author: Dunn, C. J.

text:
    James Jackson ex dem. Robert Grignon, Peter B. Grignon, and Morgan L. Martin vs. John Jacob Astor, Ramsey Crooks, Robert Stuart, and Linus Thompson.
    1. Conclusive effect of judgments.—The judgment of a court of competent jurisdiction is conclusive upon all the world, and. until such judgment shall be reversed by the proper superior tribunal, cannot be questioned or impeached in any collateral issue.
    2. Administrator’s sale : license, etc.—Under the laws of the Territory of Michigan, an order of the county court, and a license issued ' under such order, empowering the administrator to sell the real estate of the intestate for the payment of debts, is conclusive upon the subject; and the presumption of law is, that the court had all the necessary evidence before it to authorize such order and license; and the heirs at law of the intestate cannot, in a collateral suit, contest the validity of the order and license, for the purpose of setting aside a sale and conveyance made by the administrator under such order and license, on the ground of mere error, or that the court exercised its jurisdiction irregularly or improvidently. The presumption is that every necessary step was taken to give the court jurisdiction.
    3. Same.— Such an order of the county court is valid and effectual, although it authorizes the administrator to sell the real estate of the intestate, in general terms, without specifying what part, or describing the lands to be sold.
    4. Same.— The administrator, under such authority, must advertise and sell the lands according to the directions of the statute ; and whether he did so or not, is a question of fact to be left to the jury; and in an action between the heirs at law and the grantee of the administrator, proof of a substantial compliance with the requisitions of the statute will be sufficient.
    5. Record and minutes of court.— The minutes of the county court as it existed under the laws of Michigan, signed by the clerk, are to be received and considered as the record of the acts and decisions of the court, although there may be no complete record of the case formally made up as required by the statute.
    6. Same.-— The minutes and records of the county court which were deposited with the clerk of the district court of the county upon the organization of the Territory of Wisconsin, and the abolition of the county courts, as the minutes and records of the county court, are to be received and considered as legal evidence of the orders and decisions of the county court, which they purport to contain.
    7. Confirmation of private land claim.—An act of congress confirming a private land claim vests in the donee such an interest in the land as may, under tlie proper order of court, he sold by his administrator for the payment of his just debts before any patent issues for the land.
    8. Same.— An order of the county court empowering the administrator in general terms to Obispóse of the real estate of the intestate, is sufficient to authorize the administrator to sell and convey a particular tract of land confirmed to the intestate by congress, but for which a patent had not issued.
    9. Effect of patent.— A patent for the land confirmed, which issued to the donee and his heirs subsequent to the sale and conveyance by the administrator, does not vest the legal title in the heirs at law of the intestate so as to enable them to maintain an action of ejectment, but inures to the benefit of the grantee of the administrator,
    ERROR to the District Court for Brown County.
    Ejectment for the recovery of certain real estate. Robert Grignon and Peter B. Grignon, two of the lessors of the plaintiff, claimed the land as sons and heirs at law of Pierre Grignon, deceased, to whom a tract of land, including the disputed premises, was confirmed by act of congress, and for which a patent issued several years after his death, and after the sale of the land by his administrator. Morgan L. Martin, the other lessor of the plaintiff, claimed jointly with .them, by virtue of a deed from- said Robert and Peter, conveying to him an undivided interest in the same premises.
    To establish the heirship of Robert and Peter B. Grignon, Augustin Grignon was sworn on the part of the plaintiff, and testified that he was acquainted with Pierre Grignon, deceased, who was his elder brother: That he was one-eighth Indian and the balance French, his mother being one-fourth Indian; that he was married in the year 1802 ; Robert, one of the lessors of the plaintiff, is his eldest son, and was born in the year 1803; Peter B., another of the lessors of the plaintiff, is his son and was born in the year 1805 or 1806 ; Pierre Grignon, deceased, and his wife lived together as husband and wife when they had these children ; Pierre was an Indian trader and had farms at Green Bay; he kept house and had his family together ; he had these two children by his said wife, and he called her his wife and she was known and considered Ms wife and had the charge of his house as his wife; they slept and lived together as husband and wife for at least nine years ; she visited among his relations as his wife and was received and treated by them as such; he brought up and educated his said children, he instructed them himself a part of the time, and sent the youngest to school; he had charge of them until he died; the mother died after the war; he died before Ms wife, in 1822 or 1823 ; he always supported her; I have heard him speak of his said children as his heirs who would inherit his property.
    On cross-examination, he testified that Pierre told him if there was any estate left after paying Ms debts, his sons would inherit it, and that it was his intention to have his children educated. At the time this woman lived with him he had no other wife, but after they separated he had another. The name of the mother of said children was Pa-mon-e-cote. She was a Menomonee Indian. I was present in the country when he took his wife above named. I was not present at the ceremony of their marriage, but was in the country, and she continued to live with Mm, and her father and mother called Pierre their son-in-law. .In the year 1802 there were no laws in force in this country. The marriages that took place at that time were according to the Indian laws and customs. There were no priests nor magistrates in the country.
    The Indians had their villages here (Green Bay) and planted their corn here, and in the fall after harvesting their corn went into the country to hunt, and returned in the spring of the year. I had no knowledge of the settlement here being then known and called the “WMte Settlement at Green Bay,” I supposed at that time the land belonged to the Indians. If any person came here and wanted land to cultivate, he applied to the Indian chiefs for leave to do so. In answer to a question as to what was the marriage ceremony at that place in 1802, and by whom it was performed, he answered that there were some white people there at that time, and when, a white man took a woman to wife, they were married before witnesses; when a white person took a squaw to wife they were married according to the Indian custom, which was as follows: The man went and spoke to her; if she consented, she either told him to apply to her parents for consent, or she did so herself. In case consent was given by the parents, presents were made by the son-in-law to the parents and then they would give him the girl and bring her to his house and leave her there, and he would afterward assist in supporting the parents. Similar testimony was given by other witnesses, one of whom stated that “it was the custom when parties were thus married to live together as long as they could agree.” A patent from the United States to Pierre Grignon and his heirs was then put in evidence. This patent was issued after his death, and the circumstances under which it was issued are stated in the opinion of the court.
    The defendants claimed title to the premises in dispute by virtue of a sale and conveyance from Paul Grignon, as administrator of the estate of Pierre Grignon, deceased, under an order of the county court for Brown county, and a license issued under said order, made in 1826, to Augustin Grignon, from whom the defendants derive their title.
    In support of their title the defendants proved by the records of the probate court for Brown county, that letters of administration were granted on the estate of Pierre Grignon, deceased, to Paul Grignon, on the 21st day of June, 1824, and they gave in evidence the bond of such administrator which had been approved and filed by the probate judge. The defendants offered in evidence an extract from a book purporting to be the minutes of the proceedings in the county court for Brown county, which is set out at length in the opinion of the court. This was objected to by the plaintiff, upon the ground that it did not appear that there was any petition preseated to the court, nor any certificate of the judge of probate certifying as to the value of the property and the necessity of the sale, nor was there any thing to show any reasons why the court should order a sale of the real estate of the intestate as prescribed in the statute, and that no notice was given to the parties concerned to show cause, according to the statute, nor did the order specify what lands were to be sold. These objections were overruled. The defendants then gave in evidence a bond and oath of said administrator to make sale of the real estate of the deceased intestate, according to the statute, dated and filed April 20, 1826. Considerable evidence was then given to show that notice of such sale was.given as required by law. The notice was published in “ The Michigan Herald,” printed at Detroit, for seven successive weeks, and the evidence showed that five written copies of the notice were posted in the township where the real estate was situated ; that there was at that time but one township in Brown county, and there were then but two counties in what constituted, in 1839, Wisconsin Territory. The defendants then offered in evidence a deed from Paul Grignon, as administrator of the estate of Pierre Grignon, deceased, to Augustin Grignon for the premises in dispute, dated June 13, 1826, and, in connection therewith, a license issued by the clerk of the county court, for Brown county, under the seal of said court to Paul Grignon, administrator of Pierre Grignon, deceased, for the sale of said lands, dated March 28,1826, as follows:
    “ Territory oe Michigan, ) County of Brown. j
    “To Paul Grignon, administrator of Pierre Grignon, deceased:
    [seal.] “ Be it known to all whom it may concern that at a term of the county court of the county of Brown, continued and held at the township of Green Bay, in said county, on Tuesday, the 10th day of January, in the year of our Lord 1826, before the Hon. James Poblieb, Chief Justice, and John La we, Associate Justice. Paul Grignon, administrator of all and singular the goods and chattels, rights and credits, lands and tenements of Pierre Grignon, deceased, late of the county of Brown aforesaid, represents to this court, then and there in session, that the said Pierre died intestate, at Green Bay, in said county of Brown, on the 4th day of March, 1828 ; that at the time of his death the said Pierre was seized in his demesne as of fee in and to the following tracts and lots of land, situated at Green Bay aforesaid, to wit (describing the lands in dispute and other lands) ; and that it has been ascertained by the petitioner that the goods and chattels belonging to the estate of the said deceased are insufficient to pay all the just debts which he owed at the time of his death, but that the estate will be insolvent, and therefore prays that leave may be granted him to dispose of the tracts and lots of land aforesaid.
    “Now, therefore, for the causes aforesaid, and for divers other good and sufficient reasons, the court thereunto moving, they do hereby authorize and empower you, the said administrator, to dispose of all the right, title and interest of the deceased in and to the above-described tracts and lots of land in such manner as will best serve the interest of all concerned in said estate, requiring of you a due observance of the statute in such case made and provided.
    “Witness, James Portier, Chief Justice of the county court of the county of Brown, at the township of Green Bay, on the 28th day of March, A. D. 1826.
    “Robert Irvin, Jr., Cleric. B. CP

    The same objections were made to this deed and the said license as were made to the order of the county court of January 10, 1826, and it was further objected that no title appeared to be in Pierre Grignon at the time of his death, and that the sale was not advertised according to law.
    The recitals of the patent showed that the land in question was confirmed to Pierre Grignon by act of congress of February 21, 1823, wbicb was prior to bis death, but tbe patent was not issued until after tbe administrator’s sale—it was dated December 1,1829.
    Tbe court overruled tbe objections and admitted tbe deed and license in evidence. Tbe defendants then gave in evidence a deed from Augustin Grignon to-John Jacob Astor, Ramsey Crooks and Robert Stuart, for tbe same premises, dated November 5,1834, and also a deed of tbe same lands from Astor, Crooks and Stuart, to tbe defendant Linus Thompson, dated January 8, 1836.
    Tbe instructions wbicb were given to tbe jury as well as those asked by tbe plaintiffs are fully stated in tbe opinion of tbe court. Yerdict and judgment for tbe defendants, to reverse wbicb tbe plaintiffs sued out a writ of error, and assigned tbe following points for error:
    1. That tbe said district court admitted tbe minutes of tbe county court of Brown county, not under seal, as evidence of a judgment, or order of tbe court, in tbe absence of any record of such order, or of its loss or destruction.
    2. That tbe said district court admitted tbe said minutes of tbe county court as evidence, they not appearing on their face or otherwise, to present a case of wbicb tbe county court bad jurisdiction, or wbicb bad been brought before that court in accordance with tbe several provisions of tbe act of tbe Territory of Michigan, entitled ‘£ An act directing tbe settlement of tbe estates of persons deceased, and for tbe conveyance of real estate in certain cases adopted July 27, 1818.
    3. That tbe said district court admitted tbe said minutes without evidence on their face or otherwise, that tbe order entered therein involved tbe title or bad reference to tbe lands now in dispute.
    4. That tbe said district court admitted tbe license issued by tbe clerk of tbe county court, and tbe several deeds offered by tbe defendants as evidence, and directed tbe jury that .they were conclusive to vest tbe title to tbe premises in question, in tbe defendants.

      5. That the said district court decided that Pierre Grignon, at the time of his death, was seized in fee of the premises in question.
    6. That the said district court admitted a notification of the sale of the premises in question, purporting to be signed by the administrator on the estate of Pierre Grignon, and printed in a paper purporting to be a newspaper, to be read in evidence, without further proof than its production in court.
    7. That the said district court presumed all the facts necessary to give the county court jurisdiction to make an order of sale, and presumed all the facts necessary to show that such order was made in reference to the lands in question, and all the facts to show that the proceedings of the administrator before and at the sale, were regular and in accordance with the act of Michigan hereinbefore referred to, and that the said court directed the jury that upon the facts and the law of the case, the title to the lands in question was vested in the defendants by the administrator’s sale.
    8. That the said district court directed the jury upon points of evidence, and particularly one point, to wit: the posting a notification of sale by an administrator, which it was the peculiar province of the jury to determine.
    9. That the said district court refused to give the jury the instructions requested by the lessors of the plaintiff.
    10. That the said district court did not properly direct the jury in regard to the 6th, 7th, 8th and 10th instructions requested by the lessors of the plaintiff

      Morgan L. Martin, for plaintiffs in error.
    1. The patent dated Dec. 21, 1829, to Pierre Grignon and Ms heirs, inured to the benefit of the heirs and those claiming under them. 4 Pet. 345; 6 id. 261; 12 id. 208 ; Act of Congress, May 20, 1836.'
    2. The claim of Pierre Grignon was a mere personal right,, dependent on the favor of the government, and gave him, at most, an equity. The donation imposed no obligation on the donor. 2 Johns. 52; 3 Black. Com. 441; 2 Str. 955.
    3. This claim, being but an equity, was not subject to sale by the administrator to pay debts. 5 Mass, 240 ; 3 Johns. Ch. 156; 1 id. 52; 17 Johns. 351; 4 id. 41; 3 Call, 277 ; 7 Wheat. 6 ; 1 Ohio, 144.
    4. There is no evidence of an order of sale having been made. 7 Cr. 408, 412 ; 2 Stark.473,151 ; 2D.&R. 237; 2 B. & G: 45; 2 Mass. 606 ; 1 Tenn. 94; 5 Ohio, 447;
    1 Esp. 44; 1 W. Black. 664; 1 Salk. 329; 1 Raym. 243 ; 11 East, 441; Stark, on Ev., title “Record.”
    5. Admitting the minutes offered in this 'case as evidence, and that the land was real estate subject to debts, still the proceedings of the county court are a nullity. 2 Wil. 382; 6 Mod. 224 ; 9 id. 95; Hawk. 94; 4 Burr. 2244, 2281; 1 id. 148 ; 1 Esp. 178 ; Cowp. 26, 29 ; Plowd. 390 ; 3 Co. Inst. 231; 12 Mod. 355; 1 Lev. 160 ; 2 Black. 1145 ; 8 Tenn. 424; 7 T. R. 359 ; 11 Johns. 175 ; 15 id. 244 ; 3 Cr. 331; id. 337; 5 id. 173 ; id. 184; 19 Johns. 39 ; 1 Litt. 118; 2 Dana, 270 ; 3 Marsh, 62; 2 Leigh, 719; Peter’s Cir. Ct. 36; 2 Cr. 97; id. 128; 1 Pet. 340; 2 id. 169; 10 Co. 76'; 16 Mass. 180; 5 Pick, 145; 2 T. R. 644 ; 2 Mod. 308 ; 5 Mass. 242.
    6. Nor do the proceedings furnish sufficient evidence that the county court intended to include the estate claimed in this suit. Dyer, 208; Carth. 453 ; 1 Barn. & Aid. 40.
    7. The sale of the administrator was void for want of notice. 3 Mass. 399 ; 10 id. 105; 11 id. 227 ; 7 id. 488 ; 4 Binn. 104; 6 id. 483; 5 Pick. 144; 1 Ohio, 473 ; 4 Wheat. 77-79.
    8. The deed of the administrator conveys no title subsequently acquired. 1 Salk. 237; Powel on Dev. 191; Doug. 718 (note); 1 T. R. 435 ; 6 Mass. 149 ; 8 id. 162 ; id. 201.

      H. N. Wells, for defendants in error.

      The reporter has not been furnished with the points made and authorities cited by counsel for the defendants in error.

   Dunn, C. J.

By an act of congress, entitled “ An act to continue in force certain acts for the adjustment of land claims in the Territory of Michigan,” approved February 21,1823, claims to certain lands therein referred to were confirmed. The acts referred to are an act of congress entitled “An act regulating grants of land in the Territory of Michigan,” approved March 3, 1807 ; an act approved April 23, 1812, entitled “ An act to authorize the granting of patents to land according to the surveys that have, been made, and to grant donation rights to certain claimants of land in the district of Detroit,” etc. ; also, an act entitled “An act to revive the powers of the commissioners for ascertaining and deciding on claims to land in the district of Detroit, and for settling the claims to land at Green Bay and Prairie du Chien, in the Territory of Michigan,” approved May 11, 1820. Land was granted, under these acts, to every person or persons in the actual possession, occupancy and improvement of the same in his, her or their own right, etc. By the third section of the said act of congress, approved February 21, 1823, the land, of which the lot in question is a part, was confirmed to the said Pierre Qrignon, as appears by the recital in the patent. Said third section is as follows: “ That patents shall and they are hereby directed' to be issued in the mode pointed out by law in other cases, to persons whose claims to land, town or village lots have been regularly filed with the commissioners appointed by an act entitled £ An act to revive the powers of the commissioners for ascertaining and deciding on claims to land in the district of Detroit, and for settling the claims to lands at Green Bay and Prairie du Chien, in the Territory of Michigan, passed on the eleventh day of May, one thousand eight hundred and twenty,’ and whose claims are contained in the report transmitted to the secretary of the treasury, and which have been reported favorably on by said commissioners, and such persons are hereby confirmed in their claims,” etc.

Pierre Orignon died the 4th day of March, 1823; Robert Orignon, one of the plaintiffs, was at that time about twenty years of age, and Peter B. Orignon, another of the plaintiffs, was about eighteen years of age. They claim the premises in dispute as sons and heirs at law of said Pierre Orignon, and also by virtue of deeds of assignment and conveyance from sundry brothers and sisters of said Pierre. Morgan I. Martin, the other plaintiff, claims an undivided interest in the same by virtue of a deed from said Robert, and Peter. A patent from the United States to Pierre Orignon, dated December 21, 1829, for the tract of land of which this is a part, referring to the aforesaid act of confirmation, was read by said plaintiffs. In addition to this, much evidence on the subject of the marriage of said Pierre and the legitimacy of his children, the said plaintiffs, was given, which is not necessary to be noticed at this time.

The defendants gave in evidence the record of letters of administration on the estate of said Pierre (Orignon, deceased, granted by John Law, judge of probate, to Paul Griignon, on the 21st day of June, 1824; and also the record of the official bond given by said administrator, approved and filed by said judge of probate on the same day.

The defendants then offered in evidence the following, contained in a bools purporting to be minutes of the proceedings of the county court of Brown county. Mr. Childs, the clerk of the district court, having been- examined thereto, stated, that he received this book purporting to be the records of the county court of Brown county. The said county court having been abolished, and the records and papers of said court passed into the hands of the clerk of the district court of said county.

“At a session of the county court for the county of Brown, begun and held at the township of Grreen Bay, in the school-house, on Tuesday, the tenth day of January, one thousand eight hundred and twenty-six; present, the Hon. James Porlier, Chief, and John Law, Esq., Associate Justice. The court was opened by Geo. Johnston, sheriff.

“The petition of Paul Grignon, administrator of the estate of Pierre Grignon, late of the county of Brown, deceased, was filed by his attorney, H. S. Baird, praying for an order from the court to authorize him to dispose of the real estate of said Pierre. In consideration of the facts alleged in said petition, and for divers other good and sufficient reasons, it is ordered that he be empowered as aforesaid. Minutes read, corrected and signed, by order of the court.

“ Robert Irwin, Jr., Cleric.

The reading of which in evidence was objected to by plaintiffs, and admitted by the court.

The defendants next offered in evidence a bond and oath of said administrator, to make sale of said real estate according to the statute, dated and filed with the judge of probate, April 20, 1826; which was also objected to by plaintiffs, and admitted by the court.

The defendants next offered, and were allowed, to prove by H. S. Baird, Esq. (plaintiffs objecting thereto), that a notice of sale of said premises by said administrator was contained in a newspaper called the “ Michigan Herald,” in seven weekly numbers, commencing on the 16th day of March, 1826, and ending on the 26th day of April, in the same year, and a copy of said newspaper for each week containing said notice was produced and read. Witness was further allowed to state as follows: “I cannot state that I put up any notices of sale, but that I drew the notices I am positive. I think I drew five copies of the notice which has been read from the newspaper. I cannot say they were put up in the township. There was at that time but one township in the county. ”

John P. Arndt, Esq., another witness, testified that he saw a notice of sale of lands of Pierre Grignon, deceased, posted up in the township, and thinks it was at his house at Green Bay, in the fore part of the year 1826. All of which was objected to by plaintiffs.

The defendants next offered in evidence a license issued by the clerk of the county court of Brown county, under the seal of said court, directed to Paul Grignon, administrator of the estate of said Pierre Grignon, deceased, for the sale of said lands, issued in pursuance of said order of the county court, held on the 10th day of January, 1826, before the aforesaid judges, and reciting-that Paul Grignon, administrator of all and singular the goods and chattels, rights and credits, lands and tenements of Pierre Grignon, deceased, represents to the court, etc., that the said Pierre died intestate, at Green Bay, in the county of Brown, on the 4th day of March, 1823 ; that at the time of his death the said Pierre was seized in his demesne as of fee in and to the following tracts or lots of land at Green Bay aforesaid, to wit: Lot number three, on the east side of Pox river, bounded north by land claimed by the estate of Domitille Languivin, south by Augustin Grignon, and four and one-half argents in front, and eighty argents rear (containing the land in dispute, together with other lands therein described). And that it had been ascertained by said petitioner, that the goods and chattels belonging to the estate of said deceased are insufficient to pay all the just debts which he owed at the time of his death, but that the estate will be insolvent, and therefore prays leave may be granted him to dispose of the tracts and lots of land aforesaid. Now, therefore, for the cause aforesaid, and for divers other good and sufficient reasons, the court thereunto moving, they do hereby authorize and empower the said administrator to dispose of all the right, title and interest of the deceased in and to the above described tracts and lots of land in such manner as will best serve the interest of all concerned in said estate, requiring of the said administrator a due observance of the statute in such case made and provided; bearing date the 28th day of March, 1826, and attested in the name of James Poeliek, Chief Justice of the county court of the county of Brown, and signed by Robert Irwin, Jr., clerk. Also a deed from Paul Grignon, as administrator of the estate of Pierre Qrignon, deceased, to Augustin Grignon, dated on the 13th day of June, 1826, and recorded, for land containing the land in dispute, was offered in connection with said license, the said deed having been made in pursuance of the sale made thereon ; which was objected to by the plaintiffs, and admitted by the court, the said court giving its reasons therefor at length, which need not be repeated here.

Defendants then gave in evidence a deed from Augustin Grignon to John Jacob Astor and others, conveying the premises in question, dated November 5, 1834, and recorded, and followed that by a conveyance from said Astor and others to Linus Thompson, one of the defendants, for the lot in question, bearing date January 8, 1836.

It is unnecessary to notice the different reasons of the plaintiff’s counsel for objecting to the testimony on the part of the defendants, as they are embraced in the points put to the court and in the errors assigned.

The counsel for the lessors of the plaintiff requested the court to give to the jury the following instructions, and the jury were instructed by the court thereon, as follows:

1. That, if the jury believe from the evidence that the lessors of the plaintiff are heirs at law of Pierre Qrignon, deceased, or have shown a regular conveyance from the heirs at law to themselves of the premises in question, before the commencement of this suit, then the defendants can claim no title under the sale of the premises in question, made by Paul Grignon as administrator of the estate of Pierre Qrignon, deceased, by virtue of the order made by the county court of Brown county, on the 10th day of January, 1826, unless the jury are satisfied that the representation made by the administrator to the said court, to obtain the order or license of the said court for the sale of the said premises, was accompanied with a certificate from the judge of probate of the county where said deceased person’s estate was inventoried, certifying the value of the real estate of said deceased person, and the amount of his just debts, and also his opinion whether it be necessary that the whole be sold, and, if a part only, what part, as directed by the third section of the act entitled “An act directing the settlement of estates of persons deceased, and for the conveyance of real estate in certain cases,” as adopted by the governor and judges of the Territory of Michigan, on the 27th day of July, 1818.

2. That the said order or license of the said county court for the said sale, unless the said court had been furnished with the said certificate of the judge of probate, is null and void as against the heirs at law of Pierre Orignon, who have not acquiesced in the said sale, made by the administrator, under and by virtue of said order.

To the said two points the court answered as follows: Ás the county court had jurisdiction of this subject, we are to infer that these things were shown to said court.

3. That the said county court had no power or jurisdiction to make the said order of sale, without the said certificate of the said judge of probate.

To which the judge answered that the certificate of the judge of probate was not necessary to give the court jurisdiction ; it was required as evidence.

4. It must appear affirmatively to the jury that the said county court, at the time of making the said order for sale of said premises, had before them the said certificate of the said judge of probate, at the time of making the said order or granting the said license for the sale of the premises in question, or the said order of sale is void as against the heirs at law of Pierre Orignon, deceased, who had not acquiesced in the sale, and those claiming under them.

To which the court answered, that the judgment of the county court, having jurisdiction, is conclusive on this point.

. 5. Unless it appears affirmatively to the jury that the said county court, previous to its passing on the said representation for the sale of said premises, ordered due notice to all parties concerned, or their guardians, who did not signify their assent to such sale, to show cause, at such time and place as the court appointed, why such license should not be granted, agreeably to the provisions of the said third section of said act in the first instruction referred to, that then the said order, or license, for sale was void as against the heirs of Pierre Qrignon, deceased, who have not acquiesced in such sale, and the defendants can acquire no title by virtue of the sale made by the administrator under the said order, as against the heirs at law of the said Pierre Qrignon, deceased.

To which the court answered, that the county court having jurisdiction of this subject its judgment is conclusive.

6. Unless the jury believe, from the evidence, that the said administrator, before the sale of the premises, gave thirty days’ public notice, by posting up notifications of such sale in the township where the lands lie, as well as where the said deceased last dwelt, and in the two next adjoining townships, or caused the printing of such notification for three successive weeks, in such gazette or newspaper as the court which authorized the sale ordered and directed, the sale was void as against the heirs of said deceased and those claiming under them.

To which the court instructed the jury : This is a fact for the jury, and you must find that the advertisement substantially complied with the law, or the sale is void.

7. That it must appear affirmatively that the administrator, before making sale of said premises, did, literally and strictly, comply with the provisions of said statute, in relation to posting up or publishing the said notice of sale, or the said sale was void as against the heirs of Pierre Qrignon, who have not acquiesced in the same.

To which the court directed the jury: That a substantial compliance with the requisites of the law on this subject is sufficient.

8. If the jury believe, from the evidence, that Peter B. Grignon, one of the lessors of the plaintiff, is one of the heirs at law of said deceased, and was a minor at the time of making the said order of sale, and at the time of said sale, a guardian should have been appointed to represent him, according to law, and if no such guardian was appointed, the said sale was void as to him and those claiming under him.

To which the court answered: It was necessary and proper that if a minor, he should be notified by guardian, but in this issue the presumption is that he was. This is a fact that he might controvert on an appeal.

9. Unless the defendants in this case have proven affirmatively to the jury, that the administrator of the deceased strictly complied with all the provisions of said statute, in obtaining the order for sale, and in making the said sale, that the defendants in this suit can acquire no title to the premises in question, under said sale, as against the lessors of the plaintiff, if the jury believe, from the evidence, that the lessors of the plaintiff are the heirs at law of said Pierre Grignon, deceased, or derived title from the heirs at law.

To which the court responded to the jury: The court charge the jury that they are bound to consider in this collateral issue that the judgment or order of the county court of Brown county, ordering the sale, was made upon sufficient and proper evidence, and that it had every thing requisite before it to authorize it to make the order for the sale, and that the judgment of that court is conclusive, until reversed.

The statute in force provided that, when the goods and chattels belonging to the estate of any deceased person shall not be sufficient to answer his just debts, upon representation thereof, and the same being made to appear to the supreme judicial court, or to the county court in the county where the deceased person last dwelt, or in the county in which the said real estate lies, the said court is authorized to empower and license the executor or administrator of such estate to make sale of all or any part of the houses, lands or tenements of the deceased, so far as shall be necessary to satisfy the just debts which the deceased owed at the time of his death; and every such executor or administrator, being so licensed and authorized as aforesaid, shall and may, by virtue of such authority, make, sign and execute, in due form of law, deeds and conveyances for such houses, lands and tenements which they shall so sell; which instrument shall make as good a title to the purchaser, his heirs and assigns forever, as the testator or intestate, being of full age, of sound mind and memory, in his lifetime, might or could have given for a valuable consideration : Provided, that the executor or administrator, before sale be made as aforesaid, give thirty days’ public notice, by posting up notifications of such sale in the township where the lands lie, as well as where the deceased person last dwelt, and in the two next adjoining townships, and also in the county town of the county, and whoever will give most shall have the preference in such sale.

When it shall be necessary that he should be empowered to sell some part of the real estate for the payment of debts, and that the same shall be represented and made to appear to either of the aforesaid courts on petition and declaration filed and duly proved therein by the said executors or administrators, the said courts respectively may authorize and empower such executor or administrator to sell and convey the whole, or so much of the real estate as shall be most to the interest and benefit of the parties concerned therein, etc. The said executors or administrators shall first give bonds with sufficient sureties to the judge of probate, for the county where the deceased testator or intestate last dwelt and his estate was inventoried, that he will observe the rules and directions of law for the sale of real estate by executors and administrators.

The third section of the said statute requires that every representation to be made as aforesaid shall be accompanied with a certificate of the judge of probate of the county where the deceased person’s estate was inventoried, certifying the value of the real estate and of the personal estate of such deceased person, and the amount of his just debts, and also his opinion whether it be necessary that the whole or a part of the estate should be sold; or, if a part only, what part. And the said courts, previous to their passing on such representation, shall order due notice to be given to all parties concerned, or their guardians, who do not signify their assent to such sale, to show cause, at such time and place as they shall appoint, why such license should not be granted, etc.

The questions to be decided by this court may be reduced to the following:

1. Had Pierre Grignon, at the time of his death, such an interest in the lands in controversy as was the subject of sale by his administrator for the payment of his just debts ?

2. Had the county court of Brown county jurisdiction of the subject-matter so far as to order the sale of a decedent’s lands for the payment of debts ? If so, should the sale made in this case be disturbed in this collateral suit, if it does not appear that all the facts and evidence required by the statute were laid before the county court; that previous notice to all concerned had been given, and that the record of the court had been made up as directed by statute ?

3. Did the court err in its instructions and charge to the jury \

4. Should the plaintiffs recover by virtue of the patent to Pierre Grignon ?

The patent sets forth that the tract of-land, of which the lot of land in dispute is part, was confirmed to Pierre Grignon by the act of congress above referred to, on the 21st day of February, 1823, and the proof is that he died on the 4th day of March after. It is under this act of confirmation that both parties claim. The act of confirmation was founded on the actual possession, occupancy and improvements of said lands by said Pierre. The words of the act are “that such persons are hereby confirmed in their claims, agreeably to any surveys heretofore made, or the lines and boundaries established by the claimants respectively and directs “ that patents shall be issued in the mode pointed out by law in other cases,” etc. The license shows that the lines and boundaries of the tract were established with sufficient certainty; it being there described as “lot number three, on the east side of Pox river, bounded north by land claimed by Domitille Languivin; south by Augustin Grignon, and four and one-half arpents in front, and eighty arpents. in rear.” It may not be necessary to decide whether the legal title to this land was vested in Pierre Ghrignon before his death, as the statute of Michigan authorized the sale of a decedent’s houses, lands and tenements, for the payment of his debts. It is true, that in ordinary cases the legal title remains in the government until divested by patent; but the act of confirmation vested in Pierre Grignon, certainly, such title as by the general terms of the statute referred to, could be sold and transferred, in pursuance of the statute, for the payment of his debts. By the act of confirmation, he became instantly entitled to a patent, to be issued by the government as in ordinary cases. The land was, after the date of the act, as much his against all the world, except possibly the government, as if the patent had been issued. No one could dispute his claim, his possession, his grant, or the confirmation thereof. He could have mortgaged or sold the land previous to his death for the payment of his debts, and it would certainly be a singular construction of his title under the confirmation and the statute mentioned, that his creditors could not effect a sale of the same for that purpose after his death.

The statute of Michigan authorizes application to be made to the supreme judicial court, or to the county court in the county where the deceased person last dwelt, or in the county where the real estate lies, for a license to sell. It is apparent that this county court had jurisdiction of the subject matter. The deceased person last dwelt, and the real estate lay, in Brown county. The difficulty arises out of the imperfect record of the proceedings of such court. It is not apparent that the records and papers produced show fully that all the prerequisites of the statutes were before the county court when the sale was ordered. All we have,, is the short entry of proceedings above, copied from the record book, the license under seal, and the record of the bond and oath of the administrator. From' these exhibits it appears that the sale was ordered for the payment of the debts of the decedent, of which matter the county court had jurisdiction. The plaintiffs allege that this sale is void against them, because the representation of the administrator to the court does not appear to be accompanied by a certificate of the judge of probate, certifying the value of the real estate, and of the personal estate of the deceased, and the amount of his debts, and his opinion, etc. ; and that the court did not, previous to passing upon said representation, order notice to be given to all persons concerned, and the guardian of the minors, who did not signify their assent to such sale, to show cause, etc. If the court had followed the directions of the statute then in force, in making up the record of its proceedings, and attested the same, it may be that their proceedings would now present a different aspect.

But the statute was only directory, for the purpose of preventing errors, and it would be against all precedent to declare all the proceedings of that court void because their records were not made out in proper form, examined and attested by the judge, more particularly, fourteen years after the proceedings took place, and after the court has gone out of existence and the property passed into the hands of innocent purchasers. If the certificate of the judge of probate was indispensable to give the county court jurisdiction, and the records of that court do not show its presence or production in court, .then the sale would be void. But the statute requires that it should be produced to the court, with the representation of the administrator, to enable it to decree for the interest of all concerned. It might have been before the court, although no mention is made of it. All the heirs might have appeared before the court and consented to the sale, which would have dispensed with notice, although no mention is made of it. The proper court would set aside the sale on appeal, if taken in time, if all the prerequisites and conditions precedent to the order of sale had not been complied with strictly by the administrator and the county court; but, as the county court had jurisdiction of the subject-matter, the presumption of law is that all the necessary prerequisites and evidence had been before that court, to authorize the granting the order and license, and they are not now to be inquired into in this collateral issue. The orders, judgments and decrees of a court of competent jurisdiction are not to be avoided in a collateral issue. 2 Rawle, 206; 14 Serg. & Rawle, 173. A judgment of an inferior court, although erroneous, is not void, if the court has jurisdiction. 5 Cranch, 173. A judgment or decree of a court of competent jurisdiction is conclusive whenever the same matter is again brought in controversy. 6 Wheat. 109. A judgment of a court of competent jurisdiction, while unreversed, concludes the subject-matter of it as between the same parties. ' 9 Pet. 8. So long as a judgment remains in force, it is of itself evidence of the right of the plaintiff to the thing adjudged, and gives him a right to process to execute the judgment. The errors of a court, however apparent, can be examined only by a court of appellate power, and by the laws of every country, a time is limited for such examination, whether in rendering judgment, issuing execution, or enforcing it by process of sale and imprisonrnent. No rule can be more reasonable than that the person who complains of an injury done him should avail himself of his legal rights in a limited time, and every act of a court of competent jurisdiction is presumed to have been rightly done. 10 Pet. 449. There is no difference between the conclusiveness of a judgment at law and the decree of a court of chancery. 6 Wheat. 109. The judgments of a court of competent jurisdiction, although obtained by fraud, have never been considered absolutely void, and therefore all acts done under them are valid, as far as third parties are affected. 3 Cranch, 300. The presumption is, that the judgment of a court of competent jurisdiction is proper. 13 Pet. 436. It is a general rule of our law that where any matter belongs to the jurisdiction of any court so peculiarly that other courts can only take cognizance of the same, subject incidentally and.indirectly, the latter are bound by the sentence of the former and must give credit to it. The decree or order we are now considering is definite; it passes in rem judicatem; the thing is finally judged, but not without appeal. We are not reviewing an appeal from this order or decree, but as a court of error, the decision of the district court, which had not direct cognizance of it.

This case is similar to the case of McPherson v. Cunliff, 11 Serg. & Rawle, 426. Here it appears, by the license, to have been represented to the county court by the administrator, that the personal estate of the decedent was insufficient to pay all his just debts, but that the estate will be insolvent, when for the causes aforesaid, and for divers other good and sufficient reasons, the' court thereunto moving, they authorize and empower the administrator to dispose of all the estate of the deceased in the lands therein mentioned. There is no mention made of, or reference to the certificate of the judge of probate, or whether the heirs appeared and consented to the sale, or that notice had been given to them. The law of Pennsylvania provides, “that no orphan’s court shall allow or order any intestate’s land or tenements to be sold before the administrator requesting the same shall exhibit a true and perfect inventory, and conscionable appraisement of all the intestate’s personal estate whatsoever ; as also, a just and true account, upon his solemn oath, of all the intestate’s debts which shall have then come to his knowledge.” The case of McPherson v. Cunliff, 11 Serg. & Rawle, 426, was a suit brought by the legal heirs against the purchaser, and the sale was attempted to be set aside, because no written statement of the debts <was exhibited under oath by the administrator, and was decided in favor of the defendant. This was a sale made in an old settled country, where the practice should be well settled; and the heirs assailed it twenty years after.. The sale in this case was made in a new country shortly after the introduction of law, and before correct practice could have been settled; and the heirs now, after a lapse of some fourteen years, attempt to set aside the sale, on a collateral issue. Enough appears on the record and papers to show that the court had jurisdiction in both cases. In this case a sale was made under the order and license referred to, and a conveyance to the purchaser by the administrator in pursuance of the sale ; the purchaser enters into possession of the premises, which he and.his alienees enjoy, undisturbed, for fourteen years; and after an extraordinary rise in the value of the property, the court cannot encourage the claim of the heirs, more particulary, as the brothers and sisters were of full age, and the sons claiming under them, or as heirs, were about the age of twenty-one at the time of the sale. If such a purchaser is not protectéd, sales of this kind are only traps for honest men, particularly when we consider the loose manner in which all such business has been transacted in all courts vested with similar jurisdiction. Whenever these sales are called in question, we find the courts deciding that these irregularities must be overlooked; that, after a lapse of many years, all must be presumed to have been solemnly transacted, and presumptions made in favor of what does not appear. 4 Binn. 105. The presumption ■ is always that the proceedings are regular, on account of purchasers, who are not to be affected by the unskillfulness or negligence of the proper officers. 6 Binn. 496. A substantial compliance with the statute is sufficient. If it appear to the court that the debts cannot be paid but by a sale of the land, and they are fully satisfied on these points; .their jurisdiction has attached. 11 Serg. & Rawle, 432. If the purchasers were responsible for the mistake of a court in point of fact, or the loss of a paper, or the neglect of an officer, all judicial sales would be at an end; no prudent man would run the risk. In Massachusetts, under a law similar to the statute of Michigan, a title under a sale by an administrator, by virtue of a license from the court of common pleas, was holden good against the heirs of the intestate, although the license was granted upon a certificate from the judge of probate, not authorized by the circumstances of the case, and the administrator had never filed the original oath. 11 Mass. 226. The purchaser was not bound to look further back than the order of the court. It was said the license was granted by a court having competent jurisdiction of the subject. If the jurisdiction was improvidently exercised, it is not to be corrected at the expense of the purchaser, who had a right to rely on the order of the court, as an authority emanating from a competent jurisdiction. It would be tedious to refer to all the decisions on the subject.

The case of Thompson v. Tolmie, 2 Pet. 157, refers to the above cases in 11 Serg. & Rawle, and in 11 Mass. See also 4 Cranch. 328; 4 Wheat. 506; 1 Pet. 340; 5 id. 370; 6 id. 729; 1 Yates, 118; 2 Serg. & Rawle, 377; 2 Cranch, 458; 2 Ch. Rep. 405; 3 Serg. & Rawle, 234. Sale held good where it was made by one administrator while there were two in office. 7 Serg. & Rawle, 166. In 1 Conn. 7, Tkumbtixi,, J., says : “A judgment, decree or sentence, or order, passed by a competent jurisdiction, which creates or changes a title, or any interest, or estate, real or personal, or which settles and determines a contesteb right, or fixes a duty on one of the parties litigant, is not only final as to the parties themselves and all claiming under them, but furnishes conclusive evidence to all mankind that the right, interest or duty belongs to the party in whom the court adjudged it’.” 1 Nott & McC. (S. C.) 329; 13 Mass. 162; 6 Johns. Ch. 387; Chancellor Kent refers to 7 Wheat. 60.

The only charge of the district court appears in the answers annexed to the different points presented on behalf of the lessors of the plaintiff. These answers on points of law appear, in the main, to correspond with the doctrines above advanced on the conclusiveness of the order and license of the county court, and the presumptions that should be raised in favor of the purchaser to quiet titles. The point respecting the advertisement of the sale by the administrator was properly left to the jury as a matter of fact, with instructions that a substantial compliance with the statute was sufficient. There was but one township in the county of Brown, and consequently it was impossible for the administrator to comply, literally, with the requisites of the statute in that particular. It could not be expected that a purchaser, after such a lapse of time, should have the duty imposed on him of proving that advertisements were properly put up. It cannot be that the title of a fair purchaser should depend on such perishable testimony. If -it were so, heirs would gain in all instances, by procrastinating their suit until witnesses should die, or be removed beyond the reach of the purchaser.

The question, should the lessors of the plaintiff recover by virtue of the patent to Pierre Grignon f remains to be considered. It will be borne in mind that this land was confirmed to Pierre Grignon by act of congress, on the 21st day of February, 1823, and that by the same act a patent was directed to be issued to him for the same in the usual manner; and that he died on the 4th day of March, in the same year. It also appears that this land was sold by the administrator of said Pierre, in pursuance of a license issued by a court of competent jurisdiction, in the year 1826, and a deed made by said administrator for the same to Augustin Grignon, the purchaser at said sale. This deed was made by virtue of the authority contained in the statute of Michigan above referred to. An act of congress entitled “An act to give effect to patents for public lands issued in the name of deceased persons,” approved May 20,1836, provides that “in all cases where patents for public lands have been or may hereafter be issued, in pursuance of any law of the United States, to a person who had died or who may hereafter die, before the date of such patent, the title to the land designated therein shall inure to, and become vested in the heirs, devisees or assigns of such deceased patentee, as if the patent had issued to the deceased person during life.” Although this patent was issued in 1829, yet, if Pierre Grignon had sold this land in his lifetime, after its confirmation to him by congress, under this act of congress, the patent would inure to the benefit of his vendee. By the act of Michigan, the administrator was authorized to convey the same title that Pierre Grignon had and held in his life-time, or could have conveyed, if living in 1826. We must give effect to these acts, and consider the alienee of the legal representative of Pierre Grignon, under this act, the same as if he were the alienee of said Pierre Grignon himself, and entitled to the same rights and title. In either case the alienee might have obtained this patent from the land office, on producing his deed or assignment of the land. This patent, therefore, although issued in 1829, to Pierre Grignon, cannot give his heirs any right or title to the land, to enable them to recover the possession of the premises of a purchaser of the same, from the administrator of said Pierre, but it must inure to his benefit and those claiming under him.

It is tlie opinion of this court that the decisions of the district court on the various points submitted and the judgment on the verdict of the jury be affirmed, with costs in favor of the defendants.

Note.—The cause was removed to the supreme court of the United States by writ of error, and was argued by Mr. Choate for the plaintiff in error, and Messrs Lord and Crittenden for the defendants in error in 1844, where the judgment of the supreme court of Wisconsin was affirmed. Grignon’s Lessee v. Astor et al., 2 How. 319; and the more important propositions discussed in the opinions delivered in this case were recently re-affirmed in Comstock v. Crawford, 3 Wall. 396.

The case of Grignon’s Lessee v. Astor has became, and been for many years, a leading case in the State and Federal courts upon the effect which is to be given to sales of real estate by administrators and guardians under decrees of probate and county courts, and it has been thought material to report the facts of the case more fully than heretofore. That portion of the opinion which gives a statement and history of the case was prepared by judge Miller, before whom the cause was tried in the district court.

The county court of Brown county, it will be seen, was a court of general but not unlimited jurisdiction, and was organized under the statute of Michigan of 1820, and it was provided by section 7 of that act, “ that a court shall be established in every county of this Territory to consist of one chief justice and two associate justices, any two of whom shall form a quorum; and the said court shall have original jurisdiction in all civil cases where the sum demanded or matter in dispute is not within the jurisdiction of a justice of the peace and does not exceed the sum of $1,000; and appellate jurisdiction from any judgment or decision rendered or given by justices of the peace, in their respective counties, in cases authorized by law; and furthermore that the said courts shall have cognizance of all crimes and offenses, the punishment whereof is not capital, concurrent with the supreme court, and shall have the same power to issue remedial or other process (writs of error and mandamus excepted) as the supreme court have. And either of the justices of said court in vacation shall, on good cause shown, have power to allow writs of supersedeas and also to grant writs of habeas corpus ad subjiciendum.” Other sections of the same act provided for the appointment of clerks of the county courts, and that a seal should be used by such courts, etc., and contained sundry provisions, regulating practice in the supreme and several county courts. Laws of Mich. 1820, 313-327.

By the act of 1818, Laws of Michigan 1820,17, probate courts were established, but a sale of the real estate of any person deceased could be had only in the cases and in the manner pointed out by the act of 1818 (Laws of Michigan 1820, 37); and application for an order of sale was required to be made to the supreme court or to the county court in the county where the deceased person last dwelt.

The probate court had no power in any case‘to order a sale of the real estate of the deceased. In many of the States the power of ordering such sales is vested in the probate court, as was the case during the territorial existence of Wisconsin; and after the State organization probate jurisdiction was conferred upon and vested in the several county courts of the State.

A considerable diversity of opinion has existed and found its way into the judicial decisions of the States, as to whether such probate and county courts are courts of inferior and limited jurisdiction, so that their acts and decrees can be supported only where their jurisdiction is affirmatively shown, and whether the presumptions which were allowed in support of the record of the county court of Brown county in the cáse of Grignon’s Lessee v. Astor, by the Wisconsin court and the supreme court of the United States, can be indulged in to support their proceedings.

The recent case of Comstock v. Crawford, 3 Wall. 396, shows that the supreme court of the United States applies the rule it adopted in Grignon’s Lesseev. Astor to the proceedings of all probate and county courts acting upon any subject of which by law they could have jurisdiction.

This question in this State has, in a great degree, lost its practical importance as by chapter 127, Laws of 1861, the proceedings of such courts are placed upon'the same foundation as to the presumptions which are to be made in their favor, as the proceedings of courts of general jurisdiction. Blodgett v. Hitt, Sup. Ct. of Wis. June term, 1871.

Upon this question, see also Sitzman v. Pacquette, 13 Wis. 291; Frederick v. Pacquette, 19 id. 541; Gibbs v. Shaw, 17 id. 197; Wanzer v. Howland, 10 id. 8; Rape v. Heaton, 9 id. 328, and cases cited in these decisions.


source: Caselaw Access Project

author: Dunn, C. J. Dunn, C. J.

license: Public Domain

text:
    Doty, impleaded with Jones and Irwin, vs. Strong.
    1. Writ or error : practice.— A writ of error must be brought in the names of all the parties against whom the judgment was given, and, if the writ does not agree with the record in this respect, it may be quashed.
    3. Summons and severance.—When one of several defendants brings a writ of error in which the others are unwilling to join, he must do it in the name of all, and those who refuse to appear and assign errors must be summoned and severed, when the writ may be proceeded in by the rest only, and the parly who prosecuted the writ will not be compelled to proceed until after summons and severance.
    3. Practice.— The proceeding by summons and severance is not common in American practice, and the more easy and equally legitimate course is to enter a rule against those named in the writ as plaintiffs, and who have not appeared either to appear and assign errors or submit to be severed. Alter summons or rule and severance, the parties failing to appear and prosecute the writ will be barred from prosecuting another writ on the same judgment.
    ERROR to the District Court for Dane County.
    At the November term, 1841, ©f the district court for Dane county, Strong obtained judgment in an action of assumpsit against Doty, Jones and Irwin, to reverse which Doty alone prosecuted a writ of error and entered in a bond for a supersedeas in his own name, without joining his co-defendants in the original action.

      The defendant in error moved the court to quash the writ and dismiss the cause; because,
    “1st. The writ of error is prosecuted in the name of Doty alone, although the judgment which it is brought to reverse is against the said Doty, Jones and Irwin; 2d. The bond for the supersedeas is informal and insufficient.”

      T. P. Burnett and J. Dunn, in support of the motion,
    argued that where a judgment is given against several, one only cannot prosecute a writ of error to reverse it. If the writ is sued out, it must be in the names of all the defendants against whom the judgment was given. If each one was allowed his separate writ, they could bring up the case successively, although the judgment should be affirmed once or more ; and, as a writ for one would be a supersedeas for all, the practice would tend to vexation and delay. 2 Bac. Abr. title “Error,” B., p. 461, and the authorities there cited; 2 Tidd’s Prac. 1053,1054 ; 3 Burr. 1789; Graham’s Prac. 770, 771, 772. In such case, if the writ be brought by one or more of the defendants only, and not in the names of all, the court will quash it. 2 Tidd. 1054; 2 T. B. 788; 8 Burr. 1789; 1 Wils. 88.
    The bond does not conform to the statute, nor does it correspond with the record of the cause, and a recovery could not be had upon it in case the judgment should be affirmed.

      M. M. Jackson, for the plaintiff in error,
    contended that the writ was properly brought in the name of one only of the defendants below. He is the one who complains of the error, and for aught that appears, the others may be satisfied to let the judgment rest. He has no power to compel them to join in the writ or to sign the bond, and, if they neglect or refuse to do so, the defendant Doty cannot be deprived of his remedy. He is entitled to the writ in his own name as a matter of right.
   Dunn, C. J.

The defendant in error moved the court to dismiss the writ of error herein for two reasons: “ 1st. The writ of error is prosecuted in the name of Doty alone, although the judgment which it was brought to reverse was against the said Doty, Jones and Irwin; 2d. The bond for supersedeas is informal and insufficiént.”

The record in this case from the district court of Dane county shows that at the November term of 1841 of said court, a judgment was rendered in favor of the said defendant in error, Strong, against the said plaintiff in error, James D. Doty, Alexander J. Irwin and David Jones. To reverse this judgment, Doty, plaintiff in error, one of the defendants against whom the said judgment was rendered, has prosecuted this writ of error separately from the other defendants in the judgment. The case, as it is now presented on the motion submitted, being thus correctly stated, the court will proceed to examine the merits of the motion to dismiss upon the grounds set forth.

It is not only a rule that no person, not, a party, can sue out a writ of error, but it is also a settled rule that it must be brought in the names of all the parties against whom the judgment is given : And, notwithstanding the death of any of the parties, though the survivors must bring the writ, he must still be named and his death must be alleged. And this is the rule, both that the writ of error may agree with the record, and to prevent vexation; for if each party may bring a writ, they might do it successively, to the great prejudice and delay of the plaintiff, who, in the opinion of the ablest jurists, cannot sue out execution against any one where a writ of error is awarded even on the application of the others. A writ of error, which in this respect is erroneous, may be quashed. Carth. 8; Ld. Raym. 71; Saund. 101, f.

When one of several defendants brings a writ of error in which the others are unwilling to join, he must do it in the name of all, and those who refuse to appear and assign errors must be summoned and severed, and then the writ of error must be proceeded in by the rest only, and the party who prosecutes the writ will not be compelled to proceed, until they have been summoned and severed. Saund. ubi sup. Thus the writ of error corresponds with the record; and, moreover, the other parties would be forever after barred of the writ. See Bac. Abr. “Summons,” H. So that both purposes are subserved by this course of proceeding.

To this general rule there is this obvious exception, that, if one of the defendants in an action of tort is acquitted, he need not be joined, because he cannot say that the judgment is to Ms damage; and, moreover, for the reason that he can never vex the plaintiff with another writ of error. The suit, however, should be described in the writ according to the record, and thus both objects of the law herein will be obtained. Saund. ubi sup.

In Folterall v. Floyd, 6 Serg. & R., this doctrine is fully recognized on full argument and reference to authorities. Hacket v. Horne, Carth. 7; Walter v. Stokoe, 1 Ld. Raym. 71; Brewer v. Turner, 1 Str. 233; Cooper v. Ginger, reported in 1 Str. 606, and Ld. Raym. 1403. And the principle decided in Hacket v. Horne is mentioned and acknowledged in the case of Knox v. Costello, 3 Burr. 1789.

The practice of summons and severance is not familiar to the American courts of error. The more easy and equally legitimate practice would be to enter a rule against those persons named in the writ of error as plaintiffs and not appearing, either to appear and assign error or submit to be severed. In any practice, however, all the defendants in the judgment must first join in suing out. the writ of error. We are of opinion, therefore, that the writ of error in this case be quashed for the first reason assigned in the motion of the defendant, without considering the second reason, which goes to the form and sufficiency of the bond, which it is not necessary to consider at this time.

At a subsequent day of the term the plaintiff moved the court for a rehearing.

Wrn. P. Smith, for plaintiff in error,

contended that as the praecipe for the writ was made ont and filed with the clerk'in the names of all the defendants in the court below, if the writ was not issued according to the praecipe, it was clear that it might be amended. But whether the writ might be amended or not was not material. A party has a right to the writ separately. The old doctrine of summons and severance is obsolete, and has not been adopted in practice in this country. One defendant may take out a writ of error alone, without joining the others. Cox <& Bides v. United States, 6 Pet. 172. And the practice recognized in that case does not come within the reasoning of the court in the opinion already delivered in this case. One party cannot compel the others to join in the writ and sign the bond. Some may be absent, or refuse, and the reason of the English doctrine does not exist here. There the writ and bail in error supersede the whole judgment; here it is only a supersedeas as to the party who sues out the writ and gives the bond, and the plaintiff below may pursue his judgment as against the others who do not join.

T.P. Burnett, contra.

The suggestion that the prsecipe was made out in the names of all the defendants below, and that the writ may be amended to correspond with it, comes too late. The court will not set aside the decision to afford an opportunity 'to amend when no motion to amend has been made. The case of Gox & Bides *. The United States, 6. Pet. 172, is not analogous to the case and does not support the position assumed. There the parties had separate defenses in the court below, and although they prosecuted separate writs of error, they were all before the court.

Dunn, C. J.

The court could not, unless for extraordinary reasons, entertain this motion. The reason for entertaining the motion urged by counsel for the plaintiff is, “that a decision of the supreme court of the United States, in Cox & Dicks v. The United States, 6 Pet. 172, reverses the principles decided by this court on the motion to dismiss herein.” Prom a minute and careful inspection of that decision, this court is unanimously of the opinion that it is a case by no means in point. The motion was decided on different grounds entirely; and the reasons which influenced the court in that case, as far as they can be inferred from the arguments of counsel (for they are not assigned in the decision), are such as conduce to satisfy this court still more clearly, if any thing were wanting, that their opinion on the motion in the case at bar was correct.

We understand these to have been the reasons why the motion to dismiss was overruled. All the parties were before the court. They had separate grounds of defense, and the court below allowed them to sever in their answers. Judgment was awarded against all in solido, and separately for the whole amount against two of the defendants. They had both sued out a writ of error, and the motion should have been to consolidate. The parties had distinct grounds of error, and claimed distinct remedies. It was insisted in argument, that the case of Williams v. Bank, in 11 Cranch, was not applicable, because Williams alone took up the cause ; but in that case the court was understood to recognize the principle in practice, of summons and severance.

If the supreme court of the United States had decided that the practice of summons and severance was obsolete in reference to error in that court (which, however, they did not), still, if this court had entertained the practice, it never having been reversed by any judicial decision upon principle, it certainly would not have been treated as error by the supreme court.

Motion overruled.


text:
    Dawes vs. Glasgow.
    1. Practice.—Tlie supreme court will not consider matters assigned as error which are not properly made to appear by the record.
    3. Affidavit.—Although there is an obvious impropriety in an attorney in .a cause taking, as a judicial officer, the affidavit of his client, which is to be the foundation of the action, yet, as there is no provision of law or rule of court to prohibit it, proceedings founded on an affidavit so taken will not be dismissed or set aside.
    3. BEPLEvm—When the writ of replevin is for the caption and unjust detention of property, the declaration should correspond and allege the caption and detention; a different form would be required under our statute if the detention only was complained of.
    4. Error.—Error will not be presumed but must be shown affirmatively, and where it is assigned for error that the court below erred in not granting a motion for a new trial, made upon the ground that the verdict was contrary to the evidence and the insti-uctions of the court, but the record does not show what the evidence or the instructions were, this court will presume that the decision of the court below was correct.
    EEEOE to tlie District Court for Jefferson County.

      Glasgow brought an action of replevin against Dawes in the Jefferson county district court, for the caption and detention of a horse. The writ was issued in the usual form prescribed by the statute for the caption and detention, and the declaration filed corresponded with the writ. It appeared that the affidavit upon which the writ issued was made before the plaintiff’s attorney as a supreme court commissioner. At the May term, 1842, Dawes, the defendant below, moved to dismiss the suit for want of a sufficient affidavit and bond, which motion was overruled by the court. The defendant then filed a general demurrer to the declaration, which was also overruled; where-upon he filed the plea of non detinet, or that he did not unjustly detain, etc., upon which issue was joined and a verdict rendered in favor of the plaintiff. The defendant moved for a new trial on the ground that the verdict was contrary to evidence and contrary to the instructions of court, which motion was overruled and judgment rendered upon the verdict. The defendant below prosecuted a writ of error to reverse the judgment, and assigned the foregoing rulings of the court for error. There was no bill of exceptions taken containing the testimony or the instructions of the court.

      David Doggie, for plaintiff in error.

      Field & BotMn, for defendant in error.
   Dunn, C. J.

This case was tried in the district court of Jefferson county at the May term, 1842; verdict and judgment thereon rendered in favor of defendant Dawes as plaintiff below, to reverse which judgment, a writ of error is prosecuted in this court. The errors assigned by the plaintiff are: .

1. The court erred in overruling the motion to dismiss for want of sufficient affidavit and bond.

2. In overruling demurrer to plaintiff’s declaration.

8. In overruling defendant’s motion for a new trial.

4. The court erred in ordering the issue to be made up -on the unjust detention only, as the taking was complained of.

Before proceeding to examine the errors which are based upon the record, the court will premise that they cannot consent, under any circumstances, to consider or entertain matters dehors, as the fourth error assigned evidently is, from an inspection of the record.

First, then, did the district court err in overruling the motion to dismiss for want of a sufficient affidavit and bond? In discussing this error, the counsel for the plaintiff took no exception to the bond, indeed it does not appear to be obnoxious to any, but confined his objections entirely to the affidavit; and assumed the ground, “that the attorney for the plaintiff, although a supreme court commissioner of the county of Jefferson, is not a proper officer in the meaning of the law, before whom the affidavit in replevin may be made.” Although there is an obvious impropriety in the practice, and this court is much disposed to discountenance it, yet there is no rule of law, or of court under the authority of law, against the exercise of such a power by the attorney in the case, by virtue of his office of supreme court commissioner of Jefferson county. The possibility of the abuse of a power delegated by law, when exercised in a particular relation, is not a sufficient argument against the exercise of the power in such relation, unless so specially provided in the law granting the general power. And we are of opinion that the district court decided correctly in overruling the motion to dismiss.

The decision of the district court in overruling the demurrer to the plaintiff’s declaration is, also, in the opinion of this court, free from error. The declaration is good according to the most approved practice, as a declaration in replevin, for taking and unjustly detaining property, if it had been a declaration on a writ of replevin, for the unjust detention only, then, according to the provisions of the 16th section of our act concerning replevin, the form of declaring should have been varied to meet the requirements of that section. Nichols v. Nichols, 10 Wend. 629, is recognized by this court as authority, it being a decision by the supreme court of New York on a statute of that State in pari materia with our own act concerning replevin. But the principle there decided is not brought in question in this case, where the declaration contains all the material allegations to support the writ of replevin, and entitle the plaintiff to recover for the taking and unjust detention of his property, if sustained by proof. Upon the record the decision of the district court on the demurrer was correct.

It is insisted in the third error assigned, that the district court erred in overruling the defendant’s motion for a new trial. The motion, with the reasons upon which it is based, are matters of record. The reasons in the motion are: 1st. That the verdict was contrary to the evidence given in said case: 2d. That said verdict was contrary to the instructions of the court.

It no where appears in the record what this evidence and these instructions of the court were. There is nothing to inform this court whether or not the district court exercised a sound legal discretion in overruling the motion for a new trial; but we are bound to presume that its discretion was properly and soundly exercised, in the absence of matter apparent on the record to the contrary.

We are therefore of opinion, that all the errors assigned are untenable, and that the judgment of the district court of Jefferson county be affirmed, with costs.


author: Miller, J.

text:
    Parkison vs. Bracken.
    1. Patent from United States—evidence.—In an action at law the patent of tlie United States is conclusive evidence that the title to the land is in the patentee, and evidence will not be admitted to establish an adverse equitable title.
    2. Elder patent prevails at law.— If there should be two patents for the same tract of land, the elder patent must prevail at law.
    3. Equitable title. —If the defendant has an equitable title to the land, superior to that of the patentee, he must resort to a court of equity to assert it.
    4. Receiver’s receipt.— The receiver’s receipt for the same tract of land embraced in the patent, showing that it was entered by the defendant at the land office, anterior to the date of the patent, is not evidence for the defendant to defeat a recovery in an action of ejectment brought by the patentee, nor is any evidence admissible which goes only to show an equitable title in the defendant adverse to the patentee.
    5. Continuance.— A continuance asked for by the defendant in an action at law, to enable him to procure testimony which would only go to establish an equitable title in himself adverse to the patent, for the purpose of defeating a recovery by the patentee, ought not to be granted.
    6. Presumptions.—A patent which appears on its face to have been regularly issued, will be presumed to have been signed and executed according to law until the contrary shall be made to appear, and the court cannot undertake to say, from the mere inspection of the handwriting, that the name of the president was not signed by the proper person.
    The law presumes that public officers do their duty, and that in their official acts they conform to tire requirements of the law, until the contrary is made to appear.

      ¶. Power oe congress, etc.—Congress lias the sole power to dispose of the public domain, and to declare the dignity and effect of titles emanating from the United States, and the act of congress to confirm land patents, approved March 3,1841, is valid and effectual, and cures all defects provided for in patents that had been previously issued; it relates back to the date of the patent confirmed, and it makes no difference that a suit was pending on the patent at the passage of the act.
    EEEOE to the District Court for Iowa County. '
    This was an action of ejectment, brought by Bradken against Parkison, in the Iowa county district court, to recover a tract of eighty acres of land. At the September term, 1841, when the cause was called for trial, Parkison moved the court for a continuance of the cause, for the purpose of enabling btm to procure testimony from the General Land Office at Washington, to prove various matters tending to show that he had a superior equitable right to enter the land in controversy; in order that by connecting such testimony with the receiver’s receipt which he held for the same tract, of anterior date, he might defeat the patent which had been issued to Bracken. The district court refused to grant the continuance, and decided that the facts which he expected to prove would not be competent testimony in his defense. Upon the trial, the plaintiff below offered in evidence a patent from the United States to him for the land in dispute, dated April 27, 1840. The patent was signed “Martin Yan Burén, by M. Yan Burén, Jr., Sec’y.” From the appearance alone of the writing, it would seem that both names were not written by the same hand. The defendant’s counsel objected to the reading of the patent in evidence, alleging that it was evident, from its face, that the president’s name was not written by the secretary authorized to sign patents, and that no other person could lawfully sign the name of the president to a patent. There was no evidence offered to sustain the objection, and the court overruled it, and permitted the patent to be read to the jury. After the plaintiff’s testimony was closed, the defendant offered to read in evidence the receipt of the receiver of public money at Mineral Point, dated 15th March, 1836, by which it appeared that on that day he entered, at the land office at Mineral Point, the tract of land in controversy ; and to accompany it by other testimony, similar to that, to procure which he asked a continuance ; to all which testimony the plaintiff’s counsel objected, and the court rejected the testimony. Exceptions were taken to these various decisions, and a verdict and judgment were rendered in favor of the plaintiff. To reverse this judgment ParMson assigned the following errors in the record of the proceeding in the court below:
    I. The court below erred in overruling the motion of the defendant below for a continuance.
    II. The court below erred in admitting in evidence the patent offered by the plaintiff below.
    III. The court below erred in excluding the receiver’s receipt offered by the defendant below as evidence.
    IY. The court below erred in excluding the evidence offered by the defendant below.
    By order of the district court, the patent was produced for the inspection of this court.

      Moses M. Strong, for plaintiff in error:
    1. The title to land can’ only pass from the United States in pursuance of law, and in all cases where the laws of congress prescribe one mode in which the title shall be passed, no other mode can be substituted by the officers of the government. By the former laws of congress, all patents for land had to be signed by the president himself. By the present law, which was passed prior to the date of the patent in this case, a secretary appointed for that purpose may sign for the president. Acts of Congress of March 2, 1833, and July 4, 1836. We contend that under the present law, no person but the secretary is authorized to sign the name of the president to the patent. The patent produced by the defendant in error as evidence of his title shows on its face that the names of the president and secretary were not written by the same hand. No testimony conld make the matter more plain. Bnt the defendant in error insists that this defect is cured by the act of congress to confirm land patents, approved March 8, 1841. Although it cannot be questioned that congress may pass laws to vest the title to land in any person, in the first instance, without limitation or .restriction, yet it cannot, by a general law, make a patent valid that was invalid before. The rights of other persons than the patentee cannot be prejudiced by the retrospective character of the act. Again, the act of confirmation was passed after the commencement of this suit. When the suit was commenced the patent was bad, and the plaintiff below could not then have recovered upon it; the act cannot relate back so as to affect or entirely change the rights of the parties, in the course of litigation, at the time of its passage.
    2. The record shows that the receiver’s receipt to Parkison for the land in dispute bears date the 15th March, 1836, and the patent by which the defendant in error recovered below is dated 7th April, 1840. The receipt, connected with the other evidence offered, would have showed an inchoate title in the plaintiff in error prior to the date of the patent. It was a link in his testimony, and the court could not know but it would be followed by a patent according to the entry. According to all authorities upon the subject, Parkison had an equitable- title to the land. The testimony which he offered would have shown that his title was acquired before the patent issued to Bracken, and the court ought to have permitted him to establish it by proof. Although, technically speaking, his title was but,an equitable oue, if it was better than Bracken? s it ought to have been sufficient for his defense. Conflicting decisions are to be found upon this principle, but the weight of authority and of reason is in favor of the position assumed. Brush v.

      Ware, 15 Pet. 93 ; PoWs Lessee v. Wendell, 9 Crancli, 87 ; S. C., 5 Wheat. 293 ; Reader v. Barr, 4 Ohio, 446 ; Miller v. Kerr, 7 Wheat. 1; Hoofnagle •». Anderson, 7 id. 212; Ross v. Loe, 1 Pet. 655. In the last case, the party was allowed to go behind the patent in a trial at law to defeat its legal *effect.

      F. J. Bunn, for defendant in error.
    1. A patent from the United States is conclusive as to the title to lands, and in an action at law, a party cannot set up an adverse title against the patentee or his assigns or legal representatives. If he has an equitable title, a court of law cannot decide upon it; he must apply to chancery for relief. If there are two patents for the same tract, the rule applies in favor of the elder patent, and in such case the junior patent, if it amounts to any thing, is only evidence of an equitable title. Wilcox r>. Jaekson, 13 Pet. 498 ; Ross v. Roe, 1 id. 656; U. B. ». Arredondo, 6 id. 725; Bagnall et al. v. Broderick, 13 id. 436, 450 ; 11 Wheat. 580; 5 id. 293 ; 7 id. 151.
    2. There was no evidence offered to impeach the patent, and there is no principle of law that will authorize the court to say, from inspection only, that an official paper has not been signed as it purports on its face to have been done. Admitting that the error existed in the signing of the patent, as is alleged, the United States only could take advantage of the defect, and they had full power to correct it, and the correction has been made. The act of congress of March 3, 1841, was passed to confirm titles that had been defectively granted to the purchasers of the public lands, and cures the alleged defects in this patent, if they existed at all.

      T. P. Burnett, in continuation :
    A patent is a record and proves itself. When required as a matter of evidence, nothing further is necessary than its production, and if it is regular on its face, it must be admitted. This patent appears to be regular on its face, and although the error may exist in signing, as is contended, it is not void; at most, it is only voidable, and independently of the act of congress passed in confirmation, the plaintiff in error could not impeach it ■in this suit. Where a patent, regular on its face, is voidable, it can only be avoided by a proceeding in chancery for that purpose. Jackson v. Lawton, 10 Johns. 23. If a patent is issued by fraud or mistake, unless the fraud or mistake appears upon its face, it can only be avoided by a suit in chancery for that purpose. Id.; Jackson «. Hart, 12 Johns. 77. Further, the court is bound to presume, until it shall be made to appear otherwise, that, where the law requires public officers to perform certain acts in a particular manner, they have done their duty in the manner which the law prescribes. This is a presumption of law. See 3 East, 200 ; Hart-well v. Boot, 19 Johns. 347; Polks Lessee v. Wendell, 9 Cranch, 98 ; S. C., 5 Wheat. 304; Patterson ». Jenks, 2 Pet. 237.
    But, if the patent could be impeached in this suit (which is not admitted), how is it to be done % Surely by him who alleged the irregularity proving that it existed. This has not been attempted, and the court is asked to decide in his favor, upon bare inspection. The court is required to know, judicially, the handwriting of the officers of the government, and to decide-from that knowledge whether signatures be genuine or not. There can be no authority found to sustain the position, and it cannot be necessary to refer to any to refute it.
    A patent, then, being a record, and proving itself, requiring no other evidence to support its authenticity or establish its validity, and this being regular on its face, and purporting to have been issued in the manner prescribed by law, and standing unimpeached by any testimony against it, the court is bound to acknowledge it for what it professes to be, and give it full weight as evidence of title in the patentee.
   Miller, J.

This was an ejectment, brought by the defendant in error against the plaintiff in error, in the district court of Iowa county.

■The court admitted in evidence, on the part of the plaintiff, a patent purporting to have been signed in the name of the president of the United States by his secretary for that purpose. The patent appears on its face to have been regularly executed, sealed and recorded, according to law; but, because the filling up of the patent and the name of the president appear to be in the same handwriting, and the signature of the secretary in another, it was thereby inferred that the president had not signed it, or that the secretary had not signed the president’s name according to the requisites of the statute. The objection was merely made on the ground of this supposition, without offering to produce witnesses to prove that it was not executed according to law. The patent appearing on its face to have been legally executed, sealed and recorded, it is presumed to have been done by the proper officers until the contrary appears. 3 Starkie’s Ev. 1248, 1249, 1250; 10 East, 216; 3 id. 200; Hartwell v. Root, 19 Johns. 347; Polk's Lessee v. Wendell, 9 Cranch, 98; 5 Wheat. 304; 2 Pet. 237; 15 id. 490.

But, if this objection to this patent were sustained by legal proof, the act of congress entitled an act to confirm land patents, approved March 3,1841, cured this alleged defect. It is alleged, however, that it only became a legal patent, and vested the legal title to the land in the patentee, on the date of its confirmation, and not before. Congress has the sole power to dispose of the public domain and to declare the dignity and effect of titles emanating from the United States, and as it is not restrained by the constitution from passing such a law, its propriety and constitutionality cannot be questioned. Even in the States where legislatures are restricted and restrained from passing laws impairing the obligation of contracts, such statutes of confirmation or correction are common. The supreme court of Pennsylvania, in the case of Underwood v. Lilly, 10 Serg. & Rawle, 97, decided that the act of assembly of that State, confirming certain judgments in York county, was not unconstitutional, although retroactive. A similar decision was made on the constitutionality of the act curing defects in previous acknowledgments of deeds by femes covert. Barnet v. Barnet, 15 Serg. & Rawle, 72; Tate v. Stooltzfoos, id. 35; Mercer v. Watson, 1 Watts, 356. A similar decision was made by the same court respecting an act providing for the closing of the concerns of banking institutions, although that act operated upon suits pending at the time of its passage, so as to render them valid. Blackney v. The Bank of Greencastle, 17 Serg. & Rawle, 64. Similar decisions have been made, to a very great number, on similar laws, some of which will be found in 1 Rawle, 181; 2 Watts, 433; 2 Rawle, 374; 7 Serg. & Rawle, 260; 11 id. 191.

The third and fourth errors assigned are upon the rejection of a duplicate receipt from the receiver of public moneys for the Mineral Point Land District, to defendant, for the land in dispute, and other evidence connected with the possession and entry of this land previous to the patent. This receipt is dated on the 15th March, 1836, and the patent of plaintiff is dated on the 27th April, 1840, but it does not appear when the patentee paid for the land and obtained his receipt. In a court of law the patent is conclusive. Even in the case of conflicting patents, the first patent is conclusive, and relief can only be had in a court of chancery. 10 Johns. 23; 12 id. 76; 9 Cranch, 98; 15 Pet. 105; 7 Wheat. 1; 15 Pet. 490. It is true that there is no objection to going into facts behind the patent in support of the title, particularly in States where there is no court of ohancery, it may be necessary; but in this Territory we have a court of chancery of sufficient power to inquire into the equitable interests of the parties. There might have been no impropriety in receiving the evidence offered, but it could not prevail against the patent of the plaintiff, under the charge of the court; but, as there was no offer to accompany the evidence offered with a patent, the court was right in rejecting it. An equitable title cannot prevail in an ejectment against a legal title. In an ejectment the parties are confined to their legal rights. If there is equity in the case it must be disposed of in the court of chancery.

The first error assigned relates to the refusal of the court to put off the trial on affidavits filed. As these affidavits contain a statement of facts not then in the possession of the party, as the ground of the application, and as it abundantly appears that the same or similar matters were properly rejected by the court, and that these would also have been rejected if offered, the court will not reverse the judgment.

Judgment of the district court affirmed, with costs.