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Killian v. Ebbinghaus (110 U.S. 568)/Opinion of the Court

The bill in this case was filed by John W. Ebbinghaus, the appellee, as trustee for the German Calvinist Society and their legal representatives. His appointment as trustee was brought about in the following manner: On July 16, 1877, August Sievers, Edward Kolb, and Ludwig Freund, as trustees of the First German Reformed Church of Washington, District of Columbia, filed their petition in the supreme court of the District of Columbia, in which they represented that on June 28, 1793, one D. Reintzel held, as trustee, in trust for the German Calvanist Society, lot 9, in square 80, of the city of Washington; that the German Reformed Church was the legal counterpart and successor of the German Calvanist Society, and that the petitioners were the only beneficiaries of the trust estate; that Reintzel, the trustee, was dead, and no successor had been appointed. They, therefore, prayed that John W. Ebbinghaus, the pastor of the First Reformed Church of the city of Washington, might be appointed trustee, as the successor of Reintzel. On the day on which the petition was filed, the supreme court of the district, without notice or service of process, appointed Ebbinghaus trustee in the place of Reintzel, to hold, as trustee, the said property 'for the German Calvanist Society and their legal successors, in accordance with the intent of Jacob Funk, the original donor.' Ebbinghaus believed, for he so testifies, that the real estate in question was the property of the First Reformed Church. When giving his deposition in this case he was asked, 'Do you consider that this lot belongs to your church?' His answer was, 'Yes, sir; most emphatically.' With this belief, on the day next after his appointment as trustee, and in pursuance of an understanding entered into with the trustees of his church before his appointment, he filed the bill in this case. It alleged that the appellee, Ebbinghaus, was the trustee and legal owner of lot 9, in square 80, in the city of Washington, in the District of Columbia; that the property mentioned was given in trust by one Jacob Funk to D. Reintzel, as trustee, to hold for the use and benefit of the German Calvanist Society, and that he held the property as the successor to D. Reintzel, deceased, for said society and their legal representatives, in accordance with the intent of Jacob Funk, the original donor. The bill further averred that Ebbinghaus held the property in trust for the legal successors and beneficiaries of the trust, whoever they might be, and was ready to pay the rents, issues, and profits arising therefrom into court, to be disposed of as the court might direct, and faithfully perform the duties of trustee; and that he brought his bill to have the court decide who were the legal beneficiaries under said trust. The bill further averred that the defendants John G. Killian, John Schenck, and John Schneider, trustees of the German Evangelical Concordia Church of the city of Washington, claimed to be the legal beneficiaries and entitled to the rents and profits of the trust property for religious purposes, and had already received and converted to their own use a large sum of money, the rents of the property, without the consent of Reintzel or his legal representative or of the appellee. The bill also averred that the defendants August Sievers, Edward Kolb, and Ludwig Freund, trustees of the First Reformed Church of the city of Washington, claimed to be the legal successors of the German Calvanist Society, and the legal beneficiaries of the trust, and entitled to the rents, profits, and estate of and in said property, and were 'expected to sue the complainant for the recovery of their supposed rights.' The prayer of the bill was for an account of the rents and profits of the trust estate received by the trustees of the German Evangelical Concordia Church and for the payment into court of the amount found due from them; that the trustees of the two church societies mentioned in the bill might be respectively enjoined from bringing suit against Ebbinghaus on account of, and from further interference with, the trust property during the pendency of the present suit; and that they might be required to interplead together; and that Ebbinghaus might be indemnified.

The defendants Schenck and Schneider filed their joint answer, in which they denied that Ebbinghaus was the trustee and legal owner of the real estate described in the bill, and averred that they and the defendant John G. Killian, their associate trustee, were the only lawful and equitable trustees of the property. They denied that Ebbinghaus, whom they averred to be an interloper, held the property as trustee or successor to to D. Reintzel, or as successor of any one having title thereto, or that he held it for the benefit of the legal successors and beneficiaries of the trust. The defendants Siever, Kolb, and Freund, styling themselves trustees of the First Reformed Church, filed their joint answer, admitting all the averments of the bill. Upon final hearing of the case, upon the pleadings and evidence, the supreme court of the District of Columbia, in special term, dismissed the bill without prejudice. Upon appeal to the supreme court of the district, in general term, the decree of the special term was reversed, and the court decreed that Ebbinghaus, as trustee as aforesaid, be authorized and empowered to take possession of the property described in the bill, and hold the same as trustee for the First Reformed Church, in the city of Washington, District of Columbia, and receive the rents and profits thereof, and account therefor as such trustee to said First Reformed Church; that the trustees of the German Evangelical Concordia Church be enjoined from further interfering with said real estate, or with the receipt of the rents and profits thereof by Ebbinghaus, and that they account to him for the rents received by them since the filing of the bill in this case. The present appeal brings this decree under review.

The appellants contend that the decree of the court below should be reversed because the suit is not one of which a court of equity could take jurisdiction, and the decree is not one which it was competent for such a court to make. We think this contention is well founded. The bill is either a bill of interpleader or a bill in the nature of a bill of interpleader. It is clear that it cannot be sustained as a bill of interpleader. In such a bill it is necessary to aver that the complainant has no interest in the subject-matter of the suit; he must admit title in the claimants and aver that he is indifferent between them, and he cannot seek relief in the premises against either of them. Langston v. Boylston, 2 Ves. Jr. 103; Angell v. Hadden, 15 Ves. Jr. 244; Mitchell v. Hayne, 2 Sim. & St. 63; Aldrich v. Thompson, 2 Brown, Ch. 149; Metcalf v. Hervey, 1 Ves. Sr. 248; Darthez v. Winter, 2 Sim. & St. 536; Bedall v. Hoffman, 2 Paige, Ch. 20 ; Atkinson v. Manks, 1 Cow. 691. In this case the bill fails to comply with any of these requirements. If the complainant were in possession of the property in question, holding it for the party benficially interested, and had custody of rents and profits derived therefrom, and the two sets of defendants asserted conflicting claims to the property and to the rents, the facts might sustain a bill of interpleader. But the complainant is out of possession; he has no rents in his custody. He is therefore in no jeopardy from the conflicting claims of the defendants, and cannot call on them to interplead. Instead of admitting title in the two sets of claimants, and asking the court to decide between them, he sets up title in himself for the benefit of one set, and seeks relief against the other. To avoid these obstacles to the maintenance of the suit, the appellee insists that it can be maintained as a bill in the nature of a bill of interpleader. In support of this view his counsel cites section 824, Story, Eq. Jur. (11th Ed.,) where it is said that 'there are many cases where a bill in the nature of a bill of interpleader will lie by a party in interest to ascertain and establish his own rights, when there are other conflicting rights between third persons.' But in all such cases the relief sought is equitable relief. Mohawk, etc., R. Co. v. Clutz, 4 Paige, 384; Parks v. Jackson, 11 Wend. 443; McHenry v. Hazard, 45 N. Y. 580; Goodrick v. Shotbolt, Price, Ch. 333; 1 Madd. Ch. Pr. 146, 147. The authority cited by the appellee does not, therefore, aid the bill in this case, which is that of a party out of possession claiming the legal title to real estate, seeking to oust the parties in possession, who also claim the legal title, and compel them to pay over the rents and profits.

The fatal objection to the suit is that it is in fact an attempt by the party claiming the legal title to use a bill in equity in the nature of a bill of interpleader as an action of ejectment. The record makes this apparent. At the instance of the trustees of the First Reformed Church, the appellee was appointed by the supreme court of the District of Columbia to hold the property in trust for that church. His appointment was obtained that he might bring this suit in the interest of the First Reformed Church against the trustees of the German Evangelical Concordia Church. He alleges in his bill that he has the legal title to the premises in controversy, of which it is clear from the record that he is out of possession. Having no rents or profits in his keeping, he seeks to recover them from one body of trustees, and asks the court to decide to which of the two bodies of trustees claiming the property he shall pay them when he has recovered them. The answer of Schenck and Schneider denies that the appellee is the legal owner of the property, or that he holds it as trustee. They aver that the title to the property is in them, as trustees of the German Evangelical Concordia Church. Upon the filing of the answer the point of controversy between the parties plainly appeared. Both claimed to own the legal title, and the defendants were in possession. The issue thus raised could only be tried in an action at law. The decree of the court below is the equivalent of the judgment of a court of law in an action of ejectment, namely, that the plaintiff recover possession of the premises; and also of the judgment of a court of law in an action of trespass for mesne profits, that he recover rents and profits. There is no ground for calling such a suit a bill of interpleader of any kind.

There are no averments in the bill which disclose any other grounds of equity jurisdiction. It is clear that an action of ejectment would have afforded the appellee a plain and adequate remedy. The case is similar to the leading case of Hipp v. Babin, 19 How. 271, which was dismissed by the circuit court on the ground that there was an adequate remedy at law. Upon appeal to this court the decree was affirmed. This court, speaking by Mr. Justice CAMPBELL, described the case as follows: 'The bill in this case is in substance and legal effect an ejectment bill. The title appears by the bill to be merely legal. The evidence to support it appears from documents accessible to either party, and no particular necessity of the courts interfering, either mecessity of the courts interfering, either for preventing suits or other vexation, or for preventing an injustice irremediable at law.' And the court declared, as a result of the argument, 'that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by a jury.' See, also, Parker v. Cotton Co. 2 Black, 545; Grand Chute v. Winegar, 15 Wall. 373; Lewis v. Cocks, 23 Wall. 466. And this objection to the jurisdiction may be enforced by the court sua sponte, though not raised by the pleadings or suggested by counsel. Parker v. Cotton Co. and Lewis v. Cocks, ubi supra. These and many similar authorities, which it is unnecessary to cite, are applicable to the case in hand. They show that the court below was without jurisdiction to entertain the suit and render the decree appealed from. Its decree is therefore reversed, and the cause remanded, with directions to dismiss the bill without prejudice.


text: Talk:Killian v. Ebbinghaus (110 U.S. 568)/Opinion of the Court

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text:
Hopt v. People of the Territory of Utah

''Thos. J. Marshall'', for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

HARLAN, J.

title: Hopt v. People of the Territory of Utah


text: Talk:Hopt v. People of the Territory of Utah


text:
Hopt v. People of the Territory of Utah/Opinion of the Court

The plaintiff in error and one Emerson were jointly indicted in a court of Utah for the murder, in the first degree, of John F. Turner. Each defendant demanded a separate trial, and pleaded not guilty. Hopt, being found guilty, was sentenced to suffer death. The judgment was affirmed by the supreme court of the territory. But, upon writ of error in this court, that judgment was reversed, and the case remanded, with instructions to order a new trial. 104 U.S. 631. Upon the next trial, the defendant being found guilty, was again sentenced to suffer death. That judgment was affirmed by the supreme court of the territory. We are now required to determine whether the court of original jurisdiction in its conduct of the last trial committed any error to the prejudice of the substantial rights of the defendant.

1. The validity of the judgment is questioned upon the ground that a part of the proceedings in the trial court were conducted in the absence of the defendant. The Criminal Code of Procedure of Utah, § 218, provides that 'if the indictment is for a felony the defendant must be personally present at the trial; but if for a misdemeanor the trial may be had in the absence of the defendant; if, however, his presence is necessary for the purpose of identification, the court may, upon application of the prosecuting attorney, by an order or warrant, require the personal attendance of the defendant at the trial.' The same Code provides that a juror may be challenged by either party for actual bias; that is, 'for the existence of a state of mind which leads to a just inference in reference to the case that he will not act with entire impartiality.' Sections 239, 241. Such a challenge, if the facts be denied, must be tried by three impartial triers, not on the jury panel, and appointed by the court. Section 246. The juror so challenged 'may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry.' Section 249. 'Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.' Section 250. 'On the trial of the challenge for actual bias, when the evidence is concluded, the court must instruct the triers that it is their duty to find the challenge true, if in their opinion the evidence warrants the conclusion that the juror has such a bias against the party challenging him as to render him not impartial, and that if from the evidence they believe him free from such bias they must find the challenge not true; that a hypothetical opinion on hearsay or information supposed to be true is of itself no evidence of bias sufficient to disqualify a juror. The court can give no other instruction.' Section 252. 'The triers must thereupon find the challenge either true or not true, and their decision is final. If they find it true the juror must be excluded.' Section 253.

It appears that six jurors were separately challenged by the defendant for actual bias. The grounds of challenge in each case were denied by the district attorney. For each juror triers were appointed, who, being duly sworn, were, 'before proceeding to try the challenge,' instructed as required by section 252 of the Criminal Code; after which, in each case, the triers took the juror from the court-room into a different room and tried the grounds of challenge out of the presence as well of the court as of the defendant and his counsel. Their findings were returned into court, and the challenge, being found not true, the jurors so challenged resumed their seats among those summoned to try the case. Of the six challenged for actual bias, four were subsequently challenged by the defendant peremptorily. The other two were sworn as trial jurors, one of them, however, after the defendant had exhausted all his peremtory challenges. No objection was made to the triers leaving the court-room, nor was any exception taken thereto during the trial. The jurors proposed were examined by the triers, without any testimony being offered or produced, either by the prosecution or the defense.

It is insisted, in behalf of the defendant, that the action of the court in permitting the trial in his absence of these challenges of jurors was so irregular as to vitiate all the subsequent proceedings. This point is well taken. The Criminal Code of Utah does not authorize the trial by triers of grounds of challenges to be had apart from the court, and in the absence of the defendant. The specific provision made for the examination of witnesses 'on either side.' subject to the rules of evidence applicable to the trial of other issues, shows that the prosecuting attorney and the defendant were entitled of right to be present during the examination by the triers. It certainly was not contemplated that witnesses should be sent or brought before the triers without the party producing them having the privilege, under the supervision of the court, of propounding such questions as would elicit the necessary facts, or without an opportunity to the opposite side for cross-examination. These views find some support in the further provision making it the duty of the court 'when the evidence is concluded,' and before the triers make a finding, to instruct them as to their duties. In the case before us the instructions to the triers were given before the latter proceeded with the trial of the challenges. But all doubt upon the subject is removed by the express requirement, not that the defendant may, but, where the indictment is for a felony, must be, 'personally present at the trial.' The argument in behalf of the government is that the trial of the indictment began after, and not before, the jury was sworn; consequently that the defendant's personal presence was not required at an earlier stage of the proceedings. Some warrant, it is supposed by counsel, is found for this position in decisions construing particular statutes in which the word 'trial' is used. Without stopping to distinguish those cases from the one before us, or to examine the grounds upon which they are placed, it is sufficient to say that the purpose of the foregoing provisions of the Utah Criminal Code is, in prosecutions for felonies, to prevent any steps being taken in the absence of the accused, and after the case is called for trial, which involves his substantial rights. The requirement is not that he must be personally present at the trial by the jury, but 'at the trial.' The Code, we have seen, prescribes grounds for challenge by either party of jurors proposed. And provision is expressly made for the 'trial' of such challenges, some by the court, others by triers. The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court and triers, in the selection of jurors. The necessities of the defense may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of impaneling the jury begins.

But it is said that the right of the accused to be present before the triers was waived by his failure to object to their retirement from the court-room, or to their trial of the several challenges in his absence. We are of opinion that it was not within the power of the accused or his counsel to dispense with statutory requirement as to his personal presence at the trial. The argument to the contrary necessarily proceeds upon the ground that he alone is concerned as to the mode by which he may be deprived of his life or liberty, and that the chief object of the prosecution is to punish him for the crime charged. But this is a mistaken view as well of the relations which the accused holds to the public as of the end of human punishment. The natural life, says Blackstone, 'cannot legally be disposed of or destroyed by and individual, neither by the person himself, nor by any other of his fellow creatures merely upon their own authority.' 1 Bl. Comm. 133. The public has an interest in his life and liberty. Neither can be lawfully taken except in the mode prescribed by law. That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be dispensed with, or affected by the consent of the accused, much less by his mere failure, when on trial and in custody, to object to unauthorized methods. The great end of punishment is not the expiation or atonement of the offense committed, but the prevention of future offenses of the same kind. 4 Bl. Comm. 11. Such being the relation with the citizen holds to the public, and the object of punishment for public wrongs, the legislature has deemed it essential to the protection of one whose life or liberty is involved in a prosecution for felony that he shall be personally present at the trial; that is at every stage of the trial when his substantial rights may be affected by the proceedings against him. If he be deprived of his life or liberty without being so present, such deprivation would be without that due process of law required by the constitution. For these reasons we are of opinion that it was error, which vitiated the verdict and judgment, to permit the trial of the challenges to take place in the absence of the accused.

2. Another assignment of error relates to the action of the court in permitting the surgeon-who had made a post mortem examination of the body of a corpse which was claimed by the prosecution to be that of John F. Turner-to state that one Fowler identified the body to him. The surgeon testified that the body examined by him was on the platform at the railroad depot in Salt Lake City, in a wooden case and coffin. The father of the deceased testified that he did not communicate personally with the surgeon, nor see that his son's body was delivered to him; that he left it at the railroad depot in Salt Lake City, in a wooden coffin, inclosed in a box; and the fact that the body of the deceased was originally placed in such a coffin was proved by a witness who put it in the coffin. And yet there was testimony showing that there was a body in the same depot, at or about the time referred to by the surgeon, which, having been placed in a metallic case covered by a wooden box, had been shipped from Echo, by rail to Salt Lake City; also that it showed injuries 'generally similar' to those described by the surgeon. Were there two bodies of deceased persons, at the same depot, about the same time, one 'in a wood coffin inclosed in a box,' and the other 'in a metallic case covered by a wooden box?' There would be some ground to so contend did not the bill of exceptions, in its reference to the body shipped from Echo in a metallic case, imply that there was testimony showing it to be the one that 'had been identified as the body of the deceased, John F. Turner.' The confusion upon the subject arises from the failure to state that the body which the father of the deceased left at the railroad depot was the same as that shipped from Echo to Salt Lake City. It was, perhaps, to this part of the case the court referred when, in the charge to the jury, it said that the prosecution 'has introduced a vast amount of circumstantial evidence.' Be this as it may, it was a material question before the jury whether the body examined by the surgeon was the same one that the father of the deceased had left at the depot, and therefore the body of the person for whose murder the defendant and Emerson were indicted. If it was not, then all that he said was immaterial. If it was, (the evidence otherwise connecting defendant with the death of John F. Turner,) the statements of that witness as to the condition of the corpse, the nature of the injuries-whether necessarily fatal or not-observable upon the body examined by him, and how the blows, apparent upon inspection of it, were probably inflicted, became of great consequences in their bearing upon the guilt or innocence of the defendant of the crime of murder.

No proper foundation was laid for the question propounded to the surgeon as to who pointed out and identified to him the body he examined as that of John F. Turner. He had previously stated that he did not personally know the deceased, and did not recognize the body to be his; he did not know that it was the body which the father of deceased desired him to examine; consequently his answer could only place before the jury the statement of some one not under oath, and who, being absent, could not be subjected to the ordeal of a cross-examination. The question plainly called for hearsay evidence, which, in its legal sense, 'denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests, also, in part, on the veracity and competency of some other person.' 1 Greenl. Ev. § 99; 1 Phil. Ev. 169. The general rule, subject to certain well-established exceptions as old as the rule itself, applicable in civil cases, and therefore to be rigidly enforced where life or liberty are at stake,-was stated in Mima Queen v. Hepburn, 7 Cranch, 295, to be, 'that hearsay evidence is incompetent to establish any specific fact, which fact is in its nature susceptible of being proved by witnesses who speak from their own knowledge.' 'That this species of testimony,' the court further said, speaking by Chief Justice MARSHALL, 'supposed some better testimony which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is inadmissible.' The specific fact to be established by proof of what some one else said to he surgeon as to the identity of the body submitted to his examination was that it was the body of John F. Turner. What Fowler-who was not even shown to have been placed in charge of the body, nor commissioned to deliver it to the surgeon, nor to be acquainted with the deceased-said, in the absence of the prisoner, as to the identity of the body, was plainly hearsay evidence, within the rule recognized in all the adjudged cases. As such it should, upon the showing made, have been excluded.

3. The next assignment of error relates to that portion of the charge which represents the court as saying: 'That an atrocious and dastardly murder has been committed by some person is apparent, but in your deliberations you should be careful not to be influenced by any feeling.' By the statutes of Utah, 'murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, or premeditated killing, or committed in the perpetration of or attempt to perpetrate, any arson, rape, burglary, or robbery, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any other human being other than him who is killed, or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind regardless of human life, is murder in the first degree; and any other homicide committed under such circumstances as would have constituted murder at common law, is murder in the second degree.' Comp. Laws Utah 1873, p. 585. The punishment of murder in the first degree is death, or, upon the recommendation of the jury, imprisonment at hard labor in the penitentiary at the discretion of the court, while the punishment for murder in the second degree is imprisonment at hard labor in the penitentiary for not less than five nor more than fifteen years. Id. 586. In view of these statutory provisions, to which the attention of the jury was called, it is clear that the observation by the court, that 'an atrocious and dastardly murder has been committed by some person,' was naturally regarded by them as an instruction that the offense, by whomsoever committed, was murder in the first degree; whereas it was for the jury, having been informed as to what was murder by the laws of Utah, to say whether the facts made a case of murder in the first degree or murder in the second degree. It was competent for the judge, under the statutes of Utah, to state to the jury 'all matters of law necessary for their information,' and, consequently, to inform them what those statutes defined as murder in the first degree and murder in the second degree. Laws Utah 1878, p. 120; Code Crim. Proc. §§ 283, 284. But it is expressly declared by the Code of Criminal Procedure that while he may 'state the testimony and declare the law' he 'must not charge the jury in respect to matters of fact.' Section 257. The error committed was not cured by the previous observation of the judge, that by the laws of Utah the jury are 'the sole judges of the credibility of the witnesses and of the weight of the evidence and of the facts.' It is rather more correct to say that the effect of that observation was destroyed by the statement at the conclusion of the charge that the murder, by whomsoever committed, was an atrocious and destardly one, and therefore, as the jury might infer, in view of the language of the statute, was murder in the first degree. The prisoner had the right to the judgment of the jury upon the facts, uninfluenced by any direction from the court as to the weight of evidence. For the reasons stated the judgment of the supreme court of the territory must be reversed, and the case remanded, with directions that the verdict and judgment be set aside and a new trial ordered.

The assignments of error, however, present other questions of importance which, as they are likely to arise upon another trial, we deem proper to examine.

4. The first of these questions relates to the action of the court in permitting Carr-called as a witness for the defense-to give in evidence a confession of the prisoner. That confession tended to implicate the accused in the crime charged. The admissibility of such evidence so largely depends upon the special circumstances connected with the confession that it is difficult, if not impossible, to formulate a rule that will comprehend all cases. As the question is necessarily addressed, in the first instance, to the judge, and since his discretion must be controlled by all the attendant circumstances, the courts have wisely foreborne to mark with absolute precision the limits of admission and exclusion. It is unnecessary in this case that we should lay down any general rule on the subject; for we are satisfied that the action of the trial court can be sustained upon grounds which, according to the weight of authority, are sufficient to admit confessions made by the accused to one in authority. It appears that the defendant was arrested at the railroad depot in Cheyenne, Wyoming, by the witness Carr, who is a detective, on the charge made in the indictment. The father of the deceased, present at the time, was much excited, and may have made a motion to draw a revolver on the defendant, but of that fact the witness did not speak positively. The witness may have prevented him from drawing a weapon, and thinks he told him to do nothing rash. At the arrest a large crowd gathered around the defendant; Carr hurried him off to jail, sending with him a policeman, while he remained behind, out of the hearing of the policeman and the defendant. In two or three minutes he joined them, and immediately the accused commenced making a confession. What conversation, if any, occurred between the latter and the policeman during the brief period of two or three minutes preceding the confession was not known to the witness. So far as witness knew, the bill of exceptions states 'the confession was voluntary and uninfluenced by hopes of reward or fear of punishment; he held out no inducement, and did not know of any inducement being held out to defendant to confess.' This was all the evidence showing or tending to show that the confession was voluntary or uninfluenced by hope of reward or fear of punishment.

While some of the adjudged cases indicate distrust of confessions which are not judicial, it is certain, as observed by Baron PARKE in Regina v. Baldry, 2 Denison, 430, 445, that the rule against their admissibility has been sometimes carried too far, and in its application justice and common sense have too frequently been sacrificed at the shrine of mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character. Such a confession, said EYRE, C. B., King v. Warickshall, 1 Leach, 263, 'is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of the crime to which it refers.' Elementary writers of authority concur in saying that, while from the very nature of such evidence it must be subjected to careful scrutiny and received with great caution, a deliberate, voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest evidence against the party making it that can be given of the facts stated in such confession. 1 Greenl. Ev. § 215; 1 Archb. Cr. Pl. 125; 1 Phil. Ev. 533, 534; Stark, Ev. 73. But the presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprive him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law. Tested by these conditions, there seems to have been no reason to exclude the confession of the accused; for the existence of any such inducements, threats, or promises seems to have been negatived by the statement of the circumstances under which it was made.

But it is contended that the court erred in not excluding this proof until the prosecution produced the policeman and proved that nothing was said or done by him, in the absence of Carr, which unduly influenced the making of the confession. The argument is that, possibly, the policeman offered such inducements, or made such threats or promises, that the prisoner, when joined by Carr, was not in a condition of mind to make a confession which the law would deem voluntary. This position, although plausible, is not sustained by authority, nor consistent with sound reason. The circumstances narrated by the witness proved the confession to be voluntary, so far as anything was said or done by him on the immediate occasion. There was nothing disclosed which made it the duty of the court to require, as a condition precedent to the admission of the evidence, that the prosecution should call the policeman and show that he had not, when alone with the accused, unduly influenced him to make a confession.

In Rex v. Clewes, 4 Car. & P. 221, S.C.. 3 Russ Cr. (Sharsw. Ed.) 431, 432, the prosecution proposed to give in evidence a confession made by the accused before the coroner. It appearing that a magistrate had previously an interview with the prisoner, it was suggested that, as he may have been told by that officer that it was better to confess, the prosecution should call him. But the court said that while it would be fair in the prosecutors to call the magistrate, it would not compel them to do so; but if they did not, the prisoner might do so if he chose.

In Rex v, Williams, Roscoe, Crim. Ev. (7th Amer. Ed) 54; 3 Russ. Cr. (Sharsw. Ed.) 432, it appeared that a prisoner, being in the custody of two constables on a charge of arson, a third person went into the room. The prisoner immediately asked him to go into another room, as he wished to speak to him. They went into that room, and the prisoner made a statement to that person. It was contended that the constables ought to be called to prove that they had done nothing to induce the prisoner to confess. But TAUNTON, J., after consulting with LITTLEDALE, J., said: 'We do not think, according to the usual practice, that we ought to exclude the evidence, because a constable may have induced the prisoner to make the statement; otherwise he must in all cases call the magistrates or constables before whom or in whose custody the prisoner has been.'

In Rex v. Warner, 3 Russ. Cr. (Sharsw. Ed.) 432, the prisoner, when before the committing magistrate, having been duly cautioned, made a confession, in which he alluded to one previously made to a constable. It was remarked by the court that, although it was not deemed necessary that a constable, in whose custody a prisoner had been, should be called in every case, yet, in view of the reference to him, he should be called. The constable being called, proved that he did not use any undue means to obtain a confession, but he disclosed the fact that he had received the prisoner from another constable, to whom the prisoner had made some statements. As it did not appear that any confession was made to the latter, and only appeared that a statement was made that might either be a confession, a denial, or an exculpation, the court would not require him to be called. S.C.. Roscoe, Crim. Ev. (7th Amer. Ed.) 54, 55.

Roscoe (p. 554) states the rule to be that 'in order to induce the court to call another officer, in whose custody the prisoner has been, it must appear either that some inducement has been used by, or some express reference made to, such officer.' Russell says: 'For the purpose of introducing a confession in evidence, it is unnecessary, in general, to do more than negative any promise or inducement held out by the person to whom the confession was made.' Vol. 3, p. 431.

While a confession made to one authority should not go to the jury unless it appears to the court to have been voluntary, yet, as the plaintiff in error chose to let its admissibility rest upon the case made by the detective, without any intimation that it would be different if the policeman was examined. and since there was nothing in the circumstances suggesting collusion between the officers, we do not think the court was bound to exclude the confession upon the sole ground that the policeman was not introduced.

5. The last question relates to the action of the court in admitting, as a witness in behalf of the prosecution, Emerson, then serving out a sentence of confinement in the penitentiary for the crime of murder, and the judgment against whom had never been reversed. His testimony tended to implicate the defendant in the crime charged against him. Objection was made to his competency as a witness, but the objection was overruled. At the time the homicide was committed, and when the indictment was returned, it was provided by the criminal procedure act of Utah of 1878 that 'the rules for determining the competency of witnesses in civil actions are applicable also to criminal actions and proceedings, except as otherwise provided in this act.' And the civil practice act of that territory provided (section 374) that 'all persons, without exception, otherwise than as specified in this chapter, may be witnesses in any action or proceeding. Facts which, by the common law, would cause the exclusion of witnesses, may still be shown for the purpose of affecting their credibility,' Comp. Laws Utah, 505; further, (section 378,) that 'persons against whom judgment has been rendered upon a conviction for felony, unless pardoned by the governor, or such judgment has been reversed on appeal, shall not be witnesses.' On the ninth day of March, 1882, after the date of the alleged homicide, but prior to the trial of the case, an act was passed which repealed the section of the civil practice act last quoted. It is contended that such repeal, by which convicted felons were made competent witnesses in civil cases, did not make them competent in criminal cases; in other words, for such is the effect of the argument, those who were excluded as witnesses, under the civil practice act, at the time the criminal procedure act of 1878 was adopted, remained incompetent in criminal cases, unless their incompetency, in such cases, was removed by some modification of the civil practice act expressly declared to have reference to criminal prosecutions. In this view we do not concur. It was, we think, intended by the criminal procedure act of 1878 to make the competency of witnesses in criminal actions and proceedings depend upon the inquiry whether they were, when called to testify, excluded by the rules determining their competency in civil actions. If competent in civil actions, when called, they were, for that reason, competent in criminal proceedings. The purpose was to have one rule on the subject applicable alike in civil and criminal proceedings.

But it is insisted that the act of 1882, so construed, would, as to this case, be an ex post facto law, within the meaning of the constitution of the United States, in that it permitted the crime charged to be established by witnesses whom the law, at the time the homicide was committed, made incompetent to testify in any case whatever. The provision of the constitution which prohibits the states from passing ex post facto laws was examined in Kring v. Missouri, 107 U.S. 221; [S.C.. 2 SUP. CT. REP. 443.] The whole subject was there fully and carefully considered. The court, in view of the adjudged cases, as well as upon principle, held that a provision of the constitution of Missouri denying to the prisoner charged with murder in the first degree the benefit of the law as it was at the commission of the offense,-under which a conviction of murder in the second degree was an acquittal of murder in the first degree, even though such judgment of conviction was subsequently reversed, was in conflict with the constitution of the United States. That decision proceeded upon the ground that the state constitution deprived the accused of a substantial right which the law gave him when the offense was committed, and therefore, in its application to that offense and its consequences, altered the situation of the party to his disadvantage. By the law as established when the offense was committed, Kring could not have been punished with death after his conviction of murder in the second degree, whereas, by the abrogation of that law by the constitutional provision subsequently adopted, he could thereafter be tried and convicted of murder in the first degree, and subjected to the punishment of death. Thus the judgment of conviction of murder in the second degree was deprived of all force as evidence to establish his absolute immunity thereafter from punishment for murder in the first degree. This was held to be the deprivation of a substantial right which the accused had at the time the alleged offense was committed. But there are no such features in the case before us. Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not attach criminality to any act previously done, and which was innocent when done, nor aggravate any crime theretofore committed, nor provide a greater punishment therefor than was prescribed at the time of its commission, nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed. The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offense was committed, might, in respect of that offense, be obnoxious to the constitutional inhibition upon ex post facto laws. But alterations which do not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but-leaving untouched the nature of the crime and the amount or degree of proof essential to conviction-only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the state, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged.

Judgment reversed.


text: Talk:Hopt v. People of the Territory of Utah/Opinion of the Court


text:
Swann v. Fabyan

Samuel F. Rice and David Clopton, for appellant.

P. Hamilton, T. A. Hamilton, and Moorfield Storey, for appellees.

HARLAN, J.

title: Swann v. Fabyan


text: Talk:Swann v. Fabyan

title: Talk:Swann v. Fabyan


text:
Swann v. Fabyan/Opinion of the Court

This is an appeal from a final decree dismissing a bill filed by John Swann against the executors of John S. Wright and the Alabama Great Southern Railroad Company, a corporation created under the laws of Alabama. Swann was the assignee of Wilder and McMillen, who were the purchasers at the sale in a foreclosure suit instituted on the thirtieth of May, 1872, by the trustees for the holders of bonds of the Alabama & Chattanooga Railroad Company, secured by a first mortgage upon its road, rights, franchises, and property. With the assent of Wilder and McMillen, Swann was reported as purchaser, and, the sale being confirmed, a deed was made to him. Subsequently he conveyed all his right, title, and interest to the Alabama Great Southern Railroad Company.

The complainant seeks to reopen the long-protracted contest in the foreclosure suit between the first mortgage bondholders and the executors of John S. Wright, as to whether certain claims of the latter were liens upon the mortgage security. Appellees urge as a controlling consideration that the first-mortgage bondholders acquiesce in the allowance of the Wright claims as having priority of lien over them; and they also contend that, in view of the several orders in the foreclosure suit, particularly the decree under which the sale of the mortgage property was had, and under which Swann claimed and received a deed, he has no standing in a court of equity to question the allowance of the Wright claims as superior liens upon the property. This proposition is controverted by appellant.

In order that appellant's relations to the property may be understood, and the questions involved in this appeal clearly comprehended, it is necessary to examine, somewhat in chronological order, the various steps taken in the foreclosure suit.

By an order made in that suit on the twenty-sixth day of August, 1872, Lewis Rice and W. J. Haralson were appointed receivers, with authority to put the Alabama & Chattanooga Railroad and other property embraced in the first mortgage in repair; to complete any uncompleted portions thereof; to procure rolling stock, machinery, and other necessary things for operating the road; and to manage it to the best advantage, so as not only to prevent the property-then in a dilapidated condition, and being recklessly wasted-from further deterioration, but to preserve it for the benefit as well of the first-mortgage bondholders as of all others having an interest in it. It was also ordered that all claims on account of moneys raised through the receivers by loan, or upon advances for the foregoing purposes, not exceeding $1,200,000, 'shall be a first lien, prior to all others, on the said railroad and other property, and to be paid for, before the said first mortgage bondholders, out of the proceeds of said property.' The receivers were directed to issue certificates for moneys so raised, the loan to be made upon such terms as they might deem expedient: 'provided, that said certificates shall not be disposed of for less than ninety cents to the dollar of their face; and also provided, that interest thereon shall not be allowed at a greater rate than eight per cent. per annum, payable half-yearly; and such certificates shall not be issued until the same shall be countersigned by a majority of the trustees for said first mortgage bondholders, without which countersigning they shall not be entitled to the lien and priority aforesaid.'

On the twenty-third day of January, 1874, a decree was passed for a sale of all the mortgage property as an entirety, the purchaser, upon confirmation of the sale and payment of the purchase money, to receive a conveyance in fee-simple of all the right, title, and interest of the company, and of all persons claiming under it, in the railroad, premises, franchises, and property covered by the mortgage, and free from the claim of defendants in that suit. It was further decreed that the proceeds to arise from the sale, and which had arisen or should arise, in the hands of the receivers, from the prosecution of the business of the company, or which had arisen or might arise in any other way from the property, are in law and equity liable to be applied in the following order: First, to the necessary expenses incident to the execution and due preservation of the trust created by the mortgage, including reasonable compensation to trustees and their counsel, and to the receivers, and all legal and necessary expenses then remaining unpaid, which had been properly incurred with the authority of the court, in relation to the property. Second, to the payment of all taxes, charges, assessments, and liens prior in law to the lien of the mortgage; all sums expended in perfecting the title to the right of way, or to any property formerly claimed by the company and then claimed to be embraced by the mortgage; and 'all liabilities incurred by the receives, including such receivers' certificates or other receivers' indebtedness as may be sanctioned or ordered to be paid by this court, in accordance with the provisions hereinbefore contained.' Third, to the payment of such of the first mortgage bonds, with their interest warrants, as may be reported by the master to have been bona fide issued, and to be outstanding and unpaid. Fourth, the residue to be subject to such order and priority in distribution as the court should establish and decree, reserving for future consideration certain described bonds. By the same decree it was declared 'that all moneys which have been raised by said receivers by loan, or which may have been advanced by them for the purposes aforesaid, and which shall be ascertained by the decretal orders of this court to have been expended, or which may be expended, for the purposes contemplated by and in accordance with the said orders of this court, not exceeding the sum of $1,200,000, shall be a first lien, prior to all others, on the said railroad and other property, and to be paid before the said first mortgage bonds out of the proceeds of said property; and nothing in this decree * *  * shall impair the claims or rights of the creditors of the receivers appointed under either of said orders, or the owners of certificates issued by said receivers under said orders, or the holders of said certificates under hypothecation to the extent of money loaned and advanced on the same for the purposes aforesaid, with the interest and expense added thereto.' The cause was referred to Joseph W. Burke, as special commissioner, with directions to report all amounts necessary and proper to be paid out of the proceeds of sale as indicated by the decree.

On the twenty-fifth of April, 1874, an order was entered, upon the petition of the bondholders, suspending the sale of the property until the matters involved and under reference should be reported on and settled by the court; and allowing bondholders to appear in their own right before the commissioner and the court; and to contest any and all demands embraced by the order of reference, or that might arise before the court, touching the property to be sold.

The reports of Commissioner Burke, made June 18, 1874, and May 31, 1875, show that among the claims contested before, and allowed by him, were two by John S. Wright,-those already referred to,-one based upon receivers' certificates issued by Rice and Haralson, amounting, principal and interest, to $52,000, and the other, based upon like certificates, aggregating $56,444.44, which had been hypothecated to Wright as security for money advanced, as was alleged, to the receivers. For reasons not disclosed by the record this report was not satisfactory to the parties; and, by an order of June 11, 1875, the court approved and gave effect to a written agreement between the contesting bondholders, the trustees, and the holders of receivers' certificates, whereby it was stipulated that the matters of reference involved in the cause should be referred to some well-known lawyer and thorough business man, with authority to inquire into and settle the same. That agreement provided that such settlement should be final between the parties thereto, when confirmed by the court. Philip Phillips was thereupon appointed a special commissioner, with directions to review and re-examine, so far as the parties desired, the matters theretofore referred. If any of the receivers' certificates were objected to by either party, the commissioner was directed to inquire and report whether they were issued and used in accordance with the orders in the cause, what disposition was made of them, what certificates should be allowed, and what rejected. Among the claims re-examined were those held by Wright. They were allowed, as shown by his report, dated September 8, 1875, and filed November 18, 1875.

The cause was heard upon exceptions to the reports of Commissioners Burke and Phillips, and a comprehensive order made on the fourteenth day of February, 1876. As to the Wright claims, the order provided that nothing be then allowed thereon, and that 'the whole matter of said claims, in respect of said sale, loan, and hypothecation, [of receivers' certificates in the hands of Wright,] and all circumstances connected with said transactions, be, and the same are hereby, referred to Lyman Gibbons, as special master commissioner, to take evidence upon, examine into, and report upon said matters fully, with the evidence taken by him. Upon the coming in and confirmation of said special master's report the court will make a further decree thereon.'

On the fourth of December, 1876,-no report having been then made upon the Wright claims by the commissioner last appointed, the court made a decree for the sale of the mortgaged property, to take place on the twenty-second day of January, 1877. That decree provided that the sale 'shall be subject to the liens established, or which may be established, by said court in this cause, on references heretofore had and now pending, as prior and superior to the lien of the holders of bonds issued under the first mortgage, decreed to be foreclosed by former decree in said cause;' further, 'that all money paid as earnest under this decree [the sum of $300,000 was required for that purpose] shall forthwith be reported to this court and be subject to its order, and that, upon the confirmation of the sale made under this decree, the purchaser shall have and be invested with a good title to the said railroad and property sold under this decree, subject only to what may remain unpaid of the claims and liens established by this court as paramount and superior to the liens of the first mortgage and first-mortgage bondholders;' still further, the balance of the purchaser's bid remaining after paying said earnest money was directed to be paid in such manner and at such time as the court may direct, 'except that said balance may be paid by the purchaser in any claims which may have been established by the court, in this cause, as paramount and superior to the lien of said first mortgage and said first-mortgage bondholders.'

It has already been stated that Wilder and McMillen became the purchasers of the property. The amount bid by them was $600,000. Swann succeeded to their rights by an agreement made March 30, 1877. The sale was reported to court on April 3, 1877, the report showing that the benefits of the purchase had been transferred to Swann. Four days thereafter, April 7, 1877, Commissioner Gibbons made his report in relation to the Wright claims, sustaining the conclusions reached by Commissioner Phillips, and expressing his entire conviction that those claims were correct and just.

On the thirteenth of June, 1877, that report came up for consideration. Swann, in his capacity as purchaser of the mortgaged property, moved that the Wright claims be resubmitted to the commissioner, with leave to produce additional evidence in opposition to them. That motion was denied. He then asked leave to file exceptions to the report. That application was also denied, and the report was in all things confirmed.

On the fifteenth of June, 1877, the sale to Swann was confirmed. By the decree of confirmation conveyances were required to be executed to him, covering all the property and rights purchased. It also provided that the deeds of conveyance 'shall severally contain a provision to the effect that the same are made and executed, and the estate thereby granted and conveyed is made, executed, granted, and conveyed subject to all liens established at and before the decree made in this cause on the fourth day of December, 1876, or which may have been or may be established by this court in the cause, on reference heretofore had, and then pending, as prior and superior to the lien of the holders of bonds issued under the first mortgage, decreed to be foreclosed by a former decree in said cause, so far as the several amounts secured by said prior liens remain unpaid at the time of said sale, and subject to the terms and requirements of this decree imposed upon or affecting the said purchaser. * *  * And it is hereby declared and decreed that the said sale was and is subject to such prior liens, (and that the said property is and shall be bound therefor, and for all interest that may accrue thereon; and also subject to the same terms and requirements of this decree last above mentioned.)' Again, in the same decree: 'It is further ordered, adjudged, and decreed that the said sale was made subject to the payment of all valid and outstanding receivers' certificates heretofore established as valid by decree of this court or by this decree, including those which have been suspended on account of liability of the holders thereof on any official bond or bonds of any receiver or trustee, or on account of the indebtedness of such holder or holders to the trust fund; but the amount dueor to become due on such suspended certificates shall be paid, according to the tenor thereof, into this court in liquidation of such official bond or bonds, and of such indebtedness of the holder or holders thereof to the trust fund, to be disposed of as the court shall further direct.'

This suit was commenced February 13, 1878, after Swann had sold and conveyed such rights as he had acquired to the Alabama Great Southern Railroad Company. It proceeds upon the general ground that the transaction by which John S. Wright obtained the receivers' certificates in question was, as between him on one side and a trustee in the first mortgage and one of the receivers on the other side, in known violation of their respective duties, and contrary to law and public policy; also, that Wright and his executors had, by fraud and imposition, and by a concealment of the real facts, obtained as well from the special masters, the fayorable reports hereinbefore referred to, as from the court the decree confirming the report last made. It was dismissed by the court below, not only because, upon the showing, no case was made on the merits for the relief asked, but because the orders and decrees under which the sale was had and confirmed, and the deed made, required Swann to pay the liens established by the court in the foreclosure suit, and precluded him from disputing them after they had been so established.

In our view of this case it is unnecessary to determine whether the bill is one of review for new evidence, or an original bill to impeach a decree for fraud, or an original bill in the nature of a bill of review; for we are of opinion that, whether belonging to one class or the other, it was properly dismissed. The claim of appellant, as the purchaser of the property, to reopen the litigation, to which he was not a party, and which related to liens expressly subject to which the property was sold, purchased, and conveyed, and which liens were fully examined upon issues between and notice to those who, at the time the decree of sale was rendered, were alone interested in their recognition or rejection, does not seem to rest upon any foundation of justice or equity. We have seen that the original purpose of those promoting the foreclosure suit was to have the mortgaged property sold, at an early day after the commencement of the litigation, entirely free from incumbrance, leaving the court to provide, out of the proceeds of sale, for the expenses of the trust, and to make such distribution of the balance as was consistent with the rights of those having an interest in or liens upon the property. But this idea was abandoned, at the instance of the bondholders, and the sale suspended in order to ascertain, if possible, before sale, the exact amount of all claims superior to the lien given by the mortgage. Among those alleged to be of that character were the claims presented originally by Wright and subsequently prosecuted by his executiors. They were vigorously contested before Commissioners Burke and Phillips by those who were directly interested in defeating them, namely, the bondholders and their trustees. They received the approval of each of these commissioners; and while they were under examination by Commissioner Gibbons, before whom that contest was renewed, the court, feeling doubtless that the sale of the mortgaged property had been already deferred sufficiently long, made an order for its sale on a day named. That order materially modified the original decree. Instead of selling the property free of all incumbrances, so that the purchaser, as a condition of receiving a complete title, would only be required to pay the amount bid, the sale was ordered expressly subject, not simply to liens which had then (December 4, 1876) been established as prior and superior to the lien of the bondholders, but to all liens of that character which might be established on references theretofore ordered and then pending.

The claims of Wright were being pressed before the special commissioner as belonging to that class. The latter had before him all parties in interest, either in person or by representation. And his examination was being conducted under a reference previously made, and then pending. So that, as respects these claims, purchasers were explicitly warned that the must buy the property, and take title thereto, subject to their future allowance by the court. That warning was as distinct as if the claims had been specifically described in the decree by the names of the parties prosecuting them. Wilder and McMillen, therefore, purchased, and their assignee or vendee obtained, the property, subject to a prior lien in favor of Wright's estate, if any such lien should be thereafter established on pending references. And although Swann has conveyed the property to the Alabama Great Southern Railroad Company, not only without covenants of warranty, but with a clause in the deed distinctly declaring that it shall not be construed 'to express or imply any covenant' by him, he now asks the court to recognize his right, as purchaser, upon newly-discovered evidence, to show that the lien established in behalf of Wright's estate ought not to have been recognized. When his assignors or vendors purchased, they knew, or, by inspection of the record, could have known, of the pendency of the Wright claims. Before the sale was confirmed the court declined to permit him, as purchaser, to reopen the dispute as to those claims. He made no suggestion that he purchased in ignorance, either of their existence or of the reservation by the court of its right to establish them as superior liens upon the property; nor that they had been allowed for larger amounts than originally contended for; nor did he ask, in view of their allowance, that he be permitted to surrender his purchase, so that the property could be resold for the benefit, primarily, of those having first liens. On the contrary, without objection from him, the sale was confirmed, upon the condition, explicitly declared in the order of court, that the purchaser bought subject to all liens of the character described in the decree of sale, and that such subordination of his and their rights to those liens should be expressed in the conveyance to him. The conveyance was so drawn, and was accepted by him; and in his deed to the Alabama Great Southern Railroad Company, under date of November 30, 1877, he states that the conveyance to him 'of said railroad, equipments, appurtenances, and property has been executed and delivered' by commissioners of court, 'in accordance with the orders and decrees of said court.' He here proceeds upon the assumption that, while asserting title in himself, under and by virtue of the decree of sale, he may claim the aid of a court of equity in repudiating the essential conditions upon which he received title; and that, too, without offering, or being in a condition to offer, a return of the property, in which contingency the Wright claims being disallowed-it might be resold for the benefit of the bondholders, unincumbered by those claims. The property was sold with the possibility, present in the minds as well of the parties in the foreclosure suit as of purchasers, that the latter would be required to take subject to a lien in behalf of Wright's estate; and consequently, that to the extent of such lien the first mortgage bondholders would fail in having their demands satisfied out of the property. If, therefore, the appellant were granted the relief asked, the result-upon his theory of the respective rights of himself and the bondholders would be, not to benefit those who caused the property to be sold, but, in effect, to give the amount of the Wright claims to Swann; or if not to him, then indirectly to the company to which he has conveyed, and which must assert its rights, whenever assailed, under one who has taken title expressly subject to a lien in favor of those claims.

It may be observed, in this connection, that the appellant's counsel lay great stress upon that part of the order of June 15, 1877, which declares that the sale, then confirmed, had been made subject to the payment of 'all valid and outstanding receivers' certificates.' They insist that the certificates to Wright were not valid, because obtained, as alleged, by fraud and imposition, and in violation of the duty of the trustee and receiver who conducted the negotiations with Wright. It is sufficient to say that, according to any proper interpretation of that order, all receivers' certificates were to be deemed valid, so far as purchasers are concerned, that were within the aggregate amount limited for certificates, and which, being embraced in references theretofore made or then pending, had been, or might be, established, between the holders and the mortgagees, as liens upon the property.

If the court had, in the decree of sale, reserved to the purchaser, although not a party to the proceedings, the right to appear and contest any alleged liens then under examination, and therefore not established by the court, an entirely different question would have been presented. But no such reservation was made, and the purchaser was required, without qualification, to take the property, upon confirmation of the sale, subject to the liens already established, or which might, on pending references, be established as prior and superior to the liens of the first mortgage bondholders. We do not mean to decide that the bondholders, as such, (had they moved in due time,) might not have maintained a suit like the present one, and, if successful, required the purchaser to pay them an additional amount equal to the claims established for the benefit of Wright's estate. Upon the question involved in that suggestion we express no opinion. All that we decide is that, in view of the express terms of the decree of sale, and since neither the purchaser nor his grantee proposes to surrender the property to be resold for the benefit of those concerned, such purchaser has no standing in court for the purpose of relitigating the liens expressly subject to which he bought and took title. The allegations of fraud and imposition alleged to have been practiced by Wright and others, by means whereof, it is contended, the claims in question were approved and established,-whatever consideration they would have been entitled to in a suit brought by the bondholders,-do not present matters which, under the circumstances, concern the appellant as purchaser of the property. If the receiver and trustee referred to in the bill were guilty of fraud and imposition in respect of the Wright claims, it was competent for the bondholders and the parties interested in the property, before title was passed to the purchaser, to waive any grounds of complaint which they may have had on that account. And they had the right to acquiesce, and, so far as the record discloses, have acquiesced, in their allowance, thereby consenting that the proceeds of sale, to the amount of such claims, should be applied in payment thereof, rather than in satisfaction of their own demands. The appellant presents no grounds upon which he can be relieved from his obligation to comply with the terms of purchase as set forth in the decree of sale, and as expressed as well in the order of confirmation as in the conveyance to him.

Upon the grounds indicated the decree is affirmed.

title: Swann v. Fabyan/Opinion of the Court


text: Talk:Swann v. Fabyan/Opinion of the Court


text:
Swann v. Clark

Samuel F. Rice and David Clopton, for appellants.

P. Hamilton, T. A. Hamilton, and Moorfield Storey, for appellees.

HARLAN, J.

title: Swann v. Clark


text: Talk:Swann v. Clark

title: Talk:Swann v. Clark


text:
Swann v. Clark/Opinion of the Court

This case is an outgrowth of a foreclosure suit brought by the trustees in a first mortgage executed by the Alabama & Chattanooga Railroad Company upon its road, property, rights, and franchises, to secure the payment of bonds by it issued. The history of that suit is given in the opinion just rendered in Swann v. Fabyan, ante, 235. The terms of the several orders and decrees in the foreclosure suit, so far as they affect the rights of parties now before us, are set forth in that opinion, and need not be here repeated.

Among the claims presented against the trust fund in the foreclosure suit was one by appellee Clark for alleged loans made to the receivers, for which the latter hypothecated to him 45 receivers' certificates. Commissioner Phillips found that such hypothecation was unauthorized by the orders of the court under and in virtue of which the certificates were issued. But he reported that, upon principles of equity, those claims, to the extent of moneys actually advanced to the receivers and applied to the benefit of the trust estate, should be allowed and paid in certificates, at 90 cents on the dollar. The amount advanced by Clark was ascertained to be $16,760.89; and for that sum, with interest to September 1, 1875, amounting in all to $19,658.01, the commissioner reported that he should be allowed, in certificates, the sum of $21,842.23. These conclusions were sustained by the court; but, as it appeared that the Clark certificates were, or were supposed to be, in the hands of different parties, and inasmuch as the rights of those parties could not be determined from the reports of the commissioner, those certificates were not allowed, and the parties were required to litigate their respective rights with each other by bills filed in the same court, thereby 'to ascertain and settle the amount that the said trust fund is liable for, and who are entitled to any, and which of said certificates.'

It was in consequence of this direction that the present suit was brought by appellees, who unitedly held 37 of the 45 certificates, (as to two of which no further claim on the trust fund was asserted by Clark,) the remaining six being held by some person to appellees then unknown. The object of the suit was to obtain a decree adjudging that receivers' certificates to the amount of the moneys advanced by Clark, with interest thereon, be allowed to the petitioners and to the holder of the six certificates-the certificates so allowed to be established as a prior lien upon the railroad and other property purchased by Swann. The latter appeared and answered; and, admitting that Clark had loaned the receivers $16,760.89, he denied that he or any persons claiming under him were entitled to be paid in said certificates, or any of them, or that the claim asserted was a lien on the property to the prejudice of the rights of himself or of the Alabama Great Southern Railroad Company. A decree was rendered wherein it was found that the amount, principal and interest, of the loan by Clark was, on September 1, 1875, $21,842.23. It was adjudged that the appellees, as the holders of 37 of the certificates, were entitled to 37-43 of the total amount due, or the sum of $18,794.47. At the instance of Swann, the court required appellees to hold three certificates, subject to the further order of the court, for the protection of the unknown holder of the six certificates, who, it was suggested, might show himself entitled to be paid in full; and petitioners were given leave to move at the next term for the allowance of the suspended certificates. All the other certificates, as well as the notes given by the receivers for the moneys so loaned to them, were surrendered and destroyed. The certificates so allowed were established by the decree as liens on the mortgaged property.

A rehearing was asked by Swann at the succeeding term, but the application therefor was denied. At that term appellees asked to have the suspention placed upon the before-mentioned three certificates removed. Thereupon E. J. Fallon presented his petition in the cause, showing that the beforementioned six certificates had come into the possession of the Alabama Great Southern Railroad Company through a settlement had between it and J. C. Stanton, by the terms of which the latter agreed to deliver to that company a large number of receivers' certificates of admitted and ascertained validity; that the company did not concede the six certificates to be valid, but received them from said Stanton to be held as security only for his delivery of a like number of admitted and ascertained validity; which being done, they were to be returned to him. For that purpose, and in that manner, Fallon averred in his petition, the said six certificates were held by him as agent of the company. He claimed that they had been originally transferred to D. N. Stanton, from whom J. C. Stanton acquired them, and that if any of the forty-five certificates were allowed, the six above named were entitled to be paid in full before appellees received anything. He asked that he and J. C. Stanton be made parties defendant, to the end that none of the rights of said Stanton should be prejudiced by any neglect upon the part of the company. He was made a defendant, and his petition directed to be taken as his answer. Upon final hearing, the three suspended certificates, with coupons maturing after September 1, 1875, were allowed to the appellees, while three certificates in full and a fourth one for $47.75 were allowed to Fallon,-the excess in certificates and coupons held by Fallon to be surrendered. From this decree Swann, Fallon, and the Alabama Great Southern Railroad Company appealed.

The main question to be determined is that which arises between Swann and the appellees touching the alleged lien upon the property sold in the foreclosure suit, for the certificates allowed to the appellees. If the lien established in favor of appellees for the amount of those certificates belongs to the class, subject to which the property was sold, purchased, and conveyed, then, for the reasons stated in Swann v. Fabyan, Swann is not at liberty to raise any objection to the allowance of such certificates to the extent of the moneys originally advanced by Clark to the receivers. The decree of August 26, 1872, under and in virtue of which the receivers' certificates were issued, reserved a prior lien to secure the payment of all moneys raised, through the receivers, by loan or which might be advanced to them, for the purposes expressed in the orders of the court. While the receivers were adjudged not to have authority to hypothecate certificates, as was done in Clark's case, yet, as early in the litigation as January 23, 1874, the date of the first decree of sale, the court-having before it the report of Commissioner Burke, and being thereby informed of Clark's claim, as well for moneys advanced to the receivers as of a lien therefor-declared in that decree that nothing therein should impair the rights of 'holders of certificates under hypothecation to the extent of money loaned and advanced on the same' for the purposes contemplated by its orders, 'with interest and expense added thereto.' And the decree of February 14, 1876, based upon the report of Commissioner Phillips, shows upon its face that the court recognized the soundness of the rule suggested by him, which required the payment, in certificates, of all claims for moneys in good faith advanced to the receivers, and applied to the benefit of the trust estate. By that decree it was ordered that the holders of the 45 certificates interplead in the same court, so that the court would be informed as to the amount for which the trust fund was liable. This was not a disallowance of these claims as liens, but only a suspension of them until the suit thus directed to be brought was ended. They were pending and undetermined when the decree of December 4, 1876, was made. That decree, we have seen, required the sale to be made 'subject to all liens established, or which shall be established, by said court in this cause, on references heretofore had and now pending, as prior and superior to the lien of the holders of bonds issued under the first mortgage.' The claims in question had theretofore been the subject of reference to commissioners; and, within any just interpretation of the words of the decree, they were the subject of pending references, unless it be that the court, by requiring the parties to litigate them in a new suit between themselves, instead of requiring them to disclose their interests before a commissioner, intended to make a distinction between liens established by means of a formal reference to the commissioner, and those established in an independent suit brought in conformity with its orders. But that supposition is inadmissible, especially in view of the fact, apparent upon the face of the decree of February 14, 1876, that numerous claims, similar in their origin to Clark's, and secured by hypothecated certificates, were then, before the final decree of sale, allowed, payable in certificates at 90 cents on the dollar. It is manifest from the decree that the court would then have allowed the Clark claims, to the extent of money actually loaned to the receivers, and applied for the benefit of the trust, and paid them in certificates, had it been possible at that time to determine the actual ownership of the 45 certificates. And this view is strengthened by the further fact that, in the decree of June 19, 1877, confirming the sale to Swann, subject to the liens described in the decree of December 4, 1876, the court expressly freed the trust estate from liability to certain persons on account of hypothecated certificates held by them, but does not name the 45 certificates as among the number so cut off. It seems to us entirely clear that, by the decree of sale, the liens which were attached to such certificates as the court might award, on account of the moneys loaned to the receivers by Clark, were among those expressly subject to which Swann purchased, and received title to, the property. Consequently, for the reasons stated in Swann v. Fabyan, the property is liable to the holders of such certificates.

This disposes of all that there is of substance in the case. We perceive nothing of merit in the appeals of Fallon and the Alabama Great Southern Railroad Company. Upon the issue as to whether the property was liable for the amount of the certificates awarded to appellees, the only necessary party defendant was Swann, the purchaser. The railroad company was a purchaser pendente lite, and was not entitled to be made a party to issues pending and undetermined when it purchased. That company was, upon the showing made by its agent, the holder of the before-mentioned six certificates which were made payable to bearer. It placed the certificates in his hands for the purpose of having him present them in court for allowance in full. He did appear and was made a party. Waiving any inquiry as to whether the amount involved in the appeal, so far as it concerns Fallon or those whom he represents, is large enough for our jurisdiction, it is sufficient to say that no facts were disclosed which entitled the six certificates to be paid in full. We perceive no error in the decree as to him or the company, and it is affirmed.

title: Swann v. Clark/Opinion of the Court


text: Talk:Swann v. Clark/Opinion of the Court


text:
Northern National Bank of Toledo Ohio v. Trustees of Porter Township

J. D. Brannan and E. W. Kittredge, for plaintiff in error.

''Wm. M. Ramsey'', for defendant in error.

HARLAN, J.


text: Talk:Northern National Bank of Toledo Ohio v. Trustees of Porter Township