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taken by the sald James Hampden Robb in A summons in that action was issued for fall satisfaction and discharge of all bis Robb and Strong, trustees, and also for Wilclaim aforesaid as a creditor of the said es liam Stix, as well as for the other defendants tate.
On the 19th day of November, 1885, Kebler “(6) The residue, if any, of the moneys now accepted service of that summons for Robb in the administrator's bands, and which and Strong, trustees, and for William Stis, shall arise from the sale of the real estate as follows: aforesaid, after providing for said trusts, and “We accept service of summons in the withalso any residue which may be left of the in cause for Charles E. Strong and James trust funds so set apart, after fulfilling the | Hampden Robb, trustees, and for William said trusts respectively, shall be divided and Stix, this 19th November, 1985. Kebler & paid in four equal shares to and among the Roelker, Attorneys for Above-Named Defendchildren and heirs of the said James Robb, ants, Duly Authorized.” deceased, viz. James Hampden Robb, Mrs. • The petition described various parcels of Isabella San Raman, Mrs. Mary R. Milten real estate claimed to be the property of Loth, berger, and Mrs. Charlotte M. Pancoast. and asked that the several defendants be re
"It is understood that the foregoing agree quired to show what interest they respective ment shall take effect immediately upon the ly had therein, and that the liens be mar. order of the court for the sale of said real shaled and priorities determined, and a sale estate, and the setting aside the deed from be made. As to the parcels owned by Robb James Robb to Isabella San Raman herein and Strong, as trustees, the petition averred referred to, and not before.
that they held the property only as security, "In witness whereof, the said Charles A. and asked that the court so find. As bearing Kebler, administrator of the said estate, on this averment, interrogatories were at. Mary R. Miltenberger, Charlotte M. Pan tached to the petition, requiring Robb and coast, James Hampden Robb, Ellen M. Robb, Strong, trustees, to state what sum of money and Mary Robb have hereunto set our hands was paid to Loth as the consideration of the and seals, in five parts interchangeably, this conveyance to them, what indebtedness existday of June, in the year 1883."
ed at the time of the conveyance in reference In carrying out the settlement provided for to said property, whether any contract existIn the said agreement, $10,000 in the bands ed between them and Loth in reference to the
of the administrator were invested in the property, etc. purchase of certain pieces of real estate in The sheriff returned the summons: "Service the city of Cincinnati from one Moritz Loth, accepted by Kebler & Roelker, attorneys who conveyed the same to James Hampden for Charles E. Strong and James Hampden Robb and Charles E. Strong, trustees by a Robb, sustees, and for William Stix, as per deed dated February 5, 1885. This deed ex acceptance above written." pressed a consideration of $10,000 as paid by On December 18, 1885, Kebler filed the anthe said Robb and Strong, as trustees, but swer and cross petition of Robb and Strong, did not define a trust or name any cestui que trustees, correctly setting forth their title to trust. By an instrument bearing date the the premises, and prayed that their interest same day, Robb and Strong, trustees, leased be protected therein. He answered under the same property to Moritz Loth during the oath the interrogatories as attorney for Robb joint life of Ellen W. Robb and Mary Robb, and Strong, trustees, assigning as a reason and during the life of the survivor, Loth, as therefor that they were nonresidents of the lessee, agreeing to pay to the trustees a rent state, and absent therefrom. of $500, payable semiannually, and to pur Kebler also filed in the same case the an. chase the same property, on the death of swer and cross petition of said William Stix, Mary and Ellen W. Robb, for the sum of and at a later stage of the case he filed an $10,000.
amended answer and cross petition of Wil. Robb and Strong, the trustees, were resi liam Stix, setting up the maturity of several dents of the city of New York, and Ellen W. of the mortgage notes, breach of condition of Robb, Mary Robb, and Moritz Loth resided in the mortgage, and prayed a sale of the leaseHamilton county, Ohio, and the deed and hold in the premises now in controversy, and lease were duly recorded in that county. of other property mentioned in that cross e
On March 30, 1885, Moritz Loth mortgaged tition. To these pleadings of Stix, Kebler his interest in said property and in other real filed answers for Robb and Strong, trustees, estate to one William Stix, to secure a loan which he himself swore to. of $10,000.
On February 15, 1887, he consented to an In November, 1885, one Meyer Gugenheim, elaborate decree on the cross petition of Wil& judgment creditor of Moritz Loth, brought liani Stix, selling all the property described an action in the court of common pleas of in the petition, and appointing George Sidney Hamilton county, Ohio, to subject all the real Tyler master commissioner to make the sale. estate of Loth to the satisfaction of his judg. That part of the decree which referred to * ment, making parties defendant a number Robb and Strong, trustees, was as follows: of creditors of Loth, who held title to or liens "And it is ordered, with the consent of upon the property claimed to be his, including | Henry W. Taylor and Charles E. Strong and Robb and Strong. trustees, and William Stix. James Hampden Robb, trustees, that the
fee-simple title of the premises described in In this suit Robb and Strong, trustees, apsaid mortgage to William Stix be sold, and peared, and filed an answer and a cross petisaid premises sold freed from the claims of tion, in which they set forth the particulars Henry W. Taylor and Charles E. Strong and of their title to or interest in the lands de James Hampden Robb, trustees, and all oth scribed in their conveyance to Moritz Loth, er parties in this suit, their respective rights and the lease of the latter to them, and the in and to said premises being transferred to proceedings in the Gugenheim Case. In reand reserved in the proceeds of such sale." spect to that case their averments were as
By proceedings under this decree, on April follows: 16, 1887, the property in question was sold, "And these defendants further say that a part thereof to August Vos and a part to on said day one Meyer Gugenheim, having William Stix, and on May 24, 1887, conveyed, recovered by the consideration of this court by a master, to them in fee simple; Vos pay a judgment against the said Moritz Loth, ing into court the amount of his bid, $9,100, brought suit in this court, case No. and Stix paying $3,131.32.
this court, against the said Moritz Loth and In the final decree of distribution it was or the defendants and divers other persons, dered that the sum of $11,361.66, being prin- praying, among other things, that these de. cipal and interest, should be paid over by the fendants may be declared to hold said lands master to Robb and Strong, trustees, or Keb by way of mortgage as security for the said ler, Roelker & Jelke, attorneys, and $7,926.02 | purchase price on said lands of $10,000, and to William Stix or Kebler, Roelker & Jelke, that said lands might be free from the claim attorneys; and those sums were paid to of these defendants and all other persons Charles A. Kebler, attorney.
parties thereto to satisfy the said judgment On June 23, 1887, Charles A. Kebler gave to of the said Meyer Gugenheim and the claims F. G. Roelker a conveyance of lands as se of divers persons therein made defendants. curity for moneys due by Kebler to Roelker, "And these defendants further say that and also to indemnify the latter against any thereafter, to wit, on the 18th day of Decemloss he might sustain or liability that he ber, 1885, Charles A. Kebler and Frederick might be under by reason of the partnership G. Roelker, then partners, engaged in the business of Kebler & Roelker, attorneys. practice of law under the firm name and
On November 25, 1887, Charles A. Kebler style of Kebler & Roelker, of*the city of * died by his own hand, intestate and insolvent. Cincinnati, entered the appearance of these
In January, 1888, in the court of common defendants in such cause, and filed an pleas of Hamilton county, Ohio, at No. 79,812, answer therein on behalf of these defend. William J. Coppock, as administrator of ants; further say, therefore, to wit, upon Charles A. Kebler, deceased, filed a petition, the 10th day of May, 1887, said firm of setting forth, among other things, the death Kebler & Roelker was dissolved, and Charles of Kebler, intestate and insolvent; that there A. Kebler, Frederick G. Roelker, and Ferdiwas a large amount of real estate which it nand Jelke, Jr., entered into a partnership, was necessary to sell in order to provide and engaged in the practice of law in the city means to pay debts; that certain persons of Cincinnati under the firm name and style had, or claimed to have, title to or liens of Kebler, Roelker & Jelke, as the successors against said real estate, etc. The minor chil of said firm of Kebler & Roelker; and these
dren of Kebler and F. G. Roelker were made defendants say that thereafter all steps in parties defendant. To this petition Roelker said cause on behalf of these defendants
filed an answer, in which he alleged the exist were taken by said firm of Kebler, Roelker ence of the conveyance or mortgage made & Jelke, and by none others; and these deto him in June, 1887, by Kebler, and that fendants further say that such proceedings J. Hampden Robb and Charles E. Robb, as were afterwards had in said cause that the trustees, claimed to have had dealings with said premises were sold, free of the claims Charles A. Kebler, acting and professing to of these defendants and of all other persons act as a partner of him, the said Roelker, whoever, by one George Sidney Tyler, who whereby they claimed that the said partner was appointed special master commissioner ship and the said Roelker were indebted to by this court in said cause for the purpose them; that he, the said Roelker, did not of making such sale, and said proceedings know, and was unable to state, the particu were thereafter had in said cause that a lars of said transactions; that they were con decree was made in said cause on the 19th cealed from him by the said Charles A. Keb day of May, 1887, whereby it was ordered, ler during his lifetime, etc.; and that he, adjudged, and decreed that said George Roelker, if liable by reason of said transac Sidney Tyler, special master commissioner tions, was entitled to the protection of the in said cause, pay to these defendants or said conveyance of June, 1887; and he fur their counsel, Kebler, Roelker & Jelke, out ther alleged that the said Robb and Strong, of the proceeds of said sale, the sum of trustees, were necessary parties to the deter $11,361; and these defendants further say mination of the rights of the parties to the that said sum was duly paid on the 16th day litigation, and asked that they be made de of June, 1887, to said firm of Kebler, Roelker fendants, and be called upon to answer to & Jelke by said George Sidney Tyler, special and set up their claims, etc.
master commissioner, as ordered by the de
cree of said court, and that no portion there. | plaintiffs further say that thereafter, to wit, of has been paid to these defendants or on the 18th day of December, 1885, one accounted for to them; and these defendants Charles A. Kebler, then engaged in the pracfurther say that since which time, to wit, tice of the law with one Frederick G. Roelker, on the 23d day of November, 1887, Charles under the firm name and style of Kebler & A. Kebler departed this life, and that Fred Roelker, in the said city of Cincinnati, did, erick G. Roelker and Ferdinand Jelke, Jr., without authority from the plaintiffs, and are the surviving partners of said firm. without their knowledge, enter the appearWherefore these defendants pray that said ance of these plaintiffs in said case, and did Ferdinand Jelke, Jr., may be made party file an answer therein on behalf of these defendant hereto; And that it may be ad- plaintiffs, using for that purpose said firm judged that these defendants are creditors name of Kebler & Roelker. of said firm of Kebler, Roelker & Jelke; and “And these plaintiffs further say that therethat the property in the petition and cross after, to wit, prior to the 11th day of May, petition of Frederick G. Roelker sought to 1887, the said firm of Kebler & Roelker was be sold may be sold; and that out of the dissolved, and the said Charles A. Kevler,
proceeds thereof said sum of $11,361, with in. the said Frederick G. Roelker, and one terest from the 16th day of June, 1887, may Ferdinand Jelke, Jr., entered into a partnerbe paid to these defendants; and that these ship and engaged in the practice of the law defendants may recover judgment against in said city of Cincinnati, under the firm Frederick G. Roelker and Ferdinand Jelke, name and style of Kebler, Roelker & Jelke, Jr., as surviving partners of Kebler, Roelker as successors to the said firm of Kebler & & Jelke, for said sum of $11,361, with in Roelker; and these plaintiffs further say terest from the 16th day of June, 1887, and that thereafter all steps in said cause purfor their costs."
porting to be on behalf of these plaintiffs Subsequently, on May 17, 1838, Robb and were taken in the name of the said firm of Strong, trustees, obtained leave of court to Kebler, Roelker & Jelke. withdraw their said answer and cross peti "And these plaintiffs further say that all tion; and filed a demurrer on the ground steps taken in said cause at any time purthat they were not proper parties to the porting to be on behalf of these plaintiffs case, which demurrer was sustained by the were taken without the knowledge of these court, and Robb and Strong were on May plaintiffs, and without any authority from 26, 1888, dismissed, with their costs.
these plaintiffs; and these plaintiffs say that On May 12, 1888, Robb and Strong, trus all orders, decrees, and judgments entered tees, at No. 43,368 of the superior court of in said cause purport to bave been entered Cincinnati, Hamilton county, Ohio, brought by and with the consent of these plaintiffs, a suit against August Vos and William Stix. but that the same were entered by the said In the petition, after reciting the conveyance Kebler, Roclker & Jelke, and without the by themselves to Moritz Loth, and the lease knowledge, consent, or the authority of these of the latter to them, they set forth the pro plaintiffs, and that these plaintiffs had no ceedings in the Gugenheim Case, and al knowledge of said cause or the institution lege as follows:
thereof, or of any proceeding therein, until "And the plaintiffs further say that on
December 2, 1887, being long after the consaid day one Meyer Gugenheim, having re veyance of said lands to the purchasers covered by the consideration of the court of thereof, in pursuance of the pretended sale common pleas of Hamilton county, O., a
made in said case. judgment against the said Moritz Loth, “And these plaintiffs further say that such brought suit in the said court of common proceedings were had in said cause No. 74,pleas, numbered 74.375 in the said court, 375 that the said premises were sold by one against the said Moritz Loth and these George Sidney Tyler, who wis appointed plaintiffs and divers other persons, praying, special master commissioner by said court of among other things, that these plaintiff's common pleas. for the purpose of making might be declared to hold said lands by way said sale of property; and that said special of mortgage as security for the said pur master commissioner purported to make said chase price of said lands of $10,000, and sale free of the claims of these plaintiffs and that the said lands might be sold, free from of all other persons*whatever parties to said" any claims of these plaintiffs and all other cause; and that the said parcels of land were persons parties thereto, to satisfy the judg- purchased, respectively, at said sale, by the ment of the said Meyer Gugenheim and the said August Vos purchasing lots numbered claims of the divers other persons therein 3. 4, and 5, hereinbefore described, of the made defendants.
subdivision of the tract of land on the “And these plaintiffs further say that in west side of Vine street, 100 feet front said cause no summons or other process and extending back westwardly 132 feet, of was ever issued for these plaintiffs (who the same width in front as in rear, and tho then were and ever since have been nonresi. said William Stix purchasing the other lots dents of Ohio), and no advertisement was hereinbefore described, to wit, all those parts ever made for these plaintiffs, and that they of lots 2, 4, and 5 of block 12 of Findlay and had no notice of said proceedings; and these Ludlow subdivision hereinbefore described.
“And these plaintiffs further say that in any lien on said premises therefor, or that said cause numbered 74,375 a decree was any part thereof remains unpaid. By way of made on the 19th day of May, 1887, where cross petition, the said Vos sets up the proby it was ordered. adjudged, and decreed ceedings in the said Gugenheim Case, and that the said George Sidney Tyler, special avers their regularity, and that said promaster commissioner in said case, pay to ceedings, orders, decrees, sale, and deed restthese plaintiffs, or to Kebler, Roelker & ed in him a valid title in fee simple to the Jelke, purporting to be their attorneys in said real estate purchased by him tliereunsaid cause, out of the proceeds of said sale, der, free from all claims of said appellants the sum of $11,361.06.
and other parties to said cause, his payment “And these plaintiffs further say that there. therefor of $9,100, and his possession thereof afler, on the 16th day of June, 1887, the said ever since the conveyance to bim, May 21, George Sidney Tyler, special master com. 1887. He prays "that the said claim and inmissioner, as ordered by the decree of said terest of the said Robb and Strong, trustees, çourt, but without the knowledge and con in and to said real estate, may be adjudged seut of these plaintiffs and without their au to be null and void, and that his title aforethority, did pay to the said Kebler, Roelker said may be quieted against the same, and & Jelke. and the said Kebler, Roelker & for all other proper relief." Jelke received, the said sum of $11,361.66, On June 8, 1888, upon motion of said Robb aud that no portion of the said sum has been and Strong, trustees, their said petition was received by these plaintiffs or been account dismissed; and, as to the said cross petition eu for to them.
of Vos, the cause was continued for further "And these plaintiffs say that they were proceedings. On July 7, 1888, the said Robb never parties to said cause in law or in fact, and Strong, trustees, filed their petition 105 and that the said sale as to them is null and said cause 43,368, superior court of Cincinvoid.
nati, for a removal of the same on the cross “And these plaintiffs further say that the petition of said Vos to the circuit court of the said transactions between them and said United States in and for the southern disKloritz Loth were in truth and in fact a loan trict of Ohio, western division, and the orby them to the said Moritz Loth of the sum der of removal was made. of $10,000, in consideration whereof the said In said petition they say that they are citi. Moritz Loth conveyed to them the premises zens and residents of the state of New York; hereinbefore described, and they executed to that August Vos is a citizen and resident of the said Moritz Loth the lease hereinbefore the state of Kentucky, and William Stix is a described, containing the privilege of pur citizen and resident of the state of Missouri. chase for the said sum of $10,000; and they They further say that the said suit "is one of say that in consequence thereof they have a civil nature, where the matter in dispute a first and best lien upon the said premises exceeds, exclusive of interest and costs, the in the said sum of $10,000, with interest value of $2,000, and is one in which there is thereon, and that there is and remains due & controversy on cross petition between citiand unpaid thereon the sum of $10,000, with zens of different states." They then state the interest thereon from January 1, 1885, at six facts, in substance, averred in their said petiper cent. per annum.
tion filed May 12th, and in said cross petition "Wherefore the plaintiffs pray that the of August Vos, the dismissal of their said said claim may be established as a first and petition, June 8th, and their remaining in the best lien on the said premises, and that un case only as defendants to said cross petition less the defendants shall pay to them the of Vos. said sum of $10,000, with interest as afore On October 2, 1888, the transcript of the said, at a short day to be fixed by the court, record in said case was filed in the said cirthat the said premises may be sold for the cuit court, and numbered therein 4,182. Batisfaction of their said claim, and for such On October 4, 1888, the said Vos filed his other and further relief as they may show motion in said circuit court for the remanding themselves to be entitled in equity and good of said cause No. 4,182 to the superior court conscience."
of Cincinnati, for want of jurisdiction in said In the superior court case, summons was circuit court. issued May 12, 1888, and served on August On November 17, 1888, the circuit court Vos, May 18, 1888.
overruled said motion, to which overruling On June 7, 1888, Vos filed his answer and the said Vos then entered his exception. Cross petition in said case, deoying that the On November 26, 1889, on motion of the alleged acts of Kebler for the said Robb and said complainants, said cause No. 4,182 was Strong, trustees, in the Gugenheim Case, were consolidated by order of court with said without their authority, knowledge, or con cause No. 4,118, further proceedings to be sent; admitting the sale to him under the bad under the latter number. proceedings in that case, and that the trans In No. 4,148, complainants' bill states the actions between them and said Loth were citizenship and residence of the parties as in In fact a loan by them to him of $10,000 at their petition in the superior court case. 6 per cent. interest, secured in the form of said They were all noncitizens and nonresidents of deed and lease; but denying that they have Ohio. It alleged that said Robb and Strong,
trustees, owned certain valuable real estate mons for said complainants in said Gugenin the city of Cincinnati, Ohio, which was in heim Case. He denies that said complain. the possession of tenants under a lease for aats had no notice or knowledge of their the life of two persons for whom said trus answer and cross petition in said case filed
tees acted. A judgment creditor of the les by said Kebler, or of their answer to the see sought by judicial proceedings in the cross petition of William Stix filed therein * court of common pleas of Hamilton county, by said Kebler, or that said Kebler was
Ohio, to subject his interest in these and oth not authorized to file the same. He denies er lands to payment of his claim. The peti. that said Robb and Strong, trustees, did not tion was in the nature of a creditors' bill, consent that said premises should be sold and made parties defendant a number of free from their claim and title thereto, persons, including said trustees, holding or that said claim and title should be deeds from the lessee, and charged that these transferred to or reserved in the proceeds of deeds were intended as mortgages, and pray sale to be made under said decree, or that ed that they be so decreed, and the property said Kebler and Kebler & Roelker had no sold to satisfy said judgment.
authority to make or give such consent for The trustees were nonresidents, and Keb. them. He denies that said complainants ler, of the law firm of Kebler & Roelker, and had no knowledge of the order of distribupurporting to act for that firm, entered their tion of the proceeds of said sale made in appearance in the case, and consented to a said cause, or of the payment of said sum sale of the fee, it is alleged, without their of $11,361.65 to said Kebler, or that said authority or knowledge. The property was
Kebler was not authorized to receive said sold at judicial sale, and the proceeds re sum, or that the order of court directing such ceived by Kebler, and not paid over or ac payment was null and void. He denies that counted for by him to said trustees. The de- said Kebler was wholly insolvent at all times fendants, Vos and Stix, were purchasers. mentioned in said bill. He denies that, prior to The bill seeks to avoid the title so acquired or at the time of his purchase of said premises, by them, on the ground that the sale was he knew complainants were absent from the absolutely void, by reason of the fraud of state of Ohio, or nonresidents of said state Kebler.
during the time of said proceedings. He deOn August 2, 1888, the defendant Vos nies that the proceedings and acts taken and filed a demurrer to said bill.
done in said cause, purporting to be on beOn August 28, 1888, the court held the bill half of said complainants, were without au"good on its face substantially," and over
thority, notice, or knowledge, or that they ruled the demurrer, and allowed Vos until were done solely by fraud of said Kebler, the first Monday of October, 1888, to plead or that they were ignorant of said suit and or answer to the bill. 36 Fed. 132.
the proceedings therein, and of the receipt On September 14, 1888, Vos filed a plea of said money by said Kebler, until after his to said bill, setting forth the judicial pro
death. He denies that the said decree in ceedings referred to in said bill, and con said cause was null and void as to said como tained in Exhibits A, B, C, and D, made plainants, or that the said*court of commoni part thereof, under which he purchased and pleas was without jurisdiction to order the acquired title; that he was “a bona fide said premises sold free from their claim and purchaser of said premises, for a good and title, or that said sale and conveyance to valuable consideration, and without notice him by said Tyler were null and void. He or knowledge that the acts and proceedings denies that no rent had been paid under said of said Charles A. Kebler and of the firin lease since February 5, 1886, or that there of Kebler & Roelker on behalf of said com was due and unpaid rent since that date at plainants, alleged in said bill, were unau the rate of $600 per annum, or that said thorized by said complainants, and without complainants had any lien on said premises their knowledge, or that said complainants therefor. did not consent to said sale, or of the alleged Of the truth of the charge in said bill that fraud on the part of said Kebler;" and that the said Kebler embezzled and appropriated he had no such notice until after May 12, said sum of $11,361.65 to his own use, and 1888, when suid complainants filed their said that said complainants received no part of petition in the superior court of Cincinnati. the same, or of the charge therein that said
On September 27, 1888, the court overruled Loth was insolvent, this defendant avers that said plea, to* which said Vos entered his ex he had no knowledge, and did not admit the ception, and was allowed 30 days to answer, which time was, on November 26, 1888, ex Admitting that he had failed and refused tended to December 10, 1888.
to perform any of the covenants and condiOn December 8, 1899, said Vos filed his tions of said lease as charged in said bili, answer to said bill.
he avers that he was under no obligation to In this answer, Vos admits specifically all perform the same, but that, by virtue or the allegations of said bill, except the fol said sale and conveyance to him of the premlowing, which he denies, to wit: He denies ises so purchased by him, and the considerathat the said Kebler and Kebler & Roelker tion of $9,100, which he paid therefor, he had no authority to accept service of sum acquired a perfect title to said premises in