Callan v. Statham.

tion of rents by vendor; prior indebtedness of vendor, and pending suits against him at the date of conveyance, well known to vendee, who was his brother, and the absence of all attention or evidence of interest of vendee in the matter, and of any proof of payment except the answer.

APPEAL from the circuit court for the District of Columbia.

Mr. Walter S. Cox and Mr. Davis, for appellants.

Mr. Chilton and Mr. Davidge, for defendants.

[* 478] *Mr. Justice NELSON delivered the opinion of the court. This is an appeal from a decree of the circuit court of the District of Columbia.

The suit below was a creditor's bill, filed by Statham and others, the appellees, to set aside a deed made by J. F. Callan and wife to M. P. Callan, on the 16th October, 1854, conveying lot No. 8, in square No. 456, with the improvements, in the city of Washington, and to subject it to the payment of the plaintiff's judgments.

Judgments to an amount exceeding $3,000 were recorded against J. F. Callan, 5th May, 1855. The deed was recorded 14th April, 1855.

A second bill was filed against the same parties and others, on the 9th August, 1856, by Austin Sherman, a judgment creditor of J. F. Callan, for the purpose of setting aside the same deed, and subjecting the property to the payment of his judgments recovered 2d April, 1855, and exceeding in amount $9,000.

The two suits were consolidated, as the same proofs were equally applicable in respect to the charge of fraud in the execution of the conveyance sought to be set aside. The court below decreed that the deed was fraudulent as against creditors, and directed the property to be sold, and the proceeds brought into court for distribution. The case is here on an appeal from that decree.

At the date of the deed of October, 1854, Callan was heavily in debt-several suits impending over him and maturing to judgments, to which the property in question would have been subject. The conveyance was made to a brother, for the consideration, as stated in the deed, of $4,900. The premises conveyed, according to the estimate of witnesses who were well acquainted with them, [479] were worth at the time exceeding $15,000, assuming the title to be good, which will be noticed hereafter. The vendor continued to possess and occupy the property after the conveyance the same as before, leasing the buildings and collecting the rents in his own name, and not accounting to the vendee for the same. Indeed, the vendee seems to have taken no part in the man

*

Callan v. Statham.

agement of the property; nor does it appear that he has exercised any act of ownership over it since the purchase, and down to the taking of the proofs in these cases.

In the answer of Callan, the vendor, to the bill of Statham and others, to the charge that the consideration mentioned in the deed was not paid, he simply states that it had been fully paid by his brother, the vendee. The vendee, for his answer, adopts the answer of his co-defendant.

In their answer to the bill of Sherman, they concur in stating that $4,000 of the consideration were paid by the surrender of a note the vendee held against the other party, and $900 in cash, and that the payment was not made in presence of any third person.

No proof was given by the defendants in respect to the payment of the consideration, with a view of sustaining the allegation in the answers. They rely entirely upon the rule of pleading, that the answers are responsible to the bill, and to be taken as true till overthrown by proof on the other side. As they aver the payment was a transaction between themselves, and the principal part a note held by the vendee, which he surrendered, the evidence in respect to which is therefore exclusively within their own knowledge, it would have been more satisfactory if they had given some proof in support of the answers, especially when there were other accompanying circumstances, tending to excite distrust and suspicion as to the bona fides of the deed.

As it respects the defect in the title relied on to reduce the value of the property, it appears that J. F. Callan, in November, 1840, took a lease of this property from one W. Robinson, trustee of Alice Jennings, Alice joining in the lease for the term of her natural life, for the annual rent of $200; and in which lease.

it is agreed that, upon the death of the said * Alice, the [* 480] lessee shall have the right to purchase the estate for the price of $3,000; upon the payment of which, Robinson binds himself and his heirs to convey the title. Alice died in May, 1851, and Robinson some years earlier.

It is insisted, on the part of the defendants, that the heirs of Robinson, and also of Alice, refuse to carry into execution this contract, and have refused to accept the $3,000. There is some obscurity upon the evidence, as it respects the precise state of this question at the time of the deed from Callan to his brother in October, 1854. It is claimed on the part of the judgment creditors that this money had been paid, and that the deed from the heirs. was kept back, in fraud of their rights. Perhaps the better opin

Clifton v. Sheldon.

ion is, upon the facts, that the money has not been paid, and that the property is subject to this encumbrance. It is clear, however, that there is no serious embarrassment in the way of clearing the title on payment of the money.

It appears, by some arrangement, not particularly explained, with the heirs, after the death of Alice, Callan agreed to pay the interest on the $3,000, and which has been paid down to the month of July, 1854; and the case shows that, upon the payment of the purchase money, with the interest, from the period last mentioned, the title can be obtained. It would have been remarkable if this right of purchase had not been preserved, as it appears Callan has put on the property improvements to the amount of from $7,000 to $10,000.

The question as to the title is only important as entering into the estimate of the value of the property, and as tending to rebut the undervaluation of the price, as charged in the bill. It is clear, however, admitting the property to be subject to the payment of $3,000, that the price was considerably below its true value.

But, independently of this consideration, there are other facts in the case that may well justify the decree below-the most important, perhaps, the unsatisfactory evidence on the part of the Callans in respect to the payment of the consideration stated in the deed.

This proof was vital, in order to uphold a deed in other [* 481] respects surrounded with suspicion. The *evidence was in their possession; and their admission that the transaction was secret made the proof still more indispensable on their part. The want of it, under the circumstances, is nearly if not quite fatal to the validity of the deed as against creditors.

The continuance of the vendor in the possession and occupation and full enjoyment of the premises, the same after the deed as before, and absence of interest in the subject manifested by the vendee, are circumstances not satisfactorily explained; also, the heavy indebtedness of J. F. Callan, and suits pending and maturing to judgment-all well known to the vendee.

We are satisfied the decree of the court below is right, and should be affirmed.

JOHN CLIFTON, Appellant, v. W. H. SHELDON.

23 H. 481.

JURISDICTION ON APPEAL AS TO AMOUNT.

Where a decree in admiralty for the owner of the vessel was for $2.338.06 for his freight, but $583.84 was against one defendant and $1,754.22 against the other, and

Clifton v. Sheldon.

the latter alone appealed, the case must be dismissed-because: 1. The decree is several, and neither of the sums awarded exceed $2,000. 2. Because if it could be held to be a joint decree, but one defendant has appealed.

APPEAL from the circuit court for the southern district of New York.

Mr. Donohue supported the motion to dismiss on behalf of appellee.

Mr. Owen opposed it.

* Mr. Justice NELSON delivered the opinion of the court. [* 483] This is an appeal from a decree of the circuit court of

the United States for the southern district of New York, in admiralty. A motion has been made, on the part of the appellee, to dismiss the appeal, for the want of jurisdiction.

A libel was filed by Clifton, in the district court, to recover freight on the two hundred and sixty-nine bales of cotton and nine bags of wool. Brower and Sheldon appeared as claimants, and contested the claim for the freight. Brower claimed sixty-seven of the two hundred and sixty-nine bales, and Sheldon two hundred and two bales. The district court dismissed the libel.

On appeal to the circuit court, this decree was reversed, and decree rendered in favor of the libelant for the amount of the freight, $2,338.06; that J. W. Brower, claimant of a portion of the cotton, pay to the libelant the sum of $583.84, being the freight on the cotton claimed by him in the suit, and that

the claimant, W. H. Sheldon, pay for the portion claimed [* 484 ] by him the sum of $1,754.22. Sheldon appealed from the decree to this court.

The motion is now made to dismiss the appeal, on the ground that the decree against Sheldon is less than $2,000, and which is apparent from a perusal of the decree. The sum decreed against him is only $1,754.22.

The freight was separately awarded against the claimants, in proportion to the cotton shipped by each one. The rights of each were distinct and independent.

But if it were otherwise, and the whole of the freight jointly against the claimants, the appeal must still be dismissed, as then the claimants should have joined in it.

Motion to dismiss granted.

Green v. Custard.

23h 484 L-ed 471 37f 6 38f 532

THOMAS J. GREEN, Plaintiff in Error, v. WILLIAM CUSTARD.

23 H. 484.

JURISDICTION OF CIRCUIT COURTS UNDER SECTIONS 11 AND 12 OF THE JUDICIARY ACT. When a cause has been removed from a State to a federal court under the 12th section of the judiciary act, the jurisdiction is not defeated because it turns out that the cause of action is one which could not have been originally brought in the circuit court by reason of the exception in section 11 of that act.

WRIT of error to the circuit court for the western district of Texas. The necessary facts to understand the case are stated in the opinion.

Mr. F. P. Stanton, for plaintiff in error.

No counsel for defendant.

[* 485] *Mr. Justice GRIER delivered the opinion of the court. This case originated in the district court for the county of McLennan, in the State of Texas, where Custard had instituted his suit against Green by attachment, claiming to recover from him the balance due on a judgment entered on a mortgage given by Green to one Arthur, on lands in California. Green appeared, and moved to have his cause removed to the district court of the United States, he being a citizen of Massachusetts, and Custard a citizen of Texas-the case coming clearly within the provisions of the 12th section of the judiciary act of 1789.

It is probably because this case originated in a State court, that the court below permitted the counsel to turn the case into a written wrangle, instead of requiring them to plead as lawyers, in a

court of common law. We had occasion already to notice [* 486] * the consequences resulting from the introduction of this

hybrid system of pleading (so-called) into the administration of justice in Texas. (See Toby v. Randon, 11 How. 517, and Bennet v. Butterworth, 11 How. 667, with remarks on the same in McFaul v. Ramsey, 20 How. 525.) This case adds another to the examples of the utter perplexity and confusion of mind introduced into the administration of justice, by practice under such coles.

Without attempting to trace the devious course of demurrers, replications, amendments, &c., &c., which disfigure this record, it may suffice to say that the plaintiff, beginning, after some time, to discover that he could not recover on his original cause of action, among other amendments set forth an entirely new cause of action, to wit, a note given by Green, payable to "Arthur or order," for $5,000, without any indorsement or assignment by Arthur to