Mobile register and journal., 1845-02-24


 tracts and vested interests in property. We feel a pride that the highes judicial tribunal of our State should have so signaly rebuked this dangerous ai- tack on the morality of our laws, and have shewn an integrity in it's functions alike superior to pas sion and prejudice, as distinguished by profound wisdom and learning. The decree, which aflirms the rights of the bank to ihe fullest extent, is sub iect of congratuaion, and will, we trust, pat an end, here. 10 all future necessity for similar inter- ference of the court. The case was argued by Mes. SITS Gibbons, Fisher and Dargan for complainants
 and by Messrs Stewart and Hopkins for defendants
 The bill and amendments and supplement in this case are filed tu lorecose a mortgage made by the said Henry Hitchcock to the compliments Cowuer. thwae, Dunlap and Cope. of certain real estates in the city of Mobile, in the said mortgage particularly described, for the security of the pay ment of 62O
 530 9S due upon certain bond executed coiempo. raneously with the mortgage the l4ih day of Ju. ly A. D. 1888, by the said Henry Hitchcock to the sad compliments, the condition ot the bond is spe. officially stated in ihe bill The bill, amendments and supplement state, that the compIainants Cow. perthwaite, Dunlap and Cope are trustees of the Presdsnt, Directors and company of he Bank ol the United States. That during the life time ofsa,d Henry Hitchcock, the compliments exhibited their bill in this court forfeiture of the mortgage praying foreclosure and sale; that Henry Hitch. cock among other matters, plead to the said bill La, the contract out of which the said indebtedness a. rose usurous and forbidden b, the laws of Ala. hama, and that therefore the bond and mortgage void, that while thls plea pending and un. determined. Henry Hitchcock entered into ne pocia. ton wiih complanants for the payment of the deb, by n transfer of lhe mortgaged premises, and that during such negotiation Henry Hitchcock died leay- ing last will and esiament-whereb, he constiiri- ted the said Mrs Anne Hitchcock his executrix and sole devsee oi all his estate real, persona and
 ed, with power dispose of lhe same at public or private sale for the payment of his debts; that the said lleny Hitchcock in his life time always expressed a willingness 10 pay the debt on fair terms, by transfer of the estate mortgaged !, that aller the death oi Henry Hitchcock, Herman Cope, with view to avoid llie delay and damage which w"id attend upon the Notraction of the litigation aforesaid commenced, came 10 Mobile To endeay- 10 make settlement amicaby and on far terms, with the represer iatves If the said Henry Hitch cock tat previously to this lime one James Erwin, the brother of Mrs. Anne Hitchcock, during the life time of said Henry Hitchcock had negotiated with Herman Cope as the agent of the Bank of the Uni ted States, for the settlement ofhe controversy and payment of the debt, under full authority from the said Henry Hitchcock; that after Herman Cope's arrival at Mobile he had many interviews with the said James Erwin on the subject oft settlement of the debt, that James Erwin represented himself to be fully empowered by Mrs Anne Hitchcock and those interested Tn the estate. treat win Herman Cope the subject oi settlement of the coniroyr- sy and to make agreements binding on the represen- tatives of the said Henry Hitchcock and inc bill charges that he was empowered; that an agree ment for the settlement was made between Herman Cope and James Erwin, as iollows-that James rr- win represented 10 Herman Cope, that there were creditors o the estate to large amount, whose de- mands were wholly unsecured, that these claims could all be paid and satisfied by the sum of one hundi a1 a nd HfIy md fInra. tbat sentatiyes of lhe estate entirely willing that complanahls should enter upon and enjoy the mo- gagged premises so far as the repi esentatves If Hen. " Hitchcock had any interest in hem but that they could not consent to let the debt due compainans be paid in full by the mortgaged premises, while so many creditors were unsecured and the estate insol- vent; that if the Bank of the United States would pay for the benefit of these unsecured creditors the sum of one hundred and fifty thousand dollars. the compiainanfs should enier into possession of the mortgaged premises under conveyance f,om the de- visee, and should enjoy the same without nolesta- ton by or from the representatives of the said Hem ry Hitchcock deceased that the bill fsd against the said Henry Hitchcock in his lifetime and the pro. iings tbereupoD, should not he revived; that a friendly administrator should he appointed. who should acquiesce in IhIs final settlement and adjust
 ment of the controversy; that coniiding these rep. resentatons, the Bank of the United States did pay to James Erwin the sum of one hundred and fifty thousand dollars, 10 be by him applied 10 the pay. ment ot the said unsecured debts, the devisee Mrs
 Anne Hitchcock by deed of release conveyed all her interest and estate in the mortgaged premises to complainants Cowperthwaile, Dunlap and Cope, who executed to her release of all demands against the estate, saving such reserved under the mort. gage. The complainants believed themselves in possession of the premises and filed their bill a. gainst Isaac II. Erwin, the administrator as afore. said; that sometime before this contract, James Erwin had purchased al sherif's sale the residuary angnr afslH ~..~L. H.
 which were conveyed to complainanls by the said mortgage, for which said Erwin paid fifty dollars
 and informed complainants that he made the pur. chase for the purpose of strengthening his position in the negotiation aforesaid; these lots and stores are valued in the mortgage al two hundred thousand dollars and were taken security for that sum by compliments; that after the agreement aforesaid was concluded upon far the payment of the said sum of one hundred and fifty thousand dollars for the beneht of the unsecured creditors, and the other
 ditions above mentioned, James Erwin agreed also to give 10 complanants whatever title to the eigh
 lots and stores he had derived from the sheriff; that James ErwIn was very desirous to conceal from the public the settlement so as aforesa Id made with con- plants, m order as he sad that he could be more at liberty m using the said sum of one hundred and fifty thousand dollars, in the payment of the said un
 secured debts and with this view proposed 10 make the consideration expressed the face of his quit calm deed for the eight lots and stsres the sum o
 one hundred and fifty thousand dollars, which was done; that the real consideration for the payment by complainans of the said one hundred and fifty thou
 sand dollars the said James Erwln, was that the money was to be applied to the payment of the un- secured debts; all real supposed deences to the bond and mortgage were to be forever abandoned
 and complanants allowed the peacsable and unmo. tested cno! ment of title and possession of and in the mortgaged premises; that Isaac H. Erwin was appointed administrator of the estate of Henry Hitchcock ,!eceased, by the and agree nent of the complainans and tse devisee and James Erwin as friendly administrator, to carry the settlement above stated, bat that after the pay meni of the said sum of hundred and fifty thou sand dollars, the said Isaac H. Erwn inlerfered with and molestsd the possession and title of complain ants in the premises by various means, advertising publicly that complainants were not in possessoi, and by cautoning tenants not to pay to com pianants or their agent; that contrary to law the said administrators has gone to lease portions oi the premises and to receive rents that both before and alter the filing of the original bill the said Isaac H. Erwin repeatedly recognised and acquiesced in the agreement aforesaid made between complain ants and James Erwin and Mrs. Anne Hitchcock
 and at various times induced ompainants 10 be- iese that he would presently carry the said agree ment into effect; that he we'll knew the considera- tIon on which the said sum of one hundred and fifty thousand dollars was paid, the agreement sci out by compaInants; that the bond and mortgage were given by the said Henry Hitchcock 10 secure debt of $5305 90, there fore due from him to com- planants, and also the further $$l00 000; then presently advanced to be expended in improving the nortgaged esetes; that an inducement for this advance and as part of the security for the whole mortgage debt, the said Henry Hitchcock agreed to put complainants agent into the possession of the r. ns and profits of the mortgaged eslate but wholly failed so to do The relief sought is either an abso. lute fo. eclosure of all pa,ies claiming redemption under Henry Hitchcock, or a sale, and such other relief as the case requires and injunction against the administrator restraining him from any interfer
 ence with the premises or rents. .i..i