APPEAL from the district court of the western district of Virginia.
The appellees, who are citizens of Maryland, filed their bill in the court of the United States, for the western district of Virginia, in which the material allegations set forth are, that on the 22d of June 1809, Grizzle Taggart, mother of John Taggart, conveyed to William Copeland Goldsmith and James Caldwell, all her estate for the uses and purposes mentioned in the deed exhibited with the bill. A part of the estate so conveyed consisted of a debt due to the said Grizzle from Keller and Foreman of Baltimore, which was secured by a mortgage on valuable real property, called the Salisbury Mills.
That about the year 1817, Caldwell, who was the nephew of Grizzle, importuned her and her son John and his wife, to consent to permit him to receive the money due on the mortgage, and to use it in the purchase of an estate called the White Sulphur Springs, situate in Greenbrier county, Virginia, and which belonged to the heirs of Michael Bowyer; and to induce them to yield their assent, he represented that estate to be very valuable, and promised that he would encumber it (when purchased) by a mortgage to secure the money which he should receive from Keller and Foreman.
The complainants further state, that consent was accordingly yielded on the conditions proposed; in consequence of which Caldwell (who was then sole trustee, the other being dead,) received from Keller and Foreman the sum of fifteen thousand seven hundred and sixty dollars and seventy cents, in discharge of their mortgage, which he appropriated to the purchase of several shares of the copartners of the said Michael Bowyer in the said estate, or said therewith for some shares previously purchased.
Some time afterwards, as the complainants further allege, in order to satisfy Grizzle Taggart of the propriety of his purchase, and that the security promised would be ample, Caldwell brought her from her residence in Baltimore to the White Sulphur Springs. That she returned about the beginning of October 1817, well pleased with the property; that Caldwell promised to execute the mortgage immediately after her return, but that in a very short time Grizzle departed this life, without it having been done.
A few days after this event, Caldwell, secretly and unknown to the complainants, as they state, executed a mortgage in favour of Jeremiah Sullivan and others, on his interest in the White Sulphur Spring estate, to secure the sum of twenty thousand dollars. A second mortgage, to secure the same debt, was executed by Caldwell, bearing date the 15th of September 1819, and both were duly recorded (and are in the record). It is stated that some defect unknown to the complainants, was supposed to exist in the mortgage of the 24th of October 1817, which was the reason for the second being executed.
After the death of Grizzle Taggart, her son, John Taggart, as the complainants state, applied to Caldwell to execute the mortgage which he had promised on the White Sulphur Spring estate. He then informed the said John, that he had executed the mortgage of the 24th of October 1817, before mentioned, on which the said John upbraided him with his breach of trust. Caldwell then promised to extinguish the incumbrance out of the annual profits of the estate, and to make provision for the debt created as before mentioned. Nothing however was done; the complainants being without any written evidence of their claim until the 9th of September 1823, when Caldwell executed a paper, exhibited with the bill, acknowledging the sum of fifteen thousand two hundred and sixty dollars and seventy cents to be due on account of principal, and two thousand nine hundred dollars on account of interest.
The bill further states, that the mortgagees, Jeremiah Sullivan and others, instituted a suit to foreclose the equity of redemption; but before the case was brought to a hearing, a certain Richard Singleton purchased the mortgage and obtained a transfer thereof; that to secure the money paid for the mortgage and other money advanced, he obtained a deed of trust from Caldwell on his interest in the estate, that is four-sevenths obtained by purchase, and one-seventh in right of his wife, who is a daughter of Michael Bowyer.