Mackall v. Casilear, 137 U.S. 556 (1890)

Brooke Macka ll , Jr ., filed his bill of complaint in the Supreme Court of the District of Columbia on the first day of June, 1885, against George W. Casilear and wife; Leonard Mackall and wife; Don Barton Mackall, Benjamin Mackall; Louise Owens and husband ; Catherine Christy and husband ; Edmund Brand and Mary E. Keller; alleging that Leonard, Don Barton and Benjamin were his brothers, and Louise p. 557Owens and Catherine Christy his sisters, all being the sole surviving children of Brooke Mackall, Sr., and Martha Mackall, his wife; and that Edmund Brand and Mary E. Keller were the sole surviving children of Louis Brand.

The bill further averred that on or about March 13, 1867, complainant conveyed to one Morsell (a copy of which deed was attached) lot 15, square 41, and lot 5, square 43, in trust to secure complainant’s promissory note for $1000, payable one year after date, to the order of his father, which note was indorsed over to Mills and wife, and was paid in full and so admitted to be paid by a deed conveying the same property, dated July 14, 1868, by Morsell, Mills and wife, and complainant to Louis Brand to secure in trust complainant’s promissory note for $2000, payable to his father’s order one year after date (a copy of which instrument was attached); that the $2000 note was an accommodation note and made to raise money for the common benefit of both parties, but no money was raised, and there was no consideration for the note; that about five years thereafter, there occurring a variance between father and son, the father, in pursuance of a similar scheme as that charged as to the other parcels, procured Brand to advertise the property for sale, and though publication for three weeks was required, the advertisement was published only four times successively, and for three days; that this was without the consent or knowledge of complainant, and without written request as prescribed, and the place of sale was at the private rooms of the auctioneer; that there were no bidders at the sale, but at the request of Brooke Mackall, Sr., lot 15, square 41, and sublots 2, 3, 4 and 5, lot 5, square 43, were struck off to Hill at the nominal sum of $2000, he paying no money, and Brooke Mackall, Sr., being the real purchaser, and p. 559no payment or account was made to complainant, whereupon a conveyance in the handwriting of Brooke Mackall, Sr., was executed by said Louis Brand, trustee, to Hill, a copy of which was annexed, showing that the deed was recorded July 28, 1873; and complainant charged that the sale and deed were void. Complainant further averred that on the 4th of August, 1873, Hill executed a conveyance (a copy of which was annexed) to John C. McKelden and Edward McB. Timoney, as trustees, to secure a note of $3000 of B. Mackall, Sr., to F. A. Casilear, due in one year from the date thereof; that said trustees and said Casilear had full knowledge of the defects of title herein mentioned, and were not bona fide purchasers or creditors; that in October, 1874, default having been made by B. Mackall, Sr., in payment of the note of $3000, the trustees McKelden and Timoney advertised the property secured in the deed of trust to them for sale, and thereupon the complainant, at the date and place of sale so advertised, and before the sale, read a notice and caused copies thereof to be served upon Timoney and McKelden, and Williams the auctioneer, which notice was attached to the bill, and was to the effect that Timoney, McKelden and Williams had no authority to sell the premises, and that Mackall, Jr., would insist upon all his legal rights to the premises against them and against any purchaser or purchasers thereof, and protested against the sale; that the trustees proceeded to sell, and thereupon Casilear bid in the property at $2722.95, and a deed was given by McKelden and Timoney, as trustees, of sublots 2 and 3 of lot 5, square 43; lot 17, square 76; and two parts of lot 12, square 56; that on the 13th day of January, 1874, Hill as trustee and in his own right, and B. Mackall, Sr., joined in a conveyance to Leonard Mackall, as trustee, of lot 15, in square 41; sublots 2, 3, 4 and 5 of lot 5, square 43; lots 13, 14 and 17 in square 76; and two parts of lot 12, square 56, for the use and benefit of Mackall, Sr., and subject to his absolute control and disposal; that Mackall, Sr., departed this life February 28, 1880, and the brothers and sisters of complainant claim the property so conveyed to Leonard Mackall as trustee, as his heirs and devisees; that Casilear claims title to lot 17, square p. 56076, a.nd two parts of lot 12, square 56, as derived from the deed of Mackall, Sr., to Hill, and to sublots 2 and 3 of lot 15, square 43, as derived from the deed of Brand to Hill; that complainant’s brothers and sisters claim title to lots 13, 14 and 17, square 76, and two parts [of] lot 12, square 56, as derived from the deed of B. Mackall, Sr., to Hill, and lot 15, square 41, and sublots 2, 3, 4 and 5, square 43, as derived from the deed of Louis Brand to Hill, which two deeds of B. Mackall, Sr., are declared to be void, but a cloud upon the property; and that complainant, though not having the legal title, but being equitably entitled thereto, was entitled to have such deeds with all subsequent claims of title decreed null and void. Complainant further stated that some of the reasons for the delay which had occurred in his not before having filed a bill to set aside the said conveyances were as follows :

“ In Feb’y, 1880, he did execute a reconveyance of all his interests in said property, which was entirely satisfactory to p. 561the complainant, though such reconveyance was attacked by his said brothers and sisters, and a decree was made adjudging the same to be void as to the property herein claimed by complainant, from which decree, however, they claim to have taken an appeal to the Supreme Court of the United States, and which appeal they claim is now pending, though such claim is not admitted by complainant. While such litigation was pending, however, there was, as believed by complainant, no propriety in bringing suit to enforce what he claimed to have been sufficiently performed by the execution of said deed of his father’s to him of Feb’y 28th, 1880, and such litigation was pending at a very recent date.”

Counsel for complainant insisted, upon the argument, that the deed from Mackall, Jr. to Mackall, Sr., was void, because Mackall, Sr., took the acknowledgment, and that the sales made by Brand and Mackall, Sr., to Hill were invalid by reason of the omission to advertise for the time prescribed, and the want of publicity in the conduct of the sales, and because p. 564these transactions were merely covers for the purchase by Mackall himself in fraud of complainant’s rights.

As already stated, nineteen years after the conveyance to Mackall, Sr., seventeen after that to Brand, twelve after the deeds to Hill, and five after Mackall’s death, the son charges the father with what his counsel calls “ actual, active and intense fraud; ” and, in explanation of the delay in seeking to be relieved from the consequences of this conduct on his father’s part, says that “soon after the execution of the deeds made in 1874,” (the conveyances by Hill and Mackall, Sr., to Leonard Mackall, and by McKelden and Timoney to Casilear, were in 1874,) his father became reconciled to him, and they lived together and shared the benefit of all property possessed by each in common, and his father constantly assured him that he would rectify all that was wrong in said conveyances to the best of his ability, which assurance was relied upon by complainant and was satisfactory to him; that his father drew up forms of reconveyance to him of such property p. 565or parts thereof, one of which he signed and delivered to complainant; and that “in February, 1880, he did execute a reconveyance of all his interests in said property, which was entirely satisfactory to complainant, though such reconveyance was attacked by his said brothers and sisters, and a decree was made adjudging the same to be void as to the property herein claimed by complainant, from which decree, however, they claim to have taken an appeal to the Supreme Court of the United States, and which appeal they claim is now pending, though such claim is not admitted by complainant. While such litigation was pending, however, there was, as believed by complainant, no propriety in bringing suit to enforce what he claimed to have been sufficiently performed by the execution of said deed of his father’s to him of February 28, 1880, and such litigation was pending at a very recent date.”

But assuming that the matters relied on here are not necessarily inconsistent with that decree, then according to his own contention complainant occupies this position: having accepted p. 566a deed from his father completely condoning the causes of complaint which he alleges he had against him, he now, after his father’s death, seeks to go behind that final and satisfactory compromise, because upon some ground, outside of anything litigated in this suit, his brothers and sisters succeeded in defeating the deed in a controversy between him and them. This we think he cannot do; nor can we admit complainant’s ideas of propriety in bringing this bill, while that was pending, or in declining to litigate these matters in that action, as furnishing any satisfactory explanation of the laches which has characterized his conduct. If that laches could in any respect be held to be excused by reason of his expectations from his father, we cannot allow him to plead, that because those expectations in part failed of realization through some external cause, therefore he is any the less bound, so far as his dead father is concerned, by a delay which would otherwise be fatal.

The time for this son to have attacked his father on the ground of fraud was prior to that father’s death; yet no movement was made to set aside these alleged fraudulent conveyances, until five years after that event transpired. The father died testate, and by his will the property in controversy, subject to the Casilear conveyances, passed to the brothers and sisters of complainant, as the father’s devisees, who were natural objects of the bounty of the testator, and, so far as this record shows, entitled to his consideration. The p. 567allegations of the bill fall far short of discharging the burden, which rested on the complainant, of satisfying the court that his delay had not operated to the prejudice of these parties.

Affirmed. p. 568BALTIMORE AND POTOMAC RAILROAD COMPANY v. FIFTH BAPTIST CHURCH.

“We, C. C. Meador, George M. Kendall, John N. Henderson, Samuel M. Yeatman, James C. Deatley and Samuel S. Taylor, of Washington City in the District of Columbia, do hereby certify that we have been duly elected ‘ Trustees of the Fifth Baptist Church of Washington City, D.C.’ (commonly p. 570called ‘ the Island Baptist Church ’), and that this certificate is made, signed and sealed for the purpose of obtaining corporate rights and privileges- for the said ‘ Fifth Baptist Church,’ a religious society worshipping at present in their church edifice on D Street South, between Four-and-a-half and Sixth Streets in said city of Washington, under the provisions of an act of Congress approved May 5, 1870, entitled ‘An act to provide for the creation of corporations in the District of Columbia by general law.’

4th. Three deeds, respectively dated September 26, 1871, September, 18,1872, and November 10,1874, from the six persons named in the above certificate of incorporation, describing themselves as “trustees of the Fifth Baptist Church of Washington City, D.C.” reciting its incorporation under the general corporation act, and its resolution authorizing them p. 571to execute the deeds, and conveying the church building and land, in trust and by way of mortgage, to secure the payment of various sums of money.

It may be that, as held by the court below in 4 Mackey, 43, at a former stage of one of these cases, the original certificate of incorporation, not stating the date of election or the term of office of the trustees, nor supported by affidavit, as required by statute, was not sufficient of itself to prove the plaintiff’s existence as a corporation, either de jure or de facto; and that the adding of an affidavit to the certificate, and recording it anew, since the commencement of these actions, could not avail the plaintiff. £ But the certificate of incorporation, as originally drawn up, taken in connection with the other evidence now introduced, and especially the record of the former action in which this plaintiff as a corporation recovered judgment against this defendant without any objection being taken to the plaintiff's capacity to sue, is clearly competent and sufficient, as between these parties, to prove that the plaintiff had in good faith attempted to legally organize as a corporation, and had long acted as such, and was at least a corporation de facto, which p. 572is all that is necessary to enable it to maintain an action against any one, other than the State, who has contracted with the corporation, or who has done it a wrong. Bank of United States n . Dandridge, 12 Wheat. 64, 72; Conard v. Atlantic Ins. Co., 1 Pet. 386, 450; Chubb v. Upton, 95 U. S. 665; Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391; Searsburgh Turnpike Co. v. Cutler, 6 Vermont, 315; Cincinnati &c. Railroad v. Danville & Yincennes Railroad, 75 Illinois, 113; Stockton & Linden Co. n . Stockton de Copperopolis Railroad, 45 California, 680.

“In the estimate of damages, the plaintiff is entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, if you find such inconvenience p. 574and discomfort to have been occasioned, thus tending necessarily to destroy the use of the building for the purposes for which it was erected and dedicated. The congregation had the same right to the comfortable enjoyment of its house for church purposes, that a private gentleman has to the comfortable enjoyment of his own house; and it is the discomfort and annoyance in its use for those purposes for the three years covered by this suit which is the primary consideration in allowing damages. There may be no arithmetical rule for the estimate of damages. There is, however, an injury, the extent of which the jury may measure.”

The only other point relied on arises upon the defendant’s request for an instruction to the jury, in the second of the present actions, that if they should be satisfied from the p. 575evidence that the plaintiff was entitled to a verdict, then in estimating damages they might take into consideration the payment by the defendant to the plaintiff of the judgment in the former action, and the judgment against the defendant in the first of the present actions. The court refused so to instruct the jury, except with this qualification : “ But the fact of such previous recoveries against the defendant is not admissible for the purpose of reducing the amount of damages, if any, to which the jury may find the plaintiff is justly entitled in the present action.” The defendant excepted to this instruction, as well as to the refusal to give the instruction requested.