said deed, and time and place of its record, being recited. It is true that a copy of that deed not having been made on exhibit to the bill, it cannot be regarded as a part of the pleading and as such binding the appellees. But the reference t-o it is a material circumstance to be considered in connection w-ith the others in determining whether the appellees would have been put upon inquiry had they actually read the pleadings.

5. Another objection is that the special prayer for the sale of this land, in the amendment of August 20, 1903, refers to the same as described in paragraph 12 of the bill. This is evidently a mere clerical error. There is but one paragraph in the amended bill, and that is numbered 12%, and paragraph 12 of the original bill applied to a separate and distinct matter relating to the misappropriation of trust funds, and described no lands. We think that no intelligent person would have been misled by this clerical error. What has been said applies also to the further objection that there was no special prayer for the sale of this land. However, had there been no special prayer at all, the general prayer for relief would furnish a sufficient foundation for the decree. Belief will always be granted under the general prayer, where it is agreeable with the case plainly set out in the bill. Tayloe v. Merchants’ F. Ins. Co. 9 How. 390-405, 13 L. ed. 187-193; Texas v. Hardenberg (Texas v. White), 10 Wall. 68-86, 19 L. ed. 839-841; Jones v. Van Doren, 130 U. S. 684-692, 32 L. ed. 1077-1080, 9 Sup. Ct. Rep. 685; Tyler v. Savage, 143 U. S. 79-98, 36 L. ed. 82-90, 12 Sup. Ct. Rep. 340.

6. The evidence .tends to show that three of the Hensey certificates of ownership in the Dry Meadow tract were pledged to Susan Y. Kimberly to secure the sum' of $2,500 due by Hensey to her; and there is no evidence to impeach the fairness of the transaction on her part. Thomas G. Hensey had been acting as her agent for the investment of money. She appears to have had implicit confidence in his integrity. At his request, on November 4, 1903, she lent him $2,500, which he had collected for her on a loan, for which he gave his note and pledged to her the three certificates aforesaid. As this transaction occurred after the amendment bringing the Dry Meadows land into the litigation had been regularly made, Mrs. Kimberly is .bound by the result of that litigation, notwithstanding her good faith.

7. The testimony relating to the acquisition of Landon’s interest in the three other Hensey certificates is not so satisfactory in respect either of the date of the commencement of that interest or the genuineness of his title. He had been intimately associated with Hensey for years in the matter of loans and investments. In his answer he says that, “long prior to August 24, 1903,” he purchased of Hensey one share in the said syndicate, paying therefor, in good faith, the sum of $1,200, and that “long prior” to said date also he lent Hensey $1,600, in good faith, on two shares in the same. In his testimony given April 11, 1904, in cause No. 24,084, he said that he was interested in the Norwood syndicate, but not other. He had a settlement with. Hensey in October, 1901, receiving a note of one Dodge for the balance $5,250. No mention was then made of the purchase of the first certificate, or loan on the other two. Hensey, who testified at the same time in said cause, stated that the original shareholders in the Dry Meadows land were Soule, Stevens, Holmes, Dyer, and himself. He also testified to the settlement note given to Landon, and made no statement of any transaction with him regarding the Dry Meadows certificate. Landon was in bad health at the time the testimony in this case -was taken, and, though subpoenaed by complainants, did not appear. The testimony is in conflict as regards his physical and mental condition at the time, but he was able to be out, and the officer who served process on him, and a notary also, observed no mental weakness. It seems that some time before he haad conveyed all his property to his brother and cousin in consideration of a promise to pay him $75 per month during life. The cousin’s husband produced, as found in Landon’s papers, a certificate signed by the Henseys and'Landon as. of date August 19, 1901, reciting that Landon had contributed one tenth of the sum expended for the purchase of the Dry Meadows land, and declaring a trust in his favor for such interest. This had indorsed on the back in pencil the name of Landon, “Broad Branch,” and “paid $1,-200.” Certificate No. 6 was also produced. It purports to bear date September 5, 1901, as issued to Hensey, and is indorsed as follows, above his signature: “For value received, I hereby transfer.” A note for $1,600, bearing date September 5, 1901, and executed by Hensey, was also produced. This note recites the deposit of certificate No. 6 for two shares, as collateral security. On the back of this note, in the writing of Hensey, are indorsements of interest paid September 5,1903,1904,1905.

. The answer of Landon claims only to hold two of the certificates as collateral security, but the conveyance of May 21, 1906, that is attacked herein, recognizes him as the absolute owner of three shares, and conveys the land to him as such. It is difficult to understand why Landon’s answer should not have been more specific in regard to the dates of these transactions. Under the conditions of the case he was charged with the burden of showing that he acquired an interest in the certificates for a valuable consideration and in good faith before the land represented by them was brought into the litigation. This he has not done to oiir satisfaction.

8. As regards the appellees Helen M. Soule, Annie Holmes, Charles W. Stevens, and Leonard H. Dyer, the conditions are entirely different. These parties appear to have been original contributors to the Dry Meadows syndicate, and holders of certificates therein. They are not shown to have had any connection with the frauds alleged against Hensey in the original and amended bills in No. 24,084. As to them we need not pause to inquire whether, under the instrument creating the trust in the Henseys, they were empowered to make such a conveyance as that of May 19, 1906. Assuming that they were not, the conveyance cannot prejudice the complainants if allowed to stand as to these persons.

The substantial relations of the parties have not been changed. A court of equity is not called upon to do a vain thing. This conveyance, in so far as it undertakes to pass the title to Hensey’s shares to Landon and Kimberly, may be canceled without affecting the interests of the other parties.

In our opinion the bill should have been sustained, as to Hensey, Landon, and Kimberly, and a decree passed canceling the said conveyance as to Landon and Kimberly, and directing a sale of the Hensey six-tenths interest in the Dry Meadows land in satisfaction of the decree of May 24, 1906, in cause No. 24,084; and dismissing the bill as to Soule, Holmes, Stevens, and Dyer.

The decree will be reversed, with costs to be paid out of the proceeds of the sale hereafter to be made, and the cause remanded, with direction to enter a decree in conformity with this opinion. Reversed.

A motion by the appellees, Landon and Kimberly, for a severance and for the allowance of an appeal to the Supreme Court of the United States, was granted February 11, 1910.