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Walker v. Brungard et al.

them. He files with his answer as exhibit K, a letter written by Thomas F. Walker, in April, 1839, expressly acknowledging his title to this property and his right to sell it, and proposing a sale to John Walker, one of the trustees.

He next answers the charge of having only given $2850 for the land, and charging the trust fund with $3150; and shows by the sheriff's deed that $3150 was the amount he actually paid. He admitted he bought the plantation, and that exhibit (52) to the cross-bill is a true copy of the sheriff's deed therefor; he says he bought this plantation under executions older than the deed of trust, and held it in his own right; but having no desire to speculate on the trust fund, he wrote exhibit (53) to Walker, but could not carry out the plan there proposed; in the mean time, judgments were rendered against him, and the property sold. He admits he has charged the trust fund with the amount paid for the land, and submits whether he should be charged with the $3140, what he paid for it, or $960, what it sold for, which was its full value.

The next charge answered, is that of the sale to John Salmon, and the appropriation of the proceeds to his own use. He admits the sale to Salmon and justifies it; that the property was his own, fairly bought and fairly sold, and was no part of the trust fund. He denies the reception of $6000 from Salmon, but says he only received $2200, in depreciated paper worth not half the sum.

He admits the purchase of the plantation by Stockton, but denies that Burwell was his attorney in buying it, but was Stockton's attorney only. That Stockton purchased the property with Mrs. Brungard's money, derived through the will of Edward Mitchell, which is made exhibit H to the bill, which money and property bequeathed by Mitchell was Isettled upon her by decree of the court in Louisiana, and that the purchase was not made with his own money, nor with that of the trust fund.

He denies the collection of the debts and accounts as set forth in exhibit 56 of the cross-bill, and refers to the affidavits of John J. Guion and W. C. Smedes, to whom the principal part of these claims were given to collect. Their affidavit filed as exhibit M,

Walker v. Brungard et al.

states which of the accounts were collected, and which were worthless, and that Brungard used the utmost diligence and care in the collection of them; devoted his whole time and energy to it, and ruined himself by the total neglect of his own business; that so far as their knowledge extended they wholly acquitted him of all fraud in the premises. He was rich when he indorsed for Walker, and had been ruined by it.

Bungard files also the affidavits of several lawyers, in whose hands claims were placed, being exhibits O, P, Q, R, S, and T.

With reference to the loss of the $26,000, he says he had sued the parties to those notes in this state on two of them; had obtained judgment and a return of nulla bona, when he was advised that one of the parties, Samuel Anderson, had property that could be made liable to them; he accordingly employed Stockton and Harrison, regular attorneys of Louisiana to bring the suits; they did so; involved him in cost in about $3000, and were likely to mulct him and his surety into damages in about $8000, when he compromised the matter and gave up the notes; this he did by advice of his lawyer; and he denies that the trust fund lost any thing by it, as the parties to the notes were all then, and still are, utterly insolvent. He avers that this compromise and suit took place long posterior to the sale under the deed of trust and the sale to Salmon, and denies that they can be affected by it.

He denies his refusal to account for the trust fund; says he has accounted fully; denies the reception of any rent belonging to the trust fund, not accounted for, and says that since Stockton's purchase he has collected all the rents of the brick store.

He says, that Lewis and Walker are objectionable to hiin for the reasons set forth in his original bill, and not for those alleged in the cross-bill; he says, that besides the sum he has already paid, judgments have been rendered against him as indorser on large sums as exhibited by exhibits (X 1) &c., being the certificates of the clerk of the same.

He denies that any portion of the trust fund is now in his hands; but if any were, he denies that Lewis and Walker are proper trustees; Lewis is insolvent and unfit, and had left the

Walker v. Brungard et al. United States for the West Indies; and John Walker was an infant, who had pleaded infancy to avoid a debt, of which the record is exhibited, and was entirely under the influence of his father, the complainant, who was a drunken, worthless old man.

He proceeds to answer the charges made in the answer of Walker, which is made a part of the cross-bill; he denies repeatedly all the fraud charged, or that he had received any of the trust fund except as stated by him; he denies that the last sale of the trust property was unfair, or that he deterred bidders; he says it was bonâ fide, fair and public, and he was, and is, entitled to a deed; he denies that the property originally conveyed in trust was an ample indemnity; he says, that it is not worth more than he has already paid on account of the trust fund; that the amount he had paid of his own funds to save the trust property on account of his indorsements, was so large that it had crippled his own resources, forced him to a sacrifice of valuable land on the Mississippi river, and of his silver plate, &c., and had ruined him.

That the complainant never was worth any thing; all the properly he ever owned was covered with debts far beyond its value, and that complainant was insolvent in the sum of $200,000.

He insists that for his labor, care, anxiety, loss of health, &c., he is entitled to charge the trust fund $12,000 for his services, and he accordingly makes the charge.

He files accounts and vouchers with his answer, which exhibits an indebtedness to him of $26,394.67; these accounts he makes parts of his answer.

Mrs. Brungard, formerly Elizabeth Sims, filed her answer on the 17th of June, 1841. She denies all knowledge of any frauds on the part of her husband; says she is an innocent and bona fide purchaser; adınits that Stockton bought as her trustee, and that the property bought by him is hers; she admits that when Burwell bid off the property for her, Walker proclaimed that he had been defrauded, and the property was his creditor's, but that Burwell bought as the agent and friend of Stockton; that she had no knowledge of any fraud of her husband's, nor does she

Walker v. Brungard et al. believe he was guilty of any; that Walker's statements were regarded as nothing and did not repress bidders, and were not true.

She exhibits the mode in which she obtained the money with which she purchased the property, through the will of Edward Mitchell and as a distributee of Edward Sims, a legatee under the will; that her husband had not reduced all to possession that she was entitled to under that will. Mitchell died, and his property was located in Louisiana ; she knew her husband's embarrassed situation ; judgments against him, and all his property likely to be stripped from him; she knew he was ruined by his indorsements in Louisiania, and to save what little she had left, she sued him, by the advice of Stockton, in the courts of Louisiana, for a separation of property under which her husband by the advice of Stockton made the declaration of trust marked (A A) which was of record when Stockton bought; with the money derived from this source, and from her brother, Ferdinand Sims, the executor of Mitchell, Stockton bought this property for her, after a full examination of the title; she bought by advice of Stockton and her brother; that her husband was opposed to the purchase, and wanted her to let him have the benefit of it, which, from a sense of duty to herself and child, she refused. That if she loses what is involved in this suit, she loses her all, and will have to resort to the labor of her hands for the support of her family; for her husband is so involved by his pecuniary misfortunes, brought on him by Walker, that he can do nothing to aid her. She adopts the answer of her codefendant Stockton.

R. C. Stockton filed his answer, June 17, 1841; he admits he bought the property sold at sheriff's sale, for Mrs. Brungard, with her money, derived as stated by her; he admits that Burwell bought the property, but he bought as his agent; that Walker made the statements charged. He says that he became trustee for Mrs. Brungard, at her and her brother, F. Sims's request, of property which she derived under the will of Edward Mitchell; that a declaration of trust was made and he appointed trustee, and F. Sims placed the money in his hands, and he

Walker v. Brungard et al. bought the property which he purchased, having seen the advertisement of its sale, and supposing it would be an opportunity of investing the fund intrusted to him, on good terms, as real estate sold low and was in no demand. He never consulted George Brungard in the sale, who was opposed to it; he employed Burwell to buy for him, before Burwell was engaged in the suit for Brungard; he paid Mrs. Brungard's money, and never received one cent from George Brungard to buy it with. He believed Brungard's title good, and did not believe him to have been guilty of any fraud. He examined the title, thought it good, and so advised Mrs. Brungard. That the plantation was bought at sheriff's sale by Brungard, and was therefore not a part of the trust fund, and Brungard had a regular deed to the house and lot; that Walker's statements were regarded as those of a half mad old man, and had no effect in repressing bidders, and he believed the title to be good. He refers to his affidavit filed with Brungard's answer for a true statement of his action with reference to the notes of $26,000, placed in his hands as attorney at law, by Brungard.

John Salmon's answer was filed, Dec. 2, 1841; he admits that he purchased the property as charged, but denies that he had any notice of Walker's claim; that he employed counsel, who told him the title was good. That he paid part to Brungard, $2300, and his note for $2400 was assigned by Brungard to Scheweppe, who sold the lot under a deed of trust given by him for $600, so that he owes the residue to Scheweppe of the $2400; that Brungard lost by depreciation in the bank papers he paid him; and he himself suffered from Walker's false stalements that no title would pass, when the lot was sold by Scheweppe

under his deed of trust. J. Dunderdale proves, that for indorsing Mr. Walker's notes, and in other ways assisting Mr. Thomas F. Walker in the arrangement of his settlement with Messrs. Folkes for the purchase of the brick store and the stock of goods, Mr. Thomas F. Walker agreed to give Brungard $10,000, in notes, which by agreement was commuted to $9250 worth of goods, which Brungard received, and Walker executed his receipt for; the only

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