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Missouri Ry Co v. Dinsmore/Opinion of the Court

This motion to dismiss is made because, as is alleged, (1) the decree appealed from is not a final decree; and (2) the transcript is not properly certified.

1. As to the decree. The case is in some particulars different from that of the ''St. Louis, I. M. & S. Ry. Co. v. Southern Express Co.'', just decided,  but in our opinion the differences do not materially affect the present question.

Ante, 6. The decree in this case, as in that, requires the railway company to carry for the express company, and fixes the rate of compensation, 'until the further order or decree of this [circuit] court.' In this case, the reference to the master 'to take and state an account between the parties as to the compensation that should be and has been paid during the litigation, and up to the final termination thereof,' was entered before or at the time of the decree from which the appeal was taken. Still, in this, as in that, the reference is in respect to matters affecting the administration of the cause, and does not involve the merits. The reservation of power to change the rates operates only on the future, and was evidently intended for the purpose of enabling the court to act in case a change should be required. As the decree stands, the express company can require the railway company to carry at the rate which has been fixed.

2. As to the certificate. The clerk certifies the transcript sent up to be 'a true, full, and perfect copy from the record of all the proceedings in the suit.' Certainly this is sufficient for all the purposes of jurisdiction. If, in point of fact, the certificate is not true, the remedy is by certiorari to supply deficiencies, and not by motion to dismiss.

To meet this view of the case the appellee suggests diminution, and asks for a certiorari to bring up 'the evidence taken before * *  * William H. Rossington, as examiner, *  *  * remaining on file in the office of the clerk, constituting the exhibits, depositions, and proofs used on the argument of the cause in the *  *  * circuit court.'

Upon the face of the decree it appears that the case was disposed of on demurrer to the bill. If that be the truth, the evidence on file is not necessary for the hearing of the appeal, but as the record, which is here, has not been printed in full, and the parties do not agree in their statements as to what it contains, we will grant the certiorari asked for, reserving all further questions until the return is made.


text: Talk:Missouri Ry Co v. Dinsmore/Opinion of the Court

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


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Stebbins v. Duncan

[Syllabus on page 32 intentionally omitted]

[Statement of Case on pages 32-33 intentionally omitted]

''Geo. O. Ide and John W. Ross'', for plaintiff in error.

[Argument of Counsel from pages 33-35 intentionally omitted]

Thomas Dent, for defendants in error.

WOODS, J.

title: Stebbins v. Duncan


text: Talk:Stebbins v. Duncan

title: Talk:Stebbins v. Duncan


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Stebbins v. Duncan/Opinion of the Court

This was an action of ejectment, originally brought by William B. Morris, in the circuit court of the United States for the northern district of Illinois, against Howard Stebbins, the plaintiff in error, for the recovery of a quarter section of land, originally situate in Madison county, Illinois, but, when the suit was begun, situate in Stark county. Before the final trial of the cause, to-wit, on January 22, 1879, the death of the plaintiff was suggested, and the devisees named in the last will were made parties, as appears by the following entry upon the record of the court:

'Now come the parties by their attorneys, and Thomas Dent,     Esq., the attorney of the plaintiff, suggests to the court      the death of William B. Morris, and that Maria L. Duncan,      Harriet B. Cooledge, and Helen Cooledge are the devisees of      said deceased; and, on motion of the plaintiff's attorney, it      is ordered by the court that said devisees, Maria L. Duncan,      Harriet B. Cooledge, and Helen Cooledge, be made plaintiffs      herein.'

The defendant pleaded the general issue. The cause was tried by a jury, who returned a verdict for the plaintiffs, upon which judgment was rendered in their favor for the lands in controversy. To reverse that judgment, the defendant in the circuit court has brought the case here upon writ of error. A bill of exceptions was taken upon the trial, from which the following statement of the case is made:

Disregarding the order in which the testimony was * introduced, and arranging it chronologically, the plaintiffs below, to prove title in themselves, offered the following evidence:

(1) An exemplification of a patent from the United States to     one John J. Dunbar for the lands in controversy; (2) a      certified copy of a deed for the same lands from John J.      Dunbar to William Prout, dated January 6, 1818, said copy      being certified to have been made February 3, 1875; (3) a      certified copy of a deed for the same lands from William      Prout to Joseph Duncan, dated May 2, 1834, and recorded in      said county October 29, 1838; (4) certified copy of a decree      in chancery in the United States circuit court for the      district of Illinois, dated June 9, 1846, rendered in a cause      wherein the United States were complainants and the widow and      heirs of Joseph Duncan defendants, and of the proceedings      under said decree by which the premises in controversy in      this suit were sold to the United States; (5) certified copy      of the deed to the United States under said decree for the      same premises, made by William Thomas, commissioner, dated      August 12, 1846, and recorded January 17, 1848; (6) certified      copy of a deed for the same premises, dated December 28,      1847, and recorded June 5, 1848, to William W. Corcoran,      executed by R. H. Gillett, solicitor of the treasury, in      behalf of the United States; (7) certified copy of a deed for      the same premises, dated December 20, 1867, and recorded      March 12, 1868, from William W. Corcoran to William B.      Morris; (8) certified copy of the will of William B. Morris      and of the probate thereof, from which it appeared that Maria      L. Duncan, Harriet B. Cooledge, and Helen L. Cooledge, the      plaintiffs, were his residuary legatees.

To sustain the title, which the plaintiffs contended that they derived through these documents, they offered other evidence, which will be noticed hereafter, but they offered no evidence of the death of William B. Morris, the original plaintiff, since the certified copy of his will and of the probate thereof, and the letters testamentary issued thereon.

The defendant Stebbins, to show title in his lessor, offered in evidence the following title papers:

(1) An exemplification of a patent by the United States to     John J. Dunbar, dated January 6, 1818, for the lands in      controversy; (2) a certified copy from the recorder's office      in Stark county, Illinois, in which county the land is      situate, of a deed, dated January 6, 1818, from John J.      Dunbar to John Frank, conveying said land in fee, and      recorded in said county June 18, 1870; (3) other title deeds,      by which the title passed from the heirs of John Frank to      Benson S. Scott; (4) the stipulation of plaintiffs that      Stebbins, the defendant, was in possession of the land in      controversy at the commencement of the suit under said Benson      S. Scott as his tenant only, and, at no time, under any other      claim.

No exceptions were taken by the plaintiffs to the introduction of these title papers by the defendant.

The real contest in the case was between the title of the plaintiffs deduced through the deed of Dunbar to Prout, and their subsequent muniments of title put in evidence, and the title of defendant derived through the deed of Dunbar to Frank, and the subsequent conveyances put in evidence by him.

The defendant was in possession of the premises sued for. His evidence, which was not excepted to, gave him a prima facie title, and, unless the plaintiffs showed a better title, they should not have recovered the lands in controversy. It is, therefore, only necessary to consider the title which the plaintiffs claim to have shown in themselves. The errors assigned all relate to the admission by the court below of the evidence offered by the plaintiffs to sustain their title, and the charge of the court to the jury upon the effect of that evidence. These assignments of error we shall now proceed to consider.

The court admitted as evidence tending to prove the death of William B. Morris, the original plaintiff, the duly-certified copy of his will, and of the probate thereof in the probate court of the county of Suffolk, in the state of Massachusetts, and of the letters testamentary issued thereon, and the court charged the jury, in effect, that this evidence, uncontradicted, was sufficient to show the death of Morris. The admission of this evidence and the charge of the court thereon are assigned for error.

Whether the evidence objected to was or was not competent and sufficient to prove the death of Morris, it was clearly competent, the death of Morris being proved, to show title in the plaintiffs. The objection to its admissibility must, therefore, fall, if there was other evidence to show prima facie the death of Morris. We think that the suggestion in the record of the death of Morris, and the order of the court making his devisees parties, was sufficient for this purpose.

Section 10 of chapter 1 of the Revised Statutes of Illinois, P. 94, (Hurd, 1880,) provides that 'when there is but one plaintiff, petitioner, or complainant in an action, proceeding, or complaint in law or equity, and he shall die before final judgment or decree, such action, proceeding, or complaint shall not, on that account, abate if the cause of action survive to the heir, devisee, executor, or administrator of such decedent; but any of such to whom the cause of action shall survive may, by suggesting such death upon the record, be substituted as plaintiff, petitioner, or complainant, and prosecute the same as in other cases.'

The suggestion of the death of Morris, the sole plaintiff, was made in this case, as the record shows, by counsel for the devisees, both parties being present, and the court made the order, without objection, that the devisees be made plaintiffs in the case. We think that this suggestion, made without objection, and the order of the court thereon, settles prima facie, for the purposes of this case, the fact of the death of the original plaintiff. The statute provides upon whose suggestion of the death of a sole party plaintiff the court shall make his heir or devisee, etc., plaintiff in his stead. It certainly cannot be the fair construction of the statute that a party may stand by and see the suggestion of the death of the opposing party entered of record, and his heir or devisee substituted in his stead, and upon final trial require further proof of the death, at least without some notice of his purpose to raise that particular issue. The death of the plaintiff, after the order of the court, may be considered as settled between the parties for that case, unless some motion is made or issue raised on the part of the defendant by which the fact of the death is controverted. We have been referred to no decision of the supreme court of Illinois where a different rule has been announced. In the case of Milliken v. Martin, 66 Ill. 17, cited by counsel for defendant, the court merely decided that where a party plaintiff had died and his heirs were substituted in his place, they must prove that the person under whom they claimed was seized of the title and that they were his heirs. But the report of the case clearly shows that the point now under consideration was neither decided nor touched. We think, therefore, that the ruling and charge of the court below did not prejudice the defendent.

The next assignment of error relates to the admission in evidence by the court of the certified copy of the deed from Dunbar to Prout, and the testimony offered by the plaintiff to sustain such copy. The deed purported to be a conveyance, with covenants of general warranty, by Dunbar to Prout, of the land in controversy, for the consideration of $80. It recited that Dunbar was the patentee thereof, and set out the patent in full. The following is a copy of the in testimonium clause of the deed, of the signatures of the grantor and witnesses, the acknowledgment, affidavit of the grantor of his identity, his receipt for the purchase money, memorandum of registration, and certificate of the recorder of deeds for Madison county, Illinois:

'In witness of all the foregoing I have hereunto affixed my     hand and seal, at Washington City, in the county of      Washington and District of Columbia, this sixth day of      January, one thousand eight hundred and eighteen.

'JOHN J. DUNBAR. [Seal.]

'Signed, sealed, and delivered in the presence of—

'SAMUEL N. SMALLWOOD.

'JOSEPH CASSIN.

'District of Columbia, County of _____, ss.:

'Be it remembered that on this sixth day of January, 1818,     the above-named John J. Dunbarr, who has signed, sealed, and      delivered the above instrument of writing, personally came      and appeared before us, the undersigned justices of the      peace, and acknowledged, in due form of law, the same to be      his free act and deed, for the purposes therein set forth,      and also gave his consent that the same should be recorded      whenever it might be deemed necessary. In witness of all     which the said _____ has hereunto affixed his name and has      undersigned the same.

'JOHN his X mark. J. DUNBARR.

'Acknowledged before—

'SAMUEL N. SMALLWOOD.

'JOSEPH CASSIN.

'I, John J. Dunbarr, do declare upon oath that I am the same     person intended and named in the above deed, dated the sixth      day of January, 1818 and more particularly in the patent      therein recited at length, and further, that I was duly      placed in possession of the patent for the land conveyed in      the above deed, by receiving the same from the general      land-office.

'JOHN X J. DUNBARR.

'Sworn and subscribed to before me this seventh day of     January, 1818.

'SAMUEL N. SMALLWOOD.

'Received, this sixth day of January, 1818, from William     Prout, the sum of $80, being the consideration money      expressed in the above deed.

'JOHN his X mark. J. DUNBARR.

'Witness: JOSEPH CASSIN.

'Recorded June 23, 1818.

'State of Illinois, Madison County, ss.:

'I, John D. Heisel, clerk of the circuit court, and ex     officio recorder of deeds within and for Madison county, in      the state of Illinois, do hereby certify the above and      foregoing to be a true, perfect, and complete copy of an      instrument of writing or deed of conveyance now appearing of      record at my office in book E, pages 154, 155, and 156.

'In witness whereof I have hereunto set my hand and affixed     the seal of our said court, at office in the city of      Edwardsville, this third day of February, A. D. one thousand eight hundred      and seventy-five.

'[Seal.]

JOHN D. HEISEL, Clerk.'

The defendant below objected to the introduction of said certified copy in evidence, because the original deed was not so certified and proven as to make a certified copy from the record competent evidence, under the laws of Illinois.

The court, without passing at that time upon the objection, and not then admitting said writing in evidence as a certified copy, permitted the plaintiffs, at their request, to make the following proofs:

'And thereupon,' as the bill of exceptions states, 'the     plaintiffs proved, to-wit:

'(1) By Mr. Dent, one of the plaintiffs' counsel, that said     counsel had had in their possession, prior to the great fire      of October 8 and 9, 1871, in Chicago, an original deed      corresponding substantially in contents to the writing      offered in evidence, except that there was not attached to it      the official certificate, dated February 3, 1875; that he had      not compared said offered copy with said original, but he      believed from recollection that it corresponded with the      original, and that he had not made said alleged copy; that      said original deed had been sent to said counsel in behalf of      Wm. B. Morris, the then plaintiff, for use in this suit, and     had been offered in evidence on the first trial; that said      original deed had been burned up in the Chicago fire of      October 8 and 9, 1871; further, that said original deed had      been sent to Washington, and attached as an exhibit to the      original depositions of E. J. Middleton and George Collard,      hereinafter mentioned, and had subsequently been detached      therefrom by leave of the court, and returned to Washington      for use in taking the depositions of Henrietta Boone.

'(2) The plaintiffs further offered to read in evidence a     copy of the original depositions of E. J. Middleton and      George Collard, taken de bene esse on September 21, 1870, at      Washington, D. C., to which the defendant below objected. It     was admitted that the depositions had been correctly copied      by an attorney in the cause from the original depositions on      file in the case; that the original depositions, with the      other files and records of the court, were burned up in the fire at Chicago of October,      1871; that no order of the court had ever been made      authorizing the filing of said copy as a substitute for the      original depositions, and that no proceedings under any      statute had been had for the purpose of restoring said      original, but that after said fire the plaintiffs' counsel      had procured said copy from the counsel of defendant, and,      with his consent, had placed it on file in this cause as a      copy of the original depositions.

'The court thereupon overruled each of said objections to the     reading of said copy of the depositions, and permitted the      contents of said copy to be read in evidence, which was done;      to which decision of the court the defendant then and there      excepted.

'The contents of said copy so read were as follows: 'That     said Middleton and Collard had carefully examined the      signatures of Samuel N. Small wood on said original deed      purporting to be his in three different places, and aver the      said signatures to be the genuine handwriting of said Samuel      N. Smallwood; and that said original deed is annexed to their      depositions as Exhibit A; that they were personally      acquainted with Samuel N. Smallwood in his life-time, and      knew his handwriting, having often seen him write, and they      have no hesitation in declaring said signatures to be his      genuine signatures."

The plaintiffs also offered in evidence the deposition of William W. Corcoran, who testified that in 1847 he purchased the lands in controversy from the United States at public sale and paid the purchase money for them into the treasury of the United States, and that, at the time of the purchase, he had no notice of any adverse claim.

The plaintiffs further read in evidence a certified copy of a commission from President Monroe, attested by Richard Rush, acting secretary of state, and the seal of the United States, dated April 30, 1817, appointing Joseph Cassin, justice of the peace in the county of Washington, in the District of Columbia, until the end of the next session of the United States senate, and no longer; also a certified copy of a like commission, dated September 1, 1817, appointing Samuel N. Smallwood a justice of the peace of said county until the end of said session, and no longer.

The plaintiffs also offered in evidence the deposition of Anthony Hyde, who testified that he was the business agent in Washington City of W. W. Corcoran; that he knew of the purchase of the land in question by said Corcoran in 1847, and of the payment by him of over $22,000 into the treasury of the United States for this and other lands; that from February, 1848, up to the time when his testimony was taken, February 24, 1875, he had attended to all matters touching the tract of land in suit, such as the payment of taxes and the appointment of agents, up to the time of the conveyance thereof by Corcoran to William B. Morris; that he sent the original deed from Dunbar to Prout, attached to the depositions of E. J. Middleton and George Collard, to the counsel of plaintiffs below in Chicago, on October 11, 1870; that said deed was afterwards returned to obtain a deposition of one Mrs. H. H. Boone as to Joseph Cassin's signature, and was afterwards forwarded, attached to a deposition of Mrs. Boone, to the clerk of the United States circuit court at Chicago, on or about January 26, 1871.

Hyde further testifies that he had paid the taxes on said lands for Mr. Corcoran from 1847 to 1864, mainly through agents who lived in Illinois, but that he himself had for a year or two paid the taxes directly to the county officers.

Assuming, for the present, that the evidence offered to support the deed from Dunbar to Prout was competent and properly admitted, the question is presented whether the deed itself, thus supported, was admissible. We are of the opinion that it was.

The existence of the original deed and its destruction in the fire at Chicago, in October, 1871, was distinctly proved by the testimony of Dent, counsel for plaintiffs. He testified that it had been sent to the counsel in Chicago of the original plaintiff in the case; that it had been offered in evidence on the first trial of the case, and had been burned with the other papers and records of the court in the fire mentioned. It was therefore competent for the plaintiffs to prove its contents. Thus, in Riggs v. Taylor, 4 Wheat. 486, this court said:

'The general rule of evidence is, if a party intend to use a deed or any other instrument in evidence he ought to produce     the original if he has it in his possession, or if the      original is lost or destroyed secondary evidence, which is      the best the nature of the case allows, will, in that case,      be admitted. The party, after proving any of these     circumstances to account for the absence of the original, may      read a counterpart, or if there is no counterpart an examined      copy, or if there should not be an examined copy he may give      parol evidence of its contents.'

In the present case it does not appear that there was in existence any counterpart or examined copy of the destroyed deed. The only resource left to the plaintiffs was to prove the contents of the original by a witness who knew its contents. This was done by the deposition of Dent. He testified that the original deed corresponded substantially in contents to the certified copy offered in evidence, except that there was not attached to it the official certificate of the court, dated February 3, 1875. This evidence made the copy competent for the purposes of the trial.

Having thus established the fact of the original deed and its contents, the plaintiffs below were in the same position as if the original deed was in their possession and they had offered it in evidence. It remained for them to prove its execution.

It has been held by the supreme court of Illinois, that, under the act of February 19, 1819, for establishing a recorder's office, and which was substantially the same as the act of 1807, which was in force when the deed from Dunbar to Prout was executed, a deed is valid as between the parties to it without being acknowledged. Semple v. Miles, 2 Scam. 315. See, also, McConnell v. Reed, Id. 371.

Having established by proof the fact that the deed had existed and had been destroyed, and that the copy offered in evidence was a copy of the original, it only remained to prove the signing and sealing of the deed by the grantor.

As the witnesses to the deed were shown to be dead, the method pointed out by law to establish the execution of the deed was by proof of the handwriting of the witnesses to the deed. Clark v. Courtney, 5 Pet. 319; Cook v. Woodrow, 5 Cranch, 13. And when there was more than one witness, proof of the handwriting of one was sufficient. 1 Greenl. Ev. § 575; Adams v. Kerr, 1 Bos. & P. 360; 3 Prest. Abst. Tit. 72, 73.

By the depositions of Middleton and Collard, which the court admitted in evidence, the handwriting of Samuel N. Smallwood, one of the subscribing witnesses of the deed, was fully proven. His signature also to the acknowledgment of the deed as one of the justices of the peace before whom the acknowledgment was taken, and his signature to the jurat of an oath of identity indorsed on the deed, subscribed and sworn to before him by Dunbar, were proven by the same testimony. The genuineness of the handwriting of Smallwood as a witness to the deed was placed beyond all doubt by the depositions of these witnesses. If, therefore, the evidence by which this proof was made was competent and admissible, the execution of the deed from Dunbar to Prout was established, and the deed itself was properly admitted in evidence.

We are next to consider the question whether the copies of the depositions of Middleton and Collard, by which the handwriting of Smallwood was proven, were properly admitted in evidence. This evidence was objected to by the defendant, and his objection was overruled, to which he excepted.

The admission of the parties, as appears by the bill of exceptions, showed the existence of the original depositions; that they had been destroyed with the other records of the court in the fire of October, 1871; that the copies were correct copies of the original depositions, and had been furnished by counsel for defendant, and with his consent had been placed on file in the cause as correct copies of the original. The objection made to the introduction of the copies was that the death of the witnesses was not shown, nor was it proven that they were incompetent to testify, and that their depositions could not be retaken; therefore proof of what they had testified in their depositions was not admissible.

The rule invoked to exclude copies of the depositions is that in the absence of evidence that the witness who testified in a former trial is dead or incapable of testifying, or that his deposition cannot be retaken, it is not competent to show what his testimony in the former trial was; and that when the deposition of a witness which was read upon a former trial is lost, its contents cannot be proved except after proof of the death of the witness whose testimony it contained. Stout v. Cook, 47 Ill. 530; Aulger v. Smith, 34 Ill. 537.

But if the witnesses had lived in another state, and more than a hundred miles distant from the place of trial, proof of the contents of their deposition would have been admissible. Burton v. Driggs, 20 Wall. 125. Therefore, to have made the objection tenable, it should have also been put upon the ground that the witnesses were not shown to reside in another state and more than a hundred miles from the place of trial. This it did not do. When a party excepts to the admission of testimony he is bound to state his objection specifically, and in a proceeding for error he is confined to the objection so taken. Burton v. Driggs, ubi supra. The original depositions were taken in the city of Washington. It is, therefore, probable that the witnesses resided there. If the copy of the depositions had been objected to because it was not shown that the witnesses resided out of the district, and more than a hundred miles from the place where the court was held, the plaintiffs below might have supplied proof of that fact. The objection, as it was made, was not broad enough and specific enough, and was, therefore, properly overruled and the evidence admitted.

But we think the rule relied on by defendant to exclude copies of the deposition does not apply to the case in hand. The plaintiffs did not offer oral evidence of the contents of the depositions, but offered copies which were admitted by counsel for defendant to be true copies. It was, therefore, not necessary to retake the depositions or to prove the death of the witnesses, or their incapacity to testify. The copy of the deposition was, by consent, substituted for the original, which was proven to have been destroyed, and, being admitted to be a true copy, spoke for itself. It was, therefore, properly received in evidence.

It was further objected to the admission in evidence of the proof relating to the deed of John J. Dunbar to Prout, that as the testimony to establish its execution was the proof of the handwriting of subscribing witnesses, it was necessary to prove the identity of the grantor in the deed; that is to say, that the John J. Dunbar by whom the deed purported to be executed was the same John J. Dunbar named in the patent for the lands in controversy. In any case slight proof of identity is sufficient. Nelson v. Whittall, 1 Barn. & Ald. 19; Warren v. Anderson, 8 Scott, 384; 1 Selw. N. P. 538, note 7,(18th Ed.) But the proof of identity in this case was ample. In tracing titles identity of names is prima facie evidence of identity of persons. Brown v. Metz, 33 Ill. 339; Cates v. Loftus, 3 A. K. Marsh. 202; Gitt v. Watson, 18 Mo. 274; Balbie v. Donaldson, 2 Grant, (Pa.) 450; Bogue v. Bigelow, 29 Vt. 179; Chamblee v. Tarbox, 27 Tex. 139. See, also, Sewell v. Evans, 4 Adol. & E. 626; Roden v. Ryde, Id. 629. There was no evidence that more than one John J. Dunbar lived at the date of the deed in Matthias county, Virginia, which the deed recites was the residence of the grantor, nor in the District of Columbia, where the deed was executed, and there was no other proof to rebut the prima facie presumption raised by the identity of names in the patent and deed. But, besides the identity of names, there was other evidence showing the identity of persons. The patent and the deed bore date the same day, and the patent was cited in hoec verba in the deed. These circumstances tend strongly to show that the party by whom the deed was executed must have had possession of the patent. The deed recites that the patent was delivered to the grantor, John J. Dunbar, and the affidavit of John J. Dunbar, sworn to and subscribed on January 7, 1818, before Smallwood, a justice of the peace, and one of the subscribing witnesses to the deed, whose signature to the jurat is shown to be genuine, to the effect that he was the same John J. Dunbar to whom the patent was issued, was indorsed upon the deed.

After a lapse of 61 years, this evidence is not only admissible to prove the identity of the grantee in the patent with the grantor in the deed, but, uncontradicted, is conclusive.

We are, therefore, of opinion that the deed from John J. Dunbar to William Prout, which formed a link in the title of the plaintiffs, was sufficiently proven, and was properly admitted in evidence by the circuit court. The other muniments of title put in evidence by the plaintiffs were admitted without objection, and established prima facie their title to the lands in controversy. But it will be remembered that the defendant below had also shown a prima facie title to the lands in question; that both parties traced title through the patent of the United States issued to Dunbar, and through deeds apparently executed by him on the sme day, to-wit, January 6, 1818,-one to William Prout, under which the plaintiffs claimed, and the other to John Frank, under which the defendant claimed.

The question, therefore, still remains, which is the superior title? According to the jurisprudence of Illinois, this must be settled by the fact, which of the two deeds, apparently executed by Dunbar, was first recorded.

Section 15 of the act approved January 31, 1827, (Purple, Real Est. St. 480,) provided as follows:

'All grants, bargains, sales, etc., of or concerning any     lands, whether executed within or without the state, shall be      recorded in the recorder's office in the county where such      lands are lying, and being within 12 months after the      execution of such writings, and every such writing that      shall, at any time after the publication hereof, remain more      than 12 months after the making of such writing, and shall      not be proved and recorded as aforesaid, shall be adjudged      fraudulent and void against any subsequent bona fide      purchaser or mortgagee for valuable consideration, unless      such deed, conveyance, or other writing be recorded as      aforesaid, before the proving and recording of the deed,      mortgage, or other writing under which any subsequent      purchaser or mortgagee shall claim.'

This act remains substantially in force. Hurd, Rev. St. p. 271, § 30.

By an act, approved July 21, 1837, (Purple, Real Est. St. 496, 497,) it was provided that the recording of any deed, * *  * whether executed within or without the state, by the recorder of the county in which the lands intended to be affected are situated, shall be deemed and taken to be notice to subsequent purchasers and creditors from the date of such recording, whether said writing shall have been acknowledged or proven in conformity with the laws of the state or not, and that the provisions of the act shall apply as well to writings heretofore as those hereafter admitted to record. This law is still in force. See Hurd, Rev. St. 1880, p. 271, § 31.

It was held by the supreme court of Illinois, in Reed v. Kemp, 16 Ill. 445, that an instrument affecting or relating to real estate may be recorded, though not proven or acknowledged, and the record will operate as constructive notice to subsequent purchasers and creditors. See, also, Choteau v. Jones, 11 Ill. 320; Martin v. Dryden, 1 Gilman, 213. And in Cabeen v. Breckenridge, 48 Ill. 94, the court declared that, 'as a general rule, when the same person has executed two deeds for the same land, the first deed recorded will hold the title.'

The evidence shows that the deed of Dunbar to Frank, under which the defendant claimed title, was not recorded until June 18, 1870. The plaintiffs contended that the deed from Dunbar to Prout, under which they claimed, was recorded on June 23, 1818, and it was shown that the deed from Prout to Duncan was recorded October 29, 1838, and the deed of Gillett to Corcoran, June 5, 1848, and the deed of Corcoran to Morris, March 12, 1868. If, therefore, the contention of the plaintiffs that the deed of Dunbar to Prout was recorded June 23, 1818, is sustained by competent proof, their title must prevail.

But it is insisted for defendant that there was no competent proof of the registration of the deed of Dunbar to Prout. The proof relied on was the testimony of Dent, that the certified copy from the records of the county of Madison was a copy of the original deed; the certificate of the recorder that the certified copy was a copy of a deed which appeared of record in his office; and the certified copy of a memorandum at the foot of the record of the deed as follows: 'Recorded June 23, 1818.' Conceding that the certified copy of the deed from the records of Madison county would not be proof of the contents of the original deed, because such original deed had not been so acknowledged and certified as to make a certified copy competent evidence, yet the fact that such a record of the deed existed, was, by the law of Illinois, as we have seen, notice to subsequent purchasers. A certified copy from the record was, therefore, a proof that such a deed and memorandum was of record in the proper office. For it is a settled rule of evidence that every document of a public nature which there would be an inconvenience in removing, and which the party has the right to inspect, may be proved by a duly-authenticated copy. Saxton v. Nimms, 14 Mass. 320; Thayer v. Stearns, 1 Pick. 109; Dunning v. Roome, 6 Wend. 651; Dudley v. Grayson, 6 Mon. 259; Bishop v. Cone, 3 N. H. 513; 1 Greenl. Ev. § 484.

The memorandum at the foot of the record was the usual record evidence, competent and conclusive, that the deed had been recorded at the date mentioned. It was evidence of the date of the registration of the deed, because it was the duty of the recorder, by the nature of his office and without special statutory direction, to note when the record was made. 1 Greenl. Ev. § 483. But we think it may be fairly inferred from section 10 of the act of September 17, 1807, which was in force when it is claimed that the deed from Dunbar to Prout was recorded, that it was the duty of the recorder to note the time when deeds left with him for record were recorded. He was specifically required to note the date when the deed was received, and was liable to a penalty of $300 for recording any deed in writing 'before another first brought into his office to be recorded.' 1 Adams & D. Real Est. St. 63. The making of a memorandum of the date of record was, therefore, an official act, which naturally fell within the line of his statutory duties, and a certified copy of it would be competent evidence to prove the memorandum and the date of the registration of the deed.

We are of opinion, therefore, that the fact that the deed of Dunbar to Prout was recorded on June 23, 1818, was proved by competent evidence, and that it therefore follows that the title of the plaintiffs was better and superior to that of defendants, who claimed under a deed for the same lands not recorded until June 18, 1870, more than 50 years after its date, and long after innocent purchasers had bought the lands and paid a valuable consideration for them.

The plaintiff in error contends that the act of 1837, supra, cannot apply in this case, because at its date the lands in question were no longer within the limits of Madison county, but in the county of Putnam. But the act expressly declares that it shall apply to writings theretofore as well as those thereafter admitted to record. The deed of Dunbar to Prout was recorded under the act of 1807, supra, which required it to be recorded in the county where the lands conveyed were situated. It was so recorded. No law of Illinois since passed has required any other registration of deeds by the parties thereto, or has changed the effect of the original registration. See act of February 27, 1841; 1 Adams & D. Real Est. St. 93, 94.

The view we have taken of the case renders it unnecessary to notice certain questions of local practice argued by counsel.

We find no error in the record of the circuit court. Its judgment must therefore be affirmed.

title: Stebbins v. Duncan/Opinion of the Court


text: Talk:Stebbins v. Duncan/Opinion of the Court


text:
Connecticut Mutual Life Insurance Company v. Cushman

The property involved in this suit is certain real estate in the city of Chicago, covered by a mortgage, executed January 29, 1870, by W. H. W. Cushman and wife to secure the Connecticut Mutual Life Insurance Company in the payment of $75,000 five years thereafter, with interest, payable semi-annually, at the rate of 9 per cent. per annum. The property was thereafter conveyed to W. H. Cushman, subject, however, to that mortgage.

The local law, in force when the mortgage was given, provided that upon a sale of lands or tenements, under execution, the officer should give to the purchaser a certificate showing the property purchased, the sum paid therefor, or, if the plaintiff is the purchaser, the amount of his bid and the time when the purchaser (unless the property be redeemed as provided in the statute) will be entitled to a deed. A duplicate of such certificate, signed by the officer, is required to be filed by him in the office of the county recorder within 10 days from the sale. Within 12 months from the sale, the defendant, his heirs, executors, administrators, or grantees may redeem by paying the purchaser, or the officer for his benefit, the sum bid by the former, with interest thereon at the rate of ten per cent. per annum from date of sale. Whereupon the sale and certificate becomes null and void. After the expiration of 12, and at any time before the expiration of 15, months from the sale, a judgment creditor (even one who became such after the expiration of 12 months from the sale, Phillips v. Demoss, 14 Ill. 413) may redeem by suing out execution, placing the same in the hands of the proper officer, (whose duty is to indorse thereon a levy upon the property to be redeemed,) and by paying to such officer, for the use of the purchaser, his executors, administrators, or assigns, the amount for which the premises were sold, with interest at the rate of ten per cent. per annum from the date of sale. The officer, having filed in the county recorder's office a certificate of the redemption by such judgment creditor, is required to advertise and offer the property for sale under the execution. The judgment creditor, thus redeeming the property, is considered as having bid at the execution sale the amount of the redemption money paid by him, with interest from the date of redemption to the day of sale. If no larger bid is offered, the property is struck off and sold to such judgment creditor, who becomes entitled to a deed.

The statute provides that the whole or part of any lands sold under execution may be redeemed by a judgment creditor in the like distinct quantities or parcels in which the same are sold; also, if there be no redemption within the time prescribed, that the purchaser is entitled to a deed, further, that 'lands sold under and by virtue of any decree of a court of equity for the sale of mortgaged lands' may be redeemed by the mortgagor, his heirs, executors, administrators, or grantees, and by judgment creditors, in the same manner as is prescribed for the redemption by such parties, respectively, of lands sold under executions at law. By a subsequent act, in force July 1, 1879, the foregoing statutes were amended so as to require the party redeeming to pay the amount going to the purchaser, with interest at the rate of only eight per cent. per annum.

This act continued in force till after July 1st, 1879.

[Statement of Case from pages 54-56 intentionally omitted]

On the twelfth day of December, 1877, the insurance company instituted a suit for foreclosure, in which a final decree of sale was passed on the fourteenth day of July, 1879. The sale occurred on the fifteenth day of August, 1879, when the insurance company became the purchaser of various lots, into which the mortgaged premises had been subdivided, at prices aggregating in amount the principal and interest of its debt-the latter being computed up to the decree at the rate stipulated in the mortgage, and thereafter at the statutory rate of 6 per cent. per annum. The sale was duly confirmed by an order entered October 10, 1879.

On the third day of November, 1880,-these rules being in force and no redemption having been made by the mortgagor or by any one claiming under him,-a judgment by confession on a warrant of attorney was entered in the court below for $10,150, in favor of Henry S. Monroe against W. H. Cushman, grantee of the mortgagor. An execution on that judgment, sued out November 9, 1880, was placed in the hands of the marshal of the United States for the northern district of Illinois, who indorsed thereon a levy, as of that date, on a portion of the lots purchased by the insurance company. Monroe, on the succeeding day, deposited with the clerk of the federal court the sum of $12,741.95, which covered as well the aggregate amount of principal and interest, as the commissions and fees allowed to the clerk. Rev. St. § 828. Thereupon, on the next day, the clerk, under his hand and seal of office, issued a certificate of redemption for the lots so levied on.

On November 15, 1880,-on which day, according to the rule established by the supreme court of Illinois, the additional three months given to judgment creditors expired: Roan v. Rohrer, 72 Ill. 583; ''Protection Life Ins. Co.'' 81 Ill. 89,-Robert D. Fowler, assignee of Monroe's judgment, and of his interest in the levy and redemption that has been made, deposited with the clerk of the federal court the further sum of $62,047.01 for the redemption of certain others of the lots purchased by the company. That sum covered the latter's bid for those lots, with interest at 8 per cent. A certificate of redemption covering such lots was issued on the day of Fowler's deposit. The marshal, on November 16, 1880, advertised for the sale on the eighth day of December, 1880, of all the lots sought to be redeemed under the Monroe judgment and execution. The record does not show the indorsement of any additional levy beyond that made November 9, 1880. The sale occurred as advertised, Fowler becoming the purchaser of all the lots embraced in the two certificates of November 10th and November 15th, at a sum equal to the amount of the sums deposited, with interest at the rate of 8 per cent. per annum from the date of such deposits. No money was paid to the marshal, and none to any other officer, except that deposited with the clerk, who, as required by the act of congress and the rules in question, placed it in the registry of the court.

It will have been observed that the rules established by the federal court differ from the provisions of the local statutes in this: that by the former the redemption money in all cases is require to be paid to the holder of the certificate or to the clerk of the court, whereas by the latter, in the case of redemption by a judgment creditor, the money must be paid to the officer having the execution. In no case do the rules of the federal court provide for payment either to the master or other officer who conducted the decretal sale, or to the officer holding the execution of the judgment creditor.

The property so sold was, as is claimed by appellee, subsequently redeemed within the time and in the mode prescribed in the rules established by the court below for the redemption of real estate from sales under decrees. But the contention of the insurance company is that those rules do not conform to the statutes of Illinois; that the latter, equally, as to the time within which, the persons by whom, and the mode in which redemption may be effected, constitute a rule of property, obligatory as well upon the federal court as upon the courts of the state; and as the property sold was not redeemed in the particular mode prescribed by the local statutes, there was no effectual redemption, and, consequently, the company became entitled to a deed at the expiration of the period fixed for the exercise of the right of redemption.

The circuit court was of opinion, and so adjudged, that the rights of the parties as to the mode of redemption were to be determined by its rules; and since there had been a substantial compliance with them the application by the company for a deed was overruled. From the final order denying that application the present appeal is prosecuted.

It is necessary, at the threshold of the discussion, to ascertain in what particulars the statutes of Illinois and the rules of the federal court differ in respect of the manner in which redemption may be accomplished.

Edward S. Isham and C. Beckwith, for appellant.

[Argument of Counsel on pages 58-59 intentionally omitted]

W. R. Page and ''Geo. F. Edmunds'', for appellees.

[Argument of Counsel from pages 59-60 intentionally omitted]

HARLAN, J.


text: Talk:Connecticut Mutual Life Insurance Company v. Cushman


text:
Connecticut Mutual Life Insurance Company v. Cushman/Opinion of the Court

In Brine v. ''Ins. Co.'' 96 U.S. 627, it is decided- reversing the practice which had obtained for many years in the circuit court of the United States sitting in equity in Illinois that the state law giving to a mortgagor of real estate the privilege, within 12 months after a decree of foreclosure, and to his judgment creditors within three months thereafter, of redeeming the premises, is a substantial right, and constitutes a rule of property, to which the circuit court must conform.

In anticipation, however, of the difficulties which might attend exact conformity, in every case, to the local statutes, the court, in the Brine Case, said:

'It is not necessary, as has been repeatedly said in this court, that the form or mode of securing a right like this should follow precisely that prescribed by the statute. It the right is substantially preserved or secured, it may be done by such suitable methods as the flexibility of chancery proceedings will enable the court to adopt, and which are most in conformity with the practice of the court.'

The decision in that case doubtless suggested to the circuit court the necessity of adopting definite rules in relation to redemptions from sales under its own decrees. Hence, the rules to which reference has already been made. They were established by an order of court entered July 11, 1878.

As the determination of the present case depends upon their construction and effect, those rules are given in full in the margin.

However this difference may be regarded in the courts of Illinois when administering the statutes by which they are created and their jurisdiction defined and limited, (Litter v. People, etc., 43 Ill. 188; Stone v. Gardner, 20 Ill. 309; Durley v. Davis, 69 Ill. 134,) we entertain no doubt of the power of the federal court to adopt its own modes or methods for the enforcement of the right of redemption given by the local law. The substantial right given, first, to mortgagors, their representatives, and grantees, and then to the judgment creditors of such mortgagors or their grantees, was to redeem the property sold within the time specified. Whether the redemption is by the one or the other class, the money is for the benefit of the purchaser at the decretal sale. When the amount going to him is secured by payment into the hands of some responsible officer, the obsect of the law, both as respects the purchaser at the decretal sale and the party redeeming, is fully attained. Redemption is effected when, by payment of the redemption money into proper hands, the purchase at the decretal sale is annulled, and the way opened for another sale. The federal court, as indicated by its rules, preferred that the money, if not paid directly to the purchaser, should, by payment through its clerk, come directly under its control for the benefit of the purchaser. where the sale of mortgaged premises is under a decree of the federal court, and the execution of the judgment creditor, who seeks to redeem is from a state court, there is an evident propriety in requiring the money going to the purchaser at the decretal sale to be paid through the clerk of the federal court into its registry. The necessity for such a regulation is not so urgent where the judgment creditor's execution is from the federal court; but we perceive no objection to extending the regulation to that class of cases. Under the operation of the rules in question the records of the federal court will, in all cases, show whether the right of the purchaser to a deed has been defeated by redemption. Can it be said that the mode prescribed by the federal court for securing the money going to the purchaser impairs his substantial rights? It he less secure than he would be if the money is paid to the officer having the execution? Clearly not. The substantial right given by the statute to the purchaser is that the redemption money be secured to him before the benefit of his purchase is taken away, and the substantial right given to the party redeeming is that the redemption becomes complete and effectual upon his payment of the required amount. The particular mode in which the money is paid or secured by the latter for the benefit of the former is not of the substance of the rights of either. The mode or manner of payment belongs, so far as the federal court is concerned, to the domain of practice, the power to regulate which, in harmony with the laws of the United States and the rules of this court, as might be necessary and convenient for the administration of justice, is expressly given by statute to the circuit courts. Rev. St. § 918.

In the conclusions thus indicated we are only giving effect to former decisions. In Brine v. ''Ins. Co., supra'', it was, as we have seen, distinctly ruled, touching these local statutes, that the federal court-preserving substantially the right of redemption could pursue its own forms and modes for securing such right. The same doctrine, in effect, is announced in Allis v. ''Ins. Co.'' 97 U.S. 144. That case arose under a statute of Minnesota which allowed the defendant in a foreclosure proceeding to redeem within 12 months after the confirmation of the sale. The decree ordered the master, on making sale, to deliver to the purchaser a certificate stating that unless the property be redeemed within 12 months after the sale, he would be entitled to a deed. This departure from the letter of the statute was held not to be material, since substantial effect was given to the right to redeem within one year. The court said: 'In the state coarts, where the practice undoubtedly is to report the sale at once for confirmation, the time begins to run from that confirmation. But if, in the federal court, the practice is to make the final confirmation and deed at the same time, it is a necessity that the time allowed for redemption shall precede the deed of confirmation. There is here a substantial recognition of the right to redeem within 12 months.' It results that the objection taken to the rules established by the court below must be overruled.

The next question to be examined is whether there could be an effectual redemption except by payment of the amount bid, with interest at 10 per cent., the rate prescribed by statute at the date of the mortgage. Redemption was made upon the basis of the amendatory act of 1879 reducing the rate of interest in such cases to 8 per cent. The contention of the company's counsel is that that act cannot be applied without impairing the obligation of its contract. What was that contract? In what did its obligation consist? By the contract between the mortgagor and mortgagee, the former became bound to pay, within a certain time, the mortgage debt, with the stipulated interest of 9 per cent. up to final decree, if one was obtained, and with six per cent. thereafter, as prescribed by statute when the mortgage was given. Rev.St.Ill. 1874, p. 614. Certainly the obligation of that contract was not impaired by the act of 1879, for it did not diminish the duty of the mortgage to pay what he agreed to pay, or shorten the period of payment, or interfere with or take away any remedy which the mortgagee had, by existing law, for the enforcement of its contract.

The statute, in force when the mortgage was executed, prescribing the rate of interest which the amount paid or bid by the purchaser should bear, as between him and the party seeking to redeem, had no relation to the obligation of the contract between the mortgagor and mortgagee. The mortgagor might, perhaps, have claimed that his statutory right to redeem could not be burdened by an increased rate of interest beyond that prescribed by statute at the time he executed the mortgage. But, as to the mortgagee, the obligation of the contract was fully met when it received what the mortgage and statute, in force, when the mortgage was executed, entitled it to demand. The rights which the purchaser at the decretal sale, if one was had, was not of the essence of the mortgage contract, but depended wholly upon the law in force when the sale occurred. The company ceased to be a mortgagee when its debt was merged in the decree, or, at least, when the sale occurred. Thenceforward its interest in the property was as purchaser, not as mortgagee. And to require it, as purchaser, to conform to the terms for the redemption of the property as prescribed by statute at the time of purchase, does not, in any legal sense, impair the obligation of its contract as mortgagee. It assumed the position of a purchaser, subject, necessarily, to the law then in force defining the rights of purchasers.

But it is insisted that the value of the mortgage contract was impaired by a subsequent law reducing the interest to be paid to a purchaser at decretal sale; this, upon the assumption that the probability of the debt being satisfied by the decretal sale of the property was lessened by reducing the interest which any purchaser could realize on his bid in the event of redemption. In other words, the reduction by a subsequent statute of the interest to be paid to the purchaser would, it is argued, necessarily tend to lessen the number of bidders seeking investments, and thereby injuriously affect the value of the mortgage security.

In support of this proposition counsel cite several decisions of this court in which it is ruled that the objection to a law, as impairing the obligation of a contract, does not depend upon the extent of the change it affects; that the laws in existence when a contract is made, including those which affect their validity, construction, discharge, and enforcement, enter into and form a part of it, measuring the obligation to be performed by one party, and the rights acquired by the other; and that one of the tests that a contract has been impaired is that its value has been diminished, when the constitution prohibits any impairment at all of its obligation. Green v. Biddle, 8 Wheat. 1; McCracken v. Hayward, 2 How. 612; Planters' Bank v. Sharp, 6 How. 301; Edwards v. Kearney, 96 U.S. 601.

These decisions clearly have no application to the case now before the court. The laws with reference to which the parties must be assumed to have contracted, when the mortgage was executed, were those which in their direct or necessary legal operation controlled or affected the obligations of such contract. We have seen that no reduction of the rate of interest, as between the purchaser of mortgaged property at decretal sale and the party entitled to redeem, affected, or could possibly affect, the right of the insurance company to receive, or the duty of mortgagor to pay, the entire mortgage debt, with interest as stipulated in the mortgage up to the decree of sale. And the result of the sale in this case shows that the company, as mortgagor, has received all that it was entitled to demand. The reduction of the rate of interest by the act of 1879 was by way of relief to the mortgagor and his judgment creditors, and, in no sense, an injury to the mortgage. When that act was passed there was no person to answer the description or to claim the rights of a purchaser; consequently, no existing rights were thereby impaired. That the reduction of interest to be paid to the purchaser would lessen the probable number of bidders at the decretal sale, and thereby diminish the chances of the property bringing the mortgage debt, are plainly contingencies that might never have arisen. They could not occur unless there was a decretal sale, nor unless the mortgagee became the purchaser; and are too remote to justify the conclusion, as matter of law, that such legislation affected the value of the mortgage contract.

One other point remains to be considered. It is said that the rules of the circuit court requiring payment to the purchaser of interest at the rate of 10 per cent., were never modified by any order. The court below, we suppose, proceeded upon the ground that the interest to be paid to the purchaser by the party redeeming was of the substance of the rights of both; consequently that the change in that respect, made by the state law prior to the decretal sale, proprio vigore, effected a laodification of the rule without a formal order. In that view we concur.

For the reasons given the decree below should be affirmed, and it is so ordered.


text: Talk:Connecticut Mutual Life Insurance Company v. Cushman/Opinion of the Court


text:
Metsker v. Bonebrake

[Syllabus from pages 66-67 intentionally omitted]

[Statement of Case from pages 67-68 intentionally omitted]

John A. Finch, S. Shellabarger, and J. M. Wilson, for appellants.

W. H. Calkins and A. C. Harris, for appellee.

MILLER, J.

title: Metsker v. Bonebrake


text: Talk:Metsker v. Bonebrake

title: Talk:Metsker v. Bonebrake


text:
Metsker v. Bonebrake/Opinion of the Court

This is a bill in chancery, brought by Bonebrake as assignee in bankruptcy of John R. Metsker, against said Metsker and his wife. The object of the bill is to subject to administration, as part of the assets of the bankrupt, a farm of 162 acres of land, on which Metsker and his wife were living, the legal title of which was in Mrs. Metsker.

It appears that on August 2, 1876, Metsker and wife conveyed this land to McCole, who, on the fourth day of the same month, conveyed it to Mrs. Metsker, the consideration in each deed being recited as $8,000.

On December 1, 1876, one Poe, with whom Metsker was in partnership in the hardware business, filed his petition in bankruptcy, alleging that Metsker would not join him, and making him a party, and praying that he be adjudged a bankrupt. On the twenty-ninth of that month Metsker came in and confessed himself a bankrupt, and was so adjudged.

The charging part of the bill, as regards the invalidity of the title conveyed to Mrs. Metsker by these two deeds, reads as follows:

'On that day, to-wit, August 2, 1876, within four months of     the time of filing said petition in bankruptcy, the said John      R. Metsker, being the owner, in his own right, of the real      estate above described, and being indebted as aforesaid, with      the fraudulent intention of defeating the operation and      effect of the bankrupt law; and with the fraudulent intention      of preventing his property from being distributed and applied      in payment of his debts, as provided for in the bankrupt law;      and with the intention of defrauding and cheating his      creditors; and with the intention of preferring, in violation      of the provisions of the bankrupt law, a pretended claim of      the defendant Elizabeth Metsker, which claim, your orator      says, was unjust and incorrect, and not a valid and legal      claim against said John R. Metsker,-the said John R. Metsker,      together with his wife, the defendant Elizabeth Metsker, did      execute, without any consideration whatever, to one C. J.      McCole, who was a party to such fraudulent purpose, a deed of      conveyance of said real estate; and the said grantee, C. J.      McCole, in pursuance of the previous understanding and      agreement, and for the purpose of carrying out the fraudulent      intent before expressed, did convey said real estate to the defendant Elizabeth Metsker, wholly without any      consideration, on the fourth day of August, 1876.

'And your orator states that said Elizabeth Metsker was fully     cognizant of the fraudulent and wrongful intention of said      John R. Metsker, and participated in the same, and joined in      the deed to McCole for the purpose of carrying out the same,      and accepted said fraudulent conveyance from C. J. McCole      with full knowledge of its purpose, and with the intention of      carrying out said fraudulent purpose.'

To this bill Metsker and his wife filed their answer, under oath, in which they admit the conveyances and the bankruptcy proceedings, but denying all fraud in the transaction, and that Metsker was in failing circumstances when the deeds were made, or that they knew or believed he was unable to pay his debts. They aver that after said conveyances were made a large part of the indebtedness of Poe & Metsker was paid off in the ordinary course of business. They further allege that the conveyances mentioned were made in order and for the express purpose, and for no other purpose, of paying a debt of $5,700 which Metsker owed his wife, and the interest accumulated thereon, for money loaned by her to him, which he had promised to repay to her on demand.

It is evident that the bill is framed upon the idea that section 5128 of the Revised Statutes was in force, and that the periods within which such conveyances by an insolvent could be assailed as void under the bankrupt law were four and six months, and all its allegations seemed aimed at such acts as would be unassailable after those periods. But the act of 1874 has shortened these periods to four and two months in cases of involuntary bankruptcy. 18 St. 180, § 10.

We do not doubt that Metsker's was a case of involuntary or compulsory bankruptcy, within the meaning of this amendment. The distinction intended by this language is clearly between the cases in which the bankrupt himself and of his own volition initiates proceedings in bankruptcy, and those in which they are commenced by some one else against him.

In the one case it is voluntary and in the other compulsory. It is not a voluntary bankruptcy if the man is forced into it against his will by his partner, any more than by any one else, and it is compulsory and involuntary if he refuses to join in such case and is forced into it, as much as in any other enforced bankruptcy.

These deeds cannot be impeached, therefore, on the grounds of preference or payment in violation of the bankrupt law.

But, whatever may have been the case in the mind of the pleader who drew the bill, there is language which, if liberally construed, may be held to charge that these conveyances were void or voidable as being made with the intention of defrauding and cheating creditors generally, and without any valuable consideration.

In this view the bill was very loosely drawn, but as issue was taken on it and testimony produced, we will inquire into its effect as proof of the charge. When the pleadings were made up an order was entered, without objection, referring the case to a master to take the evidence and report his finding thereon. He reported that Metsker had received, at various times during the 10 years preceding his bankruptcy, moneys belonging to his wife, mostly proceeds of land inherited from her father, amounting in the aggregate to $5,600; and that he had agreed to return it to her, and that she had alway claimed that he was her debtor to that amount. He therefore finds she was a creditor at the time of the conveyance. He also finds that Metsker was insolvent at that time, and that his wife did not know it; and, on the whole, that the allegations of the bill are not sustained. Exceptions to this report were filed, which were sustained by the court, and a decree rendered for the assignee.

The evidence taken by the master was reported with his findings, and the case seems to have been treated by the court below without much regard to the finding of the facts by the master or any special regard to the exceptions made to his report. This is not correct practice in chancery cases in the circuit courts of the United States, whatever may be the rule in the state courts. The findings of the master are prima facie correct. Only such matters of law and of facts as are brought before the court by exceptions are to be considered, and the burden of sustaining the exception is on the objecting party. In the case before us we are inclined, after a careful examination of the testimony, to concur with the master's report. It is altogether a matter of the weight of evidence.

1. It is denied that the money was received of the wife by the husband, and, if received, that it was a loan. The testimony leaves no doubt that there was received from the estates of the wife's deceased father and brother, at different times, the aggregate sum of $5,700. The wife swears positively that she loaned these sums to ner husband, who repeatedly promised to pay her; that at one time, more than a year before the bankruptcy, they had sharp words or ill feeling about it, and he told her he had nothing but the farm and would convey that to her, and that the conveyances finally made were in pursuance of his repeated promise to do so. All this is wholly uncontradicted.

2. Much testimony is taken to prove that the price was so inadequate as to show fraud, though no such charge is made in the bill. The fair result of all the testimony on this point is that the land was worth about $8,000, the sum recited in the conveyance, and if interest be computed on the $5,700 from the periods at which the various sums were received, it will amount to the full value of the land, if not more, at the time the deeds were made.

3. There is no reason to disbelieve Mrs. Metsker when she swears positively that she did not know nor suspect her husband's insolvency until bankrupt proceedings were commenced. Her statement is confirmed by the allegation, undisputed, that between the time of the conveyance and the petition in bankruptcy $4,000 of their debts were paid, and the bill alleges that their debts were only $5,000 in excess of their assets.

4. The master who was present and heard Mrs. Metsker testify, and could see her manner, and is, therefore, better able to determine the weight due to her testimony, says he has no doubt she was a creditor, and was in ignorance of Metsker's insolvency. Dean v. Pearson, 102 Mass. 101.

5. The conveyance first to McCole, who paid nothing, but took the title in trust for Mrs. Metsker, and from him to her, was to satisfy the common-law inability to make a strict conveyance from husband to wife, and is no evidence of fraud.

In the case of the ''Atlantic Nat. Bank v. Taverner'', 130 Mass. 409, that court says: 'The question whether a loan by the wife to the husband of money, which is her separate property, upon his promise to repay it, creates an equity in her favor, which a court of equity will enforce, has not been decided in this commonwealth. But it has generally, if not uniformly, been decided in the affirmative in other courts,' for which numerous cases are cited. It is added: 'That the jury in this case having found that the money delivered by the wife to the husband was by way of loan and not of gift, and that his subsequent conveyance of land through a third person to her in repayment of that loan was not made with the purpose of hindering, delaying, or defrauding creditors, that conveyance, to satisfy his equitable obligation to his wife, was not a voluntary conveyance, and was valid against his creditors. Bullard v. Briggs, 7 Pick. 533; Forbush v. Willard, 16 Pick. 42; Stetson v. O'Sullivan, 8 Allen, 321; French v. Motley, 63 Me. 326; Grabill v. Mayer, 45 Pa. St. 530; Babcock v. Eckler, 24 N. Y. 623; Steadman v. Wilbur, 7 R. I. 481.'

Such is precisely the case here, as reported by the master, and, as we think, supported by the evidence; and the decree of the circuit court is, therefore, reversed, and the case remanded, with directions to dismiss the bill.


text: Talk:Metsker v. Bonebrake/Opinion of the Court


text:
Stucky v. Masonic Savings Bank

D. W. Armstrong and L. N. Dembitz, for appellant.

W. O. Dodd and I. P. Helm, for appellee.

MILLER, J.

title: Stucky v. Masonic Savings Bank


text: Talk:Stucky v. Masonic Savings Bank

title: Talk:Stucky v. Masonic Savings Bank


text:
Stucky v. Masonic Savings Bank/Opinion of the Court

This suit originated in a bill in equity brought in the district court by Stucky, as assignee of Melter, a bankrupt, against the bank and against Jacob Krieger, Sr., for the purpose of having two mortgages made by the bankrupt declared void, and the real estate covered by them sold free of the lien of those mortgages. The ground of this relief is the allegation that the mortgages were made by Melter when insolvent, and were preferences in contemplation of bankruptcy, void by the bankrupt law, and that, by virtue of the bankrupt proceedings commenced within two months after they were made, they are void. The case was decided in favor of the assignee in the district court, but on appeal the circuit court reversed this decree and dismissed the bill. It is shown that both mortgages were taken to secure renewal notes for pre-existing debts, one note and mortgage being made to the bank directly, and the other to Mr. Krieger, who was president of the bank, the note being indorsed by him to the bank. They were for $6,000 each.

The whole matter turns upon the question whether Krieger, who acted almost alone for the bank, had reasonable ground to believe that Melter was insolvent at the time the mortgages were made. The district judge, who decided that he had such reasonable ground, does not seem to have given due weight to the principles of the case of Grant v. National Bank, decided by this court, and reported in 97 U.S. 80, a case which was fully considered, and which has since been followed by us as a leading one on the subject. That case establishes the doctrine that a creditor dealing with a debtor whom he map suspect to be in failing circumstances, but of which he has no sufficient evidence, may receive payment or security without violating the bankrupt law. 'He may be unwilling to trust him further; he may feel anxious about his claim and have a strong desire to secure it, yet such belief as the act requires may be wanting. Obtaining additional security or receiving payment of a debt under such circumstances is not prohibited by law.'

In the case before us the testimony of Krieger himself, as the one who best knows the strength of the suspicion (if any) on which he acted, and what evidence was before him, must chiefly control. We have examined his deposition very carefully. We think it bears the impress of candor, and it negatives the idea that he had reasonable ground to believe Melter insolvent, or that he actually did believe it. The evidence, outside of this, as to the various estimates of the value of Melter's property and the amount of his debts, while it shows that Melter was probably insolvent, does not show that this was known to Melter himself or to Krieger, or that the latter had reasonable grounds to believe him so.

It would serve no useful purpose to give in this opinion a full examination of all the evidence. It is sufficient to say that in looking it all over we concur with the circuit judge, and his decree dismissing the bill is affirmed.


text: Talk:Stucky v. Masonic Savings Bank/Opinion of the Court


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Page:Observations on Man 1834.djvu/89

 is performed by vibrations also. And conversely, if vibrations can be shown to take place in muscular motion, they must also be instrumental in sensation and intellectual perception.

. II. There are certain experiments and observations which favour the supposition of the performance of muscular motion by subtle agitations in the small particles of the muscular fibres, i.e. by vibratory motions. It follows therefore, that these experiments and observations are some additional evidence for the existence of sensory and ideal vibrations, as above explained. Such are, that the motion of the heart, and of other muscles, may be renewed in dying animals, and those that are newly dead, by heat, injection of a fluid, and punctures, it being easy to be conceived, that the two last causes should put the particles of the fibres into agitations for a short time, i.e. till they can recover their equilibrium, by altering their distances, and mutual actions: and the first cause, i.e. heat, is, by the common consent of all, judged to consist in, and to cause, subtle vibratory motions. It is also difficult to assign any other action which these causes can have. In like manner, the alternate contractions and relaxations of the hearts of frogs, vipers, and some other animals, which continue for long spaces of time after these have been entirely separated from their bodies, seem utterly inexplicable upon any of the common suppositions, but follow easily from the doctrine of vibrations, as it is applied to muscular motion, in the two next propositions.

. III. Since the same motion which occasions sensation, and intellectual perception, passes through the seats of these into the motory nerves, in order to excite there the automatic and voluntary motions, thus pervading the whole medullary substance, in various ways, according to the variety of the circumstances, but in all with the greatest precision and exactness; it follows, that this must be a vibratory one, and that of the most subtle kind. For the same excess of softness, which renders the medullary substance totally inelastic as to sense, and consequently unfit for the grosser vibrations of the particles of the first or largest order (by the vibrations of which, in sonorous bodies, it seems that sound is excited in the air), may render it more susceptible of vibrations, in the particles of the second, third, &c. orders; and if we suppose a proper ultimate structure in the several parts of the medullary substance, these vibrations may be conveyed with all that precision and variety which the phænomena require. And unless we do suppose some such subtle vibrations as these, it will be extremely difficult to conceive, how so soft a pulp as the medullary substance is, should be the common instrument of sensation, thought, and motion; which yet all physicians and philosophers must allow, according to the first and second propositions. If we set aside subtle vibratory motions, the impulse of the objects of sense can communicate nothing, as it seems, to so soft a

title: Page:Observations on Man 1834.djvu/89


text:
State of New Hampshire v. State of Louisiana State of New York

On the eighteenth of July, 1879, the general court of New Hampshire passed an act, of which the following is a copy:

'An act to protect the rights of citizens of this state,     holding claims against other states.

'Be it enacted by the senate and house of representatives in     general court convened:

'Section 1. Whenever any citizen of the state shall be the     owner of any claim against any of the United States of      America, arising upon a written obligation to pay money      issued by such state, which obligation shall be past due and      unpaid, such citizen holding such claim may assign the same      to the state of New Hampshire, and deposit the assignment      thereof, duly executed and acknowledged in the form and manner provided for      the execution and acknowledgment of deeds of real estate by      the laws of this state, together with all the evidence      necessary to substantiate such claim, with the attorney      general of the state.

'Sec. 2. Upon each deposit being made, it shall be the duty     of the attorney general to examine such claim and the      evidence thereof, and if, in his opinion, there is a valid      claim which shall be just and equitable to enforce, vested by      such assignment in the state of New Hampshire, he, the      attorney general, shall, upon the assignor of such claim      depositing with him such sum as he, the said attorney      general, shall deem necessary to cover the expenses and      disbursements incident to, or which may become incident to,      the collection of said claim, bring such suits, actions, or      proceedings in the name of the state of New Hampshire, in the      supreme court of the United States, as he, the said attorney      general, shall deem necessary for the recovery of the money      due upon such claim; and it shall be the duty of the said      attorney general to prosecute such action or actions to final      judgment, and to take such other steps as may be necessary      after judgment, for the collection of said claim, and to      carry such judgment into effect, or, with the consent of the      assignor, to compromise, adjust, and settle such claim before      or after judgment.

'Sec. 3. Nothing in this act shall authorize the expenditure     of any money belonging to this state, but the expenses of      said proceedings shall be paid by the assignor of such claim;      and the assignor of such claim may associate with the      attorney general in the prosecution thereof, in the name of      the state of New Hampshire, such other counsel as the said      assignor may deem necessary, but the state shall not be      liable for the fees of such counsel or any part thereof.

'Sec. 4. The attorney general shall keep all moneys collected     upon such claim, or by reason of any compromise of any such      claim, separate and apart from any other moneys of this state      which may be in his hands, and shall deposit the same to his      own credit, as special trustee under this act, in such bank      or banks as he shall select; and the said attorney general      shall pay to the assignor of such claims all such sums of      money as may be recovered by him in compromise or settlement      of such claims, deducting therefrom all expenses incurred by      said attorney not before that time paid by the assignor.

'Sec. 5. This act shall take effect on its passage.'

Under this act six of the consolidated bonds of the state of Louisiana, particularly described in the cases of State v. Jumel and Elliott v. Wiltz, just decided, [ante, 128,] were assigned to the state of New Hampshire by one of its citizens. This assignment was made for the purposes contemplated in the act, and passed to the state no other or different title than it would acquire in that way. After the assignment was perfected, a bill in equity was filed in this court in the name of the state of New Hampshire, as complainant, against the state of Louisiana and the several officers of that state who compose the board of liquidation provided for in the act authorizing the issue of the bonds. The averments in the bill are substantially the same as those in Elliott v. Jumel, supra, save only that in this case the ownership of the bonds specially involved is stated to be in New Hampshire, while in that it was in Elliott and his associates. The prayer is, in substance, for a decree that the bonds and the act and constitutional amendment of 1874 constitute a valid contract between Louisiana and the holders of its bonds; that the defendants and each of them may be prohibited from diverting the proceeds of the taxes levied under the act from the payment of the interest; and that the provisions of the debt ordinance of 1879 may be adjudged void and of no effect, because they impair the obligation of the contract. The bill was signed in the name of New Hampshire by the attorney general of that state, and also by the same counsel who appeared for Elliott, Gwynn & Walker in their suit in equity just decided.

On the fifteenth of May, 1880, the legislature of New York passed the following act:

'An act to protect the rights of citizens of this state     owning and holding claims against other states.

'The people of the state of New York, represented in senate     and assembly, do enact as follows:

'Section 1. Any citizen of this state, being the owner and     holder of any valid claim against any of the United States of America, arising upon a written obligation to pay money,      made, executed, and delivered by such state, which obligation      shall be past due and unpaid, may assign the same to the      state of New York, and deliver the assignment thereof to the      attorney general of the state. Such assignment shall be in     writing, and shall be duly acknowledged before an officer      authorized to take the acknowledgment of deeds, and the      certificate of such acknowledgment shall be duly indorsed      upon such assignment before the delivery thereof. Every such     assignment shall contain a guaranty, on the part of the      assignor, to be approved by the attorney general, of the      expenses of the collection of such claim, and it shall be the      duty of the attorney general, on receiving such assignment,      to require, on behalf of such assignor, such security for      said guaranty as he shall deem adequate.

'Sec. 2. Upon the execution and delivery of such assignment,     in the manner provided for in section 1 of this act, and      furnishing the security as in said section provided, and the      delivery of such claim to him, the attorney general shall      bring and prosecute such action or proceeding, in the name of      the state of New York, as shall be necessary for the recovery      of the money due on such claim, and the said attorney general      shall prosecute such action or proceeding to final judgment,      and shall take such proceedings after judgment as may be      necessary to effectuate the same.

'Sec. 3. The attorney general shall forthwith deliver to the     treasurer of the state, for the use of such assignor, all      moneys collected upon such claim, first deducting therefrom      all expenses incurred by him in the collection thereof, and      said assignor, or his legal representatives, shall be paid      said money by said treasurer upon producing the check or      draft therefor of the attorney general to his or their order,      and proof to his or their identity.

'Sec. 4. This act shall take effect immediately.'

On the twentieth of April, 1881, E. K. Goodnow and Benjamin Graham, being the holders and owners of 30 coupons cut from 10 of the consolidated bonds of Louisiana falling due January 1, 1880, July 1, 1880, and January 1, 1881, assigned them to the state of New York by an instrument in writing, of which the following is a copy: 'Know all men by these presents, that we, the  undersigned, citizens of the state of New York, being   the owners and holders of valid claims against the state   of Louisiana, arising upon written obligations to pay   money, made, executed, and delivered by the state of   Louisiana, and now past due and unpaid, being the   coupons hereto annexed, in consideration of one dollar   to each of us paid by the state of New York, and for   other good and valuable considerations, hereby assign   and transfer the said claims and coupons to the state of   New York.

'And we do hereby covenant with the said state that if an     attempt is made by it to collect the said claim from the      state of Louisiana we will pay all the expenses of the      collection of the same.

'In witness whereof we have hereunto set our hands and     affixed our seals this twentieth day of April, in the year of      our Lord 1881.

'E. K. GOODNOW. [L. S.]

'BENJ. GRAHAM. [L. S.]

'Sealed and delivered in presence of

'FRANK M. CARSON.'

W. H. Peckham, for New Hampshire.

[Argument of Counsel from pages 80-81 intentionally omitted]

W. A. Duer, L. W. Russell, and David Dudley Field, for New York.

[Argument of Counsel from pages 81-83 intentionally omitted]

John A. Campbell, for Louisiana.

[Argument of Counsel from Pages 84-85 intentionally omitted]

WAITE, C. J.


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Page:Observations on Man 1834.djvu/90

 substance, but an uniform pressure, susceptible of few or no modifications, and consequently highly unsuitable to the great variety of the phænomena that are to be solved by it. This argument therefore tends to shew, that sensation, thought, and motion, must all be performed by vibrations.

order to shew this, let us make the following suppositions:

First, That vibrations descend along the motory nerves, i.e. the nerves which go to the muscles, in some such manner as sound runs along the surfaces of rivers, or an electrical virtue along hempen strings.

Secondly, that these vibrations, when they arrive at the muscular fibres, are communicated to them, so that the small particles of these fibres shall be agitated with like vibrations.

Thirdly, That the vibrations thus excited in the fibres, put into action an attractive virtue, perhaps of the electrical kind, which lies concealed in the particles of the fibres, or in the blood-globules, or both. That the blood-globules of animals are electrical, may be conjectured from the electricity of those of the muscle-shell fish, observed by Dr. Hales; and that the red blood has a principal share in muscular contraction is highly probable, from the red colour of all the great muscles of the body, and from the weakness of all young animals, and of such as want a due share of red blood. At the same time, it appears from exanguious and transparent animals, that pale fibres, and colourless fluids, have all the necessary requisites for muscular contraction, in certain degrees.

Fourthly, We must now suppose, in consequence of the three foregoing suppositions, that each muscular fibre, and consequently the whole muscle, is made shorter by this increase of attraction in its particles; whilst yet their approach to each other is so small, as that the whole bulk of the muscle is but little diminished; for though the length of the muscle is lessened, its other dimensions are increased.

Fifthly, If we suppose the small ultimate fibres of the muscles to bend alternately to the right and left as an eel does, at exceedingly short intervals, agreeably to Dr. Lower, this may somewhat assist us to conceive in what manner a muscle may be shortened, and yet so increased in breadth and thickness, as to remain of nearly the same dimensions. For if these flexures be increased by the increase of the attraction of the parts, the whole muscle will become shorter and thicker, as it is found to be in contraction; and conversely, when the flexures are drawn out, the muscle will be longer and thinner, i.e. in a state of relaxation. The small wrinkles which have been observed in the muscular fibres, by Leeuwenhoek, and others, the wavings and

title: Page:Observations on Man 1834.djvu/90


text: Talk:State of New Hampshire v. State of Louisiana State of New York