text:
Rodrigues v. United States

THIS was a case of conflicting land claims in California, and came here on appeal from a decree of the District Court for the Northern District of California, locating, by survey, under the act of Congress of June 14, 1860, a previously confirmed Mexican grant. The case, to understand which, even imperfectly, the reader must refer to a map opposite, was essentially thus:

In 1833, Mexico granted to Gonzales the tract marked A, whose southern boundary was the Creek or Arroyo de Butano. In 1838, the same government, Alvarado being then governor, made a provisional concession to Ramona Sanchez for a league square, describing the tract as 'known by the name of 'Butano,' which tract, in 1848, Governor Micheltorena granted to her, reciting his deed to be the ratification of the provisional title given to her, from the year 1838, to the tract of land granted her, called Buttano, bordering on the rancho of the heirs of the deceased Simeon Castro, on the Serrania (or ridge of mountains) and the sea.' Sanchez had solicited the land in 1837, asking for a league in length and half a league in breadth. In 1842, between the dates last above named, the government granted a tract also to the Simeon Castro just above named. It is described as 'bordering to the east on the Sierra, to the west on the sea, on the north on the rancho of Don Juan Gonzales, and to the south on that of Don Ylaria Buelna.' Reference was made, on the grant of each tract, to the dise nos or maps annexed to the original petitions, but these maps, like most of the dise nos attached to Mexican espedientes, were very rough sketches, and in the present case were of imperfect value, except, perhaps, as indicating, to a greater or less degree, that the grant to Sanchez was between two 'arroyos,' or streams, which might be held to correspond with the streams known on better maps as the Arroyo or Creek Butano, and the Arroyo or Creek de los Frijoles. Undoubtedly upon a tract of about half a league, marked No. 1, between those two streams, and bordering on the sea, Sanchez had settled and resided from 1837. Still, a reference to the map will show that if Castro's north boundary was that called for by his grant, to wit, 'the rancho of Don Juan Gonzales,' then there was no place for Sanchez upon the Butano Creek (from which stream her tract obviously derived its name), in any such way as to border 'on the rancho of the heirs of the deceased Don Simeon Castro, on the Serrania, and on the sea.' The whole tract up to that creek belonged to Castro, and it had, in fact, been confirmed, surveyed, and patented to him, though neither Sanchez nor Rodrigues were parties to any of the proceedings, and these were had prior to the 14th June, 1860, when Congress passed an act authorizing anybody to call into court and to contest any survey afterwards to be made. The difficulty therefore was to bring Castro's tract up north, so as to 'border on the north on the rancho of Don Juan Gonzales,' itself bounded on the south by the Butano Creek, and at the same time give to Sanchez, or rather to Rodrigues, who had succeeded to her rights, a league between the Butano and the tract of Castro. The thing was plainly impossible. However, to give him a league somewhere, and at the same time to leave Castro in enjoyment of all that he claimed and up to the Butano, Rodrigues's tract was located as indicated by the plot No. 2, that is to say, was made a long, narrow tract, north of the Butano and east of Gonzales. This tract was upon the Butano, in part; and it was 'bordering on the rancho of the heirs of the deceased Don Simeon Castro, on the Serrania,' both in part. But the sea; where was it? It touched the tract nowhere, and the tract was not the one which Ramona Sanchez had settled on and occupied, whose general locality is indicated by the plot No. 1. This location, No. 2, was set aside. Rodrigues was next located on the old tract of Sanchez again; it being now assumed that some error had taken place in giving Castro's north boundary; and that while this boundary was really a creek, that creek was not the Butano, but another one, to wit, the Frijoles, south of it. It was among the facts of the case that the land granted to Castro had been originally two tracts, with different names, and that for the north one a concession had issued to a certain Bernal, who surrendered his rights to Castro, by whom a final grant for both under one name was obtained. The original papers, moreover, gave some indications, which, compared by modern surveys of the Pacific coast, tended to show that the tract did not go up to the Butano, and that the northern boundary of one of the tracts was the Frijoles. But everything was more or less obscure. The representatives of Castro had excepted to this location of Rodrigues on No. 1, contending that all up to the Butano was theirs, and that no one else should be put upon it. Superadded to the difficulties just mentioned there was another, to wit, that admitting Rodrigues to be rightly located between the Butano and the Frijoles, there was not enough land between those two creeks, which were small and did not run far back, to give him much more than half a league of land; whereas the grant called for a whole one. What was to be done, in view of the fact that the Butano and the Frijoles were natural boundaries, having unquestionable owners on the north and south of them respectively, and that on the east was the Sierra, or mountain range, of no use to any one, and of less than none, if she had to take care of it, to a woman like Ramona Sanchez, who in her petition represented herself as a 'desamparada mujer,' an unprotected woman, who asked for the land, as un sitio valdio aproposito pa contener en el su ganado y hacer algunos labores pa subvenir a la mantencion de su familia; 'a vacant place, adapted to keep my cattle and carry on some husbandry for the maintenance of my family?' From what quarter was the deficit to come? A third survey was now made; and assuming that as the tract was only 'bordering on the Serrania,' the Government meant that it should not include any considerable part of it, as it would do if the required half league was located east of the half on the sea, the surveyor turned the courses round, and forming an 'elbow' tract, made up the deficit by a survey upon the south part of No. 2, in the manner meant to be indicated by No. 3, and the chain lines upon the map. The south part of No. 2 had, however, been entered on by persons who meant to acquire it from right of pre-emption.

The case was one of obvious difficulty, and Judge Hoffman, the District Judge in California, having examined the whole case with great patience, and with a careful comparison of landmarks, and having stated at length the reasons of his conclusion, finally located the easternmost portion on the ridge, as indicated by No. 4, his decree being thus:

'That said survey (the third) be and the same is hereby set aside and rejected; and that a new survey of the tract herein confirmed be made as follows, viz.: bounding the tract 'on the east by the Sierra; on the west, by the sea; on the south, by the Arroyo de los Frijoles, as far as the same is delineated upon the dise no, and thence by the shortest distance to the Sierra; and on the north by the Arroyo Butano, as far as the same is delineated as a boundary upon the dise no; and thence (crossing that stream) by such line or lines as will include the area of one square league.'

From this decree Rodrigues, representing Sanchez, and claiming to have No. 2, or at least No. 3, took the appeal.

Mr. Gillet, for the appellant:

1. Mexico had conveyed to Castro a tract, having Buelna on the south, and extending to Gonzales' ranch on the north, and this tract has been confirmed, surveyed, and patented: consequently it is finally and conclusively located, so far as this court and the United States are concerned. The Government has no land there now to convey.

2. The claimants in this cause are entitled to one square league of land within the outboundaries of the tract described in their grant as confirmed as they may select, which need not touch all of them.

It was settled in Fremont v. The United States that Fremont might, 'in the form and divisions prescribed by law for surveys in California, embracing the entire grant in one tract,' select the quantity named in the grant anywhere within his outboundaries, which contained about ten times the quantity granted. In The United States v. Fossat, the land was ordered to be 'located at the election of the grantee or his assigns, under the restrictions established for the location and survey of private land claims in California by the executive department of this government.' Under these decisions Rodrigues has a right to claim his league square in such form as he chooses, within his outer boundaries, three of which only were given; and he cannot be compelled so to locate so as to make him include land granted, confirmed, and patented to another, and subject him to litigation and probable, if not certain loss.

The quantity claimed by him was rightly located under these decisions, by the second survey, which was bounded south by a portion of the Castro grant, and was west of the Serrania, and east of the Gonzales grant; which survey was set aside. Rodrigues was not required to go to the sea, nor to the Serrania, nor to the Castro grant. The north was left open to him indefinitely.

3. It may be questioned, too, whether the decree as finally made was not a nullity. The act of 14th July, 1860, under which the power of the District Courts of California to act in this sort of matter arises, is in these words: 'And if, in its opinion, the location and survey are erroneous, it is hereby authorized to set aside and annul the same, or correct and modify it.' The jurisdiction of the court is limited to one of these two acts; and, under the land system of the United States as applied to California, it cannot deprive the party of his right of selecting his location within his 'outer boundaries.' But in this case the court neither affirmed nor set aside the survey, nor did it modify or correct it. It decided, in advance, that the Surveyor-General should make a specified survey for one-half of the quantity in an entirely new locality, and not in conformity with the rights of the claimant. Practically it denied the authority of the cases cited above, that the claimant may locate wherever he chooses within the 'outer boundaries,' and seemed to act upon the idea that the location must touch all of them at once.

This appeal by claimants brings up for revision all the orders and proceedings in the District Court in relation to the survey which were made adversely to it. Justice can be done by this court as it sees fit; and it can set aside the last survey and order a new one, or it can restore, as we ask it to do, the second survey, which gave a full league, lapping upon no one, and which was set aside for a third and fourth survey ordered. Or, it may give us No. 2.

Mr. Willes, who filed a brief of Mr. Stow, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Rodrigues v. United States


text: Talk:Rodrigues v. United States

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

title: Talk:Rodrigues v. United States


text:
Rodrigues v. United States/Opinion of the Court

No class of cases that come before this court are attended with so many and such perplexing difficulties as these locations by survey of confirmed Mexican grants in California. The number of them which we are called upon to decide bears a very heavy disproportion to the other business of the court, and this is unfortunately increasing instead of diminishing. Some idea of the difficulties which surround these cases may be obtained by recurring to the loose and indefinite manner in which the Mexican government made the grants which we are now required judicially to locate. That government attached no value to the lands, and granted it in what to us appears magnificent quantities. Leagues instead of acres were their units of measurement, and when an application was made to the government for a grant, which was always a gratuity, the only question was whether the locality asked for was vacant and was public property. When the grant was made, no surveyor sighted a compass or stretched a chain. Indeed, these instruments were probably not to be had in that region. A sketch, called a dise no, which was rather a map than a plat of the land, was prepared by the applicant. It gave, in a rude and imperfect manner, the shape and general outline of the land desired, with some of the more prominent natural objects noted on it, and a reference to the adjoining tracts owned by individuals, if there were any, or to such other objects as were supposed to constitute the boundaries. Their ideas of the relation of the points of the compass to the objects on the map were very inaccurate; and as these sketches were made by uneducated herdsmen of cattle, it is easy to imagine how imperfect they were. Yet they are now often the most satisfactory, and sometimes the only evidence by which to locate these claims.

These difficulties have rather been increased than diminished by the act of Congress of March 3d, 1851, entitled 'An act to ascertain and settle the private land claims in the State of California,' and the course of proceedings adopted under it by the Board of Commissioners and the courts. Before this board every person having a claim derived from the Mexican government appeared, and in his own way and to the best of his ability established his right. The primary object of the act was to ascertain and separate the public domain from that which had become, under the Mexican government, private property; and hence, in every case, the claimant was plaintiff, or actor, and the United States was defendant. But no other private claimant was made a party to the proceeding, and it may well be supposed, and indeed we know it has often happened, that two or three claims for the same land, or parts of the same, were progressing, pari passu, in the same court, and the land has been confirmed to each claimant, and probably each has received a patent for it. As if aware of the confusion which must follow such proceedings, the act of 1851 provides expressly that neither the final decree of the Board of Commissioners, or of the District or Supreme Court, or any patent to be issued under that act, shall be conclusive against any one but the claimant and the United States. In some instances the board, or the court, would construe the grant and accompanying espediente, and define the boundaries with particularity. In others, they merely confirmed the grant, without any attempt at location. And in still other cases, they would partially define the boundaries, and refer to the espediente for that which was left indefinite.

Then came the act of 1860, which attempted to settle these difficulties in the making of the surveys under those decrees, by permitting, or perhaps we should say compelling (for it is yet to be determined whether every one interested is not bound to come in or be barred), all parties interested in the land covered by the survey, to come in and contest it. Are they permitted to contest the decree under which the survey is made? Or are they limited to denying that the survey conforms to the decree? Or can they only contest the matter where the decree has not definitely located the grant? Many such questions as these will arise under this act, and will require great care and reflection to arrive at sound, safe conclusions. In this proceeding new parties come before the court, and often demonstrate that grants have been confirmed, which necessarily conflict; and, upon a question of the location of a survey, we have all the contests renewed which should have been settled in the question of title.

The case before us is an example, containing as many of the perplexities to which we have alluded as can well exist in one case. Its consideration requires an examination of three different claims, which have each, independently of the other, been carried through the Board of Commissioners and courts, and finally confirmed.

The first of these, that of Gonzales, was the oldest in reference to the date of the grant from Mexico, being made in 1833. No party to the present record seeks to disturb its location, and it is only to be considered here as bounding the present claim. It is for three-fourths of a league, bounded by the sea on the west, and the Butano Creek on the south. The next grant in order of time is that to the present claimants, under Ramona Sanchez. She, in 1837, made application for a half league of land, and the governor issued to her a provisional concession for a league in 1838. Of the location of this we will speak hereafter. Next came Simeon Castro, who, in 1842, obtained from the government a grant of four square leagues, bordering to the east on the Sierra, to the west on the sea, to the north on the rancho of Don Juan Gonzales, and to the south on that of Don Ylaria Buelna.

In the provisional concession of Governor Alvarado, of 19th September, 1838, to Ramona Sanchez, the land is said to be known by the name of Butano, and reference is made to the espediente for its description. This must mean the dise no accompanying her petition. In the final grant to her in 1844, by Micheltorena, which is expressed to be a ratification of the provisional title given her in 1838, it is called the Butano ranch, and is described as bordering on the ranch of the heirs of Simeon Castro, on the Serrania, and on the sea. Now, an examination of the dise no in her espediente, the place of her residence, and her long possession under the grant, with other matters, leave no doubt that if her grant was to bound on the sea she must come between Gonzales and Castro; yet Castro's grant calls for the grant of Gonzales as his northern boundary. This would leave no place for the location of claimant's land, where it seems reasonably certain it was intended to be. How are we to adjust these conflicting claims?

In the first place, we concur with the District Court in holding, that the language of the grant to Castro, which makes his northern boundary the rancho of Gonzales, is a mistake, and that it was only intended to extend north to the Arroyo Frijoles, instead of the Arroyo Butano, which latter is the southern boundary of Gonzales; and that between these two, and bounded by the sea on the west, is the half league petitioned for by Sanchez, constituting the valuable portion of the league granted her by the governor.

It would extend this opinion to an unreasonable length, discussing mere facts and inferences, to go into all the reasons which justify this conclusion. They are stated at length, and with much clearness, in the opinion of Judge Hoffman of the District Court. Among them may be mentioned the fact, that the land granted to Castro originally constituted two independent ranches, for one on which, the most northern, a grant had been previously issued to one Bernal, but which was surrendered by Castro when he took out a new grant including both ranches. On the dise no accompanying his petition these two are laid down, together with other natural objects, corresponding with a survey of the coast since made, so as to show that the tract did not extend so far north. The dise no attached to the original grant to Bernal, the one that was surrendered, shows also that its northern boundary was the Arroyo Frijoles. The dise no found with the petition of Sanchez shows that her grant must have occupied the space between the Arroyo Butano and Arroyo Frijoles. Now, if the Mexican governor really intended that Castro should join Gonzales on the north, there was no place for the grant to Ramona Sanchez, which, he says, is bounded by the sea on the west, and borders on the lands of the heirs of Castro.

It is objected to this location of the grant that it places it on land which has already been confirmed, surveyed, and patented to the representatives of Castro. The answer to this is, that we are called on in this proceeding to determine where the grant to the present claimant ought rightfully to be located, who was not a party to any of the proceedings by which Castro's claim was confirmed, surveyed, or patented, and is not therefore bound or concluded by either the decree, survey, or patent, as expressly enacted by the fifteenth section of the act of 1851. For Castro's survey was made before the act of 1860, and there was no opportunity for this claimant to contest its location. And lastly, it may be added, that the holder of the Castro claim has made himself a party to the present proceeding, and must be bound by its result; and if the errors of his grant and survey are corrected, so that the boundary of both claims shall be rightfully established, no wrong can accrue either to him or claimant.

It has been strenuously urged that if the original half league petitioned for by Sanchez has been correctly located, that the remainder of the league granted her should be taken out of the surplus of the Gonzales grant, instead of extending the grant eastward to the Sierra for quantity. It is sufficient to say that we see no reason for making the distorted survey which this would require, and encroaching upon settlers who have made pre-emptions, merely that claimant may get better land than he does by extending his grant eastward to the mountains, as his grant seems to demand.

On the whole case, without that full and satisfactory conviction of the entire soundness of the decree below, which is desirable, but which is perhaps unattainable in many of these cases, we see no better course than to

AFFIRM THE DECREE.


text: Talk:Rodrigues v. United States/Opinion of the Court


text:
Spain v. Hamilton's Administrator

MILLER and SWAYNE, JJ., dissented in this case.

THIS was a bill in equity, filed in the Circuit Court for the District of Columbia, by S. Spain, guardian of Mrs. McRae, a lunatic, against the administrator of the late James Hamilton, of South Carolina and Texas, extensively known as 'General James Hamilton,' and against Corcoran and Riggs, Hill, and others; the said bill claiming priority in the distribution of a fund in the Treasury of the United States, originally belonging to Hamilton, and arising by the assumption of the United States, in September, 1850, of certain debts of the Republic of Texas, which fund, or the source of it rather, Hamilton, having become embarrassed and insolvent, had assigned in divers ways and to various extents to different persons, parties plaintiff and defendant in this suit.

The case in its outlines as proved, or by agreements made in the case admitted, was essentially this: the leading facts being derived from the stating part of the opinion of the learned Justice (WAYNE, J.) who delivered the judgment of the court.

title: Spain v. Hamilton's Administrator


text: Talk:Spain v. Hamilton's Administrator

title: Talk:Spain v. Hamilton's Administrator


text:
Spain v. Hamilton's Administrator/Opinion of the Court

The Republic of Texas, prior to its annexation to the United States, had issued a large number of bonds, which were due, unpaid, and the subject of speculation and purchase in different parts of the Union. Hamilton, who held a considerable amount of the bonds, had become familiar with the affairs of Texas, and especially with all that related to its debts, and was anticipating that if that republic was annexed to the United States, those debts would all be paid. He became, accordingly, an active and energetic advocate of annexation. The trustees of the Bank of the United States also owned a large amount of the bonds. But these had been pledged, in a greatly depreciated state, to a certain Wetmore, one of the defendants, as security for a loan which he had made to the bank. If, however, the bonds should be paid, enough would be obtained to pay the debt due by the bank to Wetmore, and leave a large surplus remaining. And Hamilton, being already the agent of some of the bondholders, and desirous to have the agency for others, applied to the trustees of the bank to represent them. On the 16th of October, 1845, the trustees accordingly wrote Hamilton a letter, in which, adverting to his knowledge of the fact that they had 'now only a contingent, resulting interest in the bonds, dependent upon the payment by us of the amount for which they are now held by Mr. Wetmore in pledge,' they say as follows:

'If you will devote your best efforts to securing the recognition and payment of said claims, and your effort shall be successful, then we agree to allow you a commission of 10 per cent. on whatever sum or amount of our claim, through your instrumentality, shall be recognized and paid over to us, over and above the amount for which the said bonds are pledged. The limitation of time during which this agreement on our part can with certainty be continued is only to the 20th of March next ensuing; but we are willing, with the concurrence of Mr. Wetmore, or in case we should then or sooner obtain the entire control of those bonds and securities now in his hands, to extend the said time to two years from this date.'

The 20th of March, the first limitation, passed without the recognition by Texas of its bonds, and without the payment of the debt due by the bank to Wetmore. Of course Wetmore's legal right to retain the Texas bonds was continued, and Hamilton was left without any claim upon the bank for commission or compensation under the agreement.

On the 16th September, 1850, however, the trustees wrote to Wetmore a letter, reciting that Hamilton had rendered his services, as he had agreed, 'so far as in his power, without however realizing the money;' and then referring to an act of Congress recently passed for the payment, in part, of the Texas bonds, among which the trustees had been 'informed by General Hamilton, are the bonds held by them,' the letter goes on as follows:

'The trustees, at the particular request of General Hamilton, have instructed me to say to you, if they should not have previously redeemed the bonds, that upon the final adjustment and payment of the said bonds first above mentioned, either by the Treasury of the United States, in the manner provided for in said act of Congress on otherwise, to the satisfaction of the said trustees, pursuant to their said agreement with General Hamilton, you will be pleased to hold, subject to the order of General James Hamilton, one-tenth of any sum over and above the amount of your claim against the said bonds.'

This claim of Wetmore, originally 50,000 sterling, had, at the date of this letter, been reduced by payments from the bank to $55,493.24, with interest from December 9th, 1842.

Upon the bottom of this letter of 16th September, 1850, Wetmore, on presentation of the same to him, wrote as follows:

'In conformity with the above order, I will, when received by me, pay over to James Hamilton, or to his order, the tenth of the money or stock that may be received either at Austin, Texas, or at Washington, D. C., on the above certificates, subject, however, to the conditions of the above order, and to a lien I hold by assignment for $2500, which sum I loaned General Hamilton in August last, with interest.

W. S. WETMORE.'

Between the dates of the letters to Hamilton and that to Wetmore-that is to say, on the 12th February, 1850,-Hamilton, who, as former trustee of Mrs. McRae already mentioned, had become indebted to her estate, and was now under arrest for the debt, executed a paper to her succeeding trustee or committee, Spain, the complainant, which purported to secure this debt. It 'transferred, assigned and made over' to Spain, committee, &c.,

'All my right and claim for any commission or compensation for services rendered or to be rendered by me to any and every other person and body corporate in the prosecution of any claim or claims for any and every such person and body corporate on the government of Texas, subject to any previous assignment thereof.'

As illustrating the special temper and character of Hamilton, referred to by the court and indicated in the record, it may be mentioned that his debt to Mrs. McRae had arisen from a misappropriation of the funds of her estate in his hands as trustee. 'Consulting,' as his answer said, 'the suggestions rather of a sanguine temperament than the admonitions of experience,' he had invested about $50,000 of her property 'in one of the finest and most promising sugar estates in Texas, supposed to be an investment surpassed by none in the United States;' which, in the end, however, the answer proceeded to state, 'yielded more sap than sugar,' and being sold on first incumbrances, did not bring enough to pay them.

When Hamilton proposed to give the transfer, he made no mention of any Texas bondholders whom he represented, nor did he state that the bonds of the bank were held in pledge by Wetmore; nor did Spain-or rather the person who was acting for him (the arrangement having been made by a third party in his behalf),-make the least inquiry, so far as appeared, from Hamilton, as to any of these things, nor was notice ever given to the bank about it. It did not appear that Spain knew anything about it until long after.

This was the claim for which priority on the fund was asserted by the bill filed. The opposing claims were as follows:

1. A claim of Wetmore, himself, to the extent of $2500, for money which, by an agreed statement in the case, it was conceded that he had lent to Hamilton on the 30th August, 1850, being the debt referred to in the paper mentioned ante, p. 607, signed by him at the bottom of the letter from the trustees to him of 16th September, 1850, and for which, as he there states, he had taken an assignment at the time.

2. A claim of Corcoran & Riggs, of Washington. Hamilton needing money in that city had applied to these persons, bankers there, for $25,000. They advanced the sum to him on the 21st September, 1850, taking an order from him on Wetmore for $30,000, 'to be paid out of the first moneys received after your claims shall have been satisfied;' which order Corcoran & Riggs immediately transmitted to Wetmore, who, on the 24th of the same month, 'accepted' it.

3. A claim by the estate of one Hill, made partly under an original claim, and partly by subrogation to the rights of James Robb & Co. As far back as 1848, Hamilton, reciting that the trustees of the Bank of the United States had agreed to pay him a commission of 10 per cent. on somewhere about a million of dollars, &c., assigned one-half of 'all his interest and property in the commission,' in trust for Hill, a creditor and friend. In regard to this, it did not appear that notice had been given to any one, and the history of the whole transaction, Hill being dead, was not very clear. The claim, so far as it arose from substitution to a claim of James Robb & Co., was plainer, and thus: Hamilton owing Robb a large sum, made, on the 30th April, 1851, a transfer of the 'order' of 16th September, 1850, by the trustees of the bank on Wetmore, and by him accepted; the order being subject, as was stated in the transfer, to the claim of Wetmore, himself, for $2500, and to that of Corcoran & Riggs for $30,000. Robb wrote immediately to Wetmore, saying to him:

'We have taken an assignment from General James Hamilton of his residuary interest in an order, &c., of the Bank of the United States, addressed to you, dated September 16th, 1850. Be pleased to make a note of this assignment, a notarial copy of which we will send to you, and hold the claim subject to our order, or that of W. Hoge & Co.'This letter and the notarial copy were received by Wetmore, who at once acknowledged their receipt to W. Hoge & Co. The history of the substitution of Hill is told by the following letter, which was duly received and preserved by Wetmore.

NEW ORLEANS, 28th May, 1853.

MY DEAR SIR: Having confided in Gen'l Hamilton's promises until our patience became exhausted with their continued violation, we commenced suit, and obtained judgment and seizure against sundry securities pledged, including the residuary interest on the Texas claim you hold, after the payment of the advances made by yourself and Mr. Corcoran. Mr. H. R. W. Hill, of this city, who is a large creditor of General Hamilton, in order to secure the margin of securities covered by our judgment and seizure, has arranged to liquidate our claim against Hamilton, and we shall therefore subrogate him, Mr. Hill, to our interest in the Texas debt represented by you.

Very respectfully, your ob't serv't,

JAMES ROBB.

W. S. WETMORE.

On the day previous to the date of this letter, Hamilton had executed to Hill, he present and accepting, an assignment of the order previously conveyed to Robb, and now by him surrendered.

So far as respected these three claims, in their common outlines alike, and there being nothing to show that the claimants in any one of them had the least knowledge of the paper executed by Hamilton to Spain, any more than Spain had of what was going on between them.

The claim of Corcoran & Riggs was, however, embarrassed by evidence not common to the other two claims, and was the subject in the bill of a charge of usury. At the time the money was advanced, a paper, drawn by Hamilton and in his writing, was executed by him and by Corcoran for his firm, as follows:

[Private and confidential.]

The following memorandum agreement witnesseth: That Messrs. Corcoran & Riggs have agreed to loan James Hamilton, on a certain order of the trustees of the Bank of the United States on William Wetmore, Esq., of New York, $25,000, at an interest of 6 p. c., reimbursable on the payment of its public debt, on his order on William Wetmore for $30,000.

In case J. Hamilton does not procure Messrs. Corcoran & Riggs the agency at Washington for the settlement of said debt, then J. Hamilton is to allow a commission on the loan of $2000, to be added to the interest of 6 p. c. The balance of the said $30,000 is to be credited to J. Hamilton's account on final settlement.

This contract is not in prejudice of a liberal remuneration which Messrs. Corcoran & Riggs have agreed to allow J. Hamilton in the event of procuring said agency.

J. HAMILTON.

CORCORAN & RIGGS.

WASHINGTON, Sept. 21, 1850.

As to this paper, the answer of Corcoran said that it was executed at 'Hamilton's instance and request, and after the whole matter of the said loan had been fully consummated;' that, neither suspecting nor conscious of any illegal motive or stipulation, they readily signed the said memorandum without noticing its terms, or having their attention at all drawn to the artful manner in which it appears to be expressed; that even after the controversies involved in this suit had arisen, they had readily furnished the copy of said memorandum upon which the said charge of usury was based, and that the loan was entered on their books as a loan of $25,000, at 6 p. c. As respected the proposed agency, their answer said as follows:

'The said Hamilton had proposed to procure for defendants the agency at Washington for the settlement of the Texas debt, stipulating at the same time that he should have a 'liberal compensation' from them should he succeed in so doing, as it was supposed that such agency would be profitable to these defendants in their business of bankers. In order to accomplish this object, of which the said Hamilton appeared to be very confident, he represented that it would be necessary for him to go to Texas, provided with the influence of certain persons, who were in friendly relations with these defendants and disposed to oblige them; and to induce them to exert themselves in the premises, and to confide in his assurances that he could and would procure such agency, he proposed that he would pay to them the sum of $2000 if he failed in his undertaking, which, on the other hand, if he succeeded, he should have from them a 'liberal compensation.' It was this matter, and this only, which the said Hamilton represented it expedient to keep 'private and confidential,' from motives entirely personal to himself. These defendants accordingly did put themselves to considerable inconvenience in providing the said Hamilton with the means of procuring said agency, in the profits of which he was to participate. But they repeat that the said arrangement was altogether distinct from the said loan, and was in its nature wholly contingent, and was no part of the consideration of the said loan, which was at 6 per cent. interest only. And that the said Hamilton himself so considered it, is shown by the manner in which he refers to it in the original letter from him to them, now produced.'

This letter expressed a wish to make some arrangement in regard to the security of the loan of $25,000, 'preserving our contingent contract inviolate in good faith.'

Some reference to dates, in connection with the public history of Texas and of its admission into the Union, was given by the learned judge who delivered the opinion, and this, with a statement of the parties' knowledge and proceedings in connection therewith, will give a perfectly full view of the case.

On the 1st March, 1845, Congress passed an act for the admission of Texas into the Union, and an ordinance having been passed July 4th of that year, accepting the conditions proposed by Congress; a joint resolution was passed the same year, declaring Texas admitted. On the 20th March, 1848, the State of Texas itself passed an 'act for ascertaining the debts of the late republic,' and with a view, as was generally understood, of their being ultimately assumed by the Federal Government. This act required creditors to file their bonds with the auditor and controller of the State. Two years afterwards, that is to say, September 9, 1850, Congress passed an act, declaring that it would issue for Texas $10,000,000 in stock bonds; provided, however, that no more than a portion of the fund should be issued until the creditors of Texas holding its bonds and certificates should file in the Treasury releases of all claims against the United States on their account. It was prescribed that the secretary should give notice, by advertisement for ninety days, of the time for payment of the Texas bonds on which releases had been made, and that no payment would be made on those which had not been presented thirty days before the time appointed for payment. All the legislation and government's action upon it to consummate its intention was known, of course, by persons interested in the payment of Texas bonds, and as appeared by the complainant's bill, were known to the appellant, Spain.

Spain did not take steps to secure his bonds until the 18th June, 1851. Being then in Galveston, he at that time, and as his bill stated, 'with a view to make his assignment effectual, and to fasten notice thereof upon the government of Texas,' caused a certified copy of the assignment to him, addressed to the Treasurer of Texas at Austin, its capital, to be deposited in the post-office. Mr. May, also, a connection and friend of Mrs. McRae, acting for Spain, prior to the 9th September, 1851, and in accordance with public notice given 22d March of that year to the creditors of Texas, 'notified to the Secretary of the Treasury of the United States the transfer to Spain,' with a view to prevent the payment of the claim so transferred to anybody other than the said Spain. Both these notices were received at the departments to which they were sent.

Under the act of the Texas legislature Wetmore filed his bonds, on the 9th of November, 1849, and getting certificates of debt, which he lodged at the earliest day with the Treasurer of the United States. The original Texas bonds had been delivered to him by the bank when he made his loan, and had always remained in his possession and control. And a portion of his debt being still unpaid, the certificates issued by the United States in lieu of the Texas bonds, were made out to him and in his name; he having stated, however, in an affidavit filed at the Treasury in Washington, on which they were issued, that as to one-tenth he had no claim except for $2500, and stated also the exact history of the orders of Corcoran & Riggs, and of Robb, with the substitution of Hill, upon him. On the 11th April, 1854 (subsequently to the certificates being thus made out), the bank paid the balance of its debt; and Wetmore immediately transferred to them nine-tenths of the new or substituted certificates. The remaining one-tenth, amounting to $72,505.12, was still in the Treasury of the United States, and it was this which was the subject of dispute for priority; the sum being large enough to pay Wetmore, Corcoran & Riggs, and Hill as substituted to Robb, but not large enough to pay them and Spain also.

It was agreed by counsel 'that for the purpose of ascertaining the several parties to this controversy, and the origin and character of the fund claimed by them, that the fund now in the Treasury of the United States, amounting to $72,505.12, became due and payable to Hamilton under an agreement entered into by the Bank of the United States, which is evidenced by the two letters of the trustees of the 16th October, 1845, to Hamilton, and 16th September, 1850, to Wetmore.' Several other agreements were made, the substance of which is presented in the case as already stated. Good faith and conformity to the instructions of the letter to Wetmore were considered by the court, in stating the facts of the case, to be conceded to him in accepting Hamilton's order in favor of Corcoran & Riggs; and there was no evidence-but on the other hand the contrary of it-that either Wetmore, Corcoran & Riggs, Robb or Hill had knowledge of the paper executed 12th February, 1850, to Spain, till 10th May, 1856 (about the time the bill was filed), when Wetmore heard of it.

The court below held that the letter of the trustees to Hamilton (the letter of 16th October, 1845), gave him no lien on the Texas bonds for his commissions, but 'only a personal claim against the bank for his ten per cent.;' that, accordingly, 'the notice of the complainant to Texas was void;' that the legal title of the one-tenth under mortgage, and the letter of the trustees to Wetmore of the 9th of September, 1850, with the assent, and at the request of Hamilton, was in Wetmore, and was not intended to be reconveyed; that the condition in the letter to Wetmore, by which any reverter on payment of the mortgage debt could be claimed, was for the benefit of the bank only; and that by accepting the deed of 11th April, 1854, for the nine-tenths, they renounced any such benefit as to the remaining one-tenth; that from the 16th September, 1860, Wetmore was trustee to pay Hamilton's debts. The court decreed that they should be paid in this order:

1. Wetmore's own $2500 with interest from date of loan.

2. Corcoran & Riggs's $30,000,-this sum being less than the $25,000 lent with interest on it.

3. Hill, assignee of Robb, his debt with interest.

Any balance was ordered to be reported into court.

It was from this decree that the appeal came to the Supreme Court.

Messrs. Brent and Bradley, for Spain, the appellant: By the terms of the bank's letter to Wetmore, the direction to 'hold subject to the order of General James Hamilton,' &c., was made expressly subject to the proviso, 'if the trustees have not previously (i. e. previously to the 'final adjustment and payment') redeemed the bonds,' and Wetmore's acceptance was subject to the conditions of the order. Now the trustee did previously redeem the bonds, and thus carried away the entire basis on which Wetmore's 'acceptance' of the order of Corcoran & Riggs, and of the notification by Robb, was based. The payment of the debt determined the special title of the pawnee. The bonds became the property of the bank. All that Wetmore did to keep the one-tenth in his own hands he did of his own head and to protect his $2500, which he could not otherwise secure. Of what use, then, were notices to Wetmore? If notices to any one were obligatory it was to the bank. It is not pretended that any one of the appellees gave notice to it or to its trustee.

The assignment of 1848 to Hill was never notified even to Wetmore, and if it had been the notice would have been valueless, since the assignment was itself merged by Hill's acceptance of the subsequent assignment to Robb. Each one of the assignments set up is, therefore, subsequent to the meritorious and interesting one in favor of Mrs. McRae. It is no answer to our claim to say that by the terms of our assignment we took subject to 'any previous assignment,' for there was no previous 'assignment.' Equitable assignees take in order of time, unless where by superior diligence a junior assignee has secured an advantage. When Hamilton made the assignment to Spain, he had assigned to nobody but Hill, which assignment is not now in our way, having been merged, if, indeed, it existed. We neither asked about other assignments, nor did he speak of them, for none others then existed. There is no evidence that any were contemplated, and if they were it was unimportant, since they would be subsequent ones, and subject to ours, as ours had been to 'any previous.'

The debtor was, first, the State of Texas, and subsequently the United States. To both notice was given. Here were no laches, but on the contrary, in both cases, diligence. Even admitting Wetmore to hold a legal title, we deny that the subsequent assignees have a prior equity, unless Spain was guilty of laches in giving notice to Wetmore, after the former had knowledge where this legal title was; and this is not shown. A prior assignee is not postponed by a failure to give notice, unless guilty of fraud or of gross neglect. The subsequent assignee takes subject to the prior equities.

As to Wetmore's claim for $2500, he notified it to no one. The order of the bank to him was to accept in one way: he accepted in another, for his own benefit; and he gives no notice to the bank of his departure from the terms on which they had asked him to accept. He has notice, at any rate, of our older claim, prior to his getting the money from the United States, and is bound to postpone himself.

As to Corcoran & Riggs, their claim is usurious on its face; and even supposing Spain to be postponed by their prior notice to Wetmore, he may drive them out entirely by the illegality of their loan. The right to object is not personal to the borrower. Suppose Corcoran & Riggs had filed a cross-bill here. Could we not object? Can they, then, vary our rights by assuming the position of a defendant, and asking only to be let alone? In Scott v. Nesbitt, which may be thought to oppose our view, the party sought to vacate a judgment on the usurious debt. We do not desire to destroy any legal advantage obtained by these persons. It is they who seek to postpone our prior equity.

So far, therefore, as Wetmore, or, indeed, anybody else, sets up other assignments as entitled to priority over ours, they become actors, and the court must decide on priorities to the fund. We cannot assent to the proposition, that because Wetmore intends to pay a usurious claim to one who declines to file a cross-bill for fear of the plea of usury, and through Wetmore and the grounds taken in his answer becomes an actor and claimant of the fund, therefore the holder of that claim is not an actor, as he clearly would be if Wetmore refused to pay over to him and he sought relief. On a bill to settle priorities the decree is a judgment in favor of each incumbrancer.

Mr. Carlisle, contra: On the 12th February, 1850, the day when all the rights of the complainant accrued, whatever they were, Hamilton himself had only a personal contract upon which he might sue, if within the time limited thereby he should become entitled to claim compensation of the trustees of the bank. Of consequence, this contract was all that it was legally possible to assign; so that the assignee would have the right to sue in the name of Hamilton, for his (the assignee's) use, on that contract, when, by its terms, Hamilton himself might sue. The subsequent paper, of 16th September, 1850, under which these appellees claim, recapitulating the terms of the agreement of 1845, without any variation from them, referred to it as a personal contract and not as a lien specifically on the fund. In this fund, created in September, 1850, the complainant could have had no interest on the 12th of February previous, the date of the assignment to him, for the fund did not then exist. Indeed the paper does not purport to assign any interest in any specific fund, but only the claim, as general creditor, which he might have against the trustees of the bank for services rendered. It is not possible to convert a personal contract into the pledge of a particular fund.

2. But if the complainant has a specific assignment of the fund, and may sue upon it here, he is postponed to the appellees, Wetmore, Corcoran & Riggs, and Hill.

At the date of the complainant's assignment Hamilton's only claim to the fund rested on the letter to him, of October 16, 1845. The existence of these bonds, and that they were held by Wetmore, and that the interest of the bank was only 'contingent and resulting, dependent upon the payment of the amount for which they are now held by Mr. Wetmore,' was expressly notified to him in that paper, and his previous knowledge is there imputed to him. The complainant claims to stand in his place, and before us, upon that paper. Therefore, it was plainly his duty to give notice to Wetmore. If he had done so, we should have been safe from any fraud. The obligation of the equitable assignee in cases like the present is set forth in The Leading Cases in Equity, where it is said that 'in order that third parties may be bound, it is necessary with regard to a chose in action to do all that can be done to perfect the assignment;' and again, that 'if the assignee of a chose in action, or of a trust estate in personalty does not perfect his title by giving notice of the assignment to the debtor or trustees, a subsequent purchaser or incumbrancer giving notice of his assignment will thereby acquire priority.'

No such notice from Spain or from any one is pretended, either before or after our assignments, except the notice of this bill, filed in 1856, nearly six years after out rights accrued. Spain's laches every way were great. We need not recapitulate the evidence, as the court, we are sure, will perceive and enforce our view of the case, on the facts as stated in the case. Judson v. Corcoran, in this court, is in point.

3. The question of usury as regards Corcoran and Riggs, is a question of fact, of intent. If neither party intend it, but act bon a fide and innocently, the law will not infer a corrupt agreement.

The complainant, unable to deny the well-known rule, that a third person complaining in equity of usury can only have relief for the excess of the real debt, seeks to avoid it by a supposed distinction in cases of several claimants upon a fund, the question being as to priority of equities. But there is no foundation for the distinction. It is believed that in all cases in equity the rule is unyielding. Scott v. Nesbit is to the point. Even in an action of trover, Lord Mansfield refused to allow the plaintiff to recover his goods, which had been pledged on a usurious agreement, because he had not offered to pay the real debt and legal interest.

It is settled, moreover, that, notwithstanding the statute declares all usurious securities absolutely void, this is by way of defence to a suit founded on such security. To this extent the rule applies to the holder of a negotiable promissory note (the most favored in this respect), when he sues on the infected instrument; because the defence is provided absolutely by the statute. The policy of the statute was to protect the necessitous borrower; but, by legal reasoning, it has been extended to his legal representatives; yet only as defence. If the assignee of the borrower sue in ejectment, and the purchaser under the usurious mortgage is defendant (at least not being particeps criminis), the instrument under which the defendant claims is not void; for the fact of usury is not used in such case as a defence, but as a weapon of attack, which was not the intent of the statute, and would be against conscience. So that, even at law, the imperative terms of the statute only make the usurious securities void, sub modo; the equitable rule being applied even by courts of law, whenever, consistently with technical reasons, it can be done.

Mr. Justice WAYNE delivered the opinion of the court.

He stated facts at length; and after quoting the letters of the bank to Hamilton of 16th October, 1845, and to Wetmore of 16th September, 1850, and Wetmore's indorsement on it,-which latter, of the 16th September, his honor observed, 'is a substantial repetition of the conditions upon the performance of which the bank would give to Hamilton 10 per centum, with a full acknowledgment that he had rendered such services as entitled him to have it,'-proceeded as follows:

Viewing the case as the parties have chosen to make it by agreement, we must consider it differently from what we would otherwise have done, and will consider, as the purpose of the suit is declared to be to settle priorities between the parties to it, what are the rights of the complainant in that particular, and how the priority which he claims has been affected by his own remissness and negligence.

It must be remembered that he rests his claim upon a paper executed by Hamilton of all his 'right and claim for any commission or compensation for services rendered or to be rendered by him to any person and body corporate, in the prosecution of any claim or claims for any and every person and persons and body corporate, on the said government of Texas, subject to any previous assignment thereof, which Hamilton might have made before.'

Mr. Spain, the complainant, is in a court of equity asking a priority of payment over other creditors, out of a fund held in trust by Mr. Wetmore for the benefit of Hamilton, who became assignee of Hamilton on his acceptance in the discharge of his duties of the relation to them as the trustee of the fund. No inquiry was made by the complainant, as he had a right to make, when he accepted the paper from Hamilton, as to who were the persons or body corporate from whom he anticipated commissions or compensation for the successful prosecution of their claims upon Texas. He certainly had the right to make such an inquiry from Hamilton, and in the situation in which Hamilton and himself were at the moment, could either have coerced at least such a reply as would have enabled him to protect himself by notices of his interest in the matter, knowing as he then did that Hamilton was an insolvent man, and being admonished by the paper itself that the rights which Hamilton was professing to give him were but secondary to the right of other assigness of Hamilton, as the paper declares they were. Instead of any such care and caution, he accepted the paper, or assignment as it is called, not in any way guarding himself from the power which Hamilton might exercise to sell and borrow money upon the same fund from innocent parties, without any possibility of the buyer or lender having any knowledge of the claim which Mr. Spain now makes upon the fund in controversy. Mr. Spain neither asked for information to secure his own rights, or to protect the rights of others from such a result. And it was not made until some time after Mr. Wetmore had accepted Hamilton's draft in favor of Corcoran & Riggs, that Mr. Spain thought of giving a notice of any kind of his claim upon the fund. He then says in his bill, that to make his assignment effectual, and to fasten notice of it upon the government of Texas, that he had sent through the post-office at Galveston to the treasurer of Texas a copy of Hamilton's assignment to him, which appears to have been received. It was dated the 8th June, 1851. If Mr. Spain had been vigilant in his inquiries as to what had been done by Texas for the payment of its debts, he would have learned by inquiries, while he was at Galveston, that Wetmore, as the assignee of the bank's Texas bonds, had, two years before the date of his notice, filed those bonds, as the act of Texas directed it to be done, with the treasurer and comptroller of Texas. But if that had not been done by Mr. Wetmore, and the notice of the complainant had come to his knowledge, it could not in any way invalidate the loan of Corcoran & Riggs, or his acceptance of Hamilton's order in their favor, which had been made prior to the date of the letter from the complainant, transmitting to the treasurer of Texas a copy of the paper under which he claimed to be the assignee of Hamilton.

The same may be said of the paper given by Mr. May, on the 9th September, 1851, to Mr. Corwin, the Secretary of the Treasury, which was intended to prevent the payment of the fund to any other person than Mr. Spain. No one will doubt that such a paper for that purpose was written and placed by him in the Treasury Department; but it cannot in any regard affect the claim of Corcoran & Riggs upon the fund, as their dealings with Hamilton, and Wetmore's acceptance of Hamilton's order in their favor, took place twelve months before, on the 21st and 24th September, 1850. The paper left by Mr. May with the secretary cannot be presumed to have been made known to Wetmore to affect his rights, as the legal holder and trustee of Hamilton, to the fund, or those of Robb & Co., or those of Hill, as it has not been presented and proved in the manner that the law requires all papers or documents to be, from either of the departments of the Government, before they can be received as testimony in courts of justice. In fact the complainant, Mr. Spain, neither made inquiries to protect himself or to secure others from being imposed upon by Hamilton. He knew, as his bill shows, all the proceedings of this Government for the payment of the Texas debt, and where to go for information, and was advised of the notice given by the Secretary of the Treasury to the holders of Texas bonds as early as March, 1851. Instead of acting promptly and with vigilance, he delays all notice to Wetmore for more than six years; until he brought his bill. The complainant says, in excuse for not having given earlier notice to Wetmore, that he was ignorant of the existence or terms of the papers connecting Hamilton and Wetmore with the fund in controversy. The answer to that is, that he should have made inquiries, and should not have left himself ignorant, as he did, when he took the paper from Hamilton upon which he asks for a priority of payment. On the contrary, Wetmore and Corcoran & Riggs used every precaution to protect themselves before the latter lent to Hamilton $25,000, and also to warn others who might come afterwards as dealers in the fund with Hamilton.

No creditor has a right to take a blind assignment from his debtor upon the latter's anticipation of becoming interested in a particular fund to be realized thereafter, without making such inquiries as the occasion may require, and then to ask in equity for a priority in the payment of his debt merely from the precedency in date of his assignment over those who became subsequently assignees for part of the same fund for actual value given to the cestui que trust of the fund. It is our opinion that Wetmore, Corcoran & Riggs, and Hill are meritorious creditors of Hamilton, and that their claims upon the fund were acquired without notice or the possibility of their having had it, when they became the assignees of Hamilton, and that the complainant in this case has no priority of payment out of the fund in consequence of remissness in not having given notice of his claim as the assignee of Hamilton.

This case has been examined by us very fully and with every regard for the arguments of the able counsel representing the complainant. We think it to be clearly within the principles decided by this court in Judson v. Corcoran It is clearly within the cases which have been so fully and ably reported, of Dearee v. Hall, and Leveridge v. Cooper, in 3 Russell. The interests of Wetmore, Corcoran & Riggs, and Hill in the fund, are valid and operative as assignments. To constitute an assignment of a debt or other chose in action, in equity, no particular form is necessary. A draft drawn by A. or B. in favor of C. for a valuable consideration, amounts to a valid assignment to C. of so much of the funds of A. in the hands of B. Any order, writing, or act which makes an appropriation of a fund, amounts to an equitable assignment of the fund. The reason is, that the fund being a matter not assignable at law, nor capable of manual possession, an appropriation of it is all that the nature of the case admits of, and therefore it is held good in a court of equity. As the assignee is generally entitled to all the remedies of the assignor, so he is subject to all the equities between the assignor and his debtor. But in order to perfect his title against the debtor it is indispensable that the assignee should immediately give notice of the assignment to the debtor, for otherwise a priority of right may be obtained by a subsequent assignee, or the debt may be discharged by a payment to the assignee before such notice. No cases can be cited, or were in conflict with those upon which we rely for the judgment which we are about to give in this case.

In respect to the question of usury alleged by the complainant against Corcoran & Riggs, to affect their right to recover their loan to Hamilton, we do not deem it necessary to follow the arguments of counsel. The complainant, as a suitor in equity, could only have relief for the excess over the real debt, as he admits it to have been a loan by Corcoran & Riggs to Hamilton of $25,000, in the way and at the date mentioned in their answer to his bill. The application of the rule in this case cannot be denied, because the complainant alleges his bill to be for claims upon a fund by several parties contesting their equities to a priority of payment.

The charge of usury against Corcoran & Riggs depends altogether upon a paper marked 'private and confidential,' bearing date the 21st of September, 1850, the day that Hamilton drew his order upon Wetmore in favor of that firm. The paper is admitted to be in the handwriting of Hamilton, and is signed by himself and by Mr. Corcoran for his firm. Though drawn and signed on the day that the loan was made, the reading of it shows that it had no connection with the arrangement between Hamilton and Corcoran & Riggs for lending the money. The paper is begun by a recital of the loan at an interest of six per cent., and it proceeds to say, without any mention of the subject, that he, Hamilton, in case of his not procuring for Corcoran & Riggs the agency at Washington for the settlement of the Texas debt, will allow a commission on the loan of two thousand dollars, to be added to the interest of six per cent. Not that he would pay, but that he would allow, and that the balance of the $30,000 was to be credited to his account on a final settlement of the same, concluding the paper with a provision characteristic of Hamilton, as this record shows, that the 'contract was not to be in prejudice of a liberal remuneration which Corcoran & Riggs have agreed to allow him in the event of his procuring for them the agency for the settlement of the Texas debt.' It must be observed that Hamilton in this paper promises nothing absolutely, though he secures or stipulates for a payment to himself by Corcoran & Riggs of a liberal remuneration in the event of his getting for them the agency. It cannot fail to be remarked, in reading the paper, that Hamilton is left by it either to get the agency for Corcoran & Riggs or not to do so, as it may be his interest to do, and that he is not obliged by words of any force amounting to a contract to pay the two thousand dollars which he says shall be added to the interest of six per cent. upon the loan. It would be difficult, indeed, to find anything like a paper of this kind in any attempt by parties to a usurious loan. From the whole of it, it is certain that no part of it contains a promise to pay anything absolutely in addition to the loan, and the six per cent. interest for which it stipulates. The payment of anything additional depends also upon a contingency, and not upon any happening of a certain event, which of itself would be deemed insufficient to make a loan usurious. No part of the paper, taken in connection with all the circumstances of the case, could be used as a predicate from which it could be affirmed that the commission to be allowed by Hamilton was an intentional device between himself and Mr. Corcoran to make the loan to the former usurious. The paper is uncertain and so curious that if any conjecture can be allowed as to the temper and character of Hamilton, as they are shown by the record, it may be supposed to have been intended by him to allure Mr. Corcoran into the belief that Hamilton's influences in Texas were so prominent that he was willing on his part to promise to forfeit the sum of $2000, if Corcoran & Riggs would make him other advances to aid him in procuring for them the agency. Whatever may have been the motives of Hamilton for drawing such a paper, we cannot infer from the paper itself and all the circumstances attending it, that it was designed by those who signed it as a device to make the contract for a loan usurious. Mr. Corcoran, however, by having incautiously signed it, has subjected himself, in the pleadings and argument of the cause, without there having been any foundation for such a charge, to a professional imputation of having intended to make a usurious loan.

We have discussed this case in all the relations which its circumstances, proofs and admissions place the parties with each other. Mr. Spain, as the representative of Mrs. McRae, claims a priority of payment out of the fund on the ground that it had been assigned to him for that purpose. If the paper, as executed by Hamilton and received by Mr. Spain, could by the force of its provisions have the efficacy of an assignment, there would be some coloring for the claim of a priority of payment. But it has not, for it is expressly declared that it was made subject to other assignments which had been previously made. To whom or for what amounts is not said. Hamilton then executed the paper subject to them, and Mr. Spain so received it, without knowing that he could have any interest in the fund. Had they been otherwise, Mr. Spain's claim of priority would have been lost by his omission to make those inquiries suited to the occasion, and he leaving it in the power of Hamilton to make assignments to others of parts of the same fund. There is no doubt that he did so to Corcoran & Riggs, to Robb & Co., and to Hill, without either of them having had notice of any dealing between Hamilton and Spain. They have the right to a priority of payment out of the fund, and we affirm the decree of the Circuit Court with costs.

CASE REMANDED.

Messrs. Justices MILLER and SWAYNE dissented.


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Gray v. Brignardello

2. A decree nunc pro tunc is always admissible where a decree was ordered or intended to be entered, and was omitted to be entered only by the inadvertence of the court; but a decree which was not actually meant to be made in a final form, cannot be entered in that shape nunc pro tunc in order to give validity to an act done by a judicial officer under a supposition that the decree was final instead of interlocutory.

IN July, 1853, Franklin C. Gray, of California, died in the State of New York, leaving there a widow, Matilda, and an infant daughter, Franklina, and property held in his name, in California, appraised at $237,000. In January, 1854, administration was granted to J. C. Palmer and C. J. Eaton. In February, 1854, William H. Gray, a brother of deceased, filed a bill in chancery in one of the State courts of California, to wit, the District Court of the Fourth Judicial District, against Palmer, Eaton, the widow, and infant daughter (service on the infant, then residing with her mother in Brooklyn, New York, being made by advertisement in a California newspaper, and one H. S. Foote being appointed by the court her guardian ad litem), alleging a partnership between him and the deceased in his lifetime. In April, 1855, Eaton, who had now resigned his administratorship, commenced a similar suit against his late co-administrator Palmer, but not at this time making William H. Gray a party. In October, 1855, these two suits were consolidated by consent of parties, and on the 27th October, 1855, a decree was entered by consent, the fact of consent, however, not being stated in the decree itself. The decree adjudged that a partnership existed between Eaton and the deceased, and a different partnership between William H. Gray and the deceased, each partnership embracing all business and all property, real and personal, of the parties, and decided that the partnership of William H. Gray was subject to that of Eaton; it further settled the proportionate interest of each partner, and directed an account of the partnership transactions to be taken by a certain James D. Thornton, who was appointed a commissioner for that purpose, and that he should make a report of his actings and doings. The decree proceeded further in these words:

'And the court doth further decree, that the commissioner, after he shall have made such reports as aforesaid, and the same shall have been passed upon by the court, and in accordance with such further directins in this behalf, if any, which the court may give him, do proceed to sell, as in sales under execution, all the property, real and personal of the said partnerships, both or either of them, of whatever name or nature, for cash.'

In pursuance of the directions of this decree, the commissioner made a report on the 25th of March, 1856, and this report being still unconfirmed, he proceeded to sell the decedent's property, and, on the 3d May, 1856, sold a lot in San Francisco to a certain Brignardello, for $19,040. The sale was public; every way fair, apparently, so far as concerned Brignardello. The price was a very good one, and it had been paid. The commissioner subsequently, May 14, 1856, made a report to the court of his sale, stating that he had 'sold the real estate ordered to be sold by the decree pronounced on the 27th October, 1855.' The whole proceeds amounted to about $70,000.

It will be observed that the decree above set forth contemplated, apparently, a sale only after the commissioner should have made a report, and the same had been passed on by the court. This circumstance appeared to have struck some of the parties concerned, and the record brought up to this c urt disclosed the following further proceedings in court, dated eleven days after the sale; and the only further proceedings which it did disclose. They read thus: DECREE AMENDING INTERLOCUTORY DECREE.

W. H. Gray

v.

J. C. Palmer, adm'r of F. C. Gray, dec'd, et als., and

C. J. Eaton

v.

J. C. Palmer, adm'r of F. C. Gray, dec'd, et al.

On this day came the several parties, Palmer and defendant, by their respective attorneys, and it appearing to the court that copies of the rule to show cause made on the 10th day of May, 1856, and of the affidavit on which said rule was founded, have been duly served on the respective attorneys of the several defendants, and on H. S. Foote, guardian ad litem for the infant defendant, and the said defendants having shown no cause why the motion of said W. H. Gray, to amend the interlocutory decree entered in the above causes on the 7th day of April, 1856, should not be granted, and the court being satisfied that said interlocutory decree and that said error was the result of a mistake and inadvertence on the part of the attorney who drew up the same: It is ordered that the motion of the said W. H. Gray to amend said interlocutory decree, so as to make the same conform to the original decree and to the commissioner's report filed herein, on the 25th day of March, 1856, be and the same is hereby granted.

And ordered, on motion of said W. H. Gray, that the following amended interlocutory decree be entered nunc pro tunc, in lieu of the said decree which was entered on the 7th of April, 1856, to wit:

Same Parties

v. Same Parties.

James D. Thornton, the commissioner, appointed, &c., having filed his report herein on the 25th day of March, 1856, it is hereby ordered, that the said report be, and the same is hereby confirmed; and it is further ordered, that said commissioner do proceed to sell all the property, real and personal, of the said partnership, as directed in the former decree of the court, and to receive the proceeds, out of which he shall pay the costs and expenses of this suit, and the remainder shall be paid and distributed to the several parties according to their respective rights, &c. But it is ordered, that before making said distribution, &c., commissioner report to this court his proceedings in the premises and the amount in his hands subject to such distribution, and the several interests of the respective parties therein upon the basis settled in his former report.

Indorsed: Filed May 14, 1856.

The result of all the sales, payments, and other proceedings in the business was, that the property, real and personal, of the decedent, was wholly absorbed, and the estate left in debt to the surviving brother, William H. Gray, in a sum of $3533.17; there not having in fact been enough of the estate of $237,000 left to pay for a tombstone that had been erected to the Gray deceased; and $900, or thereabouts, being, by common consent of parties, appropriated to that purpose, and made 'a charge upon the estate generally.'

The widow now conceiving that the proceedings had been collusive and irregular, took an appeal from the decrees obtained by Eaton, as also by Gray, against her husband's estate. This was about six months after the sale. On the hearing of the appeal, the decree was reversed in the case of Eaton's bill, as to the infant, on the ground that she being in New York, had not been sufficiently served by a publication in California, and in the case of W. H. Gray's bill, as to all the defendants, because the proof was not sufficient to establish a partnership.

Brignardello and others being in possession, however, under his purchase, the widow and infant daughter, joining in their action, now brought ejectment in the Circuit Court of the United States for the Northern District of California, the suit on which the writs of error now here were taken.

The title of Gray, the decedent, being undisputed, and the land aving passed by his death, intestate, under the laws of California, to his widow and child, in equal shares, a prim a facie title was made in favor of the plaintiff. In order to defeat this title the defendants set up that they were bon a fide purchasers, at a judicial sale under decree of a court having jurisdiction, putting in evidence the judicial proceedings already mentioned. Various objections, on the other hand, were set up to the validity of the proceedings prior to the rendition of the decree, as e. g. that the infant, being in New York, was not properly served with process by a publication made in California. The court below charged that the infant was not served, nor brought into court; that the judgment-roll in the consolidated action was no record as to her; and that the deed of Thornton the commissioner was void as to her, and this notwithstanding that the purchasers were innocent purchasers, for full price and at a sale fairly conducted; but it charged also-this instruction being specifically excepted to-that the decree did operate to divest the title of the widow. Judgment was accordingly entered in favor of the infant for an undivided moiety of the lot, and against the widow as to the other half; such several judgment being permitted by the rules and practice of the court. Two writs of error were now sued out; one by Brignardello and others, the defendants below (case No. 169 upon the docket); the other by the widow, Matilda C. Gray, one of the plaintiffs (case No. 223). The points raised here were the correctness of the judgment, as above stated.

Mr. Galpin, for the widow and infant, relied on several grounds taken in the court below against the validity of the proceedings, prior to the rendering of the judgments in the equity suits. He also contended,

1. That the decree of sale, having been reversed for not serving the infant, and for error, the sale fell with the decree by which it was supported. The general doctrine, that 'the judgment may be reversed for error, but the authority of the writ [of sale] stands, for it is distinct from that of the judgment,' was not denied; but it was contended that the present case was peculiar. Here, on appeal, it was declared that no partnership had ever existed. Every semblance of authority to sell was thus carried away. There was not a 'distinct authority' existing after reversal of a judgment, but an annihilation of any semblance of 'authority' for what had been done. The case thus fell within the authority of the New York case, Wambaugh v. Gates. On a reversal upon a bill of review, indeed, the title of the purchaser is not lost; because a bill of review commences a new action, and a different one from that in which the decree was rendered. But an appeal is part of the same action, in which and out of which the title grew, and the action is not terminated until the appeal is determined. Having bought prior to that determination, the purchaser bought pendente lite, and took subject to the result of the appeal.

2. There was no existing authority to sell when the sale was made, and no subsequent proceeding mentioned in the record shows an authority that acted retrospectively, even if such authority could be given, which it could not be. Can an illegal act, done without any authority, be supported by a subsequently made but antedated direction? If so, a sheriff may take one's property or life, in advance of the verdict, and find his authority in a subsequent execution or sentence, entered nunc pro tunc, as of the day of trial.

Mr. Carlisle, contra, and after replying to the grounds taken by the other side as to the validity of the proceedings in the equity suits prior to the order of sale:

1. There is no suggestion of fraud on the part of the purchaser. The sale was public and fair; the price more than full; and havin been made while the decree was in force, the purchaser's rights are not affected by a reversal. This ancient and generally settled principle of law is acknowledged in this court, and in the courts of California alike. It must be settled everywhere, as well for the interests of heirs and debtors as of purchasers themselves. No man would buy or bid at a judicial sale, if he was to lose the land because of the subsequent reversal of the judgment.

Acts done under even a fraudulent judgment, so far as they affect third persons, are valid.

2. That part of the record dated May 14, 1856, shows that there was a power to make the sale. From the recitals in that part it may be inferred that the court did, on the 7th April, 1856, make an order of sale, and that the omission to put it in proper form 'was the result of a mistake and inadvertence on the part of the attorney who drew up the same.' An entry nunc pro tunc is accordingly made, and the sale is validated. The recital of record, that a decree was entered on the 7th April, 1856, is sufficient evidence that one was made; though it may not appear in the record brought up.

Mr. Justice DAVIS delivered the opinion of the court.

title: Gray v. Brignardello


text: Talk:Gray v. Brignardello

title: Talk:Gray v. Brignardello


text:
Gray v. Brignardello/Opinion of the Court

The character of the suits brought in the State court by C. J. Eaton, by W. H. Gray, the parties to them, the kind of evidence on which they were sustained, and their ultimate termination, provoke comments, but we forbear to make them.

The vital question in these cases is this: 'Did the decree of the 27th of October, or any subsequent decree or proceeding in the court, authorize the sale that was made of the real estate of Franklin C. Gray, and under which sale the defendants below claimed title?'

Numerous objections have been taken here, and were taken in the court below, to the validity of the proceedings prior to the rendition of the decree, which, although interesting, will not be discussed, and no opinion given, as it is not necessary to decide them.

It is a well-settled principle of law, that the decree or judgment of a court, which has jurisdiction of the person and subject-matter, is binding until reversed, and cannot be collaterally attacked. The court may have mistaken the law or misjudged the facts, but its adjudication when made, concludes all the world until set aside by the proper appellate tribunal. And, although the judgment or decree may be reversed, yet, all rights acquired at a judicial sale, while the decree or judgment were in full force, and which they authorized, will be protected. It is sufficient for the buyer to know, that the court had jurisdiction and exercised it, and that the order, on the faith of which he purchased, was made and authorized the sale. With the errors of the court he has no concern. These principles have so often received the sanction of this court, that it would not have been deemed necessary again to reaffirm them, had not the extent of the doctrine been questioned at the bar.

But did the decree or decrees relied on to defeat the plaintiffs' title authorize the sale that was made?

The decree of the 27th of October, 1855, found the existence of the partnerships, and the interest of each member of the firm, and a commissioner was appointed to take and state the accounts, and to ascertain the nature and extent of the partnership property, and to report to the court. The decree proceeds to say, that the commissioner, 'after he shall have made such reports, and the same shall have been passed upon by the court, and in accordance with such further directions in this behalf, if any, which the court may give him, do proceed to sell all the real and personal estate of the said partn rship, both or either of them.' This decree is manifestly interlocutory. No authority was given to sell until the commissioner had reported the state of the accounts, and what property was owned by the different firms, and the court had passed on the report. The court, properly enough, reserved the right to approve or disapprove the report before the authority to sell was complete. How could the court know, until the accounts were stated, whether anything was due William H. Gray, or Eaton, and consequently, whether there was a necessity to sell real estate? It is monstrous to suppose that any court would order a sale to be made, especially where the interests of an infant defendant would be imperilled, until it was judicially ascertained that the rights of other demanded it. In pursuance of the directions given by the decree, the commissioner made his report on the 25th of March, 1856, and without waiting for its confirmation, actually sold, on the 3d day of May following, real estate to the value of nearly $70,000. And, as if to fix beyond question the authority under which he acted, he states to the court in his report of sales, made May 14th, that he sold 'the real estate ordered to be sold by the decree pronounced on the 27th day of October, 1855.'

But it is claimed that a nunc pro tunc decree, subsequently entered, gave the power to make the sale, and rendered valid what, without it, would have had no validity.

The only proceedings which the record discloses are those set out, ante, p. 629-30, and under them the claim is made.

The motion there speaks of an interlocutory decree having been entered on the 7th day of April, which it was desired to correct. And the court, in passing on the motion, say that there was an error in the decree, which was the result of a mistake, and direct an amended decree to be entered nunc pro tunc, in lieu of the one which was entered on the 7th of April.

This motion and order are predicated on a state of facts which did not exist. No decree was ever entered on the 7th of April, nor on any other day prior to the sale, and we cannot, therefore, even conjecture what the errors and mistakes were which it was desirable to correct. If the court had said, that on the 7th of April, the report of the commissioner was approved, and the sale ordered, but through inadvertence or neglect on the part of the court or its officers, the proper entries were not made, then it might well be argued that a nunc pro tunc decree could be made. A nunc pro tunc order is always admissible, when the delay has arisen from the act of the court. But that is not this case. There is nothing to show that the report of the commissioner was approved prior to the sale; no evidence that any decree was entered, or any authority even to make one, on the day stated, nor in fact that the court was in session on that day. By no rule of law can a decree, which was clearly an afterthought, and made subsequent to the sale, bolster up the authority to make it. Purchasers at a judicial sale are protected, when the power to make the sale is expressly given, not otherwise. It is only when they buy on the faith of an order of the court, which clearly authorizes the act to be done, that the shield of the law is thrown around them. An officer of the court may erroneously suppose that the power to sell is given by a decree, yet, if he does sell, his act is without authority of law, and is void.

The sale made by James D. Thornton, the commissioner appointed by the judge of the District Court of the Fourth Judicial District of California, on the 3d day of May, 1856, was without authority of law, and void. The purchasers at that sale acquired no rights against the heirs of Franklin C. Gray, and the deeds given by the commissioner conveyed no title. These general views are decisive of this controversy. The court below directly charged the jury, that it was their duty to find a verdict against the pl intiff, Matilda C. Gray, which instruction was particularly excepted to, and was erroneous.

Case No. 169, in which Brignardello and others are plaintiffs in error, is affirmed with costs; and case No. 223, in which Matilda C. Gray is plaintiff in error, is reversed with costs, and remanded, and a venire de novo awarded.

JUDGMENT ACCORDINGLY.


text: Talk:Gray v. Brignardello/Opinion of the Court


text:
Beaver v. Taylor (68 U.S. 637)

THIS was an action of ejectment, brought in the Circuit Court for the Southern District of Illinois, by Beaver, the plaintiff in error, against Taylor et al., to recover premises described in his declaration. The action was brought on the 17th July, 1854. The date is important. Upon the trial, the plaintiff having shown title in himself, the defendants relied upon the first and also upon the second section of the Statute of Limitations of the State of Illinois of March 2, 1839, as making a bar. The two sections were thus:

'First. Every person in the actual possession of land or tenements under claim and color of title made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such land or tenements, shall be held and adjudged to be the legal owner of said land or tenements to the extent and according to the purport of his or her paper title.

'Second. Whenever a person having color of title made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title.'

The defendants, to show color of title, gave in evidence a certain deed. The deed itself was admitted to be void, but the good faith of the defendants and the sufficiency of the deed for the purpose for which it was offered were not disputed. The defendants also gave evidence tending to prove possession for more than seven years before the commencement of the suit.

In making proof of the payment of the taxes the defendants offered in evidence two receipts, without date, from the collector to one Gilbert, one for the State and county taxes, and the other for the road tax, of the year 1847. They proved that the 'collector had made a final settlement of the State and county taxes for the year 1847 with the proper officers;' and they gave evidence tending to prove that, during the years 1847 and 1848, Gilbert was the agent of Taylor & Davis (claimants of the premises under the statute) in respect of the taxes. The plaintiffs objected to the receipts as evidence, because it did not appear when the taxes were paid, nor that Gilbert had any connection with the color of title relied upon by the defendants. To meet the objection as to the time of payment, the defendants offered in evidence two letters from Gilbert to Taylor & Davis; one of the 10th of March, 1848, inclosing the receipt for the State and county taxes, and the other of the 4th of May, 1848, inclosing the receipt for the road tax. They offered also certain entries in an account book of Taylor & Davis, relating to the property in question and other property held by them in the same right. The letter gave an account in detail of Gilbert's debits and credits as agent in respect of the taxes, and referred particularly to the receipts in question. The books contained entries relating to the same subject and showing the recognition of his agency in the transaction. It appeared that the book was kept in Philadelphia, where Taylor resided, and that the clerk who made the entries was dead. Proof was offered of his death and of his handwriting. The letters and book were also objected to. The court admitted all the evidence and the plaintiff excepted.

The evidence being closed, the counsel of the plaintiff asked the court for nine different instructions to the jury; the only ones important to be here mentioned, however, being three, which were in regard to the defence arising under the second section of the Statute of Limitations already mentioned. In regard to such defence the instructions prayed for were these:

'1. That if the jury believe from the evidence that the land in controversy was vacant and unoccupied in the year 1847, they will find for the plaintiff, unless they also believe from the evidence that Taylor & Davis paid the taxes assessed on said lands for the year 1847, before the seventeenth day of July, 1847.

'2. That the second section of the act of 1839 does not begin to run until the payment of the first of the series of taxes required by that act, and the bar under that section is not complete until the end of seven years from the time of the payment of the first of said series of taxes.

'3. That to constitute a bar under the second section of said act of 1839, the payment of taxes must concur during seven successive years prior to the bringing of suit with the color of title; and it must also appear to the jury by the evidence that during such seven years the land was vacant and unoccupied, that such bar does not begin until the first of such series of taxes is paid by the person having color of title, and is not complete until the payment of taxes for seven successive years thereafter has concurred with such color of title, and that the burden of proof of such facts as constitute such bar is on defendants.'

The court refused to give these instructions, and instructed the jury as follows:

'Three things must unite to give a party the benefit of this section:

'1. He must pay all taxes levied on the land for seven successive years.

'2. The land must for the same time be vacant and unoccupied.

'3. He must during the same time have color of title to the land acquired in good faith.'

The court had previously charged that to bring a party within the first section:

'1. He must have actual possession of the land for seven successive years.

'2. He must pay all taxes levied on the land for the same seven years.

'This possession and payment must be under claim and color of title to the land made in good faith.'

The plaintiff excepted to the instructions given, including those in regard to the second section, and to the refusal to instruct as prayed. The jury found for the defendants.

On error here the matters complained of were the admission of the evidence excepted to, and the refusal to give the instructions as asked, and the giving of those that were made.

Mr. Grimshaw, for the plaintiff in error; Mr. Trumbull, contra.

Mr. Justice SWAYNE (stating the facts) delivered the opinion of the court.

title: Beaver v. Taylor (68 U.S. 637)


text: Talk:Beaver v. Taylor (68 U.S. 637)

title: Talk:Beaver v. Taylor (68 U.S. 637)