# Kirby v. Tallmadge

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United States Supreme Court
160 U.S. 379
Kirby v. Tallmadge
This was a bill in equity filed by Maria E. Tallmadge against the appellants to set aside and remove, as a cloud upon her title, a deed made by the appellants Richard H. Miller, Elizabeth Houchens, and Ella A. Goudy, claiming to be heirs at law of one John L. Miller, deceased, dated August 30, 1888, and purporting to convey to the appellant Kirby the property therein described. The bill further prayed for the cancellation of a trust deed executed by the appellant Kirby and his wife to the defendants Willoughby and Williamson, and for an injunction against all the defendants except Kirby, restraining them from negotiating certain notes given by Kirby for the purchase of said lots, etc.
The facts disclosed by the testimony show that in 1882 Mrs. Tallmadge, the appellee, purchased of one Bates, for a home, lots Nos. 77 and 78, in square 239, in the city of Washington, with the improvements thereon, for the sum of $10,000, $5,000 of which were paid in cash, the residue to be paid in five installments of $1,000 each. Instead of taking the title to the property in herself, she furnished the money to John L. Miller, a friend of the family, who paid the $5,000 cash with the money thus furnished, and at her request took the title in his own name, and executed notes for the deferred payments, which he secured by a deed of trust upon the property. Subsequently, and in June, 1883, Miller also purchased with the funds of Mrs. Tallmadge the adjoining lot, No. 76, taking title in his own name, and executing a deed of trust for the deferred payments, amounting to $1,266.
Mrs. Tallmadge took immediate possession of the premises, and has occupied them as her own from that day to the time the bill was filed; paying taxes, improvements, and interest on incumbrances, reducing the principal $2,266, and holding open and notorious possession under her claim of title.
Mr. Miller, who claimed no title or right to the premises in himself, on December 27, 1883, by a deed signed by himself and wife, conveyed the legal title to Mrs. Tallmadge; but this deed, through inadvertence or otherwise, was not recorded until October 4, 1888. Mr. Miller died in February, 1888, and by his will, which was dated December 1, 1880, devised his estate to his widow.
On June 16, 1888, defendants Miller, Houchens, and Goudy, collateral heirs of John L. Miller, who had made a contract with the defendants Willoughby and Williamson to give them one-quarter of whatever they could get for them out of the estate of Miller, filed a bill in the supreme court of the District against the widow and executor of Miller, the holders of the notes given by him, and the trustees in one of the deeds of trust; praying for a partition or sale of the property, the admeasurement of the widow's dower and for a charge upon the personal estate of Miller for the unpaid purchase money of the property.
To this bill the widow of John L. Miller made answer that her husband never had any interest in the property in question; that the title was taken in his name for Mrs. Tallmadge, and that long before his death he had, by deed, duly conveyed it to her; and that neither she nor his estate had or ever had any interest in the property. In August, 1888, the pendency of this suit coming to the knowledge of Mrs. Tallmadge, she sent the original deed from Miller to her, then unrecorded, by Mr. Tallmadge, to Willoughby and Williamson, solicitors for Miller's heirs, who examined and made minutes from it.
On August 30, 1888, Houchens, Goudy, and Miller, who had filed the bill for partition, executed a deed conveying the property to the appellant Kirby, subject to the dower rights of Mrs. Miller, for a consideration of $12,000, $3,000 of which was said to have been paid in cash, and $9,000 by notes secured by a mortgage or trust deed upon the property, to Willoughby and Williamson, as trustees. Kirby thereupon claimed the property as an innocent purchaser without notice of the prior deed. He at once gave notice to Mr. Tallmadge that he would demand rent for the property at the rate of $1,000 per annum.
On receipt of this notice, Mrs. Tallmadge filed this bill to cancel and set aside the deed and deed of trust. Answers were filed by the defendants, and testimony taken by the plaintiff tending to show the facts alleged in her bill. Neither of the appellants took proof, nor did they, or either of them, offer themselves as witnesses, but stood upon their answers.
Upon final hearing the court below, in special term, rendered a decree in accordance with the prayer of the bill, setting aside the deed and deed of trust as fraudulent and void, from which decree defendants appealed to the general term, which affirmed the decree of the court below, and further directed that Miller, on the demand of Kirby, return to him the $3,000 which Kirby claimed to have paid, and which Miller admitted to have received.
From this decree, defendants appealed to this court.
John T. Morgan and W. Willoughby, for appellants.
John C. Fay, for appellee.
Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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