Noonan v. Bradley
ERROR to the Circuit Court of the United States for the District of Wisconsin; the case being thus:
In October, 1855, Noonan, the defendant in the court below, purchased of one Lee, and received from him a warranty deed of certain real property situated in the State of Wisconsin, and for the purchase-money gave his bond in the penal sum of eight thousand dollars, conditioned to pay four thousand dollars in four equal annual instalments, with interest, secured by a mortgage on the property. At that time the premises were in the possession of one Orton, holding them adversely to Lee, and in consequence of this fact Noonan required from Lee, as a condition to the delivery of the bond, an agreement against its enforcement in case his title to the land should fail (except as against the United States for the portion of the river (Milwaukee) beyond a certain designated line), and to deduct from the sum stipulated the amount of any incumbrances which might be found on the property. Such an agreement was accordingly given, and was indorsed on the bond. It was as follows:
I agree, if my title fails to the property for the consideration of which this bond is given, except as against the United States, for the portion of the river beyond the meandered line, that I will not enforce this bond; and if any incumbrances shall be found, that the amount of the same shall be deducted from the moneys to fall due on this bond.
J. B. LEE.
A clause in the mortgage provided, that upon default of Noonan to pay any of the instalments of the principal, or the interest, or the taxes on the property, as they became due, the entire principal of the bond with interest should, at the option of Lee, be immediately payable.
In March, 1859, default having been made in the payment of the several instalments, Lee elected to claim the entire amount as due, and brought suit against Noonan and others in the District Court of the United States for the District of Wisconsin, then exercising Circuit Court powers, to foreclose the mortgage, praying in his bill for a sale of the mortgaged premises, the payment of the debt secured, and for general relief. Noonan answered the bill, setting up that Lee's title had failed before the commencement of the suit; but the court, by its decree, made in January, 1860, found that there was due on the bond a sum exceeding five thousand dollars, and directed a sale of the mortgaged premises, and the application of the proceeds to the payment of the amount found due, and that if the proceeds were insufficient the marshal should report the deficiency, and Noonan should pay it with interest, and in default of such payment the complainant should have execution therefor.
From this decree Noonan appealed to this court, and, pending the appeal, for the purpose of trying his title to the land purchased, brought ejectment in one of the Circuit Courts of the State of Wisconsin against Orton, the party in possession. He then gave notice to Lee of the action, and required him to undertake its management. Lee at once retained counsel, who, for him, assumed the conduct of the action.
Pending the appeal in this court, and the action of ejectment in the State court, Lee died domiciled in New York, and Bradley, the plaintiff in this case, was duly appointed by the proper tribunal in that State administrator of his estate. On his application, Bradley was then substituted as representative of his intestate on the record in the case on appeal in this court.
At the December Term, 1862, this court gave its decision in the case, adjudging that the District Court erred in ordering the defendant Noonan to pay and deficiency which might remain of the principal and interest of the mortgage debt after applying the proceeds of the sale, and that complainant have execution therefor. To this extent the decree was reversed; in other particulars it was affirmed.
In the opinion delivered on rendering the decision the court observed, that upon the facts disclosed by the record it found no defect in the title of Lee, and that Noonan's title had not failed. In this language reference was of course had to the title as it appeared upon the evidence presented at the hearing in the District Court in January, 1860. 
Afterwards, in January, 1863, final judgment was rendered in the action of ejectment in the State court in favor of Ortion, the party in possession, and against Noonan, upon the ground that the latter was not seized in fee of the premises, and acquired no title by his purchase from Lee, and that Orton was thus seized.
When Lee died there were effects of value belonging to him in Wisconsin, and in February, 1865, one T. L. Ogden was duly appointed administrator of those effects by a tribunal having jurisdiction of the matter in that State; and he qualified and entered upon the discharge of his duties as administrator, and when this action was commenced had in his possession the bond given by Noonan to Lee on the purchase of the premises.
In September, 1866, Bradley, as administrator of the estate of Lee, under the appointment in the State of New York, brought the present action upon this bond of Noonan. The declaration set forth his title as administrator under this appointment, and contained four counts.
1 The first count was on the penalty of the bond simply.
2 The second was on the bond, setting out the condition written in the bond, and averring breach of the condition.
3. The third was on the bond, setting out the condition, averring a breach of the condition; and that Lee commenced suit to foreclose the mortgage given to secure the bond; the decree of the District Court, the appeal by Noonan; and that the Supreme Court, pending the appeal, substituted Bradley as administrator, affirmed a part of the decree; that Bradley filed the mandate in the court below; that a sale was had and confirmed, and $53.56 was applied 'to the sums so due, by the terms of the said condition of said bond, and by the terms of said decree as aforesaid.' 'Yet the said defendant hath not paid said several sums mentioned in said bond,' &c.
4. The fourth count was on the bond, giving a copy of the whole bond, and the indorsement upon it, and setting out the proceedings in the foreclosure suit more fully, and concluding: 'Yet the said defendant hath not paid said several sums mentioned in said bond, and the condition thereof, nor either of them, nor any part thereof,' &c.
Every count of the declaration was upon the bond itself, not upon the decree in the foreclosure suit, and the breach alleged as furnishing the cause of action was the non-payment of the money called for by the bond.
To the declaration the defendant interposed three pleas:
1st. That as to the supposed causes of action mentioned therein, the plaintiff was not and never had been administrator of the effects of the deceased.
2d. That there were effects of value of the decedent at the time of his death in the State of Wisconsin, among which was the bond in suit; that T. L. Ogden was duly appointed by a tribunal in that State administrator of those effects, and had qualified and entered upon, and was engaged in the discharge of his duties as such officer at the time the action was commenced; and that by reason of this appointment and qualification, the effects of the decedent, in Wisconsin, were, under the laws of that State, vested in him, with all rights of action in relation thereto, and that as a consequence the letters issued to the plaintiff in the State of New York, with reference to the causes of action stated in the declaration, were void and of no effect.
3d. That the title of Lee to the premises sold had failed, the plea setting up the agreement indorsed on the bond, and the proceedings and judgment in the ejectment suit, to bring the case within the agreement.
To the pleas the plaintiff demurred; the Circuit Court sustained the demurrer, and entered final judgment thereon in favor of the plaintiff for the penalty of the bond; and the defendant brought the case to this court on writ of error.
Messrs. M. H. Carpenter and I. P. Walker, for the plaintiffs in error; Mr. J. S. Brown, contra.
Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:
^1 Noonan v. Lee, 2 Black, 500.