Record and brief — Henry Douglass, Appellant, vs. William W. Corcoran and George, W. Riggs

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TRANSCRIPT OF RECORD.

SUPREME COURT OF THE UNITED STATES.

No. Sea. Aer

HENRY DOUGLASS, APPELLANT,

YS.

WILLIAM W. CORCORAN AND GEORGE W. RIGGS.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT ‘OF OOLA'MBIA.

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FILED DECEMBER 13, 1870.

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TRANSCRIPT OF RECORD.

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=8UPREME COURT OF THE UNITED STATES.

No. $e, LE 7.

HENRY DOUGLASS, APPELLANT,

ey. YS. »

WILLIAM W. CORCORAN AND GEGQRGE W. RIGGS.

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| APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLA’MBIA. P

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y jj FILED DECEMBER 13, 18790.

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Dee, (8) 1

SUPREME COURT OF THE UNITED STATES.

No. 399.

HENRY DOUGLASS, APPELLANT,

VS.

WILLIAM W. CORCORAN AND GEORGE W. RIGGS.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

INDEX.

Original. Print.

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Summons to answer, and return of ..............-- seeee- os 17

Supplemental bill of complaint... .. .. .. 2... 2255 oe ce oe oe ce ee ee ene cee ce ewes 18

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Answer of, and disclaimer of H. H. Mathews, et al.... .... .. .--- 2500 -- woes

Answer of, and disclaimer of W. M. Corcoran, et al....-. ..-20- eccces conned

Answer and pleas of Henry Douglass

Motion to strike from files

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Petition of H. Douglass for leave to file affidavit nunc pro tunc.............

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Complainant’s testimony

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Order setting cause for hearing

Decree appointing trustee to sell

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HENRY DOUGLASS VS. CORCORAN AND RIGGS.

Original bill of complaint.—Filed May 27, 1869.

In the supreme court of the District of Coluinbia.

WILLIAM W. CORCORAN AND GEORGE W. }

Riggs, plaintifis,

U8.

JOHN DOUGLASS, JUNIOR, WILLIAM M.Cor-

coran and Annie D. Corcoran, his wife,

Christopher N. Thorn & Sarah C. Thorn,

his wife, Charles M. Mathews & Emily C.,

his wite, William’ A. Kirk & Martha E.

Kirk, his wife, James W. Corcoran, Lu- {

cinda S. Mathews, Thomas H. Mathews

& Rebecca J. D. Mathews, his wife, Alex-

ander Mathews & Ann E. Mathews, his

wife, Anna E. Mathews, William 8S. Ma-

thews & Mary A. Mathews, his wife, Albert:

E. Mathews, Mary C. Mathews, and Henry

H. Mathews, defendants.

> 1673 eq. Dock. 9.

To the supreme court of the District of Columbia, holding an equity

court for said District :

The plaintiffs complain as follows:

4 1. They are residents of the city of Washington, in the said

District, and were, during the year 1845, and until the year 1848,

bankers in said city, under the name and style of Corcoran and Riggs.

2. The above-named defendant John Douglass, j’r, is a resident of the

said District. The defendants, William M. Corcoran, Williain A. Kirk,

& Martha E., his wife, resident in St. Mary’s County, Maryland; Anne

D. Corcoran, (wife of William M. Corcoran,) resident in Harrisburg,

Pennsylvania; Christopher U. Thorn & Sarah C., his wife, Charles M.

Mathews & Emily C., his wife, & James W. Corcoran, resident in the

District aforesaid, are heirs at Jaw and devisees of Thomas Corcoran,

late of said District, deceased October 26th, 1846. That the defendants,

Lucinda S. Mathews, Anna E. Mathews, William S. Mathews & Mary

A., his wife, Charles M. Mathews and Emily C., his wife, Albert E.

Mathews, Mary C. Mathews, and Henry H. Mathews, all resident in said

District; Thomas H. Mathews, and Rebecca J. D., his wife, Alexander

& Ann E., his wife, resident in Talbot County, Maryland, are

5 - heirs at law and devisees of Henry C., Mathews, late of said Dis-

trict, deceased on the 29th day of April, 1862. |

3. The defendant, John Douglass, junior, by his deed of indenture

duly made June 23, 1845, & recorded in liber W. B. 117, fol. 349, &c.,

of the land records of said District, herewith filed, marked Exhibit “O.

& RK. A.,” & prayed to be taken as a part of this bill, acknowledging

himself to be indebted to said plaintiffs in the sum of $4,000, did grant,

give, bargain, & sell, convey, and confirm to the said Thomas Corcoran,

and his heirs and assigns, “ the following pieces or parcels of ground lying

in the city of Washington, in said District, that is to say, that lot, piece

or parcel of ground situated, lying, and being in the square numbere

two hundred and twenty-three, (223,) in the city of Washington, and

designated by the number five (5) upon the recorded plat of said square,

beginning, for the lines thereof, at the southwest corner of said square,

REc. 399—1

2 HENRY DOUGLASS VS. CORCORAN AND RIGGS.

then running north with the line of Fifteenth street west forty (40)

6 feet; then due east one hundred (100) feet & two (2) inches to the

line of lot numbered four, (4;) then, with the line of said lot

numbered four, (4,) due south forty (40) feet to the north side of North

G street; then, with the line of north G street, due west one hundred

(100) & two (2) inches to the point of beginning—contains four

thousand and six (4,006) square feet & eight (8) inches. Also, part of a

lot, piece, or parcel of ground designated by the number five (5) on a

plat of a subdivision of the original lots in the square numbered two

hundred & twenty-three, (223,) in the said city, as the same subdivision is

recorded in the surveyor’s office in the said city, beginning, for the lines

thereof, forty (40) feet from the southwest corner of the said square, then

running, with the line of Fifteenth street west, due north ten (10) feet;

then due east one hundred (100) feet & two inches, to the line of lot

numbered four, (4;) then, with the line of lot numbered four, (4,) ten

(10,) feet, to the line of lot numbered five, (5; ) then, with the line of lot

numbered five, (5,) one hundred (100) feet two (2) inches, to the place of

beginning, containing one thousand and one (1,001) feet & eight

7 (8) inches,” as a security for said debt, and with power to sell the

same upon default in tae payment, at stated times, of a certain

part of said debt, and upon the request of said plaintiffs, as will appear

from said deed.

4, The defendant, John Douglass, hath failed to pay said instalments

of said debt, and said plaintiffs are entitled to have the said real estate

sold tor the payment of the same.

5. The said Thomas Coreoran hath departed this life, and there sur-

vive him the heirs at law and devisees hereinbefore particularly named

as such.

6. By his will, duly probated November, 17th, 1846, and now of record

in liber of the will books of said District, he devised all his inter-

est in all real estate to the said Henry C. Mathews, upon certain trusts

therein mentioned, as will appear from the same, prayed to be made. and

considered a part of this bill when produced in this cause.

7. The said Henry C. Mathews departed this life, as before mentioned,

leaving to his heirs at law and devisees (the parties hereinbefore

8 particularly named as such) all his estate, real, personal, and

mixed, as will appear from his will duly made & probated, and of

record in will book No. of the will records of said District, and

hereby prayed to be made and considered a part of this bill when pro-

duced in this cause.

8. By reason of the death of the said Thomas Corcoran without hav-

ing executed the provisions of said deed, said plaintiffs are advised that

the same cannot be executed except through the intervention of a trustee

to be appointed by said court, and that relief in the premises can be

only afforded in a court of equity.

The plaintifts therefore pray as follows:

1. That an account be taken of what is due for principal and interest

by reason of said note or notes, and deed.

2. That all and singular the above parties named as defendants, may

be made defendants to this bill, and that they be required to full

9 answer make to all and singular the allegations in this bill, as if

they were each thereof specially interrogated.

3. That due process may issue against all and each of said defendants.

4. That a new trustee may be appointed by the said court to fully

carry out and execute the provisions of said deed.

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EPROM ATE

HENRY DOUGLASS VS. CORCORAN AND RIGGS. 3

5. That the plaintiffs may have such other or further relief in. the

premises as the nature of the case may require.

CHARLES M. MATHEWS,

Counsel for Plaintiffs.

W. W. CORCORAN.

GEO. W. RIGGS.

Sworn to and subscribed before me by W. W. Corcoran and George

W. Riggs, this twenty-sixth day of May, eighteen hundred and sixty-

nine.

Witness my hand and notarial seal the same day.

A. HYDE,

Notary Public in and for Washington County, D. C.

93 Exhibit to bill of complaint, marked Ex. G. R., No. 1.

WASHINGTON CiTy, Feb’y 11th, 1850.

Sixty days after date I promise to pay to John Douglass, sen’r, or

order, one thousand dollars, for value received.

JOHN DOUGLASS, JR.

"cat :) J. Douglas’.

nterest paid to March 15, 1853.

Interest paid to April, 1855. C. & R.

Interest paid to April, 1863, $480.

Interest paid 15 Oct., 1863, $30. C. & R.

Eahibit to bill marked “ C. & R.,” No. 1.”

This indenture, made this twenty-third day of June, in the year of our

Lord one thousand eight hundred and forty-five, between John Doug-

lass, jr., of the first part, and Thomas Corcoran, of the second part, both

of the city of Washington, and District of Columbia, witnesseth:

10 Whereas Messrs. Corcoran & Riggs, of the city of Washington,

have loaned to the said party of the first part the sum of four

thousand dollars, current money, for which sum they hold his promis-

sory note of even date with these presents, payable to John Douglass,

or order, sixty days from date; and whereas they, the said party of the

first part, that they will, every sixty days hereafter, renew his said

note, (as it falls due,) until the whole of it be paid, provided that he will

and shall, regularly and punctually, and without any default,every sixty

days hereafter, pay on account of the principal of said note, and as a

curtailment of the same, a sum not less than one hundred and fifty

dollars; and whereas further, the said party of the first part is desirous

of securing the payment of his said note and every renewal of the same

as above provided :

Now, therefore, this indenture witnesseth that the said party of the

first part, for and in consideration of the premises, and in further

11 consideration of the sum of five dollars to him in hand paid by the

said party of the second part, at and before the ensealing and

delivery of these presents, the receipt whereof is hereby fully acknowl-

edged, hath given, granted, bargained and sold, aliened, enfeoffed, re-

leased, and confirmed, and ‘doth hereby give, grant, bargain, and sell,

alien, enteoff, release, contirm, and convey unto the said party of the

second part, his heirs and assigns, the following pieces or parcels of

ground lying in the city of Washington, D. C., that is to say, “that lot,

a

4 HENRY DOUGLASS VS. CORCORAN AND RIGGS.

piece, or parcel of ground situate, lying, and being in the square number

two hundred and twenty-three, in the city of Washington, and desig-

nated by the number five upon the recorded plat of said square, begin-

ing, for the lines thereof, at the southwest corner of said square, then

running north with the line of Fifteenth street west forty feet; then due

east one hundred feet two inches to the line of lot number 4; then, with

the line of said lot numbered four, due south forty feet to the north side

of North G street; then, with the line of North G street, due west

12 one hundred feet two inches, to the point of beginning, contain-

ing four thousand and six square feet and eight inches. Also, part

of a lot, piece, or parcel of ground designated by the number five, on @

plat of a subdivision of the original lots in the square number two hun-

dred and twenty-three, in the said city, as the same subdivision is re-

corded in the surveyor’s office in said city, beginning, for the lines

thereof, forty feet from the southwest corner of said square, then run-

ning with the line of Fifteenth street west, due north ten feet; then

due east one hundred feet two inches to the line of lot numbered four ;

then, with the line of lot number tour, due south ten feet to the line of

lot number five; then, with the line of lot number five, one hundred feet

two inches, to the place of beginning, containing one thousand and one

feet eight inches:

To have and to hold the said pieces or parcels of ground and premises,

together with all and singular the ways, alleys, rights, privileges, ad-

vantages, improvements, buildings, and appurtenances unto the

13 same or either of the same belonging or in any wise appertaining

unto and to the use of the said party of the second part, his

heirs and assigns:

In trust, nevertheless, for the following uses and purposes, that is to

say, in case the said party of the first part, his executors or adminis-

trators, shall or may fail to pay to the said Corcoran & Riggs, their suc-

cessors or assigns, every sixty days thereafter a sum not less than one

hundred and fifty dollars on account of the principal of his aforesaid

note of four thousand dollars, or on account of any other note that he

or they may give in renewal of his said note, and as a curtailment of

the same; and, further, in case such failure to pay any such curtail-

ment shall continue for the space of thirty days after the said note or

any renewal of the same falls due, then and in such case the said party

of the second part, his heirs or assigns, shall, at the request of the said

Corcoran & Riggs, their successors or assigns, proceed to sell the said

lots of ground and premises, (or such part thereof as he may deem

necessary and sufficient to pay the said note or such part thereof

14 as may remain unpaid and most convenient for the interest of all

parties concerned in said sale,)in such manner, after such notice,

at such time and place, with such postponements of sale, and generally

upon such terms and conditions of sale as the said trustee shall deem

most for the interest of all the parties concerned in such sale, unless

the premises shall be redeemed before such sale, and shall convey to

the purchaser or purchasers by a good and sufticient deed all the right,

title, interest, and estate which the said party of the first part now has

therein, and shall apply the proceeds of said sale, after first deducting

all the usual charges, costs, and expenses attending the same in the first

place to the payment in full of said note of the said party of the first

part, or of any other note that may be given in renewal of the same,

together with all the interest, proper costs and charges that may have

accrued thereon, and in the second place pay over the residue, if any,

of such proceeds to the said party of the first part, his executors,

tt

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HENRY DOUGLASS VS. CORCORAN AND RIGGS. 5

15 administrators, or assigns. And the said party of the first part

for himself and for his heirs doth hereby grant, covenant, and

agree to and with the said party of the second part, his heirs and as-

signs, that he will, so long as any part of his said note or renewals of

the same shall remain unpaid, keep the said premises insured from fire

in some safe company to the amount of four thousand dollars, and will

assign the policy of insurance for the same to the said trustee to be held

by him for the purposes of this trust; and, further, that he and they

will, in case a failure to pay his said note as aforesaid provided, and a

sale of the premises in consequence, deliver up peaceable and quiet pos-

session of the same to the purchaser or purchasers; and, further, that

he and they will, at any and all times hereafter, at the request and cost

of the said Corcoran and Riggs, their successors or assigns, make, exe-

cute, and deliver any other and further instrument of writing which

they or their counsel learned in the law may and shall require or advise

for the better conveyance and more perfect assurance of the premises

of the premises for the purposes hereinbefore recited, and as the

16 same are hereby intended to be conveyed and assured unto the

said party of the second part, his heirs and assigns.

In testimony whereof the said party of the first part hath hereunto

set his hand, affixed his seal, the day and year first herein mentioned.

JOHN DOUGLASS, JR. [SEAL.]

Signed, sealed, and delivered in the presence of—

B. K. MORSELL,

W’m THOMPSON.

DISTRICT OF COLUMBIA,

County of Washington, sect :

We, Benjamin K. Morsell and , justices of the peace

in and for the county of Washington aforesaid, in the District of Co-

lumbia, do hereby certify that John Douglass, jr., a party to a certain

deed bearing date the 23d day of June, 1845, and hereto annexed, per-

sonally appeared before us in our county aforesaid, the said John Doug-

lass, jr., being personally well known to us as the person who executed

the said deed and acknowledged the same to be his act and deed.

Given under our hands & seals this 23d day of June, 1845.

B. K. MORSELL, J. P. [SEAL.

W. THOMPSON, Jd. P. pen

17 Summons to answer.—Issued May 27th, 1869.

In the supreme court of the District of Columbia, May 27th, 1869.

WILLIAM W. ee ET AL., COMPLAINANTS, ) yy 1673. Equity

JOHN DOUGLASS, JR., ET AL., DEFENDANTS. dock. 9.

> President of the United States to John Douglass, j’r, W’m M. Cor-

oran & wife, Christopher H. Thorn & wife, Charles M. Matthews

&\ wife, William A. Kirk & wife, James W. Corcoran, & Lucinda §&.,

Thyomas H. & wife, Alexander & wife, Anna E., William S. & wife,

Al E., Mary C., and Henry C. Matthews, defendants:

You\ are hereby commanded:-to appear in this court at its first special

term, ITing twenty days after service of this subpa@na, and answer

\

\

6 HENRY DOUGLASS VS. CORCORAN AND RIGGS.

the exigency of this bill, under pain of attachment and such other pro-

cess of contempt as the court shall award.

Witness D. K. Cart’er, chief justice.

R. J. MEIGS, Clerk.

MEMORANDUM.—That the defendants are to enter their appear-

18 ance in this suit in the clerk’s office on or before the special term

to which this writ is returnable; otherwise the bill may be taken

for confessed.

Marshals return.

‘ Summoned John Douglass, j’r, May 27th, 69. aie

“* ALEX’R SHARP, Marshal.”

Supplemental bill.—Filed June 11, 1869.

In the supreme court of the District of Columbia, the day of June,

1869.

v8.

JOHN DOUGLASS ET AL.

The supplemental bill of Corcoran & Riggs humbly represents that,

since the filing of the bill in the above-entitled cause, they have been

advised that, by deed from John Douglas, junior, defendant, dated Feb-

ruary 21st, 1856, and recorded in liber J. A. S., No. 111, folios 272, &c., of

the land records of the said district, the record of which deed they pray

may be made a part of this bill, the real estate in the original bill men-

tioned and described, was conveyed to Henry Douglass, of the said Dis-

trict, and expressly subjected to the payment, by said Henry Douglass,

of the deed of trust given by said John Douglas to Thomas Corcoran,

and filed in said cause. Said complainants therefore pray that

19 they have leave to file this supplemental bill, and that Henry

Douglass be made a party defendant to this suit, and that pro-

cess be issued against him, commanding him, &c., and that he full and

due answer make to all and singular the allegations of the bills. original

and supplemental, filed in this cause. And as in duty bound, Xe.

CHARLES M. MATTHEWS,

S’Vr for Comp’ts.

CORCORAN AND RIGGS

Exhibit to supplemental bill.

John Douglass et al. to Henry Douglass.—Recorded 28th February,

1856.

This indenture, made this twenty-first day of February, in the year

of our Lord one thousand eight hundred and fifty-six, between John /

Douglass, jr, and Virginia, his wife, of the first part, and Henry Doug-

sum of ten thousand dollars to the said John Douglass in

20 paid, by the said Henry, at and before the wnsealing and del

Ne ee A Nt APE OT NON ONE EE IN COTE

HENRY DOUGLASS VS. CORCORAN AND RIGGS. 7

cumbrances now existing within, by judgment or deeds of trust or

mortgage, on and against the property and premises hereinafter de-

scribed, so as to fully exonerate the reform, the said John Douglass

have given, granted, bargained, aliened, enfeoffed, released, and

confirmed, and do hereby give, grant, bargain, and sell, alien, enfeo,ff

release, confirm, and convey unto the said party of the second part, the

said Henry and his heirs, the following pieces or parcels of ground ly-

ing in the city of Washington, D. C., that is to say: That lot, piece, or

parcel of ground lying and being in square- numbered two hundred and

twenty-three, in the said city of Washington, and designated by the

number five upon the recorded plat of said square, beginning, for the

lines thereof, at the sonthwest corner of said square; then running

north with line of Fifteenth street west forty feet; then due east one

hundred feet two inches to the line of lot number four ; then, with the

line of said lot number four, due south forty feet to the north side of G

street north; then south, with the line of said G street, due west

21 one hundred feet two inches to the point of beginning, contain-

ing four thousand and six square feet and eight inches. Also,

part of a lot, piece, or parcel of ground designated by the number five

in a plot of the subdivision of the original lots in the said square, num-

bered two hundred and twenty-three, (223,) as the said subdivision is

recorded in the surveyor’s office in said city, beginning, for the lines

thereof, forty feet from the southwest corner of said square; then run-

ning with the line of Fifteenth street west due north ten feet; then due

east one hundred feet two inches to the line of lot number four; then,

with the line of lot number four, due south ten feet to the line of lot

number five; then, with the line of lot number five, one hundred feet

two inches to the place of beginning, containing one thousand and one

feet eight inches: Together with all and singular the ways, alley rights,

privileges, advantages, buildings, improvements, and appurtenances

unto the said pieces or parcels of ground belonging or in any wise ap-

pertaining, and all the right, title, and estate, whether in law or equity

therein, of the said parties of the first part:

To have and to hold the said pieces or parcels of ground and prem-

ises unto and to the use of the said party of the second part, his heirs

and assigns, forever.

And the said John Douglass, for himself and for his heirs, doth

22 hereby covenant and agree to and with the said party of the

second part and his heirs, that he, the said John and his heirs,

the said premises unto him, the said party of the second part and his

heirs, will warrant and forever defend from and against all persons

‘claiming by or through him the said John; (always excepting the en

cumbrances at present, when the same ;) and further, that he will at

any and all times execute and deliver to the said party of the second

and his heirs, at his or their cost, any other and further assurance in

law which he or they, or his or their counsel learned in the law, may

require or advise for the better conveyance of said premises hereby in-

tended be conveyed.

In testimony whereof the said parties of the first part have hereunto

Set: their hands and seals the day and year first herein mentioned.

JOHN DOUGLASS. SEAL.

VIRGINIA DOUGLASS. [SEAL.

Sighed, sealed, and delivered in the presence of—

‘PAUL STEVENS.

JOHN L. SMITH.

5

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8 HENRY DOUGLASS VS. CORCORAN AND RIGGS.

23 DISTRICT OF COLUMBIA, County of Washington :

We, Paul Stevens and John L. Smith, justices of the peace in and

for the county of Washington aforesaid, do hereby certify that John

Douglass and Virginia, his wife, parties to a certain deed bearing date

on the 21st day of February, 1856, and hereto annexed, personally ap-

peared before us, in our county aforesaid, the said John and Virginia

Douglass being well known to us as the persons who executed the said

deed, and severally acknowledged the same to be their and each of

their act and deed. °

And the said Virginia Douglass, being by us examined apart from her

husband and privily, and having the deed aforesaid fully explained to

her, she, the said Virginia Douglass, acknowledged the same to be her

act and deed, and declared that she had willingly signed, sealed, and

delivered the same, and that she wished not to retract it.

Given under our hands and seals this 21st day of February, 1866.

PAUL STEVENS, J. P. [SEAL.]

JOHN L.SMITH,/.P. [SEAL]

24. Summons to answer supplemental bill.

In supreme court of the District of Columbia, June 11th, 1869,

ove Docket 9.

WILLIAM W. CORCORAN ET AL., COMPLAINANT, No. 1673. Equity.

HENRY DOUGLASS, DEFENDANT.

The President of the United States to Henry Douglass, defendant:

You are hereby commanded to appear in this court, at its first special

term, occuring twenty-days after service of this subpaena, and answer

the exigency of the supplemental bill under pain of attachment, and

such other process of contempt as the court shall award.

Witness: D. K. Cartter, chief justice.

R. J. MEIGS, Clerk.

MEMORANDUM.—That the defendant is to enter his appearance in this

suit, in the clerk’s office, on or before the special term to which this writ

returnable ; otherwise the bill may be taken for confessed. °

Marshal's return.

“Summoned, June 12th, 69.

‘“ A, SHARP, Marshal.”

25 Answer and disclaimer of Henry H. Mathews et al.—Filed June,

16, 1869.

CORCORAN AND RIGGS

v8. In equity. No. 1673. Docket No. 9.

DOUGLASS ET AL.

The undersigned, defendants to the bill of complaint in said cause

filed, answering, say that they, and each of them, admit the facts stated

in said bill, and disclaim all interest in the real estate in said ej mehl-

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§ ----—---- ———— »

7

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HENRY DOUGLASS VS. CORCORAN AND RIGGS. 9

tioned as heirs at law & devisees of Henry C. Matthews, deceased, and

consent to such decree as may be proper and be passed by said court.

June 16, 1869.

THOMAS H. MATTHEWS.

Rk. J. D. MATTHEWS.

ALEX. MATTHEWS.

A. E. MATTHEWS.

ANNA E. MATTHEWS.

LUCINDA S. MATTHEWS.

HENRY H. MATTHEWS.

CHARLES M. MATTHEWS.

EMILY C. MATTHEWS. }

ALBERT E. MATTHEWS.

MARY C. MATTHEWS.

MARY A. MATTHEWS.

WILLIAM 8S. MATTHEWS.

26 Answer of W. M. Corcoran & others, heirs of Tho’s Corcoran—

Fild June 16, 1869.

In the supreme court of the District of Columbia.

U8.

CORCORAN AND ee

DOUGLASS ET AL.

The undersigned, heirs at law and devisees of Thomas Corcoran, late

of said district, do, and each of them doth, admit the allegations made

in the bill in said canse filed, consent to such decree as may be passed

by the court, and disclaim all interest in the real estate in said bill

mentioned.

July 16, 1869.

Ww. M. CORCORAN.

ANNIE D. CORCORAN,

WILLIAM A, KIRK.

MARTHA E. KIRK.

C. N. THORN.

SARAH C. THORN.

JAMES W. CORCORAN.

CHARLES M. MATTHEWS.

EMILY C. MATTHEWS.

27 Answer of Henry Douglass.—Fild Aug. 3, 1869.

In the supreme court of the District of Columbia, the 3rd day of August,

1869.

WILLIAM W. Corcoran & GEO. W. RiGGs,

pi'fis,

v8.

JNO. DOUGLASS, HENRY DOUGLASS, ET AL.

, def’ts.

The plea and answer of the said Henry Douglass, defendant, to the

bill ahd supplemental bill of complaint.

This defendant, by protestation, not confessing or acknowledging the

matters and things in and by said bill set forth and alleged to be true

In Equity, No. 1673.

10 HENRY DOUGLASS VS. CORCORAN AND RIGGS.

in such manner and form as the same are thereby and therein set forth

and alleged, for plea to so much and such parts of said bill and supple-

mental bill as prays that an account be taken of what is due for princi-

pal and interest, by reason of the note or notes and deed mentioned in

the said bill and supplemental bill of complaint, or as prays that a new

trustee may be appointed by the said court to carry out and execute

the provisions of the said deed, or as seeks a sale of the said real estate

for the payment of the said debt of the said Jno. Douglass, or as

28 seeks a satisfaction for the same, this defendant pleads thereto,

and for plea saith that the said pretended deed of trust was

executed and delivered, if at all, (and which this defendant does not

admit,) above twelve years before this defendant was served with any

process of this honorable court to answer this bill, or any process

whatever was sued against this defendant to account for the same ; and

that, if the said plaintiffs had any cause of actions against this defendant,

or against the said Jno. Douglass, for or concerning any of thesaid matters,

(which this defendant does not admit,) that such cause of action or suit

did not accrue or arise within twelve years before the said bill was filed,

or this defendant served with process; and that by act of Maryland

of 1715, chap. 23, sec. 6, it was enacted that no bill, bond,

or other specialty whatsoever shall be ’ good and pleadable,

or admitted in evidence against any person or persons—after the

principle debtor and creditor have been dead twelve years, or the

debt or thing in action above twelve years standing; and this

29 defendant pleads the several matters aforesaid in bar to the

plaintitis’ said demand as aforesaid, and prays the judgment of

this honorable court thereon.

And for answer to such parts of the said bill and supplemental bill

as are excepted, this defendant says:

First. That the said debt has been fully paid and satisfied.

Second. That the said real estate was not expressly subjected to the

payment by this defendant of the said deed of trust given by the said

Jno. Douglass.

Third. That he does not know and cannot admit any of the other

matters and things set forth in said bill.

HENRY DOUGLASS.

M. THOMPSON,

Solr for said Henry Douglass.

30 «Motion to strike from files oo of Henry Douglass.—Filed Sept. 7,

1869.

In the supreme court of the District of Columbia, the 7th day of

September, 1869.

CoRCORAN & RIGGS )

vs. In equity, 1673.

DOUGLASS ET AL.

The plaintiffs, by their solicitor, come and move the court to have

stricken from the files so much of the paper filed by the defendant

Henry Douglass, as of the date of August 3, 1869, as purports to be a

plea to parts of the bills, original and supplemental, filed in said cause

by reason of its insufficiency under rule 27, equity rules cae ee

practice in said court.

CHARLES M. MATTHEWS, |

Solr for PU ffs.

SEPT. 7, 1869. |

~

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¥

a

HENRY DOUGLASS VS. CORCORAN AND RIGGS. 11

31 General replication.—Filed Sept. 7, 1869.

In the supreme court of the District of Columbia this 7th day of Sep-

tember, 1869.

CORCORAN & RIGGS

V8. In equity. 1673.

DOUGLASS ET AL.

The plaintiffs hereby join issue with the defendant Henry Douglass

upon the bill and the answer filed by him. ,

CHARLES M. MATTHEWS,

For PUf’s.

SEPT. 7, 1869.

Decree pro confesso vs. Jno. Douglass, 7r.—Filed Sept. 14, 1869.

In the supreme court of the District of Columbia, the 14th day of Sep-

tember, 1869.

W’m W. CORCORAN, GEO. W.-RIGGs,

In equity. No. 1673. Docket 9.

V8.

JOHN DOUGLASS, J’R, ET AL.

It being shown to the court that John Douglass, j’r, though served, as

defendant, with process on the 27th day of ‘May, 1869, hath not

32 answered or plead to the bill in this cause filed, it is, on motion

of complainants’ solicitor, ordered by the court ‘this 14th day of

September, 1869, thai said bill be taken “ for confessed” against him,

the said John Douglass, junior.

By the court.

33 Petition for leave to file counsel's certificate—Filed Sept. 22, 1869.

In the supreme court of the District of Columbia the 22nd day of Sep-

tember, 1869.

WILLIAM W. CORCORAN ET AL.

v8. In equity. No. 1673.

JOHN DOUGLASS ET AL.

To the supreme court of the District of Columbia, holding an equity

court for said district :

Your petitioner, Michael Thompson, begs leave to represent that he

is the counsel for Henry Douglass, one of the defendants in this cause,

and was instructed by said Henry Douglass to interpose in his behalf the

plea of the statute of limitations in this cause, and to do and perform all

nd every act or thing necessary and proper to be done by him, as such

unsel, to secure to the said Douglass the full benefit of the plea of the

ute of limitations in this cause; and the said Douglass also con-

fided to this petitioner the duty, as such counsel, of advising him,

the said Douglass, of all and everything necessary and proper to

be done on his part to secure to him the full benefit of the said

d. the petitioner further states that the said Douglass did not

- ee . - oe see — : eee

pe SN Ae Baer ae ao OR RE RE RE ee

e

12 HENRY DOUGLASS VS. CORCORAN AND RIGGS.

and never did signify or express to the petitioner any desire or purpose °

to delay or to have this cause delayed; and the petitioner states that,

to the best of his knowledge and belief, the said Douglass never desired

any delay of this cause; and the petitioner states that he accordingly

prepared the plea of the statute of limitations, and also a certificate of

counsel and an affidavit to be executed by the defendant, and filed in

support of the said plea, as required by the 27th equity rule; but that

the said plea was filed in this cause without such certificate and affidavit

along with said plea, and that such omission was owing entirely to @ a

mistake and inadvertence on his part, and without any desire whatever .«

to delay said cause, and that he was not aware of said mistake, or that

such certificate and aftidavit were not duly filed, until his attention was

called to the fact a few days since by Mr. Matthews, the solicitor for

the plaintiffs; & that, so confident was this petitioner that such certifi-

cate & affidavit had been duly filed, he thought the said Matthews was

mistaken, & this petitioner could not believe that such certificate

30 & affidavit had not been filed until afterwards, upon examination,

he found such to be the fact.

Prayer. The petitioner prays leave to file, nunc pro tune, a certificate

of counsel and affidavit of defendant Henry Douglass, as requested by

said 27th rule.

M. THOMPSON , Sol’r, de. .

COUNTY OF WASHINGTON,

District of Columbia, 88 :

On this 22nd day of Sept., 1869, personally appeared the above-named

Michael Thompson before me, in and for the county and district afore-

said, and made oath that the facts set forth in the foregoing petition ‘

are true, to the best of his knowledge and belief.

R. J. MEIGS, Clerk.

36 Counsel's certificate.—Filed Sept. 10, 1869.

In the supreme court of the District of Columbia the 10th day of Sept., '

1569.

WILLIAM W. CORCORAN ET AL.

rs. In equity. No. 1673.

JNO. DOUGLASS ET AL.

I do hereby certify that, in my opinion, the plea of the defendant fe

Henry Douglass in this cause is well founded in point of law.

° M. THOMPSON, +

Solicitor for the def’t Henry Douglass. J:% S

COUNTY OF WASHINGTON, f :

District of Columbia, ss : /

On this tenth day of September, 1869, personally appeared the above |

named Henry Douglass before me, Edmund F. Brown, a notary publxe :

in and for the county and district aforesaid, and made oath that his pjea

in the above-entitled cause is not interposed for delay, and that

plea is true in point of fact.

EDM. F. BROWN,

Notary P

¥

a é

HENRY DOUGLASS VS. CORCORAN AND RIGGS. 13

37 ~=—s_ Petition of Henry Douglas for leave to file affidavit, nunc pro

tunc.—Filed Sept. 22nd, 1869.

In the supreme court of the District of Columbia, the 20th day of Sept-

ember, 1869.

Wm W. CORCORAN ET AL.

V8. In equity. No. 1673.

JNO. DOUGLAS ET AL.

os

To the supreme court of the District of Columbia, holding an equity

court for said district:

Your petitioner, Henry Douglass, represents unto your honorable

court that he is a defendant in this cause, and that he has not, and

never has had, any desire to delay said cause, and that he employed and

advised Michael Thompson, a solicitor of this court, to prepare and inter-

pose in behalf of this petitioner, the plea of the statute of limitations

in this cause, and to do and perform everything necessary and proper

to be done by counsel to secure to this petitioner the full benefit of

such plea, and to advise the petitioner of all and everything necessary

and proper to be done on his part, to secure to him the full benefit

38 and advantage of such plea, and that he was not aware, at or be-

fore the filing of his plea in this cause, nor until a few days ago,

that any affidavit was necessary to be filed with said plea; and the pe-

titioner prays leave to file his affidavit in this cause, as required by the

27th rule, nunc pro tune.

HENRY DOUGLASS.

CoUNTY OF WASHINGTON, District of Columbia, 88:

On this twenty-first day of Sept., 1869, personally appeared the above-

named Henry Douglass, before me, Edmund F. Brown, a notary public

in and for the county and district aforesaid, and made oath that he has

read the foregoing petition subscribed by him, and knows the contents

thereof, and that the facts stated in the said petition are true.

EDM. F. BROWN,

Notary Public.

39 Affidavit of Henry Douglass.

In the supreme court of the District of Columbia, the seventh day of

October, 1869.

W’m W. CORCORAN ET AL.

v8. In equity. No. 1673.

JNO. DOUGLAL ET AL.

“| CounTY oF WASHINGTON, District of Columbia, 8s:

On this ninth day of October, 1869, personally appeared the above-

amed Henry Douglass, before me, Edmund F. Brown, a notary public

> and for the county and district aforesaid, and made oath that his

plea in the above- entitled cause is not interposed for delay, and that

said plea is true in point of fact.

HENRY DOUGLASS.

Sworn to and subscribed before me this 9th day of OsnowN,

EDM. F. BRO

Notary I Public.

i! ea _

14 HENRY DOUGLASS VS. CORCORAN AND RIGGS. x

40 General replication.—Filed Oct. 18, 1869. | ¢

In the supreme court of the District of Columbia, the 18th day of Oc-

tober, 1869.

CORCORAN ET AL.

rs. In equity. No. 1673.

DOUGLASS ET AL.

The plaintiffs hereby joins issue with the defendant Henry Douglass e 4

upon the plea and answer filed by him. (

Oct. 18, 1869. my

CHARLES M. MATTHEWS, 4

For Pv fs. :

Complainants testimony.—FPiled Jan‘y 27, 1870.

In the supreme court of the District of Columbia.

WILLIAM W. CORCORAN ET AL.

v8. In chancery. No. 1673.

JOHN DOUGLASS ET AL.

DISTRICT OF COLUMBIA, County of Washington, 8s:

Be it remembered that, on the first day of November, in the year of

our Lord, one thousand eight hundred and sixty-nine, I, Mahlon Ash-

ford, an examiner in chancery, did cause to be personally present, at

my office, roon No. 2 Columbian College Law Building, in the «

41 city of W ashington, in said district, George W. Riggs, to testify is

on the part and behalf ot the complainant in a certain cause now

depending in the supreme court of the District of Columbia, wherein ;

William W. Coreoran and George W. Riggs are complainants, and John

Douglas et al., are defendants. i

M. ASHFORD.

Examiner in Chancery.

Deposition of George W. Riggs for complainants.

And the said GEORGE W. RiaaGs, being about the age of years, ;

and being by me first duly sworn to testify the truth, the whole truth,

and nothing but the truth touching the matter at issue in said cause, I x

did carefully examine said George W. Riggs, and he did thereupon de-

pose, testify, and say as follows:

I am a resident of the city of Washington, and one of the plaintiffs in

this cause, one of the former firm of Corcoran and Riggs. The balance @ A_. ny

of principal due under the deed of trust filed in the cause, and marked | .

C and R, No. 1, is $1,000. The interest has been paid to Oct. 15th, 1863, ¢

and is due from that date. The last interest paid on that was made by’

Henry Douglass. On the 7th Feb’y, 1865, Henry Douglass paid the od

terest to Oct. 15th, 1863. On the 22d Dee. 1864, he paid to Apr. .

42 15th, 1865. In 1855 interest was paid to Apr. 15th of that year, i

previous to which interest had been paid to March 15th, 1853;

all these payments of interest having been made by Henry Douglass,

Mr. Henry Douglass during last summer called on me with a bill for

articles furnished my family during the winter. I suggested to him to :

HENRY DOUGLASS VS. CORCORAN AND RIGGS. 15

make a payment on the note to Corcoran and Riggs. The amount of his

ill was not sufficient to pay interest on the note to the time I wished it

paid, and I asked him to add to it a sum of money, and make payment.

He said he hadn’t the money with him, but would bring it in a few days

and make the payment, but he failed to come according to promise. I

have had several conversations with him w regard to this debt, in all of

which he intimated his promise to pay it, but said he had a payment to

make to the Metropolitan Bank which he would make first. He also said

that Mr. Corcoran was pressing him in order to obtain possession of the

property, but he couldn’t get it. This conversation occurred within a

year. The original debt was for a much larger sum than is the sum in

the note of John Douglass, sr., marked Exhibit G. R., No. 1, & filed as

a part of my testimony, which note represents the balance due

43 under the deed of trust. This note I know was made by John

Douglass, jr..and was endorsed by John Douglass, sr., and has

been in our possession since its date, and was also given as a last renewal

in part of the original note secured by the deed of trust.

~ GEO. W. RIGGS,

Sworn to and subscrzved before me this lst day of November, 1869.

M. ASHFORD, Ear.

(The counsel for complainants give notice that they will read at the

hearing and put in evidence a deed from John Douglass, jr., to Henry

Douglass, dated Feb. 21, 1856, and recorded in liber J. A. 8., LL, folios

272, &e., of the land records of the District of Columbia.)

DISTRICT OF COLUMBIA, County of Washington, ss :

I, Mahlon Ashford, examiner in chancery, do hereby certify that, in

pursuance of due notice, the foregoing deposition was taken down,

44 and by me reduced to writing in the presence of, and from the

statement of the witness, at the time and place designated in the

caption thereof, and was then and there by me read over to the witness,

and by him subscribed in my presence, and in presence of the parties’

solicitor, who were then and there attending, the witness having been

by me first duly sworn to testify the truth, the whole truth, and nothing

but the truth touching the matters at issue in said cause.

I further certify that I am not of counsel for any of the parties to said

cause, or in any manner interested therein.

A al Examiner in Chancery.

45 Order setting cause for hearing.—Filed Jan’y 27, 1870.

W’m W. CORCORAN ET AL.

v8. 1673 equity. Dock. 9.

JOHN DOUGLAS, JR.

\ upon the motion of C. M. Mathews, esq., solicitor for complainants,

it is ordered that the above cause be set down for hearing and placed

on Kebruary calendar.

By \the clerk.

|

\

ncemaneetnagenesnsinne”

wee ee 8 ee eres = ereene orm

16 HENRY DOUGLASS VS. CORCORAN AND RIGGS.

Decree for sale.—Filed Mar. 3, 1870.

In the supreme court of the District of Columbia the 3rd day of March,

A. D. 18790.

CORCORAN ET AL.

v8. In equity. No. 1673, docket 9.

HENRY DOUGLASS ET AL.

This cause coming in to be heard upon the bill, answers, exhibits,

and depositions, and being by the court duly considered, it is, this 3rd

day of March, A. D. 1870, by the court ordered, adjudged, and

46 decreed, that the said Henry Douglass do pay to the said com-

plainants the sum of one thousand dollars, (1,000,) and interest,

from October 15th, 1863; that unless this debt be paid within thirty

days from the present date, with interest, the real estate in said bill

mentioned be sold for the payment of said sum, and that Charles M.

Matthews be appointed trustee to sell the same, in the place and stead

of Thomas Corcoran, deceased, and that his course of procedure be as

follows :

He shall file with the clerk of this court his bond, in the penalty of

twenty thousand dollars, conditioned for the faithful performance of

his duty as trustee, said bond to be approved by the court, or a justice

thereof; he shall then proceed to sell the said real estate at public auc-

tion to the highest bidder, on the following terms, to wit: one-third of

the purchase-money to be paid in cash, and the residue in three equal

installments, (one-third thereof,) to be evidenced by promissory notes,

payable in six, twelve, and eighteen months, respectively, with inter-

est, from the day of sale; after having made public advertisement of

said sale in “ The Evening Star” and National Republican, two

47 newspapers printed and published in the city of Washington, in

said District, three times a week for three weeks ; that the title

to said real estate shall be withheld until the terms of sale be faithfully

complied with ; and that the proceeds of sale, with a full report, under

oath, of the proceedings of said trustees shall be returned to this

court.

By the court.

Trustee's bond.—Filed Mar. 4, 1870.

In the supreme court of the District of Columbia, the 4th day of March,

A. D. 1870.

CORCORAN AND RIGGS

v8. In equity. No. 1673. Docket 9.

HENRY DOUGLASS ET AL.

Know all men by these presents that we, Charles M. Matthews

George W. Riggs, and William W. Corcoran, of the said District, ax’e

held and firmly bound unto the United States in the sum of tweaty

thousand dollars, to be paid to the said United States, or its certain

attorneys, or assigns; to which payment well and truly to be made, we,

and each of us, bind ourselves, our and each of our heirs, ¢xecu-

48 tors, and administrators, jointly and severally, firmly by these

presents, sealed with our seals, and dated this fourth ‘day of

March, A. D. 1870. : :

¢

f

|

HENRY DOUGLASS VS. CORCORAN AND RIGGS. 17

Whereas, by decree of said court, sitting in equity, duly passed on

the third day of March, A. D. 1870, the said Charles Matthews was

appointed trustee to sell certain real estate in the bill in said cause filed,

mentioned and described, according to directions in said decree set out:

Now, therefore, the condition of the above obligation is such, that if

the above-bounden Charles M. Matthews shall well and truly perform

his duties as trustee aforesaid, then, and in such event, this obligation

shall be void ; otherwise it shall remain in full force and virtue.

CHARLES M. MATTHEWS. [SEAL.

GEO. W. RIGGS. [SEAL.

W. W. CORCORAN. {SEAL. |

Signed, sealed, and delivered in the presence of—

W. C. BESTER,

A. T. BRICE, as to W. W. Corcoran.

Approved.

——— | a.

A. WYLIE.

49 Appeal to general term.—Filed March 3, 1870. |

CORCORAN & RIGGS

t V8. 1673. Eq.

DOUGLASS ET AL.

Enter appeal to general term from decree of March 3, 1870.

: M. THOMPSON,

Solr for H. Douglass,

In obedience to the above order, an appeal is accordingly entered,

and placed on calendar.

March 3, 1870.

By the clerk.

Appeal bond to general term.-—Filed Apr. 16, 1870.

In the supreme court of the District of Columbia, April 9, 1870.

WILLIAM W. CORCORAN & GEORGE W. RIGGS,

» ; . a Lad S .

oo a In equity. No. 1673.

HENRY DOUGLASS & OTHERS.

A decree having been pronounced in this case on the 3rd of March,

7 1870, appointing C. M. Matthews trustee to sell the property which is

7 the subject of the suit, with directions &c., and the defendant Henry

Douglass having appealed from said decree to the general term, now

this writing witnesseth that, if the said appellant fail to prose-

50 cute his appeal with effect, he, and the undersigned as his surety,

will pay and satisfy all costs and damages that may be adjudged

against the said Henry Douglass, upon the affirmance of the said de-

chee, or upon such modification thereof as may be made by the said

geteral term.

Witnesses our hands and seals, the day and year aforesaid.

HENRY DOUGLASS. |[SEAL.

: MICHAEL NASH. [SEAL.

‘ WM NASH. [SEAL.|

GEO. P. FISHER, Jus.

; “£8704 Apr. 16. Approved.

REc. 399—2

ae apices

18. HENRY DOUGLASS VS. CORCORAN AND RIGGS.

Proceedings before the supreme court of the District of Columbia, in

general term, commencing on the third Monday, 18th day, of April,

1870.

MonDaAyY, April 18th, 1870.

By order of the chief justice, the opening of the court proclaimed

by the marshal; present, the Chief Justice and Justices-Olin and Wylie.

Justice Fisher, absent, holding the criminal court.

51 TUESDAY, April 26th, 1870.

Session resumed pursuant to adjournment; present, Chief Jus-

tice Cartter, and Justices Olin, Fisher, and Wylie.

Wa. W. CORCORAN ETAL,

v8. 1673. Eq. Dock. 9.

JOHN DOUGLASS, JR., ET AL.

This cause having been heard upon the record of the equity court,

and upon argument of counsel on both sides, it is thereupon ordered,

adjudged, and decreed that the decree of the said equity court, from

which this appeal is prosecuted, be, and the same is, in all things affirmed

with costs.

And from this decree the defendant Henry Douglass prays an appeal

to the supreme court of the United States, and the court fixes the pen-

alty of the bond at $3000.

52 Appeal bond to the 8. C. U. S.—Filed April 29, 1870.

Know all men by these presents that we, Henry Douglass and Mi-

chael Nash, are held and firmly bound unto William W. Corcoran

and Geo. W. Riggs in the sum of $3000, lawful money, to be paid to the

said Coreoran & Riggs, their certain attorney, executors, administrators,

or assigns; to which payment, well and truly to be made and done, we

bind ourselves, and each of us, our, and each of our heirs, executors,

and administrators, jointly and severally, firmly by these presents,

sealed with our seals, and dated this 29th day of April, 1870.

- Whereas lately at a supreme court of the District of Columbia, in a

suit pending in the said court, wherein the said William W. Corcoran

& George W. Riggs were plaintiffs, and the said Henry Douglass and

others were defendants, decree was rendered against the said

53 Henry Douglass, and he having appealed to the Supreme Court of

the United States to reverse said decree, and a citation directed

to the said Corcoran & Riggs, citing and admonishing them to be and

appear at the Supreme Court of the United States to be holden at Wash-

ington City, District of Columbia, on the 5th day of December next.

Now, the condition of the above obligation is such that, if the said

Henry Douglas shall prosecute his said appeal with effect, and stand to,

perform, and abide by said decree, and answer all damages and costs if

he shall fail to make good his appeal, then the above obligation to

void; otherwise to be and remain in full force and virtue.

HENRY DOUGLASS. [SEAj

MICHAEL NASH. SEA

Signed, sealed, and delivered in the presence of—

E. A. NEWMAN.

M. THOMPSON.

HENRY DOUGLASS VS. CORCORAN AND RIGGS. 19

I approve the foregoing bond & the sufficiency of the surety named

therein.

April 29th, 1870.

A. B. OLIN,

Justice.

54 Citation to 8. C. U. S—Filed April 29, 1870.

UNITED STATES OF AMERICA, 88:

To William W. Corcoran & George W. Riggs, greeting :

You are hereby cited and admonished to be and appear at a Supreme

Court of the United States to be holden at Washington, on the Ist Mon-

day of December next, pursuant to an appeal from a decree of the su-

preme court of the District of Columbia, in a cause numbered 1673, in

equity, wherein you are plaintiffs, and Henry Douglass and others are

defendants, to show cause, if any there be, why the said decree should

not be reversed, and why speedy justice should not be done to the par-

ties in that behalf.

Witness David K. Cartter, chief justice of the supreme court of the

District of Columbia, the 28th day of April, 1870.

D. K. CARTTER,

Chief Justice.

COUNTY OF WASHINGTON, District of Columbia, 8s :

55 On this 29th day of April, 1870, personally appeared before me,

the subscriber, Edward A. Newman, and makes oath that he de-

livered a true copy of the within citation to Charles M. Mathews, solic-

itor for the within-mentioned William W. Corcoran & George W. Riggs.

E. A. NEWMAN.

Subscribed & sworn to before me, April 29th, 1870.

R. J. MEIGS, Cvk.

Clerk’s certificate to record.

DISTRICT OF COLUMBIA, to wit:

I, R. J. Meigs, clerk of the supreme court of the District of Columbia,

do hereby certify that the foregoing writings are true and complete

copies of the originals on file in the clerk’s office of said supreme court

of the District of Columbia, and that said originals together con-

56 stitute the record of the proceedings of said court in a certain

cause therein depending, and lately decided, entitled W’m W.

Corcoran & Geo. W. Riggs vs. John Douglass, jr., et al., No. 1673, equity

docket 9.

In testimony whereof I hereto subscribe my name and affix the seal

‘\. of said court this 5th day of December, 1870.

‘\\ [SEAL. | R. J. MEIGS, Clerk.

\ By L. P. WILLIAMS, Ass’t Clerk.

4

\

ndorsement on cover:) No. 399. Henry Douglass, appellant, vs.

Willjam W. Corcoran and George W. Riggs. Dist. of Columbia sup.

co Filed 13th December, 1870.

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“~

XUPREME COURT of the UNITED STATES

|

No. IOI.

> +-<@>- -

HENRY DOUGLAS.

Vs.

W.W. CORCORAN,

GhORGEHE W. RIGGS.

-—- > -

Appellant's Brief.

W. B. WEBB, for Appellant.

In the Supreme Court of the @. S.

-_— -- A TEED

Henry Dovatas

Vs. , .

~ No. 191

W. W. Corcoran, and

GEORGE W. Rises. |

Appellants Brief.

On the 27th day of May, 1859, the appellees filed in the

Supreme Court of the District of Columbia, their bill of

complaint against John Douglas, junior, William M.

Corcoran, and others, setting forth, that the defendant,

John Donglas, juy’r., on the 23d of June, 1845, ac-

knowledged himself to be indebted to the appellees, W.

W. Corcoran and George W. Riggs in the sum of

$4,000, and conveyed to one Thomas Corcoran, as secur-

ity, for said debt, the property mentioned in the bill, and

the deed exhibited therewith, with power to said Thomas

Corcoran to sell the said property in default of payment,

at certain intervals of the instalments of said indebted-

ness specified in the said deed; that the defendant, John

Douglas, junior, has made default in the payment of

the said instalments; that the said Thomas Corcoran is*

dead, having, by his will, devised all his interests in real

estate in the District of Columbia to Henry C. Matthews,

who is also dead; that certain of the defendants, are

his heirs and devisees, and that the said trust created by

the said deed from John Douglas, jr., cannot be executed

Rass dhtnainatis aduligenascaderedthuets achiaeideeaea eee

Se nui iad eed ok eee

Sone a on)

ele cube prepe pers

2

except by a trustee, to be appointed by the court. The

bill prays an account of said debt and interest, the

appointment of anew trustee to carry out and execute

the provisions of the deed, and for general relief.

[See Record, pp. 1, 2, and 3. ]

On the 11th of June, 1869, the appellees filed a suple-

mental bill representing, that since the filing of the

original bill, they liad been advised that John Douglas,

junior, by deed, dated February 21st, 1859, had conveyed

to Henry Douglas, the appellant, the property mentioned

in the original bill, subject to the conveyance in trust

to Thomas Corcoran, and praying that said Henry might

be made a party defendant, &c., Xe.

[p. 6, Record. ]

The deed from John Douglas, junior, to Henry Doug-

las is exhibited with this supplemental bill.

[ Record, p. 6.]

The heirs and devisees of Henry C. Matthews and

Thomas Corcoran answered the bill, submitting their

interests to the court, and a decree pro confesso was made

against John Douglas, junior, on the 14th of September,

1869.

[Reeord, pp. 9 and 11.]

On the 3d of August, 1869, Henry Douglas, the appel-

lant, filed the plea of limitations, and at the same time

answered the bill, alleging payment of the debt; that the

property mentioned in the bill is not subject to the terms

of the deed of trust; and denying the other allegations of

*the bill.

Atter hearing, the court, in special term, decreed, that

Henry Douglas should pay to Corcoran and Riggs the

sum of one thousand dollars with interest, and in default

of such payment, that the property mentioned in the

bill should be sold by a trustee appointed in the place

of Thomas Corcoran, deceased.

3

This decree was afterwards affirmed by the Court in

general term, and from this, an appeal is taken to this

court.

The only testimony taken in the cause is the deposi-

tion of George W. Riggs, one of the appellees, [p. 14,

Record.] Mr. Riggs testifies, that the balance of prin-

cipal due under the deed of trust, C. & R., No. 1, [page

3 of Record,] is $1,000; that interest has been paid on

that balance, to October 15, 1863, by Henry Douglas, the

appellant, who has paid the interest at various times

betore.

Points.

1. The decree passed by the court below, [ Record, 16

and 18,]in this case, is not, in accordance with the prayer

in the bill, for specific relief and cannot be sustained by

the prayer for general relief.

The bill charges that John Douglas, junior, conveyed

certain property in the District of Columbia to a trustee as

security for a debt with power to such trustee in default

of payment, at stated times, of part of said debt, upon

request of the creditor to sell the said property; that the

trustee is dead, and that a portion of said debt remains

unpaid, The prayer of the bill is for an accouut to

ascertain what is due upon said debt, the appointment of

a new trustee to carry out the provisions of the deed of

trust, and for general relief, (Rec. pp. 2—3.) The sup-

plemental bill (Record, p. 6,) alleges, that the said prop-

erty has been conveyed to the appellant, Henry Douglas,

subject to the deed of trust, but makes no change in the

prayer for relief. The decree, (Record, p. 16,) made by

the court -in special term and affirmed at the general

term, (p. 18,) orders, that Henry Douglas. (appellant,)

shall pay to complainants, (the appellees,) the sum of

$1,000 with interest, and in default that the said property

be sold—appoints a trustee to make sale thereof in the

4

stead of the deceased trustee, and prescribes his method

of procedure in making such sale.

It will be observed, that the bill is filed for the express

purpose of obtaining an account and the appointment

of a new trustee to carry out and execute the provisions

of the deed; the deed is exhibited, and by the allega-

tions of the’ bill and the provisions of the deed it is

manifest, that the trust is created to secure the payment

of a debt by certain specified instalments. |The supple-

mental bill alleges, that the conveyance to Henry Doug-

las, (the appellant,) was subject to this very trust. But

the decree orders the appellant, Henry Douglas, to pay

an ascertained sum with interest, and in default decrees

the sale of the property conveyed upon the trust men-

tioned.

Certainly the decree is not in accordance with the

prayer for specific relief—that prays for an account, and

the appointment of a new trustee to execute the trusts in

the deed, while the decree makes no provision for an

account, orders (the appellant,) Henry Douglas to pay a

specific sum with interest, and decrees a sale in default

of such payment. Can it be sustained under the prayer

for general relief?

As to the relief to be given under a general prayer,

the rule is that it must be agreeable to the case made by

the bill, and not different from it or inconsistent with it.

Chalmers eft ux. v. Chambers, 6 Harris and Johnson, 29.

In this case the bill sought to obtain a decree for record-

ing a mortgage that had not been recorded within the

time prescribed for the record of such instruments and

general relief, the Chancellor decreed that unless the

money was paid within a specific time the mortgaged

premises should be sold, and appointed a trustee to make

such sale. The court reversed this decree. See also as

to this point.

~@

~@

~~

”

Hobson v. MeArthur, 16 Peters, 8. C., 195.

English ef¢ al. v. Foxall, 2d Peters, 8S. C., 611.

Gibson ef al. v. MeCormick, 10 Gill & J., 108.

If. The decree in so far as it orders the appellant

Henry Douglass to pay the sum of money specified with

interest, is not only, not in accordance with the prayer

for relief, but is not supported by the proceedings and

proofs in the case.

The allegation in the suplemental bill, is that Henry

Douglas bought the property in question, subjected ex-

pressly to the payment of the deed of trust given by

John Douglas to Thomas Corcoran, and filed in the

cause, (Record, p. 6.) With this supplemental bill, the

deed from John Douglas, Jr. and wife, to Henry Douglas

is exhibited, and is the only evidence offered in support

of this allegation. That deed contains the following re-

cital, “that the said Henry Douglas shall pay off, and

assume (Which he hath heretefore agreed to do,) all the

encumbrances now existing, whether by judgment or

deeds of trust or mortgage, on and against the property

and premises hereinafter described, so as fully to exon-

erate therefrom the said John Douglas.” It is not de-

nied that the recitals in a deed bind privies and parties,

but it is as well settled that ‘“‘ a general recital in a deed

will not conclude a party, though a recital of a particu-

lar fact may estop.”

Huntington v. Havens, 5 Johnson, Ch. Rep., 26.

Citing Coke Litt., 352, b.

Roll Abr., p. 872, Willes Rep., 9.

The recital in the deed from John Douglas to Henry

Douglas is as general as possible, it recites that Henry

assumes all encumbrances on and against the property,

but specifies no particular encumbrance, it works no es-

toppel as to the specifie balance alleged to be due from

EE RN ROS ABET TOL COS LE DELLE EEO ELL LLL LLL ILE =) ae nee et apaenasenee see

2 Nee RD AOE So sn on tn lie

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6

Henry Douglas to Corcoran and Riggs—then Henry

Douglas is not estopped from denying that by the terms

of such general recital he is not bound to pay the said

specific balance. This deniel is made in his answer,

(Record, p. 10,) and is put in issue by the replication,

(Record 11.) No testimony is taken tending affirmatively

to prove that Henry Douglas assumed the payment of

this balance, and the deductions to be made from Mr.

Rigg’s deposition will be noticed hereafter.

On page 3 of the Record, however, the original deed

from John Douglas, junior to Thomas Corcoran, to se-

cure the debt due to Corcoran and Riggs, is exhibited,

and as this deed contains the trust to which the property

in Henry Douglas’s hands is proposed to be subjected,

the evidence of the liability of Henry must be found

here if anywhere. That deed recites that John Douglas,

junior is indebted to Corcoran and Riggs in the sum of

$1000, and is to pay it in instalments of so much every

sixty days, and provides for a saie of the property if the

instalments are not paid at the periods fixed for their

payment. The deed is dated 23d June, 1845, and the

whole debt must have been paid by December, 1849, if

the installments had been regularly paid. The bill alle-

ges that the installments were not paid, and is taken for

confessed against John Douglas, junior, the allegation is

denied by Henry Douglas, and issue is joined upon this ,

denial. Where is the proof that Henry Douglas knew

that these installments had not been paid? He bought

in 1856, and as far as the deed from John Douglas,

junior to Thomas Corcoran was notice to him; it was

notice that the debt had been paid long before he pur-

chased

‘“ The maxim that a decree must be sustained by the

allegations of the parties as well as the proofs in the

cause is too well estublished to be disregarded.”

Carneal v. Banks, 10 Wheaton, 189.

4

———-- —e..

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It is nowhere alleged that Henry Douglas assumed to

pay the balance except in so far as such undertaking on

his part is to be inferred from the recital in the deed

to him, that he purchased subject to all incumbrances ;

and there is nothing in the proof that establishes any

such undertaking. It is submitted that a distinct promise

is necessary to sustain a decree directing the payment of

a specific sum as in this case.

Itt. The testimony taken in the case does not estab-

lish a promise on the part of Henry Douglas to pay the

debt of John Douglas, junior, or if it does, it establishes

a parol promise and is within the provision of the Statute

of Frauds.

Mr. Riggs the only witness examined, testifies that the

balance due under the deed of trust exhibited with the

bill, is $1000; that interest had been paid at various

times by Henry Douglas on that balance; that interest

was paid by Henry Douglas before he purchased, and

since, and that as late as the winter of 1868,—69, he called

upon Henry for a payment on the balance which he

promised to pay, but did not pay. It is submitted, that

this is not sufficient to establish any promise on the part

of Henry Douglas to pay this debt, aside from what can

be inferred from the terms of the deed of trust itself,

and that after all, the question whether there was any

promise, depends upon the interpretation put upon

that deed, and terms of the deed from John Douglas, Jr.,

to Henry. It cannot be contended that payments

of interest upon a debt, commencing before the purchase

and continuing afterwards, can make this balance the

debt of Henry without some proof showing, that when

he made such payments of interest, he recognized the

debt upon which they were paid as his own. But if any

8

such promise or assumption is proved, it is_ plainly

parol, and void for that reason.

IV. But, even if the court shall think that this balance

is the debt of Henry Douglas, the Statute of Limitations

is pleaded and the remedy of the appellees is plainly

barred.

It is a well settled principle that Chancery follows the

law, and acting in obedience to the statute, the plea of

limitations is as available in equity as at law, in relation

to the same subject-matter.

Knight and wife v. Brawner eZ al., 14 Maryland

Rep. 7.

Watkins v. Harwood, 2d Gill and John., 311.

Sindall and wife v. Campbell, et a/., 7 Gill., 76.

In 1850 the appellees took the promissory note of

John Douglas, junior for $1,000, and as they exhibit this

note with their original bill, at page 3 of the Record, it

is evident that it is for the balance sought to be recoverd

in this action. Henry Douglas did not purchase until

1856, and during all that time the appellees might have

enforced payment of the note by a remedy at law. It

cannot be doubted that where the remedy at law and in

equity is concurrent, the Statute of Limitations applies

whatever the forum.

Hettre and wife v. Schwartze and McDonald, 3d

Maryland Rep., 383.

Dugan, ef al. v. Gittings, ef al., 3d Gills Rep., 161.

Murray v. Coster, 20 John. R., 583.

Kane v. Bloodgood, 7 John. Ch. R., 124.

V. There is nothing shown that will take this case

out of the statute. There is no attempt to prove any

distinct promise on Henry Douglas’s part to pay this debt,

ek Atha 2a A RET SRE Ri aie ws MRE Rha te, seta salt

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and no such promise can be inferred from his acts in the

matter.

Tanner v. Smart, 6 Barnewall & Cresswell, 603.

13 Eng. Common Law Rep., 276.

The payment of interest upon the debt in question

does not operate as a new promise so as to prevent the

running of the statue.

Carroll v. Waring, 3 Gill: and John., 503.

[t is settled that payment of interest on a promissory

note will have the same effect to save the operation of

the Statute of Limitations as part payment of the prin-

cipal, and that part payment, without an express promise

to pay the balance is not sufficient to revive a debt barred

by the statute.

Smith v. Westmoreland, 12 Smedes & Marshal,

665.

Merriman vy. Bayley, 1 Cush., 77.

Davis v. Edwards, 6 Eng. L., and E. Rep., 522.

Waugh v. Cope, 6 Meeson & Welsby, 824.

W. B. WEBB, for Appellant.

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SUPREME COURT OF THE UNITED STATES.

No. 19].

HENRY DOUGLASS, APPELLANT,

vs.

WILLIAM W. CORCORAN & GEORGE W. RIGGS.

— @ oo---- --—d =

{ APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

~ -—

——_ -

BrIieEF For APpPELLEEs.

aS

ABSTRACT OF THE CASE.

On the 23d day of June, 1845, John Douglass Jr., being

indehted to appellees in the sum of four thousand dollars

($4000), conveyed certain real estate in the City of Wash-

ington, D. C., to Thomas Corcoran (then of said city,) now

deceased, and to his heirs and assigns, in trust to secure

the payment of a note of $4000, given by John Doug-

lass Jr., endorsed by John Douglass Sr., in evidence ef said

indebtedness; with provisions in said Deed of Trust as to

the curtailment of said amount, by part payments and re-

»newals, and with power of sale upon default in the pay-

ment of the note. (For Deed Trust see pages 8, 4, and 5

of * Transcript of Reeord.)

+)

‘he balavee due on the 1lith of February, 1850, was

the sum of one thousand dollars ($1,000), for which

amount, on that date, a new note made by John Douglass

Jr., and endorsed by John Douglass Sr., was given to ap-

pellees. Said note is still unpaid.

On the 21st February, 1856, John Douglass Jr., by

deed conveyed said real estate in fee to appellant, (Henry

Douglass,) of which deed a part of the consideration is,

“that the said Ilenry Douglass shall pay off and assume **

“ (which he hath ieretofore agreed to do,) all the incum- “

“‘hrances now existing, whether by judgment, or deeds “

‘Cof trust, or mortgage on and against said property *

‘. * * * go asto fully exonerate therefrom the said “

* John Douglass.” (‘ Transcript of Record,” page 6.)

From time to time interest was paid to appellees by ap-

pellant on the note of $1,000; the last payment having

been made February 7th, 1865, of interest due to October

15th, 1863. (Deposition G. W. Riggs, page 14, * Trans-

criptof Record.”’

During the summer of the year 1869, appellant. pre-

sented to G. W. Riggs, (of appeilees,) an account for arti-

cles furnished his, Riggs’ family ; who requested appel-

lant to add to the said account enough to make a payment

of interest on the note due appellees. Appellant promised

to do so. (Deposition p. 14, “ Transcript.”

Thomas Corcoran being deceased, and some of his

heirs-at-law being minora, appellees filed May 27, 1867,

their Bill in Equity in “the Supreme Court of the Dis-

trict of Columbia,” for the appointment of a new trustee

to execute the provisions of said deed of trust, and for

general relief.

To this bill appellant answers in part, and to part

thereof pleads, that the cause of action upon which said

bill was filed, (to wit, the promise in the note of $1,000

:

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of February 15, 1850, or in the deed of trust of 23d June

1845,) not having accrued within twelve (12) years before

he was served with process, appellees were barred by the

act of Maryland, 1715, chapter 23, section 6, (in force in

said District of Columbia.)

POINTS.

1. The Maryland act of 1715 is a Statute of Limita-

tions applicable to actions-at-law and not in equity, and is

entitled “ An act for the limitation of certain actions for

avoiding suits-al-law, 1 Dorsey’s Laws of Md.,, p. 9.

2. The statute of limitations has never been held to be

applicable to remedies peculiar to equity jurisdiction.

Chancery Courts have adopted the doctrine, that a party

failing for twenty years to avail himself of an equitable

remedy, should have no right to its use, by reason of his

negligence. They have not adopted the common law

statutes of limitations, nor do they follow them, except

in cases where legal and equitable process are concurrent.

As long as a trust continues, and is recognized by the

parties, lapse of time will not constitute a bar in equity.

Kane vs, Bloodgood, 7 J. C. R., 114.

Dugan vs. Gittings, 3 Gill, 162.

f

The case at bar is one in which no remedy exists at law,

the object being to foreclose a mortgage given in 1845, to

secure a debt then contemplated to become a continuing

one, reduced in 1850, (leas than twenty years before the

filing of the bill in this cause,) to $1,000, for the collection

of which as secured by the mortgage, the bill ia filed.

Chancery has exclusive jurisdiction in cases aftecting

deeds of trust and mortgages.

3. The Courts of Maryland iv construing this statute,

have uniformly held that it has no application in equity

proceedings

Lingan vs. Henderson, 1 Bland, 272, 281,

(McCormick vs. Gibson, 3 G. v. J. 19.

Lamar vs. Jones, 3 H. & MeH., 332.

Dugan vs. Gittings, 3 Gill, 161.

White vs. White, 1 Md. Ch. Dec. 56.

Gibbs vs. Cunningham, 4 Md. Ch. Dec. 524.

4. John Douglass Jr., acknowledged in 1850 the debt,

by the new note then given, and appellant purchasing in

1856, subject to the mortgage securing said debt, and with

full knowledge thereof, is bound by this sufficient ac-

knowledgment.

Hughes vs. Edwards, 9 Wheat. 490.

Ileyer vs. Pruyn, 7 Paige, 465.

Angel on Limit, § 460.

o

The evidence is, that he paid to appellees interest at

various times, from 1855 to 1865, and promised in 1869,

to make a payment of interest.

5. Ifthe statute of limitations does apply, it must be to

limit this proceeding to the time prescribed therein for

suit upon a specialty, (twelve years,) or upon @ note, (three

years.) In either event the case is taken out of the statute

by the payment of February, 1865, or the promise made

in 1869.

Mr. Riggs’ testimony is, that appellant made him «

cerlain promise in 1869 to pay interest to a ceriain time,

upon a certain debt, regarding which he had conversed re-

peatedly with appellant, and upon which he, (appellant,)

had been paying interest to Mr. Riggs since 1855. In

such a case a plea of the statute is no bar.

Kane vs. Bloodgood, 7 J. C. R., 134.

1 Smith Lead. Cases, 718.

Hlad the acknowledgment been indefinite, the onus is

on appellant to show that it applied to some other debt.

Angel on Limits, § 238.

1 Smith Lead. Cases, 714.

6. This case is not within the * statute of frauds.” It

is no promise to answer for the “debt, or default of

another,” or of guaranty or endorsement; but an ar-

rangement made by appellant, to pay in a certain way a

debt due by him to John Douglass, Jr.

Emerson vs. Slater, 22 Howard, 43.

2 Parsons Contracts, 305, 306, 307.

6

It is simply a case where the vendee of property subject

to a lien, becomes liable for the debt, with the payment

of which the property is charged.

CHARLES M. MATTHEWS,

Counsel for Appellees.