Hamilton v. Rathbone
This was an action of ejectment brought in the supreme court of the District of Columbia by Grace Abbie B. Rathbone as plaintiff, against Frances Rebecca Hamilton, defendant, to recover an undivided one-third interest in a parcel of land of which the defendant Hamilton was then in possession.
The common source of title was one Abram Elkin, who received his deed on July 31, 1867. He was married to Lucy V. Elkin, April 15, 1863.
The plaintiff's chain of title was as follows: Deed from Abram Elkin and wife to Fred. G. Calvert, April 29, 1872; deed of same date by Fred. G. Calvert and wife to Lucy V. Elkin. These deeds were evidently given to avoid a direct conveyance from husband and wife. Both deeds ran to the grantee, 'his (or her) heirs and assigns, to and for his (or her) and their sole use, benefit, and behoof forever.'
Lucy V. Elkin died May 3, 1876, leaving her husband, Abram Elkin, and four children: (1) Grace, the plaintiff, subsequently married to Rathbone; (2) Lucy Caroline; (3) Charles Calvert; (4) Harry Lowry, who died in 1885 at the age of nine or ten years.
Abram Elkin disappeared in June, 1876, and has not been heard of since.
Plaintiff sues for an undivided one-third interest as one of the heirs at law of her mother.
Defendant's chain of title was as follows: Lucy V. Elkin, who died May 3, 1876, leaving a will by which she appointed Fred. G. Calvert, her brother, her sole executor. She directed that all her property, real and personal, should be sold, and gave her husband $1,000 out of the proceeds of the sale, directing that the residue of such proceeds, after the payment of funeral and other necessary expenses, should be divided equally between her four children. Calvert duly qualified as executor.
In February, 1879, as such executor, Calvert sold the land in controversy to the defendant Frances Rebecca Hamilton, and conveyed it to her by a deed (February 20) which recited that the sale had been made under the power conferred upon him by the will.
A plea of not guilty having been interposed, the case was tried in the supreme court of the District by a jury, and a verdict directed for the defendant. On appeal to the court of appeals from the judgment entered upon the verdict so rendered, that court set aside the verdict and remanded the case for a new trial. Rathbone v. Hamilton, 4 App. D. C. 475.
A second trial was had, and the jury instructed to return a verdict for the plaintiff. From the judgment entered upon this verdict, the defendant appealed to the court of appeals, which affirmed the judgment. Hamilton v. Rathbone, 9 App. D. C. 48. Whereupon defendant Hamilton sued out a writ of error from this court.
Messrs. A. S. Worthington and A. A. Lipscomb for plaintiff in error.
Messrs. M. J. Colbert and H. G. Milans for defendant in error.
Mr. Justice Brown delivered the opinion of the court: