Prevost v. Gratz. Gratz v. Prevost. 6 W.

[503] leads to the

It

to be charged, in the adjustment of their partnership concerns. adds some force to these considerations that Col. Croghan continued, during the residue of his life, to entertain the same friendship and confidence in M. Gratz; and this at least demonstrated his belief that the Tenederah lands had not been unjustly sacrificed by him. If we look to the subsequent conduct of M. Gratz, in relation to the Tenederah lands, his great expenses in making improvements on it, after the year 1786, and his diligent attention to it, it conclusion that he always considered himself as the real bona fide owner. His possession of it must have been known to the parents of the plaintiff, whose mother was the heir of Col. Croghan; and it is proved that his father had the most unreserved and frequent access to the papers of Col. Croghan; and that he actually resided several years in Philadelphia, with the express view of examining the estate, and finally abandoned all hopes of deriving any benefit from the fragments that were left of it. The very account now produced by the plaintiff, by which this trust is brought to light, was delivered over to him by the representatives of M. Gratz, among the other papers of Col. Croghan; and yet, if there had been any thing false or foul in the transaction, it seems almost incredible that M. Gratz, into whose possession it came as early as 1782, should have suffered it to remain as a monument of his own indiscretion, and an evidence of his want of good faith.

If, on the other hand, the trust is to be considered as a trust to sell and apply the proceeds to the payment of the debt due to B. and M. Gratz, most of the considerations already stated will apply with equal force. If the sale was real, and Howard did not comply with the terms of sale, Col. Croghan having knowledge of the fact, might have been well satisfied to let M. Gratz hold the land, at the price thus fixed by the sale. To him it must have been wholly immaterial who was the purchaser, if the full value was obtained; and that it

was obtained, in Col. Croghan's own judgment, seems [*504] undeniable. The only *question is, whether such knowl

edge can be inferred; and after such a length of time, under all the circumstances of this case, we are clearly of opinion that it ought to be inferred. Col. Croghan had it in his power to make inquiries on the subject; if he did, and was satisfied, his acquiescence was conclusive; if he did not, he considered that the sale, as between himself and Gratz, was consummated when the price was fixed, and was willing that the trust should be deemed extinguished forever. If after the lapse of forty years, and the death of all the original parties, we were to come to a different conclusion, it would be pressing doubtful circumstances with uncommon rigor

Prevost v. Gratz. Gratz v. Prevost. 6 W.

against unblemished characters, where the confidence reposed was so intimate that the whole evidence could not be presumed to be before us. We should indulge in opinions which might be erroneous, and might, in an attempt to redeem the plaintiff from a conjectural fraud, inflict upon others the most gross injustice. We think, therefore, that the true and safe course is to abide by the rule of law, which, after a lapse of time, will presume payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances may reasonably justify it. The doctrine in Hillary v. Waller, 12 Vez. 261, 266, on this subject, meets our entire approbation. It is there said that general presumptions are raised by the law upon subjects of which there is no record or written instrument, not because there are the means of belief or disbelief, but because mankind, judging of matters of antiquity from the infirmity and necessity of their situation must, for the preservation of their property [* 505 ] and rights, have recourse to some general principle, to take the place of individual and specific belief, which can hold only as to matters within our own time, upon which a conclusion can be formed from particular and individual knowledge. In our judgment, the trust in the Tenederah lands, such as it was, must be now presumed to have been extinguished by the parties, in the lifetime of Col. Croghan. There is no ground then for relieving the plaintiff as to this part of his claim.

The remaining point in this case respects the M'Ilvaine bond and judgment. On the 30th of March, 1769, Col. Croghan gave his bond to Wm. M'Ilvaine for the sum of £400, which debt, by the will of M'Ilvaine, became on his death vested in his widow, who afterwards intermarried with John Clark. A judgment was obtained upon this bond against Col. Croghan, in the name of Wm. Humphreys, executor of M'Ilvaine, in the court of common pleas, in Westmoreland county, in Pennsylvania, at the October term, 1774, upon which a fi. fa. issued, returnable to the April term of the same court in 1775. On the 8th of March preceding the return day of the fi. fa. Bernard Gratz purchased this judgment from Clark, and received an assignment of it, for which he gave his own bond for £300 and interest. About this period, Col. Croghan appears to have been considerably embarrassed in his pecuniary affairs, and several suits were depending against him. Bernard Gratz having failed to pay his bond, was sued by Clark, and in 1794, a *judgment was recovered against him for 891. 6s. 10d., the [* 506 ] balance then due upon the bond, which sum was afterwards

paid by M. Gratz. The judgment of Humphreys against Col. Croghan, was kept alive from time to time, until 1786, and in that

Prevost v. Gratz. Gratz v. Prevost. 6 W.

year, on the death of Humphreys, Joseph Bloomfield was appointed administrator de bonis non, with the will annexed, of Humphreys, and revived the judgment; and it was kept in full force until it was finally levied on certain lands of Col. Croghan, as hereafter stated. Some time in the year 1800, Bernard Gratz assigned this judgment to his nephew Simon Gratz, one of the defendants, partly in consideration of natural affection, and partly in consideration of the above sum of 891. 6s. 10d., paid towards the discharge of the bond of Bernard Gratz, by his (Simon's) father, Michael Gratz. Simon Gratz having thus become the beneficial owner of the judgment, proceeded to issue executions on the same, and at different times between September, 1801, and November, 1804, caused the same executions to be levied on sundry tracts of land of Col. Croghan, in Westmoreland and Huntington counties, of five of which he, being the highest bidder at the sale, became the purchaser. The tracts so sold contained upwards of 2,000 acres, and were sold for little more than $1,000. The title to some part of the land so sold appears to be yet in controversy.

Shortly after the assignment of the M'Ilvaine judgment to Bernard Gratz, on the 16th of May, 1775, Col. Croghan, (probably having

knowledge of the assignment, though the fact does not [*507] appear,) by two deeds of that date, conveyed to B. Gratz

for a valuable consideration expressed therein, about 45,000 acres of land. A declaration of trust was executed by Bernard Gratz, on the 2d of June, 1775, by which he acknowledged that these conveyances were in trust to enable Bernard Gratz to sell the same, and with the proceeds to discharge certain enumerated debts of Col. Croghan, and among them the debt due on the M'Ilvaine bond, and to account for the residue with Col. Croghan.

The subject of the M'Ilvaine judgment was very minutely considered in the court below, by the learned judge who decided the cause, and the principal grounds on which the plaintiff relied for a decree were so fully answered there, that a complete review of them

*

does not seem to be necessary in this court. It is observ[*508] able that the bill charges that the assignment of this judgment was secretly procured by Bernard or Michael Gratz, or both of them, after the death of Col. Croghan, [* 509] and that nothing was due upon the judgment; or if any thing was due it was paid upon the assignment, out of moneys belonging to the estate of Col. Croghan. The bill [510] asserts no other ground for relief on this subject. The proof in the cause completely establishes the material [*511] charges in the bill to be false. The assignment * was

Prevost v. Gratz. Gratz v. Prevost. 6 W.

made to Bernard Gratz, in the lifetime of Col. Croghan; the judgment never was paid or satisfied by Col. Croghan, or out of his estate; and no fraud is pretended in the bill to have taken place in the levy of the judgment on Col. Croghan's lands, independently of the legal inference to be deduced from the facts charged in the bill. If Bernard Gratz was not, at the time, in the situation of a trustee of Col. Croghan, there is no pretence to say that he might not rightfully and lawfully purchase the judgment. And there are very strong reasons to believe that it was purchased with the knowledge, and for the relief of Col. Croghan. It was somewhat insisted upon in the court below, that by a power of attorney of the 10th of July, 1772, Col. Croghan constituted Bernard and Michael Gratz trustees of all his lands, with unlimited power to sell them and pay off his debts. But this ground has not been insisted upon here, and, indeed, for the best reasons. There is the strongest presumptive evidence that this power was never acted upon, or was revoked, and held a nullity before the time of the assignment in question.

The ground that has been principally relied upon here, is, that Bernard Gratz having taken the two trust deeds, in 1775, already referred to, in trust for the payment of this very debt out of the proceeds of the sale of the lands conveyed by those deeds, could not proceed to satisfy the judgment out of any other lands, without notice to Col. Croghan or his representatives. But there is not the least evidence in the cause to show that any of the lands

* conveyed by either of these deeds ever turned out pro- [* 512] ductive. And there are the strongest presumptions in the case, and it seems, indeed, to be on all sides conceded, that either the title to these lands wholly failed, or became altogether unsalable. There is no reason to suppose that these facts lay more peculiarly in the knowledge of one party than the other; and if the trust became. utterly frustrated and inert, there could not be any necessity of giv ing a formal notice that Bernard Gratz must look to other property, and particularly to the property in Westmoreland county, upon which alone, it is understood, by the laws of Pennsylvania, the lien of the judgment attached.

There is no proof that any assets ever came to the hands of Bernard Gratz or Michael Gratz, out of which this judgment was or could be satisfied. Bernard Gratz was alone interested in it; and it was kept alive, from time to time, until the levies in question were made. It will be recollected, also, that even if Michael Gratz were disposed to connive, after the death of his brother, in the levies of his son Simon, William Powell, who was another executor, had no such motive. And it is not shown that, by any law or usage in

Bowie v. Henderson. 6 W.

Pennsylvania, any notice is required to be given to any other persons than the personal representatives of the deceased, of the execution of any such judgment on lands, so that laches could be fairly imputed to the executors for neglect to give notice to the heirs of Col. Croghan of the sale. The very length of time during which

this judgment remained unsatisfied, is evidence of the [*513] desperate state of Col. Croghan's affairs; and the record abounds with corroborations of the great embarrassments attending all his concerns, and of apparent insolvency at the time of his decease. No evidence has been submitted to us to establish that the levies on the lands, under the judgment, were fraudulently conducted by the sheriff, or that they did not sell for the full value of the title, such as it was, which Col. Croghan had in them. It appears that the title, as to some part of them, is still in controversy. And Simon Gratz, the judgment creditor, had as much right, if the sale was bona fide conducted, to become the purchaser, if he was the highest bidder, as any other person.

Upon the whole the majority of the court entirely concurs in the opinion of the circuit court upon this part of the case. But, as to the decree respecting the proceeds of the Tenederah lands, we are all of opinion that it ought to be reversed.

If the court had felt any doubts as to the merits, it would have been proper to have given serious consideration to the very able argument made at the bar, respecting the defect of proper parties to the bill. But, as upon the merits the court is decidedly against the plaintiff, it seemed useless to send back the cause upon this objection, if it should be found tenable, when, after all, the case furnished no substantial ground for relief in equity.

9 P. 405; 1 H. 189; 4 H. 503.

BOWIE v. HENDERSON et al.
6 W. 514.

The 3d section of the act of congress, of March 3, 1803, (2 Stats. at Large, 237,) for the relief of insolvent debtors in the District of Columbia, does not create any express or implied exception to the operation of the statute of limitations, by making the insolvent a trustee for his creditors, in respect to his future property, nor is any demand included in the schedule of his debts made thereby a debt of record.

APPEAL from the circuit court of the District of Columbia. [ * 515 ] This suit was instituted by the appellant, against the respondents, on the chancery side of the circuit court of the District of Columbia for the county of Alexandria, under the local law giving a process in chancery in the nature of a foreign attachment.