author: Mr. Justice DANIEL

text:
    Philip H. De Lane, John M. Chiles, Martha C. Chiles, John E. Lykes, and Grace A. Lykes, Appellants, v. Andrew B. Moore, and James L. Goree, Executors of James L. Goree, deceased.
    Where an antenuptial contract was alleged to have been made, and the affidavits of the parties claiming under it alleged that they never possessed or saw it; that they had made diligent inquiry for it, but were unable to learn its present existence or place of existence; that inquiry had been made of the guardian of one of the children, who said that he had never been in possession of it, and did not know where it was; that inquiry had been made at the recording offices in vain, and that the affiants believed it to be lost; secondary proof of its contents 'ought to have been admitted.
    Whether recorded or not, it was binding upon the parties. If recorded within the time'prescribed by statute, or if reacknowledged and recorded afterwards, notice woulijL thereby have been given to all persons of its effect.
    If it was regularly recorded in one State, and the property upon which it acted was removed to another State, the protection of the contract would follow the property into the State into which it was removed.
    But where no. suit was brought until eight or nine years after the death of the husband," and then the one which was brought was dismissed for want of prosecution; another suit against the executors who had. divided the property, comes too late.
    This wás an appeal from the District Court of the United Statés for the Middle District of Alabama.

      The case is fully stated in the opinion of the court.
    It was argued by Mr. Johnson and Mr.. Butler, for the appellants, and Mr. Bradley and Mr. Davidge, for the appellees.
    The counsel- for the appellants, after stating the case, proceeded :
    It appears, from the record, tjiat the defendants objected to the reading of the papers of the marriage settlement, because the affidavits of. the complainants did not make out such a case of the loss or destruction as would dispense with the production of the original. The objection was sustained by the presiding Judge. By the ruling of the Judge, the complainants’ bill was ordered to be dismissed.
    It is submitted, that the ruling of the Judge was erroneous; and if it should be sustained here, the complainants must fail in any attempt to recover' their rights, because they cannot be allowed to introduce the only evidence on which they rest.
    The evidence offéred by the complainants, and rejected by the court, was both competent and sufficient to satisfy a Judge, when discretion must, on such questions, regulate his judgment; and especially so in the chancery jurisdiction of the court, where it is usual to receive with a liberal latitude, siíb modo at least, all evidence that can lead to. a competent' judgment on the rights of the parties. The bill was filed by those who were seeking their rights by discovery, and against the acts of those who had a temptation to destroy the evidence against them. But it is submitted, that the question has been authoritatively ruled by the court; and, according to the adjudged cases on the same subject in Alabama, where this case was tried, the evidence rejected should have been admitted. Tayloe v. Riggs, 1 Pet. 591, 596; S. C. 9 Wharton, 483; Winn v. Patterson, 9 Pet. 663, 676; S. C. 5 Pet. 233, 240, 242; Sturdevant v. Gaines, 5 Ala. 435; Slerge v. Clapton, 6 Ala. 589.
    If- the evidence rejected by the Judge, a.s to the reading of the marriage settlement, should have been received, as we think it should, then it may become necessary to bring in review the questions made by the defendants’ answer.
    Was the marriage settlement duly and legally recorded in South Carolina. By the laws of South Carolina (see act of 1786 and 1823) marriage settlements, according to the first act, are required to- be recorded in the- office of the Secretary of State, and by the second act, also, in the office of Begister of Mesne Conveyances, within three months after their execution, otherwise -they will be regarded as void at .law. The marriage settlement, in this case, was executed on the 20th May, and if recorded before the 20th of August, would have been duly recorded, according to the requirements of the act of 1786. It appears from Guiguard’s official certificate, that the paper was recorded in the Register of Mesne Conveyances, on the 31st day of July, 1816, the day on which it was proved by Young, one of the witnesses to it.
    The certificate of Arthar, the deputy .Secretary of State, is not definite as to. the time when the paper was recorded in the office of thé Secretary of State. There is no doubt, however,. that it had been first recorded in that office, as such should have been done, according to the act of 1786, (which is the only act affecting this case.) We think such must be the conclusion of the court, as scarcely any other fair inference could be drawn froffi the premises. If such should be the holding of the court, a second proposition arises, was it necessary that it should have: been, recorded in Alabama ?
    According to the tenor of the decisions of this court, it was not' necessary that there should be such a recording to protect the rights of the complainants against the claims • of a subsequent purchaser.
    “ A marriage settlement or deed, in favor of the wife, duly executed and recorded in Virginia, will be good against the creditors in the District of. Columbia, although they may have had no express notice. Bank v. Lee, 13 Peters, 119, 120. ’ Such has been the current of decisions in South Carolina and Alabama ? '
    But the complainants have a right, from the proof in the re-' cord, to take refuge in the equity of their rights.
    According to the evidence of. W. R. Hamilton, Goree, the testator of defendants, who seems to have been a shopkeeper, purchased the slave in question, with express notice of complainants’ title, by the marriage settlement of their mother with Yancey. The testimony of Hamilton was duly taken; for, if defectively taken in the first instance, the.defendants had an opportunity, and were required, to retake it, if they chose, by an express agreement of , the parties.
    Such being their condition — that is, purchasers with express notice — he, Goree, took the property subject to the acknow.-' ledged claims of tlie complainants, and having taken under their title, he should not be allowed to claim against it.
    The' doctrine of notice is well established. He who acquires a legal title, having notice of the prior equity of another, becomes a trustee for that other to the extent of his equity. 1 Cranch, 100. '
    If a man will purchase, with notice of another’s right, giving a consideration will not avail him. 2 Bridgman’s Digest, Vendors and Purchasers, IX. 691.

      With respect to the operation of the statute of limitations upon cases of trust in equity, the' distinction is, if- the trust be constituted by act of the parties, the possession of the .trustee is the possession of the cestui que trust, and no length of such possession will bar; but if a party is constituted a trustee by the decree of a court of equity founded on fraud, or the like, his possession is adverse, and "the statute of limitations will run from the time that the circumstances of the fraud were discovered. 3 Bridgman’s Digest, 252.
    In the case of Miller v> Kershaw,, marriage settlement was held void at law; in equity, however, the party claiming under the settlement, would be protected where the purchaser had actual notice of the settlement. Bayley’s Equity, 481.
    If the foregoing propositions can be sustained, another question arises, .and that is, can the defendants claim tó be protected by the statute of limitations ? The complainants 'allege, in their bill, that they were minors at. the death of their mother, and could not assert their rights, under the marriage settlement, as (remaindermen, after the death of Yancey, their step-father. They aver, furthermore, that they were ignorant as to the time of Yancey’s death, from then- distant and separated situations. It is also stated expressly in their bill, (and it is a bill of discovery,) that they were not informed as to the time when a fraud had been committed upon their rights, to wit, when Yancey sold, and Goree purchased, with a full disclosure and knowledge of their title. This reduces the parties to the relation of trustee- and cestui que trust, and exempts’ the complainant from the operation of the statute of limitations.
    Purchaser from mortgagor, with notice, cannot claim by possession -against a mortgage. Thayer v. Craner, 1 McCord, 395.
    Court of Equity, bound by statute, upon legal title and demands, except in cases which are excepted upon purely equitable principles, such as trust, fraud, &c. Van Rhyn v. Vincent, 1 McCord, 314.
    In cases of fraud, it runs from the time the fraud has been discovered. Id. 4 Dess. Rep. 480.
    If one intrudes upon the rights of an infant, and takes the profits) he will-be treated as guardian. His character is fiduciary ; the statute of limitations is inapplicable ; and lapse of time will not bar account. Goodhue v. Barnwell, Rice, Equity, 239.
    The’ ruling of the Judge below was evidently in reference to a single question, in which he clearly was in error. But, independently of his decision, it may become the plaintiffs to satisfy this court that, if he had-all these questions before him, the de-fendants, in any point of view, would have been entitled to a decree in their favor.
    Therefore, it becomes the complainants to show that they were entitled to a decree in their favor, upon- the entire merits of their case.
    The counsel for the appellees made the following points :
    First point omitted.
    II. The court was right in rejecting the copy of the marriage contract.
    1. The affidavits of the complainants wei-e insufficient to prove the loss of the original, which they had never seen, and which had never been seen by any witness in the cause.
    The foundation that is the existence of an original, was not laid, unless it is shown by the copy.
    This distinguishes it from the case of Winn v. Patterson, (9 Pet. 663,) and all the other cases; 5 Pet. 233, et al.
    2. If this foundation was laid, they do not show a search for the original such as is required by the court.
    They state where they have searched; but Yancey removed from South Carolina to Alabama, carrying the personal property with him. His right, according to the theory of com-plainants, depended upon this agreement. He would have carried it with him. It would have been among his papers. There was no search there. See the cases cited on appellant’s, brief.
    3. The copy from the records in South Carolina, cannot rest on the principle of an ancient deed. The possession and acts of Yancey, as represented by complainants, were inconsistent with any limitation on his title, and therefore with this deed. Nor does the rule apply to copies, unless some other proof of the existence of the deed is given. There must be proof aliunde that there was an original. Winn v. Patterson, 9 Pet. 675-6, and the cases cited by appellant.
    4. The affidavit of Lykes and wife was properly rejected by the court; and, in order-to lay the foundation for the secondary proof, all the complainants should have purged themselves from any concealment or laches.
    III. The copies could only be admitted on the ground of their having been duly and lawfully recorded in South CaroT lina.
    1. The title is set up in a married woman residing in Alabama, in personal property, openly under the control of her husband, which title depends on a marriage contract made in South Carolina. The case of Lee' v. The Bank of the United States, (13 Pet.) shows that such a title maybe supported, notwithstanding there is no record in Alabama, nor any badge or token to distinguish it from the general property of the husband.
    If the action had been in the State Court, the law of South Carolina must have been proved, as any other fact in the cause. But this court has said, in Leland v. Wilkinson, (6 Pet.) and Owings v. Hull, (9 Pet.) that the general laws of the several States will be judicially noticed in the courts of the United States.
    We are, then, to inquire what the law of South Carolina was in 1816 ? ■ It required the record to be made within three months after the date of the deed, and after the execution had been proved according to law, in the office of the Secretary of State only.
    This disposes of the copy from the Richland district.
    2. No statute of South Carolina is produced, showing how the deed, was to be proved. But, admitting that this deed was executed and proved according to law, the proof of the recording does, not sustain the claim.
    The law of South Carolina will be found in James’s Dig. 275-6; 2 Brev. Dig. 45-6; 6 Stat. at Large, App. 636-7; and 5 Stat. at Large, 203.
    That law required the record to be made within three months, or the deed was void.
    One of these copies appears to have been recorded on the 31st of July, 1816, in the Richland office; the other, between the 30th of July and the 14th of November, in the Secretary’s office. The presumption, then, is, that the former was first recorded; for it could hardly be that it was recorded in this last office on the 30th, and in the former on the 31st.
    Again; the law authorizing the record in the Register’s office, was not passed until 1823. How, then, came this deed to be recorded there seven years in anticipation of such .a law ? Is it not evident that the parties placed it there first, by. mistake, and, discovering their error, afterwards had it placed in the Secretary’s office ? Then, when was it put there 1 They must show it was within three months after its date. They have failed to do so.
    So that whether the affidavits were, or not, sufficent to admit the secondary proof, the secondary proof itself is wholly insufficient, by reason of the failure of complainants to show the record under, the statute.
    IV. The defendants have pleaded the statute of limitations of six years.
    It would be a. complete bar, in any action at law. Aik. Dig. tit. Limitation, p. 270, 271.
    The disabilities aré coverture, infancy, non compos, and' absence of defendant beyond seas.

      In this case, the slave was sold in 1821; the. coverture terminated in 1823 ; the husband survived to 1834, with the right of possession and enjoyment only. In 1834, complainants’ right was complete, if they had any. The youngest must have been' of full age in, or before, the year 1837. They are all children of the widow DeLane, before her marriage with Yancey, in 1816. A suit in Equity against these defendants was pending in 1843, for this very property, and dismissed for want of prosecution. It was as if it had never existed. In-’ 1847, when this suit began, more than twice the period of limitation had elapsed since the right, if any, accrued.
    Courts of Equity will not encourage such demands. There must be some diligence, some activity, some movement, by the party. Piatt v. Vattier, 9 Pet. 405; McKnight v. Taylor, 1 How. 161.
    V. Such activity was peculiarly necessary in this case. It is a suit against executors, bound to close their office with reasonable despatch. A suit pending against them in 1843, had beep dismissed. They had gone on to settle their trust; the debts had been paid, and the assets distributed, when this suit was brought, and courts of equity will protect them. The claim should have been presented within eighteen months. Aik. Dig.; Clay’s Dig. 195, §17.
    VI. Finally, the presumptions of fact are all. against the claim setup.
    The marriage contract authorizes a sale by the husband, with the consent of the wife. They are residing together, apparently in not a very -prosperous condition, and both purchase, for their own support and the support of their family, (of these very complainants,) the goods of the defendants’ testator. They are unable to pay for them, and one or both of them sell the slave to him for these very things. Honesty and fair dealing required that the wife should out of her means aid the husband in supporting the children of her prior marriage, and this court will presume that she did what common honesty required of her, and that she did unite in the sale. At all events, it was a sale and delivery of possession made in her lifetime for her benefit, and-this court could compel her to ratify it now if she had not done so before.
    This contract was made in South Carolina in 1816; the parties removed to Alabama before 1820. It is to be interpreted by the laws then in force in South Carolina.
    In 1811, (Ewing v. Smith, 3 Dess. 417, 455, 457, 462, 463,) the Court of Appeals of that State declared the common law of England was not applicable, to cases of married women having separate estates iii that State. This was followed by Carter v. Eveleigh, 4 Dess. 19, and James v. Maysant, Ib. 591.

      From these cases it appears — 1st. That a married woman, having a separate estate, can only change, encumber, or dispose of it, strictly according to the provisions of the settlement. 2d. That an estate limited to the joint use of husband and wife during coverture,’ with power to her to dispose of it by deed or will, and to go to her sole and absolute use in case of her surviving him, is a separate estate. 3d. The separate estate will be liable for debts contracted for the purposes for which it was created.
    In this case the conditions necessary to raise a separate estate to her out of the joint estate, do not exist.
    1. There is no power of disposition given to her, but it is given to the husband only with her consent.
    2. There is no sole and absolute use reserved to her; but the right of survivorship, without any power of disposal, is mutual.
    3. The debt in this case was contracted for the purposes of the trust, and on the credit of the trust estate.
    The cases of Cooke v. Kennedy and Smith, (12 Ala. 42); Bender v. Reynolds, (15 Ala. 446,) are directly in point, that such an estate, with the property in the possession of the husband, is subject to the husband's debts. See also Moss v. McCall, 12 Ala. 630.
    Here acquiescence may be inferred. Square v. Dean, 4 Bro. C. C. 326; Beresford v. Ar. Bis. Armagh, 13 Sim. 643.
   Mr. Justice DANIEL

delivered the opinion of the court.

The appellants, iiqthe year 1847, ¿led their bill in the court aforesaid against the appellees, seeking of. them a discovery as •to certain slaves charged to have come to the possession of their testator, apd also an account and a recovery of'the value,’ increase, hires, and profits of those slaves, and claiming by name a negro woman named Linda or Linder, together with her children.

'The bill charges that in the' year 1816,'Mrs. Ann Wood De Láne, a widow; lady residing in the State of South Carolina* and possessed of’ valuable real estate, and of sundry slaves, being about to .izitermarry with one John Yancey, azi antenuptial contract was entered info and executed between these parties. The stipulations izi this contract, which is made an exhibit with the bill, are to the following effect: That “ all the estate of the

said Ann, real and personal, should be and remain for the joint use, support, and enjoyment of the' said John and Ann during their joint lives, and to the survivor of them during his or her life; that the same should be free from any debts, dues, demands, or contracts of said Yancey, unless it should be under the following restrictions : That the said John Yaneev should not have the right to dispose of any portion of the estate of property, real or personal, unless- the said Ann should consent thereto. That the said John should have the right to dispose of the property upon his. obtaining such consent. That -the said Ann should have the right of granting or withholding her consent without resorting to the aid of a court of equity, or to the intervention of a trustee. That all transfers by the said John of any portion of the property with the consent of the said Ann, should be valid, whether made for his separate use and benefit, or for the joint use of himself and wife ; and that the said John should not be compellable to settle any equivalent for property so transferred, unless there should be a stipulation between the parties to that effect. That all of the estate, real or personal, which should remain undisposed of during the joint lives of the parties, should be for the use and benefit of the survivor '; and at his or her death should be equally divided amongst all the children of the said Ann, both of this and of the former marriage. That none of the aforesaid estate, real or personal, should be liable for any debts, judgments, or executions, that might be in existence at the date of the contract, or at any time thereafter against the said John, unless by mutual consent of the parties. The bill further charges that the marriage having taken place between the said Ann Wood De Lane and John Yancey, they removed to the. State of Alabama, where the said Ann having died, the said Yancey, who survived her, sold to James L.,Goree, deceased, either during the lifetime or after the death of the said Ann, but without her consent, and in violation of the ante-nuptial agreement, several of the slaves mentioned in that agreement. That the said Philip JH. De Lane, Martha Chiles, and Grace Lykes^who are the children of Ann W. De Lane, by her first marriage, and her only heirs, were, at the date of the sale aforesaid by Yancey, infants of tender years.

The bill makes no persons defendants, and seeks relief against none others, except the said Andrew B. Moore, and James L. Goree, the executors of James L. Goree, deceased.

The respondents deny all personal knowledge of a purchase of slaves by their testator, of Yancey, but state that they have: been informed, and believe, that the decedent did, in his lifetime, and in the lifetime of Ann W. Yancey, obtain from the said ■ John-Yancey,, in the year 1822, a' negro woman slave, named Lindy, and her child Becky, in payment of a store account contracted with the decedent, whilst a merchant in Alabama, by said John and Ann Yancey, for sugar, coffee, pork, butter, clothing, and other necessaries for the support of the said John arid Ann, and of the complainants, the children of the' said Ann, and' of the slaves conveyed in the marriage settlement. The respondents deny that any slave mentioned in that agreement, except the woman Lindy, ever came to the possession of their testator, and after naming the offspring of Lindy, they aver that this female slave and her offspring were never held by the respondents in any other right than as the executors of James L. Goree, deceased; that long before the institution' of this suit, the respondents, as such executors, had delivered over to the distributees of their testator, all the slaves held by them, had settled their account as executors, and received a discharge, viz., on the 2d day of January, 1846. Having made the above statements in answer to interrogatories put by the bill, the respondents propound these separate averments, and claim to be allowed the benefit of them as if specially pleaded.

1. That their testator was a bond fide purchaser of the slave Lindy for valuable consideration, without notice of the alleged marriage settlement.

2. That more than six years had elapsed between the death of Yancey, who survived his wife, and the commencement of this suit, and therefore the suit is barred by the statute of .limitations.

3. That the said marriage settlement was made in the State of South' Carolina, and was not recorded according to the laws of that State, and is therefore void, both as to the respondents and to their testator, who was a bond fide purchaser without notice.

4. That if the marriage settlement had been properly recorded, or was otherwise valid the sale of the slave Lindy was made with the assent of the said. Ann Yancey.

5. That the respondents received the said slaves as the executors of the last will and testament of decedent, as a part of his estate, and had, before this suit was commenced, disposed of them according to the provisions of said will, by distribution and delivery to the legatees of said estate, and' that long before the commencement of this suit, had made'a final settlement of' said estate, and had been discharged from said executorship.

To the answer of the respondents, the complainants filed a general replication, and upon the pleadings and proofs, in the cause, the District Court, on the 7th of December, 1849, pronounced a decree, dismissing the bill of the complainants, with costs. The correctness of that decree we will proceed to consider. .

The first question which' presents itself, in the natural order of investigation of the proceedings of the District Court, is that which was raised upon the admissibility in evidence, of an authenticated copy of the antenuptial contract, upon the suffi-ciency of the cause : assigned for the non-production of the original. The cause so assigned, was this. The three children of Mrs. De Lane, with the husbands of the two daughters, depose that they never possessed, nor ever saw.the original contract ; that they have made diligent inquiry for it, but have been unable to learn either its present existence, or place of existence— and believe that it has been lost or destroyed. And the son, Philip De Lane, states farther, that he had made inquiry for it, first of John Partridge, his guardian, who informed him that he had never been in possession of it, and did not know where it was ; that deponent. had also made inquiry for it at the Office of Mesne Conveyances, and at the Office of the Secretary of State, of South Carolina, but upon search and inquiry it could not be found at either of those places ; and he believes that' this instrument was either destroyed by said Yancey, or by fire when the court house in Monroe county, in Alabama, was burned in 1833 — ffhat the subscribing witnesses to the agreement, he believes, after diligent inquiry, are dead. That Yancey died in 1836, in Mississippi, utterly insolvent, and no person ever administered on his estate. In disregard of these affidavits,-the District Court refused to consider the copy of the antenuptial contract as legal or admissible in the absence of the original, and in this refusal, we' think that court has erred. Upon the most obvious principles of reason and justice, we think, that the complainants could not have laid a stronger foundation for the introduction of the secondary proof. The custody of the' original document, or the duty of preserving it, could in no view be brought home to them. And its absence, therefore,' over which they could have had no control, and produced by no default of theirs, should not have deprived them of the effect of-that document to avail for~whatever it might be worth. This view of the question before us, is strengthened by the obvious considerations, that no suspicion justly attaches to the complainants from the non-prodüction of the original agreement, and that its exhibition was calculated rather to corroborate, than to weaken their claims. The instances in which secondary evidence is to be admitted, and the requisites demanded by the courts to warrant its introduction, are treated of in the elementary works on evidence^ as for instance, in 2 Saunders on Pleading and Evidence, 833, et seq. But in a decision of this court, this subject has been dealt with in a manner so strikingly apposite 'to the question now before us, as to warrant particular notice thereof, as being in all respects, decisive of that question. W allude to the decision of Tayloe v. Riggs, reported in 1 Peters, 591. That case presented by no means so strong a a claim for the introduction of seoonuary evidence as does the one now under consideration, for that was an application for leave to substitute- parol for written evidence, and not for the substitution of an authenticated copy of a written and recorded document in lieu of the original. In Tayloe v. Riggs, the Chief Justice iays down the law as follows :

“ The rule of law is, that the best evidence-must be given of which the nature of the thing is capable ; that is, that no evidence shall be received which presupposes greater evidence behind in the party’s possession or power. The withholding of that better evidence raises a presumption, that if produced, it might not operate in his favor.. For this reason, a party who is in possession of an original paper, or who has it in his power, is not permitted to’ give a copy in-evidence, or to prove its contents. When, therefore, thé plaintiff below offered to prove the contents of the written contract on which this suit was instituted, the defendant might very properly require the contract itself. - It was itself superior evidence of its contents to any thing depending on the memory of a witness. It was once in his possession, and the presumption was that it was still so. -It was necessary to do away this presumption, or the secondary evidence must be excluded. How is it to be done away ? If the loss or destruction of the paper can be proved by a disinterested witness, th.e difficulty is at once removed. But papers of this description, generally remain in possession of the party himself, and their loss can, in most instances, be known only to himself. -If his own affidavit cannot be received, the loss of a .written- contract, the contents of which are well known to others, or a copy of which can be proved, would amount to a complete loss of his rights, at least in a court of law. The objection to receiving the affidavit of the party is, that no man can be a witness in his own -cause. This is undoubtedly a- sound rule, which ought never to be violated. But many collateral questions arise in the progress of a cause, tp which the rule does no apply. Questions wliich do not' involve the matter in controversy, but matters auxiliary to the trial, which facilitate the preparation for it, often depend on the oath of the party.. An affidavit of the materiality of a witness, for the purpose of obtaining a continuance, or a commission to take a deposition, or an affidavit of his inability to attend, is usually made by the phrty, and received without objection. So affidavits to support a motion for a new-trial are often received. These cases, and others of the same character, which might'-be adduced, show that in many incidental qüestions that are addressed to the court, and which do not affect the question tó be tried by the jury, the affidavit of the party is received. The testimony which establishes the loss of the paper is addressed to the court, and does not relate to the contents of the paper. It is a fact which may be- important as letting the party in to prove .the justice of the cause, but does not of itself prove any thing in the cause. As this fact is generally known only to the party himself, there would seem to be a necessity for receiving his affidavit in support of it.”

The law, as thus clearly declared by this court in Tayloe v. Riggs, is in strictest accordance with the rule prevailing in the Supreme Court of the State within which the case before us was decided. Thus, in the case of Sturdevant tr. Gaines, (reported in the 5th vol. Alabama Reports, p. 435,) that court thus announces the rule by which they are governed with respect to the introduction of secondary evidence;' “ In the recent case of Jones v. Scott, (2 Alabama R. 61,) it is stated, that no fixed rule can be laid down as applicable to this class of cases; that, in general, search must be 'made where the lost paper was last known to be. These remarks are quite applicable to this case. Search was made where the paper was last known to be only three days before.” Again : “ We cannot say that half an hour’s search in a lawyer’s office, was not sufficient to ascertain whether the paper was not where it was left, nor, in the absence of any fact indicating that it might be found elsewhere, can we perceive that' there was any .necessity to search elsewhere for it. If the admission that the paper, on further search where it was last known to be, or elsewhere, might still be discovered, would preclude the secondary evidence, it would Annihilate the rule in- all cases where the lost paper was not proved to be destroyed as Well as lost, as otherwise there must always be a possibility that it may bé found.’! With regard to the position insisted upon in-the answers, that the antenuptial contract was ' void for the failure to record it within three months from-its date, in conformity with the law of South Carolina ; that position, however maintainable it might be, so' far as -the instrument was designed to operate by mere legal or constructive effect On creditors and purchasers, becoming such before it was recorded, or, in the event of its never being recorded, cannot be supported to- the extent, that by the failure to record it within the time prescribed by the statute, the deed would thereby be void to all intents and purposes. Such a deed would, from its execution, be binding, at common law inter partethough never recorded; and if, after expiration of the time prescribed by statute, it should be reacknowledged and then recorded, .either upon such reacknowledgment, or upon proof of witnesses,'it would, fromdhd'period of that reacknowledgme'nt and admission to record,- be restored to .its full effect of notice, which would, by construction, have followed from its being recorded originally within the timé prescribed by law. These conclusions are sustained by numerous decisions. We refer, in support of them, to the cases of Turner v. Stip, 1 Wash. 319; Currie v. Donald, 2 Wash. 58; Eppes v. Randolph, 2 Call, 125; Guerrant v. Anderson, 4 Ran. 208; Roanes v. Archer, 4 Leigh, 550; Woods v. Owings & Smith, 1 Cranch, 239; Lessee of Sicard v. Davis, 6 Peters, 124.

The antenuptial agreement between Ann Wood De Lane and John Yancey, is proved to have been executed on the 20th day of May, 1816 ; if it was admitted to record at any time before the 20th of August, in the same year, it operated as notice to all creditors and purchasers becoming such subsequently to,the execution of that agreement; if it was not recorded until the 14th of November, im the year 1816, it could by construction -operate as notice from the latter period only, but as between the parties, and with regard to subsequent creditors and purchasers with notice, it operated from the period of its execution.' The sole purpose of recording the deed, is, that those.who n ight deal with the parties thereto, or with the súbjects it comprised, should have knowledge of the true condition of both, and if such knowledge is presumed, nay, established by. legal inference from the fact that the deed has been recorded, a fortiori, it must be established by actual notice.

It has been made a ground of defence, in the answers in the court below, and .it has also, been insisted upon in argument here,. that admitting the antenuptial contract to have been recorded in the State of South Carolina, and, in consequence thereof, to have been so operative as to affect with notice creditors and purchasers within that State, yet, that upon the removal of the parties, carrying with them the property into another State or jurisdiction, the influence of the contract, for the .protection of the property, would be wholly .destroyed, and the. subject attempted to be secured, would be open to claims by creditors or purchasers subsequently coming into existence. The position here advanced is not now assumed .for the first time in argument in this court. It has, upon a former occasion, been pressed upon its attention, and has been looked into with care, and unless it be the intention of thé court, to retrace the course heretofore adopted, this may be now, as it formerly was, called an .adjudged question. The case of the United States Bank v. Lee et al., (reported in the,13th of Peters, p. 107,) brought directly up for the. examination of this court, the effect of a judgment and execution, obtained by a subsequent creditor in the District, of Columbia, .upon property found within that district, but which had been' settled upon the wife of a debtor, by a deed executed and recorded in Virginia, according to the laws of that State, the husband .and wife 'being, at the time of making the instrument, inhabitants of the State of Virginia. The question was, by Mr. Justice Catron, who delivered the opinion of the court, elaborately investigated, and the cases' from the different States, founded upon1 their registry acts, carefully collected. The cases of Smith v. Bruce’s Administrator, from 2d of Harris & Johnson, and of Crenshaw v. Anthony, from Martin & Yerger’s Reports, p. 110, cited by the learned Judge, fully sustain his reasoning upon the point. This court come unhesitatingly and clearly to the conclusion, that the deed of settlement, executed and recorded in favor of Mrs. Lee, in conformity with the laws of' Virginia, protected her rights in th,e subject settled, against the. judgment of the subsequent creditor, in the District of Columbia. We should not be disposed to disturb the doctrine laid down in the case of the Bank of the United States v. Lee, and in the decisions of the State courts of Maiyland and Tennessee, above mentioned, if the rights of the parties turned upon the operation of the contract as constituting notice ; or upon the proof of knowledge on the part of Goree, the purchaser from Yancey, of the existence of the marriage contract. But we think that the rights of the parties to this controversy should not be made to depend upon any such incident as the existence of notice of the contract, either actual or constructive.

It has been premised, -in the statement of the pleadings in this case, that the only, defendants in the court below, were the executors of James L. Goree, deceased, called upon in their representative character, and in no other. The marriage contract between Ann W. De Lane and John Yancey, was executed in 1816. It is proved that Yan.cey died in 1833, or 1834. The complainants are the children of Mrs. Yancey, by. her first marriage; so that, at the time of the death of Yancey, the youngest of those children, if born immediately preceding the second marriage, could not have been younger than seventeen years; the elder children were then probably nearly or fully at majority, After the death of Yancey, the record discloses no claim on the part pf the complainants, nor any effort by them to recover the property settled by the contract, earlier than 1842, eight or nine years after Yancey’s death ; at which last period, it is said, there was a suit pending in one of the State courts, against the testator of the appellees, but which suit, after being revived against the appellees, subsequently to the death of their testator, was, in the year 1843, dismissed for the want of prosecution. The bill in this suit was filed in January, 1847, at an interval of thirty-one years after the execution of the marriage agreement, and of fourteen years after the death of Yancey; from which last event, the complainants had an undoubted and-unobstructed power to seek their rights under that contract, whatever they were.

If mere tardiness in asserting their pretensions, were ail that CQuld be .imputed, to the appellants, this, of itself, would place them in a position which could not commend them the countenance of courts of justice ; but, this delay is by no means the oply or the least imputation, resting upon the course of the appellants; for we see that, after calling upon the appellees for satisfaction of their demand, the appellants abandoned that demand, proclaiming thereby to the representatives of Goree (if indeed they were then in possession of the subject,) permission to apply it' in conformity with the will of their testator. The appellants, it is not pretended, ever held or claimed the subject in dispute, except in their representative capacity, and in trust for' the creditors and legatees of their testator. In the interval between the abandonment of then- first and the institution of their second demand by the'complainants', those executors have, in fulfilment of their' trust, handed over the subject to those for whom they held it under the will; have accounted with the authorities to whom they were responsible, and have réceived from those authorities a full acquittance. Under these .circumstances, to hold them liable to the demands pf the appellants, would in effect be to render penal the regular discharge of their duty.

This aspect of the cause we regard as fully warranting the decree of the. District Court, dismissing the bill of the complainants — that decree is therefore affirmed.

Order.

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


source: Caselaw Access Project

author: Mr. Justice McLEAN Mr. .Chief Justice TANEY.

license: Public Domain

text:
    The Board of Trustees for the Vincennes University, Plaintiffs in error, v. The State of Indiana.
    In J 804, Congress passed an act, (2 Stat. at Large, 277,) “making pro vision. for the disposal of the public lands in the Indiana Territory, and -for other purposes,” in .which it reserved from sale a township in each one of three districts, to be located by the Secretary of the Treasury, for the use of a seminary of learning.
    In 1806, the Secretary of the Treasury located a particular township in the Vincennes district, for the use of that district; and when, in 1806, the territorial government incorporated a “ Board of Trustees of the Vincennes University,” the grant made in 1804 attached tó this Board, although, for the two preceding years, there had been no grantee in existence.
    Under the ordinance of 1787, made applicable to Indiana by an act of Congress, the territorial government of Indiana had power to pass this act of incorporation.
    The language of the act of Congress, by which Indiana was admitted into the Union, did not vest the above township in the legislature of 'the State.
    The Board of Trustees of the University was not a public corporation, and had no political powers. The donation of. land for its support was like a donation by a private individual; and the legislature of the State could not rightfully exercise any - power by which the trust was defeated.
    This case was brought up from the- Supreme Court of the State of Indiana, by a writ of error, issued under the 25th section of the Judiciary Act.
    The manner in which the case arose, and the laws relating to it, are stated in the opinion of the court.
    It .was argued by Mr. Judah, with whom was Mr. Dunham, for the plaintiffs in error, and Mr. O. H.j Smith, for the State of Indiana. '

    The counsel for the plaintiff in error conténded:
    1. That the effect of the reservation in the act of Congress passed in 1804, was a grant.
    The defendant, and Judge Smith, of the Supreme'Court of Indiana, assert that this is not a grant, because there was not a grantee in esse; and that the reservation could only become effectual to pass the title by an appropriation, to be made by Congress, or under its authority.
    In Wilcox v. Jackson, (13 Peters, 498,) this court, at page 512, define “appropriation” as follows: “That' is nothing more nor less than setting apart the thing for some particular use.” And aftérwards, in the same case, (page 513,) the court say: “But we go further, and say, that, whensoever a tract of land shall once nave been legally appropriated to any purpose, from that moment, the land thus appropriated 1 ecomes severed from the mass of public lands, and that no subsequent law, or proclamation, or sale, would be construed to embrace it, or operate upon it, although no reservation was made of it.”
    Was the Gibson township so appropriated? It was reserved for a special purpose. It was located in pursuance to the reservation. Was there any thing more necessary to set.it apart for the' particular use ?
    But, say the counsel for the State and Judge Smith, though appropriated, it.was not granted, because there was no grantee in esse.

    If, as a general rule, it is true, that there cannot be a grant without a grantee in esse, it is as true that there are exceptions.
    A grant, in case of a charity, or of the dedication of land to a public -use, is good without a grantee in esse. Town of Paulet v. Clark, 9 Cr. 292; Beaty v. Kurtz, 2 Pet. 566; Cincinnati v. White, 6 Pet. 435; and in Vidal v. Girard’s Executors, 2 How. 127; at pages 192, 193, it is stated, that donations given to the establishment of colleges, &c., are charities in the sense of the common law.
    2. That the territorial legislature had the power to apply to .use the township appropriated by Congress, and did apply it by ' the act of incorporation.-
    The counsel for the State of Indiana made the following points:

      Férst. The complainants have no such corporate existence as would authorize and empower them to sue. 2 B. A. 482, note a, last edition; and see the extracts from their records in evidence.

      Second. The suit is barreid by the statute- of limitations. R. S. 1843, pp. 795, 799; Act of 1845 - 6, explanatory of Rev. Stat.

      Third. The suit is barred by twenty yeafs adverse possession, as the State, and those claiming under the State, by purchase and lease, had’ held adversely more than twenty years before any suit was brought by the University to recover the possession, even if -the former actions which were dismissed could aid this suit, which is denied.

      Fourth. The case’ does not come within the principles of an executory devise, and would not avail the complainants even if it were an executory devise. 17 Serg. & Rawle, 88; 5 H. & J. 392; 9 Ohio, 203; 12, Mass. 537; 16 Pick. 107; 3 Pet. 101; 4 Dana, 355; 3 Pet. 146; 9 Ves. 399; 9 Mass. 419; 7 Ves. 69: 9 Ves. 399; 10 Ves. 522.

      Fifth. The act 'of Congress of 1804,-was a mere reservation from sale, to be afterwards appropriated to educational purposes, and neither vested the same in the 'complainants, nor divested the United States of the legal title. P. L. L. 104; 2 McLean R. 416; P. L. L. 2d part, 69; 1 Johns. R. 303; 9 Johns. R. 74; Wright’s Ohio R. 144.

      Sixth. The case does not embrace the principles of a dedication to public or pious uses, so as to sustain this claim. 2 Pet. 566; 6 Pet. 431, 498; 6 Paige, 639; 6 Wend. 667; 4 Paige, 510; 7 Ohio, 219.

      Seventh. The act of Congress of 1816, vestéd the legal title to these lands-in the State of. Indiana, as a trustee, with power to direct to what object or institution, being “ a seminary of learning,” the trust fund shall be applied ; and the State, having designated the State University, at Bloomington, as the “ seminary of learning” to which the trust fund shall go, the complainants have no claim whatever, either in law or equity, against the State, the trustee of the fund. See act of Congress of 1816, act of 1818, and the several acts for the admission- of the other new States into the Union.

      Eighth. The doctrines of estoppel, in their most rigid application, can only permit the complainants, to retain what they have already received, and for this the State will not contend.

      Ninth. In any and. all events, the- funds were public funds, and the legislature of the State had competent authority to change their direction to any other seminary of learning at will. Had the funds been the private funds of the complainants, and had they been' vested-with them, there might have been some pretext for the assumption, that the acts of the Indiana legislature, endowing the State University, were unconstitutional. 4 Wheat. 430; 4 Pet. Con. Rep. 536.
   Mr. Justice McLEAN

delivered the opinion of the court, ui

This case is before us on a- writ of error to the Supreme Court of the State of' Indiana, under the 25th section of the Judiciary .Act of 1789.

The bill was filed- under an act of the legislature of. Indiana, of 1846, which authorized the trustees of the Vincennes University to file a bill in.chancery, in the nature of an act of disseisin against the State, to try their right to the seminary township in .Gibson county. The facts stated in the bill are substantially as follows:

The Indiana Territory was organized by the act of Congress of the 7th of May, 1800, with the powers to legislate given by the ordinance of 1787. On the 26th of March, 1804, an act of Congress was passed, for the survey and disposal of the public, lands,, by which three land districts were established, and an entire township in each was reserved for the use of a seminary of learning, to be located by the. Secretary of the Treasury. The boundaries of the Vincennes land district were the same as designated In a late treaty with the Wabash Indians, The Secretary of the Treasury, by letter of the 10th of October, 1806, located township No. 2 south range, No. 11 west, in Gibson county, for the use of a seminary in that district.

The act of the 29th November, 1806, and the supplement thereto, passed the 17th of September,. 1807, established the Vincennes University, and incorporated the same by .the name of “ The'Board of Trastees of the Vincennes University.” The corporation was duly organized at Vincennes, on the 6th of December, 1806, under the act, and has since continued. The second section of the act of incorporation, after reciting the seminary lands under the act of Congress, provided, “ that the trustees, in their corporate capacity, or a majority of them, should be legally authorized to sell, transfer, convey, and dispose of any quantity, not exceeding four thousand acres, of said land, for the purpose of putting into immediate use’the said university; and to have on rent the remaining part of said township to the best advantage, for the use of said public school or university.”

In virtue-of the above acts, the complainants became possessed of the said township of land, and so continued during the territorial government. The same rights and powers in -the corporation, as they existed under the territorial government, were secured by the 1st section of the 12th article of the constitution of Indiana. Between the years 1806 and 1820, complainants sold 4,000 acres of the land, and rented a part of the residue. A college building was constructed by them at Vincennes.

On the 22d January, 1820, a joint-resolution of the legislature of Indiana was approved, appointing’ a superintendent for the seminary township, with power to rent the improved lands, to collect the rents, and to account to the State. And, on the 2d of January, 1822, the legislature appointed commissioners to sell the lands in that township. This seems to have been done, on the assumption that the board of trustees had expired through their own negligence. The lands were sold, and the money received .was paid into the State Treasury. A part of the consideration money- on this sale had not been collected when this bill was filed.

• The complainants pray that an account may be taken of the proceeds, and interest of the sales of the lands and the rents received by the state; and that the same may be paid to the complainants, &e.

The defendant’s answer denies the.equity of the bill, and relies' upon the statute of limitations. It also denies that the territorial government had any power to incorporate the plaintiffs; that the title remained in the United States, it never having been appropriated to any special grantee; that under the act of. Congress of the 19th of April, 1816, for the admission of the State of Indiana into the- Union, the title to the land in question became vested in the State.

The act of Congress, which organized the territory of Indiana, provided, that so much of the ordinance of 1787 for the government of the territory of the United States north-west of the Ohio River,- as relates to the generally assembly therein, and prescribes the powers thereof, shall be in force, and operate in the Indiana Territory, &c. The ordinance declares, “ that the Governor and Judges, or a. majority of them, shall adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by Congress.”' Provision is made in the' ordinance for the appointment of a legislative council, and it is .then provided, that “ the Governor, legislative council, and house of representatives, shall have authority to make laws, in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance.”

Under the ordinance, the legislature of the territory was vested with general legislative powers, restricted only by the articles contained in that instrument. It had power to grant. an act of incorporation, with all' the functions necessary to effectuate its objects. There can be no question", therefore, that the corporate powers vested in the plaintiffs, by. the legislature of the territory, were legitimately conferred. 'And these powers were not affected, and could not be affected by the constitution of the State. It provided that “ all fights, contracts, and claims, .both as respects individuals and bodies corporaté, shall continue as if no change had taken place in this government.”

If the Board of Trustees, by a failure to elect when vacancies occurred, or through any other means, became reduced tó a less number than was authorized to act by the charter, the corporation was not thereby dissolved. In such a case, its franchises,’ would be suspended only, until its functions were restored by legislative action. This was done by the act of the legislature of the 17th of February, 1838. In that act the territorial act of incorporation is recognized, the existence of six of the trustees admitted, the vacancies supplied, and the board, thus constituted, was organized., If, therefore, the corporation by .non user had become liable to a judicial process of forfeiture, after this' act, such a procedure could not be instituted.

The proviso in the act of 1838, could only operate, so as to secure any rights which the State might be supposed to.have, in the Gibson township. • •

. The reservations for the seminaries of learning and for'schools; are made in the same terms, and in some respects, must rest on the same principles. In all the Western- -States, north óf the Ohio, similar reserves for schools and seminaries of learning have been made. In the case of Wilcox v. Jackson, (13 Peters, 498,) this court held, that a reservation set kpart the thing reserved for some párticular use; apd that “ whensoever a tract of. land shall once have been legally appropriated to any purpose, it becomes separated from the public lands.”

In the States where school lands have been reserved, the legislatures have enacted laws to carry out and effectuate the benign policy of the general government. Special authority has been given to individuals elected, in the respective townships, to lease the lands, sue for rents, &c., exercising, to some extent, corporate powers. The citizens within the township are the beneficiaries of the charity. The title to these lands has'never been considered as vested in the State; and it has no inherent power to sell them, or appropriate them to any other purpose than for the benefit,of schools. For1 the exercise of the charity under the laws, the title is in the township. No patent has been issued by the Federal government, in such cases, as it has not been considered necessary. For the sale - of school lands, the consent of Congress has been obtained, as that changes the character of the fund.

The title to the seminary lands, it is contended, did not vest in complainants,.as they are not .named in the reservation, and had no existence for two years afterwards.

This question is not to be decided, on the principles which apply to an ordinary grant, from one' individual to another. The title partakes of the nature of an executory devise, or a dedication of property to public use. In the case of Inglis v. The Sailors’ Snug Harbor, (3 Peters, 126,) this court say, “ What objection can there be to 'this as a valid executory devise, which is such a disposition of lands, that thereby no estate vests at the death-of the devisor, but only on some future contingency?” If the words, “ reserved for the use of a seminary of learning,” were indorsed on a town plat when made, there is no doubt that the title would vest in a corporation created afterwards fot the establishment and government of such an'institution. If it be reserved for the public use, the title would vest in the public, so soon as a public should exist in the town. Trustees of the McIntyre Poor School v. The Zanesville Canal Company, 9 Ohio Rep. 203; Cincinnati v. The Lessee of White, 6 Peters, Rep. 435; Barclay et al. v. Howell’s Lessee, 6 Peters, Rep. 498; New Orleans v. the United States, 10 Peters, Rep. 662.

Land, at common law, -may be granted to pious uses, before there is a gramee in existence competent to take it; and in the mean time, the fee will oe in abeyance. The Town of Pawlet v. Clark et al. 9 Cranch, 292; Witman v. Lex, 17 Serg. & Rawle, 88.

When a corporation is to be brought into existence by some future acts of the corporators, the franchises remain in abeyance, until such acts are done; and when the corporation is brought into life, the franchises instantaneously attach to it. There is no difference between the case of a grant of lan.l or franchises to an existing corporation, and a grant to a corporation brought into life for the very purpose of receiving the grant. As soon as it is in esse, and the franchise and property become vested and executed in it, it is as much an executed contract, as if its prior existence had been established for a century.” Dartmouth College v. Woodward, 4 Wheat. 518.

There was no uncertainty in this appropriation.- The township was designated, and the purpose stated, for which it was reserved. And there can be no doubt, from the authorities, that-the right vested, so soon as a capacity was given to the corporation to receive it; prior to this it remained in the federal government. This i? the settled doctrine on that subject.

If,- on general principles, the title to this township cannot be considered as- vested in the State of Indiana, it is contended it so vested by the provision in the sixth section of the act of the 19th of April, 1816, which admitted the State into the Union. The provision is, •“ That one entire township, which shall be designated by the President of the United States, in addition to the one heretofore reserved for that purpose, shall be reserved for the use of a seminary of learning, and vested in the legislature of the said State, to be appropriated solely to the use of such seminary by the said legislature.”

The words of the act seem to be so clear as to admit of but one construction. A township, in addition to the one formerly reserved, is appropriated and vested in the legislature. The former township is only referred to, to show that the one then appropriated was in addition to it. The Gibson township had before been appropriated. A part of it had been sold, and a part was held under leases. Whether we regard the words used, or their grammatical. arrangement, the intention of Congress seems to be clearly expressed.

In the act of the 18th of April, 1818, for the admission into the Uilion, of the ■ State of Illinois, a different phraseology is used in giving an additional township to the State. “ That thirty-six sections, or one entire township, shall be designated by the President of the United (States, together with the one heretofore reserved for that purpose, shall be reserved for the use of a seminary of learning, and vested in the legislature of the State,” &c. Here both townships are as clearly vested in the State, as that one only is vested under the act admitting Indiana into the Union.

By this latter act, the Gibson Township Seminary was recognized, and its present government sanctioned.

It is argued that this is a public - corporation, and that, consequently, the legislature of Indiana have a right to modify its charter, or abolish it,.at-its discretion. If the position assumed be sustainable the consequence stated will mot be controverted.

In the case of Dartmouth College v. Woodward, (4 Wheat. 629,) Chief Justice Marshall says : “If the act of incorporation .be a grant of political power, if it. create a civil institution to be employed in the administration of -the government, or- if the. funds of the college be public property^ or if the State of New Hampshire, as a government, be alone' interested in its transactions, the subject is one in which the legislature of the State may act, according to its own judgment, unrestrained by any limitation of its power, imposed by the Constitution of the United States.” Again, he says, (634,) So far as respects its funds, it is a private corporation. Do its objects stamp on it a -different character? Are the trustees and professors public officers, invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority?” He continues: “ The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and' the objects for which they are created.” “ The .right to change them'is not founded on their being incorporated, but on their being the instruments of government, c-reqted for its purposes.” “ The trustees are not public officers, nor is it a civil institution, participating in the * administration of the government;-but a charity school, or a seminary of' education, incorporated for the preservation of its property, and the perpetual application of that property to the .objects of its creation.”

In the same case, Mr. Justice Story says: “ Public corporations are generally esteemed such as exist for public political purposes only, such as towns, cities, parishes and counties; and, in many respects, they are so, although they involve some private interests; but, strictly speaking, public corporations are ■ such only as;are founded by the government for public purposes, where the whole interests belong to the government.”

The seminary township in question, was not a donation from the State, but from the United States. It was reserved and. designated out of the public lands, before they were offered for sale, and consequently so • munificent an endowment for a literary institution must have increased the value of the public lands, in that part of the State, and m ade them more desirable. And this consideration, no doubt, induced Congress to have designated, for seminary purposes, a township óf land in each land district. Every purchaser of the public lands, in each district, acquired, an interest in the reservation. And if these reservations had been judiciously managed, they would have constituted a fund, at this .time, of at least two hundred thousand dollars .each. This would have afforded the means of educating, in each land district, as many students, free of charge, as would ordinarily desire classical instruction. Such an advantage was too obvious to be overlooked, or not to be appreciated, by the purchasers of the public lands in these districts.

The legislative power of the Territory and State, in advancing the .public interests, was bound to afford all the facilities necessary to carry out and secure the benign objects of /Congress, in making these township reservations. This was done by a wise and liberal act, in regard to the Gibson township. The corporators were vested with all the necessary powers to carry out the trust. And for the purposes of the trust, the title became vested in them, as soon as they acquired a capacity to •re ceive it. This corporation had no political powers, arid could, in no legal sense, be considered as officers of the State. They were not appointed by the State. Their- perpetuity depended upon the exercise of their own functions; and they were no more responsible for the performance of their duties, than-other corporations , established by the State to execute private trusts.

So far as regards the trust confided to the complainants, there is nothing which, by construction, can make it a public corporation. The donation in no sense proceeded from the State. It was made by the Federal government, and is no more subject to State power, than if' it had been given by an individual for the same purpose. An act of incorporation being necessary, woüld not be withheld to give effect to a .private donation of land, for the purpose of establishing a liter-ary institution. Its benefits would be enjoyed by the public generally, but this would not make it a public corporation.

The complainants, by accepting and exercising their corporate powers, acquired certain rights, and made certain contracts, which could not be impaired by the legislature. They constituted an eleemosynary corporation, in -which the State has no property, and can exercise no power to defeat the trust. But this has been done by the legislature, not only by appointing an agent to collect the funds due to the' corporation, and paying them into the State treasury; but, by selling the lands, they have diverted the fund, for the preservation and management of which, the corporation was instituted. This was an extraordinary proceeding, and was wholly without authority. The result is, that the complainants are stript of their powers, and the University which they established, with the sanction of the legislature, is left without revenue.

The dismissal of the bill, in this case, by the, Supreme Gourt of the State of Indiana, was erroneous, and it is hereby reversed ; and ■ the cause is transmitted to that court for further proceedings.

Mr. Chief Justice TANEY, Mr. Justice CATRON, and Mr. Justice DANIEL dissented.

Mr. .Chief Justice TANEY.

I dissent from the opinion of the court.

■ I do not prop> -‘‘e to enter fully into the argument of the ease, because I concur entirely in the opinion of the Supreme Court of the State, which is set out at large in the record; and shall therefore briefly state the principles upon which my own opinion is founded.

1. It must be admitted that the State court had no jurisdiction in this case beyond that which the law of the State authorized it to exercise. And in revising their judgment, our. jurisdiction is equally limited. The law, under which this suit Was brought,' authorized the Board of Trustees of the Vincennes University,-to'file a bill in chancery against the State, in the nature of an action, of disseisin, for the purpose of trying the right of the trustees to the lands in question.

The-trustees,' therefore, are not entitled to a decree in their favor, unless they can show a legal title to the lands, such as .would enable them to maintain the common-law writ of entry, sur disseisin, .that is, they must be seised of the lands in fee-simple.

2. Indiana- was created a separate territory, and its powers apd rights, as a territorial government, defined by the act of 1800. This act certainly gave no power over the public lands, for it has no Reference to that subject. It merely establishes the territorial government. •

The act of 1804, under which the lands in question were reserved for the use of a seminary of learning, has no reference to the powers or duties of the territorial government, in relation to the lands reserved, or to any thing else. It merely provides for the sale of the public lands in the territory, reserving from sale this and other portions of them. But it does not transfer them to the territorial government which was then in existence. It-retains them. I do not see how these laws, taken separately or together; can be construed to give the- territorial government a right to dispose of’ them in any way, or- divest the title'which the United States held; and which this law directed to bé retained.

3. This reservation from sale, as well as the reservation of the.. school sections in the several townships,, undoubtedly dedicated them to the uses for which they were reserved; and they cannot be appropriated by the State to any other purpose. But the fund dedicated belonged to the United States, and they .alone had the power to transfer it, and to designate the body by whom the trust, created fry the act of Congress, should be administered. The law of the State complained of,, does not attempt to appropriate the land to a different purpose from that to which it was dedicated. It has been sold and conveyed by th State, and the proceeds appropriated to tlm support of a seminary of learning in the State. And the only question before us is, whether the trustees have the legal title to these lands, and can recover them back from the persons to whom they were sold by the State, for the purpose of appropriating them to a different seminary.

4. The act of the territorial government of 1806, incorporating this board of trustees, does not grant- nor profess to grant the lands to the board. And if it had done so, the act would have been void and inoperative, because the territorial legislature had no right to grant lands which belonged to the United States; nor to exercise any power over them, without the authority of Congress.

5. The act of Congress of 1816, by which Indiana was admitted into the Union as a State, grants these lands to the State for the purposes for which they were reserved. The State is made the trustee.

My brethren have put -a different construction on this clause of the law of 1816, and regard this grant as extending only to thé additional township mentioned in the law. But with every respect for their opinion, it appears plain to me that this township, as well as the additional one, are both granted to the State by Congress. And I am confirmed in this opinion, because, with all the research I have been able to make, I have not found a single instance in which lands reserved in a territory for the purposes of education, were not afterwards granted to the State, as the trustee to administer the trust, the school sections in the several townships, as well as others.

6. Upon these grounds, I think the plaintiffs in error have not a legal title to this land, and had no right to sell or dispose of it, nor in any way to control the proceeds; and that under the grant from Congress, in the act of 1816, the title and the right to administer the trust was vested in the State of Indiana.'

7. The error in the opinion, appears to meto have arisen from regarding the reservation from sale for the purposes of education, as divesting, the legal title of the United States, and putting it in abeyance, until some new body was brought into existence, capable'of taking the title as grantee, and administering the trust.

It is not necessary to this opinion to discuss the.doctrine of abeyance, upon which so much learning and talent has béen displayed by Mr. Fearne, in his treatise on Contingent Remainders. It is sufficient to state under what circumstances the title, in'the eye of the'law, is said to be in abeyance. And Comyns, in his Digest," tells us, that “ whén the fee or freehold of the land is not vested in any one,-- but stands solely in consideration of law, it is said to be in abeyance, or in nubibus

I cannot regard the title to lands reserved from sale by Congress, for the purposes of.education, as standing in this condition. A reservation is not a grant. 1 It does not pass the title out of the United Sffifes, but leaves it where it was before. The uniform- practice of the government, and of judicial decision also, •appears to have proceeded'on the ground that the title remained in the United States, until it was afterwards transferred by the authority of Congress. It is not usual, it is true, to issue patents for these lands, but they have been granted by acts of Congress,'which the courts have always recognized as valid conveyances. And I am not aware of any case in which the validity of these conveyances of reserved lands has been doubted by the court-; or in which it has been suggested that the title $vas out -of the United States, and in abeyance' from the time of- the reservation. If such be the result of a reservation,- the subsequent conveyance of Congress is of no value. And who is-to.protect the reserved lands from trespasses and depredations, while the title is in abeyance ?

In the case of Gaines and others v. Nicholson and others, reported in 9 "Howard, 356, the title to a section reserved for ■schools, was the matter in dispute. It did not, it is true, involve the question now before us. But it appears, in that case, that the section-was one of those reserved for schools in the different townships in the Territory of Mississippi, by an act of Congress passed in-1803; and that afterwards, as late as the year 1815, Another act was passed, authorizing the County Court of each couqty in the territory to lease the sections so reserved, in order to improve them, and to apply the rents to purposes of education within the township; and also to proceed and recover, damages against any persons found trespassing upon them. And this'law-contains an express provision that-every lease, in virtue' of this act, shall cease to have any force or effect after the first day- of January next, succeeding the establishment' of a State government. The trustees of the schools, who were parties to'.-this suit, were appointed under a law of the State, and claimed under that appointihent. . The point in. .dispute, was whether the opposing party had not a right' prior and superior to the State, by virtue of an Indian reservation, made in the treaty by which the territory had been ceded to the United States. And in deciding the question, this court treated the acts of Congress granting the land to the State, and also the law of the State appointing the Commissioners, as valid and constitutional; and it is hot suggested, in the opinion, that the inhabitants of the township had a legal title to the.school section, or any right to appoint Commissioners to control and administer the fund, unless authorized to do so by a law of the State. In the case before us, therefore, if the act of 1816 does not vest the title in the State, it still remains in the United States, and not in the trustees.

8. if, however, these lands were conveyed to the trustees, by virtue of the act of the territorial legislature of 1806, yet they were but agents of the State, without any private individual interests, and have no ground therefore for this proceeding in equity against the State. The whole fund yras created by the public for public purposes. And in the case of the Dartmouth College, (4 Wheat. 629,) the court said, “ If the act of incorporation be a grant, of political'power, if it create a civil institution to-be employed in the administration of the government, or if the funds of the college be public property, or if the State of New Hampshire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act- according to its own judgment, unrestrained by any limitation of its power imposed by the Constitution of the-United States.” "Here the funds are contributed entirely by the public for a public, purpose, and these appellants have no private individual interest, and allege none in their bill in behalf of themselves or others, which entitles them to maintain a suit against the State. They are public agents for a public purpose, and nothing more, and so describe themselves.' The laws of the State, which directed the appropriation of the fund to the uses for which it was dedicated, are therefore constitutional and valid, under the decision above referred to, and in my opinion the decree of the Supreme Court of the State ought to be affirmed.

Order.

This cause came on to bé heard on the transcript of the record from the Supreme Court of the State of Indiana, 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 Supreme Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Supreme Court, in order that such further proceedings may be had therein, in conformity to the opinion of this court, as to law and justice may appertain.