March Utterb'k's V. Cooper. 1877 ing a certain proportion in money and the balance in Term. the "Navassa Phosphate stock." Indeed Mr. Cooper, according to his own account, seems to have been exadm'r tensively engaged in buying and selling this stock in a private way, never paying less than $45 nor more than $50 per share. A Henry M. Willis, who figured first as Utterback's agent in negotiating the loan for Utterback, and afterwards as Cooper's witness-and a most liberal witness he is-gravely tells us that in 1866 he believes he could have purchased one half the city of Baltimore, by giving that stock in part payment, on as favorable terms as Utterback took it. We have nothing in the record to show how much one half the city of Baltimore is worth, with its 400,000 inhabitants, and we can, therefore, only conjecture the magnitude of this calculation. And yet in the face of this assertion it is in proof, that whenever the stock was offered in market, the price varied from $26 to $35 per share. In but one single instance besides the present, was it ever sold for as much as $70 per share, and that was to a citizen of Virginia, who was anxious to borrow $10,000, but could only obtain the accomdation by taking one-half in stock at $70 per share: a desperate expedient to which a needy borrower was no doubt forced to submit by inexorable necessity. To show the estimate Cooper himself placed upon the stock when Utterback was hawking his eighty-six shares about the streets of Baltimore, unable to find a purchaser, he offered it to Cooper at $55 per share; but the latter declined to have anything to do with it, saying he had as much as he wanted, and Utterback at last sold the whole of it at $26 per share in the same market. What Cooper himself paid for the stock originally, he does not tell us. If it cost him as much as $50 per share, which is very improbable, he realized by the transaction with Utterback a profit of nearly $1,800. It is not surprising he sent an agent all the way to Virginia, at his own expense, to examine the land and "report whether it would be a sufficient security for the debt." I am aware that a jury empannelled in the circuit court to try an issue between Cooper and Utterback, have found that this transaction is not usurious. How such a verdict could have been found upon the evidence furnished by Cooper himself-I say it with all respect-does indeed excite emotions of astonishment. It is proved by the plaintiff's own witnesses-it stands out indelibly impressed upon every feature of the transaction-that the purchase of the stock was a necessary consideration of the loan. However, it does not concern me to combat the finding of the jury on this point. At all events it was a hard and most unreasonable bargain imposed upon an improvident and insolvent man, anxious to obtain money, reckless of the means by which it was obtained, and utterly indif ferent to the consequences which might flow from his conduct. The terms of the loan being agreed on, the next question was as to the security. Utterback represented himself as the owner of two farms in Virginia. He produced a recorded deed from his father for one of them. (The other does not concern us here, for although he had a deed for that also, he had not paid for it.) He also produced a certificate of the clerk, showing judgment liens on the property amounting to some $1,700 or $1,800. The certificate said nothing about deeds of trust and mortgages, and he declared there was no other incumbrances on the property besides the judgments. He made no allusion to the deed of trust he had given his father in 1859; 1877. March Term. Utterb'k's adm'r V. Cooper. March Utterb'k's adm'r V. Cooper. 1877 he deliberately suppressed all information touching its Term. existence. This conduct was of itself sufficient to put Cooper on his guard. Of course if he, Utterback, was so unscrupulous as to deny the deed, he would not hesitate to make any representation which might show it was satisfied. Cooper did find out in some way there was such a deed, and he called Utterback's attention to the fact. Let us see how Utterback met the difficulty. I give his account in Cooper's own words: "Utterback, on having his attention called to this (the deed of trust), stated that it was only an apparent not an actual indebtedness, that the said Armistead Utterback was his father and was dead; that he, the said Charles Utterback, was the administrator of the said Armistead; that he had paid off all the distributees of the estate, and all the debts, and only awaited the meeting of the court to have the account formally closed and the apparent lien released. Utterback then went back to Virginia, and brought back with him certain papers, which he exhibited to Mr. Ridgley (Cooper's counsel) in confirmation of what he said to me." The transaction was then consummated. This is Cooper's account. Now what were these papers brought back from Virginia by Utterback in confirmation of what he had said? First, the deed of trust to his father. He also produced a certificate of his letters of administration, granted on the 25th September 1865; a private letter from his attorney, written in Fauquier, and a certificate of John W. Pugh, a commissioner in chancery for that county, as follows: "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 account as having been paid by said Charles H. Utterback to the estate of his said intestate. Given under my hand, as commissioner aforesaid, the 2d day of July, 1866. (Signed) JOHN W. PUGH." Now it will be observed that this certificate says nothing about the payment of creditors and distributees. It makes no reference to the first three bonds embraced in the deed of trust, those due in 1863, 1864, 1865. It only mentions the three last, those due in 1866, '7 and '8. What had become of the three first would be the natural inquiry? Utterback was ready with his answer. I give it in the words of Mr. Ridgley, Cooper's attorney: "He said that he had paid the first three 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, they had been paid by himself as administrator of his father, and would be duly entered satisfied 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." This was his statement upon his second visit to Baltimore. It will be remembered that upon his 1877. March Term. Utterb'k's adm'r V. Cooper. March adm'r V. Cooper. 1877 first visit, when questioned as to the trust deed, he Term. said nothing about the payment of the first three bonds to his father in his lifetime; he never hinted at Utterb'k's it. His pretension then was, that he had paid all the creditors and distributees, and that he would produce satisfactory evidence of the fact, and thus show that the deed of trust represented only an apparent not an actual indebtedness." Does any one suppose that these men, client and attorney, shrewd, sagacious, thoroughly conversant with all business transactions, were at all deceived by these statements, that they did not at once detect their palpable inconsistency? Is any one so credulous as to believe they did not see through the transparent device by which this man was seeking to use his office as a means of perpetuating a gross fraud upon the estate he represented? Scarcely a word of his statement was true. He had not paid the creditors of his father's estate. At that very time its liabilities exceeded $10,000. He had not settled with the distributees, or any of them, so far as the record shows. It is very true that Utterback obtained from two of the distributees receipts showing payments made to them; but it is not pretended that any money was in fact paid, nor was Cooper ever misled, because he never saw the papers. He had returned no inventory of the estate; he had made no settlement. If he ever paid his father the first three bonds, or either of them, he has nothing to show it except his own unsupported statement, and that is so improbable and contradictory as to deprive it of all claim to belief, even conceding he is a competent witness. Armistead Utterback died in 1862 intestate; and we are to believe, without a word of proof, that at some period not stated Charles Utterback actually paid three |