text:
Ford v. Surget

ERROR to the Supreme Court of the State of Mississippi.

Ford filed his complaint against Surget in the Circuit Court of Adams County, Mississippi, on the 2d of October, 1866, alleging that he, 'at his plantation in said county, on the fifth day of May, in the year 1862, was possessed, as of his own personal property, of two hundred bales of cotton, averaging in weight four hundred pounds per bale, and of the value of $600 per bale; and that he being so possessed, Surget, at the place aforesaid, and upon the day and year aforesaid, did wilfully and utterly, and against the consent and will of the plaintiff, destroy of fire the said two hundred bales of cotton,' to the plaintiff's damage in the sum of $120,000.

The defendant pleaded not guilty, and also filed numerous special pleas.

The defence, although presented by the special pleas in different forms, is, in substance, embraced by the following allegations, namely:--

That, at and before the time the alleged trespasses were committed, the people of Mississippi, and of Virginia, North Carolina, South Carolina, Florida, Georgia, Alabama, Louis iana, Arkansas, and Texas, had confederated together for revolt against, and within their territorial limits had entirely subverted, the government of the United States, and in place thereof, and within and for their territory and people, had created a new and separate government, called the Confederate States of America, having executive, legislative, and judicial departments; that on the 6th of March, 1862, and from that date until the time when the alleged trespasses were committed, a war had been, and was then, waged and prosecuted by and between the United States and the Confederate States, and against each other, as belligerent powers and nations; that the Confederate States, for the prosecution of the war and the maintenance of its powers, then and before had maintained in its service, in the State of Mississippi, an army of which General Beauregard was commander, whereby the territory, property, and inhabitants of that State were held in subjection to and under the control of the Confederate States; that on the 6th of March, 1862, and by an act on that day approved and promulgated by the Confederate congress, it was declared to be the duty of all military commanders in the service of the Confederate State to destroy all cotton, tobacco, and other property that might be useful to the forces of the United States, whenever, in their judgment, the same should be about to fall into their hands; that afterwards, on the 2d of May, 1862, General Beauregard, commanding the Confederate forces, in obedience to that act, made and issued a general ordered, directed to officers under his command in the State of Mississippi and in the service of the Confederate States, to burn all cotton along the Mississippi River likely to fall into the hands of the forces of the United States; that before and at the date last mentioned, and afterwards, until the time the supposed trespasses were committed, Alexander K. Farrar was acting as provost-marshal of the county of Adams, charged with the duty, among others, of executing, within that county, the orders of military commanders in the State of Mississippi in the service of the Confederate States, and in pursuance thereof was commanded by the Confederate military authorities to burn all the cotton along the bank of that river likely to fall into the hands of the forces of the United States; that the cotton in the complaint mentioned was near the bank of the Mississippi within that county, and was, when burned, likely to fall into the hands of the Federal forces; that the defendant was than ordered and required by said Farrar, acting as provost-marshal under the orders aforesaid, to burn certain cotton, including the cotton in controversy; and that afterwards the defendant, in obedience to the act of the Confederate congress, and the orders of said military commanders and provost-marshal, did burn Ford's cotton, which is the supposed trespass complained of.

To each of the special pleas the plaintiff in error demurred, assigning numerous causes of demurrer. The demurrers were overruled and replications filed. The cause, being at issue, was tried by a jury. Verdict for the defendant. Judgment having been rendered thereon, the plaintiff removed the cause to the Supreme Court of the State. Upon the affirmance of the judgment, he sued out this writ of error.

Mr. R. D. Mussey for the plaintiff in error.

This court has jurisdiction. The pleadings draw in question the validity of a statute, set up by the defendant as a justification for his destruction of the plaintiff's property. Its validity, although assailed, upon the ground that its provisions violated rights, privileges, and immunities claimed by the plaintiff under the Constitution of the United States, was sustained by the decision of the court below.

The state, so far as this case is concerned, derived all its force from the effect given to it as the law of the land in Mississippi, by her solemnly expressed sanction of the acts of the 'Confederate States,' of which she was a member. It must, therefore, be regarded as her statute, within the meaning of the provision which confers upon this court jurisdiction to re-examine upon error the judgment or decree of a State court. The defendant's attempted justification rests upon two grounds:--

1. An act of the Confederate congress.

The Confederate States were only the military representative of the rebellion, and were never recognized by the United States as a de facto government. Their enactments are, therefore, absolute nullities, and cannot be pleaded, as a justification for the wrongful act of Surget. Hedges v. Price et al., 2 W. Va. 234; Caperton v. Martin, 4 id. 38; Franklin v. Vannoy, 66 N. C. 145; The Sequestration Cases, 30 Tex. 688; Reynolds, Auditor, v. Taylor, 43 Ala. 434; Keppel's Adm'rs v. Petersburg Railroad Co., Chase's Decisions, pp. 209, 210; United States v. Morrison, id. 525; Evans v. City of Richmond, id. 551; Texas v. White, 7 Wall. 700; Horn v. Lockhart, 17 id. 570; Sprott v. United States, 20 id. 459.

2. Belligerent rights.

The Confederate forces had no rights other than those expressly granted them; and hence it is incumbent on the defendant to aver that the precise belligerent right set up by him as a justification had been granted. Such averment is wanting in his pleas. No such right as is invoked in the argument was ever granted by the United States to the insurgents, by any proclamation, order, or statute. The courts are concluded in this respect by the action of the political department. They cannot supplement or extend the grant.

This court, in passing upon such rights, has carefully excluded any enlargement of them, and confined itself of the definition of what was actually given. See, for instance, Coppel v. Hall, 7 Wall. 554.

Conceding that the orders in question were lawfully issued, they can only justify the military man who executed them.

It is not averred that the defendant had any allegiance to the Confederate forces as a volunteer or a conscript, or that there was any vis major compelling him to obey the orders.

It is even denied, by high authority, that an act of a Confederate soldier, committed in violation of private rights as well as of public duty, can find a justification in the order of his commanding officer. Hedges v. Price et al., 2 W. Va. 234; Caperton v. Martin, 4 id. 138; Franklin v. Vannoy, 66 N. C. 145.

But be this as it may, the exemption from individual and personal liability does not extend to a citizen who, not directly connected with the Confederate forces, committed acts of private wrong in aid of the rebellion. Cochran & Thompson v. Tucker, 3 Cold. (Tenn.) 186; White v. Hart, 13 Wall. 646, 651; Sprott v. United States, 20 Wall. 459, 465.

Mr. W. T. Martin for the defendant in error.

A preliminary question of jurisdiction arises. To give jurisdiction here, it must affirmatively appear from the record not only that a Federal question was raised, but that it was actually decided, or that the judgment as rendered by the State court could not have been given without deciding it. Brown v. Atwell, 92 U.S. 327; Armstrong et al. v. Treasurer of Athens County, 16 Pet. 281; Bridge Proprietors v. Hoboken Company, 1 Wall. 116; Murdoch v. City of Memphis, 20 id. 590; Railroad Company v. Maryland, id. 643; Cockroft v. Vose, 14 id. 5.

If the judgment might have proceeded upon some ground of general law, independently of the Federal question, the jurisdiction fails. Klinger v. Missouri, 13 Wall. 257; Commercial Bank v. Rochester, 15 id. 639; Rector v. Ashly, 6 id. 142; Gibson v. Choteau, 8 id. 317; Steines v. Franklin County, 14 id. 15; Kennebeck Railroad v. Portland Railroad, id. 23; Caperton v. Boyer, id. 216.

A plea of not guilty, and several special pleas all ultimately leading to issues of fact, were filed. The jury found for the defendant, and judgment was rendered in his favor. There was no bill of exceptions embodying the evidence or the instructions of the court. The judgment of the Supreme Court, affirming, in general terms, that of the subordinate court, having been, for aught that the record discloses, rendered irrespectively of any matter of law which might have been raised upon the special pleas, presents nothing which justifies the conclusion that a Federal question was actually decided. Neither the published opinion of the Appellate Court, nor the assignment of errors there filed, constitutes a legitimate part of the record; and, therefore, although incorporated in it, furnishes no aid in determining whether jurisdiction exists here. Medberry et al. v. State of Ohio, 24 How. 413.

So far as the record is concerned, the whole case may have turned solely upon the insufficiency of the evidence to maintain the issue for the plaintiff upon the plea of not guilty.

If, however, this court takes jurisdiction, and considers that the validity of the special pleas is a subject of discussion here, it is submitted that they are sufficient to bar the action.

The property of the plaintiff alleged to have been destroyed at his residence in Mississippi, May 5, 1862, was cotton, an article which each beligerent regarded as possessing a special character, and treated, even in the hands of non-combatants, differently from ordinary private property. 'It is well known,' said this court in Mrs. Alexander's Cotton (2 Wall. 420), 'that cotton has constituted the main reliance of the rebels for means to purchase the munitious of war in Europe. It is a matter of history, that, rather than permit it to come into possession of the national troops, the rebel government has everywhere devoted it, however owned, to destruction.' The regulations established by the Federal government, the acts of its officers,-military, naval, civil,-and the decisions of its courts, show what importance it attached during the war to that species of property, and how it would be disposed of if found in the hands of a resident of a State in rebellion. It was treated by the respective belligerents as contraband of war, and was by each the subject of special governmental control and action, whether for its preservation, seizure, confiscation, or destruction.

The Confederate States, in prosecuting the war, had the right to destroy such property found within the limits of their military occupation, in order to prevent its seizure by the United States. Being a de facto government, its statutes and orders must have been necessarily obeyed by all persons residing within those limits. By acts of obedience in submission to a power which they could not resist, such persons did not become responsible as wrong-doers. Thorington v. Smith, 8 Wall. 1, citing United States v. Rice, 4 Wheat. 246, and Fleming v. Page, 9 How. 603.

The plaintiff insists that the statute in question was a nullity, having no binding force in law; that the Confederate States were founded upon an usurpation of the authority and jurisdiction of the United States, and were not recognized by the latter even as a de facto government.

The authorities are not consistent upon the subject. While, therefore, a decree confiscating the property of a non-resident of the Confederate States, or sequestering a debt due to him or to the United States, would, although rendered in accordance with a statute, be held inoperative to pass the title to the property or to extinguish the debt, no decision can be found affirming that, in such a case as this, the statute in question would not afford a complete justification to the defendant.

In 1862 the war was in progress. Ford and Surget resided in Mississippi, and were there justly regarded and treated as having, by their own voluntary act, rendered themselves subject to the Confederate government. They were alike in rebellion, and in its cause risked person and property. The rebels, as between themselves, or as between themselves and the Confederate government, must be held to have acquiesced in its authority, and to have incurred no liability by rendering obedience to its enactments.

Ford was, in judgment of law, a party to the acts of that government. 1 Kent, 63. He might perhaps have claimed compensation from it if the rebellion had been successful, but certainly not from Surget, acting under its order. They, and many thousands besides, established and recognized it as the government of their choice. It has perished; and Ford now asks that Surget be compelled to indemnify him for losses he sustained in their common attempts to maintain it and displace the authority of the United States. No court will sanction such an unreasonable and unjust demand. Vattel (ed. 1855), 402, sect. 232.

But rejecting as surplusage the allegation of the pleas touching the statute, they are a valid bar. The United States, from sound policy as well as humanity, conceded to the organized military forces of the Confederate States the same status and rights as if they had been engaged in warfare on behalf of a lawfully existing and independent power. The Federal army, in extending its sphere of successful operations, seized all cotton found within the insurgent States, and the proceeds of the sales of that species of property were paid into the treasury. The United States thus increased its resources for the prosecution of the war. Wherever, therefore, such property was liable to capture by that army, the Confederate commanders, in the absence of any statute of their government on the subject, had, by the laws of war, the same right to destroy it as if it had formed part of their public stores or munitions of war. The history of that eventful period renders it certain that the orders in the pleas mentioned would, at every hazard, have been carried into execution.

It is said, however, that Surget does not aver that he was in the military service. The allegation is not that provost-marshal was charged with the execution of those orders, and that by him Surget 'was ordered and required to burn' the cotton for the loss of which this suit was brought. He was, therefore, subjected to the military power, and his obedience to its commands would have been undoubtedly enforced by the same means of coercion as if he had been an enlisted soldier. The doctrine of vis major, therefore, applies.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

title: Ford v. Surget


text: Talk:Ford v. Surget

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Ford v. Surget


text:
Ford v. Surget/Opinion of the Court

We can notice only the ground of demurrer, which suggests that the defendant in his pleas sought to rely 'for justification of the trespass committed by him upon matters in themselves wholly illegal, against peace and good policy, and contrary to the Constitution of the United States, the supreme law of the land, and the government thereof.'

In view of the decision in Williams v. Bruffy (96 U.S. 176), but little need be said upon the preliminary question of the jurisdiction of this court. What is there decided would seem to be conclusive, in this case, upon the point of jurisdiction. That was an action of assumpsit for goods sold in March, 1861, by citizens of Pennsylvania to one Bruffy, a citizen of Virginia. The administrator of Bruffy claimed that the estate was not liable for the debt sued for, because, pending the recent war, his intestate paid the debt to a receiver of the Confederate States, in pursuance of a decree of a Confederate district court in Virginia, rendered in conformity with the provisions of an act of the Confederate congress, passed Aug. 30, 1861, sequestrating the lands, tenements, goods, chattels, rights, and credits within the Confederate States, and of every rights and interest therein, held by or for any alien enemy after May 21, 1861. That defence was sustained in the State courts, and, upon error, it was insisted that this court had no jurisdiction to review the final judgment of the Supreme Court of Appeals of Virginia. Referring to the provision in the statute conferring appellate jurisdiction upon this court, 'where is drawn n question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity;' and referring also the provision conferring such jurisdiction, 'where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority,'-this court decided that its right to review that judgment could be maintained upon both of those clauses of the amended Judiciary Act.

Some of the grounds of our decision are thus stated in the opinion of the court:--

'The pleas aver that a confederation was formed by Virginia and other States, called the Confederate States of America, and that under a law of this confederation, enforced in Virginia, the debt due to the plaintiffs was sequestrated. Now, the Constitution of the United States prohibits any treaty, alliance, or confederation by one State with another. The organization whose enactment is pleaded cannot therefore be regarded in this court as having any legal existence. It follows that whatever efficacy the enactment possessed in Virginia must be attributed to the sancting given to it by that State. Any enactment, from whatever source originating, to which a State gives the force of law, is a statute of the State, within the meaning of the clause cited relating to the jurisdiction of this court. . . . By the only authority which can be recognized as having any legal existence, that is, the State of Virginia, this act of the unauthorized confederation was enforced as a law of the commonwealth. Its validity was drawn in question on the ground that it was repugnant to the Constitution of the United States, and the decision of the court below was in favor of its validity.'

We do not perceive that this case, upon the question of jurisdiction, can be distinguished from Williams v. Bruffy. The defendant, Surget, justifies his burning of the cotton under military orders, issued by a Confederate general, in pursuance of authority conferred by an act of the Confederate congress. If we regard substance rather than mere from or technical accuracy, the defense rested upon that act, the validity of which was, in terms, questioned by the several demurrers to the special pleas. The general orders of the State court overruling the demurrers must be accepted, in every essential sense, as an adjudication in favor of the validity of an act of the Confederate congress, recognized and enforced as law in Mississippi, and which act, according to the rule laid down in that case, must be, therefore, regarded by us as a statute of that State, within the meaning of the provisions of the act declaring the appellate jurisdiction of this court. It results that we have power to review the final judgment of the Supreme Court of Mississippi.

We come now to the consideration of the merits of the case, so far as they seem to be involved in the demurrers to the special pleas.

The principles of public law, as applicable to civil and international wars, have been so frequently under discussion here, that we shall not avail ourselves of the opportunity now afforded to renew that discussion, or enlarge upon what has been heretofore said. The numerous decisions of this court, beginning with the Prize Cases (2 Black, 635), and ending with Williams v. Bruffy (supra) and Dewing v. Perdicaries (96 U.S. 193), render any further declaration as to these principles wholly unnecessary for the purposes of the present case. Without attempting to restate all the reasons assigned in adjudged cases, for the conclusions therein announced, we assume that the following propositions are settled by, or are plainly to be deduced from, our former decisions:--

1. The district of country declared by the constituted authorities, during the late civil war, to be in insurrection against the government of the United States, was enemy territory, and all the people residing within such district were, according to public law, and for all purposes connected with the prosecution of the war, liable to be treated by the United States, pending the war and while they remained within the lines of the insurrection, as enemies, without reference to their personal sentiments and dispositions.

2. There was no legislation of the Confederate congress which this court can recognize as having any validity against the United States, or against any of its citizens who, pending the war, resided outside of the declared limits of the insurrectionary districts.

3. The Confederate government is to be regarded by the courts as simply the military representative of the insurrection against the authority of the United States.

4. To the Confederate army was, however, conceded, in the interest of humanity, and to prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged under the laws of nations to the armies of independent governments engaged in war against each other,-that concession placing the soldiers and officers of the rebel army, as to all matters directly connected with the mode of prosecuting the war, 'on the footing of those engaged in lawful war,' and exempting 'them from liability for acts of legitimate warfare.'

5. The cotton for the burning of which damages are claimed in this civil action was, as to the United States and its military forces engaged in the suppression of the rebellion, not only enemy, but hostile property, because being the product of the soil, and, when burned, within the boundary of the insurrectionary district, it constituted also, as we know from the history of the insurrection it did, 'the chief reliance of the rebels for means to purchase the munitions of war in Europe.' Young v. United States, supra, p. 39; Mrs. Alexander's Cotton, 2 Wall. 404. It was therefore liable, at the time, to seizure or destruction by the Federal army, without regard to the individual sentiments of its owner, whether the purpose of effect of such seizure or destruction would have been to strengthen that army, or to decrease and cripple the power and resources of the enemy.

It would seem to be a logical deduction from these doctrines a deduction strengthened by considerations of humanity and public necessity-that the destruction of the same cotton, under the orders of the Confederate military authorities, for the purpose of preventing it from falling into the hands of the Federal army, was, under the circumstances alleged in the special pleas, an act of war upon the part of the military forces of the rebellion, for which the person executing such orders was relieved from civil responsibility at the suit of the owner voluntarily residing at the time within the lines of the insurrection. We do not rest this conclusion upon any authority conferred or attempted to be conferred upon Confederate commanders by the statute of the Confederate congress, recited in the special pleas. As an act of legislation, that statute can have no force whatever in any court recognizing the Federal Constitution as the supreme law of the land. It is to be regarded as nothing more than a declaration upon the part of the military representative of the rebellion, addressed to Confederate commanders, affording evidence to those adhering to the rebellion of the circumstances under which cotton within the lines of the insurrection might be destroyed by military commanders in the service of the Confederate States. It, however, assumed to confer upon such commanders no greater authority than, consistently with the laws and usages of war, they might have exercised, without the previous sanction of the Confederate legislative authorities, as to any cotton within their military lines likely to fall into the hands of the Federal forces. They had the right, as an act of war, to destroy private property within the lines of the insurrection, belonging to those who were co-operating, directly or indirectly, in the insurrection against the government of the United States, if such destruction seemed to be required by impending necessity for the purpose of retarding the advance or crippling the military operations of the Federal forces. Of that mode of conducting the war, on behalf of the rebellion, no one could justly complain who occupied the position of an enemy of the United States, by reason of voluntary residence within the insurrectionary district.

It is insisted with much earnestness that Surget should not be allowed to take shelter under these doctrines, since it is not averred in the special pleas that he constituted any part of, or held any official relations to, the military forces of the rebellion. But such a technical, narrow construction of the special pleas should not be allowed to preval in a case like this. It is distinctly alleged that the Confederate government was, at the time of the burning of the cotton, exercising all the functions of civil government within the State of Mississippi, and over its property and inhabitants. It is further alleged that the defendant was an inhabitant and citizen of Mississippi, subject to Confederate power, authority, and jurisdiction, and that he was ordered and required by the provost-marshal-charged by the Confederate department commander with the execution of the order to burn the cotton in Adams County likely to fall into the possession of the Federal forces-to burn the cotton on Ford's plantation, and that it was so burned in obedience to the act of the Confederate congress and the orders of the military authorities. These allegations seem to be sufficiently comprehensive to admit evidence that the defendant acted under duress or compulsion. Taking into consideration the extraordinary circumstances in which the people of Mississippi were then placed, especially the absolute authority which the Confederate government and its military commanders were then exercising over that portion of the territory and people of the United States, the special pleas should be deemed, upon demurrer, as sufficiently averring the existence of such relations between Surget and the Confederate military authorities as entitled him to make the same defence as any soldier, regularly enlisted in the Confederate army, acting under like orders, could have made. Whether Surget was, in fact, required to execute the order of the provost-marshal does not appear. No bill of exception was taken, and in view of the explicit averment that Surget was required by military authority to burn Ford's cotton, we cannot assume upon demurrer that he was a mere volunteer to aid in its destruction.

It will be observed that we have assumed, from the pleadings, as we think we are justified in doing, that Ford resided on his plantation in the insurrectionary district at the time his cotton was burned. The contrary is not alleged, and was not claimed in argument. He does not pretend that he resided in a loyal State, or adhered to the government of the Union in its efforts to suppress the rebellion. There is no intimation that his residence in Mississippi was, in any degree, constrained or temporary. Whether the redress here sought could, consistently with the provisions of the Federal Constitution, be denied to one who, by the laws of war, is to be deemed an enemy to the lawful government, solely by reason of residence within the insurrectionary district pending the struggle, but who, in point of fact, was a loyal citizen, adhering to the United States, giving no voluntary aid or comfort to the rebellion, it is not necessary for us now to decide. No such question is here presented, and we forbear any expression of opinion upon it. It will be time enough to consider and determine that precise question when it arises.

Our conclusion, therefore, is that the act of the Confederate congress, recited in the special pleas, was of no validity as an act of legislation; and while the demurrers could not have been overruled upon the ground that such unauthorized legislation afforded protection to Surget, nevertheless, the general facts set out in the special pleas, considered in connection with the belligerent rights conceded to the rebel army by the government of the United States, do constitute a defence to this action, and upon this last ground the demurrer might have been properly overruled.

Whether the State court, in its instructions to the jury, correctly expounded the law of the case, we cannot, upon this review, determine. No bill of exception was taken, either as to the evidence or the instructions, and we cannot, therefore, determine what errors, if any, were committed in the trial of the case. We have limited our investigation altogether to the Federal questions raised by the demurrer to the special pleas.

Judgment affirmed.

title: Ford v. Surget/Opinion of the Court


text: Talk:Ford v. Surget/Opinion of the Court


text:
Howland v. Blake

APPEAL from the Circuit Court of the United States for the Eastern District of Wisconsin.

The facts are stated in the opinion of the court.

The case was argued by Mr. D. G. Hooker for the appellant, and by Mr. John T. Fish for the appellee.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Howland v. Blake


text: Talk:Howland v. Blake

title: Talk:Howland v. Blake


text:
Howland v. Blake/Opinion of the Court

This suit was commenced in 1873, and the claim may be stated thus: In 1857, Isaac Taylor loaned to Eugene Howland, upon a mortgage, the sum of $7,000, to enable him to complete the erection of certain buildings upon premises in the city of Racine, the entire cost of which was about $24,000, and which when completed produced an annual rent of $2,200.

Soon after the buildings were completed an agreement was made between the parties, which was carried out, that the possession of the property should be surrendered to Taylor, who should enter into possession and receive the rents, until the net proceeds thereof should pay the principal and the interest of the mortgage.

In 1861, while thus in possession, Taylor commenced a suit to foreclose his mortgage, claiming the sum of about $7,000 as due to him. Judgment was rendered, a sale had, and Taylor becoming the purchaser for the sum of $9,300, a deed was executed to him by the sheriff.

It is claimed that, while this foreclosure suit was in progress, it was agreed that Howland should make no defence, but allow a sale to take place; that Taylor should still hold the premises as security for the payment of the mortgage debt, and, when the rents had been sufficient for that purpose, reconvey the premises to Howland.

It is alleged that, under this agreement, Taylor purchased and remained in possession until April, 1863; that about that time he desired the payment of his money, and requested Howland to procure some other person to advance it; that Howland thereupon informed Blake and Elliott of all the facts before stated, requesting them to advance the money and take a conveyance from Taylor; that a conveyance to them from Taylor, absolute in form, was thereupon made, but upon the agreement that they would pay Taylor's debt, retain the premises until the rents thereof should reimburse them, and then would recovey the premises to Howland; that from that time until the commencement of the present action against them they have been in possession, receiving the rents which greatly exceeded the mortgage debt, with interest, taxes, insurance, and repairs. An account and a reconveyance are demanded.

An answer on oath having been waived, Blake and Elliott, the defendants, denied all the equities of the bill, and alleged other matters in defence. Taylor died in November, 1865.

At the hearing upon the pleadings and proofs, the bill was dismissed, upon the ground that where a mortgage had been foreclosed by action, and the equity of redemption sold by a decree of the court, and an absolute title given by the proper officer to the purchaser at such sale, evidence to show that a parol agreement was made pending the litigation, by which the interest to be obtained under the sale should remain a mortgage interest only, was incompetent. Howland appealed to this court.

The appellees, in addition to this ground of defence, insist that the evidence does not establish the alleged agreement, and that the complainant had no equity of redemption in the premises after the twenty-second day of May, 1860, when his interest in the same was sold by the sheriff of Racine County to Daniel P. Rhodes for $1,000, in pursuance of a decree of the Circuit Court of that county in proceedings to foreclose the lien of Wiltsie & Hetrick for materials used in erecting the buildings on the said premises.

We do not think it necessary to pass formally upon the legal position assumed by the Circuit Court, that parol evidence is not admissible to impeach a title acquired at a judicial sale, nor upon the contention that the sale to Rhodes, upon the proceeding to foreclose the lien of a material-man, terminated any alleged interest of Howland in the property.

The case may be decided upon a principle governing a class of cases of the same nature. Among them there are the following: Where a written instrument is sought to be reformed upon the ground that by mistake it does not not correctly set forth the intention of the parties; or where the declaration of the mortgagor at the time he executed the mortgage, that the equity of redemption should pass to the mortgagee; or where it is insisted that a mortgagor, by a subsequent parol agreement, surrendered his rights. These and the case we are considering are governed by the same principle.

In each case the burden rests upon the moving party of overcoming the strong presumption arising from the terms of a written instrument. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. A judgment of the court, a deliberate deed or writing, are of too much solemnity to be brushed away by loose and inconclusive evidence. Story, Eq. Jur., sect. 152; Kent v. Lasley, 24 Wis. 654; Harrison v. Juneau Bank, 17 id. 340; Harter v. Christoph, 32 id. 246; McClellan v. Sanford, 26 id. 595.

In this case, the evidence falls far short of affording this satisfactory conviction. It is not necessary to say that the complainant's claim is not made out, or that such claim is overthrown by the evidence of the defendants. We are all, however, of the opinion that the presumption of the deeds is not overcome by satisfactory and convincing proofs.

The testimony is voluminous and conflicting. It is enough to say that the only direct evidence of an agreement by Isaac Taylor that the foreclosure should not operate as such, but that the transaction should continue to be a mortgage, is that of R. W. Howland, a brother of the mortgagor. Throughout the whole transaction he was the person conducting the business on the part of the complainant, who was an absentee. He occupies very nearly the position of a party, and upon the unspotted testimony of a party two of the cases above cited adjudge that such a decree cannot be sustained.

Much also depends upon the value of the property in 1862; and upon this point the testimony is quite conflicting, the opinions as to its value ranging from $8,000 to $26,000. Russell v. Southard, 12 How. 139.

The warranty title given by Isaac Taylor, the party who it is alleged made the agreement, was not challenged until eight years after his death, and ten years after the sale on the foreclosure. He is proven to have been not only an upright, honest man, but skilful and astute in the transaction of his business. His one peculiarity was that of reducing to writing his most ordinary transactions, that there might be neither misunderstanding nor mistake.

Taylor took his mortgage of $7,000 in October, 1857. Soon after the buildings were completed, and received the rents. He did this, in pursuance of his habit, by virtue of a written authority from the mortgagor. In August, 1861, he commenced a foreclosure suit, and in June, 1862, perfected his title thereunder by a judicial sale and a sheriff's deed.

To show that he deliberately agreed that these proceedings should stand for nothing, and he be a mortgagee still, requires much more conclusive evidence than is here presented.

There is, undoubtedly, evidence produced by the complainant to sustain his claim; but, after a careful perusal of it, we are by no means satisfied that it is of the character and extent required by the principles above laid down.

The same is true of the agreement alleged to have been made by the defendants, Blake and Elliott. Its existence is denied by each of them, and it is not sufficiently proved for the purpose of this action.

This is not, however, so important. Unless the equity of redemption of Howland was kept alive by the alleged agreement with Taylor, he had no interest which could sustain in parol agreement by the defendants to buy the property for his benefit, and to convey to him when required. Such an agreement is one creating by parol a trust or interest in lands, which cannot be sustained under the Statute of Frauds. It is a naked promise by one to buy lands in his own name, pay for them with his own money, and hold them for the benefit of another. It cannot be enforced in equity, and is void. Levy v. Brush, 45 N. Y. 589; Richardson v. Johnsen, 41 Wis. 100; Payne v. Patterson, 77 Pa. St. 134; Bander v. Snyder, 5 Barb. (N. Y.) 63; Lathrop v. Hoyt, 7 id. 59; Story, Eq. Jur., sect. 1201 a (11th ed.).

Decree affirmed.

title: Howland v. Blake/Opinion of the Court


text: Talk:Howland v. Blake/Opinion of the Court


text:
Davie v. Briggs

APPEAL from the Circuit Court of the United States for the Western District of North Carolina.

The history of this litigation is substantially as follows:--

The land, containing about two hundred acres, the proceeds of which are involved in this suit was conveyed in the year 1829, for the consideration of $6,000, by John Teague, its then owner, to F. W. Davie, of South Carolina, a brother of Allen Jones Davie. In the succeeding year, F. W. Davie leased it, upon certain terms and conditions, to one McCulloch, for the term of twenty years, and in 1831, for the consideration of $5,000, he conveyed to the latter an undivided one-third of the whole tract, with the exclusive right to direct and manage the working of the mines thereon and to receive one-third of the profits arising therefrom, and a few months thereafter he, for the consideration of $3,000, conveyed an undivided third of the same tract, with all the emoluments and profits arising therefrom, to his brother, Hyder A. Davie.

The complainants claim that subsequently, on the 15th of January, 1833, F. W. Davie, in accordance with an agreement, which at the time of his purchase from Teague he made with Allen Jones Davie, conveyed the remaining undivided third of the tract to Cadwalader Jones, Sen., with all the rights and privileges thereunto belonging, in trust, to permit said Allen, his wife, and their children then living or thereafter resulting from their marriage, to have and receive the rents, profits, and issues of the said premises, and of all mines thereon found, for the joint use of said Allen, his wife and children, during the lifetime of the said Allen, and after his death to permit his wife and children to receive the said rents, profits, and issues, and after the death of the wife to convey the premises, &c., to such children and their issue, free and discharged from all trusts whatsoever; the conveyance, however, being upon the condition that the land and mines should be liable for one-third of such amount as upon settlement should be found to have been expended by F. W. Davie in working the mines. Upon that conveyance, which was never registered, and is alleged to have been lost, the complainants, heirs-at-law of said Allen, rest as the foundation of their right to the relief asked. The defendants deny that any such conveyance was ever executed and delivered by F. W. Davie as his act and deed. Said Allen, at the time of its alleged execution and delivery, was residing upon the land with his family, and had some connection with the working or management of the mines, the precise nature of which does not appear. Difficulties occurred between him and McCulloch, which gave rise to a suit in 1833 in the equity court of Guilford County, in the name of 'Allen Jones Davie and others,' against McCulloch. The papers in that suit had all disappeared when this was commenced, and nothing remained to indicate the nature of the issues but a few scattered minutes upon the trial docket. From them it appears that an injunction of some kind was granted against McCulloch which interfered with his mining operations. By an order made in 1836, the master was directed to ascertain the damages which McCulloch sustained by reason of the injunction. The final order in that case seems to have been made in 1840, in the Supreme Court, to which it was transferred for trial. That order is in these words: 'The deeds mentioned in the rules made at the last term in this cause not having been exhibited and filed in the office of this court by the time therein directed, it is ordered that the plaintiffs' bill be dismissed out of this court, with costs to be taxed by the proper officers, but without prejudice to the plaintiffs' right to file another bill.'

No other bill appears to have been filed. These minutes do not show who were complainants in that suit with Allen Jones Davie, or to what deeds the order of 1840 referred. Not long after that litigation, Allen Jones Davie removed from the vicinity of the mines to Hillsboro', N. C., and subsequently to South Carolina.

In 1848, McCulloch, for the consideration of $2,000, made a quitclaim deed to John Gluyas for the undivided third of the land conveyed to him by F. W. Davie in the year 1831. In the same year, Hyder A. Davie died, having by his last will devised and bequeathed to F. W. Davie, L. A. Beckham, and W. F. Desarre his whole estate, real and personal, in trust for the sole and separate use of his daughter, Mrs. Bedon. On the 2d of March, 1850, F. W. Davie made two deeds (which were duly recorded on the same day) to Beckham, one to him individually, for an undivided third of the land for the expressed consideration of $2,000, and the other to him for an undivided third of the same land, in trust for Mrs. Bedon, the consideration therefor, as recited, being $3,000, previously paid to the grantor by Hyder A. Davie. Within a few weeks after the making of these two last deeds, F. W. Davie died at his home in South Carolina. On 9th April, 1850 (whether F. W. Davie was then alive does not appear), Beckham leased an undivided two-thirds of the tract to Briggs for the term of five years, and the latter, on June 12, 1850, assigned that lease to John Peters and M. L. Holmes. During the succeeding year, Allen Jones Davie started for California by the overland route, and was never heard from after he had reached in his journey the hostile Indian Territory. In 1852, John Gluyas conveyed, by quitclaim deed, to John Peters and M. L. Holmes the undivided one-third which he had previously acquired from McCulloch; and in 1853 M. L. Holmes conveyed to R. J. Holmes one-eighteenth of the part purchased from Gluyas and a one-sixth interest in the lease taken by Holmes and Peters from Briggs. Under the foregoing deeds and leases, Peters, Sloan, & Co., for a time, worked the mines; and in June, 1853, they joined with Beckham in selling and conveying the property by separate deeds to the Belmont Mining Company, at the price of $125,000, which was paid to Peters, Sloan, & Co. Of that sum, it was agreed between the parties selling that Peters, Sloan, & Co. were entitled to $81,666.66, while Beckham, in his individual right and as trustee for Mrs. Bedon, was entitled to receive $43,333.33. Before this transaction, however, was consummated by a division of the funds among the respective parties, a written notice, dated July 23, 1853, signed by the attorney of 'Cadwalader Jones and the heirs of Allen Jones Davie, deceased,' was served upon Peters, Sloan, & Co., to the effect that 'one-third of the purchase-money for which the McCulloch mine in the county of Guilford has lately been sold is claimed by Colonel Cadwalader Jones, as trustee, for the use and benefit of the children and heirs-at-law of Allen J. Davie, by a deed from F. W. Davie, bearing date the 15th January, 1833.' They were, by that notice, 'requested and notified to retain one-third of said money' in their hands 'for the use of said heirs, and not to pay out said third to any person or persons without the consent of Col. C. Jones.' This notice induced Peters, Sloan, & Co. to suspend any final settlement and division with Beckham. In the fall of 1853, it seems that Cadwalader Jones, Jr., a son of the trustee named in the deed of Jan. 15, 1833, was employed by the latter, and by William R. Davie, to establish the claim of the heirs of Allen Jones Davie to said land and mines. After his employment, Cadwalader Jones, Jr., appears to have had some negotiations with Beckham, which resulted in the latter's executing, in the presence of Sloan, of Peters, Sloan, & Co., and Cadwalader Jones, Jr., a paper, of which the following is a copy:

'STATE OF NORTH CAROLINA, Guilford County:

'Whereas Peters, Sloan, & Co. held one-third of the McCulloch gold-mine in Guilford County, under John Gluyas, Charles McCulloch, and William F. Davie, and whereas they had a lease from Lewis A. Beckham in his own right, and as trustee of Mrs. Julia Bedon, for two-thirds of said mine for a period the lease will show;

'Whereas said Peters, Sloan, & Co. worked the said mine for some year or two, and paid one-seventh of the two-thirds of all the gold extracted whilst they worked the mine to said Lewis A. Beckham for himself, and as trustee aforesaid;

'Whereas Peters, Sloan, & Co. sold their interest in said mine for $82,333.33;

'Whereas Lewis A. Beckham sold his interest in said mine for $21,333.33, and his interest as trustee aforesaid for the same sum;

'Whereas Col. Cad. Jones, of Hillsboro', as trustee, claiming the one-third of said mine as trustee for Allen J. Davie, wife and children, as he alleges under a deed from William F. Davie;

'Whereas James Sloan, one of the firm of Peters, Sloan, & Co., collected for Lewis A. Beckham his part and the part of Julia Bedon, to wit, $41,666.66;

'Whereas it is the wish of all the parties for the said several parties to receive the said several purchases without prejudice to the legal or equitable claim of Col. Cad. Jones;

'It is agreed that whatever claim the said Cad. Jones had in said gold-mine he shall have against the several parties who have sold and received the purchase-money instead of the land itself. And the said Lewis A. Beckham hereby agrees to acknowledge service of any bill in equity which the said Cad. Jones and his cestui que trust may in equity file against himself or against himself and others in Guilford County, North Carolina, waiving all questions as to jurisdiction, to settle any and all questions of title and right the said Cad. Jones, trustee, or his cestui que trust, have or may have for the said purchase-money, or the rents and profits received whilst he had any thing to do with the said mines.

(Signed) 'L. A. BECKHAM

'APRIL 28, 1854.'Beckham died in 1860 or 1861. His estate was insolvent. In July, 1874, this suit was instituted for the purpose of either obtaining a partition of the land or a portion of the proceeds of the sale. In the progress of the suit the complainants elected to claim an interest in the proceeds of the sale. Among the defendants are the Belmont Mining Company, James Sloan, M. L. Holmes, and R. J. Holmes, whom the complainants seek to hold liable for their alleged interest in the proceeds of sale. Upon final hearing the bill was dismissed, and the complainants appealed.

The cause was argued by Mr. James Lowndes and Mr. Edward McCrady, Jr., for the appellants, and by Mr. Samuel F. Phillips for the appellees.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

title: Davie v. Briggs


text: Talk:Davie v. Briggs

title: Talk:Davie v. Briggs


text:
Davie v. Briggs/Opinion of the Court

The appellants, as the heirs-at-law of Allen Jones Davie, deceased, assert an interest in the proceeds of a sale which took place in June, 1853, of a tract of land in Guilford County, North Carolina, known many years ago as the McCulloch gold-mine.

Whether the defence, so far as it rests upon the Statute of Limitations of North Carolina, can be sustained, depends upon the evidence as to the time when Allen Jones Davie died. The learned counsel for appellants insist that, consistently with the legal presumption of death after the expiration of seven years, without Allen Jones Davie being heard from by his family and neighbors, the date of such death should not be fixed earlier than the year 1858. In that view,-excluding from the computation of time the war and reconstruction period between Sept. 1, 1861, and Jan. 1, 1870, as required by the statutes of North Carolina (Johnson v. Winslow, 63 N. C. 552), suit, it is contended, would not be barred by limitation. The general rule undoubtedly is, that 'a person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead, unless the circumstances of the case are such as to account for his not being heard of without assuming his death.' Stephen, Law of Evid., c. 14, art. 99; 1 Greenl. Evid., sect. 41; 1 Taylor, Evid., sect. 157, and authorities cited by each author. But that presumption is not conclusive, nor is it to be rigidly observed without regard to accompanying circumstances which may show that death in fact occurred within the seven years. If it appears in evidence that the absent person, within the seven years, encountered some specific peril, or within that period came within the range of some impending or immediate danger, which might reasonably be expected to destroy life, the court or jury may infer that life ceased before the expiration of the seven years. Mr. Taylor, in the first volume of his Treatise on the Law of Evidence (sect. 157), says, that 'although a person who has not been heard of for seven years is presumed to be dead, the law raises no presumption as to the time of his death; and, therefore, if any one has to establish the precise period during those seven years at which such person died, he must do so by evidence, and can neither rely, on the one hand, on the presumption of death, nor, on the other, upon the presumption of the continuance of life.' These views are in harmony with the settled law of the English courts. In Re Phene's Trust, Law Rep. 5 Ch. 139; Hopewell v. De Pinna, 2 Camp. N. P. 113; Rey. v. Lumley, Law Rep. 1 C. C. 196; Re Lewes's Trusts, Law Rep. 11 Eq. 236; 32 Law J. Ch. 104; 40 id. 507; 29 id. 286; 37 id. 265. In the leading case in the Court of Exchequer of Nepean v. ''Doe dem. Knight'' (2 Mee. & W. 894), in error from the Court of King's Bench, Lord Deninan, C. J., said: 'We adopt the doctrine of the Court of King's Bench, that the presumption of law relates only to the fact of death, and that the time of death, whenever it is material, must be a subject of distinct proof.' To the same effect are Mr. Greenleaf and the preponderance of authority in this country. 1 Greenl. Evid., sect. 41; Montgomery v. Bevans, 1 Sawyer, 653; Stevens v. McNamara, 36 Me. 176; Smith v. Knowlton, 11 N. H. 191; Flynn v. Coffee, 12 Allen (Mass.), 133; Luing v. Steinman, 1 Metc. (Mass.) 204; McDowell v. Simpson, 1 Houst. (Del.) 467; Whiting v. Nicholl, 46 Ill. 230; Spurr v. Trumble, 1 A. K. Mar. (Ky.) 278; ''Doe ex dem. Cofer v. Flanagan, 1 Ga. 538; Smith v. Smith'', 49 Ala. 156; Prim v. Stewart, 7 Tex. 178; Gibbes v. Vincent, 11 Rich. (S.C..) 323; Hancock v. American Life Insurance Co., 62 Mo. 26, 121; Stouvenal v. Sephins, 2 Daly (N. Y.), 319; McCartee v. Camee, 1 Barb. (N. Y.) Ch. 456. And such seems to be the settled doctrine in North Carolina. In Spencer v. Moore (11 Ired. 160), the Chief Justice of the Supreme Court of that State said: 'The rule as to the presumption of death is, that it arises from the absence of the person from his domicile without being heard from for seven years. But it seems rather to be the current of the authorities that the presumption is only that the person is then dead, namely, at the end of seven years; but that the presumption does not extend to the death having occurred at the end, or any other particular time within that period, and leaves it to be judged of as a matter of fact according to the circumstances, which may tend to satisfy the mind, that it was at an earlier or later day.' The question again arose in the subsequent case of Spencer v. Reper (13 id. 333, 334), when that court reaffirmed Spencer v. Moore, and, referring with approval to the doctrine announced by the Court of King's Bench in ''Doe dem. Knight v. Nepean (5 Barn. & Adol. 86, same case as 2 Mees. & W. 894, supra''), said: 'Where a party has been absent seven years without having been heard of, the only presumption arising is that he is then dead,-there is none as to the time of his death.'

We therefore follow the established law when we inquire whether, according to the evidence, Allen Jones Davie died at an earlier date than at the end or expiration of the seven years when the legal presumption of his death arose. It seems to us that, upon the showing made by the complainants themselves, the conclusion is inevitable that he died some time during the year 1851. As early as July 23, 1853, a written notice was given to Peters, Sloan, & Co., in which they were advised that Colonel Cadwalader Jones and the children of Allen Jones Davie claimed an interest in the proceeds of the sale made by them and Beckham in June, 1853, to the Belmont Mining Company. That notice was signed by 'Ralph Gorrill, sol'r of C. Jones and the heirs of A. J. Davie dec'd.' The notice is produced and relied upon by the complainants in support of their claim.

Further, in the seventh paragraph of the complainants' bill they say, 'That the said Allen Jones Davie departed this life, as it is believed, some time in the year 1851, but the precise date of his death is not known, nor can any direct proof be obtained, nothing having been heard from him since the ___ day of November, 1851, when some of a party with whom he had undertaken a journey by land to California, through the country of hostile Indians, returned, saying that the party had been some time fighting the Indians when they left, but that said Allen Jones Davie, with the rest of the party, resolved to press on and fight their way across the country, in which struggle it is believed that he, with the rest of the party, perished, as none of them have ever been heard of since.' Again, in the deposition of Cadwalader Jones, Jr., we find this language: 'As to Allen Jones Davie, the precise time of his death has never been ascertained, but he perished (it is supposed) in the Indian Territory, April or January, in the year 1851, and has never been heard of since.' But this is not all the evidence in the record upon this point. In a statement of 'admitted facts,' filed in the cause, we find the following: 'That the time of the death of Allen Jones Davie is not known, but his death is supposed to have happened late in the fall of 1851, say 1st December, since which time he has not been heard from.'

In view of this evidence, we cannot accept as absolutely controlling the legal presumption which, in regard to Allen J. Davie's death, arose at the expiration of seven years from the time when he was last heard from. We cannot determine the rights of the parties upon the hypothesis that his death occurred in the year 1858, when the appellants themselves and their chief witnesses not only unite in declaring their belief that he died in 1851, but state facts which fully justify that belief. Concluding then, as we must, that he died in the year 1851, it seems clear that the claim set up in the bill to an interest in the proceeds of the sale of June, 1853, is barred by the limitation of three years prescribed by the North Carolina statute; and it does not appear that any of the complainants are protected by the savings made in the statute for the benefit of infants and femes covert.

But it is contended that, in view of the absence of the appellants from North Carolina for many years prior to the sale of 1853, and their continuous absence since that date, their rights are protected by the saving in the North Carolina statute in favor of persons who, having causes of action, were 'beyond the seas' when they accrued.

We are not unaware of the construction which this court has in several decisions placed upon the phrase 'beyond the seas,' as used in statutes of limitation. In Faw v. Roberdeau (3 Cranch, 173), this court, in considering the meaning of the words 'out of this Commonwealth,' as employed in a Virginia statute of limitations, said: 'Beyond sea and out of the State are analogous expressions, and are to have the same construction.' In Murray's Lessee v. Baker et al. (3 Wheat. 541), involving the construction of a Georgia statute of limitation, this court held that the words 'beyond the seas' must be held to be equivalent to 'without the limits of the State.' In Bank of Alexandria v. Dyer (14 Pet. 141), the same views were expressed as to a Maryland statute of limitations. While the court in that case approved the interpretation of the words 'beyond the seas' as given in previous decisions, it said that its construction was in harmony with the uniform decisions of the courts of Maryland. In Shelby v. Guy (11 Pet. 366), the court was required to interpret the same words in a statute of limitation which was in force in Tennessee before its separation from North Carolina. Mr. Justice Johnson, in his opinion, remarked that it was neither sensible nor reasonable to construe these words according to their literal signification. Upon the suggestion, however, that a contrary decision had then recently been made in Tennessee, the court withheld any positive declaration upon the point, in the hope that the courts of the State would, in due time, furnish such lights upon its settled law as would enable this court to come to a satisfactory conclusion upon the question. The court at the same time decided, as they had previously done in Green v. Lessee of Neal (6 Pet. 291), and as they subsequently did in Harpending v. The Dutch Church (16 Pet. 455), and Leffingwell v. Warren 2 Black, 599), that the fixed and received construction by the State courts of local statutes of limitation furnishes rules of decision for this court, so far as such construction and statutes do not conflict with the Constitution of the United States.

Guided by the doctrines of these cases, let us inquire whether the phrase 'beyond the seas,' used in the statutes of North Carolina, has received a fixed construction in the courts of that State. As early as 1811, in the case of Whitlock v. Walton (2 Murph. 23, 24), the Supreme Court of North Carolina construed the words 'beyond the seas,' which were used in the Statute of Limitations of 1715. It was there claimed that a citizen of Virginia, who had a cause of action against a citizen of North Carolina, but who failed to sue within the period fixed by the statutes, was within the saving made for the benefit of those 'beyond the seas.' But the Supreme Court of that State said: 'The plaintiff is certainly not within the words of the proviso, and it does not appear to the court that he falls within the true meaning and spirit of it. Great is the intercourse between the citizens of this State and the citizens of other States, particularly adjoining States; and if suits were permitted to be brought on that account against our own citizens, at any distance of time, by citizens of other States, the mischief would be great.' That case was approved in Earle v. Dickson (1 Dev. 16), decided in 1826. We have been referred to no later case in that court which, in any respect, modifies these decisions. Consequently, our duty is, without reference to our former decisions, to adopt, in this case, the construction which the Supreme Court of North Carolina has given to the limitation statute of that State. In so doing, we pursue the precise course marked out in the case of Green v. Lessee of Neal (supra), where this court said: 'In the case of Murray's Lessee v. Baker, &c. (3 Wheat. 541), this court decided that the expressions 'beyond seas' and 'out of the State' are analogous, and are to have the same construction. But suppose the same question should be brought before this court from a State where the construction of the same words had been long settled to mean literally 'beyond seas,' would not this court conform to it?' The question was answered by saying that 'an adherence by the Federal courts to the exposition of the local law, as given by the courts of the State, will greatly tend to preserve harmony in the exercise of the judicial power in the State and Federal tribunals.' Supervisors v. United States, 18 Wall. 82; Suydam v. Williamson, 24 How. 427.

It results that the absence of the complainants from the State of North Carolina, but within the United States, does not bring them within the saving made for persons 'beyond the seas.'

But upon this branch of the case we are met with the additional argument against the application of the Statute of Limitations, that this is a case of an express trust, and therefore it is not embraced by the statute. This trust is alleged to have been created by the writing which Beckham executed on the 23d of July, 1854. But we do not assent to any such construction of that writing, nor do we perceive any thing in the conduct of the parties which raises a trust even by implication. As was well said by the district judge, 'No trust can arise by implication from the circumstances of the transaction, as the defendants assumed no new obligation, or in any way recognized the rights of the plaintiffs to the fund derived from the sale of the land. The defendants held these funds adversely, as they formerly held the lands. They only agreed that if the plaintiffs could show, in a court of equity, that they were entitled to any relief against the defendants as the former holders of the land, the same relief should be had against them as the holders of the proceeds of the land.' It is clear, from all the evidence, that no such relations were created between the parties, by the transactions of 1853 and 1854, as suspended or stopped the running of the Statute of Limitations, and the suit seems to be barred.

But independently of the conclusion reached upon the question of limitation, there is another view which, in our opinion, equally precludes all relief to the complainants. It is not at all satisfactorily shown that F. W. Davie ever delivered as his act and deed the conveyance of Jan. 15, 1833. The presumption is very strong that he did not. It may be inferred that the original purchase from Teague was made in deference to the wishes, or upon the suggestion, of Allen Jones Davie, whose estimate of the value of the gold under Teague's land was so extravagant that he expressed his belief of its sufficiency to pay the debt of England. The intention of F. W. Davie, perhaps, was at some future time, and when his judgment approved that course, to give his brother, who was of a restless, speculative disposition, an interest in the land. It was, doubtless, in preparation for the execution of that purpose that an original deed was prepared and signed by him, containing the terms, conditions, and trusts described in the bill, and of which the paper produced is satisfactorily shown to be a correct copy. But no witness proves that he ever delivered the original to Allen Jones Davie, or to any member of his immediate family, or to Colonel Jones, the designated trustee. If the deed which C. Jones, Jr., refers to is the same original, certainly his testimony falls far short of proving that it was ever in the possession of Allen Jones Davie. That witness states nothing more than his 'impression' that he saw the deed in the possession of Allen Jones Davie while the latter lived in Hillsboro', N. C. But he cannot remember its contents. Nor does he state in what year he saw it, or that he recognized the genuine signature of F. W. Davie to the deed. The original, of which the one filed is a copy, was certainly in the possession of William R. Davie, a son of Allen Jones Davie, some time after the death of F. W. Davie. But where, from whom, or when he obtained it does not appear. It is not proven that he obtained it in the lifetime of F. W. Davie. It is consistent with the proof, and is not a violent presumption, that it was found among the papers of F. W. Davie after his death. There is no competent evidence that any one over saw it in the hands of Allen Jones Davie, or that F. W. Davie, in his lifetime, in any form, recognized the right of his brother, or of the trustee, Jones, to its possession. Nor is it shown that the alleged trustee was aware, until after the death of F. W. Davie, of the trust intended to be conferred upon him, when the deed should be delivered.

The loose minutes on the trial docket of the case of Allen J. Davie and others against McCulloch furnish no evidence that Allen Jones Davie, during that litigation, had any such deed, or claimed any right under it. The reasonable construction of the order made, in that case, in the year 1840, is that the suit was dismissed because he could not produce any such deed; and if he could not produce it, it must have been because F. W. Davie still had it in his possession, and had not delivered it to his brother. From 1840, down to his leaving for California, Allen Jones Davie did not seem to have any connection with the mines, and no one proves any act or assumption of owner ship, upon his part, during that period. In view of the great value which, at one time, he placed upon this property, we cannot suppose, had the deed been in his custody or under his control at any time before starting on a perilous overland journey to California, that he would have left without either putting it upon record, or asserting his claim to the land in some distinct form, or protesting against the absolute sale to Beckham by F. W. Davie. More than a year before he departed for California, his brother had sold and conveyed to Beckham, by deed, promptly placed upon record, the identical interest in the land which the appellants claim had been, in 1833, effectively conveyed to their ancestor. If, when the conveyance to Beckham was made, F. W. Davie had not delivered the signed deed of 1833, his determination in 1850 not to make such delivery, but to sell the land to Beckham, cannot be questioned by plaintiffs in error. Allen Jones Davie had not, so far as the record shows, paid any thing for an interest in the land, either in money or services. The copy of the original deed which is produced recites no consideration except one dollar in hand paid; and while the record does not furnish an explanation of his change of purpose, it is clear that F. W. Davie was under no legal obligation which prevented him, in 1850, from selling the land, and withholding from his brother the delivery of the deed of 1833. So far as the record speaks, it appears to be a case of an unexecuted gift by F. W. Davie to his brother. His whole conduct for many years prior to his death is altogether inconsistent with the hypothesis that he had at any time, prior to his sale to Beckham, consummated the gift by delivering the deed to his brother. The conclusions we have expressed are much strengthened by what occurred after the sale to the Belmont Mining Company in June, 1853. In the fall of that year, C. Jones, Sen., in conjunction with William R. Davie, a son of Allen Jones Davie, employed C. Jones, Jr., an attorney and a kinsman of the latter, to establish the claim of the trustee and the children of Allen Jones Davie to the land, or to an interest in the proceeds of its sale. C. Jones, Jr., admits that he entered diligently upon the discharge of this duty. He was cognizant, because he was present at the execution, of Beckham's agreement of April 28, 1854, whereby it was stipulated that the trustee and cestui que trust might assert, through legal proceedings, any claim they had in the proceeds of the sale of the land, and wherein Beckham agreed to appear to any suit in equity instituted for such purpose, waiving all question of jurisdiction. Although Cadwalader Jones, Sen., lived within about sixty miles of the land for many years after the sale of June, 1853, no such proceedings were instituted until this suit was commenced in 1874, twenty-four years after the death of F. W. Davie, and twenty-one years after the sale to the Belmont Mining Company by his grantees, whose deeds were duly recorded. This great lapse of time since the sale of 1853, without an assertion, in some form of legal procedure, of the rights now claimed, is persuasive evidence that the persons who examined into the facts, when they were fresh in the minds of living witnesses, reached the conclusion that the deed of January, 1833, had never been delivered by F. W. Davie, and that therefore neither the trustee nor the children and heirs of Allen Jones Davie acquired any rights thereunder.

Upon the whole case we are satisfied that the decree dismissing the bill was right, and should be affirmed. It is

So ordered.

title: Davie v. Briggs/Opinion of the Court


text: Talk:Davie v. Briggs/Opinion of the Court


text:
Stacey v. Emery

ERROR to the Circuit Court of the United States for the Middle District of Tennessee.

The facts are stated in the opinion of the court.

Mr. Robert McPhail Smith for the plaintiff in error.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Stacey v. Emery


text: Talk:Stacey v. Emery

title: Talk:Stacey v. Emery


text:
Stacey v. Emery/Opinion of the Court

Emery, a supervisor of internal revenue, was sued by Stacey for causing the seizure of a quantity of whiskey belonging to him, which had been libelled by the collector of internal revenue, under Emery's direction, and subsequently released, on dismissing the proceedings against it.

That judgment and the accompanying order are in the words following: 'It is, therefore, considered by the court that the information in this cause be dismissed, and that the delivery bond given by the claimant for the property seized in this cause be discharged. It is further ordered by the court that the cost be certified to the proper accounting officers for payment, and that a certificate of probable cause of seizure be issued to W. D. Peabody, collector, it appearing that the seizure, although improperly made, was made by his superior officer, the supervisor.'

Emery justified as supervisor, and upon demurrer to his pleas setting up the certificate of probable cause as above set forth, judgment was given in his favor.

Stacey then sued out this writ of error, which is based on the ground that the certificate is no protection to Emery.

It is contended that the certificate protects the collector, on the sole ground that he acted as a ministerial officer, in obedience to the orders of his superior, and that the granting of the certificate in this form implies that the seizure was made without probable cause. These facts, it is said, determine conclusively that the seizure was wrongfully made, and that the defendant was a trespasser in making it. Gelston et al. v. Hoyt, 3 Wheat. 246; The Apollon, 9 Wheat. 362.

The defendant must and does base his exemption from liability for an unauthorized seizure of the plaintiff's goods upon the act of March 2, 1799 (1 Stat. 696, sect. 89), which provides as follows: 'When any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or merchandise, and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom such prosecution shall be tried that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof; and in such case the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor, be liable to action, suit, or judgment on account of such seizure or prosecution.'

Under this act, if it appeared to the court that there was a reasonable cause of seizure, it was its duty to cause a proper certificate to be made thereof. This was its sole duty in this respect, and its decision is conclusive. The reason entitling the defendant to exemption, or the motive for granting the certificate, makes no part of the record, and should not be recited therein. If the prosecutor had called together a jury of twelve good men prior to the seizure, and had taken their judgment whether the goods were liable to seizure, and had acted upon it, this circumstance should have found no place in the record. Its recital would have been surplusage simply.

So when the court states as a reason for granting a certificate of probable cause of seizure by the collector, that the seizure was made by the direction of his superior officer, this statement is irrelevant and superfluous. The certificate of probable cause is all there is of it. The residue of the sentence is out of the case. The unusual form of the certificate should work on prejudice to the rights of the defendant.

The act we have cited provides that, when such certificate shall be made, neither the party making the seizure nor the prosecutor shall be liable to action on account of such seizure or prosecution. The collector who made the seizure has been certified not to be liable, and the present defendant, the party directing the seizure,-that is, the prosecutor,-is equally entitled to exemption.

Generally, it is the duty of the district attorney of the United States to prosecute for all violations of the customs revenue laws, or the internal revenue laws of the country. Rev. Stat., sect. 838. No doubt he falls within the protection of this statute of 1799, as does the collector of customs, who is expressly authorized by the act of 1796 to direct actions to be commenced to recover the penalties for the violations in that act specified.

Supervisors of internal revenue are authorized to be appointed by the act of July 20, 1868. 15 Stat. 143, 144. It was made a part of their duty 'to see that all laws and regulations relating to the collection of internal taxes are faithfully executed and complied with, to aid in the prevention, detection, and punishment of any frauds in relation thereto.'

It was in the discharge of this duty to see that the laws were faithfully executed, and to aid in the detection and punishment of frauds, that the defendant gave the direction complained of.

We are of the opinion that this officer, equally with the district attorney and customs collector, is entitled to the protection given by the act of 1799.

The complaint alleges that the seizure of the goods was illegal, and wrongful and malicious, and it is now contended that a certificate of probable cause affords no protection where the seizure is malicious.

This is an error. The question of malice or of good faith is not an element in the case. It is not a question of motive. If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been committed, it is sufficient. Whether the officer seized the occasion to do an act which would injure another, or whether he moved reluctantly, is quite immaterial.

Mr. Justice Washington says, in Munn v. Dupont, 3 Wash. 37: 'If malice is proved, yet if probable cause exists, there is no liability. Malice and want of probable cause must both exist,' to justify an action. He then defines probable cause in these words: 'A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offence with which he is charged.'

Chief Justice Shaw defines it in similar language: 'Such a state of facts as would lead a man of ordinary caution to believe, or to entertain an honest and strong suspicion, that the person is guilty.' Ulmer v. Leland, 1 Me. 135.

In Forhay v. Ferguson (2 Den. (N. Y.) 617), the rule is laid down by Bronson, C. J., in the same language, with this addition: 'And such cause will afford a defence to a malicious prosecution, however innocent the plaintiff may be.' In that case, there was evidence to justify a finding that the prosecution had been from a bad motive. This rule is so clear, that it is not necessary to multiply authorities.

In the case before us, the certificate was of 'probable cause of seizure.'

The authorities we have cited speak of 'probable' cause. The statute of 1799, however, uses the words 'reasonable cause of seizure.' No argument is made that there is a substantial difference in the meaning of these expressions, and we think there is none. If there was a probable cause of seizure, there was a reasonable cause. If there was a reasonable cause of seizure, there was a probable cause. In many of these reported cases the two expressions are used as meaning the same thing: Talbot v. Seeman, 1 Cranch, 1; Carrington and Others v. Merchants' Insurance Co., 8 Pet. 495; United States v. Riddle, 5 Cranch, 311; Sixty Pipes of Brandy, 10 Wheat. 421; United States v. The Recorder, 2 Blatchf. 119. Although informal in this, as in the terms already referred to, we are of the opinion that the certificate is sufficient to protect a prosecutor, and that the defendant is to be ranked as of that class.

Judgment affirmed.

title: Stacey v. Emery/Opinion of the Court


text: Talk:Stacey v. Emery/Opinion of the Court


text:
Robertson v. Cease

ERROR to the Circuit Court of the United States for the Western District of Texas.

The facts are stated in the opinion of the court.

Mr. Halbert E. Paine for the plaintiff in error.

Mr. Philip Phillips, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Robertson v. Cease


text: Talk:Robertson v. Cease

title: Talk:Robertson v. Cease


text:
Robertson v. Cease/Opinion of the Court

This action was instituted on the 25th of September, 1873, by Cease, as the assignee of a note for $4,190, executed in Texas by Robertson, plaintiff in error, on the 2d of October, 1860, and made payable July 1, 1861, to the order of W. J. Chamblin, with interest at the rate of ten per cent per annum from date.

Does it sufficiently appear from the record that the case is within the jurisdiction of the Circuit Court? That is the first question to be considered upon this writ of error.

The payee, Chamblin, a citizen of Illinois, died in that State on the 29th of April, 1871. In September, 1873, the note sued on was assigned by his administrators to Cease. It appears from the pleadings that the heirs and administrators of Chamblin were also citizens of Illinois, both when the note was assigned to Cease and at the commencement of this action. It is also averred that Robertson, when sued, was a citizen of Texas, but there is no allegation as to the citizenship of Cease. The averment as to him is, that he 'resides in the county of Mason and State of Illinois.' It is, however, claimed by counsel to be apparent, or to be fairly inferred from certain documents or papers copied into the transcript, that Cease was, at the commencement of the action, a citizen of Illinois. One of those documents is a written notice, served by Robertson upon Cease's attorneys, that he would apply for a commission to examine as witnesses, in support of the plea in abatement, 'Chamblin, Winn, and Henry Cease, citizens of the county of Mason, State of Illinois.' The commission which issued, under the notice, from the clerk's office directed the examination of these witnesses, who are, in that document also, described as citizens of Illinois. The other document referred to is the deposition of Cease, which opens thus: 'My name is Henry Cease; residence, Mason County, Illinois; age, 52 years; occupation, grain dealer and farmer.' It is the settled doctrine of this court that, in cases where the jurisdiction of the Federal courts depends upon the citizen ship of the parties, the facts, essential to support that jurisdiction, must appear somewhere in the record. Said the Chief Justice, in Railway Company v. Ramsey, 22 Wall. 322: 'They need not necessarily, however, be averred in the pleadings. It is sufficient if they are, in some form, affirmatively shown by the record.' That view was approved in the subsequent case of Briges v. Sperry, 95 U.S. 401. Under the doctrine of these cases, it is contended that the citizenship of Cease in Illinois is satisfactorily shown by the foregoing documents, which, it is insisted, are a part of the record upon this writ of error. But this position cannot be maintained. It involves a misapprehension of our former decisions. When we declared that the record, other than the pleadings, may be referred to in this court, to ascertain the citizenship of parties, we alluded only to such portions of the transcript as properly constituted the record upon which we must base our final judgment, and not to papers which had been improperly inserted in the transcript. Those relied upon here to supply the absence of distinct averments in the pleadings as to the citizenship of Cease, clearly do not constitute any legitimate part of the record. They are not so made either by a bill of exceptions, or by any order of the court referring to them, or in any other mode recognized by the law. As there is nothing to show that the deposition of Cease, or the commission or notice under which it was taken, was before the jury or the court for any purpose, during the trial, no fact stated in them can be made the foundation of any decision we might render, either upon the merits or the question of jurisdiction. Looking, then, at the pleadings, and to such portions of the transcript as properly constitute the record, we find nothing beyond the naked averment of Cease's residence in Illinois, which, according to the uniform course of decisions in this court, is insufficient to show his citizenship in that State. Citizenship and residence, as often declared by this court, are not synonymous terms. Parker et al. v. Overman, 18 How. 137.

In the oral argument before this court, the inquiry arose, whether since the adoption of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]] to the Federal Constitution the mere allegation of residence in Illinois did not make such a prima facie case of citizenship in that State as, in the absence of proof, should be deemed sufficient to sustain the jurisdiction of the Circuit Court. That amendment declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State where they reside.' It was suggested that a resident of one of the States is prima facie either a citizen of the United States or an alien,-if a citizen of the United States, and also a resident of one of the States, he is, by the terms of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]], also a citizen of the State wherein he resides,-and if an alien, he was entitled in that capacity to sue in the Federal court, without regard to residence in any particular State. It is not to be denied that there is some force in these suggestions, but they do not convince us that it is either necessary or wise to modify the rules heretofore established by a long line of decisions upon the subject of the jurisdiction of the Federal courts. Those who think that the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]] requires some modification of those rules, claim, not that the plaintiff's residence in a particular State necessarily or conclusively proves him to be a citizen of that State, within the meaning of the Constitution, but only that a general allegation of residence, without indicating the character of such residence, whether temporary or permanent, made a prima facie case of right to sue in the Federal courts. As the jurisdiction of the Circuit Court is limited in the sense that it has none except that conferred by the Constitution and laws of the United States, the presumption now, as well as before the adoption of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]], is, that a cause is without its jurisdiction unless the contrary affirmatively appears. In cases where jurisdiction depends upon the citizenship of the parties, such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or they should appear affirmatively, and with equal distinctness, in other parts of the record. And so where jurisdiction depends upon the alienage for one of the parties. In Brown v. Keene (8 Pet. 115), Mr. Chief Justice Marshall said: 'The decisions of this court require that the averment of jurisdiction shall be positive, that the declaration shall state expressly the fact on which jurisdiction depends. It is not sufficient that jurisdiction may be inferred argumentatively from its averments.' Here the only fact averred, or appearing from the record, is that Cease was a resident of Illinois; and we are, in effect, asked, in support of the jurisdiction of the court below, to infer argumentatively, from the mere allegation of 'residence,' that, if not an alien, he had a fixed permanent domicile in that State, and was a native or naturalized citizen of the United States, and subject to the jurisdiction thereof. By such argumentative inferences, it is contended that we should ascertain the fact, vital to the jurisdiction of the court, of his citizenship in some State other than that in which the suit was brought. We perceive nothing in either the language or policy of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]] which requires or justifies us in holding that the bare averment of the residence of the parties is sufficient, prima facie, to show jurisdiction. The judgment must, therefore, be reversed, upon the ground that it does not affirmatively appear from the record that the defendant in error was entitled to sue in the Circuit Court.

The plaintiff in error insists that the reversal should be with directions to dismiss the petition, since he contends that an amendment of the pleadings, stating the citizenship of Cease, would be, in legal effect, a new suit, asserting a new cause of action, which would be barred by the Statute of Limitations. But it is clear that an amendment of that nature could not be so regarded, either upon principle or authority. It would introduce no new cause of action. It would only show, if its allegations as to citizenship are true, that the court had jurisdiction, from the commencement of the litigation, of the cause of action set out in the original petition. Whether after such an amendment the action would be barred by limitation would depend upon the time which had elapsed before the filing of the original petition, and not upon the time which had elapsed previous to the amendment. The allowance of such an amendment, under the circumstances of this case, is sustained by the former practice of this court. In Morgan's Ex'rs v. Gay (19 Wall. 81), the judgment of the court below was reversed, because it did not affirmatively appear that the citizenship of the parties was such as to give it jurisdiction; and the cause was sent back, 'that amendment may be made in the pleadings, showing the citizenship of the indorser of the bills, if it be such as to give the court jurisdiction of the case.' Such a course is peculiarly proper in this case, in view of the failure of the plaintiff in error to make, in the court below, the precise question of jurisdiction which he urges upon our consideration. He filed, it is true, a plea to the jurisdiction of the Circuit Court; but it did not impeach its jurisdiction upon the distinct ground that Cease did not appear to be a citizen of the State in which he resided. His denial of jurisdiction was upon the ground that the assignment to Cease was merely colorable, and for the fraudulent purpose of dispensing with letters of administration upon Chamblin's estate in Texas, thereby enabling a suit to be brought in the court below, in the name of the assignee, but really for the use and benefit of that estate. The parties, as we infer from the record, went to trial before the jury without any real controversy as to the citizenship of Cease being in Illinois. After verdict, Robertson moved in arrest of judgment, upon the general ground that there was 'no cause of action stated in plaintiff's petition of which this court can take cognizance, and because it appears from the face of the pleadings that this court has no jurisdiction of the cause.' But we cannot feel sure, from this general language, or from any thing in the record, that attention was called in the court below to the defect in the pleadings to which our attention has been specially directed. For these reasons the defendant in error should be allowed to amend the petition in respect to his citizenship at the commencement of the action, if his citizenship was then such as to authorize the court to proceed with the trial.

The assignment of errors embraces other questions, as to which we withhold any expression of opinion. Since the record shows no case of which the Circuit Court had jurisdiction, we do not feel at liberty, upon this writ of error, to determine any point affecting the merits of the litigation.

The judgment of the Circuit Court must, therefore, be reversed, with directions to grant a new trial, and for such further proceedings as may be in conformity to this opinion; and it is

So ordered.

title: Robertson v. Cease/Opinion of the Court


text: Talk:Robertson v. Cease/Opinion of the Court


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Barney v. Dolph

ERROR to the Supreme Court of the State of Oregon.

Ejectment by Dolph against Barney, for certain land in Polk County, Oregon, on which John Waymire, a married man, settled, under sect. 4 of the Donation Act of Sept. 27, 1850 (9 Stat. 496), and which he and Clarissa his wife after they had made and filed in the proper office the requisite final proof of settlement, continued residence, and cultivation, conveyed in fee by a quitclaim deed, bearing date Dec. 9, 1867, to one Riggs, under whom Dolph proved title.

Said Clarissa died before the issue of the patent. After its issue, said John executed a deed for the land to Barney, to whom, on the same day, Mary, a daughter of said John and Clarissa, also conveyed her interest in the land.

After Dolph had closed his case, Barney offered in evidence the deeds so executed to him; but upon Dolph's objection, the court excluded them, upon the ground that, by the deed to Riggs, said John and wife, then having full power of alienation, transferred the whole title to the land, and that no interest therein passed on her death to said John or said Mary. To this ruling Barney excepted. There was a verdict for Dolph; and the judgment rendered thereon by the Circuit Court for that county having been affirmed by the Supreme Court, Barney removed the case here, and assigns for error that the latter court erred in sustaining the ruling of the Circuit Court.

Mr. George H. Williams for the plaintiff in error.

Mr. J. H. Mitchell, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Barney v. Dolph


text: Talk:Barney v. Dolph

title: Talk:Barney v. Dolph