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Davis v. Gaines/Opinion of the Court

This was a bill in equity filed by Myra Clark Gaines, the appellee, against Minor Kenner, the intestate of Eliza Davis, the appellant, and a large number of other defendants, to recover real estate, of which she claimed to be the devisee under the will of her father, Daniel Clark. The defendants were alleged to be in possession respectively of distinct parcels of the property sued for.

The facts, so far as they concern the controversy between the appellant and appellee, were as follows: Daniel Clark purchased the real estate in dispute between them from one Stephen Henderson, on Dec. 16, 1812, wholly upon credit. The purchase price was $120,000, to secure which a mortgage was retained in the act of sale. On May 20, 1811, he executed and published what then purported to be his last will and testament, as follows:--

'In the name of God, amen. I, Daniel Clark, of New Orleans,     do make this my last will and testament.

'Imprimis. I order that all my just debts be paid.

'Second. I leave and bequeath unto my mother, Mary Clark, now     of Germantown, in the State of Pennsylvania, all the estate,      whether real or personal, which I may die possessed of.

'Third. I hereby nominate and appoint my friends Richard Relf     and Beverly Chew my executors, with power to settle      everything relative to my estate.

'DANIEL CLARK.

'NEW ORLEANS, 20 May, 1811.'

He died Aug. 16, 1813, and on the next day the will was proven before the Probate Court for the Parish of Orleans, and on the 27th of that month letters testamentary were issued to Richard Relf as sole executor, Chew being absent from the State.

The appellant claimed title to the plantation under a sale thereof made Nov. 8, 1813, by Thomas Beale, register of wills, at public auction, to Michel Fortier and Omer Fortier, for $120,000, by authority, as she asserted, of an order of the Probate Court. Relf, the executor, in pursuance of the sale, conveyed the property to the purchasers by deed, in which he stipulated to apply the purchase-money, as fast as received, to the discharge of the mortgage of $120,000 placed on it by Daniel Clark.

The purchase-money was so applied, and the entire sum secured by the mortgage, with the interest thereon, was thus discharged.

The property came into the possession of Minor Kenner, whose estate the appellant represents, as owner, by regular chain of conveyances from the vendees of Michel and Omer Fortier.

The title of the appellee was derived under the will of Daniel Clark executed July 13, 1813, which was filed for probate in the Probate Court of the Parish of Orleans on Jan. 18, 1855, and which by the judgment of the Supreme Court of Louisiana on Dec. 17, 1855, was recognized as the last will and testament of Daniel Clark, and ordered to be recorded and executed as such.

The second item of this will was as follows: 'Second, I do hereby acknowledge that may beloved Myra, who is now living in the family of Samuel B. Davis, is my legitimate and only daughter, and that I leave and bequeath unto her, the said Myra, all the estate whether real or personal of which I may die possessed, subject only to the payment of certain legacies hereinafter named.'

Both parties, therefore, trace title to Daniel Clark.

Prima facie the title of the appellee to the property in dispute under the provision of this will, which is the later and last will of Daniel Clark, is clear.

The controversy, therefore, depends upon the three defences set up by the appellant.

The record shows that the will of May 20, 1811, was duly admitted to probate by the Probate Court of the Parish of Orleans, and ordered to be executed; that within the year following the order of probate, to wit, on Aug. 27, 1813, upon the petition of the executor, an order for the sale of the real and personal property of the testator was made by the court having jurisdiction thereon; that an inventory was begun by Thomas Beale, register of wills for the Parish of Orleans, on Aug. 28, 1813, und r the direction of said Probate Court, in which the plantation sued for was included as a part of the estate of Daniel Clark; that on Nov. 8, 1813, pursuant to said order, Beale, the register of wills, sold and adjudicated the plantation to Michel Fortier and Omer Fortier for the sum of $120,000; and that on Nov. 11, 1813, Relf, the executor, made an act of sale to the purchasers.

The appellant, therefore, contends, first, that by virtue of said will and its probate, and the order of sale, and the sale and conveyance thereunder, the said Michel and Omer Fortier acquired a good and valid title to said premises, which, by mesne conveyances from them, was vested in her intestate.

The record further shows that the act of sale recited the existence of the mortgage for $120,000 placed upon the property by Daniel Clark in favor of Stephen Henderson, on Dec. 16, 1812, and his executor bound himself to discharge the same out of the purchase-money, as it should be paid by the purchasers, the Fortiers, and that said mortgage was in fact discharged and paid by the application thereto of said purchase-money.

The appellant therefore contends, secondly, that there can be no decree in favor of the appellee for the property until the purchase-money which was applied to the payment of the debts of the testator is repaid or tendered, if it shall turn out that the Fortiers were purchasers in good faith.

The appellant contends, thirdly, that from Nov. 8, 1813, until Jan. 3, 1866, when process was served in this case, she, and those under whom she claims, held continuous, peaceable, and unequivocal possession of said plantation, and that neither said Michel and Omer Fortier, at the time they purchased the plantation, nor any of the parties through whom she claims title, had any knowledge, information, or belief of the making or existence of the last will of Daniel Clark, executed in 1813; that the various persons who claimed title to said property under the sale made to Michel and Omer Fortier possessed the same in good faith and under a just title as owners, and that each of them had the right to acquire the same by prescription; and she pleads the prescription of ten, twenty, and thirty years in bar of the bill of complaint.

The first question for consideration is whether or not the proceedings of Relf, the sale made by the Register of Wills under the order of the Probate Court, and the deed of Relf as executor in pursuance thereof, vested a title to the plantation in the purchasers.

The code of 1808 was in force when the proceedings which resulted in the sale to the Fortiers were taken. Article 169, book 3, tit. 2, of that code declares: 'When of the testator's heirs some are absent or not represented in this territory, the testamentary executor, whether the seisin be granted to him or not, and whether those heirs be forced or voluntary, shall be authorized to take possession of the property of the succession, to cause it to be sold, and to remain in possession of the portion accruing to the absent heir or heirs, deducting the debts and legacies, until those heirs shall have sent their power of attorney, or till the expiration of they year of the testamentary execution.'

By the will of 1811 it appeared that Mary Clark, the mother of testator, who was constituted his universal legatee, and thereby became his heir (Civil Code, art. 880), was absent from the State of Louisiana. Moreover, 'the granting of the license to sell was an adjudication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial if no appeal was taken.' Grignon's Lessee v. Astor, 2 How. 319.

It is, therefore, not disputed that, upon the ground of the absence from the State of the universal legatee, it was competent for the Probate Court, upon the application of the executor, to make an order for the sale of the testator's property.

The jurisdiction of the Probate Court of the Parish of Orleans to admit to probate and record the wills of deceased persons is unquestio ed.

Its power and authority to order a sale of the property of a testator, by virtue of article 169, book 3, tit. 2, of the code of 1808, is not and cannot be disputed. If the Fortiers purchased in good faith under an order of sale made by the Probate Court, for a valuable consideration, without any knowledge of the later will of Daniel Clark, and while the authority of the executor appointed and qualified under the first will continued, and there was no fatal defect in the proceedings antecedent to the sale and conveyance to them, does the fact that such later will, making other dispositions of his property, was discovered and admitted to probate, render void their title?

We think this question must be answered in the negative.

A sale by order of a probate court is a judicial sale. Moore v. Shultz, 13 Pa. St. 98; Grignon's Lessee v. Astor, 2 How. 319; Thompson v. Tolmie, 2 Pet. 157; Lalanne's Heirs v. Moreau, 13 La. 431; Howard v. Zeyer, 18 La. Ann. 407.

Such sales are, therefore, protected by the rule that a title acquired at a decretal sale of lands, made by a court in the exercise of competent jurisdiction, is not rendered invalid by the reversal of the decree. Ward v. Hollins, 14 Md. 158; Irwin v. Jeffers, 3 Ohio St. 389; Gossom v. Donaldson, 18 B. Mon. (Ky.) 230; Fergus v. Woodworth, 44 Ill. 374; Gray v. Brignardello, 1 Wall. 627, 634.

In the case last cited this court said: 'Although the judgment or decree may be reversed, yet all rights acquired at a judicial sale, while the decree or judgment was in full force, and which it 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.'

In the case of McCullough v. Minor (2 La. Ann. 466), the Supreme Court of Louisiana said: 'The jurisdiction of the court was undoubted, and the jurisprudence of the State has long been settled that a bona fide purchaser at a judicial sale is protected by the decree.'

But it is not necessary to rely solely on this general doctrine. This court and others have directly applied the law probate which governs judicial sales to sales made by order of courts.

Thus, in Thompson v. Tolmie (2 Pet. 157) this court said: 'The law appears to be settled in the States that courts will go far to sustain bona fide titles acquired under sales made by statutes regulating sales made by order of the orphans' courts. When there has been a fair sale the purchaser will not be bound to look beyond the decree, if the facts necessary to give the court jurisdiction appear on the face of the proceedings.'

See also Grignon's Lessee v. Astor, supra. By a law of Michigan passed in 1818 the county courts had power under certain circumstances to order the sale of the real estate of a deceased person for the payment of debts and legacies. In reference to a sale of real estate made under this law the court said in that case: 'The granting the license to sell is an adjudication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial if no appeal is taken. The rule is the same whether the law gives an appeal or not; if none is given from the final decree it is conclusive on all whom it concerns. The record is absolute verity, to contradict which there can be no averment or evidence. The court having power to make the decree, it can only be impeached for fraud in the party who obtains it; a purchaser under it is not bound to look beyond the decree; if there is error in it of the most palpable kind, if the court which rendered it have in the exercise of jurisdiction disregarded, misconstrued, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them,-the title of a purchaser is as much protected as if the adjudication would stand the test of a writ of error. The e principles are settled as to all courts of record which have an original general jurisdiction over any particular subjects; they are not courts of special or limited jurisdiction.'

'In the Orphans' Court, and all courts who have the power to sell the estates of intestates, this action operates on the estate, not on the heirs of the intestate; a purchaser claims not their title, but one paramount. The estate passes to him by operation of law. The sale is a proceeding in rem, to which all claiming under the intestate are parties, which divests the title of the deceased.' See also Erwin v. Lowry, 7 How. 172; Griffith v. Bogert, 18 id. 158; Florentine v. Barton, 2 Wall. 210; McNitt v. Turner, 16 id. 352.

On the same subject the Supreme Court of Appeals of Virginia, in Ballow v. Hudson (13 Gratt. (Va.) 672), said: 'Considerations of public policy require that all questions of succession to property should be authoritatively settled. Courts of probate are, therefore, organized to pass on such questions when arising under wills, and a judgment by such a court is conclusive while it remains in force, and the succession is governed accordingly. A judgment of this nature is classed among those which in legal nomenclature are called judgments in rem. Until reversed it binds not only the immediate parties to the proceeding in which it is had, but all other persons and all other courts.'

In Lalanne's Heirs v. Moreau (supra), the Supreme Court of Louisiana said: 'Sales directed or authorized by courts of probate are judicial sales to all intents and purposes, and the purchaser is protected by the decree ordering them.'

So in Howard v. Zeger (supra) the same court said: 'A warrantor is not bound to look beyond the decree of the court ordering the sale of succession property, and he acquires all the right of the deceased to said property, and no more.'

In Grignon's Lessee v. Astor (supra), this court said: 'Proceedings in a probate court to sell property of a decedent have been held to be proceedings in rem, to which all claiming under the decedent are parties.'

In McPherson v. Cunliff (11 Serg. & R. (Pa.) 422), the court said that the decree of an orphans' court for the sale of land was conclusive; that the proceeding was purely in rem against the estate of the intestate and not in personam.

In Lalanne's Heirs v. Moreau (supra), it was said 'that the decree of the Court of Probate ordering a sale of the property of minors is so purely in rem and against the property, that a sale made under it extinguishes all the mortgages existing in the name of the owner of the property sold.'

In Green v. The Baptist Church (27 La Ann. 563), the same court held that purchasers are not bound at their peril to inquire, when property is advertised for sale by an executor, whether anything has occurred outside the court to destroy the will under which he is acting.

In Gaines v. De La Croix (6 Wall. 719), which was a bill filed by the appellee in the present case against De La Croix, to recover certain slaves claimed by him under a sale made to him by Relf, as executor of the will of 1811 of Daniel Clark, the defendant claimed that his titles, derived by the purchase from Relf, were valid, because he purchased within the year, while the functions of Relf, as executor, were in full force. In passing upon this point the court said: 'This is true if he purchased in good faith, and the requisites of the law on the subject of the sales of succession property were complied with.'

The case involved two purchases, and both were held invalid; one because it was made at private sale, and, consequently, the purchaser acquired no title; and the other because, though made at public auction, the court found that De La Croix had knowledge of the will of 1813 and its contents, and 'that he knew the will under which he was buying was not the true will of Daniel Clark,' and he, therefore, 'got the roperty in bad faith.'

It is objected, however, that the discovery of a later will and its probate showed that the will of 1811 was utterly void, and could furnish no valid ground for the order of sale. But it must be borne in mind that the will of 1811 had been duly admitted to probate by a court which had jurisdiction of the subject-matter, and whose duty it was to ascertain and declare whether the will presented to it was in fact the genuine last will and testament of the testator. Having declared the will of 1811 to be the genuine last will of Daniel Clark, acts done under that probate in a lawful manner until the discovery of a later will were valid and binding.

The English authorities hold that the record of probate and of the qualification of the executor is conclusive evidence of the existence of the will and of his authority.

Allen v. Dundas (3 T. R. 125) was an action on the case, brought by Allen as administrator of Priestman, against Dundas, for money had and received to the use of the intestate, and to the use of the plaintiff as administrator. The defendant pleaded the general issue. On the trial a special verdict was found, stating, in substance, as follows: The defendant, as treasurer of the navy, was indebted to the intestate in his lifetime £58, &c., for money had and received to his use. Priestman died June 2, 1784; on Aug. 13, 1785, one Robert Brown proved in the Prerogative Court of the Archbishop of Canterbury a forged paper-writing, dated May 18, 1784, purporting to be the last will of Priestman, whereby he was supposed to have appointed Brown the sole executor thereof, and a probate of that supposed will issued in due form of law under the seal of that court, on the same day, in favor of Brown. The defendant, not knowing the will to have been forged, and believing Brown to be the rightful executor, on Brown's request paid him the £58, being the whole balance then due from the defendant to Priestman. Afterwards, on July 21, 1787, upon citation to Brown in the same court, the will and probate were declared void, and it was further declared that Priestman died intestate. On March 31, 1788, letters of administration on the goods of Priestman were granted to the plaintiff. Upon this verdict judgment was entered for defendant. Upon this case Buller, J., said: 'The first question to be considered is, What is the effect of a probate? It has been contended by the plaintiff's counsel, first, that it is not a judicial act; and, Secondly, that it is not conclusive. But I am most clearly of opinion that it is a judicial act, for the Ecclesiastical Court may hear and examine the parties on the different sides whether a will be or be not properly made; that is the only court which can pronounce whether or not the will be good, and the courts of common law have no jurisdiction over the subject. Secondly, the probate is conclusive until it be repealed, and no court of common law can admit evidence to impeach it. Then this case was compared to a probate of a supposed will, of a living person; but in such a case the ecclesiastical courts have no jurisdiction and the probate can have no effect; their justification is only to grant probate of the wills of dead persons. The distinction is this: if they have jurisdiction, their sentence, as long as it stands unrepealed, should avail in all other places; but when they have no jurisdiction, their whole proceedings are a nullity.' The judgment was concurred in by Justice Grose, and, as appears by a note at the end of the case, was approved by Lord Kenyon.

The same principle, that a probate is conclusive until repealed, was adverted to in an indictment for forging a will in Rex v. Vincent (1 Stra. 481), where, on an indictment for forging a will of personal estate, on the trial a forgery was proved, but the defendant producing a probate, that was held to be conclusive evidence in support of the will.

To the same effect is the case of Wooley v. Clark, 5 Barn. & Ald. 746. See also Williams on Executo § (6th Am. ed.), 590 and note (X'), where many cases of the same effect are cited.

In Packman's Case (6 Co. 19), it was held that, though letters of administration be countermanded and revoked, a gift or sale made by the administrator acting under the probate was not thereby defeated.

To the same effect is the case of Semine v. Semine, 1 Lev. 90.

So in Graysbrook v. Fox (Pl. Com. 282), it was held that where one is executor, not of right but of wrong, yet if he had paid any debt due by specialty, or other thing which the law will force the executor to pay, the true executor should have been bound by it, and should have been obliged to allow it because the other was compellable to pay it, and the true executor had no prejudice by it, forasmuch as he himself should have been bound to pay it.

In Thompson v. Harding (2 El. & Bl. 630), Lord Campbell, C. J., said: 'When the executor de son tort is really acting as executor, and the party with whom he deals has fair reason for supposing that he has authority to act as such, his acts shall bind the righful executor and shall alter the property.'

The same doctrine is held in Parker v. Kett, 1 Ld. Raym. 658.

The American cases are to the same effect. In Waters v. Stickney (12 Allen (Mass.), 15), it is said that a new decree of probate establishing a later will or codicil would not necessarily avoid payments made or acts done under the old decree while it remained unrevoked.

See also Peeble's Appeal, 15 Serg. & R. (Pa.) 39; Kittredge v. Folsom, 8 N. H. 98; Stone v. Peasley's Estate, 28 Vt. 716.

In Steele v. Renn (50 Tex. 467), a question similar to the one now under consideration was passed upon by the Supreme Court of Texas, which held that 'the title of a purchaser in good faith of land, from a legatee under a will duly admitted to probate, is not affected by proceedings subsequently instituted and resulting in annulling the will as a forgery.'

Under the English law, by which probate of a will was only required in reference to personal estate, it might well be that the devisee of land took no title if the will were afterwards discovered to be void. But in this country in most of the States, Louisiana included, probate is required as well of wills of land as of goods, and the same effect should be given to it as a judicial act as to the probate of wills of personal estate in England.

Upon the doctrines and authorities above referred to we are of opinion that a sale of land, duly made by order of the Probate Court having jurisdiction, and a conveyance thereof by the executor of a will duly admitted to probate, while its functions were in full force, to a bona fide purchaser for value, vested the purchaser with a good and valid title, which was not affected by the discovery of a later will and its admission to probate and record.

The validity of the title of the Fortiers, under whom the appellant claims, depends, therefore, on the two questions: First, whether there was any fatal defect in the proceedings and sale under which their title was derived; and, second, whether they were purchasers in good faith.

We have already seen that the proceedings and sale took place within the year after the appointment of the executor, and that it was competent for the court to order the sale by reason of the absence from the State of the universal legatee named in the will of 1811.

The appellee contends that there were fatal defects in the proceedings and sale which rendered the title of the purchasers void.

Firstly, it is said that there was no order for the sale of the property in dispute, or rather that the order of sale made by the Probate Court did not include it.

There is little ground for this objection. The petition was for leave to sell all the property of the succession, movable and immovable, and the order directed a sale accordingly. There is no dispute, in fact it is the basis of the appellee's title, that the property sold was the property of the succession, and before the sale took place an inventory was filed in which the property in dispute was returned as belonging to the succession.

There can be no question, therefore, that the order of sale included the property which is the subject of this controversy. But it has been expressly held by the Supreme Court of Louisiana that a purchaser of land at a probate sale, under the order of a court of competent jurisdiction, directing a sale of all the property of the succession, is not affected by the failure of the executor to have such land placed on the inventory, or to have it accurately described in the inventory. Mitchell v. Levi, 23 La. Ann. 630.

It is said, secondly, that the sale was not preceded by the advertisements required by law; and, thirdly, that the inventory of the property of the estate, in which was included the premises in controversy, was not made until after the order of sale, and that the part of the inventory which included them was not made by the two appraisers appointed by the parish judge, but by appraisers chosen by the testamentary executor, and it was only signed by one of them.

There is evidence in the record tending to show that the sale was duly advertised. The executor's conveyance recites that the sale was made after 'the publications and delays prescribed by law;' and the account of the executor, which had been of record in the Probate Court for more than fifty years, shows that he paid for advertising the sale the sum of $232.

As possession had been held under the deed for over sixty years, its recitals are evidence even against strangers. Carver v. Jackson, 4 Pet. 83. And it has been held by the Supreme Court of Louisiana that the account of an executrix recorded in the Probate Court is competent evidence to prove the advertisement of a sale. Woods v. Lee, 21 La. Ann. 505. The account was subject to exception. It passed under the scrutiny of the Probate Court, whose duty it was to ascertain the balance due upon it to the heir, and render a final judgment therefor. Civil Code, arts. 1183, 1184. It was, therefore, necessary for the court to allow or disallow the item charged for advertising the sale. As this item remains in the account as recorded, it may be presumed that it was allowed by the court, and after it has been of record for over fifty years, as in this case, may be considered as competent evidence to prove that the advertisement of the sale was made.

This evidence, uncontradicted as it is, is sufficient to prove the fact of the advertisement. But whether this is so or not is immaterial; for on March 10, 1834, an act of the legislature ture of Louisiana was passed, the second section of which declares: 'When a question shall arise out of any public sale heretofore made by the sheriff, auctioneer, or other public officer, and which sale was required by law to be preceded by advertisements, the fact of sale being proved, it shall make prima facie evidence that the required advertisements were regularly made.'

And this section has been continued in force to the present time. See Voorhies's Revised Statutes, 1876, p. 867, sect. 3391. But even if it were affirmatively shown that there had been no advertisement of the sale, that defect, as well as the alleged irregularities in regard to the inventory, is cured by the rule of prescription established by the fourth section of the said act of March 10, 1834, which is as follows: 'All informalities connected with or growing out of any public sale made by a sheriff, auctioneer, or other public officer, shall, after the lapse of five years from the time of making the same, be prescribed against by those claiming under such sales, whether they by minors, married women, or persons interdicted.'

This section continued in force until 1870. It was then substantially re-enacted by the general provision contained in the Revised Statutes of 1870, sect. 3392, p. 659, and by art. 3543 of the Civil Code published in the same year, which declares as follows: 'All informalities connected with or growing out of any public sale made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women, or interdicted persons.' This section is still in force. Voorhies's Revised Statutes, 1876, sect. 3392.

To entitle a party to claim the benefit of this provision of this or any other prescription, it is made necessary by the jurisprudence of Louisiana that he should have acquired the immovable in good faith and by a just title. By the term 'just title,' in cases of prescription, is not meant that which has been derived from the true owner, but that which has been received from any person whom the possessor honestly believed to be the true owner, provided it were such as to transfer the ownership of the property; that is, such as by its nature would have been sufficient to transfer the ownership if it had been derived from the real owner, such as a sale, exchange, legacy, or donation. Arts. 3484 and 3485 Civil Code; Pike v. Evans, 94 U.S. 6.

The deed of Relf, executor, to the purchasers falls within the category above mentioned, or, in the language of the civilians, it is translatived of property. There is no defect upon the face of it. The only questions, therefore, which arise upon the prescription of five years declared by sect. 4 of the act of March 10, 1834, and its substitute, art. 3453 of the Civil Code, are, Were the Fortiers purchasers in good faith; and are the defects in the title, insisted on by the appellee, such informalities as are cured by that prescription?

The good faith of the purchaser must be presumed until the contrary is shown. Packwood v. Richardson, 1 Mart. N. S. (La.) 410; Fletcher v. Cavalier, 4 La. 267; Rivarde v. Rosseau, 7 La. Ann. 3; Leduf v. Bailly, 3 id. 8.

There is not a scintilla of proof in the record tending to show that the Fortiers, or those claiming under them, had any direct notice of Daniel Clark's will of 1813, or that the will of 1811, under which the sale was made, was not his last will and testament.

The appellee relies on the fact which she claims the testimony proves, that there was a general report in New Orleans, then a small town, that the will of 1811 was not the last will of Daniel Clark.

Even if the evidence established this fact, it is entirely too vague and inconclusive as a ground for creating or destroying valuable rights. But it fails signally to establish any such general report, or to show that the Fortiers resided in New Orleans, where, if such report existed, it might possibly have come to their ears.

The only other fact relied on to prove the bad faith of the purchasers was the fact that De La Croix, on Aug. 18, 1813, following the filing in the Probate Court of the will of 1811, filed in the same court his petition under oath, in which he stated that he had strong reasons to believe, and did believe, that the late Daniel Clark had made a testament or codicil posterior to that which had been opened before that honorable court, and in the disposition whereof he thought he was interested. And the petition prayed that, 'whereas the double of this will, whose existence was known to several persons, might have been deposited with any notary public of this city, an order might be made that every notary of the city appear before the court within the delay of twenty-four hours, to certify on oath if there does or does not exist in his office any testament or codicil or any sealed packet deposited by the said Daniel Clark.'

The order was made according to the prayer of the petition. Nothing came of it. No subsequent will was found by reason of the steps suggested by the petitioner.

This petition proved that De La Croix had notice of the will of 1813. It was so held by this court in Gaines v. De La Croix, 6 Wall. 719. But it proved nothing else. If fails utterly to show any bad faith on he part of the Fortiers. There is not the slightest evidence that either of them ever heard of the petition, or that a rumor of the existence of a will later than that of 1811 ever came to their knowledge.

There is an absolute failure of proof to establish any bad faith on the part of the purchasers of the property in dispute. They acted as if they believed that they were getting a good title to the property, for they agreed to pay, and did pay, what at that time was an immense sum of money for it, to wit, $120,000.

The good faith of the Fortiers being beyond question, they and those claiming under them have the right to rely upon the preseription of five years to cure any irregularity in the proceedings which resulted in the sale.

That want of advertisements of the sale is such an irregularity as falls within the prescription was held in the cases of Woods v. Lee, 21 La. Ann. 505; and Pasiana v. Powell, id. 584. And it would seem that when property was sold at public sale, and as in this case brought its full value, the want of previous advertisement was a very immaterial matter.

The other alleged defects in the proceedings clearly fall within the prescription of five years. The fact that the inventory of the estate was not completed before the order of sale, the fact that the inventory was partly made by appraisers appointed by the testamentary executor, and that it was signed by only one of two who were so appointed, are certainly most trifling and inconsequential irregularities when there is no proof or even charge that the inventory was not fairly made or the sale fairly conducted, and when the property sold brought its full value. If these irregularities do not fall within the prescription of fave years, it would be hard to conceive of any that would. Fraser v. Zylicz, 29 id. 534.

The irregularities in the sale alleged by the appellee are, therefore, cured by the lapse of five years, and can have no more influence on the title of the appellant than if they never existed.

We find, therefore, that the appellant derives her title under a public sale made by a public officer by authority of the order of the Probate Court; that the sale took place, and the deed, which on its face was without defect and was translative of property, was made by the executor within the year following his appointment; that the purchasers purchased in good faith for a full consideration; and that there were no nullities or informalities in the slae which have not been cured by the prescription of five years.

In the cases heretofore decided by this court in favor of appellee, except Gaines v. De La Croix, the defendant claimed title from Relf, or Relf and Chew, executors of the will of 1811, under private sale, made by them as agents of Mary Clark, devisee under that will, and in their pretended capacity as executors, after their term of office had expired, and without any order of court. See Gaines v. New Orleans, 6 Wall. 642.

In the case of Gaines v. De La Croix, the court decided, and on most satisfactory proof, that De La Croix was a purchaser in bad faith, and upon that ground his title was declared invalid.

In her bill in this case the appellee, knowing that it was a vital fact in her case, charged that the sale of Relf, the executor, to the Fortiers was made after the expiration of a year from the date of his appointment and at a time when he had no authority to sell. But, as the proof shows, that averment is not true. The record shows that Relf was appointed executor Aug. 27, 1813, and the sale was made on November 8 following, under an order of court, and the conveyance three days later, on November 11.

Upon the facts of the case, therefore, the title derived by the appellant under the sale to the Fortiers appears to be a good and valid title.

But conceding that the title acquired by the Fortiers at the sale made by the register of wills was void, should there be a decree in favor of the complainant, establishing her title to th lands in question, and placing her in possession, until she has returned or tendered the money which the Fortiers paid on their purchase? This inquiry presents the second ground of defence relied on by appellee.

Clark bought the property for $120,000, wholly on credit, and gave a mortgage on it to secure the purchase-money. It was sold for the same price to the Fortiers, who purchased in good faith. Every cent of the purchase-money was applied to the extinguishment of the mortgage executed by Clark, and for which his estate was liable. No repayment or tender of this sum or any part of it is averred in the bill. Upon this state of facts, we do not think the complainant is entitled to a decree.

To allow the heir or the devisee of a mortgagor, under the circumstances of this case, to recover the property without repaying the money for which it had been sold, and which had been paid by a bona fide purchaser, and had been applied to clear the property of a mortgage which rested upon it, and for which the estate of the mortgagor was bound, would be most inequitable and unjust. It would be an utter disregard of the rule that they who seek equity must do equity. No support for such a decree can be found in the adjudged cases.

On the contrary, in Scott v. Dunn (1 Dev. & B. (N. C.) Eq. 425), it was held that where an executor sold lands and applied the proceeds to the payment of the debts under a mistake of his power, and the purchaser was evicted by the devisee, the land in equity would be subjected to indemnify the purchaser to the extent to which the purchase-money was applied to the payment of the debts over and above the personal estate.

So in Valle v. Fleming's Heirs (29 Mo. 152), it was held that when land is purchased in good faith at an administrator's sale, which is void because the requirements of the statute are not pursued, and the purchase-money is applied in extinguishment of a mortgage to which such land was subject in the hands of the owner, the purchaser will be subrogated to the rights of the mortgagee to the extent of the purchase-money applied in the extinguishment of the mortgage, and the owner will not be entitled to recover possession until he repays such purchase-money.

To precisely the same effect are the cases of Blodgett v. Hitt, 29 Wis. 169, and Hudgin v. Hudgin, 6 Gratt. (Va.) 320. See also Mohr v. Tulip, 40 Wis. 66; Grant v. Lloyd, 22 Miss. 191; Short v. Porter, 44 id. 533; Haynes v. Meeks, 10 Cal. 110. And see Freeman on Void Judicial Sales, sect. 51, where the authorities on this question are collected and discussed.

The views held in the cases above referred to are sanctioned also by the jurisprudence of Louisiana. Thus, in Barelli v. Gauche (24 La. Ann. 324), it was held that an action to annul a judicial sale of real property on the ground of irregularities in the proceedings cannot be maintained against the purchaser, unless the parties claiming its nullity have paid or offered to reimburse the purchaser the amounts of the mortgages resting on the property, which he has paid since the purchase. A tender of the amounts thus paid is an essential prerequisite to the prosecution of a suit to annul.

So in Davidson v. Davidson (28 La. Ann. 269), it was held that a sale made by an administrator to pay debts 'could not be disturbed unless the heirs previously returned or offered to return the price of the adjudication.'

In Jouet v. Mortimer (29 Id. 207), the court said: 'Nothing could be more unjust than to permit a debtor to recover cover back his property because the sale is irregular, and yet allow him to profit by that irregular sale to discharge his debt.'

See Coiron v. Millaudon, 3 id. 664; Seawell v. Payne, 5 id. 255; Barret v. Emerson, 8 id. 503; also Dufour v. Camfranc, 11 Mart. (La.) 607.

The same rule prevailed in the civil law. It was said by Mr. Justice Story, in Bright v. Boyd (2 Story, 478): 'There is still anothe principle of the Roman law which is applicable to the present case. It is, that where a bona fide purchaser of real estate pays money to discharge any existing incumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner seeking to recover the estate from him.'

See also Dig., lib. 6, tit. 1, l. 65; Pothier, Pand., lib. 6, tit. 1, n. 43; Pothier, De la Propriete, n. 343.

The authorities cited settle conclusively the proposition that the complainant is not entitled to the decree she seeks without repayment or tender of the purchase-price of the lands in controversy, which has been applied to the extinguishment of a mortgage thereon.

No case is cited by counsel for appellee where the court refused to give a purchaser in good faith the benefit of this rule. The authorities relied on by him (Sugden on Vendors, c. 16, p. 483; 3 Atk. 287) apply only to purchases in bad faith.

We are aware that it has been held that a purchaser at an irregular or void judicial or execution sale is not subrogated to the rights of the judgment creditor. Richmond v. Marston, 15 Ind. 134.

The weight of authority is, however, against this position. McLaughlin v. Daniel, 8 Dana (Ky.), 182; Bentley v. Long, 1 Strobh. (S.C..) Eq. 43; Howard v. North, 5 Tex. 290; Jackson v. Bowen, 7 Cow. (N. Y.) 13. And this court has expressly held that an irregular judicial sale, made at the suit of a mortgagee, even though no bar to the equity of redemption, passes to the purchaser at such sale all the rights of the mortgagee as such. Brobst v. Brock, 10 Wall. 519.

But it is not necessary for the appellant to stand upon the doctrine of subrogation. She is in possession, and ought not to be deprived thereof upon a proceeding in equity, unless the complainant offers to do equity. What we decide on this branch of the case is this: when the purchase-money paid by a purchaser in good faith, of real estate of a decedent ordered to be sold by a Probate Court, has been applied to the extinguishment of a mortgage executed by the decedent upon the property sold, and constituting a valid incumbrance thereon, and it turns out that the sale is irregular or void, the purchaser cannot be ousted of his possession upon a bill in equity filed by the heir or devisee, without a repayment or tender of the purchase-money so paid and applied.

As the points already decided are conclusive of the case, it is unnecessary to express any opinion on the third defence set up by the appellant; namely, the prescriptions of ten, twenty, and thirty years declared by the Civil Code of Louisiana.

The litigation of which this case forms a part has been before this court in various forms in the following cases: Ex parte Myra Clarke Whitney, 13 Pet. 404; Gaines v. Relf, 15 id. 9; Gaines v. Chew, 2 How. 619; Patterson v. Gaines, 6 id. 550; Gaines v. Relf, 12 id. 472; Gaines v. Hennen, 24 id. 553; Gaines v. New Orleans, 6 Wall. 642; Gaines v. De La Croix, id. 79; New Orleans v. Gaines, 15 id. 624; Gaines v. Fuentes, 92 U.S. 10.

We think the facts of this case distinguish it from all the cases above mentioned, and our opinion is, that upon the averments made in this bill, and the evidence adduced to support it, the appellee, Mrs. Gaines, is not entitled to a decree against the appellant. So much, therefore, of the decree of the Circuit Court as relates to the property bought by Michel Fortier and Omer Fortier, and now claimed by the widow and heirs of Minor Kenner, deceased, must be reversed, and the cause remanded with directions to dismiss the bill, so far as it concerns the appellant.

So ordered.

MR. JUSTICE MATTHEWS took no part in the decision of this case.

title: Davis v. Gaines/Opinion of the Court


text: Talk:Davis v. Gaines/Opinion of the Court

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


text:
Hyde v. Ruble

ERROR to the Circuit Court of the United States for the Distr ct of Minnesota.

The facts are stated in the opinion of the court.

Mr. Angus Cameron for the plaintiffs in error.

Mr. Gordon E. Cole, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Hyde v. Ruble


text: Talk:Hyde v. Ruble

title: Talk:Hyde v. Ruble


text:
Hyde v. Ruble/Opinion of the Court

This was a suit begun by Ruble and Green, on the 6th of March, 1880, in a State court of Minnesota, upon an alleged contract of bailment made by the defendants as partners. The amount involved was a little more than $500. The plaintiffs were citizens of Minnesota. Only one defendant, Rowell, was a citizen of that State. The business of the alleged partnership was carried on there. He filed a separate answer to the complaint, in which he denied the existence of any partnership between himself and the other defendants, and set up a full performance of the contract on his part. The other defendants joined in a separate answer for themselves, in which they denied any partnership with him, and any contract between themselves and the plaintiffs. They also denied generally all the allegations of the complaint.

On the 12th of April, 1880, after these answers were in, all the defendants, including Rowell, filed in the State court a petition for the removal of the suit to the Circuit Court of the United States for the District of Minnesota, on the ground of the citizenship of the parties. At the next term of the Circuit Court the cause was remanded to the State court. This order was entered in the Circuit Court July 31, 1880, and a copy thereof filed in the State court on the 11th of August. On the 12th of January, 1881, at a term of the State court which began on the 10th of that month, another petition was filed, by all the defendants who were not citizens of Minnesota, for a removal of the suit, as to themselves, on the ground that there could be a final determination of the controversy, so far as it concerned them, without the presence of Rowell as a party. It is not contended that this petition was filed in time to effect a removal under the second clause of the second section of the act of March 3, 1875, c. 137 (18 Stat., pt. 3, p. 470); but the State court, under the second clause of sect. 639 of the Revised Statutes, ordered a removal, so far as concerned the petitioning defendants, leaving the suit to proceed in that court as to Rowell. When the case was docketed in the Circuit Court under this second removal it was again remanded. To reverse these several orders of the Circuit Court this writ of error has been brought by the defendants.

This action is clearly one sounding in contract and not in tort. According to the allegations of the complaint the plaintiffs stored, at an agreed rate, their wheat with the defendants, who undertook to buy it and pay for it at the market price whenever the plaintiffs wanted to sell. The action is brought to recover what is alleged to be due on the price according to the terms of this contract. All the allegations of wrongful conversion are immaterial, and in no way change the character of the suit.

The suit, then, as it stands on the complaint, is in respect to a controvesy between the parties as to the liability of the defendants on a single contract. One ground of defence is, that there was no partnership between the defendants, and that Rowell alone was bound by the contract that was made; and another, that the contract, by whomsoever made, had been fully performed. Clearly, then, under our rulings in Removal Cases (100 U.S. 457) and Blake v. McKim (103 id. 336) the case was not removable under the first clause of the second section of the act of 1875, because all the parties on one side of the controversy were not citizens of different States from those on the other.

Neither do we think it was removable under the second clause of the same section, on the ground that there was in the suit a separate controversy wholly between citizens of different States. To entitle a party to a removal under this clause there must exist in the suit a separate and distinct cause of Action in respect to which all the necessary parties on one side are citizens of different States from those on the other. Thus, in Barney v. Latham (103 id. 205), two separate and distinct controversies were directly involved: one as to the lands held by the Winona & St. Peter Land Company, in respect to which the land company was the only necessary party on one side and the plaintiff on the other; and the second as to the moneys collected from the sales of lands before the land company was formed, and as to which only the natural persons named as defendants were the necessary party on one side and the plaintiffs on the other. One was a controversy about the land and the other about the money. Separate suits, each distinct in itself, might have been properly brought on these two separate causes of action, and complete relief afforded in each suit as to the particular controversy involved. In that about the land, the land company would have been the only necessary defendant; and in that about the money, the natural persons need only have been brought in. In that about the land there could not have been a removal, because the parties on both sides would have been citizens of the same State; while in that about the money there could have been, as the plaintiffs would all be citizens of one State, while the defendants would all be citizens of another. When two such causes of action are found united in one suit, we held in the case last cited there could be a removal of the whole suit on the petition of one or more of the plaintiffs or defendants interested in the controversy, which, if it had been sued on alone, would be removable. But that, we think, does not meet the requirements of this case. This suit presents but a single cause of action, that is to say, a single controversy. The issues made by the pleadings do not create separate controversies, but only show the questions which are in dispute between the parties as to their one controversy.

The suit is, therefore, governed by the principles applied in Removal Cases and Blake v. McKim, rather than those in Barney v. Latham, and was properly remanded.

The second clause of sect. 639 of the Revised Statutes was, as we think, repealed by the act of 1875, and as the second petition for removal was not filed in time under the act of 1875, it was of no avail. The whole case depends on the first petition.

Affirmed.

title: Hyde v. Ruble/Opinion of the Court


text: Talk:Hyde v. Ruble/Opinion of the Court

title: Talk:Hyde v. Ruble/Opinion of the Court


text:
Bronson v. Schulten

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

The Solicitor-General for the plaintiff in error.

Mr. Samuel Shellabarger, Mr. Jeremiah M. Wilson, and Mr. Almon W. Griswold, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Bronson v. Schulten


text: Talk:Bronson v. Schulten

title: Talk:Bronson v. Schulten


text:
Bronson v. Schulten/Opinion of the Court

On the twenty-sixth day of January, 1877, the following order was made of record in the court below:--

'J. W. SCHULTEN ET AL.}

v.}

GREENE C. BRONSON and 22 other Causes.}

'A motion having come on to be heard before this court in the     above-entitled causes to open the judgments therein:

'Now, on reading and filing notice of motion dated Dec. 27,     1876, and affidavits annexed of Almon W. Griswold and A.      Heydenreich, on the part of the plaintiffs, and Almon W.      Griswold having been heard for the motion on the part of the      plaintiffs, and George Bliss, Esq., U.S. District Attorney,      in opposition thereto, and due deliberation had, it is      ordered that the judgments entered in the above-entitled      causes upon the verdicts therein be vacated, and that the      assessment of the plaintiffs' damages under the verdicts in      said causes be referred to John I. Davenport, Esq., as sole      referee.

'And it is further ordered that the referee proceed to adjust     de novo the plaintiffs' damages under said verdicts in      accordance therewith, and from the amounts found due, if any,      he deduct the sums paid upon the judgment heretofore entered      in each of said cases, respectively, and that he report the      balanc, if any, found due the plaintiffs in each of said      cases.

'The said referee shall give notice to the attorneys of the     respective parties of the time and place of hearing therein,      and either party may, on the hearing, raise objections, and      said referee shall decide thereon, and either party may file      exceptions to such decision of the referee within two days      after the filing of the referee's report, and bring them to a      hearing before the court upon four days' notice.

'Dated Jan. 26, 1877.'

March 8, 1877, another order was made that the action be continued in the name of Lucretia Bronson, executrix of the will of Greene C. Bronson, who had died in 1863. March 10, the referee's report was filed, in which it was found that there was due plaintiffs, in addition to what had been paid under the judgment set aside, the sum of $1,205.90, and on this sum interest was allowed to the amount of $2,017.21. For these sums, with added costs, a judgment was rendered in their favor. To reverse this judgment the present writ of error is brought.

Enough of the record of the original suit, the judgment in which is thus set aside, is produced before us to show that the action was against Bronson, as collector of customs for the port of New York, and the claim was for duties in excess of what was authorized by law on a large number of separate importations; that a verdict was given on the trial for plaintiffs for 'the amount, with interest, of the difference between duties levied and paid under protest, on commissions at two and one-half per cent, and such duties if levied on commissions at two per cent,' on the class of importations in question. The commissions alluded to were those paid by the importers before shipment to this country. As the amount to be recovered under this verdict was matter of computation and inspection of the custom-house papers, it was referred to Samuel Ogden to make report.

Neither the judgment of the court which was set aside, nor the report of Ogden, on which that judgment must have been entered, nor the plaintiffs' bill of particulars, on which the action was based, is found in the transcript of the record on which we are to consider this case. Nor is there any bill of exceptions, as there should have been, embodying the evidence on which the court acted in setting aside the former judgment. Nor is the date of that judgment to be ascertained from anything in this record, unless we can look at certain affidavits found in the transcript; for neither the notice of the motion to set is aside nor the order granting that motion mention the date of that judgment. It would seem that a party seeking to open or set aside a judgment seventeen years after it had been entered and the amount of it paid, in order that another judgment for a larger amount might be rendered in the same suit, was not very anxious to call attention to dates.

This imperfect state of the record has made us hesitate to enter upon a review of the case, but as the order setting aside the original judgment refers to the notice of motion and the annexed affidavits as the foundation of that order, and identifies those papers as they are found in the transcript, we are of opinion that they may be considered as part of the record, so far as the question of the authority of the court to make that order is involved.

Looking to these affidavits, in connection with what is more strictly a part of the record, it appears that the original suit was commenced in one of the State courts, Sept. 2, 1858, and afterwards removed into the Circuit Court of the United States, where plaintiffs filed a declaration containing the common counts. It appears that they also served a bill of particulars, setting out seventy-four entries of goods at the custom-house, on which they had been charged excessive duties by the defendant Bronson, which they had paid under protest. The affidavit of Murray, a refund clerk in the custom-house, states that in thirty-four of these entries the sums which should have been allowed plaintiffs were omitte in the adjustment. It was on this statement that the judgment rendered on the report of the first referee, Ogden, without objection or exception on either side, on the fifth day of August, 1860, was set aside, and a new reference made. This judgment, it appears, was also paid and accepted by plaintiffs in a few days, we may suppose, after it was rendered. The affidavit of plaintiffs' attorney, who attended to the original action, and on whose motion the original judgment was set aside, states that the adjustments were made by Ogden, who was an auditor at the custom-house, and by the collector of customs, and by the clerk of the court; that in 1864 he discovered that certain errors had been committed in fourteen other cases of a similar character, in which other persons were plaintiffs, to their prejudice, for which new actions were commenced, and held barred by the Statute of Limitations; that as to other cases, including the one now before us, he did not discover that items embraced in the bill of particulars had been omitted, until an investigation of certain recent cases of like character against Collector Redfield; that in the readjustment of these latter cases his attention was turned to the source of the errors in the one now in question. The affidavits of Heinrich and Murray tend to show that all was not included in the adjustment under the verdict that ought to have been.

We have thus a case in which plaintiffs sue for excessive charges on account of these commissions paid on seventy-four entries of goods, specifically set out in their bill of particulars. A verdict is rendered in their favor fixing the precise error under a which the exessive duty had been exacted, and leaving to a referee to ascertain the amount due on each of these entries. The referee reports as to all but thirty-four, nearly half, of these entries, and as to them makes no report. A judgment is rendered in conformity to the report, the money paid and accepted, and seventeen years afterwards the judgment is opened to correct the omission of these thirty-four entries.

We are of opinion that, if there was any mistake in the report of the referee and in the judgment rendered thereon, it was so clearly due to the negligence and inattention of plaintiffs or their attorney, that no case is made for relief in any of the modes known to the law, of correcting an erroneous judgment after the term at which it was rendered.

Stress is laid upon the fact in argument that the referee was one of the clerks in the custom-house, who had access to all the books and papers of the office. It is probable he was selected by both parties because of his familiarity with those accounts, but he is not mentioned in the order of reference as such clerk or officer. Any other person so appointed would have been permitted to examine the necessary books and papers, and in this matter he must be held to be, as no doubt he was, an impartial referee, representing neither the collector nor the government which was to pay the sum found due.

The plaintiffs had the same right to appear before him, examine his report and the evidence on which it was founded, to take and urge to the court exceptions to it, as in case of any other reference. Nothing of the kind was done, and though it is here said that no report at all was made as to thirty-four out of seventy-four entries set out in plaintiffs' bill of particulars, no exception was made to the report on that ground, nor any inquiry made as to the reason for such omission. It is obvious that if this had been done, the error which is now complained of would have been corrected before the report of the referee was confirmed and judgment rendered on it.

If, then, there was no question of lapse of time, or of the power of the court over its own judgments after the term at which they are rendered, and if this were a bill in chancery to set aside this judgment on the ground of mistake, it is clear that no relief could be granted, because of the negligence, carelessness, and inattention and laches of he plaintiffs, or of their attorney, in the matter.

Does the power of the court over its own judgment, exercised in a summary manner on motion, after the term at which it was rendered, extend beyond this?

In this country all courts have terms and vacations. The time of the commencement of every term, if there be half a dozen a year, is fixed by statute, and the end of it by the final adjournment of the court for that term. This is the case with regard to all the courts of the United States, and if there be exceptions in the State courts, they are unimportant. It is a general rule of the law that all the judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court.

But it is a rule equally well established, that after the term has ended all final judgments and decrees of the court pass beyond its control, unless steps be taken during that term, by motion or otherwise, to set aside, modify, or correct them; and if errors exist, they can only be corrected by such proceeding by a writ of error or appeal as may be allowed in a court which, by law, can review the decision. So strongly has this principle been upheld by this court, that while realizing that there is no court which can review its decisions, it has invariably refused all applications for rehearing made after the adjournment of the court for the term at which the judgment was rendered. And this is placed upon the ground that the case has passed beyond the control of the court. Brooks v. Railroad Company, 102 U.S. 107; Public Schools v. Walker, 9 Wall. 603; Brown v. Aspden, 14 How. 25; Cameron v. McRoberts, 3 Wheat. 591; Sibbald v. United States, 12 Pet. 488; United States v. The Brig Glamorgan, 2 Curt. C. C. 236; Bradford v. Patterson, 1 A. K. Marsh. (Ky.) 464; Ballard v. Davis, 3 J. J. Marsh. (Ky.) 656.

But to this general rule an exception has crept into practice in a large number of the State courts in a class of cases not well defined, and about which and about the limit of this exception these courts are much at variance. An attempt to reconcile them would be entirely futile. The exception, however, has its foundation in the English writ of error coram vobis, a writ which was allowed to bring before the same court in which the error was committed some matter of fact which had escaped attention, and which was material in the proceeding. These were limited generally to the facts that one of the parties to the judgment had died before it was rendered, or was an infant and no guardian had appeared or been appointed, or was a feme covert and the like, or error in the process through default of the clerk. See Archbold's Practice.

In Rolle's Abridgment, p. 749, it is said that if the error be in the judgment itself, a writ of error does not lie in the same, but in another and superior court.

In Pickett's Heirs v. Legerwood (7 Pet. 144), this court said that the same end sought by that writ is now in practice generally attained by motion, sustained, if the court require it, by affidavits; and it was added, this latter mode had so far superseded the former in the British practice, that Blackstone did not even notice the writ as a remedy.

It is quite clear upon the examination of many cases of the exercise of this writ of error coram vobis found in the reported cases in this country, and as defined in the case in this court above mentioned, and in England, that it does not reach to facts submitted to a jury, or found by a referree, or by the court sitting to try the issues; and therefore it does not include the present case.

There has grown up, however, in the courts of law a tendency to apply to this control over their own judgments some of the principles of the courts of equity in cases which go a little further in administ ring summary relief than the old-fashioned writ of error coram vobis did. This practice has been founded in the courts of many of the States on statutes which conferred a prescribed and limited control over the judgment of a court after the expiration of the term at which it was rendered. In other cases the summary remedy by motion has been granted as founded in the inherent power of the court over its own judgments, and to avoid the expense and delay of a formal suit in chancery. It can easily be seen how this practice is justified in courts of the States where a system has been adopted which amalgamates the equitable and common-law jurisdiction in one form of action, as most of the rules of procedure do.

It is a profitless task to follow the research of counsel for the defendants in error through the numerous decisions of the State courts cited by them on this point in support of the action of the Circuit Court. The cases from the New York courts, which go farthest in that direction, are largely founded on the statute of that State, and we are of opinion that on this point neither the statute of that State nor the decisions of its courts are binding on the courts of the United States held there.

The question relates to the power of the courts and not to the mode of procedure. It is whether there exists in the court the authority to set aside, vacate, and modify its final judgments after the term at which they were rendered; and this authority can neither be conferred upon nor withheld from the courts of the United States by the statutes of a State or the practice of its courts.

We are also of opinion that the general current of authority in the courts of this country fixes the line beyond which they cannot go in setting aside their final judgments and decrees, on motion made after the term at which they were rendered, far within the case made out here. If it is an equitable power supposed to be here exercised, we have shown that a court of equity, on the most formal proceeding, taken in due time, could not, according to its established principles, have granted the relief which was given in this case.

It is also one of the principles of equity most frequently relied upon that the party seeking relief in a case like this must use due diligence in asserting his rights, and that negligence and laches in that regard are equally effectual bars to relief.

As we have already seen, nothing hindered the plaintiffs from discovering the mistake of which they complain for seventeen years but the most careless inattention to the proceeding in which they had claimed these rights and had them adjudicated.

There was here an acquiescence for that length of time in the correctness of a judgment which had been paid to them, when the error, if any existed, only needed a comparison of their own bill of particulars with the report of the referee, to be seen, or at least to be suggested. Having been negligent originally, and having slept on their rights for many years, they show no right, under any sound practice of the control of courts over their own judgments, to have that in this case set aside.

It follows that the judgment of the Circuit Court must be reversed, with directions that the order vacating the former judgment be set aside, and the motion of plaintiffs in that matter be overruled.

So ordered.

NOTE.-Bronson v. Loeschigk, Bronson v. Warburg, Bronson v. Grossman, Redfield v. La Chaise, and Redfield v. Mitchell were brought by writ of error to the same court and argued at the same time as was the preceding case.

MR. JUSTICE MILLER, in giving the opinion of the court, stated that they were governed by the principles announced in that case, and that in each a judgment would be entered reversing that of the Circuit Court, with directions to set aside the order vacating the original judgment, and to overrule the motion on which that order was made.


text: Talk:Bronson v. Schulten/Opinion of the Court


text:
Cummings v. Jones

MOTION to dismiss a writ of error to the Supreme Court of the State of Louisiana.

The facts are stated in the opinion of the court.

Mr. Charles W. Hornor in support of the motion.

Mr. Samuel Field Phillips, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Cummings v. Jones


text: Talk:Cummings v. Jones

title: Talk:Cummings v. Jones


text:
Cummings v. Jones/Opinion of the Court

This is a writ of error to the Supreme Court of Louisiana, brought more than two but less than five years after the judgment to be reviewed was rendered, and one of the questions raised on this motion is whether the limitation of two years prescribed by sect. 1008 of the Revised Statutes, for bringing writs of error to the Circuit and District Courts, applies to writs of error to State courts. We have no hesitation in saying it does. Sect. 1003 provides that 'writs of error from the Supreme Court to a State court, in cases authorized by law, shall be issued in the same manner, and under the same regulations, and shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States.' This is almost the exact language of a similar provision in the twenty-fifth section of the Judiciary Act of 1789, and we are not aware it was ever supposed that writs issued to the State court under that section were not subject to the limitation prescribed for writs to the Circuit Courts by the twenty-second section. In Brooks v. Norris (11 How. 204), this seems to have been assumed, and a writ to a State court was dismissed 'on the ground that it is barred by the limitation of time prescribed by the act of Congress.' There was at that time no other limitation than the one contained in the twenty-second section.

Inasmuch as the writ was not brought within two years after the judgment complained of was rendered, the motion is

Granted.

title: Cummings v. Jones/Opinion of the Court


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


text:
Quinby v. Conlan

ERROR to the Supreme Court of the State of California.

The facts are stated in the opinion of the court.

Mr. Robert H. Bradford and Mr. Willis Drummond for the plaintiff in error.

Mr. James Coleman for the defendant in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Quinby v. Conlan


text: Talk:Quinby v. Conlan

title: Talk:Quinby v. Conlan


text:
Quinby v. Conlan/Opinion of the Court

This was an action for the possession of certain real property in the county of Los Angeles, in the State of California. The complaint is in the usual form in such actions, according to the system of pleading prevailing in that State, alleging the ownership of the premises by the plaintiff and his right to their possession on a day designated, the wrongful entry thereon by the defendant, and his subsequent occupation thereof, to the plaintiff's damage.

It also alleges the value of the rents and profits during the occupation of the defendant, and prays judgment for restitution of the premises to the plaintiff, for his damages for their occupation, and for the rents and profits lost.

The answer of the defendant denies the several allegations of the complaint, and then sets up in a special count, by way of a cross-complaint, various matters which, as he claims, constitute in equity a good defence to the action and entitle him to a decree, that he has an equitable right to the premises, and that the plaintiff holds the legal title for him.

Under the system of pleading which obtains in California an equitable defence of this nature, as well as a defence at law, may be set up to an action for the possession of land. In such case the grounds of equitable relief must be set forth separately from the defence at law. The answer presenting them is in the nature of a bill in equity, and must contain all its essential allegation. It must disclose a case which, if established, will justify a decree adjudging that the title be transferred to the defendant, or enjoining the further prosecution of the action. The equitable defence is, therefore, first to be disposed of by the court before the legal remedy is considered. Upon its disposition the necessity of proceeding with the legal action will depend. When that action does procee, the ordinary rules as to the controlling influence of the legal title will apply. Estrada v. Murphy,19 Cal. 248 273; Arguello v. Edinger, 10 id. 150.

This statement will explain Estrada v. Murphy, 19 Cal. 248, singular in the record, that one judge heard the issues raised by the special answer in the nature of a cross-complaint in equity, and another judge of the same court subsequently tried the issues in the action at law. There was no more impropriety in this hearing of the different issues by different judges, or incongruity with established modes of procedure, than there would have been had the issues in the cross-action been presented in an independent suit.

The grounds put forth for equitable relief consist of alleged erroneous rulings of the Land Department upon two matters,-the possession and improvement of the lands in controversy by the parties claiming a pre-emption right to them; and the time when that portion of the lands in controversy, claimed to be within the limits of a confirmed Mexican grant, was shown, by a survey of the grant and the appropriation of other lands to its satisfaction, to be without them and thus open to settlement and pre-emption.

1. The lands in controversy constitute the west half and the southeast quarter of a quarter-section. The plaintiff, Conlan, entered upon them in February, 1865, occupying a portion thereof, and declaring his purpose to acquire, as a settler, a pre-emption right to them. The township was surveyed by the authorities of the United States in February, 1868, and the plat filed in the proper land-office in April following. In May, 1868, Conlan filed his declaratory statement in the form required by law, claiming the quarter-section as a pre-emptor. In May, 1869, four years after Conlan's settlement, the defendant, Quinby, settled upon the quarter-section, occupying a portion thereof, declaring his intention to acquire, as a settler, a pre-emptive right to the land, and in November, 1871, he filed his declaratory statement claiming it as a pre-emptor. Previously to his possession various parties had occupied portions of the section, and had conveyed to him whatever interest they held. It would seem from the answer and the frequent reference to the prior occupation of these parties, that it was supposed that this fact in some way increased the equity of his possession and gave him a better pre-emptive right to the lands than that claimed by the plaintiff. But to this position there are two answers: 1st, It does not appear that the grantors of the defendant ever contemplated the acquisition of a pre-emptive right to the lands by their settlement; and, 2d, The act of Congress forbids the sale of pre-emptive rights to the public lands acquired by settlement and improvement. The general pre-emption law declares that all transfers and assignments of rights thus obtained prior to the issuing of the patent shall be null and void. This court held looking at the purpose of the prohibition-that it did not forbid the sale of the land after the entry was effected, that is, after the right to a patent had become vested, but did apply to all prior transfers. The policy of preventing speculation through the instrumentality of temporary settlers would otherwise be defeated. Myers v. Croft, 13 Wall. 291.

The claim of the defendant to a right of pre-emption stands, therefore, in no better plight than if there had been no prior occupant of the lands. His own settlement can alone be considered, and that dates, as already said, from May, 1869. He had no claim to the lands when the plaintiff settled upon them, and he acquired none by his purchase of parties who had previously occupied them.

He must also be considered as settling upon them with notice of the plaintiff's prior claim by his declaratory statement filed in the land-office the year before. The plaintiff could not, it is true, have asserted a pre-emptive right to the whole quarter-section as against parties at the time of his settlement in the occupation of a portio of them. Had such parties followed up their occupation and improvement by a declaratory statement when the public surveys were extended over the lands, the case would have been different. A settlement cannot be made upon public land already occupied; as against existing occupants, the settlement of another is ineffectual to establish a pre-emptive right. Such is the purport of our decisions in Atherton v. Fowler, 96 U.S. 513, and Hosmer v. Wallace, 97 id. 575.

But a settlement upon a portion of a quarter-section, and making the improvements required by law, will sustain a pre-emptive claim to the whole quarter-section as against subsequent settlers; and such subsequent settlement is not improved, or in any respect rendered more efficacious, by the fact of purchase from earlier occupants. The settlement which the law of Congress will recognize-except where the claim is made by a widow or heirs of a deceased settler-must be personal to the settler, and not that of others who may have conveyed to him.

2. As to the time when the portion of the land in controversy, originally claimed to be within the boundaries of a Mexican grant, was, by the survey of the grant, and the appropriation of other lands to its satisfaction, excluded from them, and thus became open to settlement and pre-emption, only a few words are necessary.

It does not clearly appear from the record what portion of the land in controversy was covered by the claim under the Mexican grant. It would seem, from the complaint, to have been the southeast quarter of the quarter-section; but it is not material. The court found that the grant was surveyed in January or February, 1868, under the act of Congress of July 3, 1866, c. 219, entitled 'An Act to quiet land-titles in California;' that such survey was finally approved, and a patent issued upon it; and that the land in controversy was not included within it, but 'was public land and subject to pre-emption' at the time the plaintiff filed his declaratory statement. The jury, it is true, found, generally, the reverse of this,-that the land was claimed to be within the boundaries of the grant when the declaratory statement was filed. Hence it is contended that the approval of the survey must be considered as subsequently given. It is also contended that a similar conclusion must follow from the period, required by the act of July 1, 1864, for the publication of notice of the survey of a confirmed Mexican grant, before it could be forwarded to the land-office at Washington for approval. But to this argument or assumption there is a satisfactory answer. If there be in an equity case-and so far as the issues upon the cross-complaint are concerned they are to be treated as arising in a proceeding of that character-a conflict between the finding of the court and that of the jury, the former prevails. The finding of the jury is only advisory, and the court may disregard it, and follow its own judgment upon the evidence. Basey v. Gallagher, 20 Wall. 670, 680.

The survey in the case was made under the eighth section of the act of 1866, and was not subject to the provisions of the act of 1864, requiring publication of it before approval by the Commissioner of the General Land-Office. The statute of 1866 declares that in cases where no request is made within ten months after its passage, or within that period after any subseqent final confirmation, for a survey of a claim under a confirmed Mexican grant, pursuant to sects. 6 and 7 of the act of 1864, the surveyor-general of the United States for California shall cause the line of the public surveys to be extended over the land, and shall set off, in full satisfaction of the grant, and according to the lines of the public surveys, the quantity confirmed, and that the land not included in the grant thus set off by him shall be subject to the general laws of the United States. The survey by that officer of the grant, and the application of land to its satisfaction, as thus prescribed, could undoubtedly have been disapproved by t e Commissioner of the General Land-Office, and, had their correctness been contested, they might have been treated as in-operative until approved. But the approval by that officer, when given, took effect by relation as of the date when the survey and appropriation were made. They must be held valid from that time, so as to protect proceedings taken in accordance with them.

There was, therefore, nothing in the showing made by the defendant to justify the court below in granting the relief prayed, even if we were to take into consideration the facts stated as grounds of relief.

But independently of this conclusion there is a general answer to the alleged erroneous rulings of the officers of the Land Department as grounds for the interference of the court. Those rulings were upon mere matters of fact, or upon mixed questions of law and fact, which were properly cognizable and determinable by the officers of that department.

The laws of the United States prescribe with particularity the manner in which portions of the public domain may be acquired by settlers. They require personal settlement upon the lands desired and their inhabitation and improvement, and a declaration of the settler's acts and purposes to be made in the proper office of the district, within a limited time after the public surveys have been extended over the lands. By them a land department has been created to supervise all the various steps required for the acquisition of the title of the government. Its officers are required to receive, consider, and pass upon the proofs furnished as to the alleged settlements upon the lands, and their improvement, when pre-emption rights are claimed, and, in case of conflicting claims to the same tract, to hear the contesting parties. The proofs offered in compliance with the law are to be presented, in the first instance, to the officers of the district where the land is situated, and from their decision an appeal lies to the Commissioner of the General Land-Office, and from him to the Secretary of the Interior. For mere errors of judgment as to the weight of evidence on these subjects, by any of the subordinate officers, the only remedy is by an appeal to his superior of the department. The courts cannot exercise any direct appellate jurisdiction over the rulings of those officers or of their superior in the department in such matters, nor can they reverse or correct them in a collateral proceeding between private parties.

In this case the allegation that false and fraudulent representations, as to the settlement of the plaintiff, were made to the officers of the Land Department is negatived by the finding of the court. It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numerous officers of the Land Department, on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the case, as established before the department, construction, would have parties rights which, upon a correct construction, would hav been conceded to them, or where misrepresentations and fraud have been practised, necessarily affecting their judgment, that the courts can, in a proper proceeding, interfere and refuse to give effect to their action. On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be deemed settled. Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U.S. 330-340; Moore v. Robbins, 96 id. 530.

And we may also add, in this connection, that the misconstruction of the law by the officers of the department, which will authorize the interference of the court, must be clearly manifest, and not alleged upon a possible finding of the facts from the evidence different from that reached by them. And where fraud and misrepresentations are relied upon as grounds of interference by the court, they should be stated with such fulness and particularity as to show that they must necessarily hav affected the action of the officers of the department. Mere general allegations of fraud and misrepresentations will not suffice. United States v. Atherton, 102 U.S. 372.

In the present case the respective claims of the parties to a pre-emptive right to the land in controversy, from their settlement and improvements, had been the subject of earnest contestation before the officers of the Land Department, and a decision in favor of the plaintiff was finally rendered by the Secretary of the Interior. And the question whether the land in controversy had been so freed from its reservation under the Mexican grant as to be open to settlement and pre-emption depended upon matters disclosed by the record of proceedings in the Land Department, namely, that the public surveys had been extended over the land, and that other lands had been appropriated to the satisfaction of the grant.

Judgment affirmed.

title: Quinby v. Conlan/Opinion of the Court


text: Talk:Quinby v. Conlan/Opinion of the Court


text:
Boughton v. Exchange Bank

MOTION to dismiss a writ of error to the Supreme Court of the State of Pennsylvania.

This was a suit brought in the Court of Common Pleas of Philadelphia, by the American Exchange National Bank, against John W. Boughton, upon two promissory notes, whereof he was the maker. His affidavit of defence, alleging usury, having been declared to be insufficient, judgment was rendered against him, which was affirmed by the Supreme Court of the State. He then sued out this writ.

Mr. Samuel Wagner in support of the motion.

Mr. Thomas Greenbank, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Boughton v. Exchange Bank


text: Talk:Boughton v. Exchange Bank

title: Talk:Boughton v. Exchange Bank


text:
Boughton v. Exchange Bank/Opinion of the Court

To give us jurisdiction for the review of a judgment of a State court, the record must show affirmatively, or by fair implication, that some Federal question was involved which was necessary to the determination of the cause. The defence set up in this case was that the notes sued on were void for usury under the laws of New York, where they were made. Judgment was given against the plaintiff in error for want of a sufficient affidavit of defence. This judgment would be right if the affidavit was not such as was required by law or the practice of the court for the presentation of a defence like that relied on. As it is incumbent on him to show by the record, not only that this was not the ground of the decision below, but that some wrong determination of a Federal question was,-and it has not been done,-we might dismiss the suit without further examination; but on looking into the opinion, which has been sent up with the record, we find that the Court of Appeals based its judgment, which alone we can review, entirely on the fact that the affidavit was not sufficiently specific in its averments to meet the requirements of the rules of pleading applicable to such cases.

It is clear, therefore, that we have no jurisdiction.

Motion granted.


text: Talk:Boughton v. Exchange Bank/Opinion of the Court


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Neslin v. Wells

APPEAL from the Supreme Court of the Territory of Utah.

The facts are stated in the opinion of the court.

J. G. Sutherland and J. R. McBride for the appellant.

Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson for the appellees.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Neslin v. Wells


text: Talk:Neslin v. Wells

title: Talk:Neslin v. Wells