The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 187
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JORNSON V. BRADBURY 1b57
(212 F )
in the opinion of the court, Judge Emery discusses these considerations
with great force, referring to Rossiter v. Miller, 5 Ch. Div. 648.
In the case at bar the counsel were lawyers of experience. They
were dealing with a case in court, involving a substantial amount in con-
troversy. The substitution of the fund for the real estate is testified
by Mr. Palmer to have been a matter of "vital importance"; it must
have been so considered ,by all the parties. We should expect that if,
as a result of the conversation, the parties had agreed upon any course
different from the ordinary proceeding in the case, the first thing
that would have occurred to them would have been to make a stipu-
lation of their agreement, as was made in Halliday v. Stuart, 151 U.
S. 229, 14 Sup. Ct. 302, 38 L. Ed. 141.
The talk was in the presence of the court; and, if counsel did 'not
propose a stipulation, it would have been within the usual practice of
courts for Judge Haley to suggest, and even require, such stipula-
tion. Even if a matter of so vital importance got by counsel and
court, and eluded a stipulation at the hearing, it is difficult to see how
it escaped the agreed statement, nine' nonth's later, when the case was
made up for the law court. When we examine the agreed statement, and
find in it a reference to the sale of the original homestead, and find, also,
a reference to the petition ii the probate court relating to the regl
estate, we should expect that, if an agreement had been made to sub-
stitute the fund for the farm, a matter so affecting the final judgment
would have been made a part of the formal statement of the case.
The whole testimony, is, in my opinion, an insufficient basis upon
which to found a formal decree that an agreement was made to sub-
stitute the fund for the land. Judge Gould denies with positiveness
that he made any statement that he would look to the fund, instead
of to the land. In view of his express denial, the court can hardly
conclude that the conversation is sufficient to induce the belief that
a contract was made. It appears, rather, that the decision arrived
at was embodied in the entry dismissing the restraining order and in-
junction. While there was talk about looking to the fund alone, the
fact that neither the counsel fdr the parties, nor the court itself, sug-
gested that a stipulation be drawn tends to show that the parties
were satisfied with the court entry, and that they left the future con-
duct of the suit to the ordinary proceeding in the case, thus giving
the right to the plaintiff to proceed, and, in the end, to look to the
real estate for his judgment, in the ordinary way, or to avail himself
of the fund if the probate proceedings should compel him to do so, or
if there should be a subsequent agreement to do so. It does not appear
that the defendant was estopped or precluded, by anything said or done
at the hearing.
When the defendant took his quitclaim deed from Frank L. Palmer,
he is charged with knowledge of the suit in equity; he must have
known that the plaintiff claimed to own this land; that there was a
deed from the trustee under the will of Moses Palmer to the plaintiff;
and that the suit was to try the title on this very piece of property.
He was chargeable with notice of the character of the suit and of the
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38843/m1/209/: accessed March 29, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.