Peeler v. Lathrop, 48 F. 780

Pardee, J. Complainant in the circuit court asked for a decree in her favor for the sum of $4,900 on three accounts;

(1) For rents collected in excess of the debts and demands due Richmond Peeler; (2) for the rents Peeler failed to collect through negligence; and (3) for the value of certain lands sold for taxes. Her bill did not allege how much was due or claimed to be due on each account.

When she dismissed her bill “in so far as it claimed damages by reason of the said Richmond Peeler having permitted certain lands mentioned in the bill to be sold for taxes,.” there was left a bill claiming a decree for $4,900 on account of rents collected and uncollected. • Counsel for appellant claims in his brief that the demand for the failure to collect rents was abandoned, but we find nothing in the record to show this, except that such demand does not appear to be supported by any testimony, and is not referred to by the circuit court in deciding the case.

The motion to dismiss for want.of jurisdiction, made in the circuit court, rvas based on the ground that, after the dismissal of the bill in so far as it claimed damages for lands sold for taxes, “it appears that the matter in dispute is less than $2,000.” It certainly did not appear from the bill or any other pleading filed by complamant that the amount'claimed was less than $2,000. The only way it could have appeared, if at all, was in the testimony. That undoubtedly showed that the complainant had only been able to prove up about $1,200.

This appears by a stipulation found in the record in reference to omitting the testimony of certain witnesses from the transcript. Whether the testimony omitted from the record tended to prove more, we are not informed. It is not, however, the amount a plaintiff is able to prove he is entitled to that determines the amount in dispute for the purpose of jurisdiction, for otherwise the failure of a plaintiff to recover would oust the court of jurisdiction.

The amount in dispute, or matter in controversy, which determines the jurisdiction of the circuit court in suits for the recovery of money only, is the amount demanded by the plaintiff in good faith. See Hilton v. Dickinson, 108 U. S. 165, 2 Sup. Ct. Rep. 424; Barry v. Edmunds, 116 U. S. 550-561, 6 Sup. Ct. Rep. 501: In determining in this case whether the complainant Avas claiming in good faith an amount exceeding the sum of $2,000, exclusive of interest and costs, the evidence of the solicitor aaRo drafted and filed the bill is of very great weight.

He testifies as folioavs: “ After the discovery that there had been rents payable from the Upper place, I got all the tenants from that place, and some who had been tenants in previous years, down here, and questioned them as to the amount of rents that they collected; and the amount of rent as they represented if to be, collected by Richmond Peeler from the Upper place, amounted to over $3,000,— I don’t remember the exact amount, — and that was the reason I sued in the federal court. ” . — And the record sIioavs nothing to the contrary.

Appellant also complains that the demurrer interposed to the bill in the court below was overruled. It does not appear that any action Avas had in the circuit court on the said demurrer. It was neither set down for argument nor confessed, and the court disregarded it in passing on the merits of the case. A stipulation in the record, made Avithout date or filing, but apparently after appeal taken, is to the effect that it is agreed that the decree shall be held and deemed to overrule the defendant’s demurrer.

The demurrer Avas filed Avith or after the ansAArer, aird AA-as a special one, and went to portions onljr of the bill, except on the ground that the bill did not shoAV a controversy in amount within the jurisdiction of the court; but a short consideration may be necessary. The objection to the jurisdiction was not well taken, as we have herein-before shown. The bill was subsequently dismissed in so far as it claimed damages for lands sold for laxes, so that the third ground of demurrer need not be considered.

There remains the second ground, charging that the allegations of the bill in regard to the demand for rents lost through the failure and negligence of Feeler in his life-time to collect, are insufficient, vague, indefinite, and uncertain. This ground of demurrer should have been sustained. The bill merely states in this regard “that said Feeler had neglected said business, and hence had failed to collent rents that, with diligence, he might have collected.” and was clearly insufficient as the basis oí a liability.

As, however, no testimony appears to have been taken on account of failure to collect rents, and as such charge was totally disregarded in the court below by the judge deciding the case, it does not appear that the demurrer need cut much figure in the consideration of the appeal in this court.

This brings us to the main complaint of appellant, substantially that on the bill, answer, and proof as made in the circuit court the appellee is not entitled to a decree for any sum whatever, appellant contending that under the agreements made by Feeler no trust relation was created, so far as the lands and the rents thereof were concerned, and that the agreement with Mrs. Butler to credit rents in the contract of 1873 was without consideration, and that claims for rent under it arc barred by the statute of limitations. The view we take of the case is this: The original transactions between B. J.

Butler and Feeler created a trust in favor of Butler for the two acceptances translerred by Butler to Feeler as collateral security for the payment of Butler, Terry & Co.’s debt to Feeler, and by the express terms of the documents in writing passed between the parties the trust extended to and covered the mortgaged real estate when the mortgage securing the acceptances was foreclosed by Peeler, and he bought in the mortgaged property.

From the date of purchase under the foreclosure the lands bought by Peeler thereunder took the place of the acceptances, and Feeler’s title thereto was that of trustee for the security of his debt against Butler, Terry & Co. He fully acknowledged the trust in the agreement entered into in 1873 with Mrs. Butler, and ¡¡gain when he made the settlement in 1888 with the complainant. In the agreement of 1873 his rights as trustee were more clearly defined, and his liabilities enlarged, than in the original agreement.

The settlement made in 1888 seems to have been on the basis of the agreement of 1873, and the settlement was to the effect that the rents Feeler had received were sufficient to extinguish the debt due him by Butler, Terry & Co., as well as the taxes paid by him, and his outlays, charges, and expenses, including compensation. Is'o account was stated, nor vouchers exhibited; in fact, no account could have been stated, as Feeler’s papers and accounts liad been destroyed by fire.

The case shows that Peeler represented that he had received rent about equal to paying the debt, and -then offered to and did convey the lands in question to the complainant, who accepted the same, giving full acquittance. Underthepleadingsand proof there are two serious difficulties in the way of a recovery by the appellee:

(1) Although a full account of the trust is prayed form the bill, on the theory that the settlement of 1888 should be avoided on account of Peeler’s misrepresentations in makingthesaid settlement, yet no account has been taken, or sufficient proof offered, to show that on a full account Peeler’s estate would be indebted in any sum. The case, in this respect, at best, for appellee, only shows that Peeler said that he had not collected any rents at all from the Upper place, when in truth and in fact he had collected about $1,200.

It seems clear that ap-pellee cannot recover solely on the ground that Peeler made false representations which appellee believed, and that he collected rents from the Upper place. Unless Peeler collected rents from all the lands, sufficient to more than pay the Butler, Terry & Co. debt, with interest, costs, outlays, and chai’ges, appellee cannot recover.

(2) The proof as to false representations by Peeler is not sufficient to overthrow the settlement of 1888. The bill alleged the false representation in terms, and called on the defendant to answer under oath. The defendant answered on oath; denying fully and specifically that Peeler made the representations alleged in the bill to be false and untrue. The appellee’s proof on the point consists of the testimony of only one witness, — that of her attorney and solicitor, Mr. Marshall; and there are no corroborating circumstances shown sufficient to defeat the sworn answer.

The only corroboration claimed is that Marshall also testified that he sent Peeler a letter, in which he said that Peeler had represented' in the settlement that he had received no rents from the Upper place, and Peeler had not answered the letter. We notice, however; that the letter of Marshall referred to was one in answer to a previous letter of Peeler in regard to seizing some cotton from the Upper place, and apparently required no answer. In our opinion, no presumption arises against Peeler from neglecting to answer.

When the answer to a bill is required to be made, and is made, under oath, and is responsive to the allegations of the bill, such allegations must, to entitle complainant to relief, be sustained by the testimony of two witnesses, or of one witness corroborated by circumstances which are equivalent in weight to the testimony of another witness. See 2 Story, Eq. Jur. § 1528; Vigel v. Hopp, 104 U. S. 441; Railroad Co. v. Dull, 124 U. S. 175, 8 Sup. Ct. Rep. 433; Development Co. v. Silva, 125 U. S. 249, 8 Sup. Ct. Rep. 881; Beals v. Railroad Co., 133 U. S. 295, 10 Sup. Ct. Rep. 314.

Our judgment is that the complainant in the court below failed to establish a case for equitable relief, and that the decree in her favor was erroneous, and should be reversed; and that, on the case as made, the defendant should have had a decree dismissing the bill. The decree appealed from is therefore reversed, with costs, and the cause remanded, with instructions to dismiss the bill.