author: Mr. Justice NELSON

text:
    Nathaniel Williams, as permanent Trustee for the Creditors of James Williams, an Insolvent Debtor, Plaintiff in error, v. Charles Oliver, Robert M. Gibbes, and Thomas Oliver, Executors of Robert Oliver, and John Glenn, and David M. Perine, Trustees.
    In 1839 a treaty was made between the United States and Mexico, providing for the “ adjustment of claims of citizens of the United States on the Mexican Republic.”
    Under this treaty a sum of money was awarded to be paid to the members of the Baltimore Mexican Company, who had subscribed money to fit out an expedition against Mexico, under General Mina, in 1816. See the case of Gill v. Oliver’s Executors, 11 Howard, 529.
    The proceeds of one of the shares of this company were claimed by two parties; one as being the second permanent trustee of the insolvent owner of the share, and the other as being the assignee of the first permanent trustee.
    The Court of Appeals of Maryland decided that the plaintiff, viz., the second permanent trustee, did not take the claim under the insolvent laws of Maryland.
    This decision is not reviewable by this court, under the 25th section of the Judiciary Act; and the case is similar to that of Gill v. Oliver’s Executors, 11 Howard, 529.
    Nor does jurisdiction accrue in this case in consequence of the additional fact that the Legislature of Maryland passed a law curing certain defects in the assignment to Oliver, the validity of which law was drawn into question, as impairing the obligation of a contract; because, if there had been no such law, the decision of the State court would have been the same.

      The former decisions Of this court respecting its jurisdiction under the 25th section of the Judiciary Act, examined and explained.
    This case was brought up from the Court of Appeals of. Maryland, by a writ of error issued under the 25th Section of the Judiciary Act.
    It was a branch of the case of Gill v. Oliver’s Executors, reported in 11 Howard, 529, although it differed from that case in some particulars, which will be mentioned. The history of the Baltimore Mexican Company was given in the report of that case, and need not be repeated.
    James Williams was the owner of one of the shares of the company, and applied for the benefit of the Insolvent Laws of Maryland on the 24th of June, 1819. George Winchester was appointed provisional trustee, and gave bond as such; and James' Williams conveyed and assigned to him, as provisional trustee, all his property whatever for the benefit of his creditors. . On the 2d of August, 1819, Winchester executed a bond without security, reciting that he had been appointed permanent trustee, and the bond was conditioned for thé' faithful performance of his duties as such. The laws of Maryland required security to be given when such a bond was executed.
    At March term,, 1825, Baltimore County Court passed the following order: —
    “ In Baltimore County Court, March Term, 1825.

      “ In the case of James Williams, an Insolvent Debtor:

      11 Ordered by the court, that the trustee dispose of any part of the personal estate of the said insolvent debtor remaining unsold at public or private sale, as he may iudge best.
    “ Wm. H. Ward.”
    On the 2d of. April, 1825, Winchester assigned, to Robert Oliver the share in the Mexican Company belonging to Williams, and signed a receipt for $2,000 as the consideration for the sale.
    Winchester having died, Nathaniel Williams, the ' plaintiff, in error, was appointed permanent trustee of James Williams, the insolvent, on the 15th of November, 1841, and gave bond with security, as required by' law.
    In the report of the case of Gill v. Oliver’s Executors, it- was stated in what manner the money came into the hands of Glenn and Ferine as trustees, and how it came tó be deposited in court for claimants to make out their title.
    On the 29th of January, 1842, Nathaniel Williams filed his petition, claiming the amount which belonged to the share of his insolvent, James Williams.

      On the 9th of March, 1842, the Legislature of Maryland passed an act J(December Session, 1841, chapter 309,) entitled “ An act to confirm the titles of purchasers in the cases therein mentioned; ” which act was passed on the memorial of Oliver’s representatives, and was alleged to cure the defects resulting from Winchester’s assignment without his having given security upon his bond as permanent trustee.
    On the 2d of May, 1842, the executors of Oliver and the trustees filed their answer to the petition of Nathaniel Williams. They claimed the share of James Williams on two grounds: 1st, under the purchase from Winchester; 2d, because the award of the commissioners was a full and complete bar of all right and title on the part of Nathaniel Williams.
    On the 5th of December, 1846, Baltimore County Court decreed in favor of the executors of Oliver, holding the a'ct of 1841 •to be constitutional. On the second point the court decided that the award' of the commissioners was not conclusive.
    Williams prosecuted an appeal to the Court of Appeals of Maryland.
    At June term, 1843, the Court of Appeals affirmed the decree of the County Court, three judges sitting. One of them, Judge Martin, filed the following reasons. Viz.:
    I think that George Winchester is to be considered, upon the facts exhibited in this record,- as duly and legally appointed the permanent trustee of James Williams; that the sale by him of the shares in controversy to Robert Oliver, was fairly and bond fide made within .the meaning of the act of Assembly of 1841, ch. 309; and that that statute being, in my opinion, neither repugnant to the Constitution of the United States nor the Constitution of the State of Maryland, is to [be] regarded as a valid exercise of legislative power.
    The other two judges, viz., Chief Justice Dorsey and Judge Spence, stated that the grounds upon which they affirmed the judgment were, first, the reasons assigned by the majority of this court for the reversal of the decree in Oliver’s Executors et al. v. Gill, Permanent Trustee of Goodwin; and because, under the proceedings based on, or originating from,'the insolvent petition of James Williams and the act of Assembly applicable thereto, Robert Oliver acquired a valid title to all the interest of said James Williams in the fund in controversy.
    The reasons assigned by the majority of the court for the reversal of the decree in Oliver’s Executors et al. v. Gill, and which are adopted as above and made part of the réasons for the decision given in the present case of Williams, Trustee, v. Oliver’s Executors, were published in the report of the case of Gill v. Oliver’s Executors; in 11 How. 529. They are here repeated:

      « The majority of this court, who sat in the trial of this cause, (and by which was decreed the reversal of the decree of the County Court,) at the instance of the solicitors of the appellees, briefly state the following as their reasons for such reversal: They are of opinion that the entire contract, upon which the el a im of the appellees is fourided, is so fraught with illegality and turpitude as to be utterly null and void, and conferring no rights or obligations upon any of the contracting parties, which can be sustained or countenanced by any court of law or equity in this State or of the United States. That it has no legal or moral .obligation to support it, and that, therefore, under the insolvent laws of Maryland, such a claim does not pass to or vest in the trustee of an insolvent'petitioner. It forms no part of his property or estate, within the meaning of the legislative enactments constituting our insolvent system. It bears no analogy to the cases decided in Maryland, and elsewhere, of claims not recoverable in a court of justice, which, nevertheless, have been held to vest in the trustees- of an insolvent or the assignees of a bankrupt. In the cases referred to, the claims, as concerned those asserting them were, on their part, tainted by no principle of illegality or immoralityon the contrary, were sustained b'y every principle of national law and natural justice, and nothing was wanting to render them recuperable but a judicial tribunal competent to take cognizance thereof. Wholly dissimilar is the claim before us. Such is its character, that it cannot be presented to a court •of justice but by a disclosure of its impurities; and if any thing is conclusively settled, or ought to be so regarded, it is that a claim, thus imbued with illegality and corruption, will never be sanctioned or enforced by a court either of law or equity.
    “ Entertaining this view of the case, it is unnecessary to examine the various minor points which were raised in the argument before, us.”
    These reasons,- as has been before remarked, are made applicable- to the present case of Williams v. Oliver’s Executors.
    Williams sued out a writ of error and brought his case up to this court.
    It was argued by Mr. Dulany and Mr. Schley, for the plaintiff in error, and Mr. Campbell and Mr. Johnson, for the defendants in error.
    The counsel for the plaintiff in error
    contended for the following positions:
    1. The record present^ a case, within the appellate jurisdiction of this court, under the provisions of the 25th section of the Judiciary Act.

      In support of the jurisdiction claimed, two grounds were assumed : 1st. The effect of the treaty with Mexico, and the effect of the act of Congress of the 12th of April, 1840, and the effect of the award, as establishing the amount and validity of the el aim 6f the Mexican Company of Baltimore, were all necessarily involved in the decision of the case, if the decree is to be considered as based, in any degree whatever, on. the imputed turpitude of the contract of said company with General Mina: 2d. The validity of the act of the General Assembly of Maryland, (act of 1841, ch. 309,) wqs drawn in question, on the ground of its alleged repugnancy to the Constitution of the United States, and its validity was maintained by the Court of Appeals. The following authorities were relied on: Crowell v. Randell, 10 Pet. 392, and the various cases referred to, and commented oh, in the opinion in that case; Scott v. Jones, 5 How. 376, and the cases cited in the opinion in that case; Smith v. Hunter, 7 How. 744.
    2. The imputed turpitude in the original contract of said Mexican Company with General Mina, even if such turpitude at any time attached to the contract, was not a ground which the Court of Appeals was at liberty to assume as the basis of their said decree. In doing so, they refused to give effect to an award based on the said treaty and said act of Congress. The right to receive the money was conclusively established. The only open question properly before that court was this, Who was entitled to the share accruing in right of said insolvent ? The following authorities were relied on: Comegys v. Vasse, 1 Pet. 193; Frevall v. Bache, 14 Pet. 95; De Valangin’s adm’rs. v. Duffy, 14 Pet. 291.
    3. Apart from this notion of original turpitude, the claim vested in the permanent trustee of the insolvent, for the benefit of his creditors. Plater v. Scott, 6 Gill & Johns. 119; Stevens v. Bagwell, 15 Ves. 139; Comegys v. Vasse, 1 Pet. 193; Wheat. International Law, 56-63.
    4. Independently of the act of 1841, the representatives of Robert Oliver had no- right to this share, which could have been enforced in any tribunal of law or equity. The Insolvent Laws of Maryland, and particularly the act of 1808, chap. 71, sec. 3; Winchester, Trustee of Williams, v. Union Bank, 2 Gill & J. 73; Winchester, Trustee of Gooding, v. Union Bank, Id. 79; Glasgow v. Sands, 3 Id. 96; Glenn v. Karthaus, 4 Id. 385; Kennedy v. Boggs, 5 H. & J. 408; Brown v. Brice, 2 H. & G. 24; Williams v. Ellicott, 6 H. & J. 427.
    5. The act of 1841, chap. 309, is repugnant to the tenth section of the first article of the Constitution of the United States. It is a law which, in its application to this case, impairs the obligation of a contract.

      In the discussion of this point, it was insisted that it impairs the obligation of .the original contracts of the insolvent with his various creditors; that it impairs the obligation of the bond given by Mr. Winchester as provisional trustee ; that it impairs the rights of creditor's, as cestuis que trust, and the rights of thé plaintiff in error as permanent trustee, under the deed of trust to Mr. Winchester, as provisional trustee; that it also impairs, as to the creditors, the obligation of the bond of the plaintiff in error as permanent trustee. It will also be insisted that the plaintiff in error, on his appointment as permanent trustee, and his qualification, by filing an approved bond, became entitled by law to' his commission on the assets ' composing the estate of the insolvent, and which vested in him, on his qualification as permanent trustee, and also deprived him of his right to allowance out of said estate, for his necessary disbursements; and that such, his right, is based on contract, within the true interpretation of the said section of said article of the Constitution; and that said act, as to him, is .unconstitutional and void, as it does not save his commission nor make provision for payment of his disbursements. ' In the discussion of this point, the following authorities were relied on: Bronson v. Kinzie, 1 How. 311; Green v. Biddle, 8 Wheat. 1; McCracken v. Hayward, 2 How. 608; Gantley’s Lessee v. Ewing, 3 How. 707; Cook v. Moffatt, 5 How. 295; Planters’ Bank v. Sharp, 6 How. 318, and the cases cited in the opinion in that case; 12 Wheat. 311, 312; Rogers v. Wright, 9 G. & J. 184. The following cases were referred to for illustration, and as 'showing, by analogy, the rights which attached to the claims of creditors on the application of the insolvent: Scott v. Jones, 4 Clarke & Fin. 397, 398; Freake v. Cranefield, 3 Mylne & Craig, 499, and in 14 Eng. Cond. Ch. Rep. 500; Welch v. Stewart, 2 Bland, Ch. Rep. 41; Post v. Mackall, 3 Id. 498. It was also insisted, in the discussion of this point, that the said act, in its application to this case, impaired the obligation of the contract of sale made by said insolvent, before his application, to the firm of Stump & Williams, of the one half of his said share; and that the said act, as to the representatives of Stump & Williams, is unconstitutional and void. Mitford v. Mitford, 9 Ves. 87, and notes; Wright v. Morley, 11 Ves. 17; Dyer v. Pearson, 3 Barn. & Cress. 38, in 10 Eng. C. L. Rep. 13; 2 Story’s Eq. Jur. § 1411, 1038, 1040 b, 1044; E. & S. Kip v. The Bank of New York, 10 Johns. 63; Muir v. Schenck, 3 Hill, 228.
    The counsel for the defendant, in error
    presented the following points:
    1st. The .decision below turns upon two grounds, each which is conclusive of the case, and the second, to wit, that « under the proceedings based on or originating from the insolvent petition of Williams and the act of Assembly applicable thereto, Oliver acquired a valid title to all the interest of James Williams in the fund in controversy,” resting upon the conjoint operation of the sale made by order of court and the act of Assembly, is not subject to revision here, because the effect of the sale so made was exclusively for the court below, and it,does not appear to what extent that consideration affected the decree of the Court of Appeals.
    2. The petition of the plaintiff in error does not specially set up or claim any right or title under the convention with Mexico, or the act of Congress, or the award made in pursuance of them, nor does the court below decide against any such right or title. The petition denies the title of Oliver’s executors, and rests its demands on the official character of the plaintiff in error, as giving him title under the insolvent laws of Maryland, and on the trusts of the deed of the 8th May, 1841, as constituting them trustees for him being so entitled, and the decision of the State court turns altogether on its construction of those insolvent laws, which confer, in its judgment, no title on the plaintiff in error. Udell v. Davidson, 7 How. 771; Smith v. Hunter, 7 How. 743; Maney v. Porter, 4 How. 55; McDonogh v. Millaudon, 3 How. 705; Downes v. Scott, 4 How. 502; Kennedy v. Hunt, 7 How. 593; Fulton v. McAffee, 16 Pet. 149; Coons v. Gallagher, 15 Pet. 18; McKenney v. Carroll, 12 Pet. 66; Crowell v. Randell, 10 Pet. 392; Montgomery v. Hernandez, 12 Wheat. 129; Williams v. Norris, 12 Wheat. 117; Hickie v. Stark, 1 Pet. 98; Mathews v. Zane, 7 Wheat. 206; Owings v. Norwood, 5 Cranch, 344; Smith v. the State of Maryland, 6 Cranch, 286; Plater v. Scott, 6 Gill & Johns. 116; Hall v. Gill, 10 Gill & Johns. 325; 1 U. S. Stat. at Large, 384.
    3. The decision of the State court, that Williams’s claim did not pass to his permanent trustee on account of its illegality and turpitude, does not conflict with the award, or the treaty or act of Congress under which the award was passed, because the commissioners_were empowered to decide nothing but the liability of Mexico for the claims set up against that republic, which were admitted by Mexico prior to the treaty, but long after Williams’s application; and because the said convention or treaty of 1839 and the proceedings under it cannot affect the question, whether the insolvent laws of Maryland did or did not operate in 1819 to transfer the claim to the trustee of Williams, the force and effect of these laws at the time when Williams applied, being the question before, the court below. Comegys v. Vasse, 1 Pet. 212; Sheppard v. Taylor, 5 Pet. 713; Frevall v. Bache, 14 Pet. 97; Maryland Acts of 1805, ch. 110, and 1816, ch. 221; Hall v. Gill, 10 Gill & Johns. 325.
    4. By the well-settled law of Maryland, as applicable to Williams’s and all other applications for the benefit of the insolvent laws at that period, (1819,) the plaintiff in error, as trustee of Williams, under his application, took title to no property, rights, or claims of Williams, the insolvent, but such as he had at the date of his application. At that period, Williams had ho possible right or. claim against the government of Mexico, which did not come into existence for several years afterwards, nor against the then existing government of Spain in Mexico, which Mina’s expedition was designed to overthrow; and the only alleged or possible claim he, (Williams,) then had was against Mina, under Mina’s contract with the ’ Mexican Company; and this contract with Mina, as the State court has declared >by its decision, was illegal, and created no right or claim in Gooding which could .or did pass to his trustee under his said application in 1819. The decision of the State Court, therefore, involved but two questions, the- first of which was, whether said contract with Mina vested any rights in Williams, at the date of his application,in 1819, which passed to his trustee ; qnd the second, whether the treaty and award, allowing as against Mexico the claim of the Mexican Company, under its said contract with Mina, had any .such operation or retrospect, as to that contract, as to validate it in Maryland as between the original parties, and to validate it ab initio, so as to vest in the trustee by retroactive rights and claims under that contract, which had no legal existence at the period of Williams’s application. The first question the defendants in error will maintain, is conclusively established by the decision of the State court, and is not open to inquiry here, as it involves nothing but the decision of the Maryland Court upon a Maryland contract, as to the rights created by it, and the transfer of those rights, in 1819, to the trustee of the insolvent. The second, and, as the defendants will maintain, the only.possible question open here, will be as to the operation of the treaty and award. And, as"the State court has not expressed any specific opinion as tothe treaty, or any right or' title set up or claimed under it, the jurisdiction can only be maintained, if at all, by establishing that, such a right or title was involved in the decision of the question, and that the treaty did so retroact as to validate said contract, ab initio, and vest in the .trustee of 1819 the rights, given by that contract, which rights, so vested in the trustee, the decision of the State court denied him. • And the defendants in error will maintain that, even if there be any such right, title. or privilege specially set up or claimed under the treaty, as to-, give jurisdiction, which they, deny, yet the treaty could not have, and was not intended to have, any such operation or retrospect. They will insist that the treaty and award under it had -and could have no other effect than to establish the liability of Mexico to pay that claim under the treaty, and settled nothing but the validity of that claim against Mexico; and that, by the award made under it to Glenn' and Perine, the trustees of the defendants, the defendants have the only right or title set up, claimed, or obtained under the treaty, which the plaintiff in error can controvert only by showing that - they were entitled to the claim thus allowed to the defendants, and that the treaty and award settled no rights as between the claimants, but merely, the obligation of Mexico to pay the claim. They will further insist that the question, whether the original contract between Mina and the Mexican Company;gave Williams any rights which passed to his trustee in 1819, was a question of Maryland law upon a Maryland contract, upon which Mexico’s subsequent recognition or agreement to pay that claim, as due by herself, could have no influence; that Mexico’s subsequent agreement to pay the claim herself had no bearing upon the question, as to what were the rights of Williams in Maryland under the original contract between Mina and the Mexican Company; and that the express waiver by Mexico, or even by the Spanish government which she overthrew, or the objection of illegality as far as she was concerned, could not affect the question of. the validity of the original contract, in Maryland and under the laws of Maryland, and, above all, could, not retrospect so as to repeal the laws of Maryland, by validating that original contract, ab initio, and passing the rights under it to the trustee of 1819. And, as the result of the whole, therefore,, the defendants in error will maintain, that the decision of the State Court has conclusively established the original invalidity of the contract, and'that the trustee took no rights under it; and that the treaty, if there be any question raised under- it, gave the plaintiff in error no right, title, or privilege which can affect that decision, or was denied'by the State court. Milne v. Huber, 3 McLean, 102; and authorities under 1st and 2d points.
    5. The act of Assembly of 1841, ch. 309, does not impair the obligation of contracts. Satterlee v. Mathewson, 2 Pet. 414; Watson v. Mercer, 8 Pet. 110.
   Mr. Justice NELSON

delivered the opinion of the court.

This case is not distinguishable from, the case decided at the last term of Gill v. Oliver’s Executors, and which was dismissed for want of jurisdiction.

It is reported in 11 How. 529. That case involved the right to the share of Lyde Goodwin as a member of the “ Baltimore Mexican Company” in the fund that had been awarded to the members of that company by the commissioners under the convention of 1839 with Mexico. Gill claimed it as permanent trustee under the insolvent laws of Maryland, the benefit of which Goodwin had obtained in 1817, on the assignment of all his property for the use of his creditors.

The executors of Oliver claimed the right of Goodwin to this fund under an assignment made by himself 30th May, 1829.

The money awarded by the commissioners to this company under the treaty, had, by the agreement of all parties claiming an interest in the same, been deposited in the Mechanics’ Bank of Baltimore, to be distributed according to the rights of the respective parties claiming it.

The Court of Appeals of Maryland decided against the right of Gill, as the permanent trustee of Goodwin, under the insolvent proceedings, and in favor of the right of the executors of Oliver.

The case was brought here by writ of error for review, and was dismissed as we have stated for want of jurisdiction.

The Court of Appeals of Maryland had decided against the right of Gill, on the ground that the contract made by the “ Baltimore Mexican Company” with General Mina, in 1816, by which' means were furnished him to carry on a military expedition against the territories and dominions of the King of Spain, a foreign prince with whom the United States were at peace, was in violation of our Neutrality Act of 1794, and consequently illegal and void, and could not be the foundation of any right of property,' or interest existing in Goodwin in 1817, the date of the insolvent proceedings, and hence, that no interest in the subject-matter passed to the permanent trustees, setting up a title under them.

After the revolutionary party in Mexico had achieved their independence, and about the year 1825 the public authorities, under the new government, recognized this claim of the Baltimore Company, as valid and binding upon it, and as such it was brought before the board of commissioners, under the convention of 1839, and allowed.

. It was not denied oh the argument, and, indeed, could not have been successfully, that the contract with General Mina in 1816, was illegal and- void, having been made in express violation of law: and hence that no interest in, or right of property arising out of it, legal or equitable, could pass, in 1817, the date of the insolvent proceedings of Goodwin, to the trustee, for the benefit of his creditors. But, it was urged, that the subsequent recognition and adoption of the obligation by the new government, had relation back, so as to confirm and legalize the original transaction, and thereby give operation and effect to the title of the trustee at the date mentioned.

And upon this ground it was insisted that the decision of the court below, denying the right of Gill, the permanent trustee, was a decision against a right derived under the treaty and award of the commissioners, which therefore brought the case within the 25th section of the Judiciary Act.

Undoubtedly, upon this aspect of the case, and assuming that there was any well-founded ground to be found in the record for maintaining it, jurisdiction might have been very properly entertained; and the question as to the effect of the recognition, of the obligation by Mexico, and award under the treaty in pursuance thereof, upon the right claimed by the trustee under the insolvent proceedings, examined and decided. The decision below, in this aspect of the case, must have involved the effect and operation of the treaty, and award of the commissioners under it.

But, a majority of the court were of opinion that no such question existed in the ease, or was decided by the court below; and that the only one properly arising, or that was decided, was-the one growing out of the contract with General Mina of 1816, and of the effect and operation to be given to it under the insolvent laws of Maryland.

The money awarded to the Mexican Company was a fund in court, and had been brought in by the consent of all parties concerned, for distribution according to their respective rights. The plaintiff in error claimed the share of Goodwin, under the insolvént proceedings of 1817, as trustee for the creditors through the contract with Mina — the defendants by virtue of an assignment from Goodwin himself in 1829, after Mexico had. recognized and acknowledged the claim as valid. The money had been awarded to certain persons “ in trust for whom it may concern,” without undertaking to settle the rights of the several claimants. The court, in giving effect and operation to the insolvent laws of Maryland, as to the vesting of the property -and estate of the insolvent in the hands of the trustee, for the benefit of the creditors, held, that no interest or right could be claimed under them through the contract of 1816, but that the right of Goodwin to the fund passed by his assignment in 1829 to the defendants.

Mr. Justice Grier, in» delivering the opinion of the majority of the court, speaking of that decision, observes, that in deciding the question, the courts of Maryland have put no construction on the treaty or award asserted by one party to be -the true one, and denied by the other. It was before them as a fact only, and not for the purpose of construction, Whether this money paid into the court under the award, and first acknowledged by Mexico as a debt in 1825, existed as a debt transferable by the Maryland insolvent laws in 1817, or whether it,.for the first time, assumed the nature of a chose in action transferable by assignment after 1825, when acknowledged of record by Mexico, and passed by the assignment of Lyde Goodwin to Robert Oliver, was a question wholly decors the treaty and award, and involving the construction of the laws of Maryland only, and not of any treaty, Or statute, or commission, under the United States. And Mr. justice Woodbury, who dissented on the question of jurisdiction, observes, that the claim, so far as it regards the enforcement of the treaty with Mexico, does not seem to have been overruled in terms by the State Court. That court did not decide that the treaty was corrupt or illegal, or in any way a nullity, when they held that the original contract violated the laws of neutrality. So far, too, as regards the award made by the commissioners, that the Baltimore Mexican Company, and their legal representatives, had a ju„.b claim under the treaty for the amount awarded, it was not overruled at all.

Again, he observes, that all must concede, that the State court speaks in language- against the Mina contract alone as illegal, and in terms do not impugn either the treaty or the award; and it is merely a matter of inference or argument that either of these was assailed, or any right properly claimed under them overruled. .But it is true the court held that Oliver’s executors, rather than the appellant, were entitled to the fund furnished by Mexico, ánd long subsequent to Mina’s contract; but in coming to that conclusion, they seem to have been governed by their own views as to their own laws and the principles of general jurisprudence. The treaty or award contained nothing as to the point whether Gill or Oliver’s executors had the better right to his share, but only that the Mexican Company and their legal representatives should receive the fund. This last the court did not question.

The decision of the court below, therefore, not involving the validity of the treaty, or award of the commissioners, or lawfulness or character of the fund, but simply the right and title to the respective shares claimed in it, after the fund had been paid over by the government, and brought into court for distribution according to the agreement of all concerned, and which distribution depended upon the laws of the State, a majority of the court, taking this view of the case, held, that there was a want of jurisdiction, and dismissed the writ of error; and that the decision, whether right or wrofig, could not be the subject of review under the 25th section of the Judiciary Act, as it involved no question, either directly or by necessary intendment, arising upon the treaty or award, or connected .with the validity of either; and if this court were right in the view thus taken of. the case, there can be no doubt as to the correctness of the conclusion arrived at. A different view of the case might, of course, lead to a different conclusion.

Now, in the case before us, the plaintiff in error claims the .share of John Gooding, one of the members-of the Mexican Company, as permanent trustee' under the insolvent laws of Maryland, having been appointed 29th January, 1842, Gooding having taken the benefit of these acts, and assigned his property for the benefit of the creditors as early as 1819.

George Winchester had been previously appointed provisional. trustee on the 23d June, 1819, to whom- all property had been assigned, and on the 2d May, 1823, had been appointed permanent trustee, and.gave a bond for the faithful execution of his duties without surety, and on the 2d April, 1825, sold the interest of Gooding in this share to Robert Oliver, under an order of sale made by the Baltimore County Court, having jurisdiction in the matter, for the consideration of $2,000. And in 1841 the Legislature of Maryland passed a law confirming this sale, a doubt having -been suggested as to its validity, for want of a surety to the official bond of the trustee.

In this state of the case the Court of Appeals of Maryland held, that the interest of Gooding in the Mexican contract did not pass, under their insolvent laws, to the plaintiff in error as permanent trustee, for the reasons assigned in the previous case of Gill v. Oliver’s Executors. And that if it did or could have passed under these laws, it passed to Winchester, the previous trustee, in connection with the confirming act of the legislature of 1841.

It is apparent, -therefore, if the decision in the case of Gill-v. Oliver’s executors involved no quéstion that gave to this court jurisdiction to revise it here, as has already been decided, none exists in the case before us; for, as it respects the question of jurisdiction, the two stand upon the same footing, and involve precisely the same principles.

■ The -counsel for the plaintiff in error sought to distinguish this case from the previous one, and to maintain the jurisdiction of the argument, upon-the ground that the act of the Legislature of Maryland of 1841, confirming the authority of Winchester, the permanent trustee, was in- contravention of a provision of the Constitution of the United Sta+es, as a “ law impairing the obligation of contracts.”

But, admitting this to be so, (which we. do not,) still the admission would not affect the result. For the decision upon the previous branch of the case denied to the plaintiff any right to, or interest in, the fund in question, as claimed under the insolvent proceedings, as permanent trustee, and hence he was deemed disabled from maintaining any action founded upon that claim.

It Was of no importance, therefore, as it respected the plaintiff. in the distribution of the fund, whether it was rightfully or wrongfully awarded to Oliver’s executors.' He had no longer any interest in the question.

- In order to give jurisdiction to this court to revise the judgment of . a State court, under the 25th section of the Judiciary Act, a question must not only exist on the record, actually or by necessary intendment, as mentioned in that section and the decision of the court as there stated, but the .decision must be controlling in the disposition of the case; or, in the language of some of the cases on, the subject, “ the judgment of the State court would not have been what it is, if there had not been a misconstruction of some act of Congress, or a decision against the validity of the right, title, privilege, or exemption set up under it.” 3 Pet. 292, 302. Or, as stated by Mr. Justice Story, in Crowell v. Randell, (10 Pet. 392,) where he reviewed all the cases, it must appear “ from the facts stated by just and necessary inference, that the question was made, and that the court below must, in order to have arrived at the judgment pronounced by it, have come to the very decision of that question as indispensable to that judgment.” And in a recent case, (5 How. 341,) following out the doctrine of the previous cases, It is not enough that'the record shows that the plaintiff in error contended and claimed that the judgment of the court impaired the obligation of a contract, and violated the provisions of the Constitution of the United States, and that this claim was overruled by the court; but it must appear by clear and necessary intendment, that the question must have been raised, and must have been decided, in order to induce' the judgment.”

It is not intended,.nor to be understood, from these cases, that the question, thus material to the decision arrived at, must be confined exclusively and specially to the construction of- the treaty, act of Congress, &c., in order to give the jurisdiction,- as this would be too narrow a view of it.. Points may arise growing out of, and .connected with the general question, and so blended with it as' not to be separated, and, therefore, falling equally within the decision contemplated by the 25th section. The cases of Smith v. the State of Maryland, 6 Cranch, 281, and Martin v. Hunter’s Lessee, 1 Wheat. 305, 355, afford, illustrations of this principle.

Now, as . the decision of the question involving the right and title of the plaintiff in error to Gooding’s interest in this fund under the insolvent proceedings was against him in the court below, and was one which, in our judgment, involved only a question of State law, and, therefore, not the subject of .revision here, and was conclusive upon his rights, and decisive of the case, it follows that we have no jurisdiction within the principle ' of the cases to which we have referred; for the determination of the court upon the validity of the act of the legislature of 1841 in no way controlled the judgment at which the court arrived, as respected the plaintiff. ■ That turned upon the decision as to the right of the plaintiff to the fund under the insolvent proceedings, as permanent trustee of Gooding, and whatever might have been the opinion of the court upon the other question, the result of their judgment would have been the same.

For the reason, therefore, that this case falls directly within the decision of Gill v. Oliver’s Executors, and is not distinguishable-from it, the case must take the same direction, and be dismissed for want of jurisdiction.

Order.

This causé came on to be heard on the transcript of the record from the Court of Appeals of the State of Maryland for the Western Shore, and was argued by-counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, for the-want of jurisdiction.


source: Caselaw Access Project

license: Public Domain

text:
    Nathaniel Williams, as permanent Trustee for the Creditors of John Gooding, an Insolvent Debtor, v. Charles Oliver, Robert M. Gibbes, and Thomas Oliver, Executors of Robert Oliver, and John Glenn and David M. Perrine, Trustees.
    The decision in the preceding case of Williams, Trustee, v. Oliver’s Executors, again affirmed.
    This case was also, like the preceding one, brought up from the Court of Appeals of Maryland, ,bv a writ of error issued under the 25th section of the Judiciary Act.
    The circumstances of the two cases were the same. In both, Winchester was the trustee who sold, the share to Oliver, and the same act of Assembly,applied to both. The judgment and reasons of the Court of Appeals covered both cases, and they were argued in this court together by the same counsel.
   Mr. Justice NELSON

delivered the opinion of the court.

This case involves the same principles as the case of Wil.liams, permanent Trustee of James Williams, already decided; and we refer to the opinion there delivered for our decision in this case.

The case is dismissed for want of jurisdiction.

Order.

This cause came on to be heard on- the transcript of the record from the Court of Appeals of the State of Maryland for the Western Shore, and was argued by counsel.- On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, for the want of jurisdiction.


author: Mr. Justice GRIER

text:
    Greenberry Dorsey, Complainant and Appellant, v. Samuel Packwood.
    An agreement, whereby the purchaser of a plantation “bound himself to transfer to his son-in-law one half of the plantation, slaves, cattle, and stock, as soon as the son-in-law should pay for one half of the cost of said property, either with his own private means, or with one half of the profits of the plantation,” was deficient in mutuality. The son-in-law was not bound to render any services nor pay any money. It was a nude pact.

    It was not an alternative obligation upon the son-in-law, because the-election to pay his half out of the profits would have been merely paying with another man’s 'money.
    Even if the agreement possessed mutuality, there was no performance, or offer of performance by the son-in-law for twenty-seven years.
    Moreover, fifteen years after the agreement, when the plantation was likely to prove a ruinous purchase, the son-in-law abandoned and released all his claim.
    This was an appeal from the Circuit Court of the United States for the Eastern District of Louisiana.
    The leading facts in the case are stated in the opinion of the comb, to which the reader is referred.
    Upon the hearing in the Circuit Court, the bill was dismissed, and Dorsey appealed to this comb.
    It was argued by Mr. Henderson for the appellant, and Mr. Butler for the appellee.

      Mr. Henderson, for the appellant,
    filed an elaborate argument, consisting of upwards of one hundred pages, in which he examined the grounds upon which Dorsey’s claim was resisted.
    He said, our claim is chiefly resisted on three grounds.
    1. That the agreement is Void for want of valuable cause or consideration.
    2. If ever valid, the right has been abandoned by complainant.
    3. If ever valid, the right has been legally released by complainant.
    Other objections are interposed to our recovery by the defendant, and some of them as if they separately constituted distinct bars to our suit; but, on examination, it will be seen that, beside the three grounds of defence above specified, among the other objections, one only has any plausible claim of being separately considered a bar to the action, viz., Dorsey’s intervening bankruptcy. We think, however,' this point of bankruptcy is easily answered, if we succeed in overcoming7 the first three objections.
    We admit, too, that, to maintain our action, the agreement of 16th April, 1821, must appear to have been made for a valuable consideration, and we must also overcome the defendant’s pleas of abandonment and release.
    First, then, as to the consideration for said agreement. The agreement being signed by both parties, binds each equally to the terms, conditions, and stipulations imposed on e.ach, and confers the rights either has conceded to the other. We -admit Dorsey’s rights are more clearly expressed in this contract than his duties; but it is plain enough that Dorsey accepts the obligation Packwood has incurred, to convey to him, on the terms expressed, one half of the property mentioned. And it is as plain in sense and meaning, though not as explicit in expression, that Dorsey does undertake to pay for one half the cost of said property, in one of two ways, viz., either from his “ own private means, or with the one half of the profits of the plantation.” Under the first alternative, it is obvious he might have paid up one half in advance of the payments .due to Lafarge, though the duty would have been fairly performed by meeting those payments as they became due, or by paying up the half due after the profits had paid part.
    But the alternative in the agreement was at Dorsey’s election, 1 Poth. Ob. p. 284, § 3; .Old Code La. p. 276, art. 89, 90.
    And it- is the plain language of the contract, that Dorsey might “ pay for one half the cost of said property with the one half of the profits of the plantation.” The evidence fully shows he elected this alternative, and the question now is, how might he thus pay for one half ? He could only do this by aiding to produce results and profits from the plantation, and by husbanding and appropriating their proceeds to this end. To do this was the consideration, the necessary consideration, pledged and promised, as resulting from this alternative of the agreement. Hence the consideration, we. insist, appears on .the face of the agreement. In the first alternative, to pay one half in money; in the second, in such services as would make the plantation pay one half from half its profits. And his rights, duty, and services, under this second alternative of the agreement, go hand in hand.
    And there can be no doubt that, under any exigency which might have arisen, Dorsey could have been obliged by the courts to perform his part of the agreement, or to account in damages, of to have his contract cancelled. Just as certainly so as in any other case of contract for personal services.
    But suppose it were the meaning of this agreement, as defendant’s counsel has argued, that Dorsey might at any time have discharged himself from its obligations, by forfeiting all he had done or paid toward it; yet it is valid in this aspect as a lawful agreement as in any other; and most conclusively is, after it has been. fully executed by Dorsey. 13 La. Rep. 249; 10 Rob. R. 369, 370; Code La. 1920, 1921; 11 Mart. 221; 4 N. S. 266; Jer. Eq. 436; 1 Madox, 376, 377; 1 Edwards, Ch. R. 1 to 7.
    . A consideration, then, is apparent on the face of the agreement, upon a fab interpretation of its terms by the court; and the evidence fully shows that the parties, too, have given it this construction, and the manner in which they have understood and executed it, shall bind them. On this rule, that the practical construction of a contract by the parties shall govern, see Old Code La. p. 27Q, art. 56 to 64; New Code of 1825, art. 1051; 3 Rob. R. 187, 188; 10 Rob. 369, 370; 12 Rob. 170; Story’s Eq. \ 168; 3 Story’s R. 263, 264, 269, 270,271, 282, 285.
    But, by the local law of Louisiana, not only is it unnecessary the consideration should appear in a written agreement, but in its absence a consideration is presumed. 12 Rob. R. 329; 5 La.-78.
    Assuming, however, that the burden of proof is on Dorsey, to distinctly show consideration, yet, by the laws of Lousiana, the rule is clear, we may show consideration for the contract by parol. Old Code La. p. 264, art. 31, 32; Code of 1825, art. 1757,1887,-1888,-1890, 1894,1897.
    . Same rule, 1 Greenl. § 215. And acts done in execution of a contract rpáy be proven by parol. 13 La. R. 264.
    That we rendered the services on which we rely to show consideration, is abundantly confessed by the defendant in his answer, though he assumes those services were gratuitous.
    [The counsel then went into a minute examination of the answer and evidence, to show that Dorsey was expected to render, and did render, financial and other services of a personal nature in the concern and business of the plantation.]
    With respect to the second proposition, viz., that Dorsey abandoned the concern by advising Packwood to sell and get out of the scrape, the counsel contended that the subsequent correspondence and transactions of Packwood showed that he did not so construe the letter at the time, but that such construction was an after-thought.
    With respect to the third proposition, viz., the release, the counsel contended that it was given to Theodore, the son of Packwood, out of friendly feelings to him, and to promote his interest; _and that as it affected the father, it was merely donative and void, because not an authentic act, and not accepted by Packwood.
    At the date of this paper, Dorsey’s rights under the agreement of 1821, had, according to complainant’s calculation, become equitably consummate and complete. If the cost of the plantation had then been paid for from its profits, the condition of. his purchase was accomplished. 13 La. 261; 1 Domat, p. 71, § 2, and p. 48, §■ 8.
    In such aspect the right had become an equitable title — an informal title to property. 3 Mart. N. S. 337; 2 La. Rep. 460, 461; 3 La. 397; 13 La. 261.
    From this time at least, if not from the beginning, Pack-wood held the title in trust, as to one half, for Dorsey. 1 Sch. and Lef. 214, 226, 227; 7 Mart Rep. 244; 10 La. 420.
    And courts of the United States uniformly distinguish legal from equitable titles in Louisiana, as elsewhere. 3 How. 512, 514, 515. It is especially so of a trust which results from fraud. 2 How. 650; 10 La. 420.
    The contract to sell on a suspensive condition, when the condition is performed, becomes equivalent to a contract to sell 'without a condition. And the latter contract, in Louisiana, is a sale. Old Code, p. 346, art. 4, 9.
    At common law, a release is known as a designated instrument of conveyance of a right in land; a deed, transmissive of title. 2 Black. Com. 324. It is also used at common law for remitting and discharging personal obligations. Used for either object it must be a deed, under seal, the seal importing a'consideration, conclusive at law, except for fraud. If not under seal, though upon valuable consideration, it fails as an instrument to convey title to land. But if without seal, and without consideration in fact, it is void, and no proof of purpose or intention can sustain it.
    In the civil law system, the release is utterly unknown as a technical instrument of conveying or relinquishing a right or title in land. In this system, its more accurate name is remission ; and its functions are exclusively limited to the remission of debts and personal obligations. C. C. arts.- 2195, 2202.
    Limited to these objects, it .is regarded as the act of simple donation, and governed by the laws and rules of donation. 1 Poth. Ob. p. 310, 312.
    The office of release and remission in the civil law does not even extend to the discharging of accounts between parties. Such acts are denominated “transactions,” (C. C. art. 3038, 3050,) though governed'by much the same rules as a release in like case at common law; inasmuch as renunciation thereby made, extends only to rights and claims actually settled. And as conclusive proof, that the doctrine of release and remission applies only to debts and personal obligations, the Civil Code requires “ an act shall be passed before a notary-public and two witnesses of every dor ation inter vivos of immovable property, of slaves or incorporate things, such as rents, credits, rights, or actions, under the penalty of nullity.” Art. 1523, 1525. A donation inter vivos, even of movable effects, will not be valid unless an act be passed of the same, as is before prescribed. Such an act ought to contain a detailed estimate of the effects given.”
    It being seen, then, that a release, in the civil law, is but a donation, it is obvious that if it applied to lands, slaves, and goods, which it does not, still, a donation ,of lands, slaves, or goods, or rents, must be executed before a notary, etc., or it is void. Hence, this instrument is null and void under the local law. And this is also shown- by the manuscript record in this case (p. 340, 342) of Packwood v. Heirs of Alice Packwood, and the decisions of the Court there pronounced and decided; also, (9 Rob. R. 416,) that the right acquired to vest estate by an accepted bid at auction, is such a title as the purchaser could not relinquish by parol agreement, but. a retrocession in writing must be made. Art. 2415, 2586. And Dorsey’s rights, vested by agreement of 1821, could not require less than a like retro-cession, with cause and description of property relinquished.
    But though a release is not a designated instrument of conveyance at the civil law, we do not pretend but that an instrument resembling it in form of expression may be a conveyance under private signature, as per C. C. art. 2415.
    In such case, however; it must.have all the essentials of a sale, viz.: it must be for a price. C. C. art. 2414,2439. And this price must be stipulated on agreement. Art. 1792, 1794, 2431, 2439. And such sale implies that the vendor, and not the vendee, was the owner. Art. 2418.
    Now, the reverse of all these qualifications to a sale are either proved, or averred and admitted by the defendant in this case. As to ownership, for instance, defendant claims to have been sole owner since 18th January 1825. Ans. p. 58.
    Of the legal title, as distinguished in equity, this is literally true, as he has held this from date of purchase in 1821. But defendant means the relinquishment of Dorsey’s equitable contingent interest. Occupying such grounds, he cannot say the paper of 1836 was a sale. This paper has, therefore, no civil-law basis for validity, but is null per se. And viewed as a release, at common law and in equity, it is clearly null and void for want of a seal, or at all events for want of a consideration which a seal at common law implied. 13 Johns. R. 87; 7 Id. 169; 1 Cow. 122; 5 Watts & Serg. 486.; C. C. art. 1887; 21 Pick. R. 101. 2 Sumn. R. 11; 8 How. 158, 159.
    And a release, like a repeipt, is only held valid for the causes and matters computed on at the time. 1 Ed. Ch. RC38, 39, and cases cited; 8 How. 158; 13 Conn. R. 136; 7 Watts & Serg. 317. In this it precisely resembles the “ transaction,” or compromise- of the civil law. C. C. art. 3040, 3048.
    And a release must be just, equitable, and meritorious, or it is held for naught, and especially in matters of trust. ’ 1 Sch. & Lef. 226; 16 Pet. R. 276-279; 4 How. R. 561, and the case of Kennedy’s Heirs v. Collins, manuscript decision, Sup. Ct. U. S., Dec, Term, 1850,10 How. 174. Release explained, put on its merits, and annulled. 3 Story’s R. 268, 269.
    Upon all the preceding authorities, it is obvious that this pretended release is utterly null — shadow, without substance.
    It is null, also, upon the pleadings. The bill attacks this release for the directly imputed reason, that it is destitute of all consideration. The answer (as in the place of a plea) does not deny this, but avers the paper is a release, notwithstánding this defect.
    Such form of defence is held for naught, and no proof could remedy it. The plea, in such case, must aver and set forth what the consideration was. Story’s Eq. PL § 796, 797; Mitf. Pl. 261-263, 322-324.

      Mr. Butler, for the appellee,
    made the following points amongst others which are omitted, (because the decision of the court did not turn upon them.)
    II. The bill does not allege any substantial act of part performance by complainant, nor does it contain any offer to pay the one half of the cost of the property. Upon such a bill, specific performance of the agreement of. April 16, 4821, would not have been decreed, even had the bill been filed before 1825.
    First. Packwood promises to transfer to Dórseyj" for a certain price to be paid by him, the one half of the plantation, &c. Such a promise, by the law of Louisiana, is a sale; and to entitle the vendee to a specific performance, he must show that he has paid, or must offer to pay, the stipulated price. Old Civil Code of Louisiana, in force in 1821, 346, _art. 9; Louisiana New Civil Code, art. 2437; Code Napoleon, art. 1589.
    Secondly. So far as the agreement provides for the payment of the price by the one half the profits, or promises to account therefor, it creates, not a joint interest or partnership, as assumed in the bill, but an informal and void donation.
    1. It is not a contract of partnership, because Dorsey does not bind himself to put any thing into it. Old Civil Code, 388, art. 3 ; New Civil Code of La. art. 1757 ; Domat, Liv. 1, tit. 8, § 2, art. 12; Pothier, Traité du Contrat de Société, ch. 1, § 3, art. 8; Story on Partnership, § 8,15.
    2. It is a donation, because nothing is given or promised by Dorsey; and as such it is void, because not in the form required by the law of Louisiana. Old Civil Code of Louisiana, p. 208, arts. 1, 2, pp. 218, 219; arts. 43, 52; pp. 220, 221; arts. 53, 65.
    Thirdly. The agreement was without consideration or mutuality; and Courts of Equity will not decree specific performance-of such argreements.
    1. The agreement on the part of Packwood, was wholly gratuitous. Such agreements, if actually executed, and if otherwise unobjectionable, will be sustained; but if, as in the present case, merely executory, they will not be enforced. 2 Story’s Eq. Jur. § 787, 793, a; Wycherley v. Wycherly, 2 Eden’s R. 177; Colman v. Sarrell, 1 Ves. Jun. 54; Ellison v. Ellison, 6 Ves. 662; Bunn v. Winthrop, 1 Johns, Ch. R. 329, 336, 337; Minturn v. Seymour, 4 Johns. Ch. R. 497; Acker v. Phœnix, 4 Paige, R. 305; Black v. Cord, 2 Harr. & Gill, 100; Caldwell v. Williams, 1 Bailey’s Eq. R. 175.
    The modern cases, in which executory agreements, in favor of children and other relatives, though voluntary, have been enforced, besides being, some of them, of questionable authority, all proceed on the ground that such agreements being made for the benefit of persons for whom the party was bound to provide, are founded on a consideration, meritorious, though' not on a valuable, and are, therefore, inapplicable to the present ease. Story’s Eq. Jur. § 793, b ; White’s Lead. Cas. in Eq. 49 Law Lib. 167,193, Eng. ed., 192, 213, Am. ed.; Id. for Am. Cas. pp. 213, 220.
    2. The agreement, as interpreted by the allegations and claims of the bill, is wholly without mutuality, and, therefore, equity will not enforce it. 2 Story’s Eq. Jur. § 742,750, 769, 771, 776, 790, 793, 796; Armiger v. Clark, Bunbury’s Rep. 111; Lawrenson v. Butler, 1, Sch. and Lef. 13; Withy v. Cottle, 1 Sim. & Stu. 174; Howell v. George, 1 Madd. Ch. R. 12; Adderly v. Dixon, 1 Sim. & Stu. 607; Martin v. Mitchell, 2 Jae. & Walk. 413; Flight v. Bolland, 4 Russell’s R. 298; Hamilton v. Grant, 2 Dow’s P. C. 33 ; Sugden’s Law of Prop, (in House of Lords,) 48 Law Lib. N. S., 58 Eng. ed., 69 Am. ed.; Benedict v. Lynch, 1 Johns. Ch. R. 373; German v. Machin, 6 Paige, 292, and cases cited by Ch. Walworth; Woodward v. Harris, 2 Barbour’s Sup. Ct. R. 442; Phillips v. Berger, Id. 610.
    III. The letter of complainant of the 18th of January, 1825, and his subsequent correspondence- and acts amount to a full waiver and abandonment of all rights and claims of every nature and description under the agreement. As to the effect of waiver and abandonment in cases of specific performance, see 2 Story’s Eq. Jur. § 770, 771, 776, and cases there cited. See also cases cited post, point 7.
    V. If the complainant, under the agreement of 1821, had any rights in the plantation, &c., they were all released by the instrument of the 28th of January, 1836.
    1. Such an instrument, by the law of Louisiana, is valid and effectual as a remission or release, though without consideration, and not under seal. Civil Code of Louisiana, arts. 2,126, 2,195 to 2,202,3,061, and particularly art. 2,197. French — “ La remise d’ime dette” &c.; English — “ The release or remission of a debt,” &c. Id. arts. 812 to 816. In each art. French — “la remise”; English — “the release.” 4 Favard de Langlade, 831,-word “remise.” Word “remise,” in Pothier on Obligations, as translated by Evans and Martin.
    2. Such conventional releases are favored by the civil law. Bardet, tom. i. liv. 3, ch. 24, arret du 8 Feb. 1629; Moulton v. Noble, 1 Ann. Rep. of La. 192, and authorities there cited by Eustis, Ch. J. Bourgoin v. Bourgoin, Sirey, 1814, 1st part, p. 85; 10 Duranton, 321, Paris ed. of 1844, No. 339; Ardouin v. Ardent, in Court of Cassation, 2d April, 1823, Sirey, 1823, 1st part p. 238, 2d part p. 113, quoted and approved in 4 Favard de Langlade, p. 821, 17 Ledru Rollin, 1006, 10 Dalloz, 612.
    3. Such a release is valid, though the contract it was intended to release remain in the hands of the obligee or of a third person. Authorities above cited under this point; 12 Duranton 4.41, Paris ed. of 1844, No. 360.
    VII. Complainant’s claim is wholly barred by prescription and lapse of time.
    1. The respondent having acquired the plantation, &c., in good faith and by a just title, and the complainant being a resident of Louisiana, his claim was barred by the prescription of ten years, provided by the law of that State. Civil Code of Louisiana, arts. 3,442 to 3,464,3,494 to 3,498,3,508 to 3,511; 2 Story’s Eq. Jur. § 1,520 and note 3.
    2. Independently of positive prescription, the general doctrines of the Courts of Equity-forbid, after such laches, such lapse of time, and such changes in the property as have occurred in this case, the granting to the complainant of any part of the relief sought by him. 2 Story’s Eq. Jur. § 723, and sections cited under point 2; Id. § 1520, note 3; Smith v. Clay, 3 Brown’s Ch. R. 639 n. ; Hovenden v. Annesly, 2 Sch. & Lef. R. 636; Brashier v. Gratz, 6 Wheat. 528; Piatt v. Vattier, 9 Pet. 405, 416; Taylor v. Longworth, 14 Pet. 174; McKnight v. Taylor, 1 How. S. C. R. 167; Wagner v. Baird, 7 Id. 235; Maxwell v. Kennedy, 8. Id. 221.
   Mr. Justice GRIER

delivered the opinion of the court.

The record of this case covers 840 pages; and the abstracts and briefs of counsel, nearly three hundred. But as the merits of the case, when extricated from the mass of matter with which it is enveloped, depend on the application of undisputed principles and axioms of the law, to a few leading facts, it will not be necessary that our statement of it should be proportionally voluminous.

• Dorsey, the complainant and appellant, filed his bill in the Ci: cuit Court of Louisiana in March, 1848, claiming the specific execution of a contract in writing, executed on the 16th of April, 1821, which is as follows;

“Samuel Packwood, now in the city of New Orleans, having lately purchased the plantation heretofore belonging to John La Farge, situated below town on the right bank of the river, about eleven leagues, binds himself, his heirs and executors, to transfer unto G. Dorsey, his heirs and executors, one half of the plantation above mentioned, also one half of the slaves, cattle, and stock, farming utensils, &c., &c., as soon as said G. Dorsey shall pay for one half of the cost of said property, either with his own private means, or with one half of the profits of the plantation; but it is agreed upon and well understood by said G. Dorsey, that Samuel Packwood, until said transfer is made, has the right and privilege of selling and disposing and transferring of said plantation to any person or pérsons that he maj/r think proper to sell to, without consulting or asking the consent of said G. Dorsey, and the consent of said G. Dorsey shall not be necessary to make the sale good; and it is further agreed upon, that Samuel Packwood is to have the entire and complete control of' said plantation, and every thing that appertains to it, until said transfer is made to G. Dorsey; but if said Packwood should sell at any, time previous to said transfer to G. Dorsey, he shall be answerablé for and shall account to said G. Dorsey for one half of the net profits of said sale.”

At the time this paper was executed, Packwood resided in New "York, but was owner of valuable property in New Orleans, from which he derived his principal income.' Dorsey was his son-in-law, and a member of the mercantile firm of Morgan, Dorsey & Co. This firm was in good credit, and acted as the financial agent of Packwood, lending him their acceptances, and advancing money for him, to enable him to complete his purchases, up to the time of their failure and bankruptcy in 1825. At this time the firm was largely in advance to Packwood; but the balance due was afterwards paid by him, with interest. Dorsey had been chiefly instrumental in persuading Packwood to make this purchase, and owing to his expectation of a share in the speculation in case it should turn out to be profitable, the commissions charged for these financial accommodations were probably not so great as they otherwise might have been, and for the same reasons, also, Dorsey took an interest in the management of the plantation, made additional purchases, gave advice and superintendence, without at first making such additional charges as might have been made for similar services rendered to a stranger.

When this purchase was made, the parties seera to have expected that- after the first payment of $25,000 was made by Packwood, the profits of the plantation might in a great measure be depended on, to liquidate the balance of its cost. But they were greatly deceived in this expectation. For many years the crops did not equal the expenses; so that, at the time of the failure of the firm of Morgan, Dorsey &• Co., in 1825, Packwood was in debt for the plantation and the additional purchases of land and negroes, a sum exceeding one hundred and fifty thousand dollars, ($150,000.) Dorsey had paid nothing, and was then unable to pay any thing. The speculation seeming likely to turn out disastrous, he ceased to expect any advantage from it, or claim any interest in it, and accordingly, he adviséd Pack-wood to sell the greater part, if not all of it, “with the hope that he (Packwood) might get out of the scrape in four or five years.” Indeed for some years after this it appeared doubtful whether Packwood would be able to extricate himself from his pecuniary embarrassments consequent on tnis purchase. He finally succeeded, however, after a further snuggle of some twelve or fifteen years, by sales of his other property and the profits of the plantation, to rescue himself from impending ruin, and pay the debts in which he had been involved. During all this time, Dorsey was unable to help Packwood out of his difficulties, and ceasing to consider his expectations from Pack-wood’s contract with him to be of any value, and as it might be considered a cloud upon the title, at tile request of Packwood he voluntarily executed and sent to him the following release, witnessed by his wife: —

“ This is to certify, that I hereby abandon and release unto Mr. Samuel Packwood, any claim I have or might have to any interest in or to his plantation, in the parish of Plaquemines, or profits of the same, by virtue of any written document he may have given, or verbal promises made upon the subject.”
New Orleans, 28th January, 1836. G. Dorsey.
Witness : E. H. Dorsey.

From this time till 1838, Dorsey had the agency of the plantation under a power of attorney from Packwood. In that year Packwood cancelled his power of attorney, and appointed another agent, alleging that Dorsey had misused his power by indorsing his principal’s name to sustain his private credit. This was the beginning of a coldness between the parties, which, after the refusal of Packwood to incur liabilities for Dorsey in 1840, and after the death of Mrs. Alice Packwood, the mother of Mrs. Dorsey, and the marriage of Packwood to a second wife, became a bitter family quarrel, followed by much litigation between the present parties. The nature and result of these suits, it is not necessary, for the'purposes of the present case, to specify. Suffice to say, that Dorsey now revived his claim to a share in the Myrtle Grove property, on the ground that his half of the purchase-money had been : paid by the rents and profits of the estate, and finally instituted this suit in March, 1848.

In the original bill, the complainant founds his title to relief on an alleged lost agreement, dated oh the 12th of April, 1823. But after the production by the respondent, of this instrument, dated 16th of April, 1821, he amended his bill, and made his claim under it. The respondent, in his answer, denies the existence of any other agreement either written or parol, and there is no proof to show the existence of either. The right of the complainant to relief will therefore depend on this instrument of writing, in connection with the facts, a brief outline of which we have endeavored to give, so far as we'think them material to the decision of the cause.

There is no' allegation in the bill, or pijroof, that any clause was omitted from this instrument, either tMough mistake or inadvertence. It is signed by both parties in presence of attesting witnesses; and is expressed in clear and precise terms. But there is one characteristic necessary to give it validity as a binding contract, in which it is entirely deficient. It wants mutuality. It imposes no obligation on Dorsey whatever. He is not bound either to “render services or pay money as a consideration for one half the land. . Packwood could not support a suit upon it to compel Dorsey to do any thing. It ■ is not an alternative obligation, because Dorsey is not bound to perform either alternative. The allegation that “ Dorsey elected the alternati.ve of paying for the land out of the profits,” (or, in other words, Vith Packwood’s money,) amounts only to this: That he was willing to accept one half of the plantation as- a gift, but would pay no part of the purchase-money out of his own pocket. Nor is there any evidence, that Dorsey ever notified Packwood of his election to do any thing. On the contrary, in January, Í825, before the failure of the firm of Morgan, Dorsey & Co., when the speculation appeared likely to be a ruinous one, he elects to have Packwood “get out of the scrape,” the best way he could, and his release, given in 1836, shows his election to claim -no interest in the property whatever. But even assuming that ■ Dorsey was bound by this contract, it cannot come within the category of alternative obligations, where one of the alternatives was to pay with Packwood’s money, and give nothing of-his own.

“ An obligation,” says Pothier, “is not alternative, where one of the things is not susceptible of the obligation intended to be contracted; but in this case the obligation is a determinate obligation of the other. Therefore it was decided, in 1. 72, § 4, if. de sol, that if a-person promised me in the alternative two things, whereof one belonged to me already, that he had not the liberty of paying that in lieu of the other — not even although it might afterwards cease to belong to me; because this not being, at the time of the contract, susceptible of the obligation contracted'in my favor, the other only was due; cum re sua nemo deberi possit.” Evans’s Pothier, Part 2d., C. 3, Art. 6, No. 249. Assuming the obligation to be mutual, Dorsey was bound to “ pay with his own private mealns one half of the cost” of the property, or. offer to do it within a reasonable- time, before he could claim the interference of a court of equity to-enforce a specific execution of this contract. Equity will not decree the specific execution of-mere nude pacts, or voluntary agreements not founded on some valuable or meritorious consideration. The same rule.is applied to imperfect gifts, inter vivos, to-imperfect voluntary assignments of debts or other property, to voluntary executive trusts, and to voluntary defective conveyances.

■ When the obligation is mutual, the party asking a specific performance must show that he has been in no default in not having performed the agreement on his part, and that he has taken all proper steps towards the performance. He must show himself desirous, prompt and eager to perform the contract If he has been guilty of gross laches, .or if he applies for relief after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed.

It is clear, then, from this statement of the facts and law as they affect this case, that the complainant has- not shown a case which will entitle him to a decree in his favor.

For 1st. If he was bound at all, he has shown no performance, or offer of performance, after an interval of twenty-seven years.

Sdly. The agreement by Packwood to convey one half of the land purchased and paid for by himself, in consideration of a payment “from the profits of the plantation,” which equally belonged to himself, was but the promise of a gift, a nude pact which equity will not enforce.

3dly. The release of the complainant in 1836, fifteen years after the agreement, when he had paid nothing for the. land, either out of his own pocket, or even “ by the profits of the plantation,” (if such could be called a payment) was a voluntary abandonment of all claim under it. Whether, if he had paid one half the purchase-money, and had a good equitable title to the land, a release without a consideration would operate as an equitable bar to his claim, we need not inquire. But as cumulative evidence of a total abandonment of all claim under an executory agreement of which he had performed no part, it furnishes an additional reason for refusing him a decree, to which he '.would not be entitled, even if such release had never been given.

The decree of the Circuit Court is therefore affirmed with costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.