John McLean

“ The demurrer is clearly unsustainable. Fraud is alleged in the bill, and relief is prayed against a judgment and a judicial sale of the property in controversy. These and other matters stated in the bill show, that, if the complainants shall be entitled to relief, a court of equity only can give it.
The great question in the case arises out of the judicial sale of the mortgage debt to Anderson, the mortgagor, under a judgment obtained by Mosely and Bouldin against L. P. Perry and John M. Perry. ”

“ It is insisted, that, this note having been imposed upon the complainants as a good note, by the fraudulent representation of Anderson, they as vendors have an equitable lien on the plantation and slaves for the amount of it. If the receipt of a note of a third person in payment of the purchase-money be a waiver of an equitable lien on the real estate conveyed, yet it would seem, where a fraud had been practised in the assignment of the note, there would be no waiver. ”

“ On the 3d of April, 1841, Nelson F. Shelton and Robert Anderson filed a petition in the Ninth District Court for the State of Louisiana, holding sessions in and for the parish of Madison, setting forth the mortgage, and praying that the sheriff might be ordered to seize and sell, for cash, so much of the mortgaged property as would pay their respective debts. ”

“ Shelton and wife, they having no children, became residents of Louisiana in the fall of 1840, more than two years before the commencement of this suit. Since their residence commenced, they have been absent from the State only once, a short time, on a visit to a watering-place in Mississippi. They have resided the greater part of the time on the plantation in controversy, cultivating and improving it by the labor of the slaves. Within this time, a more comfortable and secure dwelling-house has been constructed. ”

“ We might object to the interrogatories. They are all leading ones. But he shows that he had authority. He was employed to defend the suit. What suit? Against both defendants. He refers to letters. Why did he not produce them? Is there any evidence that John M. Perry had no authority to employ counsel? There is not. Why did he not swear so? He was as good a witness as Crawford. In an affidavit, John M. Perry swears that he is the agent and attorney of Lilburn P. Perry. A bond is signed L. P. Perry, 'by his attorney, John M. Perry.' Crawford's evidence is therefore only negative. ”

“ After the mortgage to the complainants was supposed to be extinguished by the judicial sale, Robert Anderson and Shelton procured in a State court a foreclosure of their mortgage which had been previously given on the plantation and slaves, and they became the purchasers at the sale for thirty-six thousand dollars. ”

“ In the declaration or bill an allegation of citizenship of the parties must be made, as it has been held that an averment of residence is insufficient. But the proof of citizenship, when denied, may be satisfactory, although all the privileges and rights of a citizen may not be shown to have been claimed or exercised by the individual. ”

“ By this operation he saved of the purchase-money sixty-two thousand dollars. Such a result must strike every one as having been procured through fraud.
It is unnecessary to consider the means through which Robert Anderson, the father of Samuel, and his uncle Shelton, acquired title to the above property. The lien of the complainants' mortgage is paramount to any title or lien which they assert.
No deduction will be made from the mortgage for the five thousand dollars which Samuel Anderson may have paid to Mosely and Bouldin, under whose judgment he purchased the mortgage debt. ”

“ And it is further ordered, that the complainants, upon being restored to the possession of said property, do give bond, in the sum of twenty thousand dollars, conditioned for the restoration of said property, and the proceeds thereof, from the time of their being placed in possession by the marshal, to the respondents, in case said respondents shall see cause to appeal from this decree to the Supreme Court of the United States, and the decree of this court be reversed upon said appeal. ”

“ JOHN M. PERRY,
Agent for L. P. Perry, Clayton Tiffin,
J. H. Martin, Geo. W. Grove.
Received on the 27th November, A. D. 1839, and served on the 28th of same month and year, by handing a certified copy of this writ of attachment to the defendant, Samuel Anderson, in person, at the court-house in Richmond, and then was instruct [ed by] the plaintiff in this case not to levy the attachment, but to return it to the clerk's office, as will be seen by reference to the within order from him. Service $2. ”

“ By the Civil Code, art. 2622, Anderson must be a trustee for his vendor, who can reclaim the property by repaying what it cost. Story, Eq. §§ 789, 1211, 1212, where cases are cited; Grattan's Rep. 188 ”