# Willard v. Wood (164 U.S. 502)

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United States Supreme Court
164 U.S. 502
Willard v. Wood
Charles Christmas, a citizen of Brooklyn, N. Y., sold and conveyed certain real estate, there situated, for the consideration of $17,000, to one Dixon, who, to secure $14,000 of the purchase money, executed, July 7, 1868, a bond to Christmas for twice that amount, payable July 7, 1873, with semiannual interest at the rate of 7 per cent. per annum, and also a mortgage in fee of the property, with power of sale in case of default. Charles Christmas died, and January 20, 1869, Charles H. Christmas, his executor, and Elizabeth Gignoux, his executrix, two of his children, on dividing the estate of the deceased, assigned the bond and mortgage to their brother, Frederick L. Christmas, who died at Brooklyn, November 13, 1876, and of whose estate Charles H. Christmas was appointed administrator June 28, 1877. April 19, 1869, for the consideration of $17,000, Dixon conveyed the real estate to W. W. W. Wood, in fee, by a deed which declared that the conveyance was subject to the mortgage above mentioned, 'which said mortgage, with the interest due and to grow due thereon, the party of the second part hereby assumes and covenants to pay, satisfy, and discharge, the amount thereof forming a part of the consideration herein expressed, and having been deducted therefrom.' This conveyance from Dixon to Wood was not executed by Wood, but he entered into possession of the mortgaged premises, paid interest on the mortgage dept up to February 1, 1874, and diminished the principal of the debt through two payments of $2,000 each, the last being made February 16, 1874.
By deed, dated March 14, 1874, acknowledged March 17, 1874, and recorded in April, 1874, Wood, for the recited consideration of $17,583, conveyed the mortgaged premises, in fee, to Thomas B. Bryan, 'subject, however, to a certain indenture of mortgage, made by the former owner of said property, Martin Dixon, to Charles Christmas, to secure fourteen thousand dolls. (14,000), dated July 7, 1868, recorded in the office of the register of Kings county, New York, in Liber 784 of Mortgages, page 542, upon which principal sum there has been paid the sum of four thousand dolls. (4,000), the said Thos. B. Bryan hereby assuming and expressly agreeing to pay the balance with the interest at 7 per ct., he signing this deed in evidence of his said covenant.' The deed was signed by Bryan, as well as Wood and his wife, and at this date the mortgage debt had been overdue for about 8 1/2 months.
By deed, dated the same day, March 14, 1874, acknowledged March 14, and recorded March 21, 1874, and for a like consideration of $17,583, Bryan conveyed certain lots in Washington to Wood, in fee, subject to three certain incumbrances to secure an aggregate indebtedness of $7,500, 'which said indebtedness with the interest thereon at ten (10) p'r c't p'r annum, the said party of the second part hereby expressly assumes, and he executes this deed, as one of the parties thereto, in evidence of his covenant to pay the same.' But the conveyance was not executed by Wood. The transaction between Wood and Bryan was an exchange of property, the property of Wood being incumbered with the debt of $10,000, with interest at 7 per cent., and that of Bryan with an indebtedness of $7,500 with interest at 10 per cent., per annum, the consideration of the two being identical; and Wood paid to Bryan $2,000 in money to equalize the exchange. This transaction occurred in the District of Columbia, where Wood and Bryan resided, and where the conveyances were executed and delivered. It appeared in evidence that Bryan resided in the District in and after 1874, in the state of Colorado from 1881 to 1883, and from 1883 in the state of Illinois.
On March 20, 1874, the Brooklyn property, with other real estate, was conveyed by Bryan to Waterman Palmer, in fee, by a deed bearing that date, acknowledged March 28, and recorded April 9, 1874, and executed by both Bryan and Palmer, subject to the mortgage, and reciting that the principal of the mortgage debt had been reduced to $10,000, and declaring that the balance and interest was 'hereby expressly assumed by said Palmer.' The copy of the Dixon bond shows payment of interest thereon for two years later than the period up to which interest was paid by Wood. Bryan paid neither principal nor interest upon the mortgage debt, nor was he shown to have taken possession of the property.
Charles H. Christmas, as administrator of Frederick L. Christmas, filed a complaint, August 28, 1877, in the county court of Kings county, for the foreclosure and sale of the mortgaged premises against Dixon, Palmer and wife, and some others, averring that the co-defendants of Dixon had or claimed to have some interest, acquired subsequent to the mortgage, and praying against Dixon only a personal judgment in case of deficiency of proceeds of sale. To this suit neither Wood nor Bryan was made a party, and none of the defendants appeared; but some were brought in by personal service of summons, and some by publication. November 13, 1877, the cause was sent to a referee, who reported the next day that the debt, with interest, amounted to $11,307.92, and on November 15, 1877, the report was confirmed, and a sale of the mortgaged premises by or under the direction of the sheriff was ordered. The sheriff's report of sale was dated January 5, 1878, and represented that he had on December 10, 1877, sold the mortgaged property for $5,000 to Charles H. Christmas, Elizabeth A. Gignoux, and Harriet Gignoux, to whom he had executed a deed (who were the heirs at law of Frederick L. Christmas); that the proceeds of sale applied to the payment of the mortgage debt were $4,556.61, and that the debt itself, with interest, amounted to $11,422.14; that the deficiency was $6,865.63; and that this sum 'should be docketed as judgment against Martin Dixon, one of the defendants herein.'
Some evidence was given of notices of a proposed sale in May, 1877, being mailed, in April, 1877, to Wood and Bryan at Washington, and of an intention to hold them for any deficiency; but Wood was dead many years before proofs were taken in this cause, and Bryan could not recall having received any such notice, or having been otherwise notified in any way.
The property had diminished in value from $17,000, when Wood purchased, to $8,000, when the sale took place.
Dixon died intestate, March 13, 1878, domiciled at Brooklyn, and on March 25, 1878, letters of administration were issued there to his widow. The sheriff's report of the sale was filed March 9, 1879, and confirmed April 17, 1879, and on November 11, 1880, the report of the sheriff was docketed as a judgment against Dixon.
Dixon had been discharged in bankruptcy, March 1, 1878, from all claims provable against his estate on December 7, 1877. In the schedule of his obligations appeared a debt of $12,000 as due by the bankrupt to Charles H. Christmas, as administrator of Frederick L. Christmas, on the bond and mortgage, and it was therein represented that the mortgaged premises were equal in value to the debt.
Palmer died in 1878 or 1879, having exhausted his estate.
Charles H. Christmas, as administrator of Frederick L. Christmas, obtained leave from the supreme court of Brooklyn, in April, 1879, to bring a suit against Wood and Bryan, or either of them, to recover the deficiency reported by the sheriff in the foreclosure proceeding, and, July 24, 1879, an action of covenant was commenced in this District, against Bryan, in respect of the unpaid balance of the mortgage debt, in the name of Wood, for the use of Charles H. Christmas, administrator of Frederick L. Christmas, to which Bryan pleaded, but which was subsequently dismissed.
February 27, 1880, letters of administration on the estate of Dixon were issued in this District to Henry K. Willard, in order to enable Willard, as ancillary administrator of Dixon, to proceed against Wood for the sum of about $7,000, which Willard claimed in his application to be due to the estate of Dixon in law, but equitably to Charles H. Christmas, administrator. The petition averred the death of Dixon intestate, that he 'did not die insolvent,' that his estate had been settled up in New York, and that his widow renounced her right of administration in this District.
March 9, 1880, Willard, as administrator of Dixon, for the use of Charles H. Christmas, as administrator, commenced an action of assumpsit against Wood.
October 25, 1880, Willard was appointed in this District the administrator, also, of Frederick L. Christmas, and on November 11, 1880, commenced an action of assumpsit, as such administrator, against Wood. Issues were joined in the last two actions on pleas of the statute of limitations and the general issue. The plaintiff filed to the pleas of limitation an additional replication, to the effect that the defendant, by accepting the conveyance from Dixon, and entering into possession, had become bound by the deed.
On July 15, 1881, Willard, as administrator of Frederick L. Christmas, filed the present bill against Wood and Bryan, seeking to charge them, under their several assumptions of the mortgage debt, with a deficiency arising upon the sale and foreclosure, averring that such deficiency had been docketed as a personal judgment against Dixon; that Wood, as grantee of Dixon, had paid $4,000 of the principal of the mortgaged debt; that Bryan, as grantee of Wood, had entered into possession, and enjoyed the rents and profits; and that Wood, when he conveyed to Bryan, had paid to the latter the sum of $2,000, to be applied to the reduction of the mortgage debt, but that Bryan, although agreeding to do so, had failed to so apply that sum. The subpoena was returned August 18, 1881, served on Wood only.
Wood answered the bill October 10, 1881, setting up, among other things, laches and the statute of limitations, and insisting that the plaintiff, as against Wood, should be required to elect between his remedy under the bill and his remedy in the action at law, the causes of action in each of these proceedings being claimed to be identical against Wood. On June 26, 1882, Wood filed a motion to compel the election upon which his answer had insisted. He died August 31, 1882, and the motion was renewed, in effect, October 25, 1883, by his executor and executrix. At their instance the equity cause was placed on the calendar for final hearing, September 16, 1884; but it was taken off the calendar on the suggestion by complainant's solicitor, as shown by a docket entry of November 12, 1884, that another suit was to be brought by complainant, and it appears that it was because the solicitor of the personal representatives of Wood learned that the bill against Wood was to be dismissed that he refrained from insisting upon a hearing.
December 30, 1884, an action of covenant was brought in the supreme court of the District by Willard, as administrator of Frederick L. Christmas, against Mrs. Wood, as executrix of her husband.
On January 5, 1885, counsel for Willard, administrator, filed in the present cause the following: 'And now comes the said complainant, and dismisses his said bill, so far as the same relates to the defendant Mary L. C. Wood, executrix, but without prejudice. The clerk will please make the entry on the docket accordingly.' And on the same day the clerk made this entry on the docket: 'Dismissal of bill as to Mary L. C. Wood, ex'x, ordered by compl't. Precipe filed.' On the same day, Willard, administrator, also dismissed, without prejudice, the three actions at law pending in the supreme court of the District at the time of the filing of the bill, the counsel for Wood's representatives being informed, in advance, by the counsel of Willard, administrator, that this would be done.
In the action of covenant brought against the executrix of Wood, the supreme court of the District in general term gave judgment for the defendant, January 17, 1887, holding that the action should have been in assumpsit, and was barred. 4 Mackey, 538. To review this judgment, a writ of error from this court was sued out, and, pending its decision, the estate of Wood was completely distributed. The judgment of the District supreme court was affirmed by this court May 5, 1890. 135 U.S. 309, 10 Sup. Ct. 831. Meanwhile, and on March 10, 1890, a subpoena against Bryan was issued in the present suit, and was served on him on that day. April 30, 1890, Bryan answered the bill, not admitting the right or authority of plaintiff as administrator to maintain the suit against him. He denied the right of plaintiff to compel him to pay any balance due upon the mortgage. He set up, among other things, his continuous residence beyond the District; the service of process on him during his appearance in the District on business; that the transaction between him and Wood was an exchange of equities of redemption, which the $2,000 was paid to equalize, any claim in respect of which was, moreover, barred; the defense of the bar of the statute of limitations, existing and pleaded in favor of Wood; the dismissal of the bill as to the executrix of Wood; the judgment rendered in her favor by the court in general term; the distribution made of the estate of Wood; the nonliability of Wood and his estate and the consequent nonliability of Bryan. July 1, 1890, a replication was filed, without leave, to the answer filed by Wood on October 10, 1881. Wood had died August 31, 1882, and Mrs. Wood, his executrix, had deceased as early as the middle of March, 1887. July 31, 1890, counsel for complainant, without leave of court, filed in the cause the following: 'And now comes the said complainant, and withdraws his direction to the clerk to dismiss the bill, so far as it relates to Mary L. C. Wood, executrix, filed January 5, 1885, the same having been filed through mistake and misapprehension.'
By Wood's will, Mrs. Wood was appointed executrix, and Thomas N. Wood, his son, executor, and letters testamentary were granted to them October 27, 1882. The son, after qualifying as executor, performed no duties as such during the lifetime of his mother, who administered upon the estate. In March, 1887, after his mother's decease, the son filed, as executor, a new appraisement and inventory, and wound up the estate.
In the action of assumpsit, brought by Willard, as administrator of Frederick L. Christmas, against Wood, the clerk was directed by plaintiff's attorney, on the suggestion of the death of defendant, to issue summons to Mrs. Wood as executrix to appear and defend, so in this cause a subpoena was directed to bring in Mrs. Wood as executrix; and so, in the action brought by Willard, in Wood's name, for the use of Charles H. Christmas, administrator, the death of Wood was suggested, and on application of plaintiff's attorney the suit was revived in the name of Mrs. Wood as executrix. The action of covenant, brought by Willard, as administrator of Christmas, against Mrs. Wood, as executrix, was conducted and tried throughout on the theory of her exclusive representative character; and, similarly, the dismissal of this bill, January 5, 1885, was as to Mrs. Wood as executrix.
Willard's counsel had notice of the executorship of the son, whose appearance as executor was entered in the present suit, with that of his mother as executrix, October 25, 1883; but both sides went on with the proceedings as if Mrs. Wood were sole executrix.
This suit was on January 12, 1892, ordered to be heard by the supreme court of the District at the general term in the first instance, but, before such hearing, became transferred, under the act of congress of February 9, 1893 (27 Stat. 434, c. 74), to the court of appeals of the District of Columbia, where the bill was dismissed, with costs, in accordance with an opinion delivered by Mr. Chief Justice Alvey, made part of the record, and reported in 1 D. C. App. 44.

## 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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