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Beebe v. Russell/Opinion of the Court

This is an appeal from the Circuit Court of the United States for the district of Arkansas.

We find, from our examination of the record, that the decree from which this appeal has been taken is not final, within the meaning of the acts of Congress of 1789 and 1803. It will therefore be dismissed for a want of jurisdiction. The right of appeal is conferred, defined, and regulated, by the second section of the act of March 2d, 1803, which, however, adopts and applies the regulations prescribed by the 22d, 23d, and 24th sections of the judiciary act of the 24th September, 1789, ch. 20, respecting writs of error. The language of both is, that final judgments and decrees, rendered in any circuit, &c., &c., may be reviewed in the Supreme Court, where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars. It has been the object of this court at all times, though an accidental deviation may be found, to restrict the cases which have been brought to this court, either by appeal or by writ of error, to those in which the rights of the parties have been fully and finally determined by judgments or decrees in the court below, whether they were cases in admiralty, in equity, or common law. In the case of the Palmyra, (10 Wheat., 502,) where, in a libel for a tortious seizure, restitution with costs and damages had been decreed, but the damages had not been assessed, this court held that the decree was not final, and dismissed the appeal. It said, 'the decree of the Circuit Court was not final in the sense of the act of Congress. The damages remain undisposed of, and an appeal may still lie upon that part of the decree awarding damages. The whole cause is not, therefore, finally determined in the Circuit Court, and we are of the opinion that the cause cannot be divided so as to bring up distinct parts of it.' This court also ruled, in Brown v. Swann, (9 Peters, 1,) that a decree enjoining a judgment at law taxing a sum which remained to be ascertained with precision was not final, to permit an appeal from it. We might multiply citations from the reports of this court, to show its caution upon this subject. We feel very confident no case has been decided by it, when the question of the finality of a decree or judgment has been brought to its notice, in which the distinction between final and interlocutory decrees has not been regarded as it was meant to be by the legislation of Congress, and as it was understood by the courts in England and in this country, before Congress acted upon the subject. A decree is understood to be interlocutory whenever an inquiry as to matter of law or fact is directed, preparatory to a final decision. (1 New., 322.) And we find it stated in the second volume of Perkins's Daniel's Chancery Practice, 1193, 'that the most usual ground for not making a perfect decree in the first instance, is the necessity which frequently exists for a reference to a master of the court, to make inquiries, or take accounts, or sell estates, and adjust other matters which are necessary to be disposed of, before a complete decision can be come to upon the subject-matter of the suit.' When a decree finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its final decision, it is a final decree. It is true, a decree may be final, although it directs a reference to a master, if all the consequential directions depending upon the result of the master's report are contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the entire and full benefit of the previous decision of the court. (Mills v. Hoag, 7 Paige, 18.)

Testing, then, this decree by the citations just given from Daniel's Chancery Practice, from the case of Mills v. Hoag, our inquiry is, whether further action of the court in the nature of a decree would not be necessary to give to the defendant in error the benefit of the 'rents and profits received by the defendants in the court below, or which could or ought to have been received by them, or any of them, for any part of the premises,' which it had directed the defendants to surrender to the complainant; and whether the court's direction to the master, how he should take the accounts of rents and profits, and that no allowances were to be made by the master for improvements which the defendants had made, and that no account of rent was to be taken upon permanent and valuable improvements erected by them, do not involve rights in the respective parties, and a pecuniary uncertainty in respect to the sum to be paid by the defendant, which are only made certain and operative by a decree of the court upon the master's report. The court's direction was, 'that it be referred to the master, to take an account of the rents and profits received, or which could and ought to have been received, by the defendants, or any of them, for any part of the said premises; that he take such an account distributively as to the said Ashley and Beebe, in the lifetime of Ashley, and as to his heirs since his death, and as to said G. C. Walker since his purchases; that he make no allowances for improvements made by them, or either of them, and take no account of rent upon permanent and valuable improvements erected by them; and that he report to the court here, at the next term thereof. And it is further ordered, &c., that the defendants do pay the costs of this suit.' Thus leaving a sum to be ascertained with precision by the master from different elements, from which he is directed to make up the account, and those not merely consequential from the previous directions of the decree. Further, a decree from which an appeal may be taken must not only be final, but it must be one in which the matter in dipute, exclusive of costs, shall exceed the sum or value of two thousand dollars. The value of the subject-matter in controversy may be shown from the record, or by evidence aliunde, when it is disputed; and in this case the record discloses that to be such as would give the court jurisdiction; but the decree also shows that a sum is still unascertained between the parties, which may or may not exceed two thousand dollars, and, if it does, which may be the subject of another appeal. The object of the law, and the interpretation of it by this court, is to prevent a case from coming to it from the courts below, in which the whole controversy has not been determined finally, and that the same may be done in this court. We say, 'in which the whole controversy has not been determined.' Wherever it has been, and ministerial duties are only to be performed, though that be to ascertain an amount due, the decree is final.

But the reference of a case to a master, to make an account upon evidence, and from the examination of the parties, and to make or not to make allowances affecting the rights of the parties, and to report his results to the court, is not a final decree; because his report is subject to exceptions from either side, which must be brought to the notice of the court before it can be available. It can only be made so by the courts overruling the exceptions, or by an order confirming the report, with a final decree for its appropriation and payment. We have just said the decree is final when ministerial duties are only to be done to ascertain a sum due. The case of Ray v. Law, in 3 Cranch, 179, is an instance. It was then ruled by this court, that a decree for a sale under a mortgage is such a final decree as may be appealed from. Afterwards, when that case was cited in the case of the Palmyra, (10 Wheat., 502,) Marshall, Chief Justice, said for the court: 'In that case, which was an appeal in an equity cause, there was a decree of foreclosure and sale of the mortgaged property. The sale could only be ordered after an account taken, or the sum due on the mortgage ascertained in some other way. And the usual decree is, that unless the defendant shall pay that sum in a given time, the estate shall be sold. The decree of sale, therefore, is in such a case final upon the rights of parties in controversy, and leaves ministerial duties only to be performed.' In such a case, the direction is but a consequence of the decree, and no further decree is necessary. So a decree upon the coming in of the master's report on a bill for specific performance, ascertaining the quantity of land to be conveyed, and the balance of money to be paid, and that the conveyance should be executed on such balance being tendered, is a final decree. (Navis v. Waters, 1 John. Ch., 85.) But in the last case cited, it would not have been final if the decree had not directed the conveyance of the land upon the sum found by the master being tendered.

It has been supposed that this court did not apply its present interpretation of the laws regulating appeal in the cases of Whiting v. Bank of the United States, (13 Peters, 6,) of Michaud v. Girod, (4 How., 503,) and in Forgay et al. v. Conrad, (in 6 Howard, 201.) It is, however, not so. Whiting's case, in that part of it relating to appeals, was only what this court had said in Ray v. Law, in the case of the Palmyra, before cited, that a decree of foreclosure and sale is final upon the merits of the controversy, and an appeal lies therefrom. In Michaud v. Girod, no such point was made in the argument of it, nor touched upon in the opinion of the court. In Forgay's case, it was made upon the decree given by the court below, and it was adjudged by this court to be final to give this court jurisdiction of it. But it was so, upon the ground that the whole merits of the controversy between the parties had been determined, that execution had been awarded, and that the case had been referred to the master merely for the purpose of adjusting the accounts. The fact is, the order of the court in that case for referring it to a master was peculiar, making it doubtful, if it could in any way control or qualify the antecedent decree of the court upon the whole merits of the controversy, or modify it in any way, except upon a petition for a rehearing. We refer to the case, however, with confidence, to show that the reasoning of the opinion is cautionary upon the subject of bringing appeals, and confirmatory of what we have said in this case. We dismiss the case, the court not having jurisdiction of the appeal.

title: Beebe v. Russell/Opinion of the Court


text: Talk:Beebe v. Russell/Opinion of the Court

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


text:
Farrelly v. Woodfolk

THIS was an appeal from the Circuit Court of the United States for the eastern district of Arkansas, sitting in chancery.

The bill was filed by Woodfolk, a citizen of Tennessee, against the heirs and representatives of Frederic Notribe and others, for the purpose of obtaining a title to certain lands. The court decreed that the defendants should procure the legal extinguishment of the lien and encumbrance which existed upon the lands, and convey them to the complainant. The decree also contained a reference to a master, with the instructions which are stated in the opinion of the court. The defendants appealed to this court.

The case was submitted by Mr. Pike for the appellants, and Mr. Meigs for the appellee.

Mr. Justice WAYNE delivered the opinion of the court.

title: Farrelly v. Woodfolk


text: Talk:Farrelly v. Woodfolk

title: Talk:Farrelly v. Woodfolk


text:
Farrelly v. Woodfolk/Opinion of the Court

This case having been submitted to the court upon printed arguments, we find from an examination of the record that the appeal has been prematurely taken from an interlocutory and not a final decree.

After reciting such facts in the case as the court deemed to be necessary for understanding the subject-matter of controversy, and the court's directions in respect to the rights of the complainant, the court then orders that the cause shall be referred to the clerk of the court as a special master in chancery, to take and state an account of the sum for which the lands are bound under the mortgage exhibited in the pleadings in the cause; and also to take and state an account, showing what money and property Morton and his wife, and Mary T. Notribe, widow of Frederic Notribe, have severally received, and are entitled to receive, which were of the estate of Frederic Notribe at the time of his death; and a further account, showing what portion of said estate, if any, remains to be administered, setting forth all particulars thereof as far as practicable, and if necessary to the due execution of this order. And the master is directed to call for and examine on oath any of the parties to this suit, and also to take testimony of witnesses touching any of the matters aforesaid, and to make report to this court. This is so obviously an interlocutory decree, that we do not think it necessary to examine it in detail, to show that a further and final decree is necessary, to give to the complainant any of the advantages to which the court in its previous directions has declared him to be entitled.

For the reasons given in the opinion in the case of Roswell Beebe et al., appellants, v. William Russell, we therefore direct this cause to be dismissed for want of jurisdiction.


text: Talk:Farrelly v. Woodfolk/Opinion of the Court


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Page:Syria, the land of Lebanon (1914).djvu/163

THE RICHES OF DAMASCUS God. Here are no confusing chapels, no gaudy pictures or distracting statues, no gilded altar lit by smoking candles, no thin blue clouds of slowly rising incense. All is clean, bright, commodious, and yet of an appropriate richness and beauty. A careful inspection shows that the architects used the ground-plan of a basilica with aisles and transepts; but, in spite of the two rows of columns and the heavier pillars which support the central "Dome of the Eagle," the chief and lasting impression of the mosque is its ample, unbroken spaciousness.

The building is larger even than the visitor first thinks: a hundred and fifty paces will hardly take him from one end of it to the other. Its stone floor is entirely covered by rugs, whose variegated patterns have worn to a dull, somber tint. From the lofty ceiling a multitude of lamps and several gigantic chandeliers are hung by long chains, so low that they just clear the head of a tall man. Between two of the columns stands a lavishly decorated, domed structure which is said to contain the head of John the Baptist, after whom the mosque is named. The shrine is about the size of the Chapel of the Sepulcher at Jerusalem, but it seems smaller on account of the far larger building which surrounds it. In the south wall of the mosque—toward Mecca—are four shallow prayer-niches, and near the middle of this side stands a tall, graceful pulpit, whose minute and elaborate inlays of silver and ivory [ 123 ]


text:
Babcock v. Wyman

[MR. CHIEF JUSTICE TANEY AND MR. JUSTICE DANIEL DID NOT SIT IN THIS CAUSE.]

title: Babcock v. Wyman


text: Talk:Babcock v. Wyman

title: Talk:Babcock v. Wyman


text:
Babcock v. Wyman/Opinion of the Court

THIS was an appeal from the Circuit Court of the United States for the district of Massachusetts, sitting in equity.

The bill was filed by Edward Wyman, a citizen of Missouri, and an assignee of Nehemiah Wyman, by a deed of conveyance made in 1853. The facts of the case are particularly stated in the opinion of the court, and need not be repeated.

The decree of the Circuit Court was as follows, viz:

This case having been heard on the bill of complaint filed therein, and upon the answer of the defendants thereto, and upon the proof exhibited by the respective parties, and the parties having been heard by their counsel, this court both declare the conveyance of Nehemiah Wyman to said defendant, bearing date the twentieth day of November, in the year one thousand eight hundred and twenty-eight, to have been a mortgage to secure the debts, the amount whereof is named in said deed, as the consideration of the same; and that, at the times of the sales of the lands in said conveyance set forth by the defendant, the assignor of the complainant had the right to redeem the same; and doth declare that the absolute sales and conveyances by defendant of said land to bona fide purchasers for valuable consideration, without notice, was a constructive fraud upon the rights of the assignor of complainant; and that therefore he became entitled, as against the defendant personally, to an account of the value of the land and of the rents and profits thereof, and, after deducting the amount of principal and interest due said defendant, to the payment of the balance; and doth declare that the complainant, as assignee, has succeeded to those rights.

And said cause having been referred to a master, to take the necessary accounts, in pursuance of the foregoing declaration of this court, and said master having made his report in the premises, and the same being duly considered and the respective parties heard therein, this court doth order and decree that there be paid by said defendant to said complainant the sum of twelve thousand and sixty-seven dollars and nine cents, together with costs taxed at four hundred and sixty-nine dollars and seventy-four cents.

Babcock appealed to this court.

The case was argued by Mr. Loring and Mr. Merwin for the appellant, and by Mr. Bartlett for the appellee.

The reporter can notice only that part of the arguments of counsel which related to the admissibility of parol evidence in this case, to establish that the deed, absolute in its terms, was intended to operate only as a mortgage.

The counsel for the appellant treated this point in the following manner:

I. The first question is, whether, under the circumstances of this case, it is competent to show, by parol evidence, that a deed absolute in terms was intended to operate only as a mortgage. The respondent contends that it is not competent, but is in direct violation of the statute of frauds.

The well-settled rule in equity is, that it is not competent to show by parol evidence that an absolute deed was intended only as a mortgage, except upon the ground that the written defeasance was omitted by fraud, accident, or mistake. (1 Story Eq. Jur., secs. 153, 154, 155, 156; 4 Kent's Com., 142.)

It is clear, upon the facts, that a written defeasance was not omitted through any accident, mistake, ignorance, or fraud.

On the contrary, the parties executed all the papers they intended to, and the form of the conveyance was precisely what they intended it should be. (Hunt v. Rousmanier's Ex'rs, 1 Peters, 1.)

According to the testimony of both Nehemiah and William Wyman, the present conveyance was in exchange for the mortgages which the said Nehemiah had previously given to the respondent and Francis Wyman, the parties well knowing the distinction between the two forms of conveyance, and their different legal effect.

It is also certain, upon their evidence, that no defeasance was contemplated, and that it was not omitted through any fraud of the respondent, or through any misapprehension, by Nehemiah Wyman, of the nature or effect of his deed.

The proposition, therefore, which the complainant must maintain in this case is, that it is competent, by parol evidence of the admissions of the grantee at the time the conveyance was made, to convert an absolute deed into a mortgage, although the grantor, well knowing their different legal effect, deliberately, and in defiance of the statute, gave an absolute conveyance.

Such a proposition is not warranted by the decisions, and is entirely subversive of the statute of frauds.

The fraud against which equity relieves, is not the refusal of one of the parties to acknowledge or perform a void parol contract, the parties having voluntarily assumed the risk of the statute-but it relieves where the parties did intend to put their contract into writing, conformably to the statute, and have failed to do so, through the fraud of one, or by mutual mistake.

'Where there is no fraud, and the party relies upon the honor, word, or promise, of the defendant, the statute making that promise void, equity will not interfere.' (Lord Hardwicke, in Montacute v. Maxwell, 1 P. Wms., 618.)

To extend the doctrine beyond this, and to allow a party to offer parol evidence of an agreement, on the ground that the mere refusal to acknowledge or perform that agreement (which the statute itself declares is void) is such a fraud as will avoid the statute, and render the parol evidence competent, amounts to a judicial repeal of the statute.

Upon this ground, there can be no case to which the statute of frauds can possibly apply.

The fallacy of this theory is, that it admits the evidence prohibited by the statute, for the purpose of first proving a fraud by proving a refusal to perform a parol agreement, and then uses that fraud as the reason for admitting the parol evidence to prove the agreement.

To allow, then, the complainant, under the circumstances of the case, to control the legal effect of the conveyance of Nehemiah Wyman to the respondent, by parol evidence of his declarations or admissions made at the time the deed was executed, would violate the statute of frauds, and would also be contrary to the decided weight of authority.

In England, it has been uniformly held that parol evidence was inadmissible, except to show that the defeasance was omitted through fraud, accident, or mistake. (Walker v. Walker, 2 Atk., 99; Young v. Peachy, 2 Atk., 257; Jones v. Statham, 3 Atk., 389.)

And the great preponderance of authority in this country is to the same same effect. (4 Kent's Com., 142; 2 Story Eq., sec. 1,018; Marks v. Pell, 1 John. Ch. R., 594; Stevens v. Cooper, 1 John. Ch. R., 429. Strong v. Mitchell 4 Johns. Ch. R., 167, and James v. Johnson, 6 Johns. Ch. R., 417, are not to the contrary. Rathbun v. Rathbun, 6 Barb., 98; Webb v. Rice, 6 Hill, 219; Lyod v. Ex'rs Inglis, 1 Des., 337; Fitzpatrick v. Smith, 1 Des., 340; Bond v. Susquehannah Co., 6 Har. and J., 128; Watkins v. Stocket's Adm'r, 6 Har. and J., 435; Merrills v. Washburn, 1 Day, 139; Brainerd v. Brainerd, 15 Conn., 586.)

In Massachusetts, the decisions are very pointed. (Walker v. Locke et al., 5 Cush., 90; Peabody v. Tarbell, 2 Cush., 226, 232.)

The decision of Judge Story, in Taylor v. Luther, 2 Sumn., 228, is inconsistent with the doctrine stated by him in 2 Story Eq., sec. 1,018.

And in 3 Story, 203, he said, 'In Taylor v. Luther, I had occasion to carry the doctrine one step further.'

No decision of this court authorizes the doctrine which the complainant must maintain in this case.

Conway's Ex'rs v. Alexander (7 Cranch, 238) simply decided that the court, in construing an instrument, may read it in the light of the extrinsic circumstances.

Morris v. Nixon et al. (1 How., 118, 133) was decided on the ground that the letter of Nixon to the complainant, either showed that the transaction was intended as a mortgage, or that Nixon had a design to mislead the complainant into that belief.

In Russell v. Southard et al., (12 How. U.S., 139,) a written memorandum was given by the grantee, and the question was, whether the transaction was a mortgage or conditional sale.

According either to the understanding of this respondent, the ground of that decision was, that the parties did intend a mortgage in due form, and that, through mistake or the fraud of Southard, the memorandum failed to be so expressed; or else, that if the transaction, as really understood by the complainant at the time, was a conditional sale, yet that the bargain was so unconscionable, and took such advantage of the complainant's necessities, that it amounted in equity to a fraud. Otherwise, if the memorandum did show a conditional sale, if the complainant so understood it, and the bargain was a fair one, it would be difficult to conceive upon what ground it could be set aside, and held to be a mortgage only.

Mr. Bartlett, for the appellee, referred to the point as follows:

Upon the question, whether oral evidence is admissible to show that a deed, absolute on its face, was in fact given as security for a debt, and is a mortgage, appellee forbears to trouble the court with any authorities beside those referred to in the opinion of the Circuit Court, which seem conclusive, and are as follows: Taylor v. Luther, 2 Sumner, 229; Jenkins v. Eldridge, 3 Story, 293; Conway v. Alexander, 7 Cranch, 238; Sprigg v. Bank of Mt. Pleasant, 14 Peters, 201; Morris v. Nixon, 1 Howard, 126; Russell v. Southard, 12 Howard, 139.

Mr. Justice McLEAN delivered the opinion of the court.

This is an appeal from the decree of the Circuit Court for Massachusetts.

The bill states the following facts: Nehemiah Wyman was seized in fee of about eleven and a half acres of land in Charleston, purchased by him of Tuft's administrator, one acre of which he sold to Foster, who gave a mortgage to secure the payment of the consideration of $600, which sum was not paid when due, and he entered to foreclose. The entire tract on the 1st of December, 1820, had been mortgaged by him to Francis Wyman, his brother, to secure three notes of that date, one for $676, payable in one month; another for $650, payable in six months; the third for $704.39, payable in one year; interest to be paid on each note semi-annually.

Shortly after this, Francis Wyman, by his will, dated 14th June, 1822, devised to defendant, Babcock, all his estate, including said notes and mortgage, in trust for testator's wife and children, and made Babcock his executor. The testator died in August, 1822. On the 1st of December, 1824, Nehemiah paid Babcock, as trustee and executor, the note for $704 and interest; and from time to time paid the interest on the other notes, up to December, 1826.

In 1825 or 1826, Nehemiah became embarrassed, and having entire confidence in his brother-in-law, Babcock, he, by deed, 26th April, 1826, mortgaged the eleven acres of land as security of a note to Babcock of that date, for $1,200, payable in one year, with interest. At this time, little, if anything, was due to Babcock, but it was understood, between them, that Babcock would become security for him, or advance money to him, the mortgage to stand as a security. Before the 20th of November, 1828, Babcock did become bound for and advanced to him upwards of $400. In addition to this, there was due to Babcock as executor, for rent, $136.71. On a settlement, Nehemiah executed to Babcock three notes, one dated 7th November, 1828, for $486.79, of which $400.08 were due Babcock individually, and $86.71 to the heirs of Nehemiah Wyman, sen.; another note for $8.10, and third for $50, due to the heirs of the same, were given.

Nehemiah being thus indebted to Babcock, as trustee and executor, and not being able to pay the interest, Babcock and William Wyman, brother of Nehemiah, urged him to make a clear deed in fee for the land aforesaid, to Babcock, that he might manage and improve the same, and apply the rents and profits to pay interest on the encumbrances, and to the gradual liquidation of the principal. And finding that this conveyance to Babcock was made a condition of further advances, he eventually conveyed the estate to Babcock, it being expressly agreed by Babcock, that, notwithstanding the form of the conveyance, it should stand as security only for the sums due to him.

That on the 20th of November, 1828, a memorandum was made out of the sums thus due, and handed to Nehemiah, as evidence of the amount for which the land was held.

At the time this deed was executed, no one of the notes held by Babcock was surrendered, nor the mortgage to Francis Wyman, deceased. All the evidences of indebtedness remained in the hands of Babcock, Nehemiah holding only the memorandum of the sums. The total amount of the notes in said memorandum, with interest to the 20th November, 1828, amounted to the sum of $2,033.87.

Upon receiving the above deed, Babcock took possession under it, not only of the eleven acres, but of the adjoining acre. Babcock, it is alleged, received annually, from sales of clay, grass, and ledge stone, from the land, more than enough to pay interest and taxes. Nehemiah having removed to the West, regardless of his trust, Babcock sold the land at private sale, without notice to the said Nehemiah, and in fraud of his rights, for eight thousand dollars.

In the sale, Babcock represented himself to be the sole owner of the premises. On the 4th of February, 1853, Nehemiah conveyed his right to redeem to Edward Wyman, the complainant, &c. Within two years, Babcock has promised William Wyman, acting for his brother, that he would come to an account with Nehemiah for the price of the land, and pay him the proceeds of the sales, deducting the debts aforesaid, if he would take his notes on time; and would refer the question of amount of rents and profits to the arbitrament of neighbors. Babcock has frequently, recently, admitted that it was originally intended that said deed should stand as security for the amount set forth in the memorandum; and that he always intended to do right in the matter, but that he had been advised by counsel, that the agreement, not being in writing, could not be enforced, and this was the reason he refused to perform it.

The bill prays for an account, and the defendant in his answer admits the conveyance stated in the bill, and that the land was subject to the mortgages. He avers the consideration named in the deed was the amount then due defendant in his own right, and as executor and trustee; and the further sum of $8.10, due the defendant, and $50 due as agent. He admits no additional consideration was paid; but he states the land was not worth more than $1,900; that he consented to receive the deed in payment of the sums due him personally, and upon an agreement that if he should be able to obtain therefrom, in addition, enough to pay the sums due to him as executor and trustee, he would pay these sums, and upon no other trust or confidence whatever.

That, upon the delivery of the deed, he cancelled the notes of Nehemiah held in his own right, and either surrendered them to him or destroyed them. That he did not cancel the notes held by him as executor or trustee, because he was not satisfied that he should receive enough from the land to pay the same; and in order to prevent the presumption that he had so agreed absolutely, he made a minute thereon to the effect that he did not guaranty the payment thereof, it being the understanding between him and Nehemiah, that Nehemiah should be personally liable therefor.

That he made no other agreement, and he denies that it was understood or agreed, that the land was conveyed to him on the trust set forth in the bill; but insists that the conveyance was absolute, in payment of the sums due him, and liabilities incurred; and the only understanding was, that if the defendant should realize therefrom more than enough to pay his own claims, he would pay the debts due him as executor and trustee.

Defendant took possession of the land, and for eight years occupied it, Nehemiah never claiming any interest in it. He denies the allegations of the bill, as to the trust; sets up the defence, that the agreement, not being in writing, cannot be enforced. He denies that he proposed a compromise, if his notes would be taken on time, as alleged, and he pleads the statute of twenty years limitation, &c., and avers the profits of the land did not exceed the taxes, &c.

Three points may be considered as embracing the merits of this case: 1. Was the deed executed by Nehemiah Wyman to Babcock, for the eleven and one-half acres of ground, given in trust?

2. Can this trust be established by parol evidence?

3. Does the statute of limitation or lapse of time affect the complainant's rights?

No one can read the history of this case, as stated in the bill, without being impressed with the confidential relations of the parties. The grantor and the grantee were brothers-in-law, and the advisers bore the same relation to the grantee. It was a family concern, designed, as it would seem from the bill, to aid an embarrassed member of it, without a probability of loss by the other members.

The bill charges, when the deed in question was executed, the sums which it was intended to secure were stated, and handed to Nehemiah. This is not denied in the answer, and William Wyman, the brother, being present, swears, as a witness, to the sums so stated, amounting in the whole to the sum of $2,033.87, the consideration named in the deed. This list was in the handwriting of the son of Babcock, and the paper was delivered to Nehemiah in the presence of the witness. The deed was drawn by the witness, and he knows that the sums named included all the debts which Nehemiah owed to Babcock individually, or as trustee. The witness remembers Babcock said, after the statement was made, and sixty-two cents for recording the deed, which made the sum inserted as the consideration in the deed. Nehemiah hesitated to sign the deed, when Babcock said, he can have the land again, at any time he shall pay the debts secured by it.

The answer avers, when the deed was executed, the defendant gave up the notes of Nehemiah held in his own right, and either surrendered them to him or destroyed them. But it is proved by the same witness that he did neither. These notes were given to the witness without explaining to whom they belonged. Witness supposed they belonged to the estate of Nehemiah Wyman, sen.

The witness says, the property, at the time it was sold, was worth thirteen or fourteen thousand dollars, and that it was sold greatly below its value.

The bill charges, that the defendant promised William Wyman, acting for his brother, that he would come to an account with Nehemiah for the price of the land, and pay him the proceeds of sales. This is denied in the answer. William Wyman swears, that on the 8th of November, 1851, he showed to Babcock the memorandum of the sums named, to secure the payment of which the deed was executed. He was much embarrassed, and admitted the handwriting was his son's, then deceased. He then expressed a willingness to settle it up, and asked the witness, how shall this be done? Witness replied, that he should first charge Nehemiah with all his notes and interest, and then credit him with the proceeds of the land, and what he received from the land, with interest, and be allowed a fair compensation for his trouble. He then said, I can't tell how much I have received from the land, but we will leave it to two good men; and that he would give his note for what should be due.

A short time after this, Babcock told witness that he had consulted counsel, who advised him to pay the amount due the estate of Nehemiah, sen., and no more; and this he offered to do, if the witness would execute a bond of indemnity against any farther claim. He said that he had been advised, as the deed was absolute on its face, and no writing showed that the land was conveyed in security of a debt, the obligation could not be enforced.

The witness signified to Babcock, some time before the sale of the land, that he would redeem it for his brother.

Nehemiah Wyman, having transferred all his interest to the complainant, was examined as a witness, who stated, at the time he executed the deed to Babcock, he owed him, as an individual, as executor and agent, the sum of $2,033.87, which included sixty-two cents for recording the deed; and that sum was stated as the consideration in the deed. Of this sum, only $408.18, and interest, were due to Babcock in his individual capacity.

In his answer, the defendant states that the conveyance was made in payment of the sums due him personally; that he did not cancel the notes held by him as executor or trustee, because he was not satisfied that he should receive enough from the land to pay those debts. But the proof shows, that the debt due him as executor and agent, and also his individual debt, were all included in the consideration named in the deed.

The defendant made no advance to the witness, on the note and mortgage for twelve hundred dollars; but, at the date of the subsequent conveyance, the defendant had advanced to him $400.08, and $8.10, which, as above stated, constituted the debt due to the defendant on his personal account.

The conveyance was made to the defendant, the witness swears, with the express understanding, that Babcock was to have the entire management of the land, so as to apply the proceeds in payment of the interest, and witness was to have the land again on paying the sums specified. He was induced to make the conveyance by the urgent request of his brother William, and Babcock; his brother told him, if he did not make it, he would not assist him in his pecuniary matters. On the execution of the deed, none of the notes held by Babcock were cancelled, or surrendered to the witness; but they are still held against him.

The witness says that Babcock promised to keep an account of the receipts of the land conveyed to him; but in his answer he says he kept no account, 'because the land and rents and profits were his own, without any liability to account to any one.'

Such a transaction as set out in the bill, between brothers-in-law, in the nature of things might be supposed to have taken place in the mututal confidence of the parties; and in the final adjustment there should be no evasions or subterfuges to gain an advantage. So far as regards the deed under consideration, all the material allegations of the bill are proved, and all the material averments of the answer seem to be unfounded. In coming to this conclusion, we do not rest alone on the witnesses, Nehemiah and William Wyman. There are strong circumstances which corroborate the witnesses, and satisfy the mind beyond a reasonable doubt.

In his answer, the defendant avers that the land was conveyed to him in payment of the sums due him personally. It appears from the oaths of both the Wymans that this is not correct; and, in addition, it is shown by the memorandum made out at the time, stating the sums for which the land was conveyed, in the handwriting of the son of the defendant.

Taking the statement of the defendant as true, that he did not intend to make himself responsible for the debt due to him as executor and agent at the time the deed was executed, presents him in an unfavorable light. The land for which he received a deed from Nehemiah Wyman, he was aware, had been previously mortgaged to secure the debt in his hands as executors of Francis Wyman. Could he have carried out this declared intention, he would have been unfaithful to the trust committed to him.

William Wyman seems to be a man of business. He drew the conveyance from his brother Nehemiah to his brother-in-law Babcock, and he took, in other respects, an active agency in the transaction; and he states the facts as alleged in the bill, and his statement is in every respect corroborated by his brother Nehemiah; and although the trust is denied in the answer, there are circumstances in the case which go strongly to establish it.

The defendant admitted all the facts to William Wyman, and promised to settle the account, and spoke of the principles on which it should be adjusted, but eventually he took refuge under the statutes of frauds, of limitations, and the lapse of time. We think there can be no reasonable doubt that the deed in controversy was intended to be a mortgage. And this brings us to the second point of inquiry:

Can the trust be established by parol testimony?

If the doctrine of this court is to be adhered to, as laid down in the case of Russell v. Southard, (12 How., 154,) this is not an open question. In that case the court say: 'To insist on what was really a mortgage, as a sale, is in equity a fraud.' And in Conway v. Alexander, (7 Cranch, 238, )Chief Justice Marshall says: 'Having made these observations on the deed itself, the court will proceed to examine those extrinsic circumstances which are to determine whether it was a sale or a mortgage.' In Morris v. Nixon, (1 How., 126,) the court say: 'The charge against Nixon is substantially a fraudulent attempt to convert that into an absolute sale, which was originally meant to be a security for a loan. It is in this view of the case that the evidence is admitted to ascertain the truth of the transaction, though the deed be absolute on its face.'

In Edrington v. Harper, (3 J. J. Marshall, 355,) the court say: 'The fact that the real transaction between the parties was a borrowing and lending, will, whenever or however it may appear, show that a deed absolute on its face was intended as a security for money; and whenever it can be ascertained to be a security for money, it is only a mortgage, however artfully it may be disguised.'

In Jenkins v. Eldredge, (3 Story's Rep., 293,) Mr. Justice Story said: In 4 Kent, 143, (5th edit.,) it is declared, 'a deed absolute upon the face of it, and though registered as a deed, will be valid and effectual as a mortgage between the parties, if it was intended by them to be merely a security for a debt. And this would be the case, though the defeasance was by an agreement resting in parol; for parol evidence is admissible to show that an absolute deed was intended as a mortgage, and that the defeasance had been omitted by fraud or mistake.' In 2 Sumner's Rep., 228, 232-'3, Judge Story said: 'It is the same, if it be omitted by design upon mutual confidence between the parties; for the violation of such an agreement would be a fraud of the most flagrant kind, originating in an open breach of trust against conscience and justice.'

In Foy v. Foy, (2 Hayward, 141:) 'In North Carolina, it is said the law on this subject is the same as the English law was before the statute of frauds, and parol declarations of trust are valid.' 'Where a testator gave by will all his estate to his wife, having confidence that she would dispose of it according to his views communicated to her, and it being alleged that the testator, at the time of making the will, desired his wife to give the whole of the property to B, and that she promised to do it, it was held, that the allegation being proved, a trust would be created as to the whole of the property in favor of B.' (Podmore v. Gunning, 7 Simons, 644.)

Parol proof is admissible to show fraud, and consequently a resulting trust, in a deed absolute on its face, notwithstanding any denial by the answer. (Lloyd v. Spillote, 2 Atk. Rep., 150; Ross v. Newall, 1 Wash. Rep., 14; Watkins v. Stockett, 6 Har. and Johnson, 435; Strong v. Stewart, 4 John. Ch. Rep., 167; English v. Lane, 1 Porter's Ala. Rep., 318.)

In Boyd v. McLean, (1 John. Ch. Rep., 582,) it was held, after an examination of the cases, 'that a resulting trust might be established by parol proof, not only against the face of the deed itself, but in opposition to the answer of the nominal purchasers denying the trust, and even after the death of such purchaser.' The statute of frauds in Rhode Island contains no exception in favor of resulting trusts, but Mr. Justice Story considered the exception immaterial, for it has been deemed merely affirmative of the general law. (1 Sumner, 187.)

Where a trustee misapplies the fund, it may be followed, however it may have been invested, by parol, as between the parties, or a purchaser with notice. So, where an estate was purchased in the name of one person, and the consideration came from another, a resulting trust may be established by parol-and in all cases where there is a resulting trust.

In Hayworth v. Worthington, (5 Black., 361,) it was held that parol evidence is admissible to prove that a bill of sale of goods, absolute on its face, was intended by the parties to be only a mortgage. The court say these decisions are founded upon the assumption that the admission of such evidence is necessary for the prevention of fraud. (Cas. Temp. Talbot, 62; King v. Newman, 2 Munf., 40; Strong v. Stewart, 4 John. Ch. Rep., 167; Dunham v. Dey, 15 John. R., 555; Walton v. Cronly's Adm'r, 14 Wend., 63; Van Buren v. Olmstead, 5 Paige, 9.)

In the case of Overton v. Bigelow, (3 Yerger, 513,) it was held, 'that an absolute bill of sale of negroes may be converted into a mortgage by a parol agreement to allow the conveyor to redeem; and this agreement may be inferred from the price given, and the mode of dealing between the parties.'

The case of Walker v. Locke et al. (5 Cushing, 90) is considered as having no application to the case before us. It is well known that until within a few years the courts of Massachusetts had no chancery jurisdiction. The jurisdiction, when first conferred by statute, was limited to cases of specific execution of contracts and trusts, not including fraud as a ground of relief. Within some one or two years past, the jurisdiction has been extended to frauds, but this has been done since the decision in the case above cited.

If the decision had been made since the extension of the jurisdiction beyond the construction of the local statutes, we should consider it only as the decision of a highly respectable and learned court, and not as a rule of decision for this court.

It is admitted that the authorities on the question before us are conflicting in this country and in England; but as this court in several cases have decided the point, and it is now and has been for several years past a rule of decision, we are not prepared to balance the State authorities, with the view of ascertaining on which side the scale preponderates.

The third point regards the lapse of time and the statute of limitations.

In his answer, the defendant avers that the pleadings show a possession by him of more than twenty years before the institution of this suit, and that that possession has never been disturbed; and also that the proceeds of sale were received more than six years before the bill was filed, and these facts are relied on to bar the right of the complainant.

It is clear that the statute cannot constitute a bar in the present case. Courts of equity apply the statute by analogy to cases at law; but in this case, the trust being established, there was no adverse possession in favor of which the statute could run. The possession was consistent with the intentions of the parties, until the fraud was discovered, in 1851. Nor can the statute bar the right of the complainant to the proceeds of the land, as Babcock was bound to apply these to the payment of interest on the debt, and in discharge of the principal.

The decree of the Circuit Court is affirmed with costs.

Mr. Justice CATRON and Mr. Justice CAMPBELL dissented.

title: Babcock v. Wyman/Opinion of the Court


text: Talk:Babcock v. Wyman/Opinion of the Court


text:
Byers v. Surget

THIS was an appeal from the Circuit Court of the United States for the eastern district of Arkansas, sitting in equity.

It was a bill filed by Surget, a citizen of Mississippi, to set aside a sale made under the circumstances, which are fully stated in the opinion of the court.

The Circuit Court decreed that the purchase of the lands by Byers was fraudulent and void, and ordered the sale to be set aside. Byers appealed to this court.

It was argued by Mr. Lawrence for the appellee, no counsel appearing for the appellant.

Mr. Justice DANIEL delivered the opinion of the court.

title: Byers v. Surget


text: Talk:Byers v. Surget

title: Talk:Byers v. Surget


text:
Byers v. Surget/Opinion of the Court

The appellee, Francis Surget, a citizen of the State of Mississippi, instituted his suit in equity in the Circuit Court of the United States for the eastern district of Arkansas, against the appellant, the object of which suit was to annul as fraudulent and void a sale of lands belonging to the appellee, made by the sheriff of Jackson, in Arkansas, on the 18th of May, 1846. These lands, situated in the county and State above mentioned, are described in the pleadings according to the public surveys, amounting to more than fourteen thousand acres, and estimated in value at from forty or seventy thousand dollars, and were sold by the sheriff in satisfaction of a claim for $39, and conveyed to the appellant for the sum of nine dollars thirteen and one-half cents.

The Circuit Court having pronounced the sale and conveyance fraudulent and void, and decreed a surrender and reconveyance of the lands by the appellant to the appellee, the former party has appealed from that decree to this court.

The facts of this cause, as collated from the pleadings, and as established by the proofs, are substantially as follows:

The appellee, during the year 1835, separately, and in his individual right, entered and purchased of the Government of the United States, at their land office at Batesville, in the State of Arkansas, a number of tracts or parcels of land, situated in the county of Jackson, in the State aforesaid, all of which are known and designated on the plats of the public surveys, and are enumerated and set forth in the bill. In the same year, (1835,) about the 10th of November, the appellee, together with John Ker, Stephen Duncan, and William B. Duncan, formed a partnership under the name and style of William B. Duncan & Co., and, in the name and behalf of that firm, entered and purchased of the United States, at their land office at Batesville, various other tracts, lots, and parcels of land, lying in the same county and State, known and designated on the plats of the public surveys, and described and set out in the bill. Sometime in the year 1836, the partnership of William B. Duncan & Co. was, by mutual consent, dissolved; and the property, real and personal, belonging to the firm, including the purchases and entries of land made by them, was by like consent divided, and the portion of each partner allotted to him, and by him held in severalty. The portions assigned and allotted, under this distribution, to Stephen Duncan and William B. Duncan, as members of the partnership of William B. Duncan & Co., are particularly set out and described in the bill. Subsequently to the dissolution of the partnership of William B. Duncan & Co., and to the transfer to each partner of his respective rights and interest therein, Stephen Duncan and William B. Duncan, by deeds bearing date, the one on the 29th of December, 1836, and the other on the 23d of March, 1837, sold and conveyed to the appellee in fee simple, together with sundry other tracts and parcels of land, the lands, lots, and parcels, before mentioned as having been transferred and assigned to said Stephen and William B., as members of the firm of William B. Duncan & Co., all of which lots and parcels of land, so conveyed to the appellee by Stephen and William B. Duncan, as well as the portion thereof belonging to the appellee, as a member of the firm of William B. Duncan & Co., and the several lots and parcels of land originally and separately entered and purchased by the appellee in his own right, were included in the levy and sale impeached by the bill.

In the year 1840, four years after the dissolution of the firm of William B. Duncan & Co., an action was instituted in the name of that firm, by William B. Duncan, in the Circuit Court of Jackson county, in the State of Arkansas, against one Noadiah Marsh, for a breach of covenant; and in that suit, under the plea of a subsequent discharge in bankruptcy, the court gave judgment in favor of the defendant for costs of suit.

The bill charges that this suit instituted against Marsh was posterior in time to the dissolution of the partnership, and was commenced and prosecuted without the authority or knowledge of the other members of the recent partnership, who all resided beyond the limits of the State of Arkansas; and further avers, that the first knowledge of the existence of the suit on the part of the appellee was imparted to him by a communication informing him of the sale of his land. This allegation in the bill with respect to the period at which the suit against Marsh was instituted, and with respect also to the person by whom instituted, and the ignorance on the part of the appellee of the institution of that suit, is fully sustained by the deposition of William B. Duncan, and by the facts that the deeds from the other partners to the appellee, executed after the dissolution, bear date in the years 1836 and 1837; the action at law against Marsh not having been commenced until 1840, September 5th.

But should it be conceded that the partnership was in full existence at the time of the institution of the suit against Marsh, and that the suit had been ordered or sanctioned by the firm, yet a judgment for costs against them, upon a ground which controverted neither the justice nor the legality of their claim, presents an anomaly in judicial proceedings, as irreconcilable with reason as it is believed to be without precedent.

Upon this extraordinary judgment, the appellant, as the attorney for the defendant in the inferior court, assumed to himself the power to tax the costs adjudged to the defendant; to tax them not in the capacity of clerk, the agent created by law for the performance of that service, nor in that of the legal deputy or subordinate of that officer, but, as it has been asserted, as a sort of amicus clerici, and with equal benevolence, or in order to remedy the ignorance and imbecility which, by way of justification of the appellant's acts, it is attempted to be shown, characterized the ministers of the law in that unfortunate locality, assumed to himself the power and the right not only of selecting the final process, but of prescribing also the description and the quantity of the property which he chose to have seized in satisfaction of that process; of furnishing a list of the parcels and amount which he chose to have thus seized; of ordering the sheriff to levy upon the whole of what he had so described; of preparing himself and furnishing to the officer such advertisements for the sale of the property levied upon as he approved; of requiring of the sheriff, under peril of responsibility for refusal, towards the satisfaction of an execution for thirty-nine dollars and ten cents, peremptorily to make sale of more than fourteen thousand acres of land, estimated by the witnesses from forty to seventy thousand dollars; and finally, under a proceeding irregular in its origin, commenced by himself, and by him controlled and managed to its consummation, of becoming the purchaser of the property estimated as above, for the sum of nine dollars thirteen and one-half cents.

Such is the history of a transaction which the appellant asks of this court to sanction; and it seems pertinent here to inquire, under what system of civil polity, under what code of law or ethics, a transaction like that disclosed by the record in this case can be excused, or even palliated? To the appellant must necessarily be imputed full knowledge of this transaction; he was the attorney for the defendant in the State court; he is shown to have been not only the adviser, but virtually the executor, of every step taken for the enforcement of the judgment of that court; and, as a lawyer, it is reasonable to presume that he must have comprehended the nature and effects of the measures adopted by him and at his instance. The bill impeaches these measures as being contrived by the appellant for purposes of fraud and oppression, as is betrayed—

1. By the anomalous character of the judgment procured by the appellant, without notice or knowledge on the part of the appellee.

2. By the fact, that the process sued out upon the judgment at law was not made out by the only officer legally authorized for that purpose, but was calculated, and drawn up, and determined, and written out, by the appellant himself, and by his authority and direction delivered to the sheriff, who was ordered by this same party on what particular property and to what amount to levy the execution.

3. By the facts, that whatever notices or advertisements may have been given or prepared previously to the sale of the lands levied upon, were prepared not by the sheriff, but by the appellant; and that such as were prepared by him were not published by the sheriff in the mode prescribed by the law, previously to the sale of lands under execution.

4. By the wanton excessiveness of the levy insisted on by the appellant; this being an abuse of the process of the court, and evidence of a fraudulent design, with a view to incite suspicion, and to deter purchasers by reason of that suspicion, and by offering larger portions of property than many persons would be willing or able to purchase.

5. By the peremptory demand upon the sheriff, and in opposition to the remonstrances of this officer, and under threats, in the event of his refusal, to force a sale of this large amount of property, under circumstances calculated to insure its ruinous sacrifice.

6. The gross inadequacy of consideration given by the appellant for this large property, an effect produced by his own fraudulent contrivances.

The ground upon which the defendant below, the appellant here, has rested his case, may in substance be reduced to the two following positions:

1. The strength of his legal title acquired under the execution and sale, and under the conveyance from the sheriff, which execution, sale, and conveyance, he alleges were fair, and not fraudulent; and

2. That sacrifices of land in the section of the State in which this sale occurred, similar to that complained of, were usual in sales under execution.

With respect to the effect of the judgment at law, and of the proceedings taken for its enforcement, it is insisted, in the answer of the appellant, that this judgment having been rendered by a court of competent authority, and still remaining unreversed, neither the validity of that judgment nor the proceedings in virtue thereof can now be questioned.

It is true, that with respect to the regularity of that judgment, or of any legal errors in obtaining it, this court or the Circuit Court could not take cognizance, nor exercise any appellate power for its reversal; and in any collateral attempt at law to impeach that judgment, it must be regarded as binding and operative. But with any fraudulent conduct of parties in obtaining a judgment, or in attempting to avail themselves thereof, this court can regularly, as could the Circuit Court, take cogniance. Such a proceeding is within the legitimate province of courts of equity, and constitutes an extensive ground of their jurisdiction. The true and intrinsic character of proceedings, as well in courts of law as in pais, is alike subject to the scrutiny of a court of equity, which will probe, and either sustain or annul them, according to their real character, and as the ends of justice may require.

With reference to the conduct of the appellant, in procuring and enforcing the judgment at law, that conduct has been, by the answer of the appellant and by the argument of his counsel, sought to be sustained, upon the ground that, as attorney for Marsh, the appellant had the power and the right to control the judgment, and to carry it into effect. The power and right thus claimed for the appellant, like every other right and power, are bounded by rules of law and justice, and by consistency with the rights of others. So far as it was necessary to maintain and enforce the legitimate interests of Marsh, it was unquestionably within the competency of his attorney to interpose; but he could not, in pursuance of whatever he may have fancied legitimate, or of whatever he may have deemed judicious or promotive of advantage to his client or himself, usurp the authority and functions of officers on whom the law had devolved its just administration, and by that the preservation of the rights of the citizen.

The offices of clerk and sheriff were never designed to be mere names, nor to be engines and pretexts, to be used at the will of any one. By what authority, then, could the appellant assume the functions of both clerk and sheriff; tax such costs as he deemed proper; order the seizure of property to an amount entirely arbitrary, as his cupidity or indiscretion might incline him, and command peremptorily the sale of the whole subject thus illegally and rapaciously seized upon, without the slightest reference to the value of the subject, in comparison with the demand to be satisfied, and then to become himself the possessor of the subject thus sacrificed by his own irregular and oppressive conduct, for a pretended consideration so trivial that it may be considered as nominal merely?

In justification or in excuse for this assumption, it has been alleged and relied on by the appellant, (though the position is entirely unsustained by proof,) that it was rendered necessary by the ignorance of those officers to whom the duties of clerk and sheriff had been assigned by law; and had become a common practice in the particular part of the country where this proceeding occurred. If the position thus taken be true in fact, it rather aggravates than extenuates the wrong complained of, as it shows that, by the ignorance or the corruption of those officers of the law, the rights of the complainant had been surrendered to the mercy of one having a direct interest to invade those rights. It evinces, moreover, if true, a practice, in a profession heretofore deemed enlightened and honorable, highly calculated to bring that profession into merited disrepute.

Upon the question of the illegality in the sale for want of notice by advertisement, it has been insisted by the appellant that the bill contains no charge with respect to such illegality, and that therefore no proofs as to that point can be admitted.

It is undoubtedly the rule in equity, as well as at law, that the proofs must correspond with the allegations, and that evidence irrelevant or inapplicable to the latter will be regarded as immaterial. The bill in this case is less searchingly and minutely framed than it might have been on this particular point, yet it is considered as being sufficiently comprehensive, and as sufficiently specific at the same time, to embrace this point, and to justify proofs in relation thereto.

It alleges as illegal and unwarrantable the taxing of the costs, the writing of the execution, the writing of the list and description of the lands required to be levied on, and the notices of sale by the appellant; the manner of publishing or putting those notices and the proceedings under them at the sale-all as being unwarranted by law, and as having been concocted and carried out in fraud; all these allegations it was competent to the appellee to prove. The answer of the appellant-after a general denial of fraud and unfairness, and after admitting the taxing of the costs, the writing of the execution, the description of the land to be levied upon, the directions of the sheriff, and the preparation of the advertisements, all by himself-next insists upon the regularity and propriety of all these acts. He then proceeds to aver the performance of every prerequisite of the law with respect to such sales. After enumerating these prerequisites in detail, he endeavors to establish them by evidence. He says that the sheriff advertised the lands for twenty days in three of the most public places in each township of the county, in conformity with the statute; and he introduces the evidence of the sheriff and of other witnesses to maintain these averments.

But in contravention of these statements are, first, the admission of the appellant that he himself, and not the sheriff, prepared the notices of sale; and, secondly, the evidence of the sheriff introduced and relied on by the appellant, so far from showing a compliance with the requisites of the law, establishes the fact that these were violated and disregarded; for the sheriff declares that he took the list and the description of the property, and the notices prepared by the appellant; and this officer admits that he did not put up advertisements, either in number or locality, as required by law, nor could he swear to such a proceeding by him. He says it was his practice to set up advertisements in places in which it was convenient for him to do so, and to hand over other notices to persons in whom he had confidence.

Here, then, is proof, supplied by the appellant, that the law had not been complied with. The acts of an official deputy are evidence of the acts of his principal, and are binding on all who fall within the legal scope of those acts. But it is not perceived how the rights of suitors can be at all dependent upon the unofficial and individual confidence of one officer, even when that confidence may not have been misplaced. In this case, there is no proof that it has been fulfilled; for no person shows that the notices had been in fact put up and published according to the statute. The mere belief, either of the sheriff or any other person, can have no operation where the law calls for full legal proof.

The objections here stated cannot to deemed narrow or technical with reference to a case like the present-a case presenting no claim to favor either in law or in equity; a case in which the respondent was and is bound to pursue the hair line of legal and formal strictness, and from which, if he deviate in never so small a degree, he is doomed to fall. The conduct of the defendant, in all that he has done himself, and in all that he has exacted of others, is essentially important in this case as evidence of the quo animo with which this transaction was begun, prosecuted, and consummated. Another pregnant proof of the design of the appellant to grasp and to retain what no principle of liberality or equity could warrant, is the fact, clearly established, of his refusal after the sale to accept from the appellee, for the redemption of his lands so glaringly sacrificed, a sum of money considerably exceeding in amount the judgment for costs, with all the expenses incidental to the carrying that judgment into effect. The appellant, by his irregular and unconscientious contrivances, achieved what he conceived to be an immense speculation; and he determined to avail himself of it, regardless of its injustice and ruinous consequences to the appellee.

To meet the objection made to the sale in this case, founded on the inadequacy of the price at which the land was sold, it is insisted that inadequacy of consideration, singly, cannot amount to proof of fraud. This position, however, is scarcely reconcilable with the qualification annexed to it by the courts; namely, unless such inadequacy be so gross as to shock the conscience; for this qualification implies necessarily the affirmation, that if the inadequacy be of a nature so gross as to shock the conscience, it will amount to proof of fraud. Again, in answer to the same objection, it is insisted, that whatever presumption arising from inadequacy of consideration may be permitted with respect to transactions strictly limited to vendor and vendee, no unfavorable inference from that cause is permissible with respect to sales made under judicial process. Certainly the facts that sales are made by the officers or ministers of the law, and under its authority, may properly weaken the usual presumption arising from gross inadequacy; but to declare that such inadequacy, connected with other facts and circumstances evincing fraud or unfairness, could never be regarded as affecting sales under process, would be as rational as the assertion that process of law could never be abused, and that the ministers of the law must necessarily be intelligent and upright, and incapable of being ever willingly or unwittingly made the instruments of fraud or oppression. But the transaction now under review can with no show of propriety be tested by the single fact of inadequacy of consideration, however gross and extraordinary that inadequacy has been. We perceive in this transaction other ingredients that have been mingled therewith by the appellant, that give to the objection of inadequacy an effect that, standing isolated and alone, could not be ascribed to or deduced from it.

Thus, when we advert to the irregular and extraordinary character of the judgment procured through the agency of the appellant-to his eagerness, that could not await the action of the officer of the court-his assumption of the functions of the clerk, in taxing the costs, and in writing out the execution-his preparation and delivery to the sheriff of a description and list of the lands of the appellee, amounting to more than fourteen thousand acres-his requisition of a seizure of the whole of those lands in satisfaction of the sum of thirty-nine dollars-his inflexible demand upon the sheriff, under threats of prosecution, to expose to sale the entire levy-his purchase of all these lands for the sum of nine dollars and thirteen and a half cents-and his refusal after the sale and purchase to accept, in redemption of these lands so sacrificed, a sum of money tendered to him much more than equal to the costs, with all the expenses incident to the judgment: when all these acts on the part of the appellant are adverted to, they impel irresistibly to the conclusion, that the gross inadequacy of consideration in the sale and purchase of these lands was the premeditated result which the proceedings by the appellant were put in practice to insure. They betray that malus dolus in which the design of the appellant was conceived, which appears to have presided over and regulated the progress of the design from its birth to its consummation; to which design the appellant has tenaciously clung, in the seeming expectation that it was beyond the corrective powers of law or justice.

Upon the whole case, we are constrained to view the entire transaction impeached by the appellee as one that cannot be sustained without the subversion of the principles and rules either of legal or moral justice. We accordingly approve the decision of the Circuit Court in so regarding it, and order that decree to be affirmed.

title: Byers v. Surget/Opinion of the Court


text: Talk:Byers v. Surget/Opinion of the Court


text: Garrison v. Memphis Insurance Company

title: Garrison v. Memphis Insurance Company


text: Talk:Garrison v. Memphis Insurance Company


text:
Garrison v. Memphis Insurance Company/Opinion of the Court

THIS was an appeal from the Circuit Court of the United States for the district of Missouri, sitting in equity.

The bill was filed by the Memphis Insurance Company, a corporation created by the laws of Tennessee, and whose stockholders were citizens thereof, against the owners of the steamboat Convoy. In February, 1849, they received on board of their boat a large amount of cotton, to be carried from Memphis to New Orleans. The boat and cargo were destroyed by fire on the downward voyage, without any fault or negligence of the owners, their agents, or servants. The insurance company paid the owners of the cotton the amounts of their several insurances, and then filed this bill to recover such sums from the owners of the boat. The facts are more particularly stated in the opinion of the court. The Circuit Court held the owners of the boat liable, and rendered a decree against them for the amounts paid by the insurance company.

There were fifteen different bills of lading mentioned in the bill. The first five, covering three hundred and eighty-eight bales of cotton, stipulated for the delivery at New Orleans, 'the dangers of the river only excepted.' In the sixth, seventh, and eighth, covering one hundred and twenty-one bales, 'the dangers of the river and unavoidable accidents only' are excepted. In the ninth, fourteenth, and fifteenth, covering two hundred and seventy-four bales, 'the unavoidable dangers of the river and fire only' are excepted; and in the tenth, eleventh, twelfth, and thirteenth, 'the dangers of the river and fire only' are excepted. The ground upon which the owners of the boat were claimed to be liable upon those bills of lading, where 'fire' was excepted, was, that the fire arose from carelessness. But in the progress of the trial this branch of the claim was given up, and the claim of the plaintiffs was declared to rest upon the construction to be given to the bills of lading, in which the vessel was merely exempted from 'the dangers of the river,' or 'the dangers of the river and unavoidable accidents.'

The Circuit Court decreed that the owners of the boat were liable upon those bills of lading which contained the exception only of 'the dangers of the river,' being the first five mentioned in the bill, and dismissed the bill as to the relief sought in respect to the bills of lading in which 'the dangers of the river and unavoidable accidents' are excepted, being the sixth, seventh, and eighth, mentioned in the bill. The owners of the boat appealed to this court.

The case was argued by Mr. Ewing for the appellants, and Mr. Geyer for the appellees.

Mr. Justice CAMPBELL delivered the opinion of the court The appellee filed a bill in the Circuit Court against the appellants, the owners of the steamboat Convoy, a vessel formerly employed in the navigation of the Mississippi river, and which, in 1849, was consumed by fire, with a cargo of cotton.

The appellee is an insurance corporation of Memphis, Tennessee, and insured eleven hundred and fifty-two bales of the cotton belonging to this cargo from loss by fire; this insurance was effected upon fifteen distinct parcels, and shipped mostly from Teunessee to a number of consignees in New Orleans. The company adjusted the losses with the assured on their policies, and bring this suit for reimbursement, by enforcing the claims of the shippers against the owners. These answer the bill by a denial of their legal responsibility for the loss. They maintain that fire is one of the perils of the river Mississippi; that all the bills of lading that exempt the carrier from a loss by perils of the river, imply fire as one of those perils; that the variations in the bills of lading, some including 'fire,' and 'unavoidable accidents' as well as fire, are referable to the fact that they are preferred by different shippers, who have different forms for expressing the same legal consequence. That they all understand that a carrier is exempt from a liability for fire on a bill of lading exonerating him from the risks of the river.

It was admitted on the hearing that the boat was consumed, without any negligence or fault of the owners, their agents, or servants. The Circuit Court excused the owners from losses, where the bills of lading contained an exception of fire or unavoidable accidents, but condemned them on the others, to satisfy the demand of the company.

It cannot be denied that the appellants are responsible, according to the strictness of the common-law rule determining the carrier is liability, unless an accidental fire is one of the exceptions included in the term 'perils of the river.' These words include risks arising from natural accidents peculiar to the river, which do not happen by the intervention of man, nor are to be prevented by human prudence; and have been extended to comprehend losses arising from some irresistible force or overwhelming power which no ordinary skill could anticipate or evade. (Jones v. Pitcher, 3 S. and P., 136; 4 Yerg., 48; 5 Yerg., 82; Schooner Reeside, 2 Sum., 568.)

They exonerate a carrier from a liability for a loss arising from an attack of pirates, or from a collision of ships, when there is no negligence or fault on the part of the master and crew. Latterly, the courts have shown an indisposition to extend the comprehension of these words. The destruction of a vessel by worms at sea is not accounted a loss by the perils of the sea; nor was a damage from bilging, arising in consequence of the insufficiency of tackle for getting her from the dock; nor was damage occasioned to a vessel by her props being carried away by the tide while she was undergoing repairs on the beach, excused, as falling within that exception. In Laveroni v. Drury, (8 Ex. R., 166,) a question arose whether a damage to a cargo of cheese, occasioned by rats, was within the exception of the dangers or accidents of the sea and navigation; and the Continental and American authorities were cited to the Barons of the Exchequer, to show that it was, and that the carrier was excused, he having taken the usual and proper precautions against them.

That court decided otherwise, and say 'the exception includes only a danger or accident of the sea or navigation, properly so called, (viz: one caused by the violence of the winds and waves, a vis major, acting upon a seaworthy and substantial ship,) and does not cover damage by rats, which is a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sea.' And the court conclude 'that the liability of the master and owner of a general ship is prima facie that of a common carrier; but that his responsibility may be either enlarged or qualified by the terms of the bill of lading, if there be one; and that the question, whether the defendant is liable or not, is to be ascertained by this document when it exists.' The principle of these cases establishes a liability against a carrier for a loss by fire arising from other than a natural cause, whether occurring on a steamboat accidentally, or communicated from another vessel or from the shore; and the fact that fire produces the motive power of the boat does not affect the case. (New J. S. N. Co. v. Merchants' Bank, 6 How., 344, 381; Hale v. N. J. S. N. Co., 15 Conn., 539; Singleton v. Hilliard, 1 Strab., 203; Gilmore v. Carman, 1 S. and N., 279.)

In this suit, a witness was introduced, who claims to have been long familiar with the usages of the navigation and the river insurance risks of the Mississippi, and competent to testify in reference to the perils of that river. He says, 'those are, sinking, by coming in collision with rocks, snags, or other boats or vessels, and fire; that the most common form of bills of lading contains the exceptions, perils of the river and fire; but that in many instances the word fire is omitted, and he has not known an instance where the want of that word has created a difficulty in adjusting a loss, or was considered to give a claim against a boat on account of a loss by fire.' The first inquiry is, whether this evidence is admissible. In mercantile contracts, evidence is admissible to prove that the words in which the particular contract is expressed, in the particular trade to which the contract refers, are used in a peculiar sense, and different from that which they ordinarily import, and to annex incidents to written contracts, in respect to which they are silent, but which both parties probably contemplated, because usual in such contracts.

But although it is competent to explain what is ambiguous, and to introduce what is omitted, because sanctioned by usage, it is not competent to vary or contradict the terms of the contract. The exceptions in the bills of lading under consideration have been in use in policies of insurance and contracts of affreightment for a long period, and have acquired a distinct signification in the customs of merchants, and the opinions of professional men and courts. It would be surprising if any particular or artificial meaning was attached to them in the customs of the Mississippi river, contrary to, or distinguishable from, that which existed elsewhere in the community of shippers and merchants. In this case, the evidence fails to establish any peculiar sense of these words, as appropriate to the locality where the parties to this contract reside and made their contract. The evidence rather serves to show that the witness did not recognise the liability of a carrier, as it exists in the common law, and was ready to acquit him of responsibility for losses to which he did not contribute, by the negligence or fault either of himself or his agents. In Turney v. Wilson, (7 Yerger, 340)-a case decided in the State from which the shipments described in the bill were chiefly made-evidence was offered to show there was an implied contract recognised in the usages of shippers and merchants, which had prevailed from the first settlement of the country, to exempt the carrier from losses, except those proceeding from negligence or dishonesty to explain or construe a bill of lading of the common form. The court decided, that the dangers of the river were such as could not have been prevented by human skill and foresight, and were incident to river navigation. That all evidence was irrelevant that did not show that the loss was occasioned by the act of God, the enemies of the country, or dangers of the river; that the custom could not affect or in anywise alter the written contract of the parties, as contained in the bill of lading, as the language had a definite legal meaning which this custom could not change. A similar question arose in the case of the Schooner Reeside, (2 Sum., 568,) where Justice Story condemns, in pointed language, the habit of admitting loose and inconclusive usages and customs 'to outweigh the well-known and well-settled principles of law.' And in Rogers v. Mechanics' Insurance Co., (1 Story, 601,) he denies the authority of a usage of a particular port, in a particular trade, to limit or control or qualify the language of mercantile contracts, such as a policy of insurance. A usage such as is pleaded in this suit, if existing, must be notorious and certain, and have been uniform in its application and long established in practice. It must have been exhibited in the transactions of the individuals and corporations concerned, in conducting the business of shipments, transportation, and insurance, through the Mississippi valley.

If the evidence had established that policies of insurance there did not designate fire among the risks assumed; that the words 'perils of the river' were used to include that risk, and losses by fire had been uniformly settled under that clause in the policy; that contracts of affreightment had been made and losses adjusted on the same conditions; that these usages had received the sanction of professional and judicial opinion in the States bordering that river-the cause of the appellants would have presented different considerations. The record contains nothing to exempt them from the legal rule of liability, as established by the common law. Seven of the bills of lading produced contain the exception, 'perils of the river and fire;' three others add to the perils of the river, 'unavoidable accidents;' and in these cases the Circuit Court exonerated the appellants from responsibility.

The appellants further contend that the insurance company is not subrogated to the claims of the shippers of the cotton, whose losses have been adjusted on their policies of insurance; or, if this is so, still their suit should have been at law, in the name of the assured-the remedy being adequate and complete. In Randell v. Cochran, (1 Vesey, sen., 98,) the chancellor replied to a similar objection, 'that the plaintiff had the plainest equity that could be.' The person originally sustaining the loss was the owner; but, after satisfaction made to him, the insurer. And in White v. Dabinson, (14 Sim., 273,) an insurer enforced a lien on a judgment recovered by the assured for a loss, where the loss had been partially settled by him, on the policy. (Monticello v. Morrison, 17 How., 152.) These cases also show that an insurer may apply to equity whenever an impediment exists to the exercise of his legal remedy in the name of the assured.

The bill discloses fifteen different contracts of affreightment, of a similar character, which have been adjusted by the appellees, and which form the subject of this suit.

They have been joined in the same bill, and much inconvenience and vexation have been prevented. Without further inquiry, we think a sufficient ground for a resort to equity is disclosed.

Decree affirmed.


text: Talk:Garrison v. Memphis Insurance Company/Opinion of the Court


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Commercial Mutual Marine Insurance Company v. Union Mutual Insurance Company of New York

THIS was an appeal from the Circuit Court of the United States for the district of Massachusetts, sitting in equity.

The facts are stated in the opinion of the court.

The case was argued by Mr. Curtis for the appellants, and Mr. Goodrich for the appellees.

Mr. Justice CURTIS delivered the opinion of the court.


text: Talk:Commercial Mutual Marine Insurance Company v. Union Mutual Insurance Company of New York


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Commercial Mutual Marine Insurance Company v. Union Mutual Insurance Company of New York/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the district of Massachusetts, in a suit in equity, to compel the specific performance of a contract to make reinsurance on the ship Great Republic. The Circuit Court made a decree in favor of the complainants, and the respondents appealed.

It appears that the complainants, a corporation established in New York, having made insurance of the ship Great Republic to a large amount, authorized Charles W. Storey, at Boston, to apply for and obtain from either of the insurance companies there reinsurance to the extent of ten thousand dollars. Pursuant to this authority, on the 24th December, 1853, Mr. Storey made application to the president of the defendant corporation for reinsurance, at the same time presenting a paper, partly written and partly printed, as embodying the terms of the application. The paper was as follows:

'Reinsurance is wanted by the Union Mutual Insurance Company, New York, for $10,000, on the ship Great Republic, from December 24, 1853, at noon, for six months ensuing.

'This policy is to be subject to such risks, valuations, and condition, including risk of premium note, as are or may be taken by the said Union Mutual Insurance Company, and payment of loss to be made at the same time. 3 per cent.

'Binding, _____ _____, President.

'New York, December 24, 1853.'

The president, after consultation with one of the directors of the company, declined to take the risk for a premium of three per cent., but offered to take it for three and a half per cent.

Mr. Storey replied, that was more than he was authorized to give, and left the office. He immediately apprised his principals, by a telegraphic despatch, that the risk could be taken for three and a half per cent. for six months, or six per cent. a year. The reply, on the same day, was, 'Do it for six months, privilege of cancelling if sold.' This reply did not come to the hands of Mr. Storey until Monday, the 26th day of December, when he went to the office of the respondents, and found there the president of the company, but not any other person, as the day was generally observed, by merchants, bankers, and insurers, as a holyday, Christmas having fallen on Sunday.

Mr. Storey informed the president he was willing to pay three and a half per cent. for the reinsurance described in the proposal, took a pen and altered the three per cent. to three and a half per cent., by adding 1/2 to 3 on the paper, and it is admitted by the answer that the president thereupon assented to the terms contained in the paper, but informed Mr. Storey that no business was done at the office on that day, and that the next day he would attend to it. The president then took the paper and retained it.

To a special interrogatory contained in the bill, the defendants answer:

'That its president did assent to the terms and provisions in said paper, as the terms and provisions of a reinsurance to be completed and executed by this defendant, by the making and execution of a policy in due form, according to the requisitions of the laws of Massachusetts, and the by-laws of this defendant, but they were not assented to as a present insurance.' Upon these facts, we are of opinion there was an agreement to reinsure according to the terms contained in the proposal, concluded by and between Mr. Storey and the president at this interview on Monday the 26th of December. The paper contained every particular essential to a contract to make reinsurance. It ascertained the subject of insurance, the commencement and duration of the risk, the parties, the interest of the assured, and the premium; and for the special risks, the valuations, and conditions, it referred to the original contract of insurance made by the complainants, by reason of which they were seeking reinsurance.

On Saturday, the president had offered to contract in accordance with the paper, saving a difference of one-half per cent. on the premium.

It was argued that it could not be considered an acceptance, on Monday, of a continuing offer made on Saturday, because, when the complainants authorized Mr. Storey to give three and a half per cent., they at the same time imposed a new condition by the words, 'privilege of cancelling if sold.' But Mr. Storey testifies, and this is not denied by the answer, or by any witness, that when he made the application on Saturday, and before the president had named the premium which he was willing to take, the president said he supposed that they would have to cancel the policy, if the vessel should be sold within the time; and that he (Storey) assented thereto; and that at the interview on Monday, when this point was referred to, the president said the usage in Boston would settle it, and he would not put anything concerning it into the policy; and after some conversation concerning the usage, Mr. Storey agreed to take the policy without any mention of the privilege of cancellation. Under these circumstances, we do not perceive that the requirement of this privilege can be considered as at all varying, in the apprehension and meaning of the parties, the terms of the acceptance on Monday, from the terms of the proposal on Saturday. But whether, under all the circumstances, this should be deemed to have been a continuing offer, we do not think it necessary to determine; because, on Monday, either the president's offer of Saturday was accepted by Mr. Storey, and its acceptance made known to the president, or the proposal was renewed by Mr. Storey, and accepted by the president. The fact that others chose to abstain from business on that day did not prevent these parties from contracting, if they saw fit to do so; and when one of them either accepted a continuing offer, or renewed a proposal which was accepted by the other, they made a binding contract. Nor do we think the allegation of the answer, that the president informed Mr. Storey that no business was done in the office that day, but the next day he would attend to it, can reasonably be interpreted to mean that he had not made, or intended to make, a contract for a policy. Their fair meaning is, that though he had agreed to make the insurance, as the secretary and clerks were not there, and the books not accessible, any action on the agreement must be deferred to the next day. The words cannot be understood to mean, that he would on the next day attend to what he had already done; and he had already made a contract for reinsurance, to be executed on the next day, by issuing a policy in due form to carry that agreement into effect.

On leaving the office of the defendants, Mr. Storey immediately informed the plaintiffs that he had effected this contract, and on the night of the same day the ship Great Republic was destroyed by fire, while lying at a wharf in the city of New York. On the twenty-seventh of December, the complainants tendered their note for the agreed premium, and demanded the policy of reinsurance. The defendants declined to make the policy. Several grounds have been insisted on in support of this refusal:

The first is, that by force of a statute of the State of Massachusetts, (Rev. Stats., ch. 37, secs. 12, 13,) insurance corporations can make valid policies of insurance only by having them signed by the president and countersigned by the secretary. But we are of opinion that this statute only directs the formal mode of signing policies, and has no application to agreements to make insurance.

Such we understand to be the view taken of this statute by the Supreme Court of Massachusetts. (New England Ins. Co. v. De Wolf, 8 Pick., 63; [Stat. 1817, ch. 120, sec. 1;] McCullock v. The Eagle Ins. Co., 1 Pick., 278; Thayer v. The Med. Mu. Ins. Co., 10 Pick., 326. See also Trustees v. Brooklyn Fire Ins. Co., 18 Barbour, 69; and Carpenter v. The Mu. Safety Ins. Co., 4 Sand. Ch. R., 408.)

It is further insisted, that by the law merchant insurance can be effected only by a contract in writing. We do not doubt that the commercial law of all countries has treated of insurance as made in writing by an instrument, denominated by us a policy; and there may be provisions of positive law, in some countries, requiring an agreement to make a policy to be in writing. But there is no such statute of frauds in the State of Massachusetts.

The common law must therefore determine the question; and under that law, a promise for a valuable consideration to make a policy of insurance is no more required to be in writing than a promise to execute and deliver a bond, or a bill of exchange, or a negotiable note. So it has been held by other courts, and, we think, on sound principles. (18 Barbour, 69; Hamilton v. The Lycoming Company, 5 Barr., 339. See also Sanford v. The Trust Fire Ins. Co., 11 Paige, 547.)

The respondents' counsel had argued that their president had not authority to enter into an oral contract binding the company to make insurance. They admit it has been usual for the president to make such contracts; but they say that when he has done so, the policy was not issued until the next day, and no risk is understood to have commenced under such an undertaking until the policy issues. Whether a risk be commenced when the contract for insurance in made, or only when the policy issues, must depend on the terms of the contract. Where, as in the present case, there is an express contract to take the risk from a past day, there is no room for any understanding that it is not to commence until a future day. Such an understanding would be directly repugnant to the express terms of the contract. And if the defendants have held out their president as authorized to make oral contracts for insurance, no secret limitation of this authority would affect third persons, dealing with him in good faith and without notice of such limitation. Besides, the supposed limitation would be inconsistent with the authority itself. It is, in effect, that though the president is authorized to make oral promises to effect insurance, the company are at liberty to execute those promises, or to refuse to do so, at their option.

The power of the president to enter into this contract to make insurance is nowhere denied in the answer. All that can bear on this subject occurs in certain statements concerning the usual course of business of the company. It seems to have been assumed by both parties, that whatever the president actually did in this transaction, he did for the company, and so as to render them responsible for his acts. And no question was raised on this point in the court below. Still it is incumbent on the complainants to offer competent and sufficient evidence of the authority of the president to bind the company, though less evidence may be reasonably sufficient when no issue concerning it is made on the record.

We think such evidence is in the case. Mr. Storey deposes, that during the three years next preceding this transaction, he had effected upwards of three hundred contracts for reinsurance, with the presidents of ten different insurance companies of Boston; and that one, or possibly two, of these presidents usually signed an accepted application-the others all contracted orally. Considering that all the incorporated insurance companies in Boston have similar charters, and the same kind of officers to conduct their business, we think this is competent evidence, that presidents of such insurance companies in that city are generally held out to the public as having the authority to act in this manner. And upon a point not put in issue in the record, and on which no more than formal proof ought to be demanded, we hold this evidence sufficient. (Fleckner v. The Bank of the United States, 3. Whea., 360; Minor v. The Mechanics' Bank of Alexandria, 1 Peters, 46.)

The fair inference is, that if the general authority of the president to contract for the corporation had been put in issue, it could have been shown, by the most plenary proof, that the presidents of insurance companies in the city of Boston are generally held out to the public by those companies as their agents, empowered to receive and assent, either orally or in writing, to proposals for insurance, and to bind their principals by such assent.

Nor do we deem it essential to the existence of a binding contract to make insurance, that a premium note should have been actually signed and delivered. The promise of the plaintiffs to give a note for the premium was a sufficient consideration for the promise to make a policy. It is admitted, that the usage is to deliver the note when the policy is handed to the assured. If the defendants had tendered the policy, we have no doubt an action for not delivering the premium note would have at once lain against the plaintiffs; and we think there was a mutual right on their part, after a tender of the note, to maintain an action for non-delivery of the policy. In Tayloe v. The Mutual Fire Ins. Co., (9 How., 390,) it was held that a bill in equity for the specific performance of a contract for a policy could be maintained. And it being admitted that in this case the defendants would be liable as for a total loss on the policy, if issued in conformity with the contract, no further question remained to be tried, and it was proper to decree the payment of the money, which would have been payable on the policy, if it had been issued.

The decree of the Circuit Court is affirmed.


text: Talk:Commercial Mutual Marine Insurance Company v. Union Mutual Insurance Company of New York/Opinion of the Court


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Field v. Seabury

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of California.

The case is fully stated in the opinion of the court.

It was argued at December term, 1855, by Mr. Lockwood for the plaintiff in error, and Mr. Holladay for the defendants, and held under a curia advisare vult until the present term.

Mr. Justice WAYNE delivered the opinion of the court.

title: Field v. Seabury


text: Talk:Field v. Seabury

title: Talk:Field v. Seabury