WALL V. BISSELL, 125 U. S. 382 (1888)

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U.S. Supreme Court

Wall v. Bissell, 125 U.S. 382 (1888)

Wall v. Bissell

No. 22

Argued April 12-13, 1887

Decided March 19, 1888

125 U.S. 382


It seems that under the statutes of Indiana, an executor named in a will who has never qualified or been appointed by the Court of Probate or taken out letters testamentary has no power to redeem a mortgage of real estate, either as an executor or as trustee under the will.

In equity, a mortgage of real estate, made to one of two creditors to secure the payment of a debt due to them jointly is incident to the debt, and may be released, after the death of the mortgagee, by the surviving creditor, and a release, made in good faith by the survivor, of part of the land from any and all lien by reason of the mortgage is valid against himself and the representatives of the deceased, although he is in fact executor of the latter and describes himself as such in the last clause and the signature of the release and has by law no authority to enter the release as executor, for want of letters testamentary.

This was a bill in equity by George P. Bissell against Abraham G. Barnett, his wife, Byron H. Barnett and James W. Barnett his minor sons, his sisters Susan B. Shoaff, and Mary Ann Wall and their husbands, Henry J. Rudisill, Oscar A. Simons and John H. Bass, Henry Burgess, Charles A. Zollinger, and the representatives of John J. Kamm, to foreclose mortgages of real estate in Indiana. Answers and cross-bills were filed by the various parties setting up their different interests, and a final decree was rendered for the plaintiff, from which Mr. and Mrs. Wall, Mr. and Mrs. Shoaff, and the two minor sons of Abraham G. Barnett, appealed to this Court. The case appeared by the pleadings and proofs to be as follows:

In 1869, Abraham G. Barnett, his brother John H. Barnett, and Newton B. Freeman were partners in a paper mill, and desired to raise money for the use of the partnership and to pay up Freeman's share of the capital. At the request of the two Barnetts and of Rudisill (who appears to have been promised an interest in the partnership), Bissell lent to the

Page 125 U. S. 383

two Barnetts the sum of $8,000, the whole of which was put into the firm and $5,000 of which was credited to Freeman. Pursuant to an agreement then made by the three partners and Rudisill and Bissell, the following instruments were executed:

On July 15, 1869, the two Barnets executed to Bissell eight bonds for $1,000 each, payable in ten years, with interest semiannually, secured by mortgage from John H. Barnett to Bissell of land in the City of Fort Wayne.

On the same day, Rudisill executed to John H. Barnett a bond, reciting that

"said Henry J. Rudisill has received from said Barnett the sum of $5,000, part of a loan made by J. H. Barnett and Abraham G. Barnett for the sum of $8,000 of George P. Bissell, secured by"

the bonds and mortgage aforesaid, and conditioned to "pay said sum of $5,000 of said bonds, with interest thereon, as it becomes due."

On December 23, 1871, as security for the payment of this bond, Rudisill executed to John H. Barnett a mortgage of land, upon all of which, except a small piece, there existed a prior mortgage, made by Rudisill to his mother to secure the payment of an annuity to her, and now held by Simons and Bass.

On January 23, 1872, John H. Barnett died, leaving a will containing the following provisions:

First. A devise of part of the land, mortgaged by him to Bissell as aforesaid, to Mrs. Wall, with successive remainders to Byron H. Barnett, to his children, and to Abraham G. Barnett.

Second. A devise of the rest of that land to Mrs. Shoaff, with successive remainders to James W. Barnett, to his children, and to Abraham G. Barnett.

Third and Fourth. Devises of other lands to Mrs. Shoaff land to Abraham G. Barnett and his children.

"Fifth. Now as to my interest in the paper mill and business carried on at the City of Fort Wayne under the name of Freeman & Barnett, which is regarded as one-third in extent of said business effects, real and personal &c. &c., stock, assets, machinery, dividends, dues &c., I devise and bequeath,

Page 125 U. S. 384

subject to the conditions and agreements, performed or unperformed, which were named at the time I became a party in interest in said paper business so carried on by and in Freeman & Barnett's name, and which conditions and agreements are known to my brother, A. G. Barnett, I give and bequeath unto my said brother, A. G. Barnett, and to my nephews, James Barnett Wall and Charles W. Wall, sons of my sister, Mary A. Wall, all my interest in the paper mill and business aforesaid, real and personal or otherwise, so carried on and owned by said Freeman & Barnett, to have and to hold to each of said devisees or legatees, three in number, so named, one full third of my said interest in said paper business, mill &c. The sole control of the respective interests of said James B. and Charles W. Wall shall be under the control of my brother, A. G. Barnett, until said James B. shall reach the age of twenty-five years. The profits arising out of said interest so bequeathed to said Charles and James B. respectively shall be at reasonable periods each year paid said legatees respectively by said Barnett, or by any other person who may be authorized to control said interest in the progress of said business by law or otherwise. And I hereby give the said A. G. Barnett the right to sell said interests of said Charles and James B. if he shall deem such sale expedient for the best interests of said Charles and James, he, the said A. G. Barnett, first giving said Charles and James security for faithfully accounting to them for the proceeds of said sale, or if he shall desire to buy said interests, or either of them, before either shall be of age, then some third party shall qualify as guardian and proceed to sell the same to said A. G. Barnett under order and authority of law."

"Sixth. I name my brother, A. G. Barnett, my executor, to act himself or jointly with one he may choose; if acting alone, then he shall and may do so without bond as such executor, but if acting with another, both shall give bond and take out letters testamentary and proceed according to law; but if he shall act alone, then, as executor, he shall have authority under this will to proceed as if he had letters testamentary to execute the trusts devolved on him as executor, as also those

Page 125 U. S. 385

which may incidentally arise in the execution of this trust as executor, but not any others arising out of a different relation, such as trustee or guardian of some of the parties named herein or of some of the trust funds named hereinbefore. He shall have power to proceed to collect all debts, judgments, or choses in action due me at my death, all rents due me at my death, of any and all my real estate except the homestead, and to have control of and dispose of all my personal property, moneys and effects, reducing them to availability, and to collect all rents on the lots devised respectively, located in the City of Fort Wayne, until such rents and the reasonable use of the whole homestead place, including that devised to Mrs. Susan Shoaff and to himself, until such funds so arising from rents, use of homestead, moneys, personal property &c., shall be enough to pay my debts, funeral expenses, debts of last illness, and to purchase a lot in Lindenwood Cemetery, properly and fairly improve it, pay for exhuming the remains of my father and mother; their interment, and the erection of a monument suitable to their condition in life in said lot, and this shall be done speedily as the nature of the business shall allow, after which the devisees respectively herein lastly named, and incidentally referred to, shall control said property as the same is intended in the respective clauses wherein said property is devised."

On February 7, 1872, the will was duly admitted to probate, on the testimony of the subscribing witnesses, in a court of the State of Indiana.

Abraham G. Barnett never qualified or gave bond as executor, as required by the statutes of Indiana, and the court of probate never made any order appointing him executor, or directing letters testamentary to issue, and no such letters were ever issued. But he assumed to act as executor, and as such took control of the real and personal property, collected the rents of the real estate for some months (after which he turned it over to the devisees), paid the testator's debts and funeral expenses, purchased a burial lot, removed the remains of the testator's father and mother to it, and erected a monument upon it. The other devisees knew of all these acts,

Page 125 U. S. 386

made no objection, supposing him to be authorized by the will to do them.

On January 23, 1875, Rudisill sold and conveyed by warranty deed to Burgess, Zollinger, and Kamm part of the land included in the mortgage from him to John H. Barnett, and in the annuity mortgage to his mother; she released from her mortgage this part of the land, and Abraham G. Barnett executed, on the margin of the record from Rudisill to John H. Barnett, a release of the same part, in the following words:

"I hereby release from any and all lien by reason of this mortgage the following of the premises herein described: all that part of S.E. 1/4 of sec. 35, t'p 31, R. 12 East, this day conveyed by Henry J. Rudisill to H. Burgess, Charles A. Zollinger, and J. J. Kamm. Witness my hand and seal as such executor, January 23, 1875."


"Executor of the Estate of John H. Barnett, deceased"

On the same day, and as part of the same transaction, Rudisill executed to "Abraham G. Barnett, as executor of the estate of John H. Barnett, deceased," a mortgage of other lands, partly included also in the annuity mortgage. All the parties to this transaction acted in good faith. But the transaction was not shown to have been known to the devisees until about the time of the beginning of this suit, or to have ever been assented to by them.

The bill prayed for a foreclosure of the mortgages from John H. Barnett to the plaintiff and from Rudisill to John H. Barnett, or, if the court should hold the release of the latter good, then for a foreclosure of the mortgage from Rudisill to Abraham G. Barnett.

The circuit court decreed that the release was valid, and that the title in the land so released be quieted in the present holders as against all other parties to this, suit, and that the various parcels of land be sold and applied to the payment of the debts secured by the several mortgages in an order not objected to by the appellants, supposing the release to be valid, which they denied.

Page 125 U. S. 387

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