The clarion. [volume] (Jackson, Miss.) 1883-1888, 1883-01-17
SUPREME COURT DECISIONS.
October Term.
REPORTED WEEKLY BY RoBr. sHorwELn.

MCLEAN, ct al,
vs..
LETCHFoRD, ct al.
Appeal from the Chancery Court of Holmes
county, Hon. w. K. Williamson, Chan
cellor.
On May 30th, 1878, J. n. Mclean, Sr., and
and his two sous G. A. and j. N. Jr, said
two sons being merchants and partners un-
der the firm name of G. A. Mclean e. Co.,
were the owners of three plantations on
Tallahatchie river known respectively as
Wildwood, Goldust and Glenburr. These
lands with the personal property thereon
were worth about $40 10000, but were mort
gagged to the extent of "a of q or their value.
On above named day a sale of the entireprop-
erty was made under junior incumbrance,
the same being a trust deed with power of
sale, owned and held by Richardson q May,
for $10,l5000. At this sale the property was
bought by Jesse w. Mclean, a third son Of
]. N. Mclean, ST., Tor the amount due on the
trust deed, he paying $500 cash, and giving
his notes for the balance payable the ensu-
ing winter. The notes were met as they fell
due by shipments of the cotton, growing on
the lands at the time of the sale. The trust
deed was extinuguished and marked salts
fed on the county records. Within the
y
transferred to himself the other mortgages
resting on the property. AT the time Of the
sale the mortgag0rs were indebted many
thousands of dollars, to various parties,
whose debts were wholly unsecured. These
have filed this bill, attacking the convey
ance under which jesse holds the properly,
as being in fraud Of their rights and as void
as to them. They charge that the sale at
which Jesse bought was brought about and
took place at an unusual time of the year,
that it was quietly and furtiyely conducted,
in order that Jesse alone might become a
bidder, that in its inception and all its
subsequent history, it was n fraudulent
scheme, devised and carried through for the
benefit Of the Mclean family, its primary
objects being to invest the title to the prop
erty in Jesse, who alone of the family was
unembarrassed, in ordsr that he might hold
it, first for his own reimbursement, and
then for the benefit of the family generally.
And that the cardinal end sought to be at
tanned was to hinder and delay the unse-
cured creditors. I, The answer denies the
material allegations OF the bill and asserts the
bona tides of the whole transaction A huge
mass of evidence was taken, in the utmost
degree conflicting on some points. But
there is preponderance in favor of the
complanants, showing that the conveyance
to Jesse was scheme contrived and
brought about by J. N. Mclean. Jr,,
for the purpose of keeping the property in
the family by defrauding the unsecured
creditors of his father and G. A. Mclean u
Co, and that Jesse, with full knowledge, lent
himself with all his money, at most $4,000 or
IS, 600 TO the scheme. The notes, balance due
Richardson g. May from the sale, were paid of
by proceeds of the crops. The other mortgag
es were bought except a small cash payment
by money derived either from the revenues OF
the properly or from the assets Of q, A. Me
| Lean & Co., which were fraudulently divert
| ed from the creditors of the concern. In.
| terrogatories were addressed to some Of
the complainants who were residents oil
many and different States aud were filed in
| the clerks Office and notice thereof given
their attorneys, under S1943, Code 1880
Less than thirty days elapsed from the filing
of the interrogatories to the final hearing. A
motion was made to dismiss the cause as tc
them because of their failure to answer il
accordance with the provision Of the stat
ute. Ii was overruled by the chancellor
Tue chancellor decreed in favor OF com
plainanfs and denied Jesse reimbursement
both as 10 the Richardson & May deed o
trusts and the other membranes which
had been transferred to him.
Nugent & Neville, Catchings & Inger
soil and ]. Z. Gwin for appellants.
Hooker s. Wilson and Calhoon & Green
contra.
CHALMERS, j.,
He'd
/. We agree with the chancellor upon tn
fscts. That Jesse lent himself to tn
scheme with some reluctance, influences
more by the desire to aid his family an
save a home for an aged and infirm fathe
than with any intent to better his own foi
tunes may soften his offence in the eyes 0
the world and the forum of the moralis
but cannot change his attitude in the Jude
ments of the law. We know him only as
fraudulent grantee in fact and in that att
tude must determine his rights.
q He has filed no cross-bill in this CASE
, and perhaps on that ground alone we Nigh
decline to consider his claim to reimburse
ments. but as in several cases in our report
reimhursement has been decreed without
cross.bill. In favor OF grantees, where ther
had been constructive fraud or where thef
had been actual fraud only upon the part {
{ the grantor. we will, without deciding thu
anch practice is admissible in the case
T \ grantee privy to or guilty Of actual mai
fdes, proceed to examine bis claim for rein
. bursement.
3. He can recover nothing paid on II
: Richardson & May mortgage. That wi
the vehicle of his fraudulently Obtaint
T nossession. 1t was that which made Il
fraud possible. The money paid on it vi
Q the price which the fraud cost him. He ca
4 base no right upon the fact that his pa
a ments extinguished paramount lien Whit
was superior to the rights Of the compiai
ants, because the mortgage was extihguis
ed in and by the fraudulent acquisition
the property and 70 revive II Ior ms pen
"a would be, both TO contravene his ov
act. and a repayment of money expended