Barribeau v. Brant. 17 H.

United States v. King et al. 7 How. 833, and of United States v. Turner's Heirs, 11 How. 663.

The decree of the district court must, therefore, be reversed, and a mandate issued to the court below to dismiss the petition.

PIERRE BARRIBEAU and EUPHRASIE T. PERRY, Appellants, v. JOSHUA B. BRANT.

17 H. 43.

A question upon the evidence, whether certain deeds were obtained by fraud.

Upon the death of a complainant in equity, only his legal representatives can revive the suit. An assignee cannot appear.

Under the 61st rule of this court, where the representatives of a deceased complainant and appellant did not appear after the lapse of two whole terms succeeding the suggestion of his death, the suit was entered as abated.

THE case is stated in the opinion of the court.

Bradley, for the appellants.

Lawrence, contrà.

[ * 44 ]

TANEY, C. J., delivered the opinion of the court.

*This is an appeal from the decree of the circuit court of the United States for the district of Missouri, sitting as a court of equity.

The case is this: Pierre Barribeau was seised in fee-simple of a lot of ground in the town of St. Louis; and, by deed dated May 8, 1829, conveyed it to Joseph White, in trust for the grantor, during his life, and after his death for his two sons, Adrian and Pierre, and his adopted daughter, Euphrasie, who had grown up in his family.

After the death of the grantor, his sons, Adrian and Pierre, and White, the trustee, joined in a deed to Brant, the appellee, for all the interest of the two sons in the lot. But at the time this deed was made, Pierre had not attained the age of twenty-one years. Subsequently, however, he executed a deed of confirmation, and in that deed professed to convey two undivided third parts of the premises. Euphrasie, the adopted daughter, executed a deed to Amaranth Loiselle, purporting to convey the whole of this lot. And, after wards, she and Amaranth made separate deeds, on the same day, to Samuel Merry, for her third part of the premises; and Merry afterwards conveyed to Brant. If, therefore, the several deeds above mentioned are valid, Brant is entitled to the whole lot.

Adrian died intestate, and without issue. And, after his death,

Barribeau v. Brant. 17 H.

Pierre and Euphrasie filed this bill, charging that all of the deeds made by them respectively, and by Adrian in his lifetime, were obtained by misrepresentation and fraud; that they were illiterate, and did not understand the object and effect of these instruments when they were executed; and that the consideration paid was far below the real value of the property. The bill further charged that Pierre was still under the age of twenty-one when he made the deed of confirmation.

The answer of Brant denies all fraud and misrepresentation, and avers that the parties were perfectly aware of the contents of the several instruments when they were executed, and that the price was a fair one, according to the value of the property at that time; and that Pierre was of full age when he made the deed of confirmation.

Many witnesses were examined by the parties in support of their respective allegations, and, at the final hearing, the bill of the complainants was dismissed by the circuit court. And from this decree the complainants have brought this appeal.

It would be tedious and useless, in this opinion, to go into an examination of the testimony given by the different witnesses. Much of it has very little, if any bearing upon the question in dispute. It is very evident, indeed, that the complainants were illiterate

and weak-minded. But there is abundant proof that they [ 45 ] were perfectly aware of the contents of the several instruments, and of the object and purpose for which they were executed. And, although the prices paid for the different interests were undoubtedly very moderate; yet they were not so inadequate as to authorize the court to declare the deeds void on that ground. The inadequacy must be tested by the value of the property at the time of the sales, and not by its present value. The first deed from the two Barribeaus and White to the respondents, was made September 3, 1833. The deed of confirmation from Pierre, August 7, 1836; and the deeds from Euphrasie, and Amaranth Loiselle to Merry, February 1, 1836. The complainants did not seek to disturb these conveyances, or take any measures to impeach them, until March 20, 1849, when this bill was filed, and when property in St. Louis was greatly enhanced in value, as compared with its value in 1833 and 1836. It is, perhaps, the great increase in the value of this property between the time of the several sales and the time of filing this bill, that has led to this controversy. But upon the evidence in the record, we think the charge of fraud and misrepresentation is not sustained; and that there is sufficient proof, that Pierre was of full age at the time the deed of confirmation was executed.

Barribeau v. Bránt. 17 H.

It has been contended, on the part of the complainants, that under the deed from Pierre Barribeau, the elder, to White, the three cestu que trusts took a joint interest, and that, upon the death of one or more of them without lawful issue, the share of the deceased was limited over to the survivors or survivor. And as Adrian died before the filing of the bill, and Pierre has died pending this appeal, and both of them without lawful issue, Euphrasie, the surviving complainant, claims the entire lot, by virtue of the limitations over in the deed of trust. And if this be the construction of the deed, she is entitled to a decree for the shares of the two sons, although she has sold and conveyed her own one third, as above stated.

But this construction cannot be maintained. The trust deed, it is true, is unskilfully drawn. But it is very clear, upon the whole instrument, that an equitable interest, as tenants in common in feesimple, was secured to them by the deed; and that their conveyances, together with that of the trustee, passed the whole interest, legal and equitable, to the respective purchasers.

It appears that shortly after this bill was filed, Pierre, the complainant, conveyed all his interest in the property to Benjamin A. Massey, in trust for a natural daughter, born of an Indian mother, and living in the Indian country; and a motion has been made to make him a party in this court, as the representative of Pierre.

[ * 46 ]

*The decision of this motion, either way, could have no influence upon the rights of the parties. For as the court is of opinion that the deed of confirmation made by Pierre was valid, and conveyed his one third to the appellee, the decree in the court below dismissing the bill, must be affirmed, even if Massey was per

mitted to appear.

But in this stage of the proceedings, he cannot be permitted to become a party, as the representative of Pierre. The bill was filed by Pierre, and this appeal taken by him. He has died pending this appeal; and the only persons who, upon principles of law and the rules of this court, can be permitted to appear in his stead, are those who, upon his death, succeed to the interest he then had, and upon whom the estate then devolves.

But the interest of Massey was acquired in the lifetime of Pierre, and no new interest accrued to him upon Pierre's death; and if he desired to become a party, in order to maintain his rights as trustee, he should have applied for leave to become a complainant while the case was pending in the circuit court. The estate has not devolved upon him by the death of Pierre, and he has the same interest now which he had upon the execution of the deed; and has no greater right to become a party here, after Pierre's death, than he had before.

Wickliffe v. Owings. 17 H.

In the opinion of the court, therefore, as Pierre's death was sug gested at December term, 1851, and his legal representatives have not appeared by the tenth day of this term, the bill must, as to him, be entered, abated under the 61st rule of this court. And, as regards Euphrasie, the other complainant, it must be dismissed with costs.

ROBERT WICKLIFFE, Appellant, v. THOMAS D. OWINGS.

17 H. 47.

Bill to establish the possession and quiet the title of the complainant to lands in Kentucky, sustained.

The statute in Kentucky upon the subject of this remedy is not without influence upon the question of the propriety of this exertion of an established chancery power.

If the record contain proper averments of citizenship to give the circuit court jurisdiction, they can be traversed only by a plea to the jurisdiction.

THE case is stated in the opinion of the court.

Preston, (with whom was Charles A. Wickliffe,) for the appellant.

No counsel, contrà.

CAMPBELL, J., delivered the opinion of the court.

The plaintiff filed his bill in the circuit court of the United *States for Kentucky, against Thomas Deye Owings, by [* 48 ] which he assumes to be the owner, and in the lawful possession, of a number of tracts of land, lying in different counties of that State, which had at one time been the property of the defendant, but of which he had been legally devested, and notwithstanding claims, by the instigation and advice of other persons, to the prejudice and vexation of the plaintiff. The object of the bill is to establish the title and to quiet the possession of the plaintiff.

The facts disclosed by the record are: that, in the years 1817 and 1818, the defendant was possessed of a very large estate in lands, but was indebted beyond his means of payment. During those years, two of his creditors, Luke Tiernan and Samuel Smith, respectively recovered, in the circuit court of the United States for Kentucky, judgments for the aggregate sum of twenty-five thousand dollars and upwards; the one by default, the other by confession. Immediately thereafter, the defendant adopted a system of legal proceedings, to postpone the day of payment of those judgments, which termi nated in the augmentation of the debt, and the introduction of other persons, in the character of sureties, to share in the entanglements of the debtor. By the interposition of injunctions, replevin, and stay

Wickliffe v. Owings. 17 H.

bonds, and for the want of bidders at execution sales, the defendant withstood his creditors until 1824.

In November, 1824, Tiernan purchased a number of the tracts in dispute, and others in 1827 and 1834, under the executions, and for which he has the deeds of the marshal.

In 1820, Samuel Smith assigned his judgment to Ellicott and Meredith, in trust for creditors, and these persons, between 1826 and 1829, purchased nearly, if not all, of the tracts for which Tiernan had acquired a title.

In 1824, before any of these sales, Owings had conveyed the lands to the sureties whom he had involved upon the bonds before referred to in these and other cases, for their indemnity, and delivered to them the possession of the property, and ceased to have any control of it. He gave to them authority to "sell, dispose of, and convey any of the estate, whenever it might be necessary for their protection," and in such cases as a majority of them might consider as most beneficial. to all concerned, in case their principal was in default. Tiernan, and Meredith and Ellicott, in 1827, commenced suits for various parcels of the lands they had purchased at the marshal's sales, in the circuit court of the United States, and recovered judgments. The questions involved in the issues, appear to be the regularity of the sales by which they acquired title. In 1829, after a portion of these trials, the

sureties and assignees of Owings executed a deed to Elli[ * 49 ] cott and Meredith, for the tracts of land described in * the bill, upon "a general compromise" with them, by which the debt to Samuel Smith, with the various bonds taken to secure it, were surrendered to be cancelled. The record shows that Owings was advised of this settlement, and expressed approbation of it. Some time after this settlement with the assignees of Owings, an arrangement was concluded between Tiernan, Ellicott, and Meredith, and The Bank of the United States, by which the bank agreed to reimburse Tiernan for his debt and advances, and to cancel an indebtedness of Smith, and to take the title to the property they had acquired by these proceedings. This arrangement was carried into effect by a suit in the circuit court of the United States, in which a sale was ordered, at which, in 1834 and 1835, the bank became the purchaser.

In 1836, the bank sold its title to the plaintiff in this suit. In order to free the title from any imperfections, a bill was filed in the circuit court of Bath county, Kentucky; and in that suit, the titles of Tiernan, Ellicott, and Meredith, and the bank, were, in 1848, conveyed to him.

In the course of these proceedings, a number of confirmatory deeds