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U.S. Supreme Court

Bank of Georgia v. Higginbottom, 34 U.S. 9 Pet. 48 48 (1835)

Bank of Georgia v. Higginbottom

34 U.S. (9 Pet.) 48


South Carolina. G., the executor of his father, who had devised his estate to G. and his other children, sold the estate and became himself the purchaser of it, and in order to secure the portions of the other devisees, who were minors, confessed a judgment, June 1, 1819, on a promissory note in favor of two persons without their knowledge in a sum supposed to be sufficient to be a full security for the amount of the portions of the minors. The judgment was kept in full operation by executions regularly issued upon it, so as, under the laws of South Carolina, to bind the property of G. He was then engaged in mercantile pursuits, and had other property than that so purchased by him. G. afterwards became insolvent, and the claims of the devisees of his father under the judgment were contested by his creditors as fraudulent, the plaintiffs in the judgment, having no knowledge of it when it was confessed, the amount of the sum due to the co-devisees not having been ascertained when it was confessed, no declaration of trust having been executed by the plaintiffs, and false representations of his situation having been made by G. after the judgment whereby his creditors were induced to give him time on a judgment confessed to them subsequently.

The judgment of June 1, 1819, was held to be valid, and the plaintiffs in that judgment entitled to the proceeds of the sales of the estate of G. for the satisfaction of the amount actually due to the co-devisees by G.

The appellants, on 4 April, 1827, filed their bill in the Circuit Court of the United States for the District of South Carolina to set aside a judgment or postpone the effect of the same, which had been confessed by William S. Gillett, in the Barnwell District Court of the State of South Carolina for the sum of $30,000.

The judgment was founded on a promissory note drawn by William S. Gillett, in favor of James Higginbottom and William Provost for $30,000, dated 1 June, 1819, and payable on demand. The judgment was confessed on 1 June as of the fourth Monday of March, 1819. William S. Gillett was the acting executor of the last will and testament of his father, Doctor Elijah Gillett, by which a specific portion of the estate was devised to him and other parts of the estate chanrobles.com-red

Page 34 U. S. 49

were given to the children of the testator. By the terms of the will, the executors had power to sell such part of the estate devised, as it might be beneficial or expedient so to dispose of. William S. Gillett was also, at the time of the confession of the judgment, the guardian of his infant brothers and sisters, the devisees of his father of all the estate not specially devised to him.

In December, 1818, the personal estate of the testator, Elijah Gillett, was appraised and $56,474, and on 22 March, William S. Gillett, after having selected or taken by lot a portion of the estate to which he considered himself entitled, sold at public auction a large number of the negroes and all the personal estate of the testator. The proceeds of the sale exceeded $40,000, and William S. Gillett was the principal purchaser at the sale.

The judgment for $30,000 was confessed for the use and benefit of the younger children of Elijah Gillett, the testator, all at that time minors, was for about the sum which was supposed to be in the hands of their guardian after the sale, and was alleged to have been given in trust to the said Higginbottom and Provost to secure to them their interest in the estate of their father.

At the time of the confession of this judgment of 1f June, 1819, William S. Gillett was largely indebted to the complainants and concerned in a mercantile house in Savannah, the affairs of which, a witness stated, he did not seem to consider very prosperous; he did not represent the house to be bankrupt or likely to become so, but, on the contrary, he then and long afterwards appeared confident that the affairs of the house would wind up satisfactorily.

On 21 October, 1821, William S. Gillett confessed a judgment in the Circuit Court of the United States for the South Carolina circuit for the sum of $7,849 in favor of the Bank of Georgia under an agreement that time should be given to pay the amount thereof, viz. one, two, three and four years.

The bill states that, the debt due on that judgment being unpaid, the complainants, to have satisfaction thereof, lately sued out a fieri facias against William S. Gillett on it, under which a sufficient sum was made to pay the debt due on the chanrobles.com-red

Page 34 U. S. 50

same, but the proceeds of the said execution are claimed under the judgment in favor of Higginbottom and Provost for the payment and satisfaction of the same. The bill prays for general relief, &c.

It appeared in evidence that on 12 April, 1825, James Higginbottom and William Provost, the plaintiffs in the judgment of June 1, 1819, at the request of Robert, Isaac and William Scarborough, who had been named as co-executors of the will of Doctor Gillett, assigned over, under their respective hands and seals, to them the judgment of June 1, 1819, to the use and benefit of the testator's younger children for the purpose of securing and assuring to them respectively their interest in the testator's estate.

In answer to an interrogatory propounded to him on behalf of the complainants, the counsel who prepared the confession of the judgment of June 1, 1819, stated,

"The judgment confessed by William S. Gillett to Higginbottom and Provost was prepared by me as a security for the parts or portions of the younger children of Doctor Elijah Gillett deceased, of the estate of their father, and I think that at the time, I wrote or sketched off a draft of a declaration of the trust upon which the judgment was given, to be signed by Higginbottom and Provost, neither of whom were present. I do not recollect to have seen this paper after it was executed, although I may have seen it. Indeed, I always believed that I had seen it till I came to tax my recollection for the purpose of answering this interrogatory. My impression has always been that such a paper was executed, and I have now no doubt but that it was. I recollect perfectly that Gillett expressed a determination not to confess the judgment unless a declaration of its object was signed by the nominal plaintiffs."

The plaintiffs in the judgment of 1 June, 1819, issued a fieri facias to October term, 1819, of the Barnwell District Court, which was entered in the sheriff's office on 19 July, 1819; an alias fieri facias was lodged in the sheriff's office on 3 February, 1824; and a pluries fieri facias was "lodged to bind," in the sheriff's office on 31 December, 1824.

The accounts of William S. Gillett, as the executor of his father, were audited and a balance found due by him to the estate, including interest to July 11, 1831, of $48,961.92. chanrobles.com-red

Page 34 U. S. 51

After appropriating to the payment of the balance due by the executor on the judgment to Higginbottom and Provost all the proceeds of the sales under the judgment of the Bank of Georgia, there would be a deficit, to make up the amount due by William S. Gillett to his co-devisees and legatees, of $14,138.66.

On 25 June, 1825, the circuit court, by a decree, held that the declaration of trust contained in the assignment of the judgment of 1 June, 1819, executed by Higginbottom and Provost, under which the minor children of Doctor Elijah Gillett claimed precedence,

"was a sufficient declaration in writing, and that a regard to the interests of the minors, sanctioned the court in sustaining the judgment for any amount that should be justly due to them."

Afterwards, on 22 July, 1832, the circuit court gave a decree in favor of the defendants in that court, and the complainants entered this appeal. chanrobles.com-red

Page 34 U. S. 56


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