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December 1, 1859


THIS was an appeal from the Circuit Court of the United States for the southern district of Alabama. It was a bill filed by Collins, to set aside certain agreements, upon the ground that he had been imposed upon and deceived by Thompson and the other defendants in error. The facts are all stated in the opinion of the court. The Circuit Court dismissed the bill, and Collins appealed to this court. It was argued by Mr. Sewall for the appellant, and by Mr. Smith and Mr. Benjamin for the appellees. The arguments of the counsel upon both sides were almost exclusively directed to the evidence, and how far it sustained the charges of fraud brought by Collins against Thompson and the other appellees. To apply these arguments, it would be necessary to give at least an abstract of the evidence, which would throw no light upon any general questions of law or equity. They are therefore passed over.

The opinion of the court was delivered by: Mr. Justice Nelson delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the United States for the southern district of Alabama.

The bill was filed by Collins, to set aside certain conveyances of a tract of land situate in the city of Mobile, and particularly a deed from him to the defendants, bearing date the 15th February, 1851, on the ground of fraud and imposition in the procurement of said conveyances.

The pleadings and proofs are very voluminous, the pleadings alone covering nearly one hundred, and including the proofs, exceeding five hundred, closely printed octavo pages. The bill is very inartificially drawn, being stuffed with minute and tedious detail of what might have been proper evidence of facts constituting the ground of the complaint, instead of a concise and orderly statement of the facts themselves. This has led to an equally minute and extended statement of the grounds of the defence in the several answers of the defendants.

In looking closely, however, into the case, and into the nature and grounds of the relief sought, and principles upon which it must be sustained, if at all, it will be found that the questions really involved, as well as the material facts upon which their determination depend, are few and simple, and call for no very extended discussion.

The father of Collins, the complainant, died in 1811, seized, of an interest in the tract of land in dispute. He left three sons, the complainant being then some two years old. The tract subsequently passed into the possession of one Joshua Kennedy, by collusion between Inerarity, the administrator of Collins the elder, and Kennedy, the latter also afterwards obtaining a deed of the land from the heirs at law by fraudulent representations.

In 1844, Thompson, one of the defendants in the present suit, residing in the city of Mobile, and having some knowledge of the original title of Collins to the land, and of the means by which the heirs had been deprived of it, visited the complainant, then residing in Texas, and being the only surviving heir, with a view to purchase his title, or to obtain an arrangement with him in respect to it, so that a suit might be instituted for the recovery of the estate. An arrangement was agreed to accordingly, and a conveyance of the land executed by the complainant and his wife to Thompson; also, a power of attorney, authorizing him to institute suits for the recovery of the land–Thompson, at the same time, executing a bond of indemnity to the complainant against all costs and responsibilities, in consequence of the suit. The complainant was to receive $10,000, in the event of a recovery. A suit was subsequently instituted in the name of the complainant against the heirs of Kennedy, in April, 1844, in the Circuit Court of the United States for the southern district of Alabama; was heard upon the pleadings and proofs at the April term of the court, in 1847, and a decree rendered in his favor; which, on an appeal to this court, was affirmed at the December term, 1850. The case, as reported in this court, will be found in the 10th How., p. 174.

The litigation extended over a period of some seven years; and, in the progress of it, besides Thompson, who had made the original arrangement with the complainant, three other persons had become interested, and had contributed their services and money in bringing it to a successful termination.

After the affirmance of the decree in this court, and confirmation of the title in complainant, all the parties concerned met in the city of Mobile, at the office of the solicitors, for the adjustment of their respective claims to the property recovered. Its value had increased, during the progress of the suit, from about $100,000, according to the estimate, to some two or three times that amount. The complainant had originally stipulated for the sum of $10,000. In this adjustment, one-third of the whole estate was set apart to him, and one-sixth to each of the other four persons. Conveyances according to this division were executed on the 15th February, 1851. The complainant therefore, according to the general estimate, received $100,000, and the other four associates $50,000 each.

Now, the fraud alleged in the bill, and which is mainly relied on for setting aside this adjustment and division of the estate between the parties, is placed upon two grounds: 1. In obtaining the deed of the land, powers of attorney, and other stipulations relating to the title, dated the 13th January, 1844, preparatory to the institution of the suit in which the property was recovered; and 2. In the adjustment and division of the property among the several parties above mentioned, after the recovery had taken place, and which was consummated by the deed of 15th February, 1851.

1. It is insisted, on behalf of the complainant, that, at the time he executed the deed, powers of attorney, and the other writings, in 1844, he was unacquainted with the value of the property or the condition of the title; that Thompson, who procured these instruments, and the authority to commence the suit, was well acquainted with both; that he fraudulently depreciated the value of the property, and exaggerated the difficulties and expense attending the litigation, and thereby deceived the complainant. This is the substance of the charge.

There is, however, a very brief but most conclusive answer to it, upon the pleadings and proofs in the case. It is, that Mr. Justice CAMPBELL, whose firm had been subsequently employed by Thompson to bring the suit against the heirs of Kennedy, declined the retainer, and refused to have anything to do with it, unless the complainant should not only be made sole plaintiff in the suit, but should have a substantial interest in the estate sought to be recovered; should attend as the party in interest in conducting the proceedings, and take part in the preparation for trial; and insisted that the preliminary arrangement made by Thompson, including the deed of the property and agreement for the payment of the $10,000, should be abrogated and given up. All of which was agreed to by Thompson and the other parties concerned; and the suit was commenced and carried on to a final determination, under this new arrangement. The complainant attended, and participated in the preparation of the case, assisted in procuring and in the examination of the witnesses, and admits, in his bill, that he attended every term of the court at Mobile, while the cause was pending, and until the decree in his favor.

The whole arrangement, therefore, between the parties, in respect to the property, entered into with a view to the institution of the suit, which is complained of, having been given up, and a new one substituted, which was not only unexceptionable, but highly equitable and just, as concerned the complainant, the charge of fraud and imposition depending upon it, even if originally it had any foundation, falls with it. We shall not stop to inquire into the merits or justice of that arrangement, for, having been given up, they are wholly immaterial in any view of the case, as presented upon the evidence before us.

2. The remaining ground of fraud relied on in the bill is, that on the day of the arrival of the complainant at the city of Mobile, from his residence in Texas, and which was his first visit to the city after the judgment in his favor in this court, he was requested to attend at the office of the solicitors, in the evening, and attended accordingly, where he met the defendants, and was then, for the first time, informed that they had been interested in the prosecution of the suit, and had expended much time and money in the litigation, and were therefore expected to participate in the division of the property recovered. That complainant was taken by surprise when the suggestion was made at the meeting, by the solicitor, that in the division, one-sixth part of the estate should be given to each of the defendants, and including Primrose, and only one-third to himself. That he was unprepared to act with judgment in the matter, having been wholly unadvised of the object of the meeting, or of the persons who were to be present; that no time was given him for reflection or counsel; that he was ignorant of the value of the property, and incapable of acting understandingly upon the subject, and had no information as to the amount he was thus suddenly called on to give away That a deed was immediately prepared by ...

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