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Ham v. Missouri/Opinion of the Court

Upon a writ of error to the supreme court of the State, under the authority of the 25th section of the judiciary act.

The proceedings now under review were founded upon an indictment in the circuit court of the county of St. Francis, against the plaintiff in error, for having committed waste and trespass on the sixteenth section of lands situated in congressional township number thirty-four, range seven east, as being school lands belonging to the inhabitants of the township aforesaid.

Upon this indictment the plaintiff was convicted, and condemned to pay a fine assessed by the jury, of four hundred dollars, together with the costs of the prosecution. From the judgment of the circuit court, the plaintiff in error having taken an appeal to the supreme court of Missouri, by the latter tribunal that judgment was in all things affirmed; the same plaintiff now seeks its reversal here, in virtue of several acts of congress alleged to be applicable to this case.

Upon the trial in the circuit court, the following facts were either established in proof or admitted by the parties:--

1. A joint petition on the part of Jean Batiste Vall e, and the heirs of Fran ois Vall e, Jean Batiste Pratte, and St. Geunne Beauvais, presented on the 15th of October, 1800, to Delassus, the lieutenant-governor of upper Louisiana, praying for a grant of two leagues square of land on the River St. Fran ois, including the mine, known by the name of Mine a la Motte, and the lands adjacent.

2. An acknowledgment by the lieutenant-governor, dated January 22, 1801, of his want of power to grant a concession of the extent prayed for, and the fact of his having transmitted the petition to the intendant-general, with the expression of an opinion favorable to the grant, and to the character of the applicants.

3. An order by the intendant-general, that the documents presented in behalf of the petitioners should be translated into the Castilian language, and then be laid before the fiscal agent.

4. A plat and survey for 28,224 arpens, or 24,142 acres of land, situated on the River St. Francis, certified by Nathaniel Cook, as deputy surveyor of the district of St. Genevieve, said by him to have been made by virtue of a concession by Delassus to J. B. and Fran ois Vall e, Beauvais, and Pratte, on the 22d of January, 1801.

5. The proceedings of the board of commissioners for the examination of land titles, on the 27th of December, 1811, setting forth the claim of Jean Batiste and Fran ois Vall e, Jean Batiste Pratte, and St. Geunne Beauvais, for two leagues of land, including the La Motte Mine, founded on the recommendation from Lieutenant-Governor Delassus for a concession, bearing date on the 22d of January, 1801, and the order of the intendant-general already mentioned, and the rejection of the claim by the commissioners.

6. The first section of an act of congress, approved May 24, 1828, confirming to Fran ois Vall e, Jean Batiste Vall e, Jean Batiste Pratte, and St. Geunne Beauvais, their heirs or legal representatives, a tract of land not exceeding two leagues square, situated in the county of Madison in the State of Missouri, commonly known by the name of the Mine la Motte, according to a field-plat and survey made by Nathaniel Cook, deputy surveyor of St. Genevieve, on the 22d day of February, 1806, with a proviso in the said first section, that the confirmation thus granted shall extend only to a relinquishment of title on the part of the United States, nor prejudice the rights of third persons, nor any title heretofore derived from the United States, either by purchase or donation.

7. A plat and survey made by Jenifer Sprigg, deputy-surveyor, in the months of March, 1829, and August, 1830, of the La Motte Mine tract of land, stated to contain 23,728.02 acres of land, confirmed to Francois Vall e, Jean Batiste Vall e, Jean Batiste Pratte, by an act of congress approved on the 24th of December, 1828.

8. A patent from the President of the United States, bearing date on the 25th of March, 1839, granted under the authority of the act of congress last mentioned, (and in virtue of a title derived from the confirmees,) to Lewis F. Linn and Evariste Pratte, for the La Motte Mine, and the land surrounding the same, containing 23,728.02 acres of land, in conformity with the survey of Sprigg, as certified from the general land-office; this patent, containing literally the proviso in the act of congress limiting the grant to the patentees, to a relinquishment of the title of the United States at the date of the act of congress of 1828.

9. An admission on the part of the State, that all the right, title, and claim of the original proprietors of the Mine la Motte tract of land had regularly passed to and was vested in Thomas Fleming, as fully as those proprietors had or could have had the same.

10. A lease from Thomas Fleming, of the 9th of April, 1849, to Ham, the plaintiff in error, for a portion of the Mine la Motte land.

11. An admission further on the part of the State, that the sixteenth section claimed as school lands, was within the lines of the original survey of the tract made by Nathaniel Cook, and of the other surveys given in evidence.

Upon the trial of the indictment, the circuit court, at the instance of the counsel for the State, instructed the jury, 'that the act of the 6th of March, 1820, entitled 'An act to authorize the people of Missouri Territory to form a constitution and state government, &c.,' taken in connection with an ordinance declaring the assent thereto by the people of Missouri, by their representatives assembled in convention on the 19th of July, 1820, operated as a grant by congress to the State of Missouri for the use of schools, of the 16th section in controversy, unless such 16th section had been previously disposed of by government.

'That, although the land claimed by the proprietors of Mine la Motte was, by the several acts of congress, reserved from sale, and that the survey of said claim includes the 16th section in controversy, yet such reservation is not such disposition of said section by the government, as is within the saving clause of the 6th section of the act of 1820, and cannot operate to prevent the title from vesting in the State, by virtue of said grant.'

The defendant in the prosecution prayed of the court the following instructions, which were refused:--

'That if the jury believe the land in question is included within the original grant by the Spanish government, and within the lines of the survey made by N. Cook, in 1806, and within the lines of the lands confirmed by the act of congress to the original grantees and those claiming under them, then this land never was public land, subject or liable to be donated by congress to the State for the use of schools.

'That the several acts of congress reserving section 16 for the support of schools, could only refer to the public lands proper, and could not attach to private claims, which had previous to such donation been claimed by individuals, and reserved by congress to satisfy those claims.

'That the confirmation of the claim by the act of congress of 1828, conferred and gave a superior title to the lands in question, over the title of the State for the use of schools.'

Upon the accuracy or inaccuracy of the instructions given by the court at the instance of the State, and of those denied by it upon the prayer of the defendant in the prosecution, the decision of this cause must depend.

It would seem not to admit of rational doubt, that the act of congress, of March 6, 1820, authorizing the people of the Territory of Missouri to form a constitution and state government, taken in connection with the ordinance of the state convention of the 19th of July, 1820, amounted not merely to a grant for the use of schools, of the 16th section of every township of public lands in the Territory, but, further, to a positive condition or mandate, so far as congress possessed the power to impose it, for the dedication of those sections to that object. The assertion of the court, then, of the existence and character of such grant, whilst it recognized any proper limitation or qualification imposed thereon, either by previous acts of congress or by the investiture of any rights arising therefrom, can be obnoxious to no just criticism, but was in all respects proper.

Whether or not the lands claimed by the proprietors of the Mine la Motte, so far as they cover a portion of the sixteenth section of township 34, range 7 east, are exempted from the operation of the act of March 6, 1820, and of the ordinance of July 19, 1820, must depend upon the correct interpretation of the previous legislation of congress, and upon the acts and position of the claimants with reference to that legislation.

By the 10th section of the act of congress, approved March 3, 1811, authorizing the President of the United States to offer for sale such portions of the public lands lying in the State of Louisiana as shall have been surveyed under the direction of the 8th section of the same statute, it is provided, that 'all such lands, with the exception of section number sixteen, which shall be reserved in each township for the use of schools,' (and with the exception, further, of a township of land granted by the 7th section of the same statute for the use of a seminary of learning, and of certain salt-springs and lead-mines,) 'shall be offered for sale to the highest bidder, under the direction of the register of the land-office, the receiver of public moneys, and principal deputy-surveyor.' In this 10th section is contained a proviso, 'that till after the decision of congress thereon, no tract of land shall be offered for sale, the claim to which has been in due time and according to law presented to the recorder of land titles in the district of Louisiana, and filed in his office for the purpose of being investigated by the commissioners appointed to ascertain the rights of persons claiming lands in the Territory of Louisiana.'

Upon this 10th section of the act of 1811, and the proviso thereto annexed, is founded the position taken by the plaintiff in error, that the sixteenth section of township 34 did not, and could not, vest in the State of Missouri, in virtue of the act of March 3, 1820, and of the ordinance of July 19 of the same year, so far as that section fell within the proviso. In comparing the enacting part of § 10 of the statute of 1811 with the proviso annexed thereto, it will strike the attention, that the limitation or restriction contained in the proviso has no connection, by its terms, with lands granted or donated for schools, but relates altogether to such lands as it was designed and declared should be sold at public auction to the highest bidder.

Such, certainly, were not the lands appropriated to a specific, ultimate, and permanent purpose, namely, the support of schools. As to these lands, sales, and every other disposition inconsistent with such dedication, were expressly inhibited. But, putting aside the literal meaning of the 10th section and its proviso, it may well be asked whether the language and objects of the latter, can be made to import any thing beyond a temporary suspension of the sales of the lands intended for sale, for the simple purposes of investigation; and much more, whether the 10th section of the act of 1811, and the proviso thereto, can be interpreted to mean a denial to itself by congress of the right and power to sell or to give, either upon satisfactory evidence of the invalidity of any opposing claim, or upon considerations of public policy, the land embraced within the suspension.

Such an interpretation, as it is not warranted by the language of the acts of congress, seems not to accord either with considerations of justice or policy. Suppose that congress, after the passage of the law of 1811, should become satisfied of the groundless nature of a claim presented to the commissioners, and should be convinced further, not only of the benefits to result from appropriating the subject of that claim to purposes of education, but also of their having pledged that subject to such purposes; it cannot be questioned that the power to reject or disregard an unfounded claim, and to comply with a previous and just obligation, remained in a plenary and unimpaired extent in congress; and that this right and obligation could in no degree be affected by a mere agreement to investigate.

Let it be remembered, too, that the application of those under whom the plaintiff in error deduces his alleged title, was for a simple gratuity, founded on no consideration whatever but the bounty of the donor. The opinion and the action by congress with respect to the rights of the parties to that controversy, seem to have been entirely coincident with the views herein suggested. Under the provision of the act of 1811, the proprietors of the Mine la Motte presented their claim, together with such evidence as they deemed essential to its support, to the tribunal created by law for the investigation of land titles. By this tribunal, the claim of these proprietors was rejected on the 27th of December, 1811. From the period last mentioned until the 24th of May, 1828, an interval of seventeen years, this claim remains dormant or quiescent, when it is confirmed at the date last mentioned.

The nature and effect of this confirmation will presently be considered; but in the interval above mentioned, the government, (the undoubted possessor of the title,) after the lapse of nine years from the rejection by its agent of this slumbering title, by express compact with the State of Missouri, grants to that State, for the use of schools, the sixteenth section of every township in the State which had not been sold 'or otherwise disposed of.' Upon recurring to the law of May 24, 1828, it will be borne in mind that the confirmation to the proprietors of the Mine la Motte is extended merely to a relinquishment of the title of the United States at the date of that law, and is declared to have no influence to prejudice the rights of third persons, nor any title heretofore derived from the United States, either by purchase or donation.

It is proper to keep in view this proviso in this confirmation, in order to ascertain its effect, if any, upon the proper meaning of the qualification in the grant to the State of Missouri comprised in the phrase 'or otherwise disposed of.'

In our construction of the act of congress of March 3, 1811, we have interpreted the proviso to the 10th section of that act as neither declaring nor importing a final and permanent devestiture, or any devestiture whatsoever, of the title of the United States, but as a provision prescribing a temporary arrangement merely for the purposes of investigation, leaving the title still in the government, to be retained or parted with according to the dictates of justice or policy, as these might be developed by such investigation. Nothing is here ordained which is definite in its character. Inquiry is all that is directed. The language and plain import of the 6th section of the act of the 3d of March, 1820, confer a clear and positive and unconditional donation of the sixteenth section in every township; and, when these have been sold or otherwise disposed of, other and equivalent lands are granted. Sale, necessarily signifying a legal sale by a competent authority, is a disposition, final and irrevocable, of the land. The phrase 'or otherwise disposed of' must signify some disposition of the property equally efficient, and equally incompatible with any right in the State, present or potential, as deducible from the act of 1820, and the ordinance of the same year. Upon any other hypothesis, the right to the sixteenth section would attach under the provision of the act of 1820; the State would still have the title, and could recover the section specifically, and there would be no necessity for providing for an equivalent for that section.

Under our interpretation of the acts of March 3, 1811, and of May 24, 1828, no title can have passed to the proprietors of the La Motte Mine lands. The reply of the lieutenant-governor, Delassus, to the petition of the applicants for the mine, acknowledges explicitly the absence of all power in that officer to make the grant asked for, and refers those petitioners to the intendant-general, as the only functionary possessing authority to make it. This officer took no further action upon the petition than to order its translation into the Castilian language.

On the 27th of December, 1811, this claim was before the commissioners for the examination of land titles in the State of Louisiana, and was rejected by them. From this period of time down to the 24th of May, 1828, no grant from the United States, nor evidences of title from any source, except those already referred to, have been shown by the plaintiff or those under whom he claims. In the mean time, the United States, the undoubted legal owners of the land in controversy, by the act of March 3, 1820, bestow it on the State, as they had full authority so to do, bestow the specific section, it never having been disposed of within the intent and meaning of the 6th section of the act last mentioned.

The confirmation in 1828, and the patent of the 25th of March, 1839, professing to confer no title but such as remained in the United States at those periods respectively, and the grant of the sixteenth section in township 34, range east, comprised within the survey of the Mine la Motte, having been made seven years anterior to the confirmation, which constitutes the only ground of title in the claimants of the mine, the pretensions of the confirmees to the section in controversy must be regarded as without foundation and utterly null.

The view which this court has taken of the evidence in this cause, and of the law as applicable to that evidence, dispenses with any necessity for an examination seriatim of the instructions asked by the plaintiff in error upon the trial of the indictment, and refused by the court. It is sufficient to remark, that the positions assumed in the instructions so prayed for, being incompatible with the law of this case as expounded by this court, we deem those instructions to have been properly refused. It is the opinion of this court, that the decision of the supreme court of the State of Missouri, pronounced in this cause, sustaining that of the circuit court, is correct, and ought to be, as it is hereby, affirmed.

Mr. Justice NELSON.

I concur in the judgment of the court upon the ground that, though the 10th section of the act of March 3, 1811, had the effect to prevent the title of Missouri to this land from vesting, until the final decision by congress upon the claim of Vall e and others, yet the act of May 24, 1828, confirming lands to Vall e and others, operated as such final decision, and, by its true construction, excepted out of the confirmation so much of the land as was included in section sixteen, the public surveys of the township having been made before the passage of the last-mentioned act. I do not know that the opinion of the court is intended to go further than this. If it does, I do not assent thereto.

Mr. Justice CURTIS concurred with Mr. Justice Nelson.

Mr. Justice GRIER also concurred with Mr. Justice Nelson.

title: Ham v. Missouri/Opinion of the Court


text: Talk:Ham v. Missouri/Opinion of the Court

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


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Guild v. Frontin

THIS case was brought up by writ of error from the district court of the United States for the northern district of California.

The point of practice involved in it, is stated in the opinion of the court.

It was argued by Mr. Blair, for the plaintiffs in error, and submitted on a printed brief by Mr. Cutting, for the defendant.

Mr. Justice GRIER delivered the opinion of the court.

title: Guild v. Frontin


text: Talk:Guild v. Frontin

title: Talk:Guild v. Frontin


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Guild v. Frontin/Opinion of the Court

The record and proceedings in this case are in conformity with the practice of the state courts of California. It was tried without the intervention of a jury, and the testimony, together with the opinion of the court, filed of record. But there is no special verdict, or agreed statement of facts, on which the judgment was rendered; nor is there any bill of exceptions, sealed by the court, to their decision on any question of law. We are, in fact, called upon to review the case on the pleadings, exhibits, and testimony, as if it were a bill in chancery. Our very frequent decisions on this subject seem not to have come to the knowledge of the bar in the court below. Parties may, by consent, waive the trial of issues of fact by a jury, and submit the trial of both facts and law to the court. It will not be a mistrial. But if they wish the judgment of the court to be reviewed on a writ of error, a special verdict or agreed statement of facts must be put on record. The issues of fact must be ascertained, and made certain, before a court of error can review the decision of an inferior court. If the verdict do not find all the issues, or the agreed statement in the nature of a special verdict be imperfect or incomplete, this court may order a venire de novo, because of the mistrial, as in the case of Graham v. Bayne, ante, p. 60, at this term. But having jurisdiction of the cause, and no error appearing on the face of the record, the judgment of the court below must be affirmed.

The case of Prentice v. Zane, 8 How. 470, is directly in point on this subject.

title: Guild v. Frontin/Opinion of the Court


text: Talk:Guild v. Frontin/Opinion of the Court


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Savignac v. Garrison

THIS case was brought up by writ of error from the circuit court of the United States for the district of Missouri.

The case is stated in the opinion of the court.

It was argued by Mr. Baxter, for the plaintiff in error, and Mr. Ewing, for defendant.

The decision of the court being that the case of Guitard et al. v. Stoddard controls this one with respect to the instructions given by the court below, it is not thought advisable to report the arguments of counsel, which covered the whole case.

Mr. Justice NELSON delivered the opinion of the court.

title: Savignac v. Garrison


text: Talk:Savignac v. Garrison

title: Talk:Savignac v. Garrison


text:
Savignac v. Garrison/Opinion of the Court

This is a writ of error to the circuit court of the United States for the district of Missouri.

The plaintiff below, Garrison, brought an action of ejectment against Savignac, to recover the possession of a lot of land in the city of St. Louis, claiming title derived from the confirmation of Mordecai Bell's Spanish claim by the act of congress of 1835.

The defendant claimed title to the lot under the 1st section of the act of 13th of June, 1812, which provided 'that the rights, titles, and claims to town or village lots, out-lots, common field lots, and commons, in, adjoining, and belonging to the several towns or villages, (enumerating several, of which St. Louis was one,) which lots have been inhabited, cultivated, or possessed prior to the 20th December, 1803, shall be, and the same is hereby confirmed to the inhabitants of the respective towns or villages, according to their several right or rights in common thereto.'

Evidence was given on the trial, by the defendant, deducing a title or claim to the lot in question, derived from Charles Simoneau, and also evidence tending to prove that the lot was an out-lot within the purview of the act of 1812, and that Simoneau was in possession and cultivation of it prior to the 20th December, 1803.

After the testimony closed, the court instructed the jury that 'there was no evidence that Simoneau cultivated any out-lot or common-field lot; nor that any one existed at the place where the cultivation was; nor had the act of 1812 application to this land, so far as Simoneau, or those claiming under him, are concerned. And further, that if there had existed an out-lot or common-field lot, undefined by boundaries, which was claimed on the ground of inhabitation, cultivation, or possession, then the act of the 26th May, 1824, required that the fact of inhabitation, cultivation, or possession, and the boundaries and extent of such claim, should be proved before the recorder of land titles, to enable the surveyor-general to distinguish the private from the vacant lots. And no steps having been taken under the act of 1824, nor any authoritative location or survey of the land, at any time, either under the Spanish government or the government of the United States, the evidence given in this case will not enable the defendant to resist a recovery by the plaintiff.'

The case of Guitard et al. v. Stoddard, 16 How. 494, decided since this case was tried at the circuit, disposes of both branches of the instructions to which we have referred, holding that whether or not the lot, and the inhabitation, cultivation, or possession thereof came within the purview of the act of 1812, were questions of fact for the jury; and that the neglect to procure the survey and location, under the act of 1824, did not operate to impair or forfeit the title acquired under that of 1812.

As the judgment of the court below must be reversed for errors in the instructions referred to, it is unimportant to take notice of any other questions raised on the trial or in the argument.

Judgment reversed, and venire de novo to issue.


text: Talk:Savignac v. Garrison/Opinion of the Court


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Parker v. Overman

THIS was an appeal from the circuit court of the United States, for the District of Arkansas.

The case is stated in the opinion of the court.

It was argued by Mr. William Shepard Bryan, for the plaintiffs in error, and Mr. Lawrence, for defendant.

The points made by Mr. Bryan, which are decided by the court, were the following:--

1. That by the true construction of the act, such a deed is made evidence only of those facts which are recited in it.

2. That in order to establish the regularity and validity of a sale of land for taxes, the deed should show, upon its face, that every essential preliminary required by the statute has been performed.

3. That the deeds set out in the record, fail to recite several of these essential preliminaries; and that, therefore, they do not furnish evidence of the validity of the sale in question.

There are no recitals in the deeds, that the sheriff filed his assessment list, on or before March 25; that he gave ten days' notice in each township, that the list would be laid before the next county court; that he laid the list before the county court, at the term next succeeding March 25; that the court, at that term, adjusted this tax to be paid; that on or before the first Monday in August, he filed a list of the lands of non-residents with the auditor; that the list was corrected by the auditor, and advertised when corrected. 13 How. 472; 8 Eng. (Ark. Rep.) 242; 14 Pet. 322; 4 Wheat. 77; Arkansas Revenue Act, (Dig. c. 139, § 112.)

6. That all the testimony taken together (even if the incompetent testimony on the part of the petitioner be considered) shows that the sheriff and collector did not strictly pursue the authority to sell the land for taxes, given him by the revenue act, but that he omitted several important particulars.

He filed his assessment list too late; he neglected to give the ten days' notice required by law; he laid the list before the county court one term too late; and he was too late in filing with the auditor a list of the lands of non-residents.

Mr. Lawrence:--

The deed which was given in evidence was prim a facie, and, in the absence of positive proof of irregularity, conclusive evidence of the regularity and legality of the tax sale. Rev. Stats. c. 128, § 96, p. 687. Roberts v. Pillow, 13 How. 472.

By the 97th section of the Revenue act, p. 687, Rev. Stats., it is enacted, that 'no exception shall be taken to any deed made by a collector,' &c., 'but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intention of the general assembly.'

It is insisted that no objection which is taken to the proceedings in this case has any merit, considered with regard to the intention of the general assembly.

So far as the proceedings connected with the sale are concerned, a strict compliance with the statute is shown.

The only want of compliance with the literal requirements of the act, is in the fact that the affidavit of the assessor, required by section 7, was not filed till the 15th March, 1845, and the assessment list was not filed in the office of the county clerk, on or before the 25th March, as required by section 26.

Dallas county was created by act approved January 1, 1845, which act passed the lower house, 24th December, 1844, and the senate, on the 28th of the same month.

By the 9th section of that act, an election was to be held on the fourth Monday of January, of all the officers necessary for the organization of the county, except justices and constables.

The first officers of Dallas county were sworn in about the 1st March, 1845.

The sheriff filed his affidavit as assessor, 15th March, 1845, and on the 28th April, 1845, filed his assessment list in the county court. The county court, at its first term, adjudged the list as required by law, and all the proceedings thereafter were in strict accordance with the revised statutes.

It is submitted, first, that the objection, that the assessor's oath was not filed on the 10th day of January, and the assessment list on the 25th of March, has no substantial merit, because the list was to be made out and filed, in order to be adjusted by the court, upon the appeal of any one aggrieved by the amount assessed on his property.

So far as regards the land in question, they were assessed at the lowest amount permitted by the law. Of course, no advantage would have happened from an earlier notice of that which he could not object to.

And, secondly, it is submitted that the act erecting Dallas county was a legislative suspension of such portions of the revised statutes as the act, by its requirements, rendered impossible.

Mr. Justice GRIER delivered the opinion of the court.

title: Parker v. Overman


text: Talk:Parker v. Overman

title: Talk:Parker v. Overman


text:
Parker v. Overman/Opinion of the Court

As some doubts were entertained, and have been expressed by some members of the court, as to its jurisdiction in this case, it will be necessary to notice that subject, before proceeding to examine the merits of the controversy. It had its origin in the state court of Dallas county, Arkansas, sitting in chancery. It is a proceeding under a statute of Arkansas, prescribing a special remedy for the confirmation of sales of land by a sheriff or other public officer. Its object is to quiet the title. The purchaser at such sales, is authorized to institute proceedings by a public notice in some newspaper, describing the land, stating the authority under which it was sold, and 'calling on all persons who can set up any right to the lands so purchased, in consequence of any informality, or any irregularity or illegality connected with the sale, to show cause why the sale so made should not be confirmed.'

In case no one appears to contest the regularity of the sale, the court is required to confirm it, on finding certain facts to exist. But if opposition be made, and it should appear that the sale was made 'contrary to law,' it became the duty of the court to annul it. The judgment or decree, in favor of the grantee in the deed, operates 'as a complete bar against any and all persons who may thereafter claim such land, in consequence of any informality or illegality in the proceedings.'

It is a very great evil in any community, to have titles to land insecure and uncertain; and especially in new States, where its result is to retard the settlement and improvement of their vacant lands. Where such lands have been sold for taxes, there is a cloud on the title of both claimants, which deters the settler from purchasing from either. A prudent man will not purchase a lawsuit, or risk the loss of his money and labor upon a litigious title. The act now under consideration was intended to remedy this evil. It is in substance a bill of peace. The jurisdiction of the court over the controversy id founded on the presence of the property; and, like a proceeding in rem, it becomes conclusive against the absent claimant, as well as the present contestant. As was said by the court in Clark v. Smith, (13 Pet. 203,) with regard to a similar law of Kentucky: 'A State has an undoubted power to regulate and protect individual rights to her soil, and declare what shall form a cloud over titles; and having so declared, the courts of the United States, by removing such clouds, are only applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of the country. The state legislatures have no authority to prescribe forms and modes of proceeding to the courts of the United States; yet having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed be substantially consistent with the ordinary modes of proceeding on the chancery side of the federal courts, no reason exists why it should not be pursued in the same form as in the state court.'

In the case before us, the proceeding, though special in its form, is in its nature but the application of a well-known chancery remedy; it acts upon the land, and may be conclusive as to the title of a citizen of another State. He is therefore entitled to have his suit tried in this court, under the same condition as in other suits or controversies.

In the petition to remove this case from the state court, there was not a proper averment as to the citizenship of the plaintiff in error. It alleged that Parker 'resided' in Tennessee, and White in Maryland. 'Citizenship' and 'residence' are not synonymous terms; but as the record was afterwards so amended as to show conclusively the citizenship of the parties, the court below had, and this court have, undoubted jurisdiction of the case.

What we have already stated sufficiently shows the nature of the present controversy. The decree appealed from 'adjudges the absolute title to the land to pass and be confirmed to, and vest in, said William Overman, his heirs, &c., free, clear, and discharged from the claim of said defendants, and all persons whatsoever; and that the said sale thereof for taxes, so made by the sheriff of Dallas county to said Overman, is hereby confirmed in all things, and said defendants perpetually enjoined from setting up or asserting any claim thereto, &c.'

The plaintiffs in error allege that this decree is erroneous, and should have been for defendants below.

Much of the argument of the learned counsel in this case was wasted on the effect to be attributed to the recitals in the deed, and the decision of this court in the case of Pillow v. Roberts, 13 How. 472.

That was an action of ejectment, in which this court decided that, under the 96th section of the revenue law, the sheriff's or collector's deed was made prim a facie evidence of the regularity of the previous proceedings. The effect of that section of the act, and of the decision in that case, was to cast the burden of proof of irregularity in the proceedings on the party contesting the validity of the deed; but as the present controversy is for the purpose of giving an opportunity 'to all persons who can set up any right or title to the land so purchased, in consequence of any informality or illegality connected with such sale,' to contest its validity, it would be absurd to make the deed, whose validity is in question, conclusive evidence of that fact. Consequently, the statute enacts that in this proceeding 'the deed shall be taken and considered by the court as sufficient evidence of the authority under which said sale was made, the description of the land, and the price at which it was purchased. The deed is to be received as prim a facie evidence of these three facts, and casts the burden of proof as to them on the defendant. The term 'sufficient' is evidently used in the statute as a synonym for 'prim a facie,' and not for 'conclusive.'

In judicial sales under the process of a court of general jurisdiction, where the owner of the property is a party to the proceedings, and has an opportunity of contesting their regularity at every step, such objections cannot be heard to invalidate or annul the deed in a collateral suit. But one who claims title to the property of another under summary proceedings where a special power has been executed, as in case of lands sold for taxes, is bound to show every fact necessary to give jurisdiction and authority to the officer, and a strict compliance with all things required by the statute.

The principal objection to the regularity of the sale in this case, and the only one necessary to be noticed, is, that the land was not legally assessed. A legal assessment is the foundation of the authority to sell; and if this objection be sustained, it is fatal to the deed.

In order to qualify the sheriff to fulfil the duties of assessor, the statute requires that, 'on or before the tenth day of January, in each year, the sheriff of each county shall make and file in the office of the clerk of the county an affidavit in the following form,' &c.: 'And if any sheriff shall neglect to file such affidavit within the time prescribed in the preceding section, his office shall be deemed vacant, and it shall be the duty of the clerk of the county court, without delay, to notify the governor of such vacancy,' &c.

The statute requires, also, 'that on or before the 25th day of March, in each year, the assessor shall file in the office of the clerk of the county the original assessment, and immediately thereafter give notice that he has filed it,' &c. This notice is required, that the owner may appeal to the county court 'at the next term after the 25th day of March, and have his assessment corrected, if it be incorrect.' If the assessor shall fail to file his assessment within the time specified by this act, he is deemed guilty of a misdemeanor and subjected to a fine of five hundred dollars.

These severe inflictions upon the officer, for his neglect to comply with the exigencies of the act, indicate clearly the importance attached to his compliance in the view of the legislature, and that a neglect of them would vitiate any subsequent proceedings, and put it out of the power of the sheriff to enforce the collection of taxes by a sale of the property.

The record shows that Payton S. Bethel, the then sheriff of the county of Dallas, did not file his oath as assessor on or before the 10th of January, as required by law. He did file an oath on the 15th of March, but this was not a compliance with the law, and conferred no power on him to act as assessor. On the contrary, by his neglect to comply with the law, his office of sheriff became ipso facto vacated, and any assessment made by him in that year was void, and could not be the foundation for a legal sale. The neglect, also, to file his assessment and give immediate notice on the 25th of March, so that the purchaser might have his appeal at the next county court, was an irregularity which would have avoided the sale even if the assessment had been legally made.

The statute makes the time within which these acts were to be performed material; and a strict and exact compliance with its requirements is a condition precedent to the vesting of any authority in the officer to sell.

We are of opinion, therefore, that the sale of the land of the appellants was 'contrary to law,' and that the deed from Edward M. Harris, sheriff and collector of Dallas county, to William Overman, set forth and described in the pleadings and exhibits of this case, is void, and should be annulled.

title: Parker v. Overman/Opinion of the Court


text: Talk:Parker v. Overman/Opinion of the Court


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Richards v. Holmes

THIS was an appeal from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The case is stated in the opinion of the court.

It was argued by Mr. Bibb, for the appellants, and by Mr. Fendall and Mr. Tracy, for the appellees. There was also a brief filed by Mr. Bradley, as counsel for Southworth, Litchfield, and Beach.

Mr. Bibb made the following points:--

1. That the note was dated on the 1st of May, 1846, and payable in two years. The trustee had no right to sell until the 1st of May, 1848, whereas he sold on the 21st of October, 1847.

2. The allegation set up that Holmes had verbally agreed with Harper to pay the interest semi-annually, &c., cannot be permitted to vary the deed or enlarge the powers of the trustee. Nor could the consent of Holmes impair the rights of Richards, Bassett, and Aborn. They had a right to redeem the property when the note became due, the property being worth more than the lien upon it.

3. The notice of sale was not properly given.

4. The auctioneer was seller and bidder for Harper.

The trustee could not purchase the estate himself; he could not buy as the agent of another; he could not employ the auctioneer to bid for the estate on behalf of Harper. Ex parte Bennett, 10 Ves. 393; Coles v. Trecothick, 9 Ves. 248; Ex parte James, 8 Ves. 345, 348, 350; Ex parte Lacey, 6 Ves. 625; Lister v. Lister, 6 Ves. 631, 632; Twining v. Morris, 2 Brown Ch. Ca. 326; The York Buildings Co. v. McKenzie, 3 Brow. Par. Ca., Appen.; Davoue v. Fanning, 2 Johns. Ch. Rep. 254, 257, 268, 269, 270.

According to established principles, such a sale as this cannot stand in a court of equity.

The counsel for the appellees, after justifying the sale in other respects, thus noticed one of the points of alleged defectiveness:--

The trustee did not bid at all; Harper's bid was regular. His rights as a creditor, whose only security for his whole fortune was the property advertised for sale, stood on ground as strong, at least, as that of the owner of it. And, though it is not lawful for an owner to employ an agent 'to take advantage of the eagerness of bidders, to screw up the price,' yet, as a 'defensive precaution,' 'a bidder may be privately appointed by the owner, to prevent the estate from being sold at an under-value.' 1 Sugden on Vendors, (9th ed.) 26, 27; Fonbl. Eq. Bk, 1, ch. 4, § 4, n. X; 1 Mad. Ch. Pr. (4th Am. ed.) 324, 325; Smith v. Clarke, 12 Ves. 477; Steele v. Ellmaker, 11 Serg. & R. 86; Jenkins v. Hogg, 2 Const. Rep. (S.C..) 821; Wolfe v. Luyster, 1 Hall, N. Y. R. 146; Phippen v. Stickney, 3 Metc. 384. Harper made only one bid, and that for 'defensive precaution.' The bid was made through the auctioneer, who was the agent of both parties. Smith's Mercantile Law, 301, and the cases there cited; Conelly v. Parsons, 3 Ves. 625, n.

It is denied that the property was sold at 'a very inadequate price,' or that the amount at which it is said to have been assessed on the books of the corporation of Washington (of which there is no evidence) is a true test of its value. But even if the price were 'very inadequate,' the inadequacy would be no ground for annulling this sale. 1 Fonbl. Eq. 128; 1 U.S. Digest, 344, pl. 33, and the cases there cited. It will be contended that the sale was in all respects regular; and that, if it were not so, yet the complainants cannot avail themselves of the imputed irregularities.

Mr. Justice CURTIS delivered the opinion of the court.

title: Richards v. Holmes


text: Talk:Richards v. Holmes

title: Talk:Richards v. Holmes


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Richards v. Holmes/Opinion of the Court

This is an appeal from a decree of the circuit court for the District of Columbia. The appellants filed their bill in that court to set aside a sale, made to satisfy a prior incumbrance on land, upon which they claimed to have a second incumbrance. In the court below, some question appears to have been made concerning the priority of the incumbrances; but none is made here, it being conceded, that though that claimed by the complainants was the earliest in date, the other was first recorded, and takes precedence.

The sale in question was made under a deed of trust, whereby Holmes, the debtor, conveyed to the defendant, Philip R. Fendall, in trust to secure the payment of a promissory note, bearing date May 1, 1846, payable in two years from date, for $2,800 and interest, payable annually.

It is objected that the sale, which was made on the 21st of October, 1847, after one year's interest had become due, but before the principal sum was payable, was premature. This depends upon the meaning and effect of the power of sale contained in the deed. It was competent for the parties to agree to a foreclosure by sale for non-payment of interest, and the question is, whether they did so agree. The event in which the trustee is empowered to sell, is thus described in the deed:--

'But if the hereinbefore described promissory note, with the interest legally due thereon, shall not be fully paid off and discharged when said note shall be due and payable, and payment of the same shall be demanded, or if any note or notes given in substitution for or renewal of the hereinbefore described promissory note shall not be fully paid off and discharged according to the tenor and effect of the said substitute or new note or notes, together with the interest legally due on such substitute or note or notes, so that any default be made in payment of any part of the aforesaid debt of two thousand eight hundred dollars and interest, then so soon after such default, &c.'

The omission to pay the first year's interest was a default within the express words of this power. That interest was part of the interest secured by the note, and a failure to pay it was a 'default in payment of part of the aforesaid interest.' The deed authorizes the trustee to sell for any such default, and, consequently, the sale was not premature.

It was argued that the trust deed does not describe the note as bearing annual interest, and, consequently, that the subsequent incumbrancer has a right to insist that, as against him, there was no power to sell for non-payment of such interest.

It is true the deed does not purport to describe the interest which is to become due on the note; but it clearly shows that it bore interest at some rate, and payable at some time or times, and this was sufficient to put a subsequent incumbrancer on inquiry as to what the rate of interest and the time or times of its payment were. The deed, in effect, declares, and its record gives notice to subsequent purchasers, that its purpose is to secure the payment of such interest as has been reserved by the note; the amount, and date, and time of payment of which are mentioned. We do not think the mere omission to describe in the deed what that interest was to be, is a defect of which advantage can be taken by the complainants.

The complainants further insist that the property was not duly advertised. The provision in the deed of trust upon this subject is as follows: 'It shall be the duty of the said Philip R. Fendall or his heirs to enter upon the hereinbefore conveyed piece or parcel of ground and appurtenances, and sell the same at public auction to the highest bidder, or at private sale, for cash or credit, according to his or their discretion, after having given public notice of such sale, by advertisement, at least thirty days previously thereto, in the National Intelligencer, or in some other newspaper printed or published in the city of Washington aforesaid.'

Inasmuch as the trustee was empowered to sell at private sale, as well as at public auction, his power extended to a private sale made at any time after thirty days' notice. Having given notice for the space of thirty days that he was about to sell the property, he might, at any time after the expiration of that thirty days, have proceeded to sell it at private sale. But this notice should be such as to call for purchasers at private sale. The notice given was of a sale at public auction. This did not call for purchasers, except at the time and place mentioned in the notice. No sale was made at the time and place designated in the thirty days' notice, published in the National Intelligencer. At that time and place the attendance of bidders was so small, that the trustee believed an attempt to sell for a fair price would be fruitless; and he adjourned the sale for the space of fourteen days, giving notice of such adjournment in the same newspaper of the next day. At the time and place thus fixed for the adjourned sale another postponement took place, for the same reasons, for one week; and the place of sale was changed from the premises to the rooms of the auctioneer. Of this postponement, also, public notice was given on the next day, in the same newspaper.

There is no reason to suspect the least unfairness on the part of the trustee, or any one concerned. His conduct seems to have been dictated solely by an honest desire to obtain the best price for the property. Nor is there any ground for believing that either of these postponements prejudiced the interest of the complainants. They stand upon the objection, that though the trustee might have sold on the first day, of which thirty days' notice was given, he could not on that day adjourn the sale.

But we consider that a power to a trustee to sell at public auction, after a certain public notice of the time and place of sale, includes the power regularly to adjourn the sale to a different time and place, when, in his discretion fairly exercised, it shall seem to him necessary to do so in order to obtain the fair auction price for the property.

If he has not this power, the elements or many unexpected occurrences may prevent an attendance of bidders, and cause an inevitable sacrifice of the property. It is a power which every prudent owner would exercise in his own behalf under the circumstances supposed, and which he may well be presumed to intend to confer on another. This power of sale does not undertake to prescribe the particular manner of making the sale. It is to be at public auction, and 'after having given public notice of such sale by advertisement at least thirty days;' but it assumes that the sale will be conducted as such sales are usually conducted. A sale regularly adjourned, so as to give notice to all persons present of the time and place to which it is adjourned, is, when made, in effect the sale of which previous public notice was given.

The courts of several States have gone further in this direction than we find necessary, though we do not intend to intimate any doubt of the correctness of their decisions. They have held that a public officer, upon whom a power of sale is conferent time and may adjourn an advertised public sale to a different time and place, for the purpose of obtaining a better price for the property. Tinkom v. Purdy, 5 Johns. 345; Russell v. Richards, 11 Maine, 371; Lantz v. Worthington, 4 Barr, 153; Warren v. Leland, 9 Mass. 265. If such a power is implied where the law, acting in invitum, selects the officer, a fortiori it may be presumed to be granted to a trustee selected by the parties.

The remaining objection is, that the defendant Harper, the creditor for whose benefit the sale was made, through the trustee, requested the auctioneer to bid for him the sum of twenty-five hundred dollars; that the auctioneer did so, and there being no higher bid, the property was struck off to Harper. It is insisted that this renders the sale void.

We do not deem it necessary to examine the numerous and somewhat conflicting decisions upon the subject of by-bidding, or bidding by persons standing in fiduciary capacities. This case stands clear of those decisions and of the principles upon which they rest. No decision lays down a positive rule that such sales, though affected by such bidding, are, per se, and as between all persons, void. They may be avoided by parties whose just interests have been injuriously affected by such misconduct, provided the rights of innocent third persons are not thereby disturbed.

It was for the advantage of these complainants, as subsequent incumbrancers, that this property should sell for the best price which could be obtained. Even improper practices to enhance the price, if any such had been resorted to, could not be complained of by them. It is only some practice to prevent bidding, or procure a sale for less than the property would have otherwise brought, which can be relied on by them to avoid the sale. We have no doubt the creditor, for the satisfaction of whose debt the sale was made, had a right to compete fairly at the sale; but whether he had or not, his doing so could not be injurious to the complainants.

It is true he employed the auctioneer to bid for him; but this fact alone could not depreciate the price. Such an authority may be used for fraudulent purposes; but, if fairly used, its tendency is to enhance the price; and in this case there is no evidence that it was intended to be, or in fact was, unfairly used. On the contrary, there seems to be no room for doubt that the price bid by the auctioneer for Harper was more than any other person was willing to give. It must be remembered, that the auctioneer was not employed as the agent of the creditor to purchase the property for him at the least price at which it could be obtained. Such an agency an auctioneer should not undertake. It is inconsistent with his relation to the seller, and with the faithful discharge of his duty to the seller.

But an agency simply to bid a particular sum for a purchaser, amounting to no more than receiving from the purchaser, before the auction, a bid which is to be treated as if made there by the purchaser himself, is not necessarily inconsistent with any duty of the auctioneer, and does not enable any one to avoid the sale.

And the same remark applies to the trustee. It was his duty to obtain for the property the best price he could by the use of due diligence in a fair sale. It would have been improper for him, in behalf of the creditor, to employ the auctioneer to buy at any thing short of that best price. But there was no impropriety in his employing him to bid a particular sum for the creditor, to prevent a sacrifice of the property.

We have considered all the objections to this sale made by the complainants, and finding neither of them valid, the decree of the court below is, in that respect, affirmed.

As to so much of the complainants' bill as seeks relief against their assignors, in the event of not obtaining satisfaction from the land, we are of opinion that these assignors are under no such liability as is asserted by the complainants. The complainants purchased a negotiable note which was overdue. The assignors did not indorse it, but simply assigned it by deed. They entered into certain specific covenants concerning the subject-matter assigned; and their liability depends exclusively on these covenants. Neither of these covenants appears to have been broken. The only one concerning which any doubt has been raised is the following:--

'And we do in like manner covenant, promise, and agree, that the said note of three thousand dollars, hereinbefore assigned, shall be and is entitled to payment out of any sale of the premises conveyed in and by the deed of trust aforesaid, before the other note therein specified, and shall have a prior lien on the said premises, or the proceeds thereof.'

We think the purpose and effect of this covenant was, not to secure payment out of any sale which might be made by any party under any title to the premises, but only to assure the priority of payment of the note assigned, in preference to the other note, out of any sale made under the particular title to the premises described in the deed of assignment.

The covenant that the note assigned is due, is shown to have been kept by the note itself, in the absence of other evidence. The answer admits the receipt of moneys from the maker on account of other debts, but denies any payment on account of this note; and there is no evidence to the contrary.

The decree of the circuit court is affirmed, with costs.

title: Richards v. Holmes/Opinion of the Court


text: Talk:Richards v. Holmes/Opinion of the Court


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Jones v. Johnston

THIS case was brought up by writ of error, from the circuit court of the United States, for the District of Illinois.

The case is stated in the opinion of the court, but it is difficult for the reader to understand the points, unless with the assistance of an explanatory map. Many of these were used during the argument, but the sketch here presented, may convey some idea of the locality.

Johnston, who brought the ejectment in the court below, was the owner of lot No. 34. Jones and Marsh claimed that lot No. 35 was entitled to the whole benefit of the alluvion. There were three trials in the court below, the last of which resulted in a verdict and judgment for the plaintiff as follows:--

Beginning at a point on the line between lots thirty-four and thirty-five, in Kinzie's addition to Chicago, Cook county, Illinois, three hundred feet southerly of the south line of North Water street, measuring on that line for distance; thence south, eleven degrees and thirty minutes, east, one hundred and thirty-five feet, to the north pier; thence easterly along the north pier to the shore of Lake Michigan; thence northwardly along the lake shore two hundred and twenty-two feet; thence westerly in a straight line to the place of beginning.

The instructions given to the jury by the circuit court are stated in the opinion of the court.

It was argued by Mr. Scammon and Mr. Johnston, for the plaintiffs in error, and by Mr. Lawrence and Mr. Chase, for the defendant.

On the trial in the circuit court, the counsel for the defendant made twelve prayers to the court; some of which were granted, others with reservations and qualifications. The counsel for the plaintiff made seven prayers, which were qualified in the same way; and then the court gave other instructions to the jury of its own accord. The arguments of counsel in this court discussed all these points; and it would not be possible to explain them, without giving too extended a statement of all the points.

Mr. Justice NELSON delivered the opinion of the court.

title: Jones v. Johnston


text: Talk:Jones v. Johnston

title: Talk:Jones v. Johnston


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Jones v. Johnston/Opinion of the Court

This is a writ of error to the circuit court of the United States for the district of Illinois.

The suit below, was an action of ejectment, brought by Johnston, against Jones and Marsh, to recover a tract of alluvial land in the city of Chicago, formed in Lake Michigan, adjoining the north pier of Chicago harbor, and which is claimed as an accretion to water-lot No. 34, in Kinzie's addition. The defendant, Jones, is owner of lot No. 35, in said addition, lying east, and adjoining 34, and between that and the lake.

Both parties claim under Robert A. Kinzie, the patentee of the north fractional section 10, in township 39, which was situate in the bend of the Chicago River, at its mouth, and bounded southerly by that river, and easterly by the Michigan Lake. Kinzie, the patentee, in February, 1833, laid out an addition to the town of Chicago upon this fractional section, and made a plat of the same, which was recorded in the recorder's office of the county, on the 18th of January, 1834, according to the requirements of the laws of the State of Illinois. On this plat, lot No. 34, is one of a series of water-lots, bounded on the south side of North Water street, sixty feet, as its northerly boundary, and is included within lines dropped from the fixed corners on that street at right angles with the same, and extended until they intersect the lake shore. Lot No. 35, is the next lot east, of the same width, on Water street, and extended in like manner to the lake, its west line being the east line of 34.

On the 25th of February, 1833, R. A. Kinzie, conveyed to John H. Kinzie, several lots in this addition, and among others, lot No. 35. And on the 1st September, 1834, John H. conveyed the same to Jones, the defendant, describing it in the deed as in Kinzie's addition, and as 'being water-lot No. 35,' &c., 'agreeably to the town plat, recorded in the office of the recorder of the said county of Cook, to which reference may be had if necessary.'

On the 22d of October, 1835, R. A. Kinzie, conveyed to Johnston, the plaintiff, lot No. 34, describing it as lying in Kinzie's addition, and known as water-lot No. 34, 'as will more fully appear, reference being had to said plat as recorded in the recorder's office of the town of Chicago, in the county of Cook,' &c.

In the summer of 1833, the general government commenced the construction of the harbor of the city of Chicago, which is formed by an erection of two piers across this fractional section 10, from the curve of the Chicago River, as it takes a direction southerly to the lake, and for a considerable distance into the lake, the effect of which was to turn the river from its sweep southerly across the sand-bar to the waters of the lake between the two piers, and thus opening a passage for vessels into the town.

The south pier was built in 1833, and the north in 1834. The harbor thus constructed, divided several of the lots in Kinzie's addition that bounded on Water street, east and west, and, among others, as is claimed by the defendant, No. 34, leaving a part of it as originally laid out, south of the harbor.

Since the construction of the harbor and extension of the piers into the waters of the lake, the shore above, or north of the piers, has greatly changed, the firm land having increased by the washing up of sand and earth, and the recession of the waters to the extent of some twelve hundred feet in width, and for a considerable distance in length northward along the shore. The present suit is brought to recover a portion of this alluvion or new-formed land, as an increment or accession to lot No. 34. The plaintiff claims that a part of its southern termination on the lake was north of the piers, and contiguous to the new-formed land, and therefore entitled to its share of the increment. The defendant contends that no part of its boundary was on the lake north of the harbor, and therefore no part connected with or adjoining this land newly formed. On the contrary, that part of his own lot, No. 35, which lies between 34 and the lake, was bounded on the lake south of the north pier, and hence cut off No. 34 from any portion of the alluvial accession.

The plaintiff insisted, on the trial, that the plat of Kinzie's addition, as recorded in the recorder's office in January, 1834, was incorrect, and produced what was claimed to be the original, but which was not recorded when the conveyances of the lots in question were executed. According to this original plat, as the side lines were laid down, lot No. 34 appeared to be partially bounded on the lake north of the harbor. In this respect, it differed from the plat recorded; as, according to the side lines as there extended, its entire boundary on the lake was south of the harbor.

In laying out the addition by the surveyor in 1833, the only lines of the lots run out or measured on the ground were those butting on Water street, the north lines of the lots. The side lines depend upon their protraction on the plat of the addition; and which, as we have already said, were formed by dropping them at right angles from the corners on Water street, and extending them till they intersected the lake. And even the lake shore, as laid down on the plat-as appears from the testimony of the surveyor-was ascertained without survey or measurement, and with little more accuracy than could be obtained from the eye.

The case was a good deal embarrassed on the trial, arising out of the evidence in respect to this original plat, and some consideration and effect were given to it by the court in submitting it to the jury. We think the court erred in admitting it as evidence to control, or in any way to affect, the record plat. Both lots in controversy were conveyed with express reference to that, and without such reference there is not a sufficient description given in the deeds of the boundaries to admit of a location of either.

If there was in fact any error or mistake in this reference, by way of description of the premises conveyed, the remedy was in chancery to reform the deed. So long as that remained unreformed, the description of the lot by the reference to the recorded plat was conclusive upon the parties.

The acts of the State of Illinois regulating the laying out of town-lots, and the recording of the plats of the same, were supposed by the court below to have a bearing upon the questions involved, and influenced the instructions given and refused to the jury. It seemed to be admitted that the plat recorded did not conform in all respects to the requirement of the statutes.

But it is not pretended that the omission in any way operated to invalidate the deeds, or affect prejudicially the rights of the parties under them. Both parties stand upon the same footing in this respect, as each claims under the same survey of the town, and by reference to the same plat. We do not perceive that these acts of the State have any material bearing upon the case, and should not have been allowed to influence the trial. If the description in the deeds was sufficiently certain, by a reference to the plat on record, to identify and locate the lots, the title passed to the grantees, whether the plat conformed to the acts of the legislature or not. This is all that was material so far as the plat is concerned.

The court, in instructing the jury, observed that the controversy turned upon the length of the line dividing lot 34 from 35, before the north pier was constructed-that whether in point of fact it touched the shore of the lake before it reached the pier, or the place where the pier was; in other words, whether there was any water-line of lot 34 north of the north pier, and if so, what was the extent of the water-line.

Again, the court charged, after adverting to the recorded plat, and to the question whether or not it was made in conformity to the statutes of Illinois, that, if the jury should find the plat was not so made and recorded, then they should determine, under all the evidence in the case, whether or not, prior to the construction of the north pier, the dividing line between lots 34 and 35 touched the water at a point north of where the north pier was subsequently placed; if it did, then the court was of opinion that the owner of 34 had a right to follow the water as the accretions were formed on his water-line.

In these instructions we think the court erred.

As we have seen, this lot No. 34 was conveyed to the plaintiff the 22d October, 1835, and described as included within side lines dropped at right angles from the northwest and northeast corners on Water street, which were sixty feet apart, and fixed, and extended in right lines till they intersected the shore of the lake below. The boundaries, therefore, including and locating the lot were specific and complete. The north boundary was marked on the south side of Water street; the side lines extended according to the plat at right angles from Water street to the lake; the lake was the southern boundary which closed the lines of the lot.

Now, in order to determine what land was conveyed to the plaintiff by his deed of 22d October, 1835, all that was necessary was to locate the lot upon the ground in conformity to the description at that date. The calls in the deed having reference to the plat, furnished the necessary data for the location. There was the fixed line north on the ground, the lake, a natural object south, and the lot enclosed between two lines extending at right angles from the corners on Water street to the lake.

If the call for the southern boundary, instead of being a lake, which is a shifting line, had been a permanent object, such as a street or wall, there could not be two opinions as to the location. And yet the water-line, though it may gradually and imperceptibly change, is just as fixed a boundary in the eye of the law as the former. I speak not now of sudden and considerable changes, which are governed by different principles.

The court below, as appears from the instructions referred to, assumed that lot No. 34 should be located on the ground as of the time of the survey and plat of February, 1833, some two years and nine months previous to the conveyance to the plaintiff, and not at the date of that conveyance; and if at that time the dividing line between 34 and 35 would strike the lake north of where the north pier of the harbor was subsequently built, so as to give a like boundary at that time above the pier, the plaintiff would be enabled to take under his deed not only lot 34, as laid down on the plat, but all subsequent accretions by alluvion or dereliction, whatever might be the extent of the new-formed land. By the like assumption and process of reasoning, if the present plaintiff should convey the lot with the same specific boundaries, the north line sixty feet on Water street, and side lines extending at right angles to the lake, the deed would carry with it the whole of the new-made land outside the lines of the deed which is now in dispute-it being a tract from one hundred and thirty to two hundred and twenty-two feet one way, and some twelve hundred the other.

Now, one answer to this assumption is, that a grantee can acquire by his deed only the lands described in it by metes and bounds, and with sufficient certainty to enable a person of reasonable skill to locate it, and cannot acquire lands outside of the description by way of appurtenance or accession.

Lord Coke says: 'A thing corporeal cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal.' Coke Litt. 121, B.

And this court, in Harris et al. v. Elliot, 10 Pet. 54, after approving of the maxim of Coke, observed, that, according to this rule, land cannot be appurtenant to land. In the case of Jackson v. Hathaway, 15 Johns. R. 454, the court say, a mere easement may, without express words, pass as an incident to the principal object of the grant; but it would be absurd to allow the fee of one piece of land not mentioned in the deed to pass as appurtenant to another distinct parcel which is expressly granted by precise and definite boundaries. See also 7 Mass. 6.

Land gained from the sea either by alluvion or dereliction, if the same be by little and little, by small and imperceptible degrees, belongs to the owner of the land adjoining. 2 Bl. Com. 261-2. If, therefore, the rule be as supposed by the court below, that the boundaries of lot 34 must be taken as it would have been located at the time of the plat, and the southern limit to stop at the water-line as it then existed, and the subsequent gain by alluvion or dereliction to pass as appurtenant to the land conveyed, the grantee would find it difficult upon this construction to reach the lake at all. Certainly he could not, if the water-line as it then existed is to be deemed the southern limit as described in his deed, provided alluvial accretions had taken place between the survey and plat and the date of the deed. The land thus formed belonged to the adjoining owner for the time being, and we have seen that the deed would not pass it as appurtenant or incidental to the land granted.

But the true answer to the position assumed, and which governed the trial below, is, that the water boundary on the lake is to be deemed the true southern boundary of the lot at the date of the conveyance, as much so as North Water street was its northern boundary. And the plaintiff is carried by his deed to it, not because of the alluvial deposit, if any, between the water-line at the time of the survey and plat and the line at the date of the deed, having passed as appurtenant to the lot, but because one of the calls given in the deed requires that the side lines should be thus extended. Any alluvial accretions since the deed belong to the plaintiff as owner of the adjoining land. Any past accretions belonged to the then owner, and whoever sets up a title to them must show a deed of the same as in the case of any other description of land.

The case of Robert M. Lamb v. Thomas C. Rickets, 11 Ohio, 311, exemplifies the principle for which we are contending. The defendant had agreed to convey a piece of land called the Hamlin lot, containing forty-two acres more or less, and also two other small lots of ten acres, with a proviso if the Hamlin lot and the two others contained more than fifty-two acres the excess was reserved. The defendant conveyed the Hamlin lot, and refused to convey the other two. A bill was filed to compel a conveyance. The Hamlin lot was bounded by one of its lines on the bank of the Tuscarawas River, and had been originally conveyed to the defendant, and by him to the plaintiff, as containing forty-two acres more or less.

The defence set up to the bill was, that before the defendant conveyed the lot to the plaintiff large accessions had been made from the river to the lot, and that these alluvial formations made up the quantity of fifty-two acres.

The plaintiff claimed that the quantity should be determined according to the old boundary of the lot upon the bank of the river, which would be but some forty-two acres. But the court held that the question was not as the bank of the river was twenty-five or thirty years ago, but as it was when the Hamlin tract was conveyed to the plaintiff, and estimated the quantity of land conveyed accordingly.

The case of Giraud's Lessee v. Hughes et al. 1 Gill & Johnson, 249, asserts a similar principle. There Gist's inspection, a grant as early as 1732, was bounded by one of its lines in the waters of the Patapsco River, afterwards a basin of Baltimore; the lines, however, were given in the grant by courses and distances, and did not call for the river. Hughes held under this grant by deed in 1782.

Before 1812, the waters of the Patapsco had gradually receded, and formed a body of firm land, which had been surveyed and patented by the State to the plaintiff. The question was, whether or not Hughes was entitled to this alluvial deposit as the adjoining owner to the river. It was not doubted by the counsel or court but that, if the grant of Gist's inspection had been bounded on the river, this boundary of the tract would have included the land made by the recession of the water; and the court even held, that as the original location of the tract extended into the river, it entitled those holding under it to the land, on the ground that the principle governing these alluvial accretions gave them to the adjoining owner. In other words, the description in the original grant gave, in legal effect, to the grantee, a water boundary; and if so, the boundary included the accretions.

The jury, therefore, in this case, should have been directed to inquire whether or not, at the time of the deed to the plaintiff, lot No. 34 had a water-line upon the lake north of the north pier of the Chicago harbor;-in other words, whether the line between that lot and No. 35 struck the shore of the lake before it reached this pier. If it did, then the question would properly arise in respect to its right to a share of the alluvial accretions formed since that period. If it did not, then no question of the kind could arise in the case.

We think the court also erred in the rule laid down to govern the jury in the division of the new-made land. That was, the jury should ascertain the extent of the water-line of 34 between the piers and the point where the line dividing 34 and 35 touched the water. They should also ascertain the extent of the water-line of the fraction of land south of North Water street and east of 35, and also of 35 to the point dividing 34 and 35; they would then have the plaintiffs' and the defendant's front on the lake. They must then ascertain the front on the lake shore, as it at present exists, and divide that into as many equal parts as there are feet on the old shore from North Water street to the piers, and give to each of the parties as many of these parts as he had feet on the old shore, and then draw a straight line from the point of division on the old lake shore to the point thus determined as the point of division on the present one.

We do not perceive why North Water street should have been adopted as the northern limit upon the old shore, as the basis in making the division, as it appears from the evidence and maps that the alluvial accretions extended much further north. The northern limit on the old shore should have been carried as far as the new-made land extended, as each riparian proprietor was entitled to his proper share, and it was essential that the entire line be regarded, in order that each might obtain his proportional part. Neither do we perceive any reason for excluding the pier shore of the lake-that is, the shore along the line of the piers-from measurement, in ascertaining the extent of the newly made shore. If we disregard the artificial construction which occasioned the accretions, the lake there is as much new shore as any other portion of it, and should have been taken into the estimate.

As no question was made below whether or not the alluvial accretions in question were formed under such circumstances as gave to adjoining owners a title to them, we do not intend to express any opinion upon that question.

The judgment of the court below is reversed, with directions that a venire de novo issue.

title: Jones v. Johnston/Opinion of the Court


text: Talk:Jones v. Johnston/Opinion of the Court


text:
Siddons v. Bogert

THIS case came up by writ of error, from the circuit court of the United States for the district of Missouri.

The case is stated in the opinion of the court.

It was argued by Mr. Crittenden, for the plaintiffs in error, and Mr. Geyer, for the defendants.

Those of Mr. Crittenden's points, which were included in the decision of the court, were the two following:--

1. Because the judgments themselves were void, so far as they related to, or affected the lands, tenements, or hereditaments of the intestate; or, if not, that the executions issued thereon, dated respectively, the 28th of February, and 9th of April, 1821, under or in virtue of which the sheriff sold the land in question, were illegal, null and void, because issued before the expiration of eighteen months from the date (1st of November, 1819,) of the letters of administration of the estate of said intestate, and were therefore issued in direct violation of the express provisions of the before-recited act of the 25th of January, 1817; 8 Metcalf, 502.

2. Because the sale, in virtue of which said deed purports to have been executed, was made on the 1st day of May, 1821, and before the expiration of eighteen months from the date, (1st of November, 1819,) of the said letters of administration, contrary to the express terms of the said act of 1817, and was, therefore, illegal and void.

The only questionable part of this proposition is, whether the 1st of May, 1821, is a day after the expiration of eighteen months from the 1st of November, 1819, or included in, and part of the period. The reasonable and legal rule of computation of time in such cases, is to exclude the first day, that is, the day of the event or act from which the computation is to be made. It is but the fraction of a day, and the law takes no notice or account of it. This is believed to be the rule as now settled by judicial discussions in Missouri. Gantly v. Ewing, 3 How. 707; Kennon v. Osgood, 19 Mo. R. 60; Blaine v. Beehler, 12 Mo. R. 477.

Upon the principal point in the case, Mr. Geyer said:--

The sale was made on the 1st of May, 1821, which was after the expiration of eighteen months, from the death of the intestate, or the date of the letters of administration, (1st of November, 1819,) construing the act of 1817 according to the rules and principles which have been recognized and applied in analogous cases.

It has been laid down in many cases as a general rule, that where time is to be computed from an event or an act, the day of the event or the performance of the act is to be included. Norris v. The Hundred of the Gawthry, Hobart, 139; King v. Adderly, Douglass, 463; Castle v. Burdett, 3 Term R. 623; Glassington v. Rawlings, 3 East, 407; Priest v. Tarlton, 3 N. H. Rep. 93; Thomas v. Afflick, 16 Pa. R. 14; Robinet v. Compton, 2 La. An. R. 856; Pierpoint v. Graham, 4 Wash. C. C. Rep. 232; Arnold v. United States, 9 Cranch, 104.

In some cases, the rule has been held to be, to exclude the day of the act or event from the computation; in others, the day has been excluded without laying down any general rule. King v. Cumberland, 4 Nov. and M. 375; Judd v. Fulton, 10 Barl. 117; Wing v. Davis, 7 Maine, 31; Ex parte v. Deane, 2 Cowen, 605; Cornell v. Moulton, 3 Denio, 12; Snydor v. Warren, 2 Cowen, 518; S. B. Mary Blane v. Beehler, 12 Mo. R. 477; Kimm v. Osgood's Administrators, 19 Mo. R. 60.

But it has been denied that there is any general rule, that the day of the act or event from which time is to be computed is to be included or excluded, and held that whether it is to be taken inclusive or exclusive, depends upon the reason of the thing, the context, and subject-matter. Lester v. Garland, 15 Vesey, Jr., 248; Dowling v. Foxall, 1 Ball & Bealty, 196; Windsor v. China, 4 Maine, 298; Bigelow v. Wilson, 1 Peck, 485; Presbury v. Williams, 15 Mass. 193; Jones v. Planters' Bank, 5 Humphries, 619; O'Conner v. Towns, 1 Texas, 107.

In the earlier cases, 'from the date' was generally held to be inclusive, and 'from the day of the date,' exclusive, but the doctrine now most generally received is, that there is no difference in the two forms of expression, both meaning the same thing; and in the computation of time on promissory notes and bills of exchange, the day of the date has generally been excluded; in other instances, it is held to be inclusive or exclusive, according to the context and subject-matter. Pugh v. Duke of Leeds, Cowper, 714, and cases there cited and reviewed; Rand v. Rand, 4 N. H. 267; Moore v. Bond, 18 Maine, 142; Wilcox v. Wood, 9 Wend. 346.

It appears to have been very generally agreed that either the first or the last day shall be included in the computation, and in no case are both to be excluded or included, unless the contract or statute upon which the question arises will admit of no other construction. Ex parte v. Deane, 2 Cow. 605; Thomas v. Afflick, 16 Pa. R. 14; Sander's Heirs v. Norton, 4 Monroe, 474.

Upon a review of the cases, it appears that there is no general rule in computing time from an act done or an event, or from a date or the day of the date, that the day is to be inclusive or exclusive; but, according to the adjudged cases, whether the day in either case is to be included or excluded, depends upon the reason of the thing, the subject-matter, and the context.

But the title of a bon a fide purchaser, at judicial sales, is not affected by any irregularities in the proceedings of the officer, or in the process under which he sold; therefore, if the eighteen months limited by the statute had not expired at the time of the sale, under which the defendants hold, the sheriff's deed would not, on that account, be void; at most, it would be voidable, and could be impeached only in a direct proceeding, and not in a collateral action. All that is necessary to support the title of a purchaser in an action of ejectment, is the judgment, execution, levy, and sheriff's deed. Jackson v. Steinburg, 1 J. C. 153; Jackson v. Bartlett, 8 J. R. 361; Jackson v. Rosevelt, 13 J. R. 97; Same v. Delaney, 13 J. R. 535; Same v. Robbins, 16 J. R. 537; Brown v. Miller, 3 J. J. Marsh, 439; Lawrence v. Sheed, 2 Bibb, 401; Webber v. Stith & Cox, 6 Monroe, 101; Day v. Graham, 1 Gel. (6 Ill.) R. 435; Swigart v. Harber, 4 Scam, 364; Ware v. Bradford, 2 Al. R. 676; 19 do. 132; State Bank v. Noland, 13 Ark. R. 299; Newton v. State Bank, 14 Ark. R. 9; Byers v. Fowler, 12 Ark. 218; Wheaton v. Sexton, 4 Wheat. 506; Hart v. Rector, 7 Mo. R. 531; Reed v. Heirs of Austin, 9 Mo. R. 722; Landes v. Perkins, 12 Mo. R. 254; Draper v. Bryson, 17 Mo. R. 71; Carson v. Walker, 16 Mo. R. 68; Robinett v. Compton, 2 La. An. R. 856.

All the questions now raised were before the court, which was a court of competent jurisdiction, and its acts cannot now be impeached. 1 Baldwin, 246; 1 Serg. & Rawle, 101; 8 Serg. & Rawle, 397; 2 Pet. 257; 10 Pet. 473; 2 How. 343.

Mr. Justice GRIER delivered the opinion of the court.

title: Siddons v. Bogert


text: Talk:Siddons v. Bogert

title: Talk:Siddons v. Bogert


text:
Siddons v. Bogert/Opinion of the Court

The plaintiffs claim the land which is the subject of controversy in this suit, as heirs of Isaac W. Griffith, who died seised of the same in 1819. His estate was insolvent. Judgments were obtained against his administrators in 1820, executions were issued thereon, and the property sold by the sheriff. The defendants claim under the purchaser at this sale.

On the trial, the court below instructed the jury 'that the sheriff's deed, read in evidence under the judgments and executions also in evidence, was effectual to devest the title of the heirs of Isaac H. Griffith to the land mentioned in said deed.'

It is admitted, that in the State of Missouri the lands of a deceased debtor may be taken in execution, and sold by the sheriff, in satisfaction of a judgment against the administrator. And also that such deed vests in the purchaser all the estate and interest which the deceased had in the property at the time of his death. But it is alleged that this sale is 'without authority of law and void,' because the execution was issued and sale made before the time limited for stay of execution against the real estate of a decedent. The law and the facts, on which this objection to the validity of the sale is founded, are as follows:

By an act of 1817, it is provided that 'all lands, tenements, and hereditaments shall be liable to be seized or sold upon judgment and execution obtained against the defendant or defendants, in full life, or against his or her heirs, executors, or administrators, after the decease of the testate, or intestate; provided, no such land, tenements, or hereditaments, shall be seized and sold until after the expiration of eighteen months from the death of such ancestor, or the date of the letters testamentary or letters of administration, and execution may issue against such lands, tenements, and hereditaments, after the death, testate or intestate, and after the time aforesaid, in the same manner as if such person were living.'

The letters of administration on the estate of Girffith are dated on the 1st of November, 1819. The sale was made by the sheriff on the 1st of May, 1821, on executions previously issued.

It is contended that the term of eighteen months from the 1st of November, 1819, had not expired on the 1st of May, 1821, and consequently the sale was without authority of law, and void.

But we are of opinion that the assumption on which this inference is based, is not correct; nor the inference correct, if the assumption were granted.

If the day on which the letters of administration be counted in the calculation, the term of eighteen months had 'expired' on the 1st of May, 1821.

Whether the terminus a quo should be so included, it must be admitted, has been a vexed question for many centuries, both among learned doctors of the civil law and the courts of England and this country. It has been termed by a writer on civil law (Tiraqueau) the controversia controversissima.

In common and popular usage, the day a quo has always been included, and such has been the general rule both of the Roman and common law. The latter admits no fractions of a day; the former, in some instances, as in cases of minority, calculated de momento en momentum. The result of this subdivision was to comprehend a part of the terminus a quo. But in cases where fractions of a day were not admitted, as in those of usucaption or prescription, a possession commencing on the 1st of January, and ending on the 31st of December, was counted a full year. It was in consequence of the uncertainty introduced on this subject by the disquisitions and disputes of learned professors, that Gregory IX., in his decretals, introduced the phrase of 'a year and a day,' in order to remove the doubts thus created, as to whether the dies a quo should be included in the term. It thus maintained the correctness of the common usage, while it satisfied the doubts of the doctors.

The earlier cases at common law show the adoption of the popular usage as the general rule, but many exceptions were introduced in its application to leases, limitations, &c., where a forfeiture would ensue. But the cases are conflicting, and have established no fixed rule as to such exceptions. Lord Mansfield reviews the cases before his time, in Pugh v. Leeds, Cowp. 714, and comes to the conclusion 'that the cases for two hundred years had only served to embarrass a point which a plain man of common sense and understanding would have no difficulty in construing.'

The rule he lays down in that case is, 'that courts of justice ought to construe the words of parties so as to effectuate their deeds, and not destroy them; and that, 'from' the date, may in vulgar use, and even in strict propriety of language, mean either inclusive or exclusive.'

It would be tedious and unprofitable to attempt a review of the very numerous modern decisions, or to lay down any rules applicable to all cases. Every case must depend on its own circumstances. Where the construction of the language of a statute is doubtful, courts will always prefer that which will confirm rather than destroy any bon a fide transaction or title. The intention and policy of the enactment should be sought for and carried out. Courts should never indulge in nice grammatical criticism of prepositions or conjunctions, in order to destroy rights honestly acquired.

In the present case there is no reason for departing from the general rule and popular usage of treating the day from which the term is to be calculated, or 'terminus a quo,' as inclusive. The object of the legislature was to give a stay of execution for eighteen months, in order that the administrator might have an opportunity of collecting the assets of the deceased and applying them to the discharge of his debts. The day on which the letters issue may be used for this purpose as effectually as any other in the year. The rights of the creditor to execution are restrained by the act, for the benefit of the debtor's estate. The administrator has had the number of days allowed to him by the statute to collect his assets and pay the debts. The construction which would exclude the day of the date is invoked, not to avoid a forfeiture or confirm a title, but to destroy one, obtained by a purchaser in good faith under the sanction of a public judicial sale.

If the statute in question were one of limitation, whereby the remedy of the creditor would have been lost, unless execution had issued and sale been made within the eighteen months, probably a different construction might have prevailed. Yet, even in such a case, the precedents conflict. (See Cornell v. Moulton, 3 Denio, 12; and Presbury v. Williams, 15 Mass. 193.)

But, if the correct application of the rule to the present case were doubtful, the fact that this question was raised and decided by the court between the parties to the judgment, and that the court, after considering the question, ordered the sale to be made on the 1st of May, would be conclusive, not only as res judicata inter partes, but as evidence of the received construction by the courts of Missouri, which it would be an abuse of judicial discretion now to overturn.

Finally, there is another view of this case which is conclusive, as regards this and all other objections taken by the counsel to the validity of the sheriff's deed. It is the well-known and established rule of law in Missouri and elsewhere, that a judicial sale and title acquired under the proceedings of a court of competent jurisdiction cannot be questioned collaterally, except in case of fraud, in which the purchaser was a participant. (See Grignon v. Astor, 2 How. 319.) The cases of Reed v. Austin, 9 Mo. R. 722; of Landes v. Perkins, 12 Mo. 239; Carson v. Walker, 16 Mo. 68, and Draper v. Bryson, 17 Mo. 71, show that this principle of the common law is the received and established doctrine of the courts of Missouri.

The sheriff's deed in the present case is founded on a regular judgment in a court of competent jurisdiction, and an execution on said judgment issued by authority of the court, and levied on property subject by law to be taken and sold to satisfy the judgment. The writ authorized the sheriff to sell; a sale was made in pursuance thereof by the sheriff, and a deed executed to the purchaser, which was afterwards acknowledged in open court according to law. At this time, all parties interested could and would have been heard to allege any irregularity in the proceedings that would justify the court in setting it aside. The objections to this sale do not reach the power of the court, or the authority of the sheriff to sell. The issuing of an execution on a judgment before the stay of execution has elapsed, or after a year and day without reviving the judgment, the want of proper advertisements by the sheriff, and other like irregularities, may be sufficient ground for setting aside the execution or sale, on motion of a party to the suit, or any one interested in the proceedings; but when the objections are waived by them, and the judicial sale founded on these proceedings is confirmed by the court, it would be injurious to the peace of the community and the security of titles to permit such objections to the title to be heard in a collateral action.

On every view of the case, we are of opinion that the title of the purchaser is protected by the established rules of law, and that there was no error in the instructions given to the jury by the court below.

The judgment of the circuit court is therefore affirmed.

title: Siddons v. Bogert/Opinion of the Court


text: Talk:Siddons v. Bogert/Opinion of the Court