Roby v. Colehour

delivered the opinion of the court.

The principal facts appearing upon the present motion to dismiss these writs of error for want of jurisdiction in this court or to affirm the decrees, are as follows:

' By deed of date of July 18, 1871, Henry F. Clarke and others conveyed to William H. Colehour certain lands in' Cook County, Illinois, embracing-those here in dispute, subject to a mortgage for $4000 held by Mary P. M. Palmer. The sum of $10,000 was paid in cash, and the.grantee executed his notes, aggregating $86,000, for the balance of the purchase money; and, for the purpose of securing them, executed a deed con"veying the lands tó Y. C. Turner in trust. William Hansbrough, Charles W. Colehour, Wesley Morrill and Francis M. Corby were interested in the profits to be derived from their sale. Hansbrough sold and assigned his interest to Charles W. Colehour and Edward- Roby; and Charles W. Colehour acquired the interests of Corby and Morrill. Roby executed, to Hansbrough his notes for $4400, and subsequently paid them. The Colehours and Roby made an arrangement for subdividing and selling the property. That arrangement ivas evidenced by a written declaration of trust made by William H. Colehour in October, 1873, which Charles W. Colehour and Edward Roby accepted, and by which it ivas provided, among other things, that after the payment of all sums due ,on the notes secured on the land, and all moneys advanced for its

It may be here stated that another writing was produced bearing date August 16, 1873, and purporting to be a declaration of trust with respect to this property.

Charles W. Colehour, September 22, 1876, released and conveyed to William H. Colehour all his right, title and interest in certain lands, including those here in controversy ; and, subsequently, August 30,1878, filed his petition in bankruptcy, showing debts to the amount of over $800,000. Having been adjudged a bankrupt, he conveyed his property and interests of every kind, accordihg to the course and practice of the court, to an assignee in bankruptcy; and thereafter — the answer of Boby in the principal case alleges — “ said Charles W. Colehour had no right or interest therein.” The same answer, referring to this petition in bankruptcy, further states: “Said Charles W. Colehour having in 1876, for a sufficient and valuable consideration, conveyed all his interest in and to said land and all claims thereon to said William H. Colehour, and having no interest in said land or the proceeds thereof, or in the title in said William H. Colehour, did not mention the same or any part thereof in his inventory filed in said District Court of the United States in such' proceeding in bankruptcy; and said Charles W. Colehour had not, at said date, to wit, on the 30th- day of August, 1878, any right, title or interest ii? or to, or claim on, said lands, or any of the proceeds thereof.”'-.

Boby, August 31, 1878, filed his petition in bankruptcy. Having been adjudged a bankrupt, he conveyed, September 7, 1878, all his assets to his assignee, and. afterwards, November 23, 1880, was discharged from all debts and claims provable against his estate existing on the day his- petition in bankruptcy was filed.

On the 1st day of May, 1879, William H. Colehour executed to Charles W- Colehour a deed, covering the lands in dispute,.

On the 30th of January, 1890, Charles W. Colehour brought a suit in equity {the principal one of the above cases) in the Circuit Court of Cook County, Illinois, against Edward Eoby and William H. Colehour. Eor the purposes of the present-hearing it is only necessary to state that the theory of the bill was that Eoby, by fraud and in violation of his -obligations as attorney for the plaintiff- ¿nd the defendant, William H. Colehour, had acquired, at execution sales and gth.erwise,. the legal title to the lands in dispute, embraced by the deed , of trust of October, 1873; and that if not barred in equity by. his acts and conduct from claiming any interest in them, he was entitled to only one-quarter of the net profits after all debts and liens against them were paid. The relief prayed was a decree declaring a certain deed from W. H. Colehour to Eoby to be void, and that it be' set aside as a cloud upon the title of the plaintiff and W. H. Colehour; that a receiver be appointed to whom should be conveyed the titles claimed by the respective parties; that the lands b sold and the pror ceeds held subject to the final decree in the cause; that the .plaintiff and W. H. Colehour be decreed to be the owners of the equity of redemption; and that such other relief be given as was agreeable to equity.

The defendants answered the bill, -and W. H.xColehour filed a cross-bill for a decree establishing the interests of the parties to be one-fourth in Eoby and W. H. Colehour,. each, and one-.half in Charles-W. Colehour.

'. In his answer'to the original bill, which stood as his answer to the cross-bill, Eoby denied that he had acted in bad' faith, or that the relation of attorney and client exist9d between him and the Colehours, or either of them, at,the time he . purchased- the lands in dispute. • Eeferring to the proceedings in bankruptcy Against him, his answer. alleged that after-the 31st day of August, 1878, the date of the filing of his petition in bankruptcy, “ to wit, on the 4th day of February, a.d. 1882, the assignee in bankruptcy of this defendant sold the assets of _ this defendant, including all his interest derived

The court, while acquitting Roby of any actual or intentional fraud, held that, consistently with the relations existing between him and the Colehours, he could not, at the time of acquiring the titles under which he claims, buy the lands and hold them adversely to those jointly interested Avith him. Judge Tuley, delivering the opinion of the Circuit Court of Cook County, said: “ The law Avill hold Mr. Roby to be a trustee for the Colehours, for C. W. Colehour to the extent of one-half, and W. H. Colehour one-quarter, of all the property so purchased by him under or through such judgment proceedings, he, however, to be refunded the moneys which he has paid therefor. He cannot hold the property} because he must be treated as acquiring it Avhile the relation of attorney and client existed.”

A decree, in accordance with these views, was entered, appointing a receiver of the property, requiring Roby, William H. Colehour and Charles W. Colehour to convey to' him-all the titles to the lands respectively acquired or held '.by them, etc.

At the same time the court dismissed for want of equity certain suits — three of the suits mentioned in the title to this opinion — which Roby had instituted for the recovery of part of the lands under the titles Avhich, as stated, he had acquired by purchase at execution sales and otherwise. These suits had been previously consolidated with the suit, just abo\Te mentioned, brought by Charles W. Colehour.

Upon, appeal to the Supreme Court of Illinois, the decrees

1. ’That, in opposition to the contention of Roby, the proceedings whereby he was adjudged a bankrupt and discharged from his obligations, etc., “ did not operate in law or equity to discharge said Roby from all his obligations, liabilities, duties and trusts with respect to and growing out of his interest in said lands and of his relations to said parties.”

2. That Roby claimed and insisted that under and by virtue of the provisions of the laws .of the United States he, as purchaser from his assignee in bankruptcy, took such interest as a stranger, free and clear from any duties or obligations or connections existing, prior to his petition in bankruptcy, between him and the Colehours, or either of them, arid that the above deed of May 1, 1879, was void, both as to his assignee in bankruptcy and to him as purchaser from such assignee, and passed no right to Charles W. Colehour; “but this court [the Supreme Court of Illinois] decided against all the said claims so made by said Roby, and also decided that such deed was and is valid against said assignee in bankruptcy, and against said Roby as purchaser from such assignee.”

3. That Roby insisted that by the proceedings in bankruptcy against Charles W. Colehour the latter was divested of •all interest in and claims upon the lands. in his present bill mentioned or the profits thereof, and of all interest in common with ~W. IT. Colehour or either of them, and that he, Roby, was 'by operation thereof exempted from all claims of Charles W. tíolehour and from his suit on account of said land,- and that the necessary effect of such record and proceedings in bankruptcy was that he was not chargeable to Charles "W. Colehour; “but this court,” the certificate of the Chief Justice proceeds, “ in considering the law and facts of the cases, decided against the claims of said Roby so pleaded, claimed and insisted on, and decided that such was not the legal operation and effect of such proceedings; and that Charles W. Colehour

Has this court jurisdiction to review the decree in these consolidated causes under the statute, (Eev. S.tat. § 709,)' providing that “a final judgment or decree in any suit in the highest court of a State where any title, right, privilege or immunity is claimed under the Constitution, or any . . -. authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party, under such Constitution, . or authority,' may be reexamined and reversed or affirmed in the Supreme Court upon a writ of error ? ”

This question is a close one. But although it does not appear from the opinion of the court of original jurisdiction, or the opinion of the Supreme Court of Illinois, that either .court formally passed upon any question of a Federal nature, the necessary effect of the decree was to determine, adversely to Eoby, the rights and -immunities claimed by him, in the pleadings and proof, under the proceedings in bankruptcy to which reference has been made. We must not be understood as holding that the certificate from the Chief Justice of the latter court is, in itself, and without reference to the record sufficient to confer jurisdiction upon this court to reexamine the1 judgment below. Our jurisdiction being invoked upon the ground that a right or immunity, specially set up and claimed under the Constitution or authority of the United States, has been denied by the judgment sought to be, reviewed, it must appear from the record of the case either that the right, so set up and claimed, was expressly denied, or -that such was the

While the motion to dismiss must, therefore, be overruled, yet, as there was color for it, we must inquire whether the questions on which jurisdiction depends are such as, in the language of ,our rule (6), not to heed further argument. We are of .opinion that they are of that class. When Charles W. Colehour was adjudged a bankrupt he does not appear to have held any interest in the lands now in controversy. The answer of Roby distinctly states that he, Charles W. Cole-hour, in 18-76, for a sufficient and valuable consideration, conveyed all his interest to W. H. Colehour, and had no interest -in said lands at the date of his petition in bankruptcy filed in. 1878. The decree is evidently based, so far as Charles W. Colehour is concerned, upon the deed to him by William H. Colehour, executed in 1879, although the respective interests of the parties were established with reference to the declaration of trust made in October, 1873. There is, consequently, no ground upon which to rest the contention that Charles W. Colehour had any interest or right in the lands that passed to his assignee in bankruptcy.

. Equally without force is the contention that the adjudication of Roby to be a bankrupt, followed by his conveyance to his assignee in bankruptcy, and his purchase from such assignee, had any effect upon the rights of William H. Cole-hour or Charles W. Colehour. The respective interests of

Whether such relations, in fact, existed between the Cole-hours and Eoby as prevented him, consistently wfith those relations, from purchasing the lands for- himself, in other

Affirmed.