Miller v. de Yoe

GREY, V. C.

Suit by Isabel E. Miller against Muhlenburg De Yoe and others. Heard on bill, answer, cross-bill, and proofs. Decree settling rights of the parties and ordering a reference.

John M. Ward and Peter McGinnis, for complainant.

J. W. De Yoe, for defendants.

GREY, V. C. (orally). This bill is filed by Mrs. Isabel E. Miller to stop the sale of her personal property under powers of sale contained in three chattel mortgages held by Muhlenburg De Yoe, and several judgments assigned to or held by him, on which executions have been issued and levied. Mrs. Miller alleges that the third chattel mortgage made to Mr. De Yoe included the amounts due on the first and second, and that the judgments assigned to Mr. De Yoe (the Doetchius and the Hirschspring judgments) were really purchased in trust for her, and were in fact her judgments; that she made large payments to Mr. De Yoe on account of the chattel mortgages, and to the plaintiffs in the judgments, or to Mr. De Yoe, assignee of the judgments, which were not credited to her. She also alleges that undue and wrongful charges for fees and expenses are sought to be enforced against her, and she prays she may have a restraint stopping the sale, and an account stated, showing for what consideration the mortgages were given to De Yoe, and the judgments assigned to him, what she has paid on the same, and what just charges should be made against her. Mr. De Yoe files an answer denying all the charges of Mrs. Miller's bill, and appends a cross-bill asking that the three chattel mortgages which he holds, and the judgments and executions assigned to him, or entered and issued by him, may be enforced by selling the property of Mrs. Miller covered by those claims.

So far as an account stated involves the mere payment of various items on account, a master should state it. My trial list is so full that I cannot give the time necessary to make the Inquiry. There are several points which ought to be settled here: First, whether the third chattel mortgage given to Mr. De Yoe included the amount secured by the first and second chattel mortgages; second, whether the judgments assigned to De Yoe by Doetchius and Hirschspring were purchased on any trust agreement whereby De Yoe became holder of them for the benefit of Mrs. Miller. Another question is whether or not some incidental expenses paid to Mr. Hart, a lawyer, for drawing the papers resulting in the transfer of the Hirschspring judgment to De Yoe, should be paid by him or by Mrs. Miller.

The last item cannot, on this cross-bill, be recovered in this court. It was a matter in dispute, from the time when the incident happened, whether or not Mrs. Miller should pay the expenses incurred in the assignment of these judgments. These expenses have not been included in any of the judgments against Mrs. Miller. They are no lien on her property, and are clearly suable at law, and not here.

On the first question—as to whether or notthe third chattel mortgage included, either in whole or in part, the other two—there is something more to be said. All of the elements of the case go to show that this lady, Mrs. Miller, was quite an indifferent business woman. She did not pay her debts as they came to be due, nor did she attend to their settlement. She does not claim that she did herself. Her contention is that she made payments on account. It is undenied that about once a year she gave a chattel mortgage. She now claims that when she gave the third mortgage to Mr. De Yoe she understood that it included the two mortgages previously held by him. Mrs. Miller was not so utterly unacquainted with business methods as she presently insists she was. She conducted a large establishment, feeding something like 70 head of cattle. Mr. De Yoe sold feed to her for the keeping of these cattle. She is shown to have had business with other parties, and cannot be deemed not to have known the simplest usages in such matters. She testifies that she constantly acted under the advice of counsel. The gentlemen who now represent her in this suit claim to have been her general counsel at the time these mortgage transactions were carried on. She is also proven to have had the advice of counsel whom she employed in several of these specific matters. That situation existed for a considerable time, during which there were some vexatious dealings between Mrs. Miller and Mr. De Yoe in relation to the payment or securing of his claim. These incidents made it most improbable that Mrs. Miller either relied on Mr. De Yoe, or blindly signed anything which was put before her, or that she was in any way misled by Mr. De Yoe. It is difficult to believe that Mrs. Miller did not know that, when a new mortgage is given in place of two previous mortgages, ordinary business usage would require that the two mortgages which were satisfied by the new one should be delivered up or canceled. Mrs. Miller does not say that any trick or fraudulent device was practiced upon her, by which she was cheated into making the third mortgage without obtaining the surrender of the other two. She does not in any way explain why it was, if the transaction happened as she now claims it did, that she never asked or expected that the two previous mortgages should be returned to her or canceled. On the other hand, Mr. De Yoe produces his books, and, by an itemized account, with corresponding dates, proves that the third mortgage was not given to secure the payment of the first two mortgages, but that it was made to secure a new consideration of $1,000, of which the sum of $400 (part of the $1,000) was then owing to him for feed previously furnished to Mrs. Miller, and $000, part thereof, was for feed to that value thereafter to be furnished by him to Mrs. Miller. Mr. De Yoe also proves that the prospective feed bill has not only been furnished by him to the amount of the $600, the sum necessary to raise the consideration of the mortgage to $1,000, but that feed to the value of $16 and some cents over that sum has been delivered to Mrs. Miller, and accepted by her, and that a statement thereof has been made to her. In this situation of the evidence, I am obliged to decide that the third mortgage did not include, in whole or in part, the sums secured by either of the previous two mortgages. I do not decide what credits for payments shall be allowed against these mortgages. I will leave that to the master.

The transfer of the Doetchius and Hirschspring judgments to Mr. De Yoe, Mrs. Miller claims, was in trust for her. She insists that although he paid all the money for those judgments, and received an assignment to himself absolutely, he was not, in truth, to hold those judgments, so that he should be able to recover the moneys which he advanced. On the contrary, she contends that she was to control the judgments, and dictate what should be done with them, without any obligation on her part at any definite time to pay back the money that De Yoe paid for them. It is hardly conceivable that Mr. De Yoe or any business man would have done this. It is probable that Mr. De Yoe took the assignments of these judgments in part because of the importunities of Mrs. Miller that he would help her to postpone the sale of her property, and in part because he was interested in getting control of these judgments, which were antecedent to his own, so that he might not be embarrassed by their priority. This goes to show more strongly that in buying these judgments he did not agree with Mrs. Miller that he would buy and pay for them, but that she should control them. The most that Mr. De Yoe conceded to her was that he would collect on them simply what he paid for them, and that is all that he now asks Mrs. Miller to pay on them. It must be held that there was neither a trust nor a fraudulent purchase of these judgments. I am the more convinced that Mrs. Miller understood that De Yoe was buying the Hirschspring judgments for himself, because she has from the first refused to pay the expenses incident to that purchase, and still insists that they were incurred by De Yoe himself, and not by herself.

I think I have decided all the matters which I" ought to determine. This property affected is personalty. It is liable to be lost or destroyed. For this reason this matter should be speedily settled. In sending it to a master to state an account of the various payments made, I will instruct him to make a report within 30 days; that the accounting should show what payments of any sort are allowable to Mrs. Miller on account of either of the three chattel mortgages, or on account of either of the judgments assigned to Mr. De Yoe by Doetchius or by Hirschspring,or on account of his own judgment recovered and entered against Mrs. Miller, and the balance due on each. The master should also ascertain and report such items of charge incident to the enforcement of the chattel mortgages and judgments and the care of the property as may be justly allowable, so that the whole matter may be decided on the coming in of the master's report.

I will advise a decree determining the matters here decided, and a reference to the master to state an account in accordance with this memorandum.