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Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/364

 308 Sunday, in order to have her eyes cured of their chronic weakness.

The remaining great day in the Celtic year is called Sauin or Laa Houney; in Irish, Samhain, genitive Sanihna; the Manx call it in English Hollantide, a word derived from the English genitive plural, Allhallown, for All Hallowen Tide or Day. This day is also reckoned in Man according to the Old Style, so that it is our 12th of November. That is the day when the tenure of land terminates, and when servant-men go to their places. In other words, it is the beginning of a new year; and Kelly, in his Manx-English Dictionary, has, under the word blein, "year", the following note: "Valancey says the Celts began their year with January; yet in the Isle of Man the first of November is called New Year's Day by the Mummers, who, on the eve, begin their petition in these words: 'To-night is New Year's night, Hog-un-naa, etc' " It is a pity that Kelly, whilst he was on this subject, did not give the rhyme in Manx, and all the more so, as the mummers of the present day have changed their words into Noght oie Houney, that is to say, To-night is Sauin Night (or Halloween). So I had despaired of finding anybody who could corroborate Kelly in his statement, when I happened last summer to find a man at Kirk Michael who was quite familiar with this way of treating the year. I asked him if he could explain Kelly's absurd statement—I put my question designedly in that form. He said he could, but that there was nothing absurd in it. He then told me how he had heard some old people talk of it; he is himself now about sixty-seven. He had been a farm-servant from the age of sixteen till he was twenty-six to the same man, near Regaby in the parish of Andreas, and he


text: Talk:Christian Union v. Yount

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title: Talk:Christian Union v. Yount


text:
Christian Union v. Yount/Opinion of the Court

This suit was brought by Yount and others against the American and Foreign Christian Union to set aside a conveyance of certain lots or parcels of land in the State of Illinois, alleged to be of the value of $10,000, which was executed, May 19, 1870, by Stephen Griffith, a citizen of that State, to the Christian Union, a corporation created in the year 1861 under the laws of New York, providing for the incorporation of benevolent, charitable, scientific, and missionary societies in the latter State.

A decree was rendered against the corporation, and it appealed here.

The place of business and principal office of the appellant was and is in the city of New York, but there seems to be no inhibition, in its charter, upon the exercise of its functions in other States. The declared object of its incorporation was, 'by missions, colportage, the press, and other appropriate agencies, to diffuse and promote the principles of religious liberty and a pure evangelical Christianity, both at home and abroad, wherever a corrupt Christianity exists.'

The appellees, who are the children and heirs-at-law of Griffin, pray for a decree declaring the conveyance to be null and void, and requiring the appellant to convey to them the premises in dispute. They broadly claim that by the settled law of Illinois a foreign corporation cannot take or hold lands in that State, and that, consequently, no title passed to the appellant from their ancestor. That is the fundamental proposition in the case, and is the only one which counsel for the appellees, in support of the decree below, has deemed it necessary to discuss with any fulness.

By the statute of New York under which the appellant was organized, it was made capable of taking, receiving, purchasing, and holding real estate for the purposes of its incorporation, and for no other purpose, to an amount not exceeding the sum of $50,000 in value, and personal estate for like purposes to an amount not exceeding $75,000 in value, the clear annual income of such real and personal estate not, however, to exceed the sum of $10,000. No question is made here as to its right, consistently with its own charter and the laws of New York, to acquire, for the purposes of its creation, real estate within, at least, the quantity designated by its charter.

The appellant, then, having this capacity by its charter, and not being expressly prohibited from exercising its powers beyond the State which created it, we proceed to inquire whether it was forbidden by the laws of Illinois in force in the year 1870 from taking title by conveyance to real property within the limits of that State, for the objects designated in its charter. For, besides the admitted incapacity of a corporation of one State to exercise its powers in another State, except with the assent or permission, expressed or implied, of the latter, it is a principle 'as inviolable as it is fundamental and conservative, that the right to hold land, and mode of acquiring title to land, must depend altogether on the local law of the territorial sovereign.' Runyan v. The Lessee of Coster, 14 Pet. 122; Lathrop v. Commercial Bank of Scioto, 8 Dana (Ky.), 114.

By a general law of Illinois, enacted in 1859, any three or more persons of full age, citizens of the United States, a majority of whom were also required to be citizens of that State, could become a body politic and corporate for benevolent, charitable, educational, literary, musical, scientific, religious, or missionary purposes, and in their corporate capacity take, receive, purchase, and hold real and personal estate, and, for charitable purposes only, sell and convey the same. Laws of Ill., 159, p. 20; Gross's Rev. 124.

Corporations formed under that law were made capable of taking, holding, or receiving any property, real estate or personal, by gift, purchase, devise, or bequest, or in any other manner. Authority was given to sell real estate purchased by them for their own use, with any building erected thereon, and invest the proceeds in the purchase of another lot, or the erection of another building, or both. As to such as was devised or given to them for any specified benevolent purpose, authority was conferred to sell the same and apply the proceeds in aid of that purpose, such real estate, however, not to be held more than five years.

This general statute was in force when the conveyance to the appellant was executed. It thus appears that when its rights accrued under that conveyance the statutes of Illinois expressly provided for the incorporation of societies having objects similar to those of the appellant, and with capacity to take, receive, and hold real property, by gift, purchase, devise, bequest, or in any other manner, for the purposes of their creation. Shortly after the passage of the general law of 1859, to wit, at its session of 1861, the General Assembly created a large number of religious and charitable corporations, with like capacity to take, receive, and hold real and personal property; and in the year 1863 it expressly exempted from taxation real and personal property which the American Bible Society, a corporation of New York, then owned or might thereafter acquire in the State of Illinois, not exceeding $50,000 in value; also all Bibles and Testaments in its depositories, and any articles of personal property necessary for the prosecution of its objects. Pri. Laws Ill., 1863, p. 26.

The conclusion is not to be avoided that the State, prior to 1870, authorized, if it did not steadily encourage, the organization of societies for benevolent, charitable, religious, and missionary objects, and endowed them with capacity to acquire by purchase, gift, or devise, real estate for the purposes of their creation. It had not then, nor, so far as we are informed, has it since, passed any statute expressly forbidding corporations of other States, having like objects, from taking, receiving, purchasing, or holding real property in that State to the same extent and for the same purposes as were allowed to its own corporations of that class. Nor is our attention called to any statute in force in 1870, or subsequently, which expressly forbade foreign corporations from exercising, within the State of Illinois, the functions with which they were endowed by the respective States creating them, or which made the express permission by statute of that State a condition precedent to the recognition within its jurisdiction of the corporations of other States. Although, as a general proposition, a corporation must dwell in the State under whose laws it was created, its existence as an artificial person may be acknowledged and recognized in other States. 'Its residence in one State creates no insuperable objection to its power of contracting in another.' Rungan v. The Lessee of Coster, 14 Pet. 122. In Cowell v. Springs Company (100 U.S. 55) we said: 'If the policy of the State or Territory does not permit the business of the foreign corporation in its limits, or allow the corporation to acquire or hold real property, it must be expressed in some affirmative way; it cannot be inferred from the fact that its legislature has made no provision for the formation of similar corporations, or allows corporations to be formed only by general law. Telegraph companies did business in several States before their legislatures had created or authorized the creation of similar corporations; and numerous corporations existing by special charter in one State are now engaged, without question, in business in States where the creation of corporations by special enactment is forbidden.' In harmony with the general law of comity obtaining among the States composing the Union, the presumption should be indulged that a corporation of one State, not forbidden by the law of its being, may exercise within any other State the general powers conferred by its own charter, unless it is prohibited from so doing, either in the direct enactments of the latter State, or by its public policy to be deduced from the general course of legislation, or from the settled adjudications of its highest court. There was here no such direct legislation during or prior to the year 1870, nor can the existence of such a public policy to the inferred from the general course of legislation or judicial decisions in Illinois up to and including that year, in relation to religious, benevolent, charitable, or missionary societies created in other States.

But it is contended that the precise question now under consideration has been heretofore decided by the Supreme Court of Illinois adversely to these views in Carroll v. The City of East St. Louis (67 Ill. 568) and Starkweather v. American Bible Society (72 id. 50), and that this court is obliged to follow the construction of the State law and give effect to the public policy of Illinois, as announced by the highest court of that State. Our obligation to follow, without question, these decisions arises, it is claimed, out of the express provisions of the act of Congress declaring that the laws of the several States, except when the Constitution, treaties, or statutes of the United States otherwise require or provide, are to be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. This provision was incorporated in the original judiciary act, and has been retained in the statutes of the United States to the present time. Under it we have often declared that the construction given to a State statute by the highest judicial tribunal of such State is to be accepted in the Federal courts as a part of the statute whenever they are required to determine questions, or ascertain rights arising out of or dependent upon such local statute. But how far the Federal courts, in the ascertainment and enforcement of property rights, dependent upon the statute law, or the settled public policy of a State, are bound by the decisions of the State court, rendered after such rights were acquired or became vested, is a different question, and one of the gravest importance. The rule upon this subject has been announced, with some qualifications arising out of the circumstances of the particular cases, heretofore decided in this court. Its extended discussion is not, however, essential in this case, since the decisions of the Supreme Court of Illinois, upon which counsel for appellees rely, do not, in our judgment, necessarily conclude the precise point here involved.

In Carroll v. The City of East St. Louis (supra), the question before the court was whether the Connecticut Land Company, a corporation created in another State for the sole purpose of buying and selling lands, had power to purchase and hold title to lands in the State of Illinois. The decision was that it could not, for the reason-and no other is assigned-that the company, if permitted to exercise its functions in Illinois to the full extent authorized by its charter, could acquire lands without limit as to quantity, and hold them in perpetuity; that such privileges had never been accorded by Illinois to her own domestic corporations, and were inconsistent with her settled public policy against perpetuities, as indicated not by express enactment, but with absolute certainty, by the general course of its legislation from the very organization of the State.

Two of the judges dissented from the opinion, so far as it held invalid a transfer of land by the corporation to a purchaser.

The subsequent case of Starkweather v. American Bible Society (supra) involved the title to certain real estate, an undivided interest in which was devised by one Starkweather to the trustees of the American Bible Society, established in 1816, to have and to hold the same for its use, but not to be entitled to the same, or its income, until his youngest child became of age. The claim of the Bible Society was denied, by the court, upon the following grounds: 1. That by the laws of New York, as declared by the highest court of that State, it had not the capacity to take title to real property in New York by devise. 2. That New York had no power to create a body incapable of taking land in that State by devise, and yet with power to so take lands in a foreign jurisdiction. 3. And by way of argument, that if New York was to so enact, and other States were to so consent, then such bodies might so receive and hold lands; but, said the court, the former had not so enacted, nor had Illinois so consented, since, when the will of Starkweather was probated, Sept. 16, 1867, there was no statute of Illinois which authorized foreign corporations to hold lands by devise in that State. 4. The principles announced in Carroll v. The City of East St. Louis were regarded as conclusive against the claim of the Bible Society, 'as,' said the court, 'all of the inconveniences and injuries are as likely to ensue in this, and other cases like it, as in that.' 5. The devise being illegal and void, the court could not decree a sale of the real estate devised and direct the payment of the proceeds to the society.

We are of opinion that the Starkweather case does not determine the particular question we have been considering. It does not decide that the devise to the Bible Society was void solely because of the absence of some statute expressly and affirmatively authorizing or permitting devises of real estate in Illinois to corporations of other States. The absence of such a statute was referred to, as we suppose, for the purpose of showing that the admitted incapacity of the Bible Society, under the law of its own creation, to take real estate by devise, and its consequent inability to acquire in that mode real estate situated elsewhere, could not be removed or be met by any thing in the legislation of Illinois, since no statute in force when the will was probated conferred upon foreign corporations the right to acquire real property in that State by devise.

The Starkweather case was held to be concluded by the principles announced in the Carroll case, for the reason, perhaps, that the property devised could, consistently with the will of the testator and the charter of the society, have been held for a period of time beyond that allowed to similar corporations of Illinois holding lands in that State. Upon no other ground are we able to understand how the Starkweather case was concluded by the principles announced in Carroll v. East St. Louis. Neither decision warrants the conclusion that, at the date of the deed to appellant, a benevolent, religious, or missionary corporation of another State having authority under its own charter to take lands, in limited quantities, for the purposes of its incorporation, was forbidden by the statutes or the public policy of Illinois, from taking title, for such purposes, to real property in that State, under a conveyance from one of its citizens, duly executed and recorded as required by its laws. The conveyance to the appellant can be sustained without in any degree impairing or doing violence to the fundamental principle enumciated in the Carroll case; viz., that corporations cannot acquire lands in Illinois in large quantities, to be held, or which may be held, in perpetuity. It can also be sustained, without violating the main proposition laid down in the Starkweather case; viz., that a foreign corporation, forbidden by the laws of the State creating it, to acquire lands there, by devise, could not, by that mode, take lands in Illinois, in the absence of a statute of that State assenting thereto. We cannot presume that it is now, or was in 1870, against the public policy of Illinois that one of its citizens should convey real estate there situated to a benevolent or missionary corporation of another State of the Union, for the purpose of enabling it to carry out the objects of its creation, when that State permitted its own corporations, organized for like purposes, to take real estate within its limits, by purchase, gift, devise, or in any other manner.

We have considered these questions with reference to the law of Illinois at the date of Griffith's conveyance. But our conclusions are strengthened by her subsequent legislation. We refer particularly to the general statute passed in 1872, providing for the organization of corporations for pecuniary profit, or for any lawful purpose except banking, insurance, real-estate brokerage, the operation of railroads (other than horse and dummy railroads), and the business of loaning money, with authority to own, possess, and enjoy so much real and personal estate as shall be necessary for the transaction of their business, and to sell and dispose of the same when not required for the uses of the corporation. All real estate acquired in satisfaction of any liability or indebtedness, and not necessary and suitable for the business of the corporation, was required to be annually offered at public auction, and if not sold within five years, its sale could be enforced by information in the name of the State against the corporation. Sect. 26 of that general statute expressly recognizes the right of foreign corporations to acquire real estate in Illinois. Its language is: 'Foreign corporations, and the officers and agents thereof, doing business in this State, shall be subjected to all the liabilities, restrictions, and duties that are or may be imposed upon corporations of like character organized under the general laws of this State, and shall have no other or greater powers. And no foreign or domestic corporation established or maintained in any way for the pecuniary profit of its stockholders or members, shall purchase or hold real estate in this State, except as provided for in this act.' Hurd's Ill. Rev. 1879, p. 290.

Distinct provision was made in the same statute for the organization of societies, corporations, and associations, not for pecuniary profit, with capacity to take, purchase, hold, and dispose of real and personal estate for purposes of their organization. The statute imposes on the corporations last described no restrictions as to the quantity of estate they may take and hold, except that it must be for the purposes of their organization. Churches, congregations, or societies formed of religious worship, when incorporated under that statute, in addition to grounds for burying and camp-meeting purposes, were limited to ten acres of ground for houses, buildings, or other improvements for the convenience and comfort of such congregations, church, or society.

If the settled public policy of Illinois in 1870 forbade a benevolent missionary corporation of another State from taking title to real estate in Illinois for purposes of its organization, a general statute would hardly have been passed in 1872 recognizing the right of foreign corporations organized for pecuniary profit to hold real estate in Illinois, to the same extent and under like powers with domestic corporations of the same class.

Appellees, in their pleadings, allege that the lots conveyed by their ancestor to the American and Foreign Christian Union were not required or necessary for the convenience or transaction of its business. These allegations are both insufficient and immaterial: insufficient, because they may be true, and yet the appellant, with the lots in dispute added to its property, may not have had more real estate than its charter permitted; immaterial, because if, as we hold, the appellant could consistently with its own charter and the law of Illinois take title to real property in that State for the purposes of its creation, its acquisition of a larger quantity of real estate than its charter allowed, or its business required, or was consistent with the law of Illinois, was not a question which the appellees have any right to raise. If the title passed by valid conveyance from their ancestor, it is of no concern to them that the appellant has acquired or is holding more real estate than its charter authorizes.

We forbear the discussion of any other question arising upon the assignments of error. It is apparent from the record and the argument of counsel that the decree of the court below was based upon the conclusion that the appellant, being a foreign corporation, was forbidden by the law of Illinois from taking title to the property in controversy. No proof was taken, nor was the case heard upon the issue as to the mental capacity of Griffith to execute the conveyance of 1870, or as to its having been obtained by fraudulent solicitations and representations upon the part of the agents of the appellant. The parties should have an opportunity to prepare the cause, and have it heard upon those issues.

The decree will be reversed, with directions to overrule the demurrer to the cross-bill and the exceptions to the answer, and for such further proceedings as may be consistent with this opinion.

So ordered.


text: Talk:Christian Union v. Yount/Opinion of the Court


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Kain v. Gibboney

APPEAL from the Circuit Court of the United States for the Western District of Virginia.

On Aug. 7, 1853, Malvina Matthews, of Wythe County, Virginia, made her last will and testament, which was duly addmitted to probate, devising a tract of land on which she then lived, to Granville H. Matthews in trust for her two daughters, Malvina and Eliza, and authorizing him to sell it and invest the proceeds at his discretion; one half of the annual interest or dividends accruing therefrom to go to each of them as a fund, for her separate and sole use and benefit, especially in the event of her marriage. The will declared that one moiety of the principal arising from the sale of the land might be disposed of by each, either by deed to take effect after her death, or by will, and not otherwise.

Matthews sold the land, but was removed from the executorship and trusteeship; and Robert Gibboney, who was appointed in his stead, received of the trust fund $7,985.88, of which one-half belonged to said Eliza. The latter died, and her will, bearing date Dec. 9, 1854, was, in 1861, admitted to probate in the county court of Wythe County. Robert Gibboney qualified as her administrator. The will, after making various pecuniary bequests, among them one of $500 to 'Richard V. Wheelan, Roman Catholic Bishop of Wheeling, Virginia, and his successors in that church dignity,' contained the following provision:--

'In the event that I may hereafter become a member of any of the religious communities attached to the Roman Catholic Church, and am such at the time of my death, then it is my will that all the foregoing bequests and legacies be void, and that my executors hereinafter named shall pay over the whole of the property or other thing, after disposing of the same for money, to the aforesaid Richard V. Wheelan, bishop as aforesaid, or his successor in said dignity, who is hereby constituted a trustee for the benefit of the community of which I may be a member, the said property or money to be expended by the said trustee for the use and benefit of said community.'

After making her will, she became a member of an unincorporated religious community attached to the Roman Catholic Church, known as the 'Sisters of Saint Joseph,' and was such at the time of her death.

In 1871, Alexander S. Matthews, her brother, instituted a suit against her legatees and other heirs-at-law in the Circuit Court of said county, to contest the validity of her will. An issue of devisavit vel non was ordered but not tried, as by consent of the counsel of the parties it was decreed that he should be paid from her estate the part thereof to which he would have been entitled had she died intestate; and that the devisee named in the will should proceed to collect the estate, and, after paying the debts and costs of suit, pay to said Alexander the tenth part. The suit was thereupon dismissed, with leave to have the same reinstated if necessary, for the purpose of enforcing the decree.

Some time thereafter, Elizabeth G. Gibboney, the executrix of Robert Gibboney, who had departed this life, delivered to Wheelan, as part of the estate of Eliza, a bond of one Johnson for $500.

Thereupon Wheelan brought this suit, in the court below, against said Elizabeth, to recover the residue of that estate, and alleged that said Robert had never invested the fund which he received as the trustee of Eliza, but had converted it to his own use, except the bond of Johnson.

Wheelan died, and John J. Kain having been duly appointed Bishop of Wheeling, the suit was revived in his name.

The bill was, on demurrer, dismissed, and Kain appealed to this court.

Mr. John W. Johnston for the appellant.

Mr. John A. Campbell, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Kain v. Gibboney


text: Talk:Kain v. Gibboney

title: Talk:Kain v. Gibboney


text:
Kain v. Gibboney/Opinion of the Court

The bequest which the complainant seeks to enforce by this bill was an attempted testamentary disposition under the law of Virginia, and the matter now to be determined is whether by that law it can be sustained. It may be conceded that, notwithstanding its uncertainty, a legacy given in the words of this will, if for a charity, would be held valid in England, and in most of the States of the Union. But we have now to inquire, What is the law of Virginia? The gift was made to 'Richard V. Wheelan, Bishop of Wheeling, or to his successor in said dignity.' It was, therefore, in effect, a gift to the office of the Bishop of Wheeling. Neither Bishop Wheelan, nor any bishop succeeding him, was intended to derive any private advantage from it. Nothing was intended to vest in him but the trust, and that was required to be executed by whomsoever should fill the office of bishop, only so long as he should fill it, and executed in his character of bishop, not as an individual. The bequest was practically to a bishopric, and as a bishop is not a corporation sole, it may be doubted whether, at the decease of the testatrix, there was any person capable of taking it. True it is, that generally a trust will not be allowed to fail to want of a trustee: courts of equity will supply one. But if it could be conceded that Wheelan was, in his lifetime, capable of taking the bequest, and that Bishop Kain is capable of taking and holding after the death of his predecessor, a greater difficulty is found in the uncertainty of the beneficiaries for whose use the trust was created. In the words of the will, they are a religious community, of which the testatrix contemplated she might die a member. She died a member of a religious community attached to the Roman Catholic Church, known as the 'Sisters of St. Joseph.' That is an unincorporated association, and it is the association as such, and not the individual members who composed it, when the testatrix died, which is declared to be the beneficiary. Nor is it the community attached to any local church which is designated, but a community attached to the Roman Catholic Church, wherever that church may exist. Its members must be constantly changing, and it must always be uncertain who may be its members at any given time. No member can ever claim any individual benefit from the bequest, or assert that she is a cestui que trust; and the community having no legal existence, can never have a standing in court to call the trustees to account. This bequest is, therefore, plainly invalid, unless it can be supported as a charity. And it is far from evident that it is a gift for charitable uses. It looks more like private bounty. Charity is generally defined as a gift for a public use. Such is its legal meaning. Here the beneficial interest is given to a religious community, but not declared to be for religious uses. There is nothing in the will to show that aid to the poor, or aid to learning, or aid to religion, or to any humane object was intended.

Conceding, however, that it is a charitable bequest, it is a Virginia gift, by a Virginia will, and in that State charities in general are not upheld to any greater extent than ordinary trusts are. This will be very manifest when the decisions of the courts of the State and of this court are reviewed. The subject was fully considered in Baptist Association v. Hart's Executors (4 Wheat. 1), decided in 1819. There it appeared that the testator, a citizen of Virginia, had bequeathed certain military certificates to 'the Baptist Association that for ordinary meets at Philadelphia annually, to be a perpetual fund for the education of youths of the Baptist denomination, who shall appear promising for the ministry, always giving a preference to the descendants of his father's family. Before the death of the testator the legislature of the State had repealed all English statutes, including, of course, the 43d Elizabeth, c. 4, at that time generally regarded as the origin of the jurisdiction of equity over charities. This court held that the Baptist Association, not having been incorporated at the testator's decease, could not take the trust as a society. 2. That the individuals composing it could not take. 3. That there were no persons who could take, if it were not a charity. 4. That the bequest could not be sustained as a charity. 5. That charitable bequests, where no legal interest is vested, and which are too vague to be claimed by those for whom the beneficial interest was intended, cannot, independently of the 43d Elizabeth, c. 4, be sustained by a court of equity, either in exercising its ordinary jurisdiction, or in enforcing the prereogative of the king as parens patriae.

It is true, that the fifth rule thus announced, as a general proposition, is now known to have been erroneously stated. Trusts for charitable uses are not dependent for their support upon that statute. Before its enactment, they had been sustained by the English chancellors in virtue of their general equity powers in numerous cases. Vidal v. Girard's Executors, 2 How. 127. And generally, in this country, it has been settled that courts of equity have an original and inherent jurisdiction over charities, though the English statute is not in force, and independently of it. It is believed that such is the accepted doctrine in all the States of the Union, except Virginia, Maryland, and North Carolina. But, as we have said, the rule in Virginia is different, and it has been different ever since the case of Vidal v. Girard's Executors was decided.

In 1832, the case of Gallego's Executors v. The Attorney-General (3 Leigh (Va.), 450) came before the Court of Appeals of that State. A testator had directed his executors to lay by $2,000, 'to be distributed among needy poor and respectable widows;' and in case the Roman Catholic chapel should be continued at the time of his death, he directed the executors to pay $1,000 towards its support, and if the Roman Catholic congregation should come to a determination to build a chapel at Richmond, to pay $3,000 towards its accomplishment. He further devised a lot to four trustees, in trust, to permit all and every person belonging to the Roman Catholic Church as members thereof, or professing that religion and residing in Richmond, to build a church on the lot for the use of themselves, and of all others of their religion who might thereafter reside in Richmond. These were undoubtedly gifts to charitable uses. Upon an information and bill in chancery to enforce the bequest and devise as charities, it was held that they were all uncertain as to the beneficiaries, and therefore void. The court ruled that the English statute of charitable uses having been repealed in Virginia, the courts of chancery of that State had no power to enforce charities where the objects are indefinite and uncertain, and that charitable bequests stand on the same footing as other bequests. The opinion of President Tucker is very elaborate, and fully sustains that view, approving the doctrine announced in Baptist Association v. Hart's Executors, supra.

This case was followed by Wheeler v. Smith et al. (9 How. 55), decided in 1850, after Vidal's case. It reasserted the doctrine of Gallego's Executors v. The Attorney-General (supra), as the law of Virginia, and declared that the courts of chancery had no jurisdiction to uphold charities when the objects are indefinite and uncertain. Therefore, a bequest for a public purpose, namely, one given to trustees 'for such purposes as they might consider to be most beneficial to the town and trade of Alexandria,' was declared void.

In Seaburn's Executors v. Seaburn (15 Gratt. (Va.) 423), the case of Gallego's Executors v. The Attorney-General was again recognized as the law of the State, except so far as it had been modified by the statutes, and it was ruled that they did not authorize a devise of land for the use of a religious congregation, but a conveyance only. A fortiori, that it did not authorize a bequest of money, to be expended in building a church at a specified place, or for the support of the pastor of such church.

So in a case not reported, a devise in these words: 'I give to the Rev. W. J. Plummer, D.D., the residue of my estate, real and personal, in trust for the board of publication of the Presbyterian Church of the United States,' was held to be void.

We do not overlook the fact that there are cases in which trusts for charitable uses have been sustained, though the description of the beneficiaries was uncertain, but in them all the decisions have been rested upon statutes of the State enacted to provide for special cases. In 1841-42, an act was passed by which it was declared that every conveyance should be valid which should thereafter be made of land for the use or benefit of any religious congregation, as a place for public worship, or as a burial place, or a residence for a minister. This was amended in 1866-67 by adding 'or for the use or benefit of any religious society, or a residence for a bishop, or other minister or clergyman, who, though not in special charge of a congregation, is yet an officer of such church or society, and employed under its authority and about its business.' Civil Code of 1860, c. 78, tit. 22, sect. 8; Civil Code of 1873, c. 76, tit. 22, sect. 8. It will be observed these statutes validate only conveyances. They controlled the decision made in Brooke et al. v. Shacklett (13 Gratt. (Va.) 301), decided in 1856, and Seaburn's Executors v. Seaburn (supra), decided in 1859. The first of these cases-a deed conveying property in trust for the erection of a local Methodist church and the use of its members-was sustained. But Gallego's case was expressly recognized as the law of the State, except so far as the statute had changed it.

On the 2d of April, 1839, the legislature passed an act declaring that devises and bequests for the establishment or endowment of unincorporated schools, academies, or colleges, should be valid, requiring, however, that reports of the devises or bequests should be made to the legislature, and that in case it should fail to incorporate the schools, academies, &c., within a certain time, the gifts should fail. Acts of 1839, c. 12, 11, 13.

So, also, at an early date, the State created a corporation to manage what was called the literary fund (Civil Code of 1860, chapters 78, 79, 80), and by the sections of chapter 80 it was enacted that every gift, grant, devise, or bequest made since April 2, 1839, or which might be made thereafter, for literary purposes, or for the education of white persons within the State (other than for the use of a theological seminary), whether made to a body corporate or unincorporated, or to a natural person, should be as valid as if made to or for the benefit of a certain natural person, with some exceptions. Under these and similar statutes charitable gifts in favor of the literary fund, or of schools, have been sustained, which, without the statutes, would have been held invalid. Such were Literary Fund v. Dawson, 10 Leigh (Va.), 147, and 1 Rob. (Va.) 402; Kinnaird v. Miller, ex'r & als. 25 Gratt. (Va.) 107, and Kelly v. Love, 20 id. 124. But in all these cases the general law of the State is recognized to be as asserted in Gallego's Executors v. The Attorney-General. The bequest now under consideration, therefore, cannot be sustained as a charity.

Equally certain is it that the complainant cannot stand upon the consent decree made by the Circuit Court of Wythe County upon the issue of devisavit vel non, ordered to try whether the instrument purporting to be the will of the testatrix was her will. That issue, framed to try only the validity of the instrument, not the validity of the disposition made by it, was never tried. It was dismissed. No decree was made that the will was valid. To the agreement recited in the decree the defendant was not a party, and the arrangement made by the counsel of the parties to the record did not bind her. Moreover, if she had been bound by it, it conferred no right upon the present complainant.

Decree affirmed.

title: Kain v. Gibboney/Opinion of the Court


text: Talk:Kain v. Gibboney/Opinion of the Court


text:
Phelps v. Harris

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

The facts are fully stated in the opinion of the court.

Mr. G. Gordon Adom, for the plaintiffs in error.

Mr. William L. Nugent, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Phelps v. Harris


text: Talk:Phelps v. Harris

title: Talk:Phelps v. Harris


text:
Phelps v. Harris/Opinion of the Court

This was an action of ejectment for certain lands in Sharkie County, Mississippi, brought by Alonzo J. Phelps and Mary B. Phelps, his wife, the plaintiffs in error, against the defendants in error, of whom George C. Harris and Helen S. Harris, his wife, were admitted to defend as landlords, the other defendants being their tenants in possession of the property in dispute. The principal question in the case is, whether Henry W. Vick, father of the plaintiff, Mary B. Phelps, and trustee under a deed made by his wife, Sarah, in 1850, and also trustee under the will of his brother, Grey Jenkins Vick, made in 1849, had authority under those instruments to make partition of the lands given and devised therein to, and for the use of, his children. If he had such authority, and execised it in a proper manner, the plaintiffs have no title, and the judgment must be affirmed. If he had not such authority, or did not exercise it effectually, the plaintiffs are entitled to recover either all the land in controversy or an undivided part thereof, and the judgment must be reversed. The facts of the case are set out in a special finding of the court below.

By the deed of Sarah Vick, referred to (in which her husband joined), she conveyed certain lands of which she was seised, to a trustee, to be held upon trsut for her own separate use for life, with remainder to her children in fee; subject to certain powers of sale and exchange, and with the following proviso:--

'Provided further, that said trustee is to permit the said Henry W. Vick, as agent for said trustee, and as agent and trustee for said Sarah Vick, during her life, and as agent and trustee for her children after her death, to superintend, possess, manage, and control said property for the benefit of all concerned. Said Henry W. Vick is to have power to sell and exchange said property after the death of said Sarah Vick, and to apply the proceeds to the payment of the debt due to the trustees of the Bank of the United States; if such debt is paid, the proceeds of the sale to be reinvested, and be subject to the trusts of this deed.'

The deed closes with this paragraph:--

'My intention is that said Henry W. Vick shall be regarded, for the purposes of this deed, not merely as an agent, but also a co-trustee, and I desire he may be required to give no security for the performance of his duties; and the said Jonathan Pearce [the trustee] is not, in any manner, to be responsible for the acts and conduct of said Henry W. Vick.'

Sarah Vick died in 1850, leaving four children by her said husband; viz., Mary B. Vick (now said Mary B. Phelps), Henry G. Vick (under whom the defendants claim), Ann P. Vick, and George R. C. Vick, all of whom were then under age and unmarried.

By the will of Grey Jenkins Vick, referred to, the said Grey devised certain lands and other property to the grandchildren of his father and mother, among whom were the said children of Henry W. and Sarah Vick, and constituted the said Henry W. Vick trustee for his said children, giving him full power to dispose of all or any portion of said property which might fall to said children, and invest the proceeds in such manner as he might think proper for their benefit. After the said Grey's death, the said Henry W., as trustee of his said children, became seised in severalty by partition with the other devisees, of the proportion of lands devised to his said children, upon the trusts of the will.

In December, 1856, Henry G. Vick, the eldest of said four children of Henry W. and Sarah Vick, became of age, and soon after demanded from his father an account of his trust, and that his portion of the property held under said deed and will should be set off to him in severalty, and threatened to file a bill in equity for that purpose. They finally agreed to leave the matter to their attorneys, who decided that Henry G. Vick, having become of age, had the right to demand a division of the property, and to have his share set off to him; and the said attorneys signed a written instrument proposing the mode in which such division should be made, to wit, through the intervention of disinterested persons to be chosen by the parties. This plan was adopted; and Henry W. Vick and his son entered into a written agreement to that effect, designating the persons for making the partition, and binding themselves to stand to and abide by their decision. The arbitrators made an award by which the lands in controversy in this suit were allotted to said Henry G. Vick; an indenture was made between him and his father to carry the partition into effect; and he remained in possession of the lands set off to him until his death in May, 1859. It is this partition which is called in question by the plaintiffs.

Henry G. Vick died without issue, having first made a will by which he devised the lands in controversy, which were set off to him as aforesaid, to Helen S. Johnston, now said Helen S. Harris, who, after his death, went into possession thereof, and has ever since continued in possession.

The contention of the plaintiffs is, that Henry W. Vick had no authority, either under his wife's deed, or under the will of Grey Jenkins Vick, to make partition of the lands, that the partition made with Henry G. Vick was void, that he acquired no separate estate thereby, and had no power to devise the lands specifically, and that the plaintiff, Mary B. Phelps, as sole surviving child of Henry W. and Sarah Vick (the others having died without issue), is entitled to recover the property.

In pursuit of the supposed rights of Mary B. Phelps, the plaintiffs, in February, 1871, exhibited a bill in the Chancery Court of Washington County, Mississippi (in which the lands in controversy were then situated), against the defendants, George C. Harris and Helen his wife, to remove the cloud from the supposed title of said Mary, raised by said partition and the will of Henry G. Vick. The defendants relied on the validity of said partition and will, and the question was fully contested. In November, 1873, a decree was made dismissing the bill. An appeal was taken, and the Supreme Court affirmed the decree. The plaintiffs then brought this action of ejectment; and one of the questions in the cause is, whether the decree in the chancery suit did not render the controversy res judicata. The plaintiffs contended that it did not, and that the only effect of the decree was, to decide that a bill to remove the cloud from the title would not lie, leaving the parties to all their legal rights in an action at law.

On this question the court below finds and concludes as follows:--

'And the court here now finds as a fact, from an inspection of the record in the said chancery cause, that the question as to the validity of the partition of the lands aforesaid, made by the said Henry W. Vick and the said Henry G. Vick under the deed of the said Sarah Vick and the will of said Grey J. Vick, and the power of said Henry W. Vick to make such partition, as well as the validity of the devise made by the said Henry W. Vick to the said Helen S. Harris, was directly raised by the bill in said cause and litigated between the parties; and that the said Supreme Court adjudged and decided that the said partition and devise were both valid and effectual, and that the said Henry W. Vick had full power and authority to make the said partition with the said Henry G. Vick. Which decision so made by said court was done to determine the juris diction of the court in said cause, and that said Supreme Court decided that the said Chancery Court had no jurisdiction thereof, and that if the said complainants therein have any right to the lands described therein, and which are the same for which this action of ejectment is brought, it is a legal title which must be enforced in an action at law.'

The decree of the Chancery Court of Washington County, which was affirmed by the Supreme Court, was in the following words: 'The court being of opinion that the complainants are not entitled to the relief prayed for in their bill, or to any relief in the premises from this court, it is therefore ordered, adjudged, and decreed that the said complainants' bill of complaint be and the same is dismissed, and that complainants pay the costs, &c.'

The bill was filed under a statute of Mississippi, which declared as follows: 'When any person, not the rightful owner of any real estate in this State shall have any deed or other evidence of title thereto, or which may cause doubt or suspicion in the title of the real owner, such real owner may file a bill in the Chancery Court of the county in which the real estate is situated, to have such deed or other evidence of title cancelled, and such cloud, doubt, or suspicion removed from said title, whether such real owner be in possession, or be threatened to be disturbed in his possession or not, &c.' Rev. Stat. Miss., 1871, sect. 975, p. 191.

It is probable that the only effect of this statute was to enable owners of land not in possession to file a bill for the removal of clouds upon their title; since the ordinary jurisdiction of a court of chancery is sufficient to enable owners in possession to file such a bill. The questions, what constitutes such a cloud upon the title, and what character of title the complainant himself must have, in order to authorize a court of equity to assume jurisdiction of the case, are to be decided upon principles which have long been established in those courts. Prominent amongst these are, first, that the title or right of the complainant must be clear; and, secondly, that the pretended title or right which is alleged to be a cloud upon it, must not only be clearly invalid or inequitable, but must be such as may, either at the present or at a future time, embarrass the real owner in controverting it. For it is held that, where the complainant himself has no title, or a doubtful title, he cannot have this relief. 'Those only,' said Mr. Justice Grier, 'who have a clear legal and equitable title to land connected with possession, have any right to claim the interference of a court of equity to give them peace or dissipate a cloud on the title.' Orton v. Smith, 18 How. 263; and see Ward v. Chamberlain, 2 Black, 430, 444; West v. Schnebly, 54 Ill. 523; Huntington v. Allen, 44 Miss. 654; Stark v. Starrs, 6 Wall. 402. And as to the defendant's title, if its validity is merely doubtful, it is more than a cloud, and he is entitled to have it tried by an action at law; and if it is invalid on its face, so that it can never be successfully maintained, it does not amount to a cloud, but may always be repelled by an action at law. Overing v. Foote, 43 N. Y. 290; Meloy v. Dougherty, 16 Wis. 269. Justice Story says: 'Where the illegality of the agreement, deed, or other instrument appears upon the face of it, so that its nullity can admit of no doubt, the same reason for the interference of courts of equity, to direct it to be cancelled or delivered up, would not seem to apply; for in such a case, there can be no danger that the lapse of time may deprive the party of his full means of defence; nor can it, in a just sense, be said that such a paper can throw a cloud over his right or title, or diminish its security; nor is it capable of being used as a means of vexatious litigation, or serious injury.' 2 Eq. Jur. sect. 700, a.

The Supreme Court of Mississippi, in their opinion in Phelps v. Harris (51 Miss. 789) a case between the present parties, say: 'This jurisdiction of equity cannot properly be invoked to adjudicate upon the conflicting titles of parties to real estate. That would be to draw into a court of equity from the courts of law, the trial of ejectments. He who comes into a court of equity to get rid of a legal title, which is allowed to cast a shadow on his own title, must show clearly the validity of his own title, and the invalidity of his opponent's. Banks v. Evans, 10 S. & M. 35; Huntington v. Allen, 44 Miss. 662. Nor will equity set aside the legal title on a doubtful state of case. The complainant, to enable him to maintain such a suit, must be the real owner of the land, either in law or equity. Had the defendant, Mrs. Harris, derived her title to the property in controversy even from a doubtful exercise of power, that of itself would be sufficient to preclude the complainants from a resort to equity, upon the well-settled principles above laid down. The proper forum to try titles to land is a court of law, and this jurisdiction cannot be withdrawn at pleasure, and transferred to a court of equity under the pretence of removing clouds from title' (p. 793). The court further concludes that this limited jurisdiction does not draw to it the right to take jurisdiction of the whole controversy in relation to the title to the land, right of possession, rents, &c., and thus usurp the jurisdiction belonging to the courts of law.

It is true that the court, in the former part of its opinion, discussed the question of the validity of the partition made by H. W. Vick and his son, and held that the partition was good, and that the title of Henry G. Vick to the lands in controversy was perfect; and, as a consequence, that the defendant's title was also perfect. But this discussion was entered into for the purpose of showing that the title of the defendant was not so devoid of validity as to constitute a mere cloud on the title; and consequently that the case was not one in which a court of equity could give relief.

We think, therefore, that the court below was right in determining that the decree in the equity case did not render the main controversy res judicata, but only decided that the bill would not lie; in other words, that it was not a proper case for a court of equity to determine the rights of the parties.

This brings us to the merits of the controversy, involving the question whether the partition made between Henry W. Vick and his son Henry G. Vick was valid. The plaintiffs contend that neither the deed of Sarah Vick, nor the will of Grey Jenkins Vick, gave to Henry W. Vick the power to make partition. The substance of those instruments, so far as relates to the question under consideration, has been recited. By the deed of Sarah Vick, the trustee therein named was directed to permit her husband, Henry W. Vick, as his agent, and as agent and trustee for herself and her children, 'to superintend, possess, manage, and control said property for the benefit of all concerned.' And it is added, 'Said Henry W. Vick is to have power to sell and exchange said property after the death of said Sarah Vick, and to apply the proceeds to the payment of the debt due to the trustees of the Bank of the United States; if such debt is paid, the proceeds of the sale to be re-invested and be subject to the trusts of this deed.' The codicil to the will of Grey Jenkins Vick, made Henry W. Vick a trustee for his, Henry W. Vick's, children, and gave him full power to dispose of all or any portion of the property devised by said will, which might fall to said Henry's children, and to invest the proceeds in such manner as he might think proper for their benefit. These were the express powers granted. Henry G. Vick, one of the children, came of age and demanded his portion separate from the rest. No question is made about his right to have such division made. Had Henry W. Vick no power to co-operate with him in making such a division? That is the question. In the one case power is given to sell and exchange, superintend, possess, manage, and control for the benefit of all concerned; in the other, full power to dispose of all or any portion, and invest the proceeds in any manner he might think proper for the children's benefit.

The question whether a naked power to sell or exchange implies a power to make partition is discussed by Sir Edward Sugden in his work on Powers. He says: 'It is clear that a power to make partition of an estate will not authorize a sale or exchange of it; but it has frequently been a question amongst conveyancers, whether the usual power of sale and exchange does not authorize a partition, and several partitions have been made by force of such powers under the direction of men of eminence. This point underwent considerable discussion on the title, which afterwards led to the case of Abell v. Heathcote, 4 Bro. C. C. 278; 2 Ves. Jun. 98. Mr. Fearne thought the power did authorize a partition, on the ground that a partition was in effect an exchange.' Sugden adds, that the lords commissioners, Eyre, Ashurst, and Wilson, before whom the case was first heard, all thought that the power was to receive a liberal construction, as its object was to meliorate the estate. Eyre thought, that upon the word sell, the trustees should have a power of making partition, because it was in effect to take quite a new estate. Ashurst and Wilson thought, that whatever power might be derived from the word sell, the other words of the power, convey for an equivalent (which were also used), were sufficient. But they made no decision. Upon the cause coming before Lord Rosslyn, he determined that the power was well executed, and founded his opinion upon its being in effect an exchange, as the consequences and effects of a partition and an exchange, as to the interests of the parties, are precisely the same. Sir Edward then notices the decision of Lord Eldon in the case of McQueen v. Farquhar (11 Ves. 467), that a power to sell simply, does not authorize a partition. He then adds: 'Until the question shall receive further decision, it can scarcely be considered clear that a power to exchange will authorize a partition;' but he proceeds to show that the decision in Abell v. Heathcote must have been based on the power to exchange, and not on any additional words. After referring to the case of Attorney-General v. Hamilton (1 Madd. 122), which was not decisive of the point, Sugden closes his discussion by saying: 'But, as Lord Rosslyn has observed, this objection may be obviated where there is a power of sale. The undivided part of the estate may be sold, the trustees may receive the money and then lay it out in the purchase of the divided part, and although the sale is merely fictitious in order to effect the partition, it should seem that the transaction cannot be impeached.' 2 Sugden, Powers, 479-482 (7th ed.), 1845.

We have quoted more largely from Sugden's work because of his great authority on questions of real estate and equity. It will be seen that he regards it as doubtful whether the power to make partition is included in the power to sell and exchange; but that partition may be effected indirectly under the power to sell, by actually selling tee undivided interest, and purchasing a separate interest with the proceeds. The last edition of Sugden on Powers, published in 1861, has no change in the text on this subject.

In the case of Doe v. Spencer (2 Exch. Rep. 752), decided in 1848, Baron Rolfe, afterwards Lord Cranworth, speaking for the court, held, in accordance with Mr. Preston's note to Shepherd's Touchstone, p. 292, that two tenants in common might effect a partition by the exchange of a moiety in one part for a moiety in the other part; and thence concluded that a power of exchange given to trustees would be sufficient to enable them to effect a partition with their co-tenant in this way; although it was supposed that between more than two parties it could not be done. Vice-Chancellor Kindersly, in a subsequent case, reviewing this decision of the Court of Exchequer, well remarked, that if this can be done between two tenants in common, there seems to be no good reason why it may not be done between three or more.

The plaintiffs place great reliance on the case of Brassey v. Chalmers (16 Beav. 223), in which the master of the rolls held that a power to sell and dispose did not give the power to make partition; at least he refused to compel a purchaser to accept a conveyance where such a partition had been made. The case, however, was appealed, and the lords justices, without deciding the point, suggested the filing of a bill for partition, upon which the partition made might be confirmed, if found beneficial. This course was adopted, and resulted in a confirmation of the partition, and a decree confirming the title. 4 DeG. M. & G. 528; S.C.., 31 Eng. L. & Eq. R. 115. So that this case left the point still undetermined. This was in 1853, and no notice of the case is taken in the last edition of Sugden on Powers, published in 1861.

A review of the cases and text-books on this subject was made by Vice-Chancellor Kindersly in 1856 in the case of Bradshaw v. Fane (2 Jur. N. S. 247), and the conclusion to which he came was, that it was still doubtful whether a power to sell and exchange would, or would not, authorize a partition. The same thing is stated in Lewin on Trusts and Trustees, 3d ed., p. 417.

In a recent case, however, In re Frith and Osborne (3 Ch. D. 618), decided in 1876 by Sir George Jessel, master of the rolls, it was distinctly adjudged, after a masterly review of all the previous authorities, that a power to sell and exchange does include the power to make partition. In delivering his judgment, the master of the rolls concludes as follows: 'This is the state of the authorities. Lord St. Leonards says that it wants another decision to make it quite clear. I am willing to give the decision (supposing the doubt is not taken away by the decision of the Court of Exchequer followed by the vice-chancellor, Kindersly) that the passage in the Touchstone [declaring that joint-tenants, tenants in common, and co-parceners cannot exchange the lands they do so hold, one with another, before they make partition] is not good law, and that you can have such an exchange, and if you can have such an exchange, why could not the power authorize the exchange of an undivided moiety in Whiteacre for another undivided moiety in Blackacre? I decide that it does. We have conflicting opinions between what the judges said in Doe v. Spencer and what the vice-chancellor intimated his opinion to be. It is not necessary for me to decide that question. I must say, if I had to decide it, I should be inclined to follow the opinion of the vice-chancellor instead of the Court of Exchequer, for if it can be done as between two, I do not see why it could not be done as between more than two, but I have not to decide that question now.'

It would seem, therefore, to be finally settled in England, that a power to sell and exchange does include the power to make partition, and that all doubt on the subject has been removed; and we have not been referred to any decisions in this country which lead to a contrary result. This disposes of the case so far as the power under the deed of Sarah Vick is concerned.

The power given to the trustee by the codicil to the will of Grey Jenkins Vick is not quite so clear. The testator constituted Henry W. Vick a trustee for his children, and gave him full power to dispose of all or any portion of the property devised in the will that might fall to them, and invest the proceeds in such manner as he might think proper for their benefit. The expression 'to dispose of' is very broad, and signifies more than 'to sell.' Selling is but one mode of disposing of property. It is argued, however that the subsequent direction to invest the proceeds indicates that a sale was meant. But this does not necessarily follow. Proceeds are not necessarily money. This is also a word of great generality. Taking the words in their ordinary sense, a general power to dispose of land or real estate and to take in return therefor such proceeds as one thinks best, will include the power of disposing of them in exchange for other lands. It would be a disposal of the lands parted with; and the lands received would be the proceeds. It is to be considered that the words used are contained in a will, to which the rules of construction applicable to ordinary speech are to be applied, except where technical terms are employed. In a well-considered book on the construction of wills, the rule of interpretation is laid down thus: 1. 'In construing a will, the words and expressions used are to be taken in their ordinary, proper, and grammatical sense;-unless upon applying them to the facts of the case, an ambiguity or difficulty of construction, in the opinion of the court, arises; in which case the primary meaning of the words may be modified, extended, or abridged, and words and expressions supplied or rejected, in accordance with the presumed intention, so far as to remove or avoid the difficulty or ambiguity in question, but no farther.' 2. 'As a corollary to, or a part of, the last proposition,-technical words and expressions must be taken in their technical sense, unless a clear intention can be collected to use them in another sense, and that other can be ascertained.' Hawkins, Construction of Wills, pp. 2, 4.

Now, whilst it may be true that when the words 'disposed of' are used in connection with the word 'sell,' in the phrase 'to sell and dispose of,' they may often be construed to mean a disposal by sale; it does not necessarily follow that when power is given generally, and without qualification by associated words, to dispose of property, leaving the mode of disposition to the discretion of the agent, that the power should not extend to a disposal by barter or exchange, as well as to a disposal by sale. The word is nomen generalissimum, and standing by itself, without qualification, has no technical signification. Taking the whole clause in the codicil together, it is equivalent to an authority to dispose of the property as the trustee should deem most for the interest of his children; and this would include the power to barter or exchange as well as the power to sell.

In re Frith and Osborne, already cited, the terms of the power were 'to sell, dispose of, convey, and assign the tenements, or any part thereof, by way of absolute sale for such a price in money, or by way of exchange for such equivalent in lands, as to the trustees should seem reasonable.' The master of the rolls, in analyzing this phraseology, said: 'Of course the word 'sell' refers to 'sale,' and the word 'exchange' refers to 'dispose of,' and, therefore, it comes to this, whether a trust including a power to dispose of by way of exchange for an equivalent in other lands, authorizes trustees to dispose of the undivided moiety, which they are empowered to dispose of, for another undivided moiety.' This quotation shows that the words 'dispose of' are properly applied to an exchange.

If this construction of the language of the will is correct, the conclusion arrived at in relation to the power given by the deed of Sarah Vick is applicable to that given by the will; for, since it imports a power to exchange, it likewise imports a power to make partition.

But without assuming to lay down as a general rule the interpretation which we have suggested, in view of the clearly expressed opinion of the Supreme Court of Mississippi on the precise point, we feel justified in adopting it in this case. In disposing of the equity case on appeal, that court fully considered the power of the trustee, Henry W. Vick, both under the deed and under the will, and came to the unanimous conclusion that he had full power and authority to make the partition in question. As to the power under the will the court had no doubt, and as to that given by the deed they relied on the authority of Abell v. Heathcote and the opinions of Sugden and Fearne. And although this conclusion was not embraced in the decree so as to become res judicata, yet it was the ground on which the decree was rested. The precise question before the court was, whether the power exercised by the trustee was or was not clearly in excess of powers given by the instruments under which he assumed to act. The court looked into these instruments, and said, without hesitation: 'The trustee acted entirely within the scope of his powers, and therefore it is not clear that he acted in excess of those powers, but the contrary.' Whilst the point adjudicated was the conclusion that he had not clearly exceeded his powers, the reason for that conclusion, namely, the decided opinion that he had acted within the scope of his powers, was fairly within the inquiry presented for determination. The opinion is not absolutely binding, it is true, but it is entitled to great weight on the question as to the actual law of Mississippi, and can hardly be called an extra-judicial opinion.

The objection that the trustee did not give his personal attention to the division of the property, but, by agreement with his son, submitted it to the arbitrament of disinterested persons, we do not regard as sufficient to invalidate the transaction. It was confirmed and carried into effect by his executing the requisite indenture for that purpose. Had the matter been carried into the courts a commission would have been appointed to make the partition, in whose appointment the trustee would have had less to say than he had in the selection of the persons mutually chosen by himself and his son. And it seems to us that the intervention of disinterested persons for appraising the property and making the allotment was judicious and proper. It is the course most commonly pursued by those who desire to make a division of property. It is laid down as a rule that 'trustees may justify their administration of the trust fund by the instrumentality of others, where there exists a moral necessity for it;' and this is said to arise 'from the usage of mankind. If the trustee acts as prudently for the trust as he would have done for himself, and according to the usage of business; as, if a trustee appoint rents to be paid to a banker at that time in credit, but who afterwards breaks, the trustee is not answerable; so in the employment of stewards and agents.' Lewin on Trusts and Trustees, 3d ed., p. 293. Again: 'The trustee cannot without responsibility delegate the general trust for sale; but there seems to be no objection to the employment of agents by him, where such a course is conformable to the common usage of business, and the trustee acts as prudently for the cestui que trust as he would have done for himself.' Id. p. 422.

But this is rather a question affecting the responsibility of the trustee than the validity of his acts. The trustee in this case had power to make partition. He did make partition, and carried it out by executing the proper conveyance between himself and his co-tenant. The partition is valid, although the trustee may be responsible for the manner in which it was effected by him.

Decree affirmed.

title: Phelps v. Harris/Opinion of the Court


text: Talk:Phelps v. Harris/Opinion of the Court


text:
The Sabine

APPEAL from the Circuit Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

Mr. R. H. Browne and Mr. C. B. Singleton for the appellants.

Mr. John A. Campbell, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The Sabine


text: Talk:The Sabine

title: Talk:The Sabine


text:
The Sabine/Opinion of the Court

Salvage is the compensation allowed to persons by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture.

Three elements are necessary to a valid salvage claim: 1. A marine peril. 2. Service voluntarily rendered when not required as an existing duty or from a special contract. 3. Success in whole or in part, or that the service rendered contributed to such success.

Proof of success, to some extent, is as essential as proof of service, for if the property is not saved, or if it perishes, or, in case of capture, if it is not retaken, no compensation will be allowed. Compensation as salvage is not viewed by the admiralty courts merely as pay on the principle of quantum meruit or as a remuneration pro opere et labore, but as a reward given for perilous services voluntarily rendered, and as an inducement to mariners to embark in such dangerous enterprises to save life and property.

Sufficient appears to show that important assistance was rendered by the steamer 'Mayflower' and her crew to the steamer 'Sabine,' in the nature of salvage service, as alleged in the libel. Both steamers were at the time in the Ouachita River, and each was bound on a trip to the port of New Orleans. When the 'Mayflower' approached the landing described in the libel, those in charge of her deck discovered that the steamer 'Sabine' was in distress, and it appears that those in command of the latter steamer hailed the 'Mayflower' and requested assistance. It also appears from the pleadings that the injured steamer had a cargo of six hundred and nineteen bales of cotton, consigned to various merchants at the port of destination, together with a number of passengers; that she and her cargo were in peril, owing to the fact that in attempting to back out from the landing she struck a snag or other obstruction beneath the surface of the river and became fast. Many of her flooring timbers and bottom planks were broken, and it is alleged that she had in her hold sixteen to eighteen inches of water, which was rapidly gaining on her pumps.

Success attended the efforts of the salvors, both as to the steamer and her cargo, and they delivered all the cotton to the consignees. Before the cargo was delivered to the consignees they executed to the master of the 'Sabine' an average bond, agreeing to pay their respective proportions of whatever sums should be found due as expenses, charges, and sacrifices in consequence of the said disaster.

Efforts to settle the matter amicably having failed, the owner, master, and crew of the 'Mayflower' filed a libel in the district court against the steamer 'Sabine' and her cargo and the several consignees to whom the cargo was delivered. Process issued, and the return of the marshal shows that he seized the injured steamer. Service was also made upon the several consignees, but it is not shown that the cargo saved or any part of it was ever seized.

Due appearance was entered by the respective consignees, and they filed certain exceptions to the libel. Those still relied on are as follows: 1. That there was no seizure of the cargo and that a libel in rem cannot be maintained without a seizure. 2. That the consignees are not proceeded against as owners or possessors of the cargo. 3. That a suit in personam and a suit in rem cannot be maintained in such a case. 4. That a suit in personam for salvage services must be against those for whom the services were performed. 5. That the respondents are consignees, and that the cargo had been disposed of and accounted for to those who owned the cotton.

Hearing was had, and the district court sustained the exceptions and dismissed the libel as to the excepting parties. Dissatisfied with the decree of the district court the libellants appealed to the circuit court, where they were again heard, and the circuit court affirmed the decree of the district court. Still not satisfied the libellants have appealed to this court, and now assign for error that the circuit court erred in holding that the nineteenth admiralty rule applies to the case, because, as they insist, that the libel in this case is not a suit in rem and in personam within the meaning of that rule, and that the exception should have been dismissed.

Suits for salvage may be in rem against the property saved or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service was performed. Power is vested in the Supreme Court to regulate the practice to be used in suits in equity or admiralty by the circuit or district courts as conferred by an act of Congress, which has been in force for many years. 5 Stat. 518; Rev. Stat., sect. 917.

Pursuant to that authority the Supreme Court prescribed the preceding rule, which correctly describes the several modes in which salvors may seek compensation for unrequited salvage services. Salvors, under the maritime law, have a lien upon the property saved, which enables them to maintain a suit in rem against the ship or cargo, or both where both are saved in whole or in part. Such a remedy is the one usually pursued, and in view of the fact that the lien is maritime and exists quite independently of possession, it ordinarily affords the best mode of securing the payment of their salvage claims. Williams & Bruce Prac., 147. The Elizabeth and Jane, 1 Ware, 35; The Bee, id. 332, 344. Suits of the kind may be enforced against the proceeds of the property, where it appears that the property saved had been previously seized under admiralty process and sold, and the proceeds paid into the registry of the court. Examples of the kind may be given, as where the property saved consisting of the ship and cargo, and the same were subsequently seized for a violation of the revenue laws, and sold as perishable property before the libel for salvage was instituted, or where there were more than one set of salvors, and the first set caused the property to be seized and sold under an order of court before the second obtained process of attachment. Cases of the kind not infrequently arise, and in all such the proceeds in the registry of the court represent the property saved, and it is clear that the suit may be against the proceeds, as provided in the nineteenth rule. The Blackwall, 10 Wall. 1, 12; The Ship Ewbank, 1 Sumn. 400.

Services of the kind are often rendered by more than one set of salvors, and where that is so, the second, if they do not join with the first set, may, as before remarked, proceed against the proceeds, or they may, pending the proceeding in the suit, apply to the court by petition to be admitted as parties to the original libel. Adams v. Bark Island City and Cargo, 1 Cliff. 210; Norris v. Bark Island City and Cargo, 1 id. 219.

Compensation in such a case is usually enforced by a libel in rem, but where the parties rendering the salvage service are employed and sent out by the owners or insurers, the persons employed may proceed in personam against their employers for compensation, even though they were unsuccessful, unless they contracted that their right to compensation should depend upon their success, as in the ordinary case of salvage service, without being antecedently employed.

Employers, in such a case, are liable to those rendering service, under such circumstances, in a suit in personam, within the last clause of the admiralty rule, but there is no authority for holding that salvors may proceed against the ship and cargo in rem and in personam against the consignees of the cargo in the same libel.

Libellants in a suit for collision may proceed against the ship and master or against the ship alone, or in personam against the master or the owner alone, but the terms of the nineteenth rule are different, limiting the right of the salvor to a suit in rem against the property saved or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service was performed.

Important service, it may be assumed, was rendered by the libellants, but they were neither employed nor sent out by the consignees, nor did the consignees request them to go to the assistance or relief of the ship or cargo.

Concede that the request of the master for assistance would be sufficient to enable the salvors to maintain an action in personam against the owners of the property, still the concession will not benefit the libellants in this case, as the libel is against the ship and cargo and the consignees to whom the cargo was delivered; nor would they be in any better condition even if they had joined the owners instead of the consignees, as the difficulty would still remain that the proceeding is in rem against the ship and cargo and in personam against the owners of the cargo, without joining the owners of the ship.

Persons to whom goods are consigned may be the owners of the goods, or the goods may be the property of the consignors, or they may even belong to a third party, the fact being that the consignees are named in the bill of lading merely as agents of the shipper to deliver the goods in pursuance of some letter of advice. Nothing appears in this case to explain the transaction, except that it is alleged in the libel that the different parcels of the cargo when rescued were delivered to the several respondents therein described as consignees.

Authorities may doubtless be found to support the proposition that the salvors may proceed in rem against the ship and cargo or in personam against the owners of the property saved from the impending peril, but there is no well-considered authority which gives any countenance to the theory that the two modes of proceeding may be joined in the same libel. The Schooner Boston, 1 Sumn. 328, 341; The Hope, 3 C. Rob. 215.

Actions in rem are prosecuted to enforce a right to things arrested to perfect a maritime privilege or lien attaching to a vessel or cargo or both, and in which the thing to be made responsible is proceeded against as the real party, but actions in personam are those in which an individual is charged personally in respect to some matter of admiralty and maritime jurisdiction. Both the process and proceedings are different, and the appropriate decree in the one might be absolutely absurd in the other.

Our admiralty rules were promulgated in accordance with the act of Congress, and, as Mr. Parsons says, they have all the effect of law, from which he draws the conclusion that no suit in such a case will lie against an owner in personam jointly with a suit in rem against the vessel. 2 Parsons Admr 378; Dean v. Bates, 2 Woodb. & M. 87, 92; The Atlantic and The Ogdensburgh, 1 Newb. Adm. 139.

Beyond all doubt the views of Mr. Parsons are sustained by the true construction of the nineteenth admiralty rule, which is expressed throughout in the disjunctive form, and plainly requires the action, if against the property saved or the proceeds thereof, to be in rem, the alternative clause clearly referring to a case where the property saved has been sold and the proceeds of the sale have been deposited in the registry of the court. Plain as that part of the rule is, further discussion of it is not necessary, as the libellants scarcely attempt in that regard to controvert the theory of the respondents.

Suppose the respondents are correct in that respect, still the libellants insist that the form of the libel may be supported under the last clause of the rule, which gives the right to an action in personam against the party at whose request and for whose benefit the salvage service was performed, and their argument is that the service in the case resulted in a benefit to the owners of the cargo; but the case fails to show that the owners of the cargo ever requested the service, and it is clear that they are not joined in the libel. They, the libellants, must show the request and the benefit, and unless they show that both concur they cannot make out a case even within their own theory, to which it may be added that the libel is against the consignees and not against the owner, unless it can be assumed that the consignees are the owners of the cargo, which certainly is not authorized by any thing that appears in the transcript.

But there is not a circumstance in the case tending to show that any such request was made, either by the consignees of the cargo or the owners of the same, nor can it for a moment be admitted that such an action can be maintained either against the consignees or the owners merely because the saving of the cargo resulted to their benefit. Volunteer assistance rendered to such property when in peril, and which is successful in saving the property or some portion of it, constitutes the proper foundation to support an action for salvage in rem against the ship and cargo or the proceeds thereof.

Reported cases may be found where the owners or insurers of such property, being informed that the property was in peril, sent out vessels and mariners for its assistance and relief, and in such a case it is undoubtedly true that the persons employed, both for their own services and for the use of the vessel or other appliances, may maintain a libel in personam to enforce the payment of just compensation for all such services.

There is a broad distinction, said Dr. Lushington, between salvors who volunteer to go out and salvors who are employed by a ship in distress. Salvors who volunteer go out at their own risk for the chance of earning reward, and if not successful they are entitled to nothing, the rule being that it is success that gives them a title to salvage remuneration. But if men are engaged to go out to the assistance of a ship in distress they are to be paid according to their efforts, even though the labor and service may not prove beneficial to the vessel or cargo. The Undaunted, 1 Lush. 90.

No one can doubt that for such service the proper remedy is an action in personam, as provided in the last clause of the admiralty rule prescribing the mode of procedure to recover salvage compensation. Unless the property saved is destroyed after having been restored or is clandestinely removed from the jurisdiction, the salvors require no more convenient or effectual remedy than the action in rem against the property, as their compensation cannot exceed its value, and if destroyed without their fault or removed from the jurisdiction to defeat their remedy, no doubt is entertained that they may proceed in personam against the owners of the salved property, though the case is not specifically provided for in the nineteenth rule, to which reference has been made. The Emblem, 2 Ware, 61; The Schooner Boston, supra; Dunlap, Prac. 511; The Trelawney, 3 C. Rob. 216, note.

Mere employment to render such a service is no bar to such a libel, the rule being that nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will defeat the jurisdiction of the admiralty court. The Camanche, 8 Wall. 448, 477.

Compensation for such services, if voluntarily rendered, cannot exceed the value of the property saved, and for that the salvors have a maritime lien on the property independent of possession, and which continues until the compensation is paid, so long as the property remains in specie. Maclachlan, Ship. (2d ed.) 593; The Gustaf, 1 Lush. 506; Maude & Pollock, Ship. (3d ed.) 487.

Viewed in the light of these suggestions it is clear to a demonstration that the decision of the Circuit Court is correct. Nott v. Sabine & Cargo et al., 2 Woods, 211.

title: The Sabine/Opinion of the Court


text: Talk:The Sabine/Opinion of the Court

title: Talk:The Sabine/Opinion of the Court


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Gay v. Parpart (101 U.S. 391)

MOTION to vacate the supersedeas and dismiss an appeal from the Circuit Court of the United States for the Northern District of Illinois.

Mr. George Herbert and Mr. Lawrence Proudfoot, in support of the motions.

Mr. Lyman Trumbull, Mr. Edward S. Isham and Mr. Robert T. Lincoln, contra.

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

title: Gay v. Parpart (101 U.S. 391)


text: Talk:Gay v. Parpart (101 U.S. 391)

title: Talk:Gay v. Parpart (101 U.S. 391)


text:
Gay v. Parpart (101 U.S. 391)/Opinion of the Court

These motions are founded on an alleged defect in the form of the condition of the bond. By sect. 1000 Rev. Stat., the security to be taken on a writ of error or an appeal, where the writ or the appeal is a supersedeas and stays execution, must be 'that the plaintiff in error or the appellant shall prosecute his writ or appeal to effect, and, if he fails to make his plea good, shall answer all damages and costs.' The condition of the bond in this case is, that the appellants 'shall duly prosecute their said appeal with effect, and, moreover, pay the amount of costs and damages rendered and to be rendered in case the decree shall be affirmed in said Supreme Court.'

The object of the statutory requirement undoubtedly is to secure to the opposite party his damages and costs, in case the judgment or decree shall not be reversed, and that, we think, is the legal effect of this bond. If, on the final disposition of a writ of error or appeal, the judgment or decree brought under review is not substantially reversed, it is affirmed and the writ of error or appeal has not been prosecuted with effect. In our opinion the language of the bond covers fully all the requirements of the statute. The motions to dismiss the appeal and vacate the supersedeas are, therefore, overruled.

The appellee has coupled with a motion to dismiss, a motion, under Rule 6, to affirm, because it is manifest that the appeal was taken for delay only. Clearly this is not a case for the application of that rule.

Motions denied.


text: Talk:Gay v. Parpart (101 U.S. 391)/Opinion of the Court


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Whitney v. Wyman

ERROR to the Circuit Court of the United States for the Western District of Michigan.

The facts are stated in the opinion of the court.

Mr. J. W. Champlin for the plaintiff in error.

Mr. Mitchell J. Smiley, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Whitney v. Wyman


text: Talk:Whitney v. Wyman

title: Talk:Whitney v. Wyman


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Whitney v. Wyman/Opinion of the Court

This action was brought to recover the value of certain machinery manufactured by Whitney, which he alleged he had sold and delivered to Wyman and the other defendants.

The defendants insisted that they had contracted for and received the machinery in behalf of a corporation which they were officers, and that hence were not personally liable.

The plaintiff lived in Massachusetts and the defendants in Michigan.

The latter addressed a letter to the former, which was as follows:

'GRAND HAVEN, Feb. 1, 1869.

'BAXTER WHITNEY, ESQ., Winchenden, Mass.:

'SIR,-Our company being so far organized, by direction of the officers, we now order from you, manufactured and shipped, at as early date as possible-for the manufacture of the Mellish fruit basket-1 large rounding lathe, 1 quart do. do., 2 lathes for peach basket bottoms, 3 do. do. quart do. do., pint do. do. Also the necessary small fixtures for clasping, &c., of which Mr. Whitney is advised, and will give you more definite order.

'CHARLES WYMAN,

'EDWARD P. FERRY.

'CARLTON L. STORRS,

Prudential Committee Grand Haven Fruit Basket Co.

To which the plaintiff replied:--

'WINCHENDEN, MASS., Feb. 10, 1863.

'GRAND HAVEN FRUIT BASKET COMPANY:

'GENTLEMEN,-Yours of the 1st inst. is received, in which you order machinery for fruit baskets, &c. I had already anticipated your order by commencing on the machinery on Mr. Whitney's verbal order, and I am now driving it with all the force I can get on it.

'Yours respectfully, BAXTER D. WHITNEY.'

The plaintiff wrote further, as follows:--

'WINCHENDEN, April 14, 1869.

MESSRS.C.. E. WYMAN, E. P. FERRY, C. L. STORRS:

'GENTS,-I herewith send bill of machinery ordered by you Feb. 1st, and have drawn on you at sight for the amount, $6,375. The machinery was delayed two days in order to get into one of the blue line cars. It has gone from the depot now and I have to send to Fitchburg for through bill of lading, which I expect to-night, and will forward it as soon as I procure it.

'Yours respectfully, BAXTER D. WHITNEY.'

The plaintiff charged the defendants individually on his books for the machinery. His draft was protested, and he thereupon wrote as follows:--

'WINCHENDEN, MASS, May 14, 1869.

'MESSRS.C.HARLES E. WYMAN, EDWARD P. FERRY, CARLTON L. STORRS:

'GENTS,-I have just received notice of protest of my draft on you. Reason given, machinery not arrived. I doubt not the machinery has arrived before now, and if so, I hope you will forward me draft on New York at once. I need the money very much, from the fact that parties here on which I relied for money have been burned out and they are unable to pay me at present.

'Yours respectfully, BAXTER D. WHITNEY.'

The last two letters were not answered.

The machinery was delivered at Grand Haven, and the freight was paid by Edward P. Ferry as the treasurer of the corporation. The draft of Baxter was protested, because it was addressed to the drawees individually. They claimed that he had no right so to draw on them.

The corporation was organized under a statute of Michigan which authorized mining and manufacturing companies to be created pursuant to its provisions. It took the name of 'The Grand Haven Fruit Basket Company.'

On the 5th of January, 1869, thirty-two stockholders, including the defendants, subscribed the articles of association and acknowledged their execution before a notary public.

On the 21st of the same month there was a meeting of the stockholders, at which a code of by-laws was adopted. It provided for the election of seven directors, and of a president, secretary, and treasurer; and that the directors should elect out of their number one who, with the president and treasurer, should be a prudential committee, and that the committee should be charged with such duties as might be devolved upon it by the board of directors. The defendants and four others were elected directors.

On the 25th of the same month the board of directors elected the defendant Storrs president, the defendant Ferry treasurer, and the defendant Wyman for the third member of the prudential committee.

The articles of association were filed with the Secretary of State on the 19th of February, 1869, and with the county clerk on the 12th of May following. The statute declares that they shall be so filed before the corporation shall commence business. The notary public who certified the acknowledgment of the articles was himself a subscriber, and his name is included in his certificate. It was proved, by parol evidence, that the directors authorized the prudential committee to contract for the machinery.

The corporation received the machinery, bought an engine to run it, manufactured baskets with it, and carried on the business until some time in the year 1870.

On the 3d of March, 1870, Lyman and Fairbanks, two of the directors, were authorized to settle with the plaintiff on the best terms they could obtain.

The court instructed the jury in substance, that the letter of the prudential committee of Feb. 1, 1870, bound the corporation and not the defendants, if there was then a corporation and the defendants were authorized by it to give the order, and that if the corporation had acted as such and exercised its franchises, then it was a corporation de facto, and that in such case any irregularity in its organization was immaterial.

The plaintiff excepted to these instructions, and took numerous other exceptions in the course of the trial, which are set forth in the record.

The jury found for the defendants; and judgment having been entered for them, Whitney removed the case here.

Where the question of agency in making a contract arises there is a broad line of distinction between instruments under seal and stipulations in writing not under seal, or by parol. In the former case the contract must be in the name of the principal, must be under seal, and must purport to be his deed and not the deed of the agent covenanting for him. Stanton v. Camp, 4 Barb. (N. Y.) 274.

In the latter cases the question is always one of intent; and the court, being untrammelled by any other consideration, is bound to give it effect. As the meaning of the law-maker is the law, so the meaning of the contracting parties is the agreement. Words are merely the symbols they employ to manifest their purpose that it may be carried into execution. If the contract be unsealed and the meaning clear, it matters not how it is phrased, nor how it is signed, whether by the agent for the principal or with the name of the principal by the agent or otherwise.

The intent developed is alone material, and when that is ascertained it is conclusive. Where the principal is disclosed, and the agent is known to be acting as such, the latter cannot be made personally liable unless he agreed to be so.

Looking at the letter of the defendants of the 1st of February, 1869, and the answer of the plaintiff of the 10th of that month, we cannot doubt as to the understanding and meaning of both parties with respect to the point in question.

The former advised the latter of the progress made in organizing the corporation; that the order was given by the direction of its officers, and the letter is signed by the writers as the 'Prudential Committee of the Grand Haven Fruit-basket Co.,' which was the name in full of the corporation. The plaintiff addressed his reply to the 'Grand Haven Fruit-basket Company,' thus using the name of the corporation as the party with whom he knew he was dealing, and omitting the names of the defendants, and their designation as a committee, according to the style they gave themselves in their letter.

It seems to us entirely clear that both parties understood and meant that the contract was to be, and in fact was, with the corporation, and not with the defendants individually.

The agreement thus made could not be afterwards changed by either of the parties without the consent of the other. Utley v. Donaldson, 94 U.S. 29.

But it is said the corporation at the date of these letters was forbidden to do any business, not having then filed its articles of association, as required by the statute.

To this objection there are several answers.

The corporation subsequently ratified the contract by recognizing and treating it as valid.

This made it in all respects what it would have been if the requisite corporate power had existed when it was entered into. Angell & Ames, Corp., sect. 804 and note.

The corporation having assumed by entering into the contract with the plaintiff to have the requisite power, both parties are estopped to deny it. Id. sect. 635 and note.

The restriction imposed by the statute is a simple inhibition. It did not declare that what was done should be void, nor was any penalty prescribed. No one but the State could object. The contract is valid as to the plaintiff, and he has no right to raise the question of its invalidity. National Bank v. Matthews, 98 U.S. 621.

The instruction given by the court to the jury with respect to acts of user by the corporation in proof of its existence was correct. If there was any error, it was in favor of the plaintiff. Angell & Ames, Corp., sect. 635.

The record shows clearly that the plaintiff was not entitled to recover, and that the verdict and judgment are right. We, therefore, forbear to examine the other assignments of error. Conceding that all the exceptions to which they relate were well taken, the errors could have done him no harm. Barth v. Clise, Sheriff, 12 Wall. 400.

Judgment affirmed.

title: Whitney v. Wyman/Opinion of the Court


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


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Aldridge v. Muirhead

APPEAL from the Circuit Court of the United States for the District of New Jersey.

The facts are stated in the opinion of the court.

Mr. Robert Gilchrist for the appellant.

Mr. Cortlandt Parker, and Mr. John Linn, contra.

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

title: Aldridge v. Muirhead


text: Talk:Aldridge v. Muirhead

title: Talk:Aldridge v. Muirhead