BURD v. SMITH, 4 U.S. 76 (1802)

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U.S. Supreme Court

BURD v. SMITH, 4 U.S. 76 (1802)

4 U.S. 76 (Dall.)

Burd, Plaintiff in Error,
Smith, Lessee of Fitzsimons et al.

High Court of Errors and Appeals of Pennsylvania.

January Session, 1802

ERROR from the Supreme Court, on a judgment entered in pursuance of the following agreement:

    'Montgomery county.
    'Richard Smith, lessee of Thomas Fitzsimons, William M'Mutrie, Samuel W. Fisher, Philip Nicklin, and Isaac Wharton, v. Edward Burd.
    'Ejectment for 130 acres of land in Perkiomen township, in Montgomery county.
    'It is agreed that the above action be entered, as an amicable action of trespass and ejectment, on the Circuit Court docket of Montgomery county, as of March term 1800; that a declaration and pleadings be filed, and issue joined conformably thereto;

    Page 4 U.S. 76, 77

    that the annexed state of a case be filed as of June term 1800, in the nature of a special verdict, with an entry of the confession of lease entry and ouster; that judgment be rendered thereon for the plaintiff, without prejudice to the title, or right, of either party; that a writ of error on the said judgment be taken from the Supreme Court, tested as of the last day of last December term of the same Court, and returnable in the same Court on the first day of March term following; that the said judgment be affirmed, of course, in the said Supreme Court, as of the same term, without prejudice to the right of either party; and that no advantage be taken of any error in the form of the said proceedings, but every thing be done to give them validity.'

The material facts, contained in the case, to which the agreement refers, were these: 'That the title deeds of the land, mentioned in the declaration, were delivered to Mr. Dallas, by Mr. Blair M'Clenachan, previous to the 2d day of September 1797, to enable him to draw a trust deed from M'Clenachan to him and Mr. Huston; which was, accordingly, drawn, and delivered by Mr. Dallas to Mr. M'Clenachan for the purpose of having the same executed.

    'That on the 2d of September 1797, Blair M'Clenachan was seised in fee of the premises; and, at the same time, was indebted, on his separate account, and in partnership with P. Moore to divers persons (some of whom resided in Europe, and in other places beyond seas) in large sums of money, amounting, in the whole, to 435,073 dollars, and upwards. Many of the creditors had commenced suits in the Supreme Court against Blair M'Clenachan, and against M'Clenachan and Moore, which were depending on the said 2d of September 1797; in some of them judgments were obtained on the 4th of September 1797, to the amount of 216,018 dollars; in others, judgments were obtained in December and March terms then next following, to the amount of 22,720 dollars; and on the said judgments, or some of them, executions had issued.
    'That Blair M'Clenachan and P. Moore, jointly, or separately, not being able to satisfy and discharge the said debts, Blair M'Clenachan, on the 2d of September 1797, made and executed a certain indenture for several estates, including the premises in the declaration mentioned, to A. J. Dallas and John H. Huston, containing (among other things) the following trusts, conditions, and stipulations:
    'Upon the special trust and confidence and to the sole intent and purpose that they the said Alexander James Dallas and John H. Huston and the survivor of them and the heirs of the survivor shall sell and dispose of the lands and premises hereby conveyed and granted in such manner as the said trustees or the survivor or the heirs of the survivor shall deem most adviseable for the [4 U.S. 76, 78]

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