text:
Wabash Railway Company v. McDaniels/Opinion of the Court

That we are without authority to disturb the judgment upon the ground that the damages are excessive cannot be doubted. Whether the order overruling the motion for new trial, based upon that ground, was erroneous or not, our power is restricted to the determination of questions of law arising upon the record. Railroad Co. v. Fraloff, 100 U.S. 31.

We also remark, before entering upon the consideration of the matters properly presented for determination, that it is unnecessary to express any opinion upon the question whether the plaintiff and McHenry were fellow-servants, within the meaning of the general rule that the servant takes the risks of dangers ordinarily attending or incident to the business in which he voluntarily engages for compensation, including the carelessness of his fellow-servants. The plaintiff took no exception to the instructions, which proceeded upon the ground that plaintiff and McHenry were fellow-servants, and that in accepting employment from the company they risked the negligence of each other in the discharge of their respective duties. As no such question can arise upon the present writ of error, we pass to the examination, as well of the instructions to which the defendant excepted, as of those asked by it which the court refused to give.

At and before the time of the accident the plaintiff was a brakeman in the service of the defendant. When injured he was at his post of duty on one of the colliding trains. The collision, it is conceded, was the direct result of negligence on the part of McHenry, one of defendant's telegraphic night-operators, who was assigned to duty at a station on the line of its road. He was asleep when one of the trains passed his station, and ignorant, for that reason, that it had passed, he misled the train dispatcher at Fort Wayne as to its locality at a particular hour of the night. In consequence of the erroneous information thus conveyed to the train dispatcher, the trains were brought into collision, whereby the plaintiff lost his leg, and was otherwise seriously and permanently injured.

The court charged the jury, in substance,--

That the position of a telegraphic night-operator upon the     line of a railroad was one of great responsibility, the lives      of passengers and employes on trains depending upon his skill      and fidelity; that the company 'was bound to exercise proper and great care to      get a person in all respects fit for the place;' that while      the defendant did not guaranty to its servants the skill and      faithfulness of their fellow-servants, its duty was 'to use      all proper diligence in the selection and employment of a      night-operator,' and to discharge him, after being employed,      if it learned or had reason to believe he was incompetent or      negligent; that the plaintiff had a right to suppose that the      company 'would use proper diligence in the selection of its      telegraphic operators and all other employes whose incapacity      or negligence might expose him to dangers, in addition to      those which were naturally incident to his employment;' that      'what will amount to proper diligence on the part of the      master in the selection of a servant for a particular duty      will in part depend on the character and responsibility of      that duty;' that 'the same degree of diligence which is      required in the employment of a locomotive engineer would not      be required in the employment of a fireman;' that 'sound      sense and public policy require that railroad companies      should not be exempt from liability to their employes for      injuries resulting from the incompetency or negligence of      co-employes, when, by the exercise of proper diligence, such      injuires might be avoided;' that the presumption is that the      defendant 'exercised proper diligence in the employment of      McHenry, and the burden of proof of showing the contrary is      upon the plaintiff;' but 'if from any cause McHenry was not a      fit person to be intrusted with the responsible duties of      night-operator, and the defendant knew that fact, or by      reasonable diligence might have known it, it is liable, for      it is admitted that the plaintiff's injuries were the direct      result of McHenry's negligence, and there is no proof that      the plaintiff contributed to the accident by his own      negligence.

To each of these instructions the defendant excepted at the time, and in proper form.

Among those asked by the company, and for the refusal to give which error is assigned, is one which presents the distinction between the propositions of law presented to the jury for its guidance, and those which the railroad company requested to be given. It is as follows:

'Although McHenry may have been and was guilty of negligence,     and that negligence may have caused and did cause the      collision which resulted in the injury to the plaintiff      complained of, still the plaintiff cannot recover in this      action unless it appears from the evidence that the defendant      was guilty of negligence, either in the appointment of said      McHenry, or in retaining him in his position; and to      establish such negligence on the part of the defendant, not      only the incompetency of said McHenry must be shown, but it      must be shown that defendant failed to exercise ordinary care      or diligence to ascertain his qualifications and competency      prior to his appointment, or failed to remove him after his      incompetency had come to the notice of the defendant, or to      some agent or officer of defendant having power to emove said      McHenry.'

The court modified this instruction by striking out the word 'ordinary' in the only place where it occurred, and inserting in lieu thereof the word 'proper.' Thus modified the instruction was granted; the defendant excepting, at the time, to the refusal to give the instruction in the form presented.

The main contention of the defendant is that the jury were instructed that the duty of the company was to observe 'proper and great care,' when they should have been instructed that only ordinary care was required in the appointment and retention of its employes. The former degree of care, it is contended, is matter of opinion upon a question of law, while the latter is a question of fact. And the argument of counsel is that the question of ordinary care is to be determined by the usages or custom which obtain in railroad management, and therefore the proper inquiry is not what ought to be, but what is, the general practice in that business; that what the servant is presumed to know, and to have accepted as the basis of his employment, is the practice or custom as it is when, in hiring his services, he risks the dangers incident to his employment; that the law presumes that master and servant alike contract with reference to that which is equally within their observation and inquiry. Consequently, the company was required, in the selection of plaintiff's fellow-servants, whose negligence might endanger his personal safety, not to observe 'proper and great' (which counsel insists mean peculiar) care, but only that degree of diligence which the general practice and usage of railroad management sanctioned as sufficient.

In Hough v. ''Ry. Co.'' 100 U.S. 213, it was decided that among the established exceptions to the general rule as to non-liability of the common employer to one employe for the negligence of a co-employe in the same service, is one which arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master; that the master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter; and that it is implied in the contract between the master and the servant that, in selecting physical means and agencies for the conduct of the business, the master shall not be wanting in proper care. It was further said that the obligation of a railroad company, in providing and maintaining, in suitable condition, machinery and apparatus to be used by its employes, is the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered; and that 'its duty in that respect to its employes is discharged when, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care as well in their purchase originally, as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employes.'

These observations, as to the degree of care to be exercised by a railroad corporation in providing and maintaining machinery for use by employes, apply with equal force to the appointment and retention of the employes themselves. The discussion in the adjudged cases discloses no serious conflict in the courts as to the general rule, but only as to the words to be used in defining the precise nature and degree of care to be observed by the employer. The decisions, with few exceptions, not important to be mentioned, are to the effect that the corporation must exercise ordinary care. But according to the best-considered adjudications, and upon the clearest grounds of necessity and good faith, ordinary care, in the selection and retention of servants and agents, implies that degree of diligence and precaution which the exigencies of the particular service reasonably require. It is such care as, in view of the consequences that may result from negligence on the part of employes, is fairly commensurate with the perils or dangers likely to be encountered. In substance, though not in words, the jury were so instructed in the present case. That the court did not use the word 'ordinary' in its charge is of no consequence, since the jury were rightly instructed as to the degree of diligence which the company was bound to exercise in the employment of telegraphic night-operators. The court correctly said that that was a position of great responsibility, and, in view of the consequences which might result to employes from the carelessness of telegraphic operators, upon whose reports depended the movement of trains, the defendant was under a duty to exercise 'proper and great care' to select competent persons for that branch of its service. But that there might be no misapprehension as to what was in law such care, as applicable to this case, the court proceeded, in the same connection, to say that the law presumed the exercise by the company of proper diligence, and unless it was affirmatively shown that the incapacity of McHenry when employed, or after his employment and before the collision, was known to it, or by reasonable diligence could have been ascertained, the plaintiff was not entitled to recover. Ordinary care, then,-and the jury were, in effect, so informed,-implies the exercise of reasonable diligence, and reasonable diligence implies, as between the employer and employe, such watchfulness, caution, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful, prudent officers ought to exercise.

These observations meet, in part, the suggestion made by counsel, that ordinary care in the employment and retention of railroad employes means only that degree of diligence which is customary, or is sanctioned by the general practice and usage which obtains among those intrusted with the management and control of railroad property and railroad employes. To this view we cannot give our assent. There are general expressions in adjudged cases which apparently sustain the position taken by counsel. But the reasoning upon which those cases are based is not satisfactory, nor, as we think, consistent with that good faith which, at all times, should characterize the intercourse between officers of railroad corporations and their employes. It should not be presumed that the employe sought or accepted service upon the implied understanding that they would exercise less care than that which prudent and humane managers of railroads ought to observe. To charge a brakeman, when entering the service of a railroad company, with knowledge of the degree of care generally or usually observed by agents of railroad corporations in the selection and retention of telegraphic operators along the line traversed by trains of cars,-a branch of the company's service of which he can have little knowledge, and with the employe specially engaged therein he can ordinarily have little intercourse,-is unwarranted by common experience. And to say, as matter of law, that a railroad corporation discharged its obligation to an employe-in respect of the fitness of co-employes whose negligence has caused him to be injured-by exercising, not that degree of care which ought to have been observed, but only such as like corporations are accustomed to observe, would go far towards relieving them of all responsibility whatever for negligence in the selection and retention of incompetent servants. If the general practice of such corporations in the appointment of servants is evidence which a jury may consider in determining whether, in the particular case, the requisite degree of care was observed, such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised. A degree of care ordinarily exercised in such matters may not be due or reasonable or proper care, and therefore not ordinary care, within the meaning of the law.

It is further objected to the charge that the court below confounded the degree of care owed as a duty to passengers with the degree of care to be observed in the case of employes. This objection necessarily rests upon the assumption that the instruction as to the exercise of 'proper and great care' in the selection of telegraphic night-operators, accurately stated the degree of diligence to be observed as between the railroad company and passengers. But, clearly, the statement in the charge that the lives both passengers and employes depended upon the skill and fidelity of telegraphic operators employed by the corporation in connection with the movement of its trains, was not for the purpose of indicating, with legal precision, the degree of care upon which passengers could rely in all matters affecting their safety. They, at least, have the right to expect the highest or utmost; not simply a great degree of diligence on the part of passenger carriers and all persons employed by them. The reference, therefore, to passengers, in the instructions alluded to, was not calculated to make the impression that employes could count upon the same degree of care that is required by law towards passengers. Whether, in the selection and retention of telegraphic operators, upon whose capacity and watchfulness largely depends the personal safety of employes on trains, a corporation should or not exercise the same degree of care which must be observed in the case of passengers, it is not necessary now to consider or determine. It is sufficient to say that the corporation was bound, in the appointment and retention of such operators, to observe, as between it and its employes, at least the degree of care indicated in the charge to the jury.

Among the instructions asked in behalf of the company, the refusal to give which is the basis of one of the assignments of error, is the following:

'To render the carelessness of said McHenry the carelessness     of the defendant, or to render the defendant liable for the      same, it is incumbent on the plaintiff to prove that said      McHenry was appointed to or retained in his position as      telegraph operator with knowledge on the part of the company,      or some officer or agent of the company having the power of      appointment or removal. that he was incompetent, or that such     knowledge might have been obtained by the use of reasonable      diligence on the part of the defendant, or of such officer or      agent of the defendant.'

It is now complained that the refusal to give this instruction was practically a declaration to the jury that the company was responsible for knowledge which it had through any of its agents or through its agents generally; whereas it was liable only for the negligence or omission of those of its agents who were charged with the duty of selecting and controlling its employes and its general business. It is sufficient to say that this point-assuming the instruction in question to be correct-was covered by the last clause of the instruction to which our attention was first directed, and in terms quite as favorable to defendant as it was entitled to under the law. The court, in that instruction, expressly said that to establish the alleged negligence, not only the incompetency must be shown, 'but it must be shown that the defendant failed to exercise proper care or diligence to ascertain his qualifications and competency prior to his appointment, or failed to remove him after his incompetency had come to the notice of defendant, or to some agent or officer of defendant having power to remove said McHenry.'

It is not necessary to further extend the discussion of the questions pressed upon our consideration. We are of opinion that the case, in all of its aspects, was fairly placed before the jury in the instructions given by the court. No substantial error of law was committed to the prejudice of the company, and the judgment must be affirmed.


text: Talk:Wabash Railway Company v. McDaniels/Opinion of the Court

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


text:
Baldwin v. Starks

G. M. Lambertson, for plaintiff in error.

S. Shellabarger and J. M. Nelson, for defendant in error.

MILLER, J.

title: Baldwin v. Starks


text: Talk:Baldwin v. Starks

title: Talk:Baldwin v. Starks


text:
Baldwin v. Starks/Opinion of the Court

This is a writ of error to the supreme court of the state of Nebraska, and the jurisdiction of this court is questioned.

The substance of the original bill in the state court is that, in a contest for the right to enter a tract of land between Starks and Van Pelt, before the land department, the secretary of the interior erroneously decided in favor of Van Pelt, to whom a patent was issued; and the prayer of the bill is that Baldwin, who holds under Van Pelt, shall be decreed to hold the title in trust for Starks, and convey it to him, and be enjoined from prosecuting further an action of ejectment against plaintiff, which he has commenced for the land in controversy. That the decree which granted this relief denied to plaintiffs in error the right which they asserted under the patent from the United States, and was a decision against the title so asserted, and is therefore within section 709 of the Revised Statutes, is too well settled by numerous similar cases decided in this court to admit of further question. Johnson v. Towsley, 13 Wall. 86; Morrison v. Stalmaker, 104 U.S. 357; Marquez v. Frisbie, 101 U.S. 475.

The case was tried in the state court upon the record of the proceedings before the land-office, including the evidence on which the patent was issued to Van Pelt in the contest between him and Starks, with a stipulation involving a few other unimportant matters. That record shows that upon all the questions involved the department decided in favor of Starks, except one, which was that he was disqualified to make the pre-emption claim he was then prosecuting by reason of having previously exercised that right in regard to other lands. Whether he had thus made a filing of a former declaratory statement was a question of fact much contested before the department, in regard to which Starks himself was sworn, as were also several other witnesses, and the record of the alleged filing was also produced. On all this evidence the commissioner of the general landoffice decided that he had filed the previous declaration, and was, therefore, disqualified as a pre-emptor of the land now in controversy. On appeal to the secretary of the interior this decision was affirmed, and Starks' claim was rejected, and Van Pelt's allowed, and the patent issued to him. The supreme court of Nebraska holds that the land department decided this question of fact erroneously, and that Starks never filed or made the former declaratory statement that he was a qualified pre-emptor for the land patented to Van Pelt, and decrees a conveyance to him by Baldwin of the legal title vested by the patent. Baldwin v. Starks, 7 Neb. 114.

It has been so repeatedly decided in this court, in cases of this character, that the land department is a tribunal appointed by congress to decide questions like this, and when finally decided by the officers of that department the decision is conclusive everywhere else as regards all questions of fact, that it is useless to consider the point further. Where fraud or imposition has been practiced on the party interested, or on the officers of the law, or where these latter have clearly mistaken the law of the case as applicable to the facts, courts of equity may give relief; but they are not authorized to re-examine into a mere question of fact dependent on conflicting evidence, and to review the weight which those officers attached to such evidence. Johnson v. Towsley, 13 Wall. 86; Gibson v. Chouteau, Id. 102; Marquez v. Frisbie, 101 U.S. 475; Shepley v. Cowan, 91 U.S. 330.

The case before us is a simple re-examination by the supreme court of Nebraska of the evidence on which the commissioner of the land-office and the secretary of the interior decided that Starks had made a prior declaratory statement for the pre-emption of other land, and a reversal of that decision. 7 Neb. 114.

It is urged upon us that a written stipulation in the case describing what evidence shall be introduced, and the right to file written arguments, and that neither party shall be prejudiced by any defect in the pleadings, but that the case shall be decided on its merits, is a waiver of this point. But Van Pelt, the real party in interest, became a party to the suit, in a court below, six months after this stipulation was made between the counsel of Baldwin and of Starks, and is not bound by it. It would be strange, also, if, in a case like this, the right of the party to question the equitable jurisdiction of the court on the facts found, did not belong to the merits of the case. Some attempt is made to show that, under the decision of this court in Johnson v. Towsley, the objection to a double pre-emption does not apply except where the land is subject to entry by purchase. But the court was there speaking of the effect of such former filing of a declaration of intention under the act of 1841 on the rights afterwards asserted under the act of 1843. It is sufficient to say that both these acts, with all others on that subject, were considered in the Revised Statutes, and section 2261, which is a reproduction of the law in force when the rights of the parties here accrued, is positive that, when a party has filed his declaration of intention to claim the benefits of such provision (the right of pre-emption) for one tract of land, he shall not, at any future time, file a second declaration for another tract.

The decree of the supreme court of Nebraska is reversed, and the case remanded to that court, with directions to affirm the decree of the district court for the county of Lancaster dismissing the bill.

title: Baldwin v. Starks/Opinion of the Court


text: Talk:Baldwin v. Starks/Opinion of the Court


text:
Close v. Glenwood Cemetery

[Syllabus from pages 466-467 intentionally omitted]

Nathaniel Wilson and J. Hubley Ashton, for Close & Clendenin.

Cortlandt Parker and W. D. Davidge, for Borcherling.

T. W. Bartley, Jessup Miller, and ''Wm. F. Mattingly'', for Cemetery.

GRAY, J.

title: Close v. Glenwood Cemetery


text: Talk:Close v. Glenwood Cemetery

title: Talk:Close v. Glenwood Cemetery


text:
Close v. Glenwood Cemetery/Opinion of the Court

This is a bill in equity, filed on the twenty-fifth of October, 1877, by the Glenwood Cemetery, claiming to be a corporation extablished by act of congress, against Joseph B. Close, William S. Humphreys, Randolph S. Evans, and George Clendenin, praying for a conveyance of the legal title in a tract of land containing 90 acres, situated in the District of Columbia, known as the Glenwood Cemetery; and for an account. The bill was afterwards dismissed by consent as against Humphreys and Evans. The material facts, as shown by the proofs, are as follows:

In June, 1852, Humphreys, for the sum of $9,000, bought of     Junius J. Boyle the tract of land in controversy, and took      from him a deed of it, and immediately set about preparing it      for use as a cemetery. He inclosed with a high fence and laid     out with drives and walks, and improved and embellished, 30      acres of it, leaving the other 60 acres in their original      unimproved condition; and in March, 1853, put Clendenin in      charge as superintendent. Humphreys conveyed to Close an     undivided half of the premises in April, 1853, and the whole      tract in June, 1854. The two deeds were absolute in form, but     were, in fact, intended as security: the first for the      repayment of $20,000, advanced to Humphreys by Close, for the      purpose, as Close knew, of converting the estate into a      cemetery; and the second for the repayment of other advances      to the amount of $7,000, already made to him by Close, for      the same purpose, and of subsequent like advances, of the      amount of which there is no evidence but Close's own vague      and unsatisfactory testimony, unsupported by books or      vouchers; and the parties agreed in writing that if Humphreys      should meet his obligations, he should have back one-half of      the land. Humphreys thenceforward managed the property,     acting for himself and Close, through Clendenin as      superintendent, until September, 1859, when, having failed to meet his engagements, he      relinquished all his interest in the property to Close, and      Close became sole owner, and assumed control of the property,      retaining Clendenin as his superintendent to manage the      cemetery.

On the twenty-seventh of July, 1854, congress passed an act     entitled 'An act to incorporate the proprietors of Glen wood      Cemetery,' by which 12 persons named, eight of them residents      of the District of Columbia, and the other four being Close      and William Phelps, (since deceased,) residents of New      Jersey, and Humphreys and Evans, residing in New York, were      created a corporation by the name of 'The Proprietors of      Glenwood Cemetery, in the District of Columbia,' and were      empowered 'to purchase and hold not exceeding 100 acres of      land in the District of Columbia, north of the limits of the      city of Washington; to sell and dispose of such parts of said      land as may not be wanted for the purpose of a cemetery,      provided that at least 30 contiguous acres shall be forever      appropriated and set apart as a cemetery; with authority to      said corporation to receive gifts and bequests for the      purpose of ornamenting and improving said cemetery;' and it      was enacted that the affairs of the corporation should be      conducted by a president and three managers, to be 'elected      annually by a majority of the votes of the proprietors,' and      'each proprietor entitled to one vote for each share held by      him,' and that until the first election the four last-named      persons should be managers; that the president and managers      should have power, among other things, 'to lay out and      ornament the grounds,' 'to lay out and sell or dispose of      burial lots,' and 'to make such by-laws, rules, and      regulations as they may deem proper for conducting the      affairs of the corporation, for the government of lot-holders      and visitors to the cemetery, and for the transfer of stock      and the evidence thereof;' that 'the capital stock of said      company shall be represented by 2,000 shares of $50 each,      divided among the proprietors according to their respective      interests, and transferable in such manner as the by-laws may      direct;' that 'no streets, lanes, alleys, roads, or canals of      any sort shall be opened through the property of said      corporation, exclusively used and appropriated to the purpose      of a cemetery: provided, that nothing herein contained shall authorize said corporation to obstruct any      public road or street or lane or alley now actually opened      and used as such;' that any person willfully destroying,      injuring, or removing any tomb, monument, gravestone, fence,      railig, tree, or plant within the limits of the cemetery,      should be considered guilty of a misdemeanor; that 'each of      the stockholders in the said company shall be held liable in      his or her individual capacity for all the debts and      liabilities of the said company, however contracted or      incurred;' that 'burial lots in said cemetery shall not be      subject to the debts of the lot-holders thereof, and the land      of the company dedicated to the purposes of a cemetery shall      not be subject to taxation of any kind;' that a certificate,      under seal of the corporation, of the ownership of any lot,      should have the same effect as a conveyance of real estate;      and that 'it may be lawful for congress hereafter to alter,      amend, modify, or repeal the foregoing act.' 10 St. 789.

On the second of August, 1854, the ceremony of dedicating the     cemetery by appropriate religious services and addresses was      performed on the spot, in the presence of a number of people. Immediately afterwards a pamphlet was published and generally     circulated, containing a copy of the charter, a list of the      officers, including Close, Phelps, Humphreys, and Evans,      managers; Close, president; Humphreys, treasurer; and      Clendenin, superintendent; a full account of the proceedings      at the dedication in which the property was spoken of as set      apart and consecrated for the burial of the dead, and as      'altogether comprising 90 acres, 30 of which are now fully      prepared for interments;' and the by-laws of the cemetery, of      which the first was, 'All lots shall be held in pursuance of      'An act to incorporate the proprietors of Glenwood cemetery,'      approved July 27, 1854, and shall be used for the purposes of      sepulture alone.'

Close soon after received a copy of this pamphlet from     Humphreys, and from that time to the filing of the bill never      objected to the appropriation of the property in the manner      appearing thereby. In the course of the next 20 years about     2,000 lots were sold, and each purchaser was given a copy of      the pamphlet, and a certificate or deed of his lot, signed by Close, as president, bearing the seal of the      company, and having the by-laws printed thereon. The gross     receipts from the time of the opening of the cemetery to 1876      were $160,000. No stock was ever issued as provided in the     charter.

No taxes were ever paid on any part of the 90 acres. At     different times from 1871 to 1876 taxes were assessed, or      proposed to be assessed, by the municipal authorities upon      the 60 acres which had not been improved. But Close and     Clendenin, by representing to the assessors and collector      that the whole tract had been dedicated to burial purposes in      accordance with the charter, and by exhibiting to them the      charter and the pamphlet containing the account of the      dedication, induced them to recognize the exemption of the      whole tract from taxation.

On the twenty-eighth of February, 1877, congress passed an     act amending the act of the twenty-seventh of July, 1854;      changing the name of the corporation to 'The Glenwood      Cemetery;' providing that its property and affairs should be      under the control of a board of five trustees, any three of      whom should be a quorum, to be elected annually, 'three by      the proprietors of lots in said cemetery' (each to be      'entitled to one vote for each lot owned by him in good      faith, upon which a burial has been made') 'and two by the      original proprietors,' and to have authority to fill      temporary vacancies in the board; that these trustees should      so conduct the affairs of the cemetery 'as to secure the      equitable rights of each and every person having in any way      any vested interest in the said cemetery; and the cemetery      shall be amenable and subject to the jurisdiction of the      equity courts of the District of Columbia for any disregard      of the rights or interests of any person whatsoever;' that      'the words 'the proprietors,' where they occur in the      original act of incorporation hereby amended, shall be      interpreted and construed to mean and shall signify the      proprietors of lots in said cemetery, and which is hereby now      declared by this amendment to be the true intent and meaning      of said words;' and that, of the gross receipts arising 'from      the sale of lots hereafter sold of the ground now dedicated      to burial purposes,' one-fourth should be annually paid by      the trustees to the original proprietors, and the rest be devoted to the improvement and      maintenance of the cemetery. 19 St. 266.

Pursuant to this act, the owners of lots chose three     trustees, who, on the refusal of Close to recognize the      corporation as existing, or to appoint two other trustees,      filled up the vacancies in the board, and, on the refusal of      Close, and of Clendenin as his agent, to deliver up      possession to them, filed this bill to compel a conveyance of      the legal title and a delivery of possession of the whole      tract, and an account of the proceeds of any lots sold since      the organization under the act of 1877.

The defenses set up by Close and Clendenin, in their answers     and at the argument, are that there never was any acceptance      of the act of 1854, or formal organization of the corporation      under it, but the property remained the private property of      Close, except such lots as had been sold, for which he was      ready to give a legal title to the holders; that the act of      1877 was unconstitutional and void, as depriving him of his      property without adequate compensation; and that no part of      the 60 acres not inclosed was ever dedicated to the purposes      of a cemetery in such a way as to interfere with his absolute      control over it.

After Close and Clendenin had put in their answers, Charles     Borcherling filed a petition to be admitted as a defendant to      the bill, alleging that he had been appointed receiver under      a decree for alimony rendered in a suit for divorce brought      against Close by his wife in the court of chancery of New      Jersey, and that, in obedience to an order of that court,      Close had executed to him, as such receiver, an assignment of      all his personal estate, the rents and profits of his real      estate, and 'especially the capital stock of the Glenwood      Cemetery in Washington, in the District of Columbia, and all      profits, dividends, or other moneys to me coming therefrom,      or from any office thereof.' This petition of Borcherling was      granted, and he filed an answer to the original bill, setting      up these facts. He also filed a cross-bill, praying that     Close convey the title in the cemetery to the corporation,      and that the corporation issue and deliver to Borcherling, as      receiver as aforesaid, stock to the amount of $100,000. On     motion of Close and Clendenin, the court afterwards ordered      the cross-bill of Borcherling to be stricken from the files, with leave to him      to apply for leave to file a cross-bill. He never applied for     such leave. But the corporation filed a general replication     to the answers of Close, Clendenin, and Borcherling, proofs      were taken, and the case was heard and decided upon the      merits.

By the final decree of the court below, it was adjudged that     Close convey the whole tract of 90 acres to the plaintiff      corporation in fee-simple; that Close and Clendenin deliver      to the plaintiff all books, plans, records, and personal      property belonging to or used in connection with its      business, and be perpetually enjoined from interfering with      or obstructing the plaintiff in the possession and management      of the cemetery, and the court being further of opinion that      Close was entitled to be compensated for the transfer of his      title in the land as the original proprietor thereof, and      that the provision made for this object by the act of      congress of 1877 was an equitable adjustment of the rights of      Close, and a reasonable compensation for his title and      interest in the property, both in amount and in mode of      payment, regard being had to the needs of the cemetery, it      was further adjudged that the plaintiff annually hereafter      account for and pay to him or his assigns one-fourth of the      gross receipts from sales to be made of lots in the cemetery;      and that an account be taken of his receipts from the      cemetery since the act of 1877 took effect, and that he be      charged in favor of the plaintiff with all sums over and      above one-fourth of the gross receipts from sales of lots,      which had been applied to his own use and not properly      disbursed on account of the cemetery, and that he pay the      costs of suit; and that this decree be without prejudice to      the claims of Borcherling, as receiver as aforesaid.

From that decree appeals have been taken and argued by Close     and Clendenin, and by Borcherling.

The appeal of Borcherling may be briefly disposed of. The order striking his cross-bill from the files reserved leave to him to apply to the court for leave to file a cross-bill. He never made any such application, but, after replication filed to the answers of himself and of the other defendants, suffered proofs to be taken upon the issues so made up, and the case to proceed to a final decree; and the final decree is expressed to be made without prejudice to his rights as receiver. Under these circumstances, there is nothing in the proceedings of the court below prejudicial to those rights, or which entitles him to a reversal of the final decree and to a reopening of the whole case.

Upon the merits of the case, as presented by the appeal of Close and Clendenin, it will be convenient to consider first the question whether, assuming that the charter granted by congress in 1854 must be held to have been duly accepted by the corporation, and the corporation to have been legally organized under it, the act of 1877 is within the power of alteration, amendment, and repeal reserved to congress in the original charter. The terms of that charter show that it was not intended to create a mere land company, for the exclusive benefit of the original associates and their successors holding shares in the stock of the corporation; but that the ultimate and principal object was to establish and permanently maintain a cemetery for the burial of the dead, which, if not a strictly charitable use, is in some aspects a pious and public use, and was evidently so regarded by congress. If the corporation were to be exclusively a private business corporation, created for the sole benefit of the original associates and their successors as holders of shares, congress would hardly have inserted in the charter the provision authorizing the corporation to receive gifts and bequests for the purpose of ornamenting and improving the cemetery, or the provisions exempting the property from all taxation, and prohibiting the future laying out of any public ways through it.

At first, indeed, the whole immediate benefit derived from the property would be that resulting to the shareholders from the sale of lots, by way of dividend out of so much of the moneys received as might not be needed to be expended or reserved for the laying out, ornamenting, and maintenance of the cemetery. But, as fast as lots are sold, the property and interest of those purchasing and holding the land for its ultimate use of the permanent burial of the dead would increase, and the interest of the original associates would diminish. The profits to be derived from the sale of the land would cease, as to each parcel, as soon as it was sold for a burial lot. When the lots were all sold, the pecuniary interest of the associates or shareholders would disappear, but the duty to keep up the cemetery would remain, and the owners of lots would be the only persons having a peculiar interest in keeping it up. The corporation, in short, was established to secure and maintain, not merely the right of sale, but the right of burial, and was the representative, not only of the original proprietors of the land, but also of the subsequent purchasers of lots therein.

At the beginning, before any lots were sold, the owners of shares, divided among the proprietors according to their respective interests, would necessarily be the only persons concerned, or who could elect the officers of the corporation and managers of the cemetery. But with the gradual change of interest, resulting from the sale of lots, it was in full accord with the provisions of the charter, and best tended to carry out the main purpose of permanently maintaining a cemetery for the burial of the dead, that the holders of lots should take part in the election and so have a voice in the management.

After the cemetery had been laid out, improved, and used for the burial of the dead for more than 20 years, and 2,000 burial lots had been sold, it was a reasonable exercise of the reserved power of congress to authorize the owners in good faith of lots upon which burials had been made, to elect a majority of the trustees, in whom should be vested the control and management of the cemetery, with a due regard to the equitable rights of all persons having any vested interest therein; and to provide that a portion only of the receipts arising from the future sale of lots should be paid to the original proprietors, and the rest be devoted to the improvement and maintenance of the cemetery. Every legislative act is to be presumed to be a constitutional exercise of legislative power until the contrary is clearly established; and there is nothing in the record before us to show that the proportion of one-fourth of the gross receipts from future sales of lots, which is fixed by the act of congress of 1877 and by the decree of the court below, as a compensation for the title and interest of the original proprietors and associates, is not a reasonable one.

It follows that the act of congress of 1877 must be deemed constitutional and valid, within the principle affirmed by this court in the case of The Holyoke Dam, that a power reserved to the legislature to alter, amend, or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right. Com'rs on Inland Fisheries v. Holyoke Water-power Co. 104 Mass. 446, 451; Holyoke Co. v. Lyman, 15 Wall. 500, 522. In the exercise of such a power by the United States, as was observed by the chief justice in delivering the opinion of the court in the Sinking Fund Cases, 'it is not only their right, but their duty, as sovereign, to see to it that the current stockholders do not, in the administration of the affairs of the corporation, appropriate to their own use that which in equity belongs to others.' 99 U.S. 700, 725.

The question, then, recurs whether, as against Close, the corporation must be held to have been duly organized under the act of congress of 1854.

Upon this question the facts are these: Close knew that the act of incorporation had been granted by congress, in which he was named as one of the original associates; that the cemetery had been dedicated and set apart by public religious ceremonies for the burial of the dead; that a pamphlet had been published, containing a full account of those ceremonies, the names of a full board of officers, including himself as president and one of the managers, and Clendenin as superintendent, and a code of by-laws, by the very first of which all the lots were to be held in pursuance of the act of incorporation and to be used for the purposes of sepulture alone. With full knowledge of these facts, Close, for more than 20 years, exercised through Clendenin the sole management of the cemetery, and issued deeds and certificates of burial lots to the number of more than 2,000, bearing the corporate seal, and his own signature as president of the corporation, and having the by-laws printed on them. Being himself the owner of the whole land, he dealt with it in all respects as if it belonged to the corporation, and so represented it to the purchasers of lots. As no other person owned any part of the land or was entitled to a share in the corporation, the fact that no stock has been issued or divided is immaterial.

One who deals with a corporation as existing in fact, is estopped to deny as against the corporation that it has been legally organized. And in a court of equity, at least, the owner of land, who stands by and sees it conveyed as belonging to another, cannot afterwards set up his own title against the grantee. The present case is yet stronger. Close did not merely deal with the corporation, and permit the corporation to convey parts of his land to purchasers of lots. But he himself assumed to act as the corporation, and himself made the conveyance, and the accompanying representations, to every purchaser.

By his acts he represented to the purchasers of lots that the cemetery had been created and the land was owned by the corporation under the charter of 1854, and, as a necessary consequence, that the corporation, and all rights derived from it, were subject to the provisions of that charter, including the reservation to congress of the power of alteration, amendment, or repeal. It is upon these representations that the purchasers of lots have acquired their title and have parted with their money; and the corporation, whose existence he, at least, cannot deny, has the right and the duty, as the representative and in behalf of all the purchasers of lots, to enforce against him the obligation which he has thereby assumed. He holds the fee of the cemetery in trust for the corporation, and is entitled to nothing, as against the corporation and those whom it represents, but such compensation for his interest as original proprietor or stockholder as is consistent with the state of things which he has represented to exist.

It is argued by the learned counsel for the appellants that the estoppel and the obligation of Close cannot extend beyond the 30 acres which had been actually laid out. This argument appears to us to be fully met and answered in the able and thorough opinion of the court below, delivered by Mr. Justice Cox, who says:

'It was held out to the lot-holders, not only that the ground     immediately available for burial should remain set apart for that object, but that the      cemetery should be forever under the protection of a      perpetual corporation, charged with the duty of laying out      and ornamenting the grounds, capable of receiving gifts and      bequests, and empowered to make by-laws for the regulation of      the affairs of the corporation; and the whole property was      described as dedicated to the purposes of the cemetery, not      necessarily that the whole should be laid out into lots, but      that it should all belong to the institution and be available      for its general objects. This was not to be a mere grave-yard     in which each lot-holder acquired a piece of ground in which      to bury his dead, and at the same time become chargeable with      the sole care of his particular lot; but the lot-holders      themselves became subject to by-laws and regulations having      reference to the institution as an entirety, and the      perpetual preservation of the cemetery as an ornamental and      convenient place for interment, and for resort by the      relatives of the dead.' Glenwood Cemetery v. Close, 7      Washington Law Rep. 214, 218.

Decree affirmed.


text: Talk:Close v. Glenwood Cemetery/Opinion of the Court


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Page:Dictionary of National Biography volume 60.djvu/138

  dated 12 Dec. 1635, and within a few months Weddell went out in command of a fleet of six ships. He arrived at Johanna in August 1636; went from there to Goa, and thence to Batticolo, Acheen, Macao, and Canton. At Canton (owing to Portuguese intrigues) he had a difficulty with the Chinese, and, after having stormed one of their forts, was compelled to return to Macao. Going back to India, he succeeded in establishing a trade at Rajapur, in spite of the remonstrances of the company's agents. He returned to England apparently in 1640, and in 1642, still as an interloper, was back in India, where he died. On 9 May 1643 letters of administration—in which he was named as dead ‘in partibus transmarinis’—were given to his creditor, William Courten [see under ], and on Courten's death, to Jeremy Weddell, only son of the late John Weddell, 28 Aug. 1656. Weddell's will has not been preserved; but the will of his widow, Frances Weddell, proved 2 Oct. 1652 [Somerset House; Bowyer, 165], mentions two sons, John and Jeremy (the former being dead), and a daughter, Elizabeth, wife of Edward Wye. Weddell's property, such of it as was not lost in the Charles, would seem to have been swallowed up in Courten's insolvency. A portrait of Weddell (now lost) was left by his widow to their daughter, Elizabeth Wye.

[Cal. State Papers, East Indies and Domestic; Bruce's Annals of the East India Company, vol. i.; Low's Hist. of the Indian Navy; notes kindly supplied by Mr. William Foster.]  WEDDERBURN, ALEXANDER (1610–1676), of Blackness, Forfarshire, eldest son of James Wedderburn, town clerk of Dundee, by Margaret, daughter of James Goldman, also a Dundee merchant, was born in 1610. Sir Peter Wedderburn [q. v.] was his younger brother. Alexander was educated for the law and passed advocate; but upon the death of his uncle Alexander of Kingennie, whose son was then a minor, he was in 1633 appointed town clerk of Dundee, and held the office till 1675. For his steadfast loyalty he obtained from Charles I in 1639 a tack of the customs of Dundee, and in 1640 a pension of 100l. per annum out of the customs. In September of the same year he was appointed one of the eight Scots commissioners to arrange the treaty of Ripon. In October following he had an exoneration and ratification from the king, and in 1642 a knighthood was conferred on him. He represented Dundee in the Scottish parliament, 1644–7 and 1648–51 (Return of Members of Parliament), and he served on numerous committees of the estates. At the Restoration in 1661 he was appointed one of the commissioners for regulating weights and measures; and on 10 Feb. 1664 he received from Charles II a pension of 100l. sterling. He died on 18 Nov. 1676. By Matilda, daughter of Sir Andrew Fletcher of Innerpeffer, he had five sons and six daughters. His second son, James (1649–1696), was grandfather of Sir John Wedderburn (1704–1746) [q. v.]

[Gordon's Scot's Affairs and Spalding's Memorialls of the Troubles (Spalding Club); Sir James Balfour's Annals; Returns of Members of Parliament; Douglas's Baronage of Scotland, pp. 279–80; Wedderburn's Compt Buik, ed. Millar, 1898.]  WEDDERBURN, ALEXANDER, first and first  (1733–1805), lord chancellor, born at Edinburgh on 13 Feb. 1733, was the eldest son of Peter Wedderburn of Chester Hall, advocate (afterwards a senator of the College of Justice), by his wife Janet Ogilvy. Sir Peter Wedderburn [q. v.] was his great-grandfather. His education was begun in the school of Dalkeith under James Barclay, a famous pedagogue of the time, and he had Henry Dundas (afterwards Viscount Melville) as his schoolfellow. On 18 March 1746 he matriculated at Edinburgh University. While a student he was on familiar terms with many of the leading literary men of the time, among them Dr. Robertson, the historian; David Hume, the librarian to the faculty of advocates; and Adam Smith, whose friendship was lifelong. As Wedderburn was intended for the legal profession, he began his special studies in 1750 with a view to practising in the court of session. From an early period, however, he felt that the English bar offered him larger opportunities, and on 8 May 1753 he was admitted a member of the Inner Temple while on a visit to London. Returning to Edinburgh, he pursued his studies, and was enrolled as advocate on 29 June 1754. He first won distinction as a debater in the general assembly of the kirk of Scotland, taking his position there as an elder when only twenty-one years old, and it was his task to defend David Hume from church censure and John Home, the author of ‘Douglas,’ from deposition from his ministerial office. At this time he was associated with a number of the Edinburgh literati in founding the Select Society, in which Wedderburn, though youngest member, had a prominent place. He also projected and edited two numbers of a semi-annual publication called the ‘Edinburgh Review,’ which was started and ended in 1756. The death


text:
Williams v. Jackson Jackson

W. A. Maury, P. Phillips, and W. H. Phillips, for Williams.

''Jas. S. Edwards and Job Barnard'', for Jackson and others.

John F. Hanna and ''Jas. M. Johnston'', for Stickney, adm'x.

GRAY, J.

title: Williams v. Jackson Jackson


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text: Talk:Williams v. Jackson Jackson

title: Talk:Williams v. Jackson Jackson


text:
Williams v. Jackson Jackson/Opinion of the Court

This is a bill in equity, filed by Benjamin L. Jackson and others, partners under the name of Jackson, Brother & Co., and heard on the pleadings and proofs, by which the material facts appear to be as follows:

On the first of January, 1875, Edwin J. Sweet and his wife     purchased and took a deed from Augustus Davis of a house and      land in Washington, and executed and acknowledged a trust      deed thereof, in which they recited that they were indebted      to Augustus Davis in the sum of $8,000 for deferred payments      of the purchase money, for which they had given him their      four promissory notes of the same date and payable to his      order,-three for the sum of $1,833.33 each, and payable in      one, two, and three years respectively, and one for the sum      of $2,500, payable in three years, and all bearing interest      at 8 per cent.,-and by which deed, in order to secure the      payment of those notes as they matured, they conveyed the      land to Charles T. Davis and William Stickney, and the      survivor of them, their and his heirs and assigns, in trust      to permit the grantors to occupy the premises until default      in payment of principal or interest of the notes; and upon      the full payment of all the notes and interest, and all      proper costs, charges, and commissions, to release and convey      the premises to Mrs. Sweet, her heirs and assigns, with a      power of sale upon default of payment, and a provision that      the purchaser at the sale should not be bound to see to the      application of the purchase money. That deed of trust was     recorded on the fourteenth of January, 1875. The notes     secured by that deed were indorsed by Augustus Davis and      Charles T. Davis, had on the margin the printed words,      'Secured by deed of trust,' and were, soon after their date,      transferred by the indorsers for full value and before maturity to the plaintiffs, and have since been held by them,      except the one due at the end of the first year, which was      paid by the indorsers. Charles T. Davis was a son and a     partner of Augustus Davis, and was a broker and real estate      agent.

On the fifteenth of September, 1876, before any of the other     notes fell due, and without the plaintiffs' knowledge, the      trustees, Davis and Stickney, executed a deed of release of      the land to Mrs. Sweet, reciting that the debt secured by the      trust deed had been fully paid and discharged, as appeared by      the signature of Augustus Davis, who joined in the execution      of the release.

At or before the same time, Sweet and wife employed Charles     T. Davis to make some arrangement by which they could take up      those notes and give others running for a longer time. He     went to Samuel T. Williams, and offered him the land      unincumbered, as security for a loan of $5,000, payable in      four years, and bearing 9 per cent. interest; and Williams     agreed to make the loan if satisfied by a conveyancer's      abstract of title that the land was free of all incumbrance,      but not otherwise.

On the twenty-seventh of September, 1876, a deed of trust,     containing provisions like those in the first deed of trust,      was executed by Sweet and wife to Robert K. Elliott and      Charles T. Davis, to secure the payment of a note for $5,000      in four years to Williams, with interest at the rate of 9 per      cent. On the twenty-eighth of September, the deed of release     and the second deed of trust were recorded. Charles T. Davis     furnished Williams with certificates of a conveyancer that he      had examined the title on the fourteenth of September and      found it good, subject to the first trust deed, and again on      the 28th, when the only changes were the release and the      second deed of trust; and Williams thereupon gave to Davis      his check, payable to Davis' order, for $5,000, (which Davis      applied to his own use,) and received from him the note of      Sweet and wife for the same amount, and the trust deed to      secure its payment. Neither Williams nor Sweet and wife then     knew that, at the time of the execution of the release,      Augustus Davis was not the holder of the notes secured by the      first trust deed. On the twenty-ninth of September, Sweet and     wife executed another trust deed to Charles T. Davis to      secure the payment of six promissory notes to Augustus Davis      for $530.26 each, payable at intervals of six months from      their date.

the note to Williams not having been paid, the trustees,  Elliot and Davis, sold the land by auction for the sum   of $6,325 to Eli S. Blackwood, who paid them $1,325 in   cash, (which was applied to the payment of the interest   and of other charges,) and gave them his note for   $5,000, secured by a trust deed of the land.

The bill, which was against Williams, Sweet and wife,     Augustus Davis, and Blackwood in their own right, against      Charles T. Davis and Stickney in their own right and as      trustees, and against Elliott as trustee only, prayed that      the release by Stickney and Charles T. Davis, as well as all      the subsequent conveyances, might be declared void as against      the first trust deed, and the trust created by that deed be      declared to have priority over all subsequent incumbrances;      that Charles T. Davis be removed from his trust and a new      trustee be appointed in his stead; that the land be sold and      the proceeds applied, under order of the court, to the      payment of the notes held by the plaintiffs and of any other      lawful claims; and for an injunction, a discovery, an      account, and further relief.

The judge before whom the case was first heard made a decree     declining to set aside the release or to declare that the      first deed of trust had priority over the second; adjudging      that the first deed of trust was fraudulently and negligently      released by Augustus Davis and Charles T. Davis, and      wrongfully and negligently released by Stickney, and      therefore ordering that the plaintiffs recover against      Augustus Davis, Charles T. Davis, Stickney, and Sweet and      wife, the amount due on the notes held by them, with      interest; declaring that the note for $5,000, held by      Williams, was the first charge on the land; and ordering the      land to be sold, and the proceeds to be distributed in paying      off the incumbrances in the order thus established.

The court at general term reversed those parts of the decree     which declined to set aside the release, and which declared      that Williams was entitled to priority; and also that part      which adjudged that the plaintiffs recover against Stickney      the amount of their debt; affirmed it in other respects; and      ordered the proceeds to be first applied to the payment of      the plaintiffs' debt. Williams appealed from so much of this     decree as gave priority to the plaintiffs' claim; and the plaintiffs      appealed from so much as reversed the decree against      Stickney.

By the statutes regulating the conveyance of real estate in the District of Columbia, all deeds of trust and mortgages, duly acknowledged, take effect and are valid, as to all subsequent purchasers for valuable consideration without notice, and as to all creditors, from the time of their delivery to the recorder for record; whereas other deeds, covenants, and agreements take effect and are valid, as to all persons, from the time of their acknowledgment, if delivered for record within six months after their execution. Any title-bond or other written contract in relation to land may be acknowledged and recorded in the same manner as deeds of conveyance; and the acknowledgment duly certified, and the delivery for record, of such bond or contract, shall be taken and held to be notice of its existence to all subsequent purchasers. Rev. St. D. D. §§ 446, 447, 449.

The first deed of trust from Sweet and wife did not give the trustees merely a power to release the land on payment of the notes secured thereby, and to sell on default of payment; but it vested the legal title in them. A release of the land before payment of the notes would be a breach of their trust, and would be unavailing in equity to any one who had knowledge of that breach. ''Ins. Co. v. Eldredge'', 102 U.S. 454. But it would pass the legal title. Taylor v. King, 6 Munf. 358; Canoy v. Troutman, 7 Ired. 155. The legal title in the land, being in the trustees under the first deed of trust, passed by their deed of release to Mrs. Sweet, and from her by the second deed of trust to the trustees for Williams.

The first deed of trust having been made to the trustees therein named for the benefit of Augustus Davis, and to secure the payment of the notes from the grantors to him, and the plaintiffs, upon the transfer and indorsement to them of those notes, having taken no precaution to obtain and put on record an assignment of his rights in such form as would be notice to all the world, the recorded deed of release, executed by him as well as by the trustees, reciting that the notes had been paid, and conveying the legal title, bound the plaintiffs, as well as himself, in favor of any one acting upon the faith of the record and ignorant of the real state of facts. If the plaintiffs wished to affect subsequent purchasers with notice of their rights, they should have obtained a new conveyance or agreement, duly acknowledged and recorded, in the form either of a deed from the original grantors, or of a declaration of trust from the trustees, or of an assignment from Augustus Davis of his equitable interest in the land as security for the payment of the notes. The record not showing that any person other than Augustus Davis had any interest in the notes, or in the land as security for their payment, an innocent subsequent purchaser or incumbrancer had the right to assume that the trustees, in executing the release, had acted in accordance with their duty.

Williams is admitted to have had no actual knowledge that the notes secured by the first trust deed were held by the plaintiffs, or that they were unpaid. The knowledge of those facts by Charles T. Davis, through whom Williams made the loan, does not bind him, because upon the evidence Charles T. Davis appears not to have been his agent, but the agent of Sweet and wife. Williams took every reasonable precaution that could have been expected of a prudent man, before advancing his money to Charles T. Davis for Sweet and wife. He declined to lend his money until after he had been furnished with a conveyancer's abstract of title, showing that the deed of release from the trustees under the first deed of trust, and from the original holder of the notes secured thereby, as well as the second deed of trust to secure the repayment of the money lent by Williams, had been recorded, and that the land was not subject to any incumbrance prior to the second deed of trust.

It was suggested in argument that as the first deed of trust showed that the notes secured thereby were negotiable and were not yet payable, and that the land was not intended to be released from this trust until all the notes were paid, Williams was negligent in not making further inquiry into the fact whether they were still unpaid. But of whom should be have made inquiry? The trustees under the first deed and the original holder of the notes secured thereby having expressly asserted under their own hands and seals that the notes had been paid, and Sweet and wife having apparently concurred in the assertion by accepting the deed of release and putting it on record, he certainly was not bound to inquire of any of them as to the truth of that fact; and there was no other person to whom he could apply for information, for he did not know that the notes had ever been negotiated, and he had no reason to suppose that they had not been canceled and destroyed.

To charge Williams with constructive notice of the fact that the notes had not been paid, in the absence of any proof of knowledge, fraud, or gross or willful negligence on his part, would be inconsistennt with the purpose of the registry laws, with the settled principles of equity, and with the convenient transaction of business. Hine v. Dodd, 2 Atk. 275; Jones v. Smith, 1 Hare, 43, and 1 Phill. 244; Agra Bank v. Barry, Irish R. 6 Eq. 128, and L. R. 7 H. L. 135; Wilson v. Wall, 6 Wall. 83; Norman v. Towne, 130 Mass. 52.

The equity of Williams being at least equal with that of the plaintiffs, the legal title held for Williams must prevail, and he is entitled to priority. The decree appealed from is in this respect erroneous, and must be reversed. But that decree, so far as it refuses relief against Stickney personally, is right. The main purpose of the bill is to set aside the deed of release and to satisfy the plaintiffs' debt out of the land. The attempt to charge Stickney with the amount of that debt, by reason of his negligence in executing the release, is wholly inconsistent with this. The one treats the release as void; the other assumes that it is valid. In the one view Stickney is made a party in his capacity of trustee only; in the other, it is sought to charge him personally. The joinder of claims so distinct in character and in relief is unprecedented and inconvenient. Shields v. Barrow, 17 How. 130, 144; Walker v. Powers, 104 U.S. 245.

The result is that the decree appealed from must be reversed, and he case remanded with directions to enter a decree in conformity with this opinion, and without prejudice to an action at law or suit in equity against Stickney.

Decree reversed.

HARLAN, J., did not sit in this case, and took no part in the decision.


text: Talk:Williams v. Jackson Jackson/Opinion of the Court


text: Sun Mutual Insurance Company v. Ocean Insurance Company


text: Talk:Sun Mutual Insurance Company v. Ocean Insurance Company