McIntire v. Pryor

after stating the case, delivered the opinion of the court.

■ Two questions are presented by the record in this case: First, that of fraud in the sale and subsequent manipulation of the property in suit; and, second, that of laches in instituting these proceedings.

1. The question of fraud necessarily involves the examination of a large amount of testimony, and a scrutiny of the successive steps taken, which finally’resulted in the transfer of the property from its original owner, Mary Pryor, to its present owner of record, Martha Mclntire.

The bill avers and the answer admits the execution of a deed of trust May 2, 1880, by the plaintiff and her husband to Edwin A. Mclntire as trustee, to secure a note for $450, payable to Hartwell Jenison one year after date, with interest at eight per cent. The transaction originated four years previously, (May 2, 1876,) when the plaintiff and her husband .placed upon the sáme property .a deed of trust, in which Brain-ard H. Warner and Henry Mclntire were named as trustees, to secure a note of $500, payable to George E. Emmons two years after date, with interest at ten per cent. This loan had been made through the agency of B. H. Warner & Co., real estate agents, and the note appears to have been purchased as an investment by Jenison, who was then a clerk in the Treasury Department. Upon the maturity of this note, May 2, 1878, twenty-five’ dollars were paid by way of .interest, and fifty dollars on account of the principal, but nothing was done until 1880, when the deed of trust for $450 was given. Jenison appears to have purchased the first note

The note fell due May 2,1881. Neither principal nor interest was paid, and upon the following day, May 3, a warranty deed appears to have been executed by plaintiff and her husband to Martha Melntire, a sister of the principal defendant, for the nominal consideration of five dollars. It does not clearly appear why this deed was executed, as it was never recorded. Upon its face it is an ordinary warranty deed, and although the Christian name of the grantee, Martha, is obviously written over an erasure, attention is called to this fact in the testamentary clause. The grantors’ signatures are probably genuine, although the deed appears to have been procured of the plaintiff in total ignorance of its contents or purport. Indeed, she had never seen Martha Mcln-tire and knew absolutely nothing about her. Edwin A. Mclntire’s explanation is that Pryor came to him; said that he could not pay the note, and asked him whether he could get a purchaser of the property who would take it off his hands and assume the incumbrance and taxes, which he represented to be twenty or thirty dollars; that he offered it to his sister as an investment; had the deed made to her for a nominal consideration, with the understanding that she •would assume the incumbrance and give Pryor a lease on the property for a year. He afterwards ascertained that the taxes were ten times the amount he had supposed, and reported the

It seems somewhat singular that neither of these parties should have been' willing to give five dollars for a piece of property worth at least $1800, and subject only to the lien of a mortgage of about $475, and $250 of special taxes; and equally singular that the Pryors should have been willing to dispose of their equity in the property for so small a sum. Indeed, it is difficult to believe that they knew what they were doing when they signed the deed.

But as nothing has ever been claimed by virtue of this deed, it is practically out of the case, except so far as it tends strongty to show an original design on the part of Edwin A. Mclntire, who had entire charge of the transaction and witnessed the deed, to vest the title to the property in some member of his family, whom the other evidence in the case shows him to have used as a mere eatspaw for himself. •

Failing to induce his sister to take the property, Mclntire, as trustee, obtained .written authority from Jenison to sell upon foreclosure of the deed of trust, ádvertised the property for sale upon June 10, and after a postponement sold the same on June 17, but to whom the property was struck off, and who was the real purchaser, is somewhat uncertain. There is a wide divergence in the testimony on this point. Plaintiff swears that the first intimation she had of the sale was’ the display of the auctioneer’s flag in front of the property, which was then occupied as a coal yard. Not understanding what it meant, her husband went to see Mclntire, who came down that day, and “ said that'the trustee was pushing him, and he was compelled to put the flag up and have a-sale, but that he would allow my husband to bid it in and would knock it down to him.” Three or four witnesses,-who were present at the sale, swore that the property was struck off to Pryor. Plaintiff swore to the same effect, but she was so far from where the auctioneer stood that it was very doubtful whether she

It seems that Jenison, being unable or unwilling to pay the expenses of foreclosure, which amounted to $87.88 and ac-. cumulated taxes to the amount of $278.81, for the purpose of raising money to pay these, executed a nóte to one Emma Taylor for $425, payable in one year, and secured the same by at deed of trust upon the property to the defendant Mclntire as sole trustee. This deed was also executed' on June 29, 1881, and was of even date with the deed executed by Mclntire to Jenison in pursuance of the foreclosure.

The testimony in this case turns largely upon the existence and identity of Emma Taylor. It is charged in the bill that she is a fictitious person, and that a sister of Mclntire’s, whose .name was Emma T. Mclntire, was represented and- h^lrl out by him as Emma Taylor. Certainly, so far as witnesses have sworn to having seen Emma Taylor, they might easily have been led into supposing that his sister was this person. All that we know definitely of Emma Taylor is that from April 1,

What have we in lieu of what we might naturally have ex

In addition'to this most indefinite testimony, we have only the testimony of Edwin A. Mclntire, Martha Mclntire and Emma T. Mclntire, two of whom are parties to this suit aiid strongly interested in the result. Emma T. Mclntire- testifies that she was never called Emma Taylor, and that her middle name was not Taylor, and that she never executed any of the deeds purporting to have been signed by Emma Taylor. Neither she nor her sister seems to have met her more than

We give but little weight to the certificate of the magistrate who was not sworn as a witness, that Emma Taylor appeared before him and acknowledged the deeds to which her name was appended as grantor, since it would have been practically easy for Mclntire to represent another person as Emma Taylor.

The testimony of Mclntire himself with regard to Emma Taylor is extremely unsatisfactory. Notwithstanding the number and magnitude of the transactions in which he took part and acted as her agent, he has no explanation of the manner in which the consideration for these deeds was paid Or received by her, the bank in which it was deposited, or from which it was drawn, and is unable to produce a single check or letter signed with her name. His memory is excellént where he cannot be contradicted and as to unimportant details, but fails him utterly as to the leading facts of the transactions. While for three years his relations with her must have been constant and confidential, collecting and disbursing moneys for her and looking out for real estate investments, yet he produces no account with her, and professes to have completely forgotten that he ever collected rent for her at all. One Alfred Brown who bought property from her in May, 1883, gave $200 in cash and twelve notes of $75 each, payable at intervals of three months, the last maturing in May, 1886, swears that he paid every one of them as they fell due to Mclntire personally; yet Mclntire swears- he has no recollection of collecting these notes, and that Emma disappeared from Washington about 1884. lie tells us that she was a woman who was constantly looking out for bargains in real estate, yet the records show that all her transactions were with him or through his agency, and in every case in

He accounts for his inability to produce letters, receipts, accounts or written evidences of any sort, showing his transactions with her, by an utterly improbable story of a fire in his office, which seems to have conveniently consumed all these documents, including a large ledger, in which her accounts were contained, and to have spared everything else, leaving no mark of fire or even the stain of smoke upon documents showing his relation to others. He professes to have thought that Emma Taylor was engaged in one of the departments, because she came down F street after the hour the departments would close, but never asked her in what department she was employed, and the compiler of the “ Blue Book” swears that no such person was in the employ of the Government in Washington at that time. All the witnesses who testified to having seen a person of that name fixed the time as prior to the date of her first deed, April 1, 1881; and not one of them, except the Mclntires, is able to identify her as the Emma Taylor who signed the deeds in question.

There is strong evidence tending to establish the identity of Emma Taylor and Emma T. Mclntire. A niece of Mcln-tire’s swears that she always understood that the initial in the name of Emma T. Mclntire stood for Taylor,'-and that she was always called Emma Taylor to distinguish her from witness’ sister Emma Y. Mclntire. This witness is corroborated by the production of the family Bible, from which it appears that Emma T. Mclntire’s father was named Edwin Taylor Mclntire. Her own explanation, that her middle initial stood

But it is useless to pursue this subject further. The testimony of the three Molntires is too full of contradictions and absurdities to be given any weight. While under certain circumstances the other testimony for the defendant might. be sufficient to prove that there was such a person as Emma Taylor, when considered with. reference to what we have a right to expect in a case of this kind, it falls far short of it, and when read in connection with plaintiff’s testimony upon the same point, we are left in no doubt that Emma Taylor was a clumsy fabrication. If the person put forward by Mclntire to personate her were not his own sister, it was some one whom he used for that purpose. Under whatever view we take we are satisfied that Emma Taylor was a creation of Mclntire’s brain, born of the supposed necessities of his case, and bolstered up by the false testimony of himself and his sisters. St at nominis umbra.

The subsequent proceedings in the case show a consummation of the fraud by which the property was ultimately vested in Martha Mclntire. The deed of trust given by Jenison to Emma Taylor was never formally foreclosed. It seems that Mclntire had promised Jenison that he would try and find a purchaser of the property before the note fell due on June 29, 1882, so that he might get back a part of the $450 loaned to Pryor, none of which he had received ; but professed himself unable to do so, and so informed Jenison, a man of perfect integrity but of little experience and much unwisdom in business methods, who seems to have had entire confidence in him, and on April 13, 1882, addressed him a note, in which he

After some futile efforts to induce Mclntire to put the property up at auction, he was finally persuaded, on April 19,1882, more than two months before the Emma Taylor note was due, to deed the property to Emma Taylor. This deed was recorded immediately and at the same time with his deed upon foreclosure to Jenison, which had been executed ten months before. Both of these deeds, after being recorded, were returned to Mclntire. This was the last step necessary to consummate the fraud by which the plaintiff lost her property, and Jenison lost the money he had loaned her upon the deed of trust. Had Mclntire been content to defraud the Pryors of their property, he might, after his duties as trustee had been fully discharged, have purchased of Jenison, who doubtless would have been glad to sell for the amount of his mortgage and interest; but his desire also to defraud Jenison of this amount made it necessary for him to introduce another party to purchase Jenison’s interest, from whom his sister Martha (that is, himself) might pose as a bona fide purchaser. In this he overreached himself.

The title remained of record in Emma Taylor until Maj 31, 1884, when she made a warranty deed to the defendant Martha Mclntire for the expressed consideration of $2500. Subsequently, and on September 27, 1887, Jenison arid wife made a quitclaim deed, apparently of further assurance, to Martha Mclntire, for a consideration of $100, paid by the check of Edwin A. Mclntire. The answer avers this deed to have been made to cover and cure a defect in the deed from Jenison to Taylor, but on its face it purported to pass to the grantee, Martha Mclntire, all claims for drawback or rebate on account

¥e do not care to discuss the question whether .Martha Mclntire was a bona fide purchaser of this property. So far as it turns upon her ability to pay the $2500 named as a consideration, it is at least doubtful. So far as it turns upon her actual payment of this consideration, it is more than doubtful. If Emma,Taylor were a fictitious person, and the deed from her a forgery, the title of Martha Mclntire falls to the ground, except so far as it depends upon the quitclaim deed of Jenison to her of September 27, 1887, which it is not improbable was procured by Edwin A. Mclntire for the- very purpose of giving a semblance of title in case Emma Taylor were eliminated from the case. But whatever was done by Martha Mclntire to this property; whatever title she acquired was through the agency of her brother, and she is as chargeable with his frauds as if she had committed them personally. United States v. State Bank, 96 U. S. 30 ; Griswold v. Haven, 25 N. Y. 595 ; Reynolds v. Witte, 13 S. C. 5 . It was held by this court in the case of The Distilled Spirits, 11 Wall. 356 , that the rule that notice of fraud to an agent is notice to the principal applies not only to knowledge acquired by the agent in the particular transaction, but to knowledge acquired by him as agent in a prior transaction for the same principal, and present to 'his mind at the time he is acting as such agent. Much more is this the case where, the fraud is committed by the agent himself in obtaining the title to the property for the benefit of his principal. But further than this, we have little doubt that the property was really purchased for the benefit of Mclntire himself. While Martha Mclntire signed the contract for the construction of the house upon these lands, the testimony of the contractors shows that they supposed they were doing the work for Mclntire himself; that they had no dealings 'with Martha; that they were paid by checks signed by Mclntire himself; although she came down and looked at the houses, and seemed to be pleased with them.

We agree with the Court of Appeals that in view of their strong pecuniary interest. in the case, the improbability of

2. The question of laches only remains to be considered.. The sale was made under the foreclosure of the Jenison mortgage, June 17, 1881. The bill was filed October 21, 1890, a delay of nine years and four months.. Upon the theory of the plaintiff, however, — and it is. upon her allegations and' proofs that the question of laches must be determined,'— the sale was made in her interest. The rent paid by her was''to be applied by Mclntire toward the extinguishment of the Jenison mortgage, and there was nothing definite to apprise her to the contrary until the fall of 1886, when she saw the contractors beginning to build, and-notified them that the property belonged to her and not to Mclntire. But four years elapsed from this time and the property has not been shown to have-greatly increased in value, except, by the improvements, which were allowed to the defendants upon final decree.

We have a right to consider in this connection that' the plaintiff is an.ignorant colored woman; that she has been wheedled out-of her.property by an audacious fraud, committed by one in whom' she placed entire confidence and who assumed to act as her agent; that this agent procured the title to the property to be taken in his own interest for. little more than a nominal sum by the false personation of Emma Taylor; that the property is still controlled and probably

We have no desire to qualify in any way the long line of cases in this court, too numerous even for citation, in which we have held that where the fraud is constructive, or is proved by inconclusive testimony, or by evidence falling short of conviction, and the property has greatly increased in value, great diligence will be required in the assertion of the plaintiff’s rights. But these were all cases either of bills to establish a trust, to open settled accounts, bills not involving fraud, or where the fraud was not clearly proven, or where, with knowledge of the facts, the fraud had been deliberately acquiesced in, bills to impeach judicial proceedings, or where the property had passed into the hands of persons innocent of the fraud, or with no actual notice that a fraud had been committed.

Granting all that may be fairly claimed of these cases, there is another class having a different bearing, in which' it has been held that in cáse of actual fraud a delay, even greater than, that permitted by the statute of limitations, is not fatal to the plaintiff’s claim. The leading case is that of Michoud v. Girod, 4 How. 503 , which was a case of actual fraud committed by trustees of real estate against their cestui que trust. A. bill filed thirty-six years after the commission of the fraud was held not to have been too late. In that case a purchase by an executor through a third person, of property of the testator, was held- to be fraudulent and void, though the sale wás at public auction, judicially ordered, and the result of the evidence was that a fair price was paid. Said Mr. Justice ’Wayne, in delivering the opinion of the court, (page 560): “ In a case of actual fraud, courts of equity give relief after a long lapse of time, much longer than has passed since the executors, in this instance, purchased their testator’s, estate. In general, length of time is no bar to a trust clea,rly established to have once existed; and where fraud is imputed and proved, length of time ought not to.

So, in Prevost v. Gratz, 6 Wheat. 481 , 497, it was said by Mr. Justice Story: “ It is certainly true that length, of time is no bar to a trust clearly established; and in a case where fraud is imputed and proved, length of time ought not, upon principles of eternal justice, to be admitted to repel relief. On the contrary, it would seem that the length of time during which the fraud has been successfully concealed and practised, .is rather an aggravation of the offence and calls more loudly upon a court of equity to grant ample and decisive relief.”

In Baker v. Whiting, 3 Sumn. 475 , one Tidd, being the'' owner of certain land, employed the defendant Whiting as" his agent to care for the same, pay all taxes, etc. Whiting allowed the land to be sold for taxes in 1821 and bought it in himself, keeping the plaintiff uninformed of the facts. The bill was filed in 1837 by the heirs of Tidd, who died shortly after his employment of Whiting. In delivering the opinion, Mr. Justice Story remarked: “Then it is said the plaintiffs are barred from any right in equity by the mere lapse of time. . . . But what is more particularly applicable to thé present ease, twenty years had not elapsed before the filing of the bill; and I apprehend that, in case of a trust of lands nothing short of the statute, period, which would bar a legal estate or a right of entry, would be permitted to operate in equity as a bar of the equitable estate.”

In Allore v. Jewell, 94 U. S. 506 , which was a bill to cancel a conveyance of land alleged to have been obtained by the grantor a few weeks before her death, when from her condition she was incapable of understanding the nature or effect of the transaction, it was held that a lapse of six years before bringing suit to cancel the conveyance could not avail the

In Meader v. Norton, 11 Wall. 442 , three sisters obtained in 1839, from the governor of California, a tract of land which Avas approved by the departmental assembly and possession delivered. Some years after, the husband of one of the sisters, named JBolcoff, suppressed or destroyed this grant and fabricated a pretended grant to himself, and also certain other papers intended to prove'the genuineness of such fabricated grant. Upon these papers; the sons of Bolcoff, he having died, obtained a confirmation of' their claim to the land, the land commissioners supposing that the fabricated papers Avere genuine; and upon such decree a patent issued to the claimants. The fabricated character of these papers being discovered, the grantee of the rights of the three sisters brought a suit in equity to have the defendants holding under the patent declared trustees of the legal title and compel a transfer of that title to him. Held: that the suit, Avhich Avas begun in 1865, Avould lie, and that laches could not prevail ‘as a defence where the relief sought was granted on the ground of secret fraud, and it appeared that the suit Avas commenced a reasonable time after the fraud Avas discovered.

In Insurance Co. v. Eldredge, 102 U. S. 545 , 548, a deed of trust of lands to secure a promissory note Avas released Avith-out the surrender or payment of the note, and without express authority of the holder. It was held that a subsequent purchaser with notice took the land subject to the equitable rights of such holder. The extent of the delay does not clearly appear in the report, but hi the opinion of the court it is said by Mr. Justice Field: “The company, as already stated, must be deemed to have known of the Avant of power in the trustee to release the property from the Coburn deed, and it does not lie in its mouth to object that the complainant did not sooner seek to set aside the priority of lien thus gained ; nor can it aver that his claim to have the instrument cancelled, by which this priority Avas secured, is a stale one,

In Bowen v. Evans, 2 H. L. 257, a bill filed to set aside a sale of lands made nearly fifty years before under a decree, on the ground of irregularities in the proceedings and fraud in the sale, it was held that, in the absence of proof of fraud on the part of the purchaser, or that the estate was sold under the value by reason of any corrupt bargain, the sale was not impeachable; but in delivering the opinion Lord Chancellor Cottenham observed: “ So, when much time has elapsed since the transactions complained of, there having been.parties who were competent to have complained, the court will not, upon doubtful or ambiguous evidence, assume a case of fraud, although upon fraud clearly established no lapse of time will protect the parties to it, or those who claim through them, against the jurisdiction of equity depriving them of the fruits of their plunder.”

The case of Hopkins v. Hammond, 143 U. S. 224 , a leading case in this court, is not to the contrary. In this case two partners owned real estate in common, some of which was used in the partnership business. One died making the other by his will a trustee for the testator’s children, with power of sale of all the real estate, and directing that the business be continued. After carrying on the business for some time the trustee sold the real estate by auction, and bought portions of it in through a third person, and accounted for half of the net proceeds. The. transaction was open and known to all the ces-tuis que trustent, and was objected to by none of them. It was held that there was nothing in this to indicate fraud; that the purchase was riot absolutely void but voidable, and might be confirmed by. thé parties interested, either directly or by long acquiescence* or by the absence of an election to avoid the conveyance within a reasonable time after the facts came to their knowledge. There was a delay of nearly twenty years in this case. In delivering the opinion the Chief Justice said: “Each case must necessarily be governed by its own circumstances, since, though the lapse of a few years may be

So in Felix v. Patrick, 145 U. S. 317 , where a bill was filed after a lapse of twenty-eight years to impeach a title fraudulently acquired through the location of certain land script, and the land was shown to have increased enormously in value by being taken within the limits of a city, and to have been largely occupied by persons who had bought on the strength of the apparent title, and erected buildings of a permanent character, it was held that the complainant was barred by laches, but in the opinion of the' court it is said: “ The law pronounces the transaction a fraud upon her, but it lacks the element of wickedness necessary to constitute moral turpitude. If there had been a deliberate attempt on his part by knavish practices to beguile or wheedle her out of these lands, we should have been strongly inclined to afford the plaintiffs’ relief at any time during the life of either of the parties; but as the case stands at present justice requires' only what the law, in the absence of the statutory limitation, would demand — the repayment of the value of the script with legal interest thereon.”

In Norris v. Haggin, 136 U. S. 386 , plaintiff filed his bill in 1884, alleging an actual fraud committed against him by his two attorneys in 1859, twenty-five years previously, and that he had only discovered the fraud a short time before commencing his suit. The case was heard on demurrer to the bill, and the court found that “ there are many things about the bill which are peculiar and calculated to throw suspicion on the claims.” It also found that the statement that the complainant had only come to a knowledge of the alleged fraud within a short time of the filing of the bill was shown by the

We do not wish to be understood as. holding that the plaintiff, even in the case of actual fraud, may wait an indefinite time, or always so long as the statute of limitations would permit him to bring an action at law before asserting his rights; but where the fraud is clearly proven, the court will look with much more indulgence upon any disability under which the plaintiff may labor as excusing his delay. As was said in Townsend v. Vanderwerker, 160 U. S. 171 , 186: “ The question of laches does not depend, as does the statute of limitation, upon the fact that a certain definite time has elapsed since the cause of áction accrued, but whether, under all the circumstances of the particular case, plaintiff is chargeable with a want of due diligence in failing to institute proceedings before he did.”

The circumstances of this case are so peculiar; the fraud so glaringthe original and persistent intention of Mclntire through so many years to make himself the owner of the property, so manifest; the utter disregard shown of the rights of the plaintiff, as well as of Jenison, the mortgagee, upon whose ignorance in the one case and whose confidence in the other he imposed so successfully; the false personation of Emma Taylor, and the fact that the decree in favor of the plaintiff can do no possible harm .to any innocent person, demand of us an affirmance of the action of.the Court of Appeals. Its decree is accordingly

Affirmed.