# Gilfillan v. McKee McPherson

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United States Supreme Court
159 U.S. 303
Gilfillan v. McKee McPherson
The litigation involved in this and the following cases was originally instituted by a bill filed July 7, 1888, by Ward H. Lamon and Chauncy F. Black, survivors of themselves and Jeremiah S. Black (Black, Lamon & Co.), against Henry E. McKee, the object of which was to protect and enforce their equitable rights and interest in an appropriation of $2,858,798.62, made by an act of congress approved June 29, 1888 (25 Stat. 239), to carry into effect the decision of this court in the case of the Choctaw Nation against the United States, relating to what is known as the 'Choctaw Net Proceeds Claim.' 119 U.S. 1, 7 Sup. Ct. 75. Six days after the filing of this bill by Lamon and Black another bill was filed, July 13th, by John H. B. Latrobe against Henry E. McKee and others for the same general purpose of sharing in the sum recovered by McKee.
On July 19, McKee filed a bill of interpleader, which is the subject of the opinion in this case, against a large number of defendants, claiming, under eight or nine different titles, to share in the fund held by him, of which he admitted that they or some of them were entitled to the sum of $161,197.63, which he paid into court. This amount was made up of a general fund of $147,057.63, being 5 per cent. of a commission of 30 per cent., which had been dedicated by the Choctaw Indians to the payment of attorneys and agents in the prosecution of their claims, and which had been received by McKee, and also of a special fund of $14,140, due to the estate of John T. Cochrane, for which a special appropriation had been made by an act of the general council of the Choctaw Nation of February 25, 1888, and which McKee had agreed to pay. The bill prayed that the defendants interplead, and that the court determine to whom the money should be paid.
On October 1, 1889, a decree of interpleader was entered, the defendants were enjoined from instituting or prosecuting any suit or action for the recovery of the money paid into the registry of the court by the complainant, and complainant was dismissed as a party to the suit with his costs to be taxed. The decree, however, was made without prejudice to the rights of any of the defendants to institute any action at law or in equity, to recover from the complainant any demands which they might have for amounts due from him over and above the money paid into court.
Answers and cross bills were filed by the several defendants making claims to both funds, and upon a hearing upon pleadings and proofs one-half of the special fund of $14,140 was ordered to be paid to McPherson, executor of the will of John T. Cochrane, and the remaining half to the solicitors of James Gilfillan, John A. Rollings, and the estate of C. D. Maxwell. The general fund was ordered paid to Ellen Cochrane, widow of John T. Cochrane, John H. B. Latrobe, and Ward H. Lamon, in certain specified proportions. The claims asserted by certain other defendants, including a claim of McPherson, executor of Cochrane, to be paid out of the general fund for professional services rendered by Cochrane, was denied, and an appeal allowed in the decree. An appeal was also allowed to Gilfillan, Rollings, and Eastman, administratrix of the estate of C. D. Maxwell, from so much of the decree as awarded the general fund to Ellen Cochrane, John H. B. Latrobe, and Ward H. Lamon, and also from a decree previously rendered sustaining a demurrer to the cross bill of Rollings, Gilfillan, and Maxwell, and dismissing the same. As to the last decree the appeal was dismissed.
Subsequently, as it appears from the certificate of the clerk of March 1, 1895, the money deposited in court was paid out to the several persons to whom it had been awarded by the above decree.
The facts underlying all these cases were substantially as follows:
(1) That the Choctaw Nation, having various unsettled claims against the United States, arising out of treaty stipulations, the principal of which was a claim for the net proceeds of certain lands, by resolutions of its legislative council, adopted November 9, 1853, and November 1, 1854, appointed certain citizens of that Nation, the principal one of whom was one Pitchlynn, to prosecute such claims, and, in the name of the Choctaw people, 'to enter into any and all contracts which in their judgment are or may become necessary and proper, to bring to a final and satisfactory adjustment and settlement all claims and demands whatsoever, which the Choctaw Nation or any member thereof has against the government of the United States by treaty or otherwise.'
(2) Pursuant to this authority, on February 13, 1855, these delegates entered into a contract with John T. Cochrane, in which, after reciting the abandonment of a similar contract that had been made with Albert Pike, and the fact that Cochrane had already been for three years before acting as the agent of the Choctaw Nation in the prosecution of a claim for arrearages of annuities and school moneys, in which he had rendered valuable and most important services, Cochrane bound himself to continue to prosecute all unsettled claims and demands of the Choctaw Nation, and especially a claim arising under the treaty of Dancing Rabbit Creek of September 27, 1830, to the net proceeds of the lands ceded to the United States by that treaty, and to do his utmost to secure payment of said claims and demands, the Choctaws upon their part agreeing to pay him 30 per cent. of every and all such sums of money, payable to them, as soon as the same was paid over by the United States.
(3) Shortly thereafter Cochrane succeeded in inducing the authorities of the United States to enter into a treaty with the Choctaws, which was concluded June 22, 1855 (11 Stat. 611), by which it was agreed that the claim of the Choctaws for the net proceeds of the lands in question should be submitted for adjudication to the senate, which body was thus charged with and assumed the functions of an umpire, and on the 9th of March, 1859, made an award in favor of the Choctaws, according to certain principles, and referred the matter to the secretary of the interior to state an account showing the amount due to them according to such principles. That official made his report to the senate on May 8, 1860, certifying that there was due to the Choctaw Nation, under the award of the senate, the sum of $2,981,247.30, and in 1861 there was paid to the Choctaws on account thereof the sum of $250,000.
(4) No progress was made in the further prosecution of their claim from 1861 to 1866, by reason of the alliance of the Choctaws with the Southern Confederacy during the war. After the close of the war, however, Cochrane procured a treaty to be entered into between the United States and the Choctaw Nation relieving them of their disabilities. 14 Stat. 769.
(5) In 1866, Cochrane was stricken with a mortal illness, and with a view of securing to himself and family some remuneration for the services he had performed in behalf of the Choctaws, proposed to assign to Ward H. Lamon, or to some one in his behalf, all his interest in the contract of February 13, 1855; and verbal arrangements for the accomplishment of that result by the assignment of said contract to Jeremiah S. Black were made before the death of Cochrane. Before his death Cochrane made a will dividing his property equally between his wife Ellen and his sister Mary Magruder, and authorizing John D. McPherson, his executor, to sell, assign, or compromise his claims under his contract with the Choctaws as he should deem most for the interest of his estate. There was also an acknowledgment in this will that an equal interest in the Choctaw contract belonged to Luke Lea. After Cochrane's death, McPherson having qualified as his executor, a contract was entered into between him and Jeremiah S. Black, November 8, 1866, for the further prosecution of the Choctaw claims by Black, as the successor of Cochrane, and upon the terms of the contract made with Cochrane February 13, 1855, to which assignment the Choctaw delegates gave their assent.
(6) The firm of Black, Lamon & Co., in whose behalf the assignment to Black was in fact made, at once entered upon and continued the work of prosecuting this claim until Judge Black withdrew from active practice, from which time the duty of prosecuting the claim devolved solely upon Lamon.
(7) Nothing, however, was definitely accomplished before July 16, 1870, when, for reasons unnecessary to be here stated, the delegates of the Choctaw Nation entered into a new contract with James G. Blunt and Henry E. McKee to prosecute their claim, stipulating to pay them for their services and expenses 30 per cent. of the sum already awarded and due to the Choctaw Nation, or of any sum that might be paid, whenever the money or bonds arising from said claim should come into the possession of the party or parties authorized by the Choctaw people to receive the same. This contract contained a further stipulation of Blunt and McKee 'to pay to Mrs. John T. Cochrane of Washington, D. C., 5 per centum from the 30 per centum before referred to whenever they shall receive the same; and the said Blunt and McKee further agree to adjust the claims of all parties who have rendered service heretofore in the prosecution of said claim upon the principle of equity and justice, according to the value of the services so rendered.' Blunt soon afterwards died, leaving McKee to carry out the contract alone.
(8) In 1881, an act was passed by congress (21 Stat. 504) referring the question of the liability of the United States in respect to the Choctaw claims to the court of claims, and in March, 1886, a judgment was rendered in the court of claims in favor of the Choctaw Nation. 21 Ct. Cl. 59. From the judgment so rendered both parties appealed to this court, which also decided in favor of the Choctaws, and held that the award made by the senate in 1859 determined the amount due in respect of the claim (119 U.S. 1, 7 Sup. Ct. 75), and on June 29, 1888, an appropriation was made for the payment of the judgment of $2,858,798.62. 25 Stat. 217, 239.
(9) On February 25, 1888, an act of the legislative council of the Choctaw Nation after reciting the recovery of the judgment, and that McKee and his associates were making proper efforts to secure from congress an appropriation for the payment, enacted that the contract with McKee and another with one Luce should be recognized as valid, that the services required had been fully performed, and that, to satisfy the obligations of the Choctaw Nation to McKee and Luce, who was jointly interested with him, there should be appropriated 30 per cent. of the amount appropriated by congress for the payment of the judgment, 25 per cent. of which should be paid to McKee, and it was made the duty of the treasurer of the Nation to make such payment. The fourth section enacted that 'the sum of $14,140, shown to be due to the late John T. Cochrane, deceased, by an act of the general council of November 1, 1861, is hereby appropriated out of any money received from the United States in payment of said judgment, and the payment of said amount shall be made to said Henry E. McKee,' &c. The fifth section enacted 'that the payments herein directed to be made shall, when made, either under this act, or said other two acts hereinbefore referred to, be taken and accepted as full and complete payment and final discharge and satisfaction of all the contracts and obligations of the Choctaw Nation to any and all attorneys for services rendered to the Nation in the prosecution of said claim against the United States.'
(10) On the filing of the bill of complaint July 7, 1888, by the surviving partners of Black, Lamon & Co. in the following case, a preliminary restraining order was issued enjoining the defendant McKee from demanding or receiving said money from the treasury. But, in violation of this order, McKee, on July 9th, collected and received from the treasury the sum of $783,768.82, being the 30 per cent. fund mentioned in the Cochrane and MeKee contract as set aside for the compensation for services rendered in the prosecution of said claim. McKee, being subsequently ordered to pay into the registry of the court the sum of $136,500 in the same case, in addition to the sum of $161,197.63 paid into court in this case, refused to obey the order, and to avoid doing so absconded from the jurisdiction of the court, and has ever since kept himself concealed to avoid process.
A. B. Duvall, for appellants Gilfillan et al.
George F. Appleby and Calderon Carlisle, for appellant McPherson, executor.
S. S. Henkle, for appellee Mrs. Cochrane.
Enoch Totten, for appellee Latrobe's executrix.
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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