text:
Bouldin v. Alexander (82 U.S. 131)

APPEAL from the Supreme Court of the District of Columbia, in a case arising out of a controversy in an unincorporated religious society of colored persons, in Washington, calling themselves the 'Third Baptist Church.' The case was thus:

From about the 1st of September, 1857, a small number of colored persons were in the habit of consociating in prayer-meetings and other religious conferences at the house of one Albert Bouldin, a colored man from Virginia, who had been licensed to preach, and was so styled the Reverend Albert Bouldin; he being always a chief actor in the assemblages. The persons were, at first, few in number, feeble in resources, and without any church edifice. But under Bouldin's leadership they increased in strength, and, after a certain time, went to work to raise money to build a meeting-house; Bouldin taking the lead in the whole matter, the temporal part as much as the spiritual, and being at once pastor, collector, treasurer, chief agent, and actor in the enterprise, and getting into his own hands most of the moneys collected. Having bought a lot on which to build a church, he took a deed for it in his own name, and proceeded to have the church built, which under his superintendence was done; a building now standing, on the corner of Fourth and L Streets, northwest. Some of the chief persons in the work, however, were apparently dissatisfied with Bouldin's having the title to the property in his own name. Hereupon, April 1st, 1864, he and his wife conveyed a large part of the lot, including that on which the church was built, but apparently not the whole of the lot, to four persons, Joseph Alexander, Charles Alexander, John Middleton, and William Minor, as trustees, to be used, with the buildings on it, as 'the Third Colored Baptist Church of the City of Washington;' these persons, in return, giving him their promissory notes and a deed of trust on the property to secure them; the notes being for a sum which Bouldin represented to them that he was in advance from his private funds beyond moneys received by him from collections.

A congregation had by this time been organized with sufficient regularity and in full conformity with the constitution of the general Baptist Church of the United States, in which, as is known, the congregational form of government prevails; and there was at this time no serious dissensions in the particular Third Church of which we are speaking. 'The Rules of Church Order,' making part of the Baptist Manual, an authoritative book in the Baptist church generally, required that 'seven trustees' should be elected in January of each year, but provided that in case of any omission to hold an election then, the election should be held 'at the next regular meeting for business.' And the minutes of this church, which had been kept apparently with essential order, though not in a highly clerical style, by Bouldin, one Lee, or some other person elected as clerk, from the origin of the church till the time when some troubles, hereinafter mentioned, arose, showed that seven persons, Joseph Alexander, Henry Watson, Henry Scott, John Wiggins, John Middleton, William Laws, and W. J. Minor, were duly elected trustees, at a regular meeting of the church for business, on the 15th of February, 1867; the ordinary meeting, apparently, not having been held. These persons, the minute-book showed, had received about 200 votes of a not much larger number cast. After the troubles above referred to arose, the minute-book passed from one hand to another, and Bouldin swore in the court below that this minute about the election was a forgery; and that no such election had ever taken place. The books were brought into this court, and showed some erasures and the cutting out apparently of some leaves, but little or nothing beyond Bouldin's statement to prove that this particular minute was not entitled to as much respect as others in the book. Minutes following it were made by Bouldin himself.

Very soon after the completion of the church edifice, already mentioned, dissensions arose in the congregation, and the church was divided into two parties, each asserting itself to be the true 'Third Colored Baptist Church.' On the 7th of June, 1867, one of these parties, being a very small minority of the church, and being probably about fifteen in number, including Bouldin, resolved to 'turn out' four trustees, without naming them, and proceeded to elect four others in their stead. The persons thus elected were Manson Robinson, Julius Bouldin, William Pearson and Charles Pearson. The attempted ejection of the old trustees was without citation, trial, or charges preferred. It was also, the reader will observe, at a time when, according to the rules of the church, an election of trustees was not in order; the rules that exist in Baptist churches generally, providing, as already mentioned, that trustees shall be elected in January of every year, or in case of failure to hold the election, at the next regular meeting for business. A few days afterwards, on the 10th or 17th of June, 1867, the same minority proceeded to 'turn out' forty-one members of the church, also without citation or trial. Having thus got the control of the church property in their own hands, some of the persons elected to be trustees in place of former trustees caused the locks to be taken from the church doors, and new locks to be put on in their places, and they with Bouldin claimed and retained possession of the property from that time forth. Hereupon the four persons to whom Bouldin and wife had conveyed the property in trust and the seven that had been elected trustees in February, 1867, worshipped in a school-house or in a place called Miller's Hall; retaining the old organization, with a new preacher named Jefferson, who had been licensed under Bouldin, and who (Bouldin having been dismissed by the party shut out from the church), was now acting temporarily as preacher, or by way of 'supply.' Such was the condition of things in the summer of 1867.

On the 28th of September of that year the four trustees named in the deed of the church lot, from Bouldin and wife, and also the seven persons who professed to have been elected trustees of the church, on the 15th of February, 1867, at the annual election provided for by the general rules of Baptist churches, filed a bill against Bouldin, who had received the money of the church, and who also professed to be a trustee, without, however, any election, and against three of the persons who professed to have been elected trustees at the meeting of the minority on the 7th of June, who took possession of the church, together with some other trustees in deeds of trust for Bouldin. The bill sought a discovery, and an account of the money received and expended by Bouldin, a release of deeds of trust of the church property given to secure notes held by Bouldin, a surrender and cancellation of the notes, alleging them to have been satisfied, and the restoration of possession of the church property to the complainants as the lawful trustees. It sought also an injunction against future interference by the defendants with the church property, against the sale of the notes, and against sale or foreclosure under the deed of trust. The bill charged that there was a plain mistake in the deed from Bouldin and wife, to the trustees of the church, which it prayed to have corrected. In the court below a decree was rendered in favor of the complainants, sustaining all their claims except that reference was made to a master to ascertain and report the state of accounts. From that decree this appeal came.

The appellants now contended:

1st. That the court erroneously decided that the complainants were, at the time of the commencement of the suit, the legally constituted trustees of the church.

2d. That the complainants, and those who acted with them, withdrew from the church and formed a new congregation, and had so relinquished all their rights in the Third Colored Baptist Church.

It may be observed as part of the history of the case, that after this bill was filed, but before the evidence was taken, both of the organizations had applied for admission in 1867 to the Philadelphia Baptist Association, an ancient authoritative body of the Baptist Church, holding in that year its 160th anniversary. The body declared that the dispute was complicated, and that the applications required consideration and examination, and so declined to admit either party to its then session. At its session of 1868, however-Bouldin himself being heard, and the whole subject having been argued by Horatio Gates Jones, Esquire, of the bar of Philadelphia, and by other members of the Association-the body declared that Bouldin had been in fault, and that the Third Baptist Church should be represented in the body by the now complainants. The record of the Association read thus:

'Mr. Bouldin and party, being greatly in the minority, excluded all the trustees, and all the deacons, and about two hundred other members; the vote being cast by about fifteen members present, without the usual form of citation and opportunity of self-defence. Mr. Bouldin and his adherents now occupy for public worship the house on Fourth Street, of which the trustees above named have not been legally dispossessed. When the controversy commenced, the aggrieved party proposed to have the matter referred to arbitration; but Mr. Bouldin, though advised by President G. W. Samson and other white brethren to consent to this arrangement, refused. The aggrieved majority then submitted the case to an ecclesiastical council, which met May 4th, 1868, to which all contiguous Baptist churches were invited to send delegates, seventeen churches in all. After deliberative investigation, this council unanimously designated the party represented by the trustees above named to be the Third Colored Baptist Church of Washington. We therefore recommend that the letter which these brethren bring be received as the letter of the Third Baptist Church of Washington to this Association.'

Messrs. Moore and Riddle, for the appellants; Mr. Thomas Wilson, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Bouldin v. Alexander (82 U.S. 131)


text: Talk:Bouldin v. Alexander (82 U.S. 131)

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

title: Talk:Bouldin v. Alexander (82 U.S. 131)


text:
Bouldin v. Alexander (82 U.S. 131)/Opinion of the Court

It is contended that the court erroneously decided the complainants were, at the time of the commencement of the suit, the legally constituted trustees of the church. But it is very evident that Joseph Alexander, Charles Alexander, John Middleton, and William Minor were then trustees for the church of the church property, unless they had been removed by the action of the minority on the 7th of June, 1867. They were nominated as trustees in the deed from Bouldin and wife, and they had never surrendered or renounced their trust. And we think the evidence is satisfactory, that Joseph Alexander, Henry Watson, Henry Scott, John Wiggins, John Middleton, William Laws, and Willis J. Minor were then general trustees of the church, unless they, or some of them, had been removed by the action of the same minority, on the day last mentioned. It is not to be overlooked that we are not now called upon to decide who were church officers. The case involves no such question. What we have to decide is, where was the legal ownership of the property. The question respects temporalities, and temporalities alone. That the attempt made on the 7th of June, 1867, to remove the trustees then holding was inoperative, is not to be doubted in view of the facts of the case. Those who held under the deed were not removable at the will of the cestui que use, and without cause. And had there been cause, none was shown. No ecclesiastical authority has decided that the defendants, or any of them, were legitimate trustees of the church, or of its property. Even if it be assumed that it was in the power of the church to substitute other trustees for those named in the deed, it may not be admitted that a small minority of the church, convened without notice of their intention, in the absence of the trustees, and without any complaint against them, or notice of complaint, could divest them of their legal interest and substitute other persons to the enjoyment of their rights.

It is equally true that the seven persons who sue as church trustees were not removed by the action of the minority meeting held on the 7th of June, 1867. Indeed that action does not seem to have been an attempt to remove them. It was voted to turn out four trustees, but who the trustees intended were nowhere appears. None were named. In view of the fact that the number was four, it is presumable the meeting had in view the four trustees of the church lot, named in Bouldin's deed, and not the ordinary trustees of the church, those contemplated by the Baptist Church Manual. That Manual provides, that in every church seven trustees shall be elected annually, in January, or at the next regular church meeting thereafter. And the church books, which appear to have been kept with considerable regularity from September 2d, 1857, until this controvesy arose, show that on the 15th of February, 1867, at a regular church meeting, the seven persons who with the church-lot trustees are complainants in this bill, were elected trustees of the church for the ensuing year. This was before any division took place in the society. It is true, Mr. Bouldin testified that the minute of an election is a forgery, and that no such election ever took place. But we are satisfied that he is mistaken. An examination of the minute-book leaves no doubt in our minds that the election was made as claimed by the complainants, and that they were elected by a number of votes averaging more than two hundred. The entry in the minute-book is attested by the church clerk. It is in regular order, and there are subsequent minutes in the same book made by Bouldin himself. The court below was, therefore, as we think, not in error in holding that the complainants were the legally constituted trustees at the time when this suit was commenced. And if they were the rightful trustees, the decree for an account, for the surrender of the church property, and indeed the entire decree made by the court, was a matter of course upon the evidence.

But the appellants insist that the complainants and those who acted with them, withdrew from the church and formed a new congregation. This, they argue, was a relinquishment of all their rights in the Third Colored Baptist Church. It may be conceded, that withdrawal from a church and uniting with another church or denomination, is a relinquishment of all rights in the church abandoned. But there is no sufficient evidence in this case that any new congregation was formed, or that there was any withdrawal from the church, or union with any other. The complainants, and those who acted with them, after the church building had been wrested from the custody and control of the rightful trustees, and after very many of them had been excommunicated in mass by the small minority, held their religious services at another place. But they formed no new organization. They still had the same trustees, the same deacons, and they claimed to be the Third Colored Baptist Church, and as such they were recognized by councils of Baptist churches duly called, and by the Philadelphia Baptist Association, an ecclesiastical body with which the church was associated. That body, it is true, was not a judicatory. Its action was not conclusive of any rights. But the fact that the complainants and those acting with them applied for recognition as the Third Colored Baptist Church, and that the Association thus recognized them, is persuasive evidence that they were not seceders, and that their rights have not been forfeited.

This is not a question of membership of the church, nor of the rights of members as such. It may be conceded that we have no power to revise or question ordinary acts of church discipline, or of excision from membership. We have only to do with rights of property. As was said in Shannon v. Frost, we cannot decide who ought to be members of the church, nor whether the excommunicated have been regularly or irregularly cut off. We must take the fact of excommunication as conclusive proof that the persons exscinded are not members. But we may inquire whether the resolution of expulsion was the act of the church, or of persons who were not the church and who consequently had no right to excommunicate others. And, thus inquiring, we hold that the action of the small minority, on the 7th and 10th of June, 1867, by which the old trustees were attempted to be removed, and by which a large number of the church members were attempted to be exscinded, was not the action of the church, and that it was wholly inoperative. In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church. An expulsion of the majority by a minority is a void act. We need not, however, dwell upon this. Certain it is, that trustees are not necessarily communing members of the church. Excommunication from communing membership does not disqualify them, even if the excision be regular. Still more certain is it that they cannot be removed from their trusteeship by a minority of the church society or meeting, without warning, and acting without charges, without citation or trial, and in direct contravention of the church rules.

DECREE AFFIRMED.


text: Talk:Bouldin v. Alexander (82 U.S. 131)/Opinion of the Court


text:
Pickersgill v. Lahens

APPEAL from the Circuit Court for the Southern District of New York; the case being this:

A statute of the State of New York thus enacts:

'No injunction shall be issued to stay the trial of any personal action at issue in any court of law until the party applying therefor shall execute a bond, with one or more sufficient sureties, to the plaintiff in such action at law, in such sum as the chancellor or master allowing the injunction shall direct, conditioned for the payment to the said plaintiff, and his legal representatives, of all moneys which may be recovered by such plaintiff or his legal representatives,. . . in such action at law, for debt or damage, and for costs therein.'

With this statute in force, Pickersgill sued Lahens at law in the Superior Court of New York, a common law court, on certain indorsements. Thereupon Lahens filed a bill in the Court of Chancery of the State, for relief against the indorsements; and having done so, applied, under the above-quoted act, for an injunction to stay the trial at law. The court upon the filing of a bond meant to be such as the above-quoted act required, granted a temporary injunction staying the suit at law till an answer to the bill in chancery should come in. The bond was the joint bond (not the joint and several bond) of Lahens and one Lafarge; this Lafarge not having been any party to the suits already mentioned, nor interested in them, and not deriving any benefit from his joining in the bond. The bond recited the action at law against Lahens, the bill and injunction in chancery, and the condition of the instrument was that the obligors should pay all moneys which should be recovered in the suit at law. Answers to the bill for relief having come in, the action at law proceeded, and a judgment was rendered against Lahens for $129,000. Before this time Lafarge had died; and at the time Lahens had become insolvent. Thereupon Pickersgill filed a bill in equity against the executors of Lafarge, to have his estate pay the amount of the bond, with interest from the recovery of the judgment against Lahens. The executors demurred; assigning among other grounds of demurrer that it appeared by the bill that Lafarge was not severally bound by the bond, but only jointly bound with Lahens; that Lafarge received no consideration for becoming an obligor; that he was not interested in any of the matters in consequence whereof the bond was given, and was merely a surety therein, and that he departed this life before the filing of the present bill, leaving Lahens surviving him, who was still alive. The court below sustained the demurrer; acting doubtless on the ancient principle of equity, announced with a clear mention of its grounds by GRIER, J., for this court, in the United States v. Price, that after the death of one joint obligor (the other surviving) the estate of the one deceased cannot be pursued in equity unless there was 'some moral obligation antecedent to the bond;' the which obligation the court declared could not exist where the deceased obligor had been but a surety. To review the action of the court in sustaining the demurrer this appeal was taken.

Mr. W. W. McFarland, for the appellant:

If the fact that Lafarge is not shown to have had any direct pecuniary interest in the subject-matter of the action at law, or to have derived any personal benefit from the giving of the bond in question, is sufficient to bring the case within the decision made in the United States v. Price, the demurrer must be sustained. But we contend that in legal intendment both the obligors are to be regarded as principals, so far as the rights of the plaintiffs are concerned. In the case of statutory obligations of this character, it is the intention of the statute and not the intention of the party, that ought to control. The statute requires the bond to be given for the protection and indemnity of the parties, against whom the relief is sought, and whose rights are imperilled by its being granted, and it requires that sureties shall be given for the better security of the plaintiff. It is not a question of contract. The plaintiff has no election to accept or refuse to accept the bond. The only right he has in the premises, is to require that the sureties shall justify as required by the statute. The plaintiff had no right to say that the bond should be a joint and several obligation, nor had the court the right to say so. The language of the statute is, that 'the party applying therefor shall execute a bond with one or more sufficient sureties.' When the statute requires a bond to be given, and does not employ words of severalty, the fair if not the necessary intendment is that a joint obligation in form is intended; but it does not follow in such case that the statute intends or contemplates that the accident of the death of the sureties shall deprive the obligees of the security which the bond was intended to afford.

The intention of the statute doubtless here was, that the property of the principal and of the surety should stand charged with the liability assumed in favor of the plaintiffs, and we think that so the statute should be construed.

Mr. F. Kernan, contra, with whom were Mr. T. J. Glover, for the executors of Lafarge, and Mr. F. H. Dykers, for Lahens.

Mr. Justice DAVIS delivered the opinion of the court.

title: Pickersgill v. Lahens


text: Talk:Pickersgill v. Lahens

title: Talk:Pickersgill v. Lahens


text:
Pickersgill v. Lahens/Opinion of the Court

It is very clear that the estate of Lafarge is discharged at law from the payment of the obligation in controversy, on the familiar principle that if one of two joint obligors die the debt is extinguished against his representative, and the surviving obligor is alone chargeable. It is equally clear that in this class of cases, where the remedy at law is gone, as a general rule a court of equity will not afford relief, for it is not a principle of equity that every joint covenant shall be treated as if it were joint and several. The court will not vary the legal effect of the instrument by making it several as well as joint, unless it can see, either by independent testimony or from the nature of the transaction itself, that the parties concerned intended to create a separate as well as joint, liability. If through fraud, ignorance, or mistake, the joint obligation does not express the meaning of the parties, it will be reformed so as to conform to it. This has been done where there is a previous equity which gives the obligee the right to a several indemnity from each of the obligors, as in the case of money lent to both of them. There a court of equity will enforce the obligation against the representatives of the deceased obligor, although the bond be joint and not several, on the ground that the lending to both creates a moral obligation in both to pay, and that the reasonable presumption is the parties intended their contract to be joint and several, but through fraud, ignorance, mistake, or want of skill, failed to accomplish their object. This presumption is never indulged in the case of a mere surety, whose duty is measured alone by the legal force of the bond, and who is under no moral obligation whatever to pay the obligee, independent of his covenant, and consequently there is nothing on which to found an equity for the interposition of a court of chancery. If the surety should die before his principal, his representatives cannot be sued at law; nor will they be charged in equity. These general doctrines on this subject were presented at large in this court in the case of the United States v. Price, and they are sustained by the text writers and books of reports in this country and England. #fn-s-s

The authority of the decisions on this subject we do not understand the appellant as questioning in a proper case; but he insists they are not applicable here.

His position is, that a statutory obligation like the bond in question is different in principle, and should be interpreted differently from a contract made by private parties between themselves, as the obligees in such a bond cannot direct the form it shall take, nor elect whether to accept or refuse it. The bond, which is the foundation of this suit, was given in 1846, under the order of the Court of Chancery of New York, to stay the proceedings in an action at law then pending in the Superior Court of the city, and it is argued, as the statute does not require bonds of this character to be 'joint and several,' in legal intendment they must be joint in form, and all the obligors, therefore, should be regarded as principals. It is undoubtedly true, as words of severalty are not employed, that a joint bond is a compliance with the law, but it by no means follows that a joint and several obligation is not an equal compliance with its terms. It is certainly not forbidden, and as the statute is silent on the subject the fair intendment is that either was authorized, and that the court had the right to direct which should be given. If this be so, then it cannot properly be said that the party enjoined had no voice in the nature or sufficiency of the security to be taken, for the discretion of the chancellor was, necessarily, to be exercised in relation to both these matters, if his attention was directed to them, after both sides were heard. It is quite apparent, if this discretion had been invoked, that the instrument of security might have been different; and equally apparent that Lafarge, in case this had been done, might have been unwilling to assume the additional risks which a separate liability imposed on him. We must suppose, in the absence of any evidence on the subject, that he knew the legal differences between the different kinds of obligations, and became bound in the way he did because a joint liability was more advantageous to him. If this was his intention, it would be manifestly unjust for a court of equity, after the legal status was fixed by his death, to change the nature of the obligation which he executed in order to charge his estate. In the cases in which equity has treated the obligation as joint and several, although in form joint, the surety participated in the consideration. In this case Lafarge had no pecuniary interest in the litigation which was enjoined, and derived no personal benefit from the instrument of writing which he signed, and, therefore, no good reason can be furnished why his standing in a court of equity is not as favorable as if he were surety, without advantage to himself, in the borrowing of money. In neither case is there any obligation to pay independent of the covenant. In the one there is a liability for a debt; in the other, for a result in an action at law. Both are cases of contract, for, indeed, suretyship can exist in no other way; and we know of no principle of equity by which a contract of indemnity is to be construed so as to charge an estate, and an engagement to pay money to receive a contrary construction. The equities in both are clearly equal, and as the estate of Lafarge is not liable at law, it will not be held liable in equity.

The demurrer to the bill was, therefore, properly sustained, and the decree is accordingly

AFFIRMED.


text: Talk:Pickersgill v. Lahens/Opinion of the Court


text:
Marshall v. Vicksburg

APPEAL from the Circuit Court for the Southern District of Mississippi, on a decree given by that court on a bill filed by Charles Marshall against the city of Vicksburg. The facts of the case can be gathered from different parts of the opinion given below.

Messrs. P. Phillips and R. M. Corwine, for the appellant; Messrs. J. M. Carlisle and J. D. McPherson, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Marshall v. Vicksburg


text: Talk:Marshall v. Vicksburg

title: Talk:Marshall v. Vicksburg


text:
Marshall v. Vicksburg/Opinion of the Court

On the 21st of November, 1851, the parties mutually executed an indenture, whereby Marshall conveyed to the city certain real estate therein described, and the city released to him certain other real estate also therein described. The premises conveyed to the city, embraced the city landing for steamers and other water-craft on the Mississippi River. It was stipulated that Marshall should receive all the wharfages and rents accruing from the premises conveyed by him from the date of the instrument, and for the term of ten years, to commence three months after the removal of a wharf-boat known as the 'Governor Jones.'

The wharfages collected from steamers were to be according to the rates specified in a lease from Marshall to Thomas Porterfield, and those from all other water-craft were to be such as should be fixed by the mayor and council of the city. The latter were not to be less than was then customary.

The city reserved the right to levy such tax on goods, wares, and merchandise coming to the landing as the mayor and council might deem proper. The indenture contained also the following clauses, which lie at the foundation of this litigation, and must control the rights of the parties:

'It is expressly agreed by the parties hereto, that if the right to collect wharfage be suspended for any period by the intervention of third parties, the time of such suspension shall be added to the said term of ten years, it being the intention of these parties that the said Marshall, his representatives, and assigns, shall actually receive the rents and wharfages accruing in ten years altogether, and no more.

'And in case the right to collect wharfage or rents shall be interrupted or defeated permanently, through the instrumentality or with the aid of the said mayor and council of the city of Vicksburg, all the property above conveyed by said Marshall and wife, shall immediately revert to him, his heirs, and assigns, and be as fully and absolutely his as if this deed had never been executed.'

As filed, the bill asked for an enforcement of the forfeiture provided for. It alleges that the enjoyment of Marshall's wharf rights were interrupted by quaranties established by the city in the years 1853, 1854, 1855, and 1858, which subsisted for periods, amounting in the aggregate to about ten months, and claims that his term of ten years should be elongated to that extent. It claims also under these clauses compensation for the interruption of the navigation of the river to his injury by the civil war, and for several alleged breaches by the city of the agreement.

The city demurred. The court sustained the demurrer so far as it related to the forfeiture, and overruled it as to the residue of the bill. The complainant amended the bill in conformity to the opinion of the court. The defendant answered, and testimony was taken on both sides. The court decreed in favor of the complainant for the sum of $7600.67. The complainant thereupon appealed to this court. No appeal was taken by the city.

The court was right in the view which it took of the prayer for a decree of forfeiture. Equity never, under any circumstances, lends its aid to enforce a forfeiture or penalty, or anything in the nature of either. Nevertheless it was an error to sustain the demurrer in part. That cannot be done. Where there is a single demurrer, it must be wholly sustained or overruled. But the defendant not having appealed, is foreclosed from making the objection, and indeed it was conclusively waived by both parties; by the complainant, by the amendment which he made to his bill; and by the defendant, by answering. The question of forfeiture is therefore withdrawn from the case.

The first of the clauses relates to the acts of third persons. Under this clause, the only claim asserted is one growing out of the diminution of wharf charges accruing to Marshall by reason of the war. The language of the clause is, 'if the right to collect wharfage is suspended for any period,' &c. He was allowed to collect the wharfages as long as he claimed the right to do so; and then voluntarily delivered up the possession of the landing according to an understanding between him and the city authorities. This is proved by the testimony of Lindsay and Auter.

Auter, who called upon him as chairman of the landing committee of the city council, says:

'He told me that his term had expired, and that he had no more to do with the landing.' 'He surrendered the landing to me as chairman of the landing committee.' 'Mr. Marshall told me the city had imposed a hospital tax from flat-boats, amounting to about $1800. This he claimed rightfully belonged to him, and this was all he did claim.'

'Marshall made the surrender in writing.' 'I took the floor at a meeting of the council, and stated to the board, that in all the controversies I had held with Mr. Marshall, he had said he would, at the end of three months' extension (making the contract ten years and three months), make a peaceable and quiet surrender to the city, which he did do.'

The breaking out of the war in 1861, necessarily interrupted the navigation of the Mississippi from the States not in rebellion. But the complainant's right to collect was in no wise suspended. He suffered from the war as others did, but his contract secured him no indemnity and a court of equity can give him none.

The second clause relates to the acts of the city. It declares that 'in case the right to collect wharfage or rents be interrupted or defeated permanently,' &c. Under this clause three claims have been pressed upon our attention.

It was insisted that the city, by her ordinance of February 7, 1852, reduced the wharfage for steamers from $5 per trip to $5 per week, in violation of the contract with the complainant, and largely to his injury. This is a grave imputation, and if established, would certainly entitle him to compensation. But the evidence shows that he drew up the ordinance himself, urged its adoption upon the council, that the city had no interest in the matter, and that the council passed it only by reason of his urgency, and because he thought the change would be beneficial to him. Volenti non fit injuria.

It is alleged that under the ordinance of June 7, 1852, the city made a wharfage charge of $1 each upon all water-crafts other than steamers, touching at the landing. Upon looking into the ordinance we find it too clear to admit of doubt or require discussion that this charge was a tax, such as the city had reserved the right to impose, and not a wharfage charge falling within the category of those which belonged to the complainant. At the same time that this tax was exacted, Marshall was collecting an additional $2 from each of the vessels upon which it was imposed. With this the city in no wise interfered, and there is no complaint on that subject.

Lastly, it is claimed that the complainant is entitled to the income which he would have received during the extension of this term of ten years, if it had been extended at its close for the length of time the quarantines subsisted. The quarantines affected only boats coming up the river, and only such of those as had cases of fever on board. The quarantines were established with the consent of the complainant. He admits this, but says, that although he then made no such claim, he expected his term to be extended accordingly. He knew all about the quarantines when the extension which he asked for was conceded to him, and when he yielded up the possession, saying, he was done with the landing, and claimed only the proceeds of the tax of $1, which we have already considered. His right to collect wharfages was neither 'interrupted or defeated permanently,' nor indeed gainsaid or questioned by the city.

The claim is neither within the letter, meaning, nor equity of the contract and must be denied. It appears that Marshall made two loans from the city to remove incumbrances-one of $1000. The amount of the other is not shown. Neither of these loans has been repaid. There is no report of a master in the record. The decree is very brief. The record furnishes no means of ascertaining the ground upon which the court proceeded, in coming of the conclusion that the complainant was entitled to the sum decreed in his favor.

After a careful examination of the case we have found no error against the appellant.

DECREE AFFIRMED.


text: Talk:Marshall v. Vicksburg/Opinion of the Court


text:
Shutte v. Thompson

ERROR to the District Court for the District of West Virginia:

Thompson brought ejectment, A.D. 1859, in the court below against Shutte for four conterminous tracts of land of 1000 acres each, situate in West Virginia. The plaintiff's title originated in a grant made in the year 1787, by the State of Virginia, to one Jabez Bacon, who subsequently died leaving eight children, his heirs; among them one named Nathaniel. The grant to Jabez Bacon embraced twenty-one tracts of land, including the land now in controversy, and, as the tracts adjoined each other, it was, in substance, a grant of one body containing 20,000 acres, to the right of Bacon in which the plaintiff asserted that he had succeeded in virtue of sundry mesne conveyances. But it was admitted by the plaintiff in the outset of the case that all the deeds through which he claimed could not be produced; it being alleged that most of the originals were lost; several never having been even recorded. Among the instruments which were produced was a certified copy from the county records of a deed from Nathaniel Bacon (one of the eight sons of Jabez Bacon, the original grantee of the Commonwealth), to Philo Murray, of 1815; a like copy of a deed from Philo Murray to Peter Smith, of 1815; with original deeds from Gerrit Smith and other heirs of Peter Smith to the Oberlin College, of 1853; and from the Oberlin College to Uriah Thompson, of 1854. Assuming the copies to have been as good evidence as the originals (a matter denied by the defendant), the apparent defect in the plaintiff's title here, of course, was that but 1/8 of Jabez Bacon's title had been vested in the plaintiff, and this was a matter which made a great question in the case. To get over this apparent defect, the plaintiff produced testimony of one Underwood and others to show that there had formerly existed in the possession of the treasurer of Oberlin College 'twenty patents from the State of Virginia of Jabez Bacon for the 20,000 acres of land, and of several intermediate deeds by which said land was ultimately conveyed by Gerrit Smith to Oberlin College; deeds by several men of the name of Bacon, and Philo Murray, and Smith.' These deeds, according to the testimony, had been sent by the treasurer of the college to an agent of it to effect a sale of part of the lands, which he did, and could not be found. This evidence was fortified by evidence that the heirs of Jabez Bacon, in conversation about the land, never claimed any part of it; and that the Smiths from 1815 to 1823, and Oberlin College till its sale to the plaintiff in 1854, had paid the taxes; and that the parties paying taxes had unchallenged possession from 1823 till the date of this suit.

The defence was professedly a grant by the State of Virginia prior to that one to Jabez Bacon, and some other defences, arising under the tax laws of Virginia; but one great effort on the trial was to prevent the plaintiff from showing a title in himself; without which, of course, he could not recover in ejectment.

In the course of the trial, bills of exception were taken by the defendant to the admission of certain evidence offered by the plaintiff, and to the exclusion of certain other evidence offered by himself: and also to the charge of the court.

The first exception was to the admission by the court of the deposition of Underwood, already named; taken professedly under the 30th section of the act of Congress of September 2d, 1789. This act authorizes the deposition of an ancient, or any infirm person (among others), to be taken de bene esse, when the testimony of such person is needed in any civil cause depending in any district in any court of the United States. The deposition may be taken before any justice or judge of any of the courts of the United States, or before any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause. The act further provides for notice to the adverse party, and enacts that every person deposing as aforesaid shall be carefully examined and cautioned and sworn or affirmed to testify the whole truth. It also further enacts that the depositions taken shall be retained by the magistrate until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons of their being taken, and of the notice, if any, given to the adverse party, be by the magistrate sealed up and directed to the court, and remain under his seal until opened in court. In the present case the deposition had not been taken in conformity with these requirements; that is to say, it did not appear that the witness was sworn to testify the whole truth. Nor did it appear that there was any certificate of the reasons why the deposition was taken. In addition to this, it was taken before a township justice, and not by any magistrate described in the act of Congress. And on these accounts alone the defendant objected to its admission. The court, however, admitted it. In doing so it assigned as reasons 'that it appeared that the deposition was filed in the papers of the cause more than one year before the trial thereof, and that no exceptions had been taken or indorsed thereon; that the witness was an aged man when his deposition was taken, and had died before the trial, and that no exceptions, verbal or otherwise, were taken until the deposition was offered in evidence by the plaintiffs; and because it further appeared that one of the counsel of the defendant had accepted notice for taking the deposition, and had appeared at the taking thereof, and cross-examined the witness, as was shown by the deposition;' and, as respected the character of the magistrate, 'because the court, taking judicial cognizance of the acts of Assembly of West Virginia (from which it appears that a justice is required by law to keep a record of all his proceedings), and taking further notice of his power to impanel a jury to try causes before him, and that appeals will lie from his decisions, upon which transcripts of his record are evidence in the court, was, for these reasons, of opinion that he is 'a judge of a court within the meaning of this act of Congress relative to the taking of depositions de bene esse."

In the further progress of the trial, the plaintiff offered in evidence the record of two deeds; one from Nathaniel Bacon to Philo Murray, and the other from this Murray to Peter Smith, the grantors in both cases being residents of Connecticut, and both deeds being acknowledged in the exact same way. The defendant objected to the admission of the records, because it appeared from them that the deeds had not been acknowledged as deeds made by persons resident out of the State of Virginia as required by its statutes to be, and because, therefore, the record of them was null.

To understand the force of the objection, it is necessary to state, that a statute of Virginia, passed December 8th, 1792, enacts that a deed acknowledged by persons residing in any of the United States, before any court of law, and certified by the court, shall be admitted to record, a copy if which shall be evidence.

The acknowledgment was thus in the first of these two deeds; mutanda mutatis in the second.

UNITED STATES OF AMERICA,

DISTRICT OF CONNECTICUT, ss.:

At a District Court of the United States, held at New Haven, within and for said district, on the 4th Tuesday of February, A. D. 1817-present, the Honorable Pierpont Edwards, Judge-personally appeared Nathaniel Bacon, signer and sealer of the within instrument, and acknowledged the same to be his free act and deed. In witness whereof I have hereunto set my hand and affixed the seal of said court, at New Haven, the 26th day of February, A. D. 1817.

[SEAL.] H. W. EDWARDS, Clerk.

I, Pierpont Edwards, judge of said court, hereby certify that said H. W. Edwards is clerk of said court. In witness whereof I have hereunto set my hand the day above written.

PIERPONT EDWARDS, District Judge.

In the further progress of the trial, the defendant gave in evidence plats and certificates of thirty-three surveys made in 1785, for one Thomas Laidley, one survey for William Barclay, one for John Lyne, one for Richard Mason, one for Joshua Jackson, and five patents to John Reed, the object being to show the location of the patents. Further, to identify them, he offered to prove by a witness who had lived many years in the neighborhood of Thomas Laidley's survey No. 1, that a poplar corner represented on the plat was, and had been for many years, known and reported in the neighborhood as the poplar beginning corner of Laidley's survey. To this the plaintiffs objected, and the court refused to allow proof 'of the reputation of the neighborhood as to the said poplar corner at the present day, unless such reputation was traditionary in its character, having passed down from those who were acquainted with the reputation of the tree from an early day to the present time,' or unless 'the information as to such reputation was derived from ancient sources, or from persons who had peculiar means of knowing what the reputation of the tree was at an early day.' But the court permitted the defendant to prove that the occupants of the Laidley survey No. 1, and of the Mason tract adjoining thereto (the poplar being a corner of each), claimed the poplar as the true corner of their tracts. To this ruling of the court the defendant excepted; and this made the fourth bill of exceptions.

In the further progress of the case, the defendant offered in evidence a tax deed for the lands from the recorder of Doddridge County, one Taliaferro Knight, to John S. Hoffman, the purpose of the evidence being apparently to show title out of the plaintiff. The deed was dated on the 26th of March, 1866, and showed, by its recitals, that the land was returned delinquent for the non-payment of taxes for the year 1857, and was sold in 1860, to Hoffman, in virtue of the 37th chapter of the Code of Virginia of which West Virginia was then a part. That chapter allowed two years for redemption, and after their expiration the purchaser was obliged to have a survey made and reported to the court of the proper county, which, if approved, the court might order to be recorded. The clerk was required then to make a deed to the purchaser, in conformity with the survey. No sale could be consummated, and no deed could be made prior to the return, confirmation, and record of such survey. In 1863 West Virginia became a separate State, and by virtue of a clause in its constitution, the laws of Virginia continued in force until changed by the West Virginia legislature. On the 27th of February, 1866, that legislature passed an act by which the entire 37th chapter of the Virginia Code was repealed so far as it applied to tax sales of lands in West Virginia.

The court rejected the deed offered in evidence, and this made another of the exceptions.

The trial being closed, the court charged the jury; the defendant asking no specific instructions on any point, and no instructions being given as to the matter of how far the seven-eighths of the title of Jabez Bacon, for which no deeds, or copies of deeds, were produced, was to be presumed to be vested in the plaintiff. Verdict and judgment were given for the plaintiff, and the defendant brought the case here on error. The case being now in this court, the defendant in the case below, and now plaintiff in error here, contended that the instructions given were insufficient; his point as expressed in his brief being that they 'did not clearly and correctly expound the law of the case.'

Mr. C. Boggess (a brief of Mr. John S. Hoffman being filed) for the plaintiff in error; Mr. B. H. Smith, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Shutte v. Thompson


text:
Page:Dictionary of National Biography volume 59.djvu/35

 Nicholas Rahten of Lüneburg. The family was descended from Walter de Wahul, who occurs in Domesday Book as a landholder in Northamptonshire. Several members of the family acted as sheriff of that county. A Sir Thomas Wale was knight of the Garter in Edward III's reign, and another Thomas was killed at Agincourt in 1415. A branch of the family migrated to Ireland late in the twelfth century and founded Walestown. The branch to which Sir Charles belonged acquired Shelford in the seventeenth century. His father, Thomas Wale (1701–1796), a type of the eighteenth-century squire, kept a notebook, numerous extracts from which were printed by the Rev. H. J. Wale in ‘My Grandfather's Pocket-book,’ 1883. Prefixed is a portrait of Thomas Wale, æt. 93.

Charles was in 1778 sent up to London to learn arithmetic and fencing. In September 1779, much against his father's wish, he accepted a commission in a regiment which was then being raised by Colonel Keating, the 88th foot. He went out with it to Jamaica, but on 13 April 1780 his father purchased him (‘cost 150l.’) a lieutenancy in the 97th. That regiment went to Gibraltar with Admiral Darby's fleet in April 1781, and served throughout the latter part of the defence. In a letter to his father on 16 Oct. 1782, Wale described the great attack made on 13 Sept. by the floating batteries (, p. 222).

He obtained a company in the 12th foot on 25 June 1783, but was placed on half-pay soon afterwards. On 23 May 1786 he exchanged to the 46th foot, and served with it in Ireland and the Channel Islands. He married in 1793 and retired on half-pay, becoming adjutant of the Cambridgeshire militia on 4 Dec. in that year. On 1 March 1794 he was made major, and on 1 Jan. 1798 lieutenant-colonel in the army. He returned to full pay on 6 Aug. 1799 as captain in the 20th, and served with that regiment in the expedition to the Helder in the autumn. On 16 Jan. 1800 he was promoted to a majority in the 85th, and on 9 Oct. in that year to the lieutenant-colonelcy of the 67th. He joined that regiment in Jamaica, and brought it home at the end of 1801. In 1805 he went out with it to Bengal, but he returned to England and exchanged to the 66th foot on 16 June 1808.

He did not serve long with that regiment. He had been made colonel on 25 April 1808, and in March 1809 he was appointed a brigadier-general in the West Indies. He commanded the reserve in the expedition under Sir George Beckwith [q. v.], which took Guadeloupe in February 1810. He was wounded in the action of 3 Feb., and received the medal. On 4 June 1811 he was promoted major-general, and on 21 Feb. 1812 he was appointed governor of Martinique, and remained so till that island was restored to France in 1815. He was made K.C.B. on 2 Jan. 1815. He was promoted lieutenant-general on 19 July 1821, and general on 28 June 1838, and was made colonel of the 33rd foot on 25 Feb. 1831. He died at Shelford on 19 March 1845. His portrait, by Northcote, was lent by Mr. R. G. Wale to the third loan exhibition at South Kensington in 1868 (Cat. No. 38).

He was three times married: (1) in 1793 to Louisa, daughter of Rev. Castel Sherrard of Huntington; (2) in 1803 to Isabella, daughter of Rev. Thomas Johnson of Stockton-on-Tees; (3) in 1815 to Henrietta, daughter of Rev. Thomas Brent of Croscombe, Somerset. She survived him, and he left seven sons and five daughters.

His eighth son, (1822–1858), born in 1822, entered the East India Company's service in 1840, and was posted to the 48th Bengal native infantry on 9 Jan. 1841. He became lieutenant on 23 Feb. 1842, and captain on 1 Oct. 1852. He was appointed brigade-major at Peshawar on 19 Aug. 1853, and was serving there when his regiment mutinied at Lucknow in May 1857. He took command of the 1st Sikh irregular cavalry (known as Wale's horse) and served in the relief of Lucknow, and in the subsequent siege and capture of it in March 1858. His corps formed part of the second cavalry brigade, and the brigadier reported that Wale ‘showed on all occasions great zeal in command of his regiment, and on 21 March led it most successfully in pursuit of the enemy till he was shot’ (London Gazette, 21 May 1858; see also, Forty-one Years in India, i. 408). He married Adelaide, daughter of Edward Prest of York, and he left two daughters.

[Gent. Mag. 1845, i. 547; Burke's Landed Gentry; Wale's My Grandfather's Pocket-book, 1883.]

WALE, SAMUEL (d. 1786), historical painter, is said to have been born at Yarmouth, Norfolk. He was first instructed in the art of engraving on silver plate. He studied drawing under Francis Hayman [q. v.] at the St. Martin's Lane academy, and his book illustrations show how much he owed to Hayman's example. He painted some decorative designs for ceilings at a time when the taste for that style of ornamentation was on the wane, and he was


text: Talk:Shutte v. Thompson

title: Talk:Shutte v. Thompson


text:
Shutte v. Thompson/Opinion of the Court

The first error assigned is the decision of the court admitting the deposition of Underwood.

It must be admitted that the deposition was not taken in conformity with all the regulations of the act of Congress of September 24th, 1789. It does not appear that the witness was sworn to testify the whole truth. Nor does it appear that there was any certificate of the reasons why the deposition was taken. In addition to this it was taken before a township justice, and not by any magistrate described in the act of Congress, and for these reasons the opposition to its reception in evidence was founded. No other reason was stated in the court below, and no others are urged in this court.

It is to be observed that the objections made are all formal rather than substantial. Still they are quite sufficient to require the rejection of the deposition, if there is nothing in the case to countervail their effect. But it is obvious that all the provisions made in the statute respecting notice to the adverse party, the oath of the witness, the reasons for taking the deposition, and the rank or character of the magistrate authorized to take it, were introduced for the protection of the party against whom the testimony of the witness is intended to be used. It is not to be doubted that he may waive them. A party may waive any provision, either of a contract or of a statute, intended for his benefit. If, therefore, it appears that the plaintiff in error did waive his rights under the act of Congress-if he did practically consent that the deposition should be taken and returned to the court as it was-and if by his waiver he has misled his antagonist-if he he refrained from making objections known to him, at a time when they might have been removed, and until after the possibility of such removal had ceased, he ought not to be permitted to raise the objections at all. If he may, he is allowed to avail himself of what is substantially a fraud. Parties to suits at law may assert their rights to the fullest extent; but neither a plaintiff nor a defendant is at liberty to deceive, either actively or passively, his adversary, and a court whose province it is to administer justice, will take care that on the trial of every cause neither party shall reap any advantage from his own fraud.

In this case it appeared to the court below, as the record states, that Underwood was an aged man when his deposition was taken; that he had died before the trial; that one of the counsel for the defendant (now plaintiff in error) had accepted notice of taking the deposition; that he had attended at the taking, and cross-examined the witness; that he made no objection either to the sufficiency of the oath, to the reasons for taking the deposition, or to the competency of the magistrate; and that, though the deposition had been filed in the record of the cause more than a year before the trial, no exception had been taken to it in all that time. Under these circumstances, the consent of the defendant to the manner of taking the deposition must be presumed, or a fraudulent attempt to mislead the plaintiff must be conceded. It has been decided that objections to the competency of a witness must be made at the time of taking his deposition, if the party objecting attended, and the objections were then known by him, in order that his opponent may remove them, and that if he does not then object he will be presumed to have waived objection.

The reason is that unless such presumption is made, fraud and trickery must be imputed to the objecting party. There is at least equal reason for presuming the consent of the defendant, that the deposition of Underwood should be taken before the magistrate who took it, and in the manner in which it was taken. In York Company v. Central Railroad Company, it was said that when a deposition has been taken under a commission the general rule is, that all objections of a formal character, and such as might have been urged on the examination of the witness, must be raised at such examination, or upon motion to suppress the deposition. In Buddicum v. Kirk, it appeared that a deposition had been taken under a 'dedimus potestatem.' Notice had been given to the plaintiff's attorney that it would be taken on the 8th of August, and, if not taken in one day, that the commissioners would adjourn from day to day until it should be finished. The attorney agreed that it might be taken on that day whether he attended or not. The commissioners met on the 8th of August, and adjourned from day to day until the 12th, when they adjourned until the 19th, and then took the deposition. There was no attendance of the plaintiff's attorney, and he had no notice of the several adjournments, yet this court held that the agreement of the attorney that the deposition might be taken whether he was present or not, his subsequent examination of it without objecting to the want of notice, and the death of the witness, were sufficient grounds for the defendant to believe that the objection would be waived, and the deposition was ruled to be admissible. This, it is true, was not the case of a deposition taken 'de bene esse,' but it shows that formal errors and defects in taking depositions may be waived, and it shows that much less than appears in the present case will be held to be sufficient evidence of a waiver. See, also, Rich v. Lambert, where it was ruled that the absence of an order for issuing a commission is waived by joining in executing the commission. In that case the thing waived was absence of authority to take the deposition.

It must be conceded that the authority to take depositions de bene esse, under the 30th section of the act of 1789, has always been construed strictly. Being in derogation of the rules of common law, the formalities prescribed by the act must be observed; and many cases may be found in which such depositions have been rejected, because it did not appear that the required conditions or formalities had been regarded. They are all, however, cases in which the party objecting did not attend the examination of the witness, or took no part in it. They are all consistent with the rule, that a party may waive any conditions that are intended for his sole benefit, and that he does waive every formal objection when he attends the examination of a witness, cross-examines without protest, and remains silent until the witness has died. Such was the case here. The deposition shows that the attorney of the objecting party attended before the magistrate, that he took part in examining the witness, and that he never made objection until more than a year afterwards, when the witness was dead, and when the case came to trial. All these facts appeared to the court below, and they were not controverted. Under the circumstances, therefore, we think the deposition was correctly received by the court, and that this assignment of error cannot be sustained.

The next error assigned is the admission by the court of the exemplifications of the record of a deed from Nathaniel Bacon, a son and heir of Jabez Bacon, to Philo Murray, and of the record of a deed from Philo Murray to Peter Smith. It is alleged that the deeds had not been recorded in compliance with the statutes authorizing deeds made out of the State to be recorded. The objection, we think, is founded upon a mistake of facts. The grantors were both residents in the State of Connecticut, and to each deed there was a certificate of the clerk of the District Court of the United States that the grantor therein named personally appeared in the court, and acknowledged the instrument to be his free act and deed. There is also a certificate of the judge, dated the day of the clerk's certificate, that the clerk was then clerk of the District Court. Probate was thus made strictly in accordance with the Virginia statute of December 8th, 1792. The deeds were therefore entitled to record, and they were duly recorded in pursuance of orders of the county court. Hence there was no error in admitting the exemplifications in evidence.

We pass now to consider the fourth bill of exceptions. The court refused to allow proof of the reputation of the neighborhood as to a poplar corner at the present day, 'unless such reputation was traditionary in its character, having passed down from those who were acquainted with the reputation of the tree from an early day to the present time,' or unless 'the information as to such reputation was derived from ancient sources, or from persons who had peculiar means of knowing what the reputation of the tree was at an early day.' But the court permitted the defendant to prove that the occupants of the Laidley survey No. 1, and of the Mason tract adjoining thereto (the poplar being a corner of each), claimed the poplar as the true corner of their tracts. To this ruling of the court the defendant excepted.

We do not perceive that any injury could have been sustained by the defendant in consequence of this ruling, even if it was incorrect; certainly none that would justify our sending the case to a new trial. But there was no error. Reputation as to the existence of particular facts not of a public nature, is not generally admissible, though where the existence of the facts have been proved aliunde, reputation is sometimes received to explain them. Here, however, the evidence was offered not to explain a fact, but to establish it. We do not propose to discuss this subject at length. It is sufficient to say that the limitations imposed by the court upon the evidence of reputation offered, are fully sustained by authority.

The next error of which complaint is made, is that the court refused to permit the defendant to give in evidence a tax deed for the lands from Taliaferro Knight, recorder of Doddridge County, to John S. Hoffman. It seems to have been offered to show title out of the plaintiff. The deed bears date on the 26th day of March, 1866. From the recitals contained in it, we are informed that the land was returned delinquent for the non-payment of taxes for the year 1857, and that it was sold in the year 1860, to John S. Hoffman. The sale was made in force of the laws of Virginia, of which West Virginia was then a part. By that statute two years were allowed for redemption, and after they had expired, the purchaser was required to have a survey made and reported to the court of the proper county, which, if approved, the court might order to be recorded. After all this had been done, the clerk was required to make a deed to the purchaser, in conformity with the survey. No sale could be consummated, and no deed could be made, prior to the return, confirmation, and record of such survey. It is important to keep these provisions of the law in mind, for in 1863 West Virginia became a separate State. By virtue of a clause in its constitution, as well as without such ordinance, the laws of Virginia continued in force until changed by the West Virginia legislature. But that legislature, on the 27th of February, 1866, passed an act by which the entire thirty-seventh chapter of the Virginia statutes was repealed so far as it applied to tax sales of lands in West Virginia. At that time the deed to Hoffman had not been made, nor had the survey of the land been made and reported. This appears from the deed itself. It is plain, therefore, that there was no authority for the survey and report, or for the deed. Without the statute in existence when they were made, they could have no efficacy. As transmissions of title they were wholly void. The deed was therefore properly rejected.

There remains one more exception to be considered. It is to the charge of the court in answer to the request of the jury for instructions. It is, however, unnecessary to examine critically the charge. If we understand the complaint of the plaintiff in error, it is not so much that erroneous instructions were given, as that the court failed to give the directions which it is now contended should have been given. The point made in the brief of the plaintiff in error is, that 'the instructions given to the jury by the court, did not clearly and correctly propound the law of the case.' There were, however, no requests for specific instruction, and it is abundantly settled that error cannot be assigned for failure to give instructions that were not asked. The portion of the charge excepted to, may not have covered the whole case. It probably did not. But so far as given, we discover in it no erroneous directions. It is true that, under the statutes of the State, the claimant, in order to take the forfeited title, must have had an apparent title, or color of title, regularly derived from the Commonwealth, acquired legitimately, and must have discharged the State's lien for taxes. This does not seem to have been contested. It certainly was not denied by the court. The main controversy evidently was over the question whether the whole title of Jabez Bacon has become vested in the plaintiff. A deed from only one of his children appears to have been given in evidence. But the loss of many title papers was proved. The heirs of Bacon made no claim, and disclaimed all intention of claiming. The plaintiff, and those under whom he claimed, had taken charge of the land, and kept it from 1815 till 1839, paying taxes. Then all the heirs of Smith quitclaimed to the Oberlin Collegiate Institute, whose title the plaintiff has. From 1826, possession has attended the claim, without challenge. Whether these facts, and others of which evidence was given, justified a presumption of a grant from the other heirs of Bacon was, of course, a question for the jury, in regard to which no instruction to the jury was asked. Nor are we informed what directions, if any, were given. In this part of the case there is, consequently nothing for us to review. And in the part of the charge to which exception was taken, we perceive no error.

JUDGMENT AFFIRMED.

title: Shutte v. Thompson/Opinion of the Court


text: Talk:Shutte v. Thompson/Opinion of the Court


text:
Duncan v. Jaudon

APPEAL from a decree of the Circuit Court for the Southern District of New York. The case was thus:

In 1833 Commodore William Bainbridge, a resident of Philadelphia, died, leaving four daughters, one of whom was Mary T. B., subsequently the wife of Charles Jaudon. By his will he left to two trustees a considerable sum of money, directing them to invest the same in the stocks of the United States, or the stocks or funds of any individual State, and to hold the same in trust for his several daughters; one-fourth for his daughter Mary, the interest to be paid to her, 'for her sole use and benefit during her natural life, and at the end of her natural life, the amount so invested to be equally divided between her children.' The property left by the Commodore was invested by his trustees as the will directed, chiefly in five per cent. loans of Pennsylvania, and the interest was properly paid to the daughters. The interest received from the Pennsylvania loans, five per cent., was less than the cestui que trusts were content with; but the trustees appointed in the will would not depart from the directions imposed on them by it as to the class of investments in which they could invest; and becoming thus unacceptable to the cestui que trusts, they were discharged, in 1835, at their own request, from their trust, and surrendered the estate under their care to Samuel Jaudon, whom, on the consent of Mrs. Jaudon, the court appointed, without security, to be trustee, in the place of the trustees named in the will.

The Pennsylvania five per cent. stock was now soon sold, and the proceeds invested by Samuel Jaudon in the stock of the Delaware and Raritan Canal Company, according to an arrangement previously made with the cestui que trusts; the new stock being one of a high character in its class, and which has paid for many years, with great regularity, ten per cent. a year dividend, with occasional large extra dividends. Mrs. M. T. B. Jaudon got thus finally 117 shares of this stock. The certificates, of which there were several, all ran thus:

'This is to certify that S. Jaudon, trustee for Mrs. Mary T. B. Jaudon, is entitled to seventy shares in the capital stock of the Delaware and Raritan Canal Company. . . Transferable on the books of the Company, and on surrender of this certificate only by him or his legal representative.'

This investment was made very soon after the new trustee was appointed. A similar one was made for all the sisters, and was perfectly agreeable to them all. Mrs. Jaudon considered that the trustee was 'acting very judiciously, and was very glad of it.'

In this state of things Samuel Jaudon, who had been dealing largely on his own account in a stock known as 'Broad Top Coal Stock,' a speculative stock of no established value, applied in 1865 to the National City Bank of New York to lend him money on 47 shares of this canal stock. They agreed to do so, and he delivered to the cashier of the bank the certificates standing in his name as trustee, executing also a power of attorney to sell in case of nonpayment of the loan; the power describing him as 'S. Jaudon, trustee for Mrs. M. T. B. Jaudon,' and he signing himself in the same way. This dealing of Jaudon with the City Bank, based on the stock in question, and commencing in 1865, extended through a term of two years. During this time ten separate loans were made to him on the pledge of the 47 shares of the canal stock. The securities were returned to Jaudon whenever he paid up the amount of a loan, and redelivered to the bank each time a new loan was effected. In December, 1867, when the last loan matured, the bank, being unwilling to renew it, and Jaudon unable to pay it, sold the stock by the direction of Jaudon, and applied the proceeds of the sale to the payment of its debt.

A few months prior to this sale, that is to say, in July, 1867, Jaudon, wanting more money, applied to Duncan, Sherman & Co., bankers of New York, with one of which firm, William Butler Duncan, he had had ancient relations, and with whom alone he spoke in the matter, for a loan of $7000 at 90 days; telling him that he had securities to offer, and naming them,-the remaining 70 shares of the canal stock, like that pledged to the bank, declared on its face to be 'in trust for Mrs. M. T. B. Jaudon.' 'Upon the faith of the collaterals,' and 'to oblige' Jaudon, the proposition was accepted by Mr. Duncan, who told his cashier to attend to the matter. The cashier accordingly lent Jaudon the money, taking the certificates for the 70 shares, and a power to sell like those in the other case, in which he both described and signed himself as 'trustee of Mrs. M. T. B. Jaudon.' Jaudon failing on the maturity of the loan to pay it, the stock was sold. There was no evidence that any of the principals of the house of Duncan, Sherman & Co. had seen the certificates or powers, or had any personal knowledge of the fact that Mrs. Jaudon claimed any interest in them. But their clerk did see the certificates; and it was testified by Mr. W. B. Duncan, that 'without the collaterals he certainly would not have made the loan.'

Mrs. Jaudon was absolutely ignorant of all that was done, until after the stock was sold, when Samuel Jaudon disclosed the history to her.

There was no doubt that every one of these loans, whether by the City Bank or by Duncan, Sherman & Co., were to Jaudon in his personal character and for his individual use, and that the money obtained was applied to discharge liabilities incurred in the purchase or carrying of the Broad Top coal stock, in which he was at the time dealing on his own account; taking in his own name, and without the exhibition of any trust whatever, certificates for what he bought.

Jaudon being insolvent, Mrs. Jaudon now filed a bill in the court below against him, Duncan, Sherman & Co., and the National City Bank, to reach the proceeds of the property which he had disposed of. Jaudon was himself examined as a witness, and narrated with apparent general candor the history of the transaction. He stated, however, in reply to questions inviting such answers, that from his conversations with his sister-in-law (the complainant), it was his general understanding that any changes in investment which he deemed advisable would be approved by her; and that if the investment in Broad Top stock had resulted as he had anticipated, her income would have been further increased; and that in making a purchase of the stock his intention was 'to surprise her by giving her something that was worth a great deal more than all the rest.' With all this he stated, however, that he had never had any conversation whatever with his sister-in-law on the subject of changing the investment made in the canal stock.

The court below decreed that Duncan, Sherman & Co. should account for the value of the 70 shares pledged to them and sold, with the dividends and other proceeds that would have been received thereon, including interest on the dividends had they not been diverted from the trust. And that the bank should do the same by the 47 shares pledged to them and sold.

Both Duncan, Sherman & Co. and the City Bank appealed.

Mr. W. W. McFarland, for Duncan, Sherman & Co.; Mr. W. H. Arnoux, for the National City Bank, appellant:

Assuming that both of the defendants are to be charged with constructive notice that the stock in question was held subject to some trust, from the circumstance that the word trustee appeared upon the face of the certificates, a presumption impossible to make in regard to Duncan, Sherman & Co., no member of which firm ever saw the certificates-such notice cast upon the defendants no other duty than that of ascertaining whether the power to sell and buy securities, ordinarily attending the title to such securities, had been in this case lawfully withheld from the trustee by the terms of the trust.

While in the case of executors the law implies the power to dispose of the personal assets, and a purchaser may, as a rule, assume its existence without inquiry, and while in the case of strict trustees, where the purchaser has notice of the existence of the trust, it may be necessary for him to ascertain that the power of sale has not been withheld by the terms of the trust; nevertheless, unless it has been withheld, and the trustee is therefore unable to sell without committing a breach of trust, the principles of law, which govern both cases, are from that point forward the same, and are so treated in all the authorities.

In cases where it is the duty of the purchaser to inquire into the trustee's power to sell, and he finds that he possesses this power, and may sell, without by the act of sale committing a breach of trust, he has the right to presume, as the law presumes, in favor of honesty and against fraud.

There are a few cases in which the purchaser is bound to see to the application of the purchase-money. To this class the foregoing observations are of course inapplicable, but to this class the case at bar does not belong.

2. A pledge or mortgage stands upon the same footing, and is governed by the same principles as a sale, it being but a part execution of the larger power, and the exercise of which may be just as beneficial to the beneficiaries.

3. There was no violation of the trust in question by the trustee in disposing of the canal stock. It did not even belong to any of the classes of securities in which the testator expressed a desire to have his estate invested. For aught that the defendants knew, it might have been the intention, as perhaps it was the duty of the trustee, by raising the money in question, to reinvest the trust funds in the class of securities contemplated by the testator. The testator's express desire in regard to the character of the investment of the trust funds, was disregarded with the consent and at the solicitation of the beneficiaries, in hopes of thus securing a larger income.

4. The evidence of Mr. Jaudon shows that it was left largely to him by this cestui que trust, his sister-in-law, in what security to invest. There had been a complete departure from the terms of the will by the investment in canal shares. The change to Broad Top stock was no greater than that was. Mr. Jaudon considered the Broad Top a promising investment, and hoped to surprise his sister-in-law by a most agreeable accession to her income. He meant to reinvest the trust moneys produced by the sale of canal shares in this new stock. This, no doubt, it was wrong in him to do; but not more wrong than what he had already done; and in one case, as in the other, he meant all for the best. But the canal stock having been sold really to make a trust reinvestment, neither Duncan, Sherman & Co., nor the bank can be made liable for the failure of the new fund; though, of course, Mr. Jaudon can be for violating the directions of his testator.

Mr. T. R. Strong, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Duncan v. Jaudon


text: Talk:Duncan v. Jaudon

title: Talk:Duncan v. Jaudon


text:
Duncan v. Jaudon/Opinion of the Court

It is too plain for controversy that Samuel Jaudon committed a gross breach of trust in allowing the shares of stock in the Delaware and Raritan Canal Company to be disposed of and applied in the manner they were; but as he is insolvent, and the specific property cannot be reclaimed, the inquiry arises whether the appellants, with whom the shares were pledged and for whose benefit they were sold, or the cestui que trust, shall bear the loss occasioned by his misconduct.

It is argued that the appellatns bear a different relation to this stock from what would be the case if the investment in it had been authorized by the terms of the will. It is true the will directed investments to be made in government or State stocks, and on this account the conversion by Jaudon of the State stocks on hand into canal stock, was a wrongful act and a breach of trust. But the cestui que trust was at liberty to approve or reject this unauthorized proceeding, and her decision on the subject concerned no one not interested in the trust estate. She elected to approve it after she learned of the occurrence, and by doing this adopted the new investment and waived the breach of trust. But her waiver on that occasion did not bind her to observe the same line of conduct in case of further violation of duty. It would be absurd to suppose because she ratified this transaction she intended to assent to future breaches of trust. Indeed, it is quite clear from the evidence that she acquiesced in the arrangement because her relatives who had charge of the estate advised it. In the nature of the case, she could not have had that sort of information on such a subject on which to base a correct judgment, and, therefore, necessarily relied for the security of her rights on the counsel of older and more experienced persons in whom she placed confidence. It is due to the trustee to say that the change of investment was a family arrangement, in order to obtain a greater income, and that the stock selected for this purpose was one of the best of its kind that the market afforded.

Although it is wrong in any case for trustees under a will, in making investments, to depart from the rule prescribed by the testator, yet if it is done, and acquiesced in by the party in interest, and there is no interference by the court having charge of the trust, the right of action to the cestui que trust for an illegal disposition of the property thus substituted is not affected by reason of this departure. It is still an estate held in trust for the beneficiary under the will, and to be protected equally with an investment made a strictly in accordance with the terms of the will. It follows, then, that the relation of those having dealings with the trustee, based on shares of stock held in this way, is not changed by reason that the original purchase was not in accordance with the directions of the testator.

This brings us to a consideration of the particular transactions on which the claim for relief in these cases is founded. The dealings of Jaudon with the City Bank, based on the stock in question, commenced in 1865 and extended through a period of two years.

The dealing with Duncan, Sherman & Co. was confined to a single transaction.

The evidence leaves no room for doubt that each and all of the loans were to Jaudon in his personal character and for his individual use, and that the money obtained was applied to discharge liabilities incurred in the purchase, or carrying, of Board Top coal stock, a speculative stock of no established reputation, in which he was at the time dealing on his own account.

It is true, when he borrowed the money he had no expectation of resorting to the trust funds to repay it, but his good intention in this respect furnishes no excuse for his conduct. It was wrong for him, under any state of circumstance, to pledge the stock in order to obtain money for his personal wants. He held a fiduciary relation to it, and yet used it as if it were his own, and bargained for the consequences which followed, although the necessity for the ultimate sale of it was not anticipated by him at the time he pledged it. If the law allowed the property of the cestui que trust to be treated in this manner there would be little encouragement to vest an estate in trustees for the benefit of others.

It is argued that the several transactions of Jaudon with the bank and Duncan, Sherman & Co. were really, on his part, for the purpose of reinvesting the trust funds. How can this be, when he had not a thought at the time he got the money of failure to pay it? His speculations, then, were on his own account, and, like all sanguine men who deal in stocks, he had full faith that the venture in which he was engaged would prove remunerative. The idea of reinvestment was an afterthought, occurring at the time he found himself unable to pay, and obliged, as he supposed, to part with the property of his cestui que trust. And even then it did not assume the shape of a settled purpose, but only an intention to offer the injured party Broad Top security, in which he was operating, for the canal stock, which he was about to appropriate to his own necessities. It is natural that a trustee who makes use of trust property to pay his own debts, without a deliberate design to defraud, should intend, at some future time, to put the party wronged by him in as good a position as before; but can such an intention be treated as a purpose to reinvest the trust funds in the securities in which the trustee is privately speculating? If it can, personal property in the hands of trustees, be the declaration of trust ever so specific, is in a very unsafe condition. The stock was not sold because it was desirable to change the investment, but for the simple reason that it had beeh pledged, and it was pledged for the sole object of enabling Jaudon to obtain money to advance his personal ends. If, therefore, there had been occasion for making a reinvestment, and authority to do it, the transactions in question had no reference to any such object.

But why change the investment, when the canal stock, one of the most stable of its kind in the country, was paying on the average a semi-annual dividend of 5 per cent. If it were allowable under the will to invest in the stock of private corporations at all, few more desirable than this were accessible. Experience had shown that it was safe and yielded a large income, and no prudent trustee having once invested in it, and had his conduct approved, looking alone to the interest of his cestui que trust, would take the hazard of selling it and purchasing another. But there was no authority to sell it, even were it desirable to do so, or to deal with it so that a sale might become necessary. If Jaudon thought so there was no foundation for his belief, and he is compelled to admit, although his whole testimony is an effort to justify his conduct, that he never had any conversation with his cestui que trust on the subject of changing this stock.

It was treated by all concerned, during the long course of years in which it was held in trust, as a most desirable investment, and no thought of substituting other securities for it was ever entertained by any one, until the idea occurred to Jaudon as a means of escape from the embarrassment in which he was placed by the unlawful use he made of it. The cestui que trust not only never gave consent to pledge or sell it, but had no reason to suppose that the trustee would attempt anything of the kind; nor has she said or done anything, fairly interpreted, which tends even to relieve the trustee from the legal responsibility which pertains to the administration of the trust estate.

It follows, then, that the use of the stocks by Jaudon in his transactions with the bank and Duncan, Sherman & Co. was, on his part, a flagrant breach of trust, without either justification or excuse. If so, are they blameless? They cannot be, if they had actual or constructive notice that the trustee was abusing his trust and applying the proceeds of the loans to his own use. As we have seen, the loans were for no purpose connected with the turst, but for Jaudon's own benefit, and the face of the papers given as collateral security for the debts thus incurred informed the parties dealing with him that he held the stock as trustee for Mrs. Mary T. B. Jaudon, and inquiry would have revealed the fact that the use to which the stock was put was unauthorized.

The duty of making such inquiry was imposed on these parties, for it is out of the common course of business to take corporate stock held in trust, as security for the trustee's own debt. The party taking such stock on pledge deals with it at his peril, for there is no presumption of a right to sell it, as there is in the case of an executor. In the former case the property is held for custody, in the latter for administration.

It matters not whether the stock is pledged for an antecedent debt of the trustee or for money lent him at the time. It is unlawful to use it for either purpose.

In Lowry v. Commercial and Farmers' Bank of Maryland, which was a case of misappropriation of corporate stock by an executor, Chief Justice Taney held 'that if a party dealing with an executor has, at the time, reasonable ground for believing that he intends to misapply the money, or is, in the very transaction, applying it to his own private use, the party so dealing is responsible to the persons injured.' And the Supreme Court of Massachusetts, in a recent case, in its essential features like the case at bar, decides that if a certificate of stock, expressed in the name of 'A. B. Trustee,' is by him pledged to secure his own debt, the pledgee is, by the terms of the certificate, put on inquiry as to the character and limitations of the trust, and, if he accepts the pledge without inquiry, does so at his peril. In that case the cestui que trust was not named in the certificate, and the court remarked that, if it were so, the duty of inquiry would hardly be controverted.

If these propositions are sound, and we entertain no doubt on the point, the liability of the appellants for the conversion of the stock belonging to Mrs. Jaudon cannot be an open question. They either knew, or ought to have known, that Jaudon was operating on his own account, and are chargeable with constructive notice of everything which, upon inquiry, they could have ascertained from the cestui que trust.

If this inquiry had been pursued they could not have failed to discover the nature and foundation of the trust, and that the trustee had no right to pledge the stock for any purpose. The bank, in its dealings with Jaudon, was guilty of gross negligence, and, in consequence of this, inflicted serious injury upon an innocent person. It may be that the cashier never inquired of Jaudon what he wanted with the money, but nine successive loans to him in one year, each time on the pledge of the same trust security, was evidence enough to satisfy any reasonable man that the money was wanted for private uses, and not for any honest purpose connected with the administration of the trust.

Duncan, Sherman & Co., although intending no wrong, cannot escape their share of responsibility. Duncan lent the money to Jaudon to oblige him, and, in the very nature of the transaction, he did it for Jaudon's private accommodation. On making the application Jaudon told him he had securities to offer, naming them, and naturally he supposed they were Jaudon's own property. It is his misfortune that he turned them over to his cashier, with directions to accommodate Jaudon, without having personally examined them. If he had made this examination, we are persuaded the cestui que trust would have had no occasion to be dissatisfied with his conduct.

It is needless to argue that Duncan is bound by the notice communicated to the cashier when he received the certificate and concluded the business with Jaudon.

Without pursuing the subject further, we are satisfied that the decrees below should be

AFFIRMED.

title: Duncan v. Jaudon/Opinion of the Court


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