GUILD tt. PHILLIPS.
461
is a common adversary, and complainants have a common source of title. While they respectively claim to own separate and specific lots, divided out of the large tract described in the complaint, (and so far their interests may be separate and distinct,) yet the controversy is in regard to a common title, in which the several complainants are collectively interested, and in which they have a community of interest. The relief asked is to establish the Gilman title and also the right of each individual complainant to the specific tract claimed. The suit belongs to that class where a person claims a right against a great number of individuals claiming under the same general right. Equity then interferes by obliging the party to abide by the event of a single issue. Or where a number of persons claim distinct rights in the same subject, and there must necessarily be a multiplicity of suits, a bill is filed to put an end to the controversy by a single suit; or, as better expressed by Mr. Pomeroy, (see 1 Pom.Eq. Jur. § 245 and "Where anum ber of persons have separate and individual claims and rights of action against the same party, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole: mlltter might be settled in a single suit brought hyall these pPfson::\unitiJlg. as co-plaintiffs, or one of the persons suing in behalf of the others, eyen, by one person suing for himself alone." ' , ' "', .,', The complainants here hlwe anidentityof the value of the matter in measured by the value (:If: all the land represented and claimed by the complainants is denied, and not by the value of the separate lots of each; Th.e amount of all the lots represented by the Complainants is suffici,ent ,to: give the right of relpoval, and the motion to denied. Iti/J sq Qrdered.
GUILD
v.
PHIl,UPS
eta!.
(Oircuit Oourt, N. D. Gllorg1.a. .Octobell,1888.,
1.
JUDGMENT-BILL TO SET ASIDE-FRAUD.,
Where a bill in eqUity alleges that complainant's consent to a compromise dE\cree' in former litigation between same parties, was obta,ined by a fraudulent withholding by defendants of important and material facts. well known to them, and unknown to complainants, which facts would pr6bably have controlled the case in com" plainant's favor, the facts being here fully stated, and prays a decree setting aside the former decree, and demurrer is filed, held, demurrer will be overruled.
'
,
2.
SAME""'-EvIDENCE OF FRAI:D.
G.,conveyed land to his wife and children'. Subsequently suit was G. on a promissory note by his sister, Mrs. P. JudgOlent was obtained and exooj1tion issued on the judgment levied on land cOnveyed to wife and children. They filed bill alleging collusion in obtaining between G. and Mrs. P., and,tUa!;:' there, was no real indebtedness on note, WhiCh was the foundation of suit., G"llnd Mrs. P. filed sworn answers to bill, claiming bona fide indebtedness. ·There wail compromise decree, making part of land subject to ,Mrs. P;'s exeoution. Subs&' quently, during his last sickness, and shortly before his death, G.informedMrs.(,}., that "he'and his sister had wronged her; that the papers they fixed ujlwere fraud." After his death' she found in his papers a release from Mrs. P. '\0 G: ,frbta! alLliability '1n the note. Other arll 'and-al1 taklln tOgether shoW' collusu;;fi and fraud between Mrs. P. and G. ",
a;
462
FEDERAL REPORTlilB J
vol. 44.
,;1n ltquity. ' ," , Cfomga'rl, for complainant. Broyles anel BeU, for J,'espondents. is abill,filed to set aside a compromise decree heretofore taken in this court. The case in which the decree, now atrendered grel\( out of this state of facts: Mrs. L. C. Guild wjfe of L. A. Guild. L. A. Guild purchased a tract of land in De KalbcO,unty, Ga., taking a bond fortitle in his own name. When purchase,money was paid, ,a deed to the land was made to Mrs. L. C. Gui,ld·.· Subsequently it is that the property was conveyed by deed from Guild to L. A l 9uild. This conveyance is said to have heen section 1785,Gode Ga., no order of court having been taken void the conveyance from wife to husband. Subsequently, however, an instrument was exeeuted by Mrs. Guild, with the approval of the court, as by the statute, by which she created in thelan,4R life-estate for herself and, her husband, L. A. Guild, with remainderto, their childrelljlfive in number. It further appears that differences had arisen betweenihusbllndand wife, and that in the year 1884 tht>y wereUving apart. Ij. A. Guild had a sister, Mrs. E. L. Phillips, a resident of the state Island. In 1884 Mrs. Phillips brought suit in ,this court,and obtained a judgment against her brother on a prOlnissory,note for 81,153.74. EXtlcution issued on this judgll1ent, whieh''W8s levied on the tmctOflatid named; the c6ntentioll of the phiintiff!t\'r5tOher right to'stiUjecttheland having been, as I understand it, thatthi:e.Jk'tid wasorigil1idlybbughtby L;A. Guild, the husband, and paid for bylhimlrlltld; that subsequent Mtiveytltlt->eS or changes in title were, void as against Mrs. Phillips, the same having been without considerthe tilne ofthe original purchase. Aner ation, and she being a the levy of the execution, Mrs. Guild filed her bill in this court for herself and as next lriend for her children, seeking to enjoin the sale of this land under said executi(fJil"upon varibus grounds, among others, that there was no real illCJebtedness between L. A. Guild and his sister, and that the claim mere pretense, for the purpose of selling the land, and enabling said L. A. Guild, by ,sale of sallie collusively, tlu()pgh get title aud possession away froin his wile and childrPll.,;:BHbwasans,wered by Mrs. ,Phillips arid L. A. Guild, their to, whi'ch it was claimed that the debt answer was abonaftdeexistingdebt I and that "the all1ountclaimecl, was justly A. Guild to'Mrs. Phillips. While the, bill was pending, due by sard al)d a coutroversy arose between Guild lJnd his )vife as It had Q!!el1 agreed when they to the sepllratell ,ttiat the husband: should keep two of the children and. the wife three;, it ·they both shoPld, keep the 'children by each could be seen by in De Ralb couniy, so ,that ,t,he ehildr.en, desired. I Mlii. Gl1ild;Jtiher belief that her husband in'in his charge to hissister"s, Mrs.' Philtended lips!., in QQrpt£8for their,pOSf.les-
GUILD tl.PHILLtl>S.
463
sion. Before this writ was had, and while in the court-house with a view to a hearing, certain propositions of compromise were made, and negotiations ensued which resulted in giving the possession of the dren to Mrs. Guild, and in a consent decree in the case in this court in relation to the land. The consent decree provided for a division of 'the land by commissioners, to be selected by agreement. One-half should be the property of Mrs. Guild, and one-half should be subject to the execution. This decree was carried into effect, and division was made in accordance therewith. The present hill proceeds to state that subsequently, something over two years thereafter, L. A. Guild became sick. During his sickness he was taken by Mrs. Guild to her home, and there nursed by her until he died. She says in her bill that before he died he said to her, in speaking of the sale of said land, that "he and his sister had wronged her; that the papers they fixed up weres: fraud." After the death of L. A. Guild she says that in looking over his papers she found in his trunk an instrument wrHtenby' L. A. Guild, and signed by his sister, a copy ot which is as follows: "GREENVILLE, R. I., July 19, IB84. "Whereas my brother, LewisA. Guild, did,on the 17tb of August. A. D. 1875, .and give to me, in the city of Atlanta, state of Georgia. hiR prom. issory notefol valuable consideration. for the sum of $1,153.74 dollars, now, for valuable.collsiderationand the love I lJear my said brother,' and dWers good 1 do hereby give, releasl', andf,orl'ver discharge the said Lewis A. Guild from all debt, liability, and injury iu consequence of said note. [Sjgned] "E. L. She says this writing was wholly unknown to her uiltilshediscovered it after her husband's death, during the present year, and shortly' before the ,present bill was filed. She now asks that the compromise decree alluded to be set aside upon the ground of the concealment frotnhet by her husband and Mrs. Phillips of the existence of this paper, and their false representations under oath of the E'txistence of a bonafide indebtednesg by the former to the latter; which she says is negatived by the discovery of this paper; and also upon the ground of coercion and undue influence in the effort to remove her children to the state of Rhode Islimd. To this billa demurrer has been filed, the real grounds of demurrer insisted upon being. first, that, 'as to coercion and undue influence claimed to have been used to bring about the compromise decree, the bill is filed too late. There is much force in this objection, and, if the ground stood alone, it would probably control the case adversely to the complainant. She knew of any coercion brought to bear on her as well in November, 1885, when the settlement was made and decree taken, as she did itlJune, 1888,abollttwo and a half years thereafter, when she filed this bill. It seems that a longer period had elapsed than should be allowed'her to set up this ground of attack on the decree, especially after the death of L. A. Guifd had intervened. As to the other ground of atta{lkrtPonthe decree, it! is said by the defendant that the question of the lJOmi ,ftde8of the indebtedness of L. A. Guild to Mrs. Phillips was made'ifitbe 'furmer litigation; that the bill then filed by Mrs. Guild asserted that;'there-was
464
FEDERAL REPORTER,
no real indebtedness, anli that the answers denied this, and that the question was settled with the settlement and decision in that case. They also. say that the mere withholding of facts in their knowledge by the defendants will not justify reopening the casc; that they were not compelled to disclose the existence of this paper. I cannot agree with them in this. position. The existence of this release or discharge was a prominent, material, and; if complainant's averments in this case be true, a controlling physical fact, known to them and unknown to complainant. ,Good faith required them to disclose it. Moreover, it was not a mere concealment of a fact, (if the allegations in thifl bill are true, but it ,was a misstatement, willfully, and falsely made, and that under oath. This.releasebeltrs date July, 1884, and suit on the note was brought in August, 1884, A court of equity will not countenance such concealment and. gross misrepresentation as is here shown, taking the allegations to be true, as I on this demurrer. The demurrer must he overruled. .ON FINAL, HEARING·
. (October Term, 1890.)
There has been a final pea ring iJ;l this case, and I have held it up for oonsideration until the present term. It must be taken as an estabJished fact, notwithstanding Mrs. Phillips' denial, that she executed the release to Dr. Guild, alluded to and copied in the foregoing opinion. The fact of the execution of this release, and of its existence, was concealed by both Mrs. Phillips and :Or. Guild in their answers filed in the former suit in equity in this court. Not only was the existence of this release concealed, but the statement made by both under oath in their answers was that there was bona fide existing indebtedness on the note alluded to by Dr. Guilq to Mrs. Phillips. It was, of course, an important and material issue in the former litigation whether or not there was feal existing indebtedne8S from Dr. Guild to Mrs. Phillips, or whether, as contended there by Mrs. Guild, there was no real indebtedness, and the judgment the result of collusion between Mrs. Phillips and Dr. Guild. Now, as has been before stated, the existence of that release was an exceedingly importaut fact on that issue. This was withheld, and, in effect, the (l)'istenco of any !luch instrument denied. This, of itself, might Illa,l1.e ,a case for aside the former decree, which was taken by consent. But this is not the only evidence here which bears strongly against t.!;l.e':good faith and proper conduct of the parties in the other case, and in this ,whole transaction. There are several statements and admissions Guild· in reference to the purpose of the sQit and judgment on the promissory note offered in evidence. These statements fmd admissions ar,e objected ,to on the ground that, even ira prima/acie case of conspiracy is made out, such as to justify the admission!! of Dr. Guild against Phillipi\, bis co-conspirator, yet defendant says that these admissions are not contemporaneous witb the which here, nor a part of that transaction, sq as to, be in
,GUILD V. PHILLIPS.
465
evidence under the law on that subject. It may be proper to add here that Mrs. Phillips' execution was levied on that part of the land set apart to Dr. Guild by the consent decree, and at the marshal's sale of the same in January, 1886, the land was bid off for Mrs. Phillips, and that shortly thereafter, under a power of attorney executed by Mrs. Phillips, Dr. Guild, as her attorney in fact, went into possession and control of the land. Several statements and admissions by Dr. Guild are offered, made after the execution of this power of attorney, and while he was in possession of the land in controversy. The objection to this testimony the objection just alludeq, to, that it was after the conis twofold: spiracy, if any existed. was consummated; second, that they go to disparage and prejudice the title of his principal, and in fact his landlord. I have not considered any of the evidence fairly subject to this objection, there being at least grave doubt of its admissibility. It may be proper to state further that in July, in 1884, Dr. Guild visited his sister in Rhode Island, and certain statements made by him before, and while on his way to make this visit, are offered in evidehce. These statEments are objected to upon the ground that they were made before Mrs. Phillips had in any way, so far as the evidence showed, indicated her willingness to become a party to the conspiracy. I have not considered these'statements. There is other evidence, however, in favor of complainant, which is admissible here. George K. Pettis testified for complainant in this case. His evidence is as follows: "I reside in West End, Ga. I did reside on Dr. Guild's plantation in De Kalb county, Gil.. in the year 1885. Nursery business. Dr. L. A. Guild was my partner. I formed the partnership the 1st of February, 1885. for a term of fi ve years, for the plll'pose of carrying on a general nursery and fruit business. We .had some trouble about the title. The United States marshal made a levy OD the farm tllat 1 was living on, and 1 was somewhat vexed about it. and went to Dr. Guild and asked him what it meant. aud stated to 'him that he told me before we traded that he owned the property, and that it seemed we were to be put out, and Dr. Guild took me into his office and told me that 1 need not be alarmed; that the suit was only a form; that it was only an arrangement bet ween he and his sister to get the land. He said that he had been east the slimmer before. and fixed it with his sister. He me specially not to say anything about what he said to me. He stated that he had arranged with his sister to bring the suit in the United States court against him in order to get the property. I asked him if that was not a prison off",nse, and he replied that no one would ever find it out. He mentioned the subject to me three or foul' times. He stated that as soon ashe got possession of the pl'Operty he would go on and do a big nursery business. The scheme was with Mrs. Phillips. and was as I have already stated." These statements, made by Dr. Guild, as testified to by Pettis, it will be perceived, were made at the time the execution was levied on the land, and before the sale. These statements are contemporaneous with the transaction which is attacked. They were made to a person interested in the matter, and were explanatory of what the transaction really was. The levy of the execution and the sale of the land was certainly a part the unlawful scheme, and without which the whole proceeding v.44F.no.7-30
466
FEDEltAL REPORTER,
voL 44.
wouldi balte been ineffectual. If aprirna facie case' Of conspiracy had been' established by proof of the execution of the release, and its conceltlment in'the former proceeding, then this evidence seems clearly admissible. There is no attempt to discredit Pettis as a witness, and his testimdIly is therefore strongly corroborative of the other evidence in the case, which has been mentioned. In addition to this the power of attorney given by Mrs. Phillips to Dr. Guild is in evidence. It was given after the land in controversy was conveyed to Mrs. Phillips by the United States marshal,and it not only authorized Dr. Guild to sell the land in but nuthorizedhim, in Mrs. Phillips' name.. To o1fl'r. for sale. bargain, sell, and convey. or lease, or rent, or borrow money andseoure said money, and execute all mortgages or deeds of trust that may necessary to or upon any trtict or parts .of.land that I may now have, or that I may hel'eaft,er acquire to myself. in any town, city. or county in the state of Georgia." . . She alf>o 8uthorized Dr. Guild, 8S her attorney, to fix the price of the lllnd in4is,o\\i'D discretion. It further appears freIDl the testimony that, ,Phillips says in her evi,dence that s.he sued her brother on t1w,no.te the. money, thatfrom the time of the sale ;lOth (If when Dr. Guild died, she made no effort to obtain any moriey from the sale of the seems to have aHowedDt. Guild to use it,tosel.l pllort;Qfjt, and the prl),Ceeds, and this without any pr<r test or complaint whatever from her, but with her entire acquiescence. This whole remarkable"and looks wrong qpon fnce. '. It is unueunl for a sister, fond of a brnther, as Mrs. Phillips unquestionably was of Dr. Guild.; to press him on a debt of this charactel', and as old as this was. It is hard to believe that this suit 'was brought with the intention on the part of Mrs. Phillips to force the payment of this old debt froin her brother. Of course this view of the subject was' a's apparent in the former case, as it is. now, but when the facts and occurrences above alluded to, and which were not then known, some of which have since transpired, are added to the unusual and unreasonable appearance of the tl'ansadion, it makes unquestionably a very strong case, and one that manifEistly requires the interposition of a court of equity. It would be wholly inequitable, in view Qlwhat is nowesas to the withholding by defendant, willfully and knowingly, in, the former suit, of facts material therein and important to complainant there and here, to allow that decree to stand. It cannot be believed that, if Mrs. Guild had been aware of the facts disclosed here, and not then known, she would have consented to that decree. The court is of the opinion, therefore, that complainants are entitled to a decree. . The court has not considered whether this decree should be granted on the terms or with the conditions incorporated therein, requested by counsel for defendant, but will heRr suggestions on the subject, and 81,'gument, if necessary to a proper deternlination of
467
COMER. 11. TABLER et ale (CIrcuit Oourt, E. D. Tenne88ee, So D. November 29, 1890.) 1. ASSIGNMENT POR BENEFIT Oli' CREDITOR8-VALIDITY.
"
A deed of assignJDentWbicb is voidable because the accoJDpauying scbedules are defective is good as W the assignor until attacked by creditors, and a second deed froJD him before the first one has been attacked passes no title, even though the assignee has not taken possession of the property. '
BAME--,>I'REFERENCES.
Under the Tennessee declares that "preferences of creditors In general assignments of all a debtor's property shall be illegal and VOid, » an assignment containing preferences is only voidable.
8. 4.
SAME-RIGHTS OF CREDITORS,
The preferred creditors are entitled to their ratable share of the assigned property, in spite of the illegal preference.
BAME--,>POWER .01" ASSIGNEE.
Where an assignee does not accept the trust, a conveyance by him of the property, contrary to the term' of the assignment, passes no title.
In Equity. F. S. Yager and Young &:- Bogle, for complainant. Robt. P. U'oodard, for defendants. KEY, J. The determination of this case depends upon the em'ct to be p;ivento certain deeds: which have heen given in evidence. D. U. Crudup and J. H.Tabler Were the members of a firm styled" D. G. Crudup & Co." and of another firm styled "Tahler,Orudup & Co." They were also the owners of the capital stock of a corporation known as the "Tabler-Crudup Coal & Coke Company." On the 30th of July, 1887, all these concerns executed a deed to W. E. Baskette and T. H.' , Ewing, as trustees, conveying-"All the property we own, ot :everykind, character. and description,' bnth firm and individual prppetty·. excel,t· that exempt !'tum .execution undtlr the exemption and )lomesteild laws of Tennessee,illduding Oljr personalty. stocks, bonds, choses in llction,.reait)', and interest in realty."
The Tabler-Crud,up Companyconv'eyed to said trustees all of its propertyofevl:\ry<;haracter and description. The"Conveylll)l'e is made for t,liefollllwing uses and tru8ts, andnQne other: that is to the said bargaiuO,l's, 1)'.9. CrudUp &, Co., TaUlp.f, CrUdup & CP., and the Tal,ler-Crudup Coal & Coke Compan,v, aI'" largely inqpbtpd. to secure to their creditors an equal di'3lriblllion of their asst'ts. and to enable all the creditors to be pafd thefllH amount, they. the said bargainor", desire to make /lnd do hereby make to said! trllstt't'S 01' the 8urvh'orof Iht'm.or thA one qualifying as such, all-their propeJttyas a geneml a !ligament for the beneUt of their. 'lreditors, to be equallY$ha\'I'd betwoon thern in pl'oportion to the of their ·. The ptopt'rty tp the TablerCruuup Coal &, Coke Company will be applied to the paYIll:.p,nt of of said l'OUlpany, and the i\ssets and property ofD. G. crudup & Co. ariu.TalJler. of. the cretlitol'sof t1lt'se Crudup & Co. wilf ftrstbea,ipliedto the twoftrmB 8I1dtbeintrivilhm!ind..btetlness of J. H. TahleHmd D. G. CJ'udup, and wbere Tablpr-Crudup Coal&, Coke Co.; ·and, if the . prt)per,ty of .the .,sai4: faUs to pay linel satisfy the sa!d prope,rtY,l>f said Crudup&; {;;o. and