cumbrance on the property, but the judgments of which he had given me a list. I told him that I could not pass the title without an examination of the land records, and that he must bring me a certificate from 1877. March Term. Utterb'k's adm'r V. Mr. Jennings, the clerk, showing that there were no Cooper. deeds of trust or mortgages. Reluctantly he acquiesced and submitted, and returned to Virginia to procure the necessary certificates." "About the 5th of July he returned, and produced Mr. Jennings' certificate, showing that he had conveyed the property by deed of trust in favor of his father to secure the payment of six notes of a little over $1,000 each, with the interest thereon. He explained the deed of trust as practically satisfied. He said that he had paid the three first notes, and took them up in the lifetime of his father, but that in the ups and downs of the war they had been lost. In regard to the other three notes he explained that they had been paid by himself as administrator of his father's estate, and would be duly entered satisfied at the next term of the court. He also produced to me a certificate from the commissioner in chancery of Fauquier county" "confirming this statement, and that the property would be relieved from the lien of those notes mentioned in the deed of trust in favor of his father, Armistead Utterback, at the next term of the court. He said that he had more than paid to the other distributees of his father's estate their proportion thereof, and was a creditor of the estate. He also produced a note to himself from his counsel, Mr. Brooke, in which he said that he sent him the deeds referred to in my testimony, and the certificate from the commissioner in chancery, and asked what more could Cooper's counsel here in Baltimore require in consummation of the title; and on the faith of it all I passed the title. A deed of trust, March Term. Utterb'k's V. Cooper. 1877 being that referred to in the interrogatory, was executed to Mr. Rasin, to secure the promissory notes mentioned in the interrogatory. The $5,000 was applied adm'r by me to the payment of the judgments against the estate, amounting to $1,686.57; broker's commissions, my fee of fifty dollars, costs of stamps, and other incidental costs of the deed, were paid out of the fund, and the balance of $2,683.43 was paid to Utterback; and on the 26th day of July 1866 I delivered to him eightysix shares of said Navassa Phosphate company, which, at the stipulated price of seventy dollars a share, produced $6,020, and he returned to me twenty dollars for Captain Cooper. The consideration for the promissory notes and deed of trust referred to, was the loan of the $5,000 by Cooper to Utterback, as heretofore explained, and eighty-six shares of Navassa Phosphate company sold by Cooper to him.” The commissioner's certificate, referred to by the witness Ridgely, is in these words: "COMMISSIONER'S OFFICE, Warrenton, Va., July 2d, 1866. This will certify that Charles H. Utterback, administrator of Armistead Utterback, has filed before me, as commissioner in chancery for the county court of Fauquier county, three bonds for $1,042.39 each, due respectively on the first day of January 1866, first January 1867, and first January 1868, as vouchers in the settlement of his administration account of said Armistead Utterback's estate, and the said Charles H. Utterback has directed me to credit the amounts of the said three bonds in his said administration account, as receipts which have come into his hands as assets of said estate, and the same will be entered in said ac count as having been paid by said Charles H. Utterback to the estate of his said intestate. Given under my hand, as commissioner aforesaid, 1877. March Term. the 2d day of July, 1866. Utterb'k's adm'r JOHN W. PUGH." V. Under the above is a certificate in these words: "I, William A. Jennings, clerk of the county court of Fauquier county, do certify that John W. Pugh is a duly appointed, authorized and acting commissioner in chancery of Fauquier county court, as such authorized by law to settle account of administrators and other fiduciaries, and that his signature to the above certificate is genuine. Given under my hand this 3d July, 1866. WILLIAM A. JENNINGS, C. C." The note to Charles H. Utterback, from his counsel, Mr. Brooke, referred to by the witness Ridgely, is in these words: "WARRENTON, July 4, 1866. DEAR CHARLES:-I enclose you the deeds from Saunders & Schanot, Mr. Pugh's certificate, to which is added the clerk's certificate of your qualification, and his certificate about Saunders' debt. You have already his certificates of all the judgments, and I do not see what you need further to show your title. You must stamp the deed, and cancel them by writing the initials of the name and date of the deed. ders' deed will take four dollars, and Schanot's will take fifty cents. The justice's certificates and the clerk's certificates ought also to have five cent stamps VOL. XXVIII-31 Saun Cooper. 1877 attached. I have no stamps on hand, but you can buy March Cooper. Yours, JAMES V. BROOKE." The administration account of Charles H. Utterback on the estate of his father, Armistead Utterback, was never in fact settled by commissioner Pugh, because the said Charles H. countermanded the direction he had given to said commissioners in regard to said settlement, and withdrew the papers he had left in his hands for that purpose, especially his last three bonds to his father for the purchase money of the land, which bonds he afterwards handed to the administrator de bonis non of his father. And the said Charles H. Utterback having made default in the payment of such of his said notes to E. K. Cooper as had become payable, except the one for the first semiannual interest, which became payable six months after date, the said Cooper, in February 1868, instituted this suit for redress. In his bill, filed at March rules 1868, he stated the facts of the case on which he relied, made Charles H. Utterback in his own right, and as former administrator of Armistead Utterback, deceased, Charles T. Green, administrator de bonis non of said A. Utterback, R. W. L. Rasin, and W. H. Gaines, administrator of John P. Phillips, deceased, defendants to the bill, and prayed for a decree for the sale of the said land, for the payment of the debt due to him as aforesaid, and for general relief. Various proceedings were afterwards had from time to time in the said suit, including the following, which alone are material now to be mentioned, though some of the others may be hereinafter noticed. In April 1868, the defendant, Charles T. Green, administrator d. b. n. of A. Utterback, filed his answer, in which he not only claimed the said three bonds which had been handed to him by C. H. Utterback as still remaining due and unpaid to the estate of A. Utterback, but insisted that the other three, alleged by the complainant to have been long since paid, were in fact wholly unpaid. On the same day, to wit: on the 13th day of April 1868, Louis Shumate, Robert E. Utterback, and Addison W. Utterback, sureties of C. H. Utterback as administrator of A. Utterback, on their petition, which they filed by leave of the court, were admitted as parties defendant in the cause. On the 17th of April 1868, C. H. Utterback filed his answer, in which, among other things, he stated that the money loaned by complainant to him was not the sum of $11,000; on the contrary he averred "that all the money loaned by the said complainant was $4,980, and that the balance of the consideration of said bond consisted of 86 shares of Nevassa Phosphate stock, fraudulently represented to this respondent to be saleable in the market at the rate of 55 per cent. (per share), and which this respondent, under this representation, was induced to take at 70 per cent. (per share), making for the 86 shares, the sum of $6,020, which, with the above sum of $4,980, constituted the consideration of the said note of $11,000." Respondent charged that " said E. K. Cooper was a party to these false representations, and was himself connected with the said Navassa Phosphate company. This respondent was not a dealer in the stock market, and had no use for Navassa Phosphate or any other stock, except as a means of raising money, which he needed; and finding it impossible to procure the loan of money, even on the most undoubted security, with 1877. March Term. Utterb'k's adm'r V. Cooper. |