Mailhouse v. Frazier

Bowie, J., delivered the opinion of this Court: The final decree in this case required the defendants, now appellants, to pay or bring into Court, the sum of $3000 (with interest from the 20th of April, 1859, and costs of suit,) in default whereof, on or before the 3rd of June, 1863, then the •premises mentioned in the bill and proceedings were decreed to be sold. The money being unpaid, the property ,was sold by the trustee for $2500, which being reduced by •commis-sions, costs and expenses, left due the complainant the sum of $1463.54, for which he prayed a writ of fieri facias might be issued, which was ordered, and the defendants afterwards prayed an appeal from the decree against them and filed •their bond. The appellants’ solicitors do not controvert the right of the complainant to a sale of the premises, but deny simply his right to a personal decree against them, and claim a ¿reversal of so much of the decree: 1st. Because there was no evidence of fraud or combination between the defendants to mislead the complainant. 2nd.

Because the original contract between the defendant, Mailhouse, and the complainant was abandoned and Michelis '.■substituted in the place of Mailhouse, whereby the latter was released and discharged from all liability for the property in -question. The final decree was passed upon the .return of a commistsion issued after'interlocutory decrees for want of answers .against both respondents. The evidence filed under this commission consists solely -of three promissory notes of Michelis, dated the 20th of April, 1859, at one, two and three years respectively, for •.$1000 each, with the notarial protest of the first of said -notes. Neither of the complainant’s exhibits, the orignal ¿contract marked A, or the substituted contract marked B, were filed with, or proved before the Court, but as they ¹⁰³ have been treated by the counsel as evidence in the case, they will be considered by this Court as in, without exception, particularly as the whole controversy turns upon the relation which these agreements bear to each other.

ExhibitA, filed with the complainant’s bill and referred to therein as a part thereof, is a bond of conveyance dated the 20th of April, 1859, from James Frazier, the complainant, to Joseph T. Madhouse, one of the defendants and appellants, reciting that the complainant had sold and agreed to convey to Madhouse or his personal representatives, certain leasehold property therein described, in consideration of the sum of $3500, $500 of which had been paid in cash and the Residue secured by three promissory notes of Madhouse of even date therewith, each for the sum of $1000, bearing interest, and payable at one, two and three years, with a condition that upon payment of the résidue of the purchase' money and interest, and all taxes and ground rent thereafter' to become due by said Madhouse, the complainant would transfer and convey the same to Madhouse clear and discharged of all incumbrances by the said Frazier or his representatives, and until default made in payment of the same, would permit Madhouse to hold, possess and enjoy the-same. Exhibit B is a deed dated the 23rd of January, 1860, signed by Joseph T. Madhouse, Julius Michelis and James Frazier, the complainant, reciting the execution of the foregoing bond of conveyance by Frazier to Madhouse; and “ whereas, the said Joseph T. Madhouse has for a valuable consideration, sold to the above named Julius Michelis, all his, the said Madhouse’s equitable interest, right and title acquired under the said contract or bond of conveyance; and whereas, the said Michelis has agreed to assume the payment of the balance of the purchase money and interest remaining due and unpaid; in consideration whereof, the- ¹⁰⁴ said James Frazier liatli agreed to surrender to tlie said Madhouse the three promissory notes now in his possession, as security for the payment of said purchase money and interest, and to accept in lieu thereof, the three promissory notes of said Michelis, to be drawn as of the same date for the same amounts, and payable at the same periods, as the three notes so surrendered as aforesaid.” In consideration of the premises and one dollar, the said Madhouse transferred and assigned to the said Michelis, all the interest and estate, etc., of the said Madhouse in and to all the lots mentioned and described in the bond of conveyance aforesaid. The notes of Michelis filed under the commission, bear date the 20th of April, 1859, although executed, in fact, on or after the indenture of the 23rd January, 1860. The complainant, after alleging the