« EelmineJätka »
sessment, or upon which she would erect a suitable mill for working the ore. There is no difference in the tone of her letters written prior or subsequent to February, 1888. Defendant admits that he promised complainant a half interest in the Gilded Age and Hopewell claims if she would send up a mill with two concentrators, which she agreed to do; but he denies that she complied with her promise. He also admits that he offered to give her one half interest in any of his mines upon which she would furnish a mill, but says that this arrangement was never carried out. The copper claims that Cox and Dodge were originally interested in, and whose interests the complainant afterwards obtained, were located in 1884. The assessment work was not kept up thereon, and the claims were relocated in the spring of 1888, in complainant's name. The testimony tends very strongly to show that they were of no real value, and were what is known in mining parlance as "wild cat claims." The “Yount,” subsequently known as the "Paymaster," was a sil.
mining claim, and was located in the joint name of complainant and defendant. There is no controversy as to that claim. Complainant insists that the witnesses Derre and Peasley corroborated her testimony as to the agreement that she was an equal owner with defendant in all of the mining properties set out in her bill. The testimony of these witnesses is confined to their recollection of conversations had with the defendant, wherein he made the general statement that complainant was his partner in all of his mining property. Defendant admits that he told Peasley when he was at work on the Joanna mine, under a lease, that complainant had authority to sell the mine, and, if sold, that they would each have one half of the profits of the sale. He denies that he ever told Peasley or Derre that complainant was an equal partner of his in all the mines he owned. These declarations of defendant, of whatever purport they may have been, were made to strangers to the transactions between complainant and defendant in general offhand conversations, which the witnesses could not be expected to recollect from any interest they might have in the matter, and may have been imperfectly heard or incorrectly remembered, and were for this reason, as well as others, insufficient to establish the contract between the complainant and defendant. Purcell
. Miner, 4 Wall. 517. The complainant advanced to defendant during the year 1888 about $500. There is, in relation to this, as in other matters, a conflict as to the purpose for which the money was advanced, and also some difference as to the amount advanced, the complainant's testimony supporting her bill and defendant's is in favor of his answer. The theory upon which complainant principally relies for a decree in her favor is that the testimony given by defendant is absolutely false, and unworthy of belief.
The characters of complainant and defendant were vigorously attacked in the oral argument. The testimony shows that complainant is an educated woman of literary attainments and culture, having, or claiming to have, an extensive and friendly acquaintance with men of great wealth, who are seeking financial ventures of a speculative character, and is exceedingly hopeful and somewhat visionary as to her ability to make a success of any enterprise which she attempts
to carry out. The defendant is a rough, frontier backwoodsman, a
be repaid to Mrs. Ashley (her aunt) by defendant and herself, and, in addition thereto, Mrs. Ashley was to receive the sum of $10,000 out of the money to be realized from the sale of the copper claims, and that at that time complainant believed that a sale of the copper claims was a certainty. No sale was ever perfected.
After the correspondence between the parties ceased, the complainant sent an attorney and an agent to White Pine county, to investigate the matters involved in this controversy. At that time suit was brought by her agent in her name against the defendant to recover the said sum of $4,000, claimed to have been obtained by false pretenses. That suit was, before the commencement of this suit, dismissed, at the request of the complainant. There are many other facts and circumstances in the testimony upon which the respective parties rely, but enough has been referred to to illustrate the general character of all of the material evidence introduced. Complainant does not rely upon any written contract. The only writing upon which she relies is contained in the letters of defendant. These letters do not refer to any oral contract. No statement is contained therein as to what the terms of any parol contract or agreement were. The most that is claimed for them is that defendant recognized that complainant had an equal interest with him in the Joanna and other claims. There is no pretense that the letters state the terms of any contract whereby such an interest was acquired, or was to be acquired, kept up, or maintained.
After a careful and thorough examination of all the testimony, I am unable to say that it satisfactorily proves a mining copartnership, as claimed by complainant. The case does not come within the rule announced in Settembre v. Putnam, 30 Cal. 495, or Lawrence v. Robinson, 4 Colo. 577. The testimony is insufficient to create any trust by operation of law. Ducie v. Ford, 138 U. S. 592, 11 Sup. Ct. Rep. 417; 10 Amer. & Eng. Enc. Law, 12, and authorities there cited. The testimony of complainant is at best uncertain and indefinite as to the lapse of time during which the alleged copartnership was to continue; as to the length of time that defendant was to devote his skill, energy, and attention to the exploration and development of the mining properties; as to the amount of money complainant was to advance; and as to the time that complainant was to continue to devote her efforts to make a sale of any or of all of said property. The testimony as to any contract is so vague, uncertain, and contradictory that a court of equity would not be justified in exercising its extraordinary jurisdiction to decree a specific performance.
Whether a contract be such as is provable by parol, or is required by the statute of frauds to be in writing, it must be certain and unequivocal in all its essential terms, either within itself or by reference to some other agreement or matter, or it cannot be specifically enforced. 1 Story, Eq. Jur. $$ 764, 767; Colson v. Thompson, 2 Wheat. 336; Purcell v. Miner, 4 Wall. 513, 519; Williams v. Morris, 95 U. S. 456; Hennessey v. Woolworth, 128 U. S. 438, 9 Sup. Ct. Rep. 109; Minturn v. Baylis, 33 Cal. 133; Agard v. Valencia, 39 Cal. 301; Evans v. Lee, 12 Nev. 399.
Let judgment be rendered in favor of defendant for his costs.
BLANKS et al. v. KLEIN et al.
Judicial admissions and pleadings by a party in another suit do not oper. ate as an estoppel, but are open to explanation or rebuttal, especially when the fact admitted was not in issue in such other suit, and the pleading was
signed without reading it. 2. FRAUDULENT CONVEYANCES-EVIDENCE.
A father and son, who owned, as partners, in Memphis, a banking business, and also real estate estimated at $400.000, sold to the father's wife two store lots and buildings for $24,000. This sum she paid by checks on the bank, where she had deposited moneys which came to her from ber mother's estate in New Orleans. The dred was at once delivered, but nothing was said of the sale to outsiders, and the deed was not recorded for 10 months, and on the day before the bank failed. The son continued to collect the rents from the property as theretofore, but he was general business manager for his mother, and had long collected rents from her other property. The positive testimony all tended to show good faith on the wife's part. Held, that neither the collection of the rents nor the withholding of the deed was
evidence of fraud on her part. 3. SAME.
It was immaterial whether the proceeds of her mother's estate were remitted from New Orleans in cash or by credit to the bank, it being enough that
the sum was legally placed to her credit. 4. SAME.
In view of the large amount of real estate owned by the firm, there can be no presumption that the sale, if known, would have affected the standing of the bank, or that it would have affected the action of creditors in making
deposits Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Mississippi.
In Equity. Bill by A. L. Blanks, a resident and citizen of Alabama, and F. W. Starke, representative of Margaret Starke, deceased, a resident and citizen of Germany, against Mrs. E. B. Klein individually and as executrix of John A. Klein, deceased, and George M. Klein, all residents and citizens of Warren county, Miss., to set aside an alleged fraudulent conveyance of real estate. The circuit court dismissed the bill, and complainants appeal. Affirmed.
There was a prior hearing on motion for an alternative mandamus to the clerk below to certify a copy of the record. See 2 C. 8. App. 155, 1 C. C. A. 254, 49 Fed. Rep. 1.
Statement by LOCKE, District Judge: In 1882, John A. Klein and George M. Klein, father and son, were engaged in the banking business in Vicksburg, Miss., as copartners under the name and style of the Mississippi Valley Bank, and owned, together with their banking business, large amounts of real estate. On December 23, 1882, they conveyed by deed with general warranty to Mrs. E. B. Klein, appellee herein, wife of one and mother of the other, two store lots, with buildings, situated in that city, for the consideration of $24,000, which amount had come from her mother's estate, and was to her credit in the bank of her husband and son, and was paid by checks upon said bank. The deed was put away by her, but was not recorded until No. vember 20, 1883. Mrs. Klein had other pieces of real estate, the rents of which were collected by her son, and the accounts kept at the bank. No notice was given of the sale to the tenants or any one else, and her son collected and kept an account of the rents of these two pieces of property, the same as he did of the others, although there does not appear any effort to conceal the transaction, or
any suggestion or understanding that it should be kept secret. The day after the filing of the deed for record-November 20. 1883—the bank failed, and closed its doors, and this is a suit ip equity brought by several of the creditors of the bank to subject these two pieces of property to their judgments obtained in suits ayainst Mrs. E. B. Klein, as executrix of J. A. Klein, deceased, and George M. Klein, his partner, returned nulla bona.
John A. Klein, the senior member of the banking firm, had been in failing health for some time, and at the time of the failure of the bank had so lost his strength of mind that he transacted no business; nor was he informed of the failure before his death, which occurred in the February following. The condition of his health and mental strength at the time of the execution of this deed of conveyance is in question. There was no question of insufficient consideration to the credit of Mrs. Klein on the books of the bank, the amount for which the checks were drawn at that time, or whether it came from the estate of her mother, and was her own private property. In the circuit court the bill was dismissed, and from that judgment this appeal has been taken.
Wade R. Young, (M. Marshall, of counsel,) for appellants.
Before PARDEE and McCORMICK, Circuit Judges, and LOCKE, District Judge.
LOCKE, District Judge, after stating the facts as above, delivered the opinion of the court.
The only question for determination in the case before us is the good faith of Mrs. E. B. Klein in purchasing the property in question, and receiving and holding the deed, and finally having it recorded. The fraudulent intent of any one else, if proven, could not affect her title, unless it could be shown that she was a party to it, intending that it should be used to the injury of the creditors. The substance of the assignment of errors is contained in the eighth assignment that the court erred in finding the law and the facts against the complainants, and in dismissing the bill. In determining this question all others will be considered.
Mrs. Klein denied on oath any fraudulent intent, and testified positively to the good faith of the transaction, the payment of the consideration in full, her utter ignorance of the involved condition of her husband and son's bank, and her not knowing the necessity of recording the deed, or of any injurious effect from the nonrecording of it; and the question is whether the circumstances of the failing health of her husband, John A. Klein, the nonrecording of the deed until the day preceding the failure of the bank, the lack of notice to tenants of the sale, and the continued collecting of the rents and caring of the property by George M. Klein, were sufficient to establish the presumption of fraud on the part of Mrs. Klein. The burden of establishing by legal proof the charges in the bill is upon appellants.
The first ground taken by them is that John A. Klein, at the time of the pretended conveyance, was so feeble in mind as not to comprehend any business matters, and therefore without capacity to contract. If this was so, the conveyance would, of course, be null and void. Examining the entire evidence upon that question, the first that we find is contained in the answer of Mrs. Klein in the case of the Valley National Bank of St. Louis vs. Geo. Irving et al., in which she says her husband "had been afflicted with disease which was