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Ellis v. Davis/Opinion of the Court

The appellants, who were complainants below, are alleged in the bill of complaint to be, respectively, citizens of New York or Missouri, or British subjects and aliens, the defendant being a citizen of Mississippi. It is set forth in the bill that Sarah Ann Dorsey died on July 4, 1879, seized in fee-simple of certain real estate, consisting of two plantations in Tensas parish, in Louisiana, an estate called Beauvoir and other property in Harrison county, Mississippi, and real estate, not described, in Arkansas, besides a large amount of movable and personal property, rights and credits, also not described; that she died, leaving no heirs in the ascending or descending lines, the appellants being her next of kin and sole legal heirs in the collateral line, entitled to succeed, in case of intestacy, to the whole of her estate; that during her life-time, on May 10, 1878, Mrs. Dorsey, by a notarial act of procuration, constituted the defendant her agent and attorney in fact, with full and special powers to take exclusive control, charge, and management of all her property and estate, and all transactions and business in any manner connected therewith, including the power 'for and in her name to sue and to be sued, to purchase, lease, alienate, or incumber real estate situate anywhere, to borrow money, execute notes, or other evidences of indebtedness; that, in virtue of said agency, the defendant entered upon and assumed the exclusive management of said property and business, and took possession of all account-books, title deeds, and papers thereto appertaining, and continued in the exclusive control, management, and possession as said agent to the time said agency expired by the death of the principal, and since her said death has still continued in said exclusive possession, management, and control, that though, on the expiration of said agency, it was incumbent on and the duty of said defendant to render to said heirs, all of whom, and their respective rights, were well known to him, a full, fair, and correct account of his administration of said agency, and to surrender to them, all and singular, the said property, account-books, title deeds, papers, etc., which had then come into his possession, and which your orators had well hoped he would have done, yet, on the expiration of his said agency, said defendant, notwithstanding amicable demand, refuses still so to do.' It is further alleged in the bill that the defendant claims that the said Sarah Ann Dorsey, by her last will and testament, bequeathed to him all her property, for his own sole use and benefit, and thereby constituted him her sole heir and executor, and that, by virtue thereof, he is entitled in his own right to said estate; and the bill admits that on July 15, 1879, the defendant caused to be filed in the second district court for the parish of Orleans an instrument written and signed by Sarah Ann Dorsey, of which the following is a copy:

'BEAUVOIR, HARRISON CO., MISS, Jan. 4, 1878.

'I, Sarah Ann Dorsey, of Tensas parish, La., being aware of     the uncertainty of life, and being now in sound health in      mind and body, do make this my last will and testament, which      I write, sign, and seal with my own hand, in the presence of      three competent witnesses, as I possess property in the      states of Louisiana, Mississippi, and Arkansas. I own no     obligation of any sort whatever to any relation of my own; I      have done all I could for them during my life; I therefore      give and bequeath all my property, real, personal, and mixed,      wherever located and situated, wholly and entirely, without      hindrance or qualification, to my most honored and esteemed      friend, Jefferson Davis, ex-president of the confederate      states, for his own sole use and benefit, in fee-simple,      forever; and I hereby constitute him my sole heir, executor,      and administrator. If Jefferson Davis should not survive me,     I give all that I have bequeathed to him to his youngest      daughter, Varina.

'I do not intend to share the ingratitude of my country     towards the man who is, in my eyes, the highest and noblest      in existence.

'In testimony whereof I sign this will, written with my own     hand, in the presence of W. T. Watthall, F. S. Hewes, and      John C. Craig, subscribing witnesses, resident in Harrison      county, Mississippi.

[Signed] 'SARAH ANN DORSEY.

'At Mississippi City, on the fourth day of January, eighteen     hundred and seventy-eight, the above-named Sarah Ann Dorsey      signed and sealed this instrument, and published and declared      the same as and for her last will, and we, in her presence      and at her request, and in the presence of each other, have      hereunto subscribed our names as witnesses.

'W. T. WATTHALL.

'F. S. HEWES.

'JOHN C. CRAIG.' But it is charged that the pretended will is not valid, but is void, because at the time of writing and signing the same Sarah Ann Dorsey was not of sound and disposing mind, because the same was written and signed by her when under the undue influence of the defendant, which undue influence excited and aggravated the causes depriving her of a sound and disposing mind, rendering her more susceptible to such undue influence, and because the motive and object inducing and controlling the testatrix to make the same were contrary to law. The bill then proceeds to recite in detail a narrative of facts alleged in support of these charges affecting the testamentary capacity of Mrs. Dorsey and the integrity of the execution of the instrument as her testament; and alleges further that the defendant, 'though in nowise ignorant of the premises hereinbefore set forth touching the nullity of said alleged will,' nevertheless resorted to proceedings before the second district court for the parish of Orleans for the probate thereof, 'ex parte and without any previous notification thereof, judicial or extrajudicial.' And it is thereupon further alleged:

'That by said proceedings it appears that on the fifteenth     July, 1879, defendant, through his attorneys, filed his      certain petition, in which he alleges that by the tenor of      the last will and testament of Mrs. Sarah Ann Dorsey, dated      forth January, 1878, he is made the legatee and executor of      the deceased; that said will had been on said day filed, and      which he prays might be duly proved according to law; that      thereupon an order was obtained that said will should be      proved before the judge of said court forthwith; that in      accordance with said order, and on proof that said instrument      was wholly written, dated, and signed in the handwriting of      the testatrix, (the only proof essential under the laws of      Louisiana and the practice of its courts for an ex parte      probate of an olographical will,) and on the further (and      unusual in such ex parte probate) sworn statement of two of      the subscribing witnesses that 'the testatrix, Mrs. Sarah Ann      Dorsey, at the time of the execution of the aforesaid will,      was of sound and disposing mind, a decree of probate, in      usual form, was rendered, decreeing the probate and registry      of the will and execution of its provisions, including the issuing of letters of executorship, on      defendant's complying with the provisions of law.

'That by said proceedings it further appears that without     previously qualifying as excutor, or applying for an order of      inventory, or in any manner showing to the court the amount      of the indebtedness of the succession; without tendering any      security to creditors, or deferring his application for a      reasonable time within which creditors might, should they      desire, demand of him security, or heirs might contest the      validity of the will, or any of its provisions, or the      sufficiency of the testimony of its probate,-proceedings not      only usual, but, as to most of them, essential prerequisites      to any demand by a testamentary heir or universal legatee to      be put in possession of an estate; yet, notwithstanding this,      said defendant, on the said fifteenth July, by representing      to the court that the testatrix left no forced heirs and owed      no considerable debts, that he was willing to accept and take      the succession pure and simple, and that in his opinion      'there is no necessity of further administration,' obtained      an order 'that, as the sole and universal legatee of the late      Sarah Ann Dorsey, petitioner, Jefferson Davis, be put in      possession of all the property, real, personal, and mixed,      left by her, and whereever situated.'

'That by said proceedings and decrees said second district     court ceased to have jurisdiction over or regarding the      administration of said succession, and, owing to his      citizenship and the limited jurisdiction of said court,      defendant in the premises ceased to be in any manner further      amenable or subject to its jurisdiction.

'That although said proceedings and decrees, as your orators     are advised, are not res adjudicata against them, yet,      nevertheless, in virtue thereof, said will and its order of      probate are and will remain a muniment of title in defendant      to all and singular the estate of said Sarah Ann Dorsey so      long as said will and order of probate shall remain      unannulled and unrevoked through judicial proceedings had      contradictorily with said defendant.'

And it is further alleged that this decree of probate was unadvisedly rendered, and should be revoked, canceled, and recalled, for the reasons rendering said will, of which it is the probate, null and void, and because the testimony given in support of the probate was false and erroneous, and because, even if uncontradicted, it would be insufficient.

It is further charged in the bill that the defendant also claims title to the estate in Mississippi called 'Beauvoir,' by virtue of a sale to him of said property, and a conveyance thereof made by Sarah Ann Dorsey, February 19, 1879, a copy of which is set out, which the appellants aver, however, to be null and void, for the same reasons on which they allege the will to be void, and because at the time the defendant occupied towards the said Sarah Ann Dorsey such a relation of trust and confidence as that he had no right to purchase the property, and that his consent to the sale thereof to himself, without security for the payment of the price, which was below its value, was a violation of his trust, for which reasons, it is claimed, said sale should be canceled and annulled. It is also alleged in the bill, 'that, owing to the complicated character of the said agency thus held by defendant, an account thereof, as herein demanded, cannot properly be taken except in a court of equity.'

'And that it may be decreed that the said alleged will of the     said Sarah Ann Dorsey, dated 'Beauvoir, Harrison county,      Mississippi, January 4, 1878,' and filed in the second      district court for the parish of Orleans in the record of her      succession, under No. 41,376 of the docket, on the fifteenth      July, 1879, be canceled and annulled as absolutely void and      of no effect in law; and that the decree of probate of said      alleged will, and the decree recognizing said defendant to be      the sole and universal legatee of said Sarah Ann Dorsey, and      as such ordered to be put in possession of all the property      left by her, whereever situated, both rendered on said      fifteenth July, 1879, and in extenso set forth in Exhibit B,      be revoked, canceled, and recalled as absolutely void and of      no effect in law, and that the alleged sale and conveyance of      property situate in Harrison county, Mississippi, by said      Mrs. Dorsey to defendant, on the nineteenth February, 1879,      and in extenso set forth in Exhibit C, be canceled and      annulled as absolutely void and of no effect in law, in so      far as either said will, decree of probate, decree of      possession, or sale, in any manner to be pleaded by defendant      as recognizing him as testamentary heir and universal legatee      of said Sarah Ann Dorsey, or as a muniment of title or legal      bar against your orators or their coheirs as her legal and sole heirs,      and as such entitled to the ownership and possession of all      and singular the property belonging to her estate, and which      in any manner has come into the possession of said defendant,      either as agent or trustee.

'And that it be further decreed that said defendant come to a     full and fair account of all and singular his acts and doings      of his agency under the said act of procuration of May 10,      1878; and that it be decreed the defendant furnish to this      honorable court a full and detailed statement of all      properties, real and personal, of said Sarah Ann Dorsey,      which came into his possession or under his control and      management as her agent, or of which he has taken possession      undeer and by virtue of said alleged will or said decrees of      the second district court of July 15, 1879, or said alleged      sale of February 19, 1879.

'And that it be further decreed that said defendant at once     surrender unto orators, and, if so desired by them, jointly      with their coheirs, the possession of all said property,      including all books, papers, evidences, title-deeds, etc.,      which, belonging to said estate, at any time since May 10,      1878, has come into his possession.

'And that defendant be perpetually enjoined and restrained by     the decree of this court from setting up or pleading said      alleged will, said decree of probate, said decree of      possession, and said act of sale, or any title, right, or      claim thereunder, against your orators as next of kin and      legal heirs of said Mrs. Sarah Ann Dorsey.

'And that it be further decreed that defendant make a full     and true discovery and disclosure of and concerning all and      singular the transactions and matters appertaining to or      connected with his said agency, as well during the life-time      as since the death of his principal. And that defendant may     be decreed to come to an account with your orators, to be      taken by and under the direction and decree of this honorable      court, of all his dealings and transactions under the agency      assumed by him under the act of procuration of May 10, 1878,      or as trustee since Mrs. Dorsey's death, and to pay over to      orators what shall be found due to them by defendant upon the      taking of said account.'

To this bill the defendant below filed a demurrer, which demurrer was sustained, and a decree rendered dismissing the bill without prejudice, to reverse which this appeal is prosecuted.

One of the main objects of this bill is to obtain from the defendant an account of the rents and profits received by him of the estate formerly belonging to Sarah Ann Dorsey, and, in order thereto, a declaration that the legal title to that estate is vested in them as her heirs at law and next of kin, in a decree that the alleged will under which the defendant claims, and the probate thereof, are null and void. It is admitted that the defendant is in possession, and that he holds adversely to the appellants; and there is a prayer in the bill for a recovery of the possession. In no respect does it differ from the frame of the bill in Hipp v. Babin, 19 How. 271. In that case the complainants sought by a bill in equity to recover possession of real estate to which they claimed title, as against a judicial sale, alleged to be void as against them, under which the defendants were in possession, and also for an account of rents and profits. The court refused to entertain the prayer for the recovery of the possession, on the ground that the remedy of the complainants at law was plain and adequate. It was urged that the bill would, nevertheless, lie for the account. To this Mr. Justice CAMPBELL, delivering the opinion of the court, replied as follows:

'Nor can the court retain the bill under an impression that a     court of chancery is better adapted for the adjustment of the      accounts for rents, profits, and improvements. The rule of     the court is that when a suit for the recovery of the      possession can be properly brought in a court of equity, and      a decree is given, that court will direct an account as an      incident in the cause. But when a party has a right to a     possession which he can enforce at law, his right to the      rents and profits is also a legal right, and must be enforced      in the same jurisdiction. The instances where bills for an     account of rents and profits have been maintained are those      in which special grounds have been stated to show that courts      of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been successful at     law has been allowed to file a bill for an account of rents      and profits during the tortious possession held against him,      or in which the complexity of the account has afforded a motive for the      interposition of a court of chancery to decide the title and      to adjust the account.'

This case was cited, and its doctrine approved and applied, in the recent case of Root v. ''Ry. Co.'' 105 U.S. 189-219.

In the present bill no circumstances are alleged to except the case from the general rule. The defendant did not sustain towards the complainants at any time any relation of trust and confidence; he was not their agent; and any right which they can assert against him for the rents and profits of the estate is altogether dependent upon their title to that estate, and cannot arise until that has been established. The title which they assert to that is not an equitable, but a legal title, as heirs at law and next of kin of Sarah Ann Dorsey, and is to be established and enforced by a direct proceeding at law for the recovery of the possession which they allege the appellee illegally withholds. There is no ground, therefore, on which the bill can be supported for the account as prayed for.

It is contended, however, for the appellants that the bill ought to have been maintained, for the purpose of decreeing the invalidity of the will of Mrs. Dorsey and annulling the probate; so far, at least, as it gave effect to the will as a muniment of title. It is well settled that no such jurisdiction belongs to the circuit courts of the United States as courts of equity; for courts of equity, as such, by virtue of their general authority to enforce equitable rights and remedies, do not administer relief in such cases. The question in this aspect was thoroughly considered and finally settled by the decision of this court in the case of Broderick's Will, 21 Wall. 503. It was elaborately considered and finally determined in England by the house of lords in the case of Allen v. McPherson, 1 H. L. Cas. 191. In that country it was undoubtedly the practice of the courts of chancery to entertain bills to perpetuate the testimony of the witnesses to a will devising lands, at the suit of the devisee against the heir at law, it being alleged that the latter disputed its validity; and this, as Blackstone says, (3 Bl. Comm. 450,) 'is what is usually meant by proving a will in chancery.' It is also true that a bill in equity, in the nature of a bill of peace, or quia timet, would lie at the suit of a devisee against the heir at law, in which the validity of the will having been sustained by the verdict of a jury on the trial of an issue, devisavit vel non, a decree might be passed establishing the will and the title of the devisee under it, and perpetually enjoining the heir at law from setting up any claim of title against it. Story, Eq. Jur. § 1447. The heir at law, it was formerly held, was not entitled to file such a bill, for he could bring his action of ejectment and thus had his remedy at law; although such a bill would be entertained, if not objected to, or if there were any impediments to the proper trial of the merits on such an action. Bootle v. Blundell, 19 Ves. 494. The modern rule is 'that the usual and generally more convenient practice is to enable the heir to proceed by ejectment, but that it is open to the court to direct an issue, if from any cause that course appears desirable.' Boyse v. Rossborough, 6 H. L. Cas. 1-42.

The manifest ground on which courts of equity in England proceeded in declining the jurisdiction in question was that, as to wills of personalty, the jurisdiction of courts of probate was exclusive, and that as to devises the remedy at law was plain, adequate, and complete. In this country, from a time anterior to the adoption of the constitution, the same distinction of jurisdiction has existed, all probate and testamentary matters having been confided either to separate courts of probate, under different denominations, or a special jurisdiction over them having been vested in courts having jurisdiction also over other subjects. For reasons growing out of our policy, which subjected real estate equally with personalty to the payment of debts, and in other respects freed it from feudal fetters, the probate jurisdiction was extended, but with varying effect in different states over wills of land, as well as of personal chattels, preserving, however, in some form, the rights and remedies of heirs at law to contest their validity. But it was almost universally recognized that no will could have effect, for any purpose, until admitted to probate and record by the local authority, although in some states, while the original probate was conclusive until set aside, for all purposes and as to all persons, in others it was conclusive, while in force at all, only as to personalty and for the purposes of administration, and not as a muniment of title as to devises. In states where it is held to have a conclusive force, formal modes are prescribed of contesting the validity of the instrument as a will, and of the regularity and legality of the probate, by suits regularly instituted solely for that purpose, and inter partes; but such proceedings are generally regarded as the exercise of probate jurisdiction, even if administered in courts other than that of original probate, but the judgment, as in other cases inter partes, binds only parties and privies. In those states where the probate, although conclusive while in force as to personalty and for the purposes of administration merely, is only prima facie evidence where the will is relied on as a muniment of title to real estate, its validity may become a question to be tried whenever and wherever a litigation arises concerning real property, the title to which is affected by it, just as in England, in actions of ejectment between the heir and the devisee, or those claiming through them. In a state, of which New York is an example, where, by its law, its own courts of general civil jurisdiction are authorized thus incidentally and collaterally to try and determine the question of the validity of a will and its probate in a suit involving the title to real property, there can be no question but that the circuit courts of the United States might have jurisdiction of such a suit by reason of the citizenship of the parties, and in exercising it would be authorized and required to determine, as a court administering the law of that state, the same questions. And where provision is made by the laws of a state, as is the case in many, for trying the question of the validity of a will already admitted to probate, by a litigation between parties in which that is the sole question, with the effect, if the judgment shall be in the negative, of rendering the probate void for all purposes as between the parties and those in privity with them, it may be that the courts of the United States have jurisdiction, under existing provisions of law, to administer the remedy and establish the right in a case where the controversy is wholly between citizens of different states. The judicial power of the United States extends, by the terms of the constitution, 'to controversies between citizens of different states;' and on the supposition, which is not admitted, that this embraces only such as arise in cases 'in law and equity,' it does not necessarily exclude those which may involve the exercise of jurisdiction in reference to the proof and validity of wills. The original probate, of course, is mere matter of state regulation, and depends entirely upon the local law; for it is that law which confers the power of making wills, and prescribes the conditions upon which alone they may take effect; and as, by the law in all the states, no instrument can be effective as a will until proved, no rights in relation to it, capable of being contested between parties, can arise until preliminary probate has been first made. Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States. So far as it is ex parte and merely administrative, it is not conferred, and it cannot be exercised by them at all until, in a case at law or in equity, its exercise becomes necessary to settle a controversy of which a court of the United States may take cognizance by reason of the citizenship of the parties.

It has been often decided by this court that the terms 'law' and 'equity,' as is used in the constitution, although intended to mark and fix the distinction between the two systems of jurisprudence as known and practiced at the time of its adoption, do not restrict the jurisdiction conferred by it to the very rights and remedies then recognized and employed, but embrace as well not only rights newly created by statutes of the states, as in cases of actions for the loss occasioned to survivors by the death of a person caused by the wrongful act, neglect, or default of another, (Ry. Co. v. Whitton, 13 Wall. 287; Dennick v. Railroad Co. 103 U.S. 16,) but new forms of remedies to be administered in the courts of the United States, according to the nature of the case, so as to save to suitors the right of trial by jury in cases in which they are entitled to it, according to the course and analogy of the common law. Ex parte Boyd, 105 U.S. 647; Boom Co. v. Patterson, 98 U.S. 406.

In Hyde v. Stone, 20 How. 170-175, it was said by Mr. Justice CAMPBELL, delivering its opinion, that 'the court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different states cannot be impaired by the laws of the states, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power.'

In Payne v. Hook, 7 Wall. 425, it was decided that the jurisdiction of the circuit court of the United States, in a case for equitable relief, was not excluded because by the laws of the state the matter was within the exclusive jurisdiction of its probate courts; but, as in all other cases of conflict between jurisdictions of independent and concurrent authority, that which has first acquired possession of the res, which is the subject of the litigation, is entitled to administer it. Williams v. Benedict, 8 How. 107; Bank of Tennessee v. Horn, 17 How. 160; Yonley v. Lavender, 21 Wall. 276; Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 454; Hook v. Payne, 14 Wall. 255.

It was said by this court in Gaines v. Fuentes, 92 U.S. 10-18, Mr. Justice FIELD delivering its opinion, that 'the constitution imposes no limitation upon the class of cases involving controversies between citizens of different states, to which the judicial power of the United States may be extended; and congress may, therefore, lawfully provide for bringing, at the option of either of the parties, all such controversies within the jurisdiction of the federal judiciary.' And, referring to the nature of suits which, as in that case, sought to annul the probate of a will and adjudge it to be invalid, the court further said, (page 20:) 'And if by the law obtaining in the state, customary or statutory, they can be maintained in a state court, whatever designation that court may bear, we think they may be maintained by original process in a federal court, where the parties are, on the one side, citizens of Louisiana, and, on the other, citizens of other states.'

As that was a case in which the sole question decided was the right of the defendant to remove the cause from the state court to the circuit court of the United States, under the act of March 2, 1867, (14 St. 558,) it was assumed, and not decided, that the said suit brought in the state court was one which, under the laws of the state, its courts were authorized to entertain for the purpose of granting the relief prayed for. The point decided was, that if it were it might properly be transferred to a court of the United States. It remains, therefore, in the present case to inquire whether the complainants are entitled, under the laws of Louisiana, to draw in question, in this mode and with a view to the decree sought, the validity of the will of Sarsah Ann Dorsey and the integrity of its probate.

An examination of the decisions of the supreme court of Louisiana on the subject will disclose that a distinction is made in reference to proceedings to annul a will and its probate, according to the objects to be accomplished by the judgment and the relation of the parties to the subject. If the administration of the succession is in complete and in fieri, and the object is to alter or affect its course, the application must be made to the court of probates, which, in that case, has possession of the subject and exclusive jurisdiction over it. If, on the other hand, the succession has been closed, or has proceeded so far that the parties entitled under the will have been put in possession of their rights to the estate, then the resort of adverse claimants must be to an action of revendication in the courts of general jurisdiction, in which the legal title is asserted as against the will claimed to be invalid, making an issue involving that question.

In O'Donogan v. Knox, 11 La. 384, the supreme court of Louisiana said:

'It appears, then, that the jurisdiction of the courts of     probate is limited to claims against successions for money,      and that all claims for real property appertain to the      ordinary tribunals and are denied to courts of probate. The     plaintiff in this case was therefore compelled, in suing for      the property of the succession, to seek redress in the      district court, and whether she attacked the will, or the defendant set it up as his title to the property, the      court having cognizance of the subject must of necessity      examine into its legal effect. And although the will may have     been admitted to probate and an order given for its      execution, yet these are only preliminary proceedings      necessary for the administration of the estate, and not a      judgment binding on those who are not parties to them. When,     therefore, in an action of revendication a testament with      probate becomes a subject of controversy, it will surely not      be contended that a court of ordinary jurisdiction, having      cognizance of the principal mattr, shall suspend its      proceedings until another court of limited power shall      pronounce upon the subject; for in that case the ordinary      courts would submit to another tribunal the decision of the      main question in the cause, without right of trial by jury,      and would have little else to do than to comply with its      decree.'

In Robert v. Allier's Agent, 17 La. 4, the same court said:

'On the question of jurisdiction arising from the state of     the case we understand the distinction repeatedly made by      this court to be that whenever the validity or the legality      of a will is attacked and put at issue, (as in the present      case,) at the time that an order for its execution is applied      for, or after it has been regularly probated and ordered to      be executed, but previous to the heirs or legatees coming      into possession of the estate under it, courts of probate      alone have jurisdiction to declare it void, or to say that it      shall not be excuted. This is the purport and extent of the     decision in the case of Lewis' Heirs v. His Executor, 5 La. 387; Code Prac. art. 924, § 1. But when an action of     revendication is instituted by an heir at law against the      testamentary heir or universal legatee who has been put in      possession of the estate, and who sets up the will as his      title to the property, district courts are the proper      tribunals in which such suits must be brought. 6 Mart. (N.     S.) 263; 2 La. 23; 11 La. 388.'

In Rachal v. Rachal, 1 Rob. (La.) 115, it is also said:

'We cannot consider the question of jurisdiction as an open     one. The doctrine is now well settled that in a suit for     property, whether the plaintiff attacks the will under which      it is held or the defendant sets it up as his title to the      property claimed, the courts of ordinary jurisdiction before whom the principal      matter, to-wit, the action of revendication, is brought, must      of necessity pronounce on the validity of the will which is      thus drawn in question. The proceedings had in the court of     probate for the settlement of the estate, such as the probate      of the will and the order given for its execution, cannot      have the effect contended for by the appellant; they cannot      be considered as a judgment binding on the plaintiffs, who      were not parties to them.'

In Succession of Duplessis, 10 Rob. 193, it is said:

'This court has often held that the admission of a will to     probate, and the order given of its execution, are only      preliminary proceedings, necessary for the administration of      the estate, and do not amount to a judgment binding on those      who are not parties thereto.'

To the same effect are Succession of Dupuy, 4 La. Ann. 570; Sophie v. Duplessis, 2 La. Ann. 724; Abston v. Abston, 15 La. Ann. 137.

'The petitioner himself shows that the defendant holds the     property claimed from him under a will and confirmatory act,      which she seeks to set aside. This she cannot effect except     in a court of ordinary jurisdiction; i. e., in the district      court.'

In Hoover's Succession v. York, 30 La. Ann. 752, the suit was simply to annul a will and the probate of a will, and to have certain persons plaintiff declared heirs and entitled to take as such. This, it was declared, was purely a probate proceeding, and cognizable alone by the parish court in which the succession was opened. 'It was a matter incidental to the opening and settlement of the succession.' And the same principle governed the decision in Blasini v. Blasini's Succession, Id. 1388. That was an application in the probate court on the part of forced heirs, demanding that their rights as such, known under the law of Louisana as their legitime, of which their ancestor could not deprive them by his testament, should be recognized, so that they might receive their share of the succession. The effect of allowing it would be, not to annul or invalidate the will, but merely to displace it, in the administration of the succession, to the extent required by their indefeasible interest in it. It was objected to the jurisdiction of the court that the succession had been closed by a previous judgment sending the widow and testamentary heir into possession; but the exception was overruled on the ground that the suit was of probate jurisdiction.

In Gibson v. Dooley, 32 La. Ann. 959, an action to annul a will, it was held, might be brought in the parish court, although the succession had been closed by a delivery of the property to the instituted heir. The rule, as laid down in Robert v. Allier's Agent, 17 La. 15, was cited and approved, but was held not to apply. The reason was given in these words: 'Here no action of revendication was instituted, but simply a suit for the nullity of the will. There is no prayer for ejectment, or that plaintiffs may be put into or quieted in their possession of property claimed under the will.'

By the law of Louisiana (Code Prac. art. 4) a real action is given, which relates to claims made on immovable property, or to the immovable rights to which they are subjected, the object of which is the ownership or the possession of such property, and, when prosecuted by one having the title against the person in possession, is called the petitory action, and is the proper action for the recovery of an universality of things, such as an inheritance. Code Prac. art. 12. It is an action of revendication, (Id. art. 43,) and it is the proper one to be brought for the purpose of asserting the legal title and consequent right of possession of the heir at law to the succession, when another is in possession under claim of title by virtue of a will admitted to probate, as is abundantly shown by the citations already made from the decisions of the supreme court of Louisiana. We entertain no doubt that this action can be brought in a proper case as to parties in the circuit court of the United States.

The Louisiana Code of Practice, art. 556 et seq., provides for an action of nullity, whereby definitive judgments may be revised, set aside, or reversed, which may proceed either on the ground of vices of from or upon the merits, as that the judgment was obtained through fraud, and is a separate action, commenced by petition, the adverse parties being cited as in other suits. This action, with reference to the jurisdiction of the courts of the United States, was the subject of consideration in Barrow v. Hunton, 99 U.S. 80; but the present is not an action of that description, for the relief prayed for is recovery of the possession of the inheritance, which, we have seen, must be prosecuted in an action of revendication. Whether the probate of a will is a definitive judgment which can be the subject of an action of nullity under these provisions of the Code of practice, is a question, therefore, which we are not called upon to discuss or decide. The case of Gaines v. Fuentes, 92 U.S. 10, was such an action of nullity; but, as before remarked, the point decided in that case was not that it would lie, according to the law of Louisiana, but that if it would lie in the state court it was removable to the circuit court of the United States, because it presented a controversy wholly between citizens of different states.

The present suit is not an action of nullity, because it prays for the recovery of possession of the inheritance, to which the appellants claim the legal title as heirs at law of Sarah Ann Dorsey. That claim, as has been shown, is properly the subject of an action of revendication, which furnishes a plain, adequate and complete remedy at law, and consequently constitutes a bar to the prosecution of a bill in chancery.

There is nothing left, therefore, as a ground of support for the present bill, except so much of the case made by it as rests upon the prayer for the cancellation of the sale and conveyance of the Beauvoir estate by Mrs. Dorsey in her life-time. That relief is claimed in part on the ground of a constructive fraud, growing out of the defendant's relation to her at the time as a confidential agent; but we see nothing in the circumstances as detailed to forbid such a transaction between the parties, and the charges of actual fraud and undue influence applicable to this sale, considered as detached from the rest of the case, are not of such character, even when admitted by the demurrer, as in law would justify a rescission. And as the case for relief as to this sale is not made independently, but only as part of the whole case intended to be presented by the bill, we conclude that it must fail with the rest.

The demurrer was rightly sustained and the bill properly dismissed. The decree is affirmed.

title: Ellis v. Davis/Opinion of the Court


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

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


text:
Townsend v. Little

The appellant, Elizabeth M. Townsend, brought this suit in the district court for the third judicial district of the territory of Utah, by which she claimed title under the provisions of the act of Congress, and the act of the legislature of the territory of Utah, to the undivided half of a certain lot in the city of Salt Lake, which was particularly described in her bill of complaint. She alleged that in the year 1867 she and the defendant James Townsend went into the actual possession of said premises; that from the date just mentioned until March 1, 1878, they jointly occupied and improved said property and kept a hotel thereon, known as the Townsend House; that they occupied said premises as two persons for their mutual and equal benefit, mutually acknowledging each other's interest; that said premises formed part of a tract of land in Salt Lake City, in the territory of Utah, subject to entry, which, on November 21, 1871, was in fact entered at the United States land-office in Salt Lake City by Daniel H. Mills, mayor of said city, in trust for the occupants thereof, under the act of congress aforesaid; that at the date of said entry the appellant was, as to a half interest in said premises, one of the persons for whose relief said act of congress was passed, and she and said Townsend were conclusively entitled to a conveyance of said premises from the mayor on complying with said rules and regulations; that on May 1, 1873, Townsend obtained a deed from the mayor conveying the entirety of said premises to himself in fee, without the knowledge of appellant, and she was not informed thereof until a subsequent year; that when it came to her knowledge she requested Townsend to convey to her one-half of said premises, which he promised to do, admitting her right to the same, and that upon the obtaining of such deed from the mayor by Townsend a trust resulted in her favor, binding Townsend to convey to her the one undivided half of said premises, which he has never done. The bill further alleged that the defendants Hooper, Jennings, and Roberts claimed some interest in the premises, adverse to appellant, as purchasers, incumbrancers, or otherwise, but that their rights were only such as they had questionably derived from Townsend, with notice of appellant's possession and occupancy of said premises, and her consequent rights, and subject thereto. The bill prayed that the purchase of said premises by Townsed might be declared as to one-half thereof as a purchase in trust by him for appellant, and that Townsend, Hooper, and Jennings might be required to convey the same to her.

The defendant Townsend filed, no answer. Robers answered disclaiming any interest in the premises. Defendants Hooper and Jennings filed a joint answer, in which they denied all the averments of the petition, except that the premises in controversy were situate within the town-site of Salt Lake City and were subject to entry by the mayor under the act of congress, and that Townsend had obtained a deed from the mayor for the whole of said premises. They averred that they were purchasers of said premises for a valuable consideration, without notice of the claim of appellant, and that they had no notice thereof until the bringing of this suit, and that appellant and Townsend had conspired to bring and maintain this suit for the purpose of defrauding them, well knowing that the claim of appellant was false.

The district court made a finding, from which the following facts appeared:

On March, 1865, the defendant James Townsend took possession of the premises in question, having purchased the possessory right thereto of one Clawson, who conveyed the same to him for the price of $6,000. Afterwards, in the years 1872 and 1873, he purchased the rights of other claimants for $3,000. All the purchases money for these claims was paid by Townsend out of his own means. In the fall of the year 1866 he went on the premises to reside, taking with him his lawful wife, whom he had married in 1828, and the appellant as a plural or polygamous wife. He kept a hotel on the premises from that date until February, 1878, which was known as the Townsend House and was carried on in his name solely, and he was represented to the public by every advertising agency as the sole proprietor. During all this time he and the appellant lived together on the premises as husband and polygamous wife, the appellant taking an active part in conducting the business of the hotel. The lawful wife of Townsend also lived with him as such on the same premises until her death, in 1870. In the fall of the year 1867, Townsend and appellant entered into a verbal agreement with each other whereby Townsend stipulated that if appellant would continue to live at the Townsend House, and assist in carrying on the business of the hotel as she had theretofore done, he would convey to her a one-half interest in the real and personal property of the hotel. During the fall of the same year Townsend took another polygamous wife, but ostensibly continued his cohabitation with the appellant as his polygamous wife, the motive of both being to conceal from the public any change in their relations to each other.

On November 21, 1871, the mayor of Salt Lake City entered in the land-office and paid for the lands embraced in the town-site of Salt Lake City in trust for the occupants thereof, and received a patent therefor on June, 1, 1872. The mayor gave for the period of three months the public notice required by law of such entry, the first publication being on November 24, 1871. Within the time allowed by law for occupants to assert their claims to the lands embraced in said town-site, Townsend applied for a conveyance to himself of the premises in controversy, and in due course of proceedings in the probate court was adjudged to be the rightful occupant thereof and entitled to a deed therefor. Whereupon, the mayor, on May 1, 1873, executed and delivered to him a deed, under his corporate seal of the city, purporting to convery to him the whole of said premises in fee in execution of said trust, but said deed was without witnesses. The appellant did not, within six months after the first publication of notice of entry of said town-site by the mayor, or at any time, make or deliver to the clerk of the probate court of said county any description of said premises, or of any right, interest, or estate claimed by her therein, or make any claim as an occupant or otherwise to a conveyance of any interest therein under the town-site laws.

After his purchase of the possessory right to said premises, and before the fall of 1868, Townsend expended in the erection of buildings thereon the sum of $16,000. On October 1, 1868, he borrowed of defendant Hooper the sum of $5,000, and on December 8, 1868, a further sum of $5,000. For these sums he executed his several notes, and deeds of trust on the premises to secure the same. On September 24, 1873, the indebtedness of Townsend to Hooper on these notes amounted to $12,500, and on that day he renewed the same by giving Hooper his three notes, two for $5,000 each and one for $2,500, due in one year, and at the same time executed a deed of trust to trustees to secure the same. On October 10, 1876, Townsend gave his note to defendant Roberts for $5,000, payable in one year, and secured it by a deed of trust upon the same premises. This note afterwards by assignment became the property of defendants Hooper and Jennings. Afterwards Townsend contracted other debts, which, either by deed of trust or judgment, became liens on said premises, and by various assignments the defendants Hooper and Jennings became the owners and holders of all the debts secured by lien on said premises. On April 10, 1878, the sum of $16,425 was due on the notes executed by Townsend to Hooper on September 24, 1873, and the trustees named in the deed of trust to secure the same, in pursuance of the power thereby conferred, sold said premises to defendant Jennings for $22,500, which sum he paid and it was applied to the discharge of the several liens on the property in the order of their priority. Jennings afterwards conveyed an undivided half of the premises to his codefendant Hooper. During all their transactions with Townsend the defendants Hooper, Jennings, and Roberts dealt with him, prior to the proceedings in the probate court under the town-site law, as the sole owner of said premises, as against every one save the United States, and subsequently thereto as absolute sole woner, without any actual or constructive notice of any claim of the appellant, and neither the trustees in said trust deed, nor the defendants Hooper, Jennings, and Roberts, nor any of them, had any notice of the claim of the appellant to any interest in or right to said premises until after the bringing of this suit.

Upon this finding of facts the district court dismissed the bill of complaint. Its decree was carried to the supreme court of the territory by appeal, where it was affirmed. The decree of the latter court affirming the decree of the district court is brought under review by the present appeal.

J. G. Sutherland, J. R. McBride, Arthur Brown, and ''Jas. H. Mandeville'', for appellant.

P. L. Williams and Legrand Young, for appellees.

Woods, J.

title: Townsend v. Little


text: Talk:Townsend v. Little

title: Talk:Townsend v. Little


text:
Townsend v. Little/Opinion of the Court

The facts found by the court leave no ground for the as against Townsend, had he continued the owner of the premises in controversy, she certainly has none against innocent bona fide incumbrancers and purchasers, without notice of her claim. The arrangement between Townsend and the appellant was a secret agreement known only to themselves, and, as found by the court, they, after the agreement, continued to live together, as they had previously done, in order that the public might not know that any change had taken place in their relations to each other. A secret agreement, as between herself and Townsend, which they purposely kept concealed, cannot be set up against bona fide purchasers without notice. The finding of the court that neither Hooper, Jennings, nor Roberts had notice, either actual or constructive, of appellant's alleged rights, cuts up by the roots all claim on her part as against them to the premises in controversy.

Appellant contends, however, that her joint physical occupancy with Townsend of the premises, as found by the court, was constructive notice to the defendants Hooper and Jennings of her alleged rights, and that they, therefore, purchased in subservience thereto. When Townsend, in 1866, entered into possession of the premises which he had previously bought with his own money, he took with him his lawful wife and the appellant, his polygamous wife. At that time it is not disputed that he was the sole occupant under the act of congress. The appellant was no more a joint possessor at that time than any servant or guest of the hotel. A secret agreement subsequently entered into between Townsend and the appellant, and purposely kept concealed from the public by them, cannot be held to change the nature of Townsend's occupancy so as to affect with constructive notice persons who had no actual notice. Constructive notice is defined to be in its nature no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted. Plumb v. Fluitt, 2 Anstr. 438; Kennedy v. Green, 3 Mylne & K. 719. Where possession is relied on as giving constructive notice it must be open and unambiguous, and not liable to be misunderstood or misconstrued. Ely v. Wilcox, 20 Wis. 523; Patten v. Moore, 32 N. H. 384; Billington v. Welsh, 5 Bin. 132. It must be sufficiently distinct and unequivocal so as to put the purchaser on his guard. Butler v. Stevens, 26 Me. 484; Wright v. Wood, 11 Harr. (Pa.) 130; Bogue v. Williams, 48 Ill. 371. As said by STRONG, J., in Meehan v. Williams, 12 Wright, 238, what makes inquiry a duty is such a visible state of things as is inconsistent with a perfect right in him who proposes to sell. See, also, Holmes v. Stout, 3 Green, Ch. 492; McMechan v. Griffing, 3 Pick. 149; Hanrick v. Thompson, 9 Ala. 409.

Tested by these rules, it is plain that the physical occupancy of the premises in question by appellant, as found by the district court, was not such possession as to put a purchaser on inquiry and charge him with constructive notice. On the contrary, viewed in connection with the other facts found, it was such as to mislead him.

The case of appellant is therefore an attempt to set up a secret trust as against bona fide purchasers for value without notice. But nothing is clearer than that a purchaser for a valuable consideration, without notice of a pior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law, according to the well-known maxim that when equities are equal the law shall prevail. Williams v. Jackson, 107 U.S. 478; [2 SUP. CT. REP. 814;] Willoughby v. Willoughby, 1 Term Rep. 763; Carlton v. Low, 3 P. Wms. 328; Ex parte Knott, 11 Ves. Jr. 609; Tildesley v. Lodge, 3 Smale & G. 543; Shine v. Gough, 1 Ball & B. 436; Bowen v. Evans, 1 Jones & La. T. 178; Vattier v. Hinde, 7 Pet. 252. This is the case of defendants Hooper and Jennings.

The appellant contends, however, that as the deed executed by the mayor of Salt Lake City to Townsend was without witnesses, as required by the general law of the territory, it did not convey the legal title. But the act of the territorial legislature providing for the conveyance to occupants, by the mayor, of lands included in the town-site, did not require witnesses to his deed. It merely directed that 'deeds of conveyance for the same shall be executed by the mayor of the city or town under the seal of the corporation.' According to the well-settled rule, that general and specific provisions, in apparent contradiction, whether in the same or different statutes, and without regard to priority of enactment, may subsist together, the specific qualifying and supplying exceptions to the general, this provision for the execution of a particular class of deeds is not controlled by the law of the territory requiring deeds generally to be executed with two witnesses. Pease v. Whitney, 5 Mass. 380; Nichols v. Bertram, 3 Pick. 342; State v. Perrysburg, 14 Ohio St. 472; London, etc., Ry. v. Wandsworth Board of Works, L. R. 8 C. P. 185; Bish. Writ. Laws, § 112a. The deed of the mayor to Townsend having been executed in conformity with the special act, was therefore valid and effectual to convey the legal title.

The result of these views is that the appellant has failed to show herself entitled to the relief prayed in her bill. The decree of the supreme court of the territory of Utah affirming the decree of the district court, by which her bill was dismissed, must be affirmed.

title: Townsend v. Little/Opinion of the Court


text: Talk:Townsend v. Little/Opinion of the Court


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United States v. Jones (109 U.S. 513)

''Sol. Gen. Phillips'', for plaintiff in error.

''N. S. Gilson, Geo. E. Sutherland, B. J. Stevens, and E. Mariner'', for defendants in error.

FIELD, J.

title: United States v. Jones (109 U.S. 513)


text: Talk:United States v. Jones (109 U.S. 513)


text:
United States v. Jones (109 U.S. 513)/Opinion of the Court

By an act of congress, passed on the eighth of August, 1846, certain lands were ceded to Wisconsin to aid in improving the navigation of Fox and Wisconsin rivers, in that state, and in constructing a canal to unite the rivers, and thus form a connection between the waters of Green bay, in Lake Michigan, and the waters of the Mississippi. St. 1846, c. 170.

The state accepted the cession of the lands, and in August, 1848, created a board of public works, under whose superintendence it placed the construction of the improvement contemplated. The work, however, was not done under that board; the means furnished proved inadequate. Various other attempts, therefore, were made by different companies created by the state to carry out the improvement, and in furtherance of it congress ceded additional lands; but none of these attempts proved successful. The improvement was only partially made.

In 1866, by various transfers, which it is unnecessary to detail, the lands ceded by congress, and the works of improvement, including the locks, dams, canals, and other structures connected with it, became the property of a corporation known as the Green Bay & Mississippi Canal Company.

In July, 1870, congress passed an act 'for the improvement of water communication between the Mississippi river and Lake Michigan, by the Wisconsin and Fox rivers;' by which, among other things, the secretary of war was authorized to ascertain the sum which ought to be paid to the Green Bay & Mississippi Canal Company for the transfer of its property and rights of property in the line of water communication between Wisconsin river and the mouth of Fox river, including its locks, dams, canals, and franchises, or so much thereof as, in his judgment, should be needed; and for that purpose to join with the company in the appointment of a board of arbitrators.

In making their award, the arbitrators were required to take into consideration the amount of money obtained from the sale of lands ceded by congress to aid in the construction of the water communication which was to be deducted from the valuation found by them. 16 St. c. 210.

Under this act arbitrators were appointed, the value of the works ascertained, and an award made, the amount of which having been paid, the entire property was, in 1872, conveyed to the United States. Since then the United States has been the owner and in possession of the works, and congress has made various appropriations to carry on and complete the improvement.

The arbitrators, in making their award, proceeded upon the principle that the United States should pay for the works what their construction had cost the state, and the companies succeeding to its interests, after making a reasonable abatement for wear and decay, and deductting the amount obtained from the sale of the ceded lands. Some of the dams constructed had caused the lands of several parties to be overflowed, and in the estimate of the amount to be paid by the United States, no account was taken of the liability of the company for such damages. The question, therefore, soon arose whether the payment of these damages devolved upon the United States, and this question was submitted by the committee on commerce of the house of representatives to the secretary of war, and by him was referred to the assistant judge advocate general. That officer held that liability for the damages incurred from the flowage of water on the lands of others, caused by the works constructed, followed the property transferred, and devolved on the United States. Upon this opinion a bill was prepared for the assumption by them of the company's liability for such damages, which was passed by congress and approved on the third of March, 1875. This act provided that whenever, in the prosecution and maintenance of the improvement mentioned, it should become necessary or proper, in the judgment of the secretary of war, to take possession of any lands, or the right of way over any lands, for canals of cut-offs, or to use any earth, quarries, or other material adjacent to the line of improvement and needful for its prosecution or maintenance, the officers in charge of the works might, in the name of the United States, take possession of and use the same, after having first paid, or secured to be paid, the value thereof, 'which may have been ascertained in the mode provided by the laws of the state' wherein the property lay.

The act also provided that in case any lands or other property were then or should be overflowed or injured by means of any part of the works of the improvement theretofore or thereafter constructed for which compensation was then or should become legally owing, and in the opinion of the officers in charge it should not be prudent to lower the dam or dams, the amount of such compensation might be 'ascertained in like manner;' that the department of justice should represent the interest of the United States in legal proceedings under the act and for 'flowage damages' previously occasioned, and that a portion of the appropriation made for the prosecution of the improvement, not exeeding in amount twenty-five thousand dollars, might be applied in payment for property and rights thus taken and used.

In the previous year, 1874, the legislature of Wisconsin had passed a law providing for ascertaining the compensation to be made for damages caused to lands by their being overflowed or otherwise injured, or taken by the United States in the construction of any public works. It declared, among other things, that in case the lands of any person had been overflowed or injured or taken, or if it should be found necessary or proper thereafter to overflow, injure, or take the lands of any person for or by reason of the construction of any dam, bridge, lock, or pier, or the repair or enlargement thereof, or the construction, repair, or enlargement of any canal or other works of the United States government in the improvement of any harbor, river, or stream of water in the state, the compensation for damages sustained by the owner or owners of the lands overflowed, injured, or taken might be ascertained, determined, and paid in the manner prescribed in chapter 119 of the Laws of 1872, entitled 'An act in relation to railroads and the organization of railroad companies,' for acquiring title to lands of railroad companies, and that all the provisions of such act properly applicable thereto should apply in the case of the overflow, injury, or taking of lands by the United States government for the purposes mentioned. Chapter 119 of the Laws of 1872, referred to in this act of 1874, prescribes the mode in which land may be condemned for railroad purposes. The company is to file a petition for the appointment of commissioners of appraisal with the clerk of the circuit court of the county in which the property is situated, containing, among other things, a description of the land desired and the names of parties interested in it. Notice is then to be given, by publication for three successive weeks in a newspaper of the county or adjoining county, of the filing of the petition, of the time and place of its presentation, and of the application for the appointment of commissioners. On the presentation of the petition, the parties whose interest may be affected by the proceeding are at liberty to show cause against its prayer. If no sufficient cause be shown, the court or judge may grant the petition and appoint three disinterested and competent freeholders, resident in the county or adjoining county, to ascertain and appraise the compensation to be made to the owner or owners of the property. Either party to the proceeding, if dissatisfied with the award rendered, may appeal from it to the circuit court, where a trial is to be had by a jury and the compensation fixed by them. The proceeding, so far as the ascertainment of compensation is concerned, there takes the form of a regular action at law, in which the petitioner becomes the plaintiff and the contestants the defendants. The chapter also provides that the party interested in the land may institute and conduct the proceedings to a conclusion, if the company delay or omit to prosecute the same.

Under the legislation referred to, the present proceeding was instituted by the defendants in error to recover the value of certain lands which had been overflowed by a dam constructed by the canal company in the prosecution of the improvement mentioned. In their petition they ask for the appointment of commissioners for the appraisal of certain lands, which are described, and of the damage caused to them by a dam constructed by the canal company, but owned by the United States, they having succeeded to the title and possession of the company. The also set forth the ownership of the lands, the injury to them from the dam causing the waters of Lake Winnebago to set back and overflow them, and that the dam cannot be maintained without a continuance of such injuries. All the allegations required by the statute were set forth. Commissioners were accordingly appointed, before whom the parties interested appeared, the United States being represented by counsel retained by the department of justice. The awarded the petitioners the sum of $8,000. From this award both parties appealed to the circuit court, where the case was tried before a jury. Previously, however, to its being empaneled, the defendants objected to the action of the court on three grounds: First, that it had no jurisdiction of them; second, that it had no jurisdiction to try a cause in which the United States were a party; and, third, that the act of congress of March 3, 1875, was unconstitutional in that it assumed to confer upon the state court authority to try a cause in which the United States were a party. These objections were overruled, and the trial resulted in a verdict for the plaintiffs for $10,000. The judgment entered thereon was affirmed by the supreme court of the state, and from that court the case is brought here on writ of error.

Various exceptions were taken to the rulings of the court on the trial, but as they do not involve any question of federal law they are not open for consideration here. The only point presented upon which we can pass relates to the jurisdiction of the court below; if that can be sustained, its judgment must be affirmed.

The position of the counsel of the United States in the court below, as we understand it, was substantially this: That the power vested in the federal government to take private property for the public uses of the United States is, in its nature, exclusive, and its exercise by any state is therefore prohibited as completely as though the prohibition were expressed in terms; that the power cannot, therefore, be delegated to the state of Wisconsin; that the ascertainment of the compensation is involved in the exercise of the power as a necesary part of it, inasmuch as there can be no lawful taking until compensation is made; and that the act of congress transferring to the state board and state court the function of ascertaining the value of the property taken and the amount of compensation to be made, is therefore invalid. There is, in this position, and assumption that the ascertainment of the amount of compensation to be made is an essential element of the power of appropriation; but such is not the case. The power to take private property for public uses, generally termed the right of eminent domain, belongs to every independent government. It is an incident of sovereignty, and, as said in Boom Co. v. Patterso, requires no constitutional recognition. 98 U.S. 406. The provision found in the fifth amendment to the federal constitution, and in the constitutions of the several states, for just compensation for the property taken, is merely a limitation upon the use of the power. It is no part of the power itself, but a condition upon which the power may be exercised. It is undoubtedly true that the power of appropriating private property to public uses vested in the general government-its right of eminent domain, which Vattel defines to be the right of disposing, in case of necessity and for the public safety, of all the wealth of the country-cannot be transferred to a state any more than its other sovereign attributes; and that, when the use to which the property taken is applied is public, the propriety or expediency of the appropriation cannot be called in question by any other authority. But there is no reason why the compensation to be made may not be ascertained by any appropriate tribunal capable of estimating the value of the property. There is nothing in the nature of the matter to be determined which calls for the establishment of any special tribunal by the appropriating power.

The proceeding for the ascertainment of the value of the property and consequent compensation to be made, is merely an inquisition to establish a particular fact as a preliminary to the actual taking; and it may be prosecuted before commissioners or special boards or the courts, with or without the intervention of a jury, as the legislative power may designate. All that is required is that it shall be conducted in some fair and just manner, with opportunity to the owners of the property to present evidence as to its value, and to be heard thereon. Whether the tribunal shall be created directly by an act of congress, or one already established by the states shall be adopted for the occasion, is a mere matter of legislative discretion. Undoubtedly IT WAS THE PURPOSE OF THE CONSTITUTION To establish a general goverment independent of, and in some respects superior to, that of the state governments-one which could enforce its own laws through its own officers and tribunals; and this purpose was accomplished. That government can create all the officers and tribunals required for the execution of its powers. Upon this point there can be no question. Kohl v. U.S. 91 U.S. 367. Yet from the time of its establishment that government has been in the habit of using, with the consent of the states, their officers, tribunals, and institutions as its agents. Their use has not been deemed violative of any principle or as in any manner derogating from the sovereign authority of the federal government; but as a matter of convenience and as tending to a great saving of expense.

The use of the courts of the states in applying the rules of naturalization prescribed by congress, the exercise at one time by state justices of the peace of the power of committing magistrates for violations of federal law, and the use of state penitentiaries for the confinement of convicts under such laws, are instances of the employment of state tribunals and state institutions in the execution of powers of the general government. At different times various duties have been imposed by acts of congress on state tribunals; they have been invested with jurisdiction in civil suits, and over complaints and prosecutions for fines, penalties, and forfeitures arising under laws of the United States. 1 Kent, 400. And though the jurisdiction thus conferred could not be enforced against the consent of the states, yet, when its exercise was not incompatible with state duties, and the states made no objection to it, the decisions rendered by the state tribunals were upheld. Whatever question might arise as to such delegation of authority, we can see none where the inquiry relates to an incidental fact, not involving in its ascertainment the exercise of any sovereign attribute. Almost, if not quite, from the first year of its existence, it has been the practice of the general government, when necessary, to taken private property for public uses, to resort to state borads and tribunals to ascertain the value of the property, and hence the compensation to be made. Burt v. ''Merchants' Ins. Co''. 106 Mass. 362. In recent statutes such resort is expressly prescribed. For example, on the third of March, 1879, an act was passed for improving a part of Tennessee river, which provided that, whenever it became necessary to take private property, 'the price to be paid shall be determined, and the title and jurisdiction procured, in the manner prescribed by the laws of the state of Alabama.' And, on the fourteenth of June, 1880, an act was passed making an appropriation for constructing reservoirs on the head-waters of the Mississippi, with a provision that 'injuries occasioned to individuals by the overflow of their lands shall be ascertained and determined by agreement, or in accordance with the laws of Minnestota.' These are but examples of many instances of legislation where resort is had to local boards or tribunals to ascertain particular facts by which the general government may be guided in its action. Whatever assent may be necessary to the validity of the proceedings against the United States, owing to their general immunity from process, is given by such legislation.

The provisions of the act of 1875, with reference to the property overflowed by dams constructed in the improvement of the navigation of Fox and Wisconsin rivers, that the compensation to be made shall be ascertained in the mode and manner prescribed by the laws of the state, and that in any proceedings to ascertain such compensation the interests of the United States shall be represented by the department of justice, constitutes a sufficient waiver of the immunity. The legislation amounts to a consent to such proceedings as the state laws authorize for the condemnation of property in which the United States are interested. In the present case the overflow of the property for which compensation was asked was caused while the property was held by the canal company, before its acquisition, in 1872, by the United States; and the legislation is, in legal effect, little more than a declaration that the United States will pay the compensation which may be awarded by officers of the state in proceedings taken in accordance with its laws. In any aspect in which the legislation can be viewed, we see no objection to it arising out of the independent or sovereign character of the government of the United States.

Judgment affirmed.


text: Talk:United States v. Jones (109 U.S. 513)/Opinion of the Court


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Thomas v. Brownville, Fort Kearney and Pacific Railroad Company

''Wm. M. Ramsey'', for appellant.

J. H. Broady, for appellee.

MILLER, J.


text: Talk:Thomas v. Brownville, Fort Kearney and Pacific Railroad Company


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Thomas v. Brownville, Fort Kearney and Pacific Railroad Company/Opinion of the Court

This is an appeal from a decree of the circuit court for the district of Nebraska dismissing appellant's bill for a foreclosure of a railroad mortgage. The mortgage was made by the Brownville, Fort Kearney & Pacific Railroad Company to secure the payment of bonds issued by said company to certain persons who had contracted to build its road, and to whom 610 of said bonds of $1,000 each had been delivered. There was a default in the payment of these bonds. After they were executed and delivered the Brownville & Fort Kearney Railroad Company became consolidated under the laws of Nebraska with the Midland Pacific Railroad Company, under the new name of the Nebraska Railway Company. In the bill of foreclosure both these companies-that is, the Brownville Company and the Nebraska Company are made defendants, and an answer confessing plaintiff's right to relief being filed, the court rendered a decree of foreclosure, and apparently a sale was had. But at this stage of the proceedings certain parties interested as stockholders of the original Brownville & Fort Kearney Company were permitted to make themselves defendants, and the first decree was vacated. These parties set up by way of answer and cross-bill that the contract for the construction of the road, on account of which the bonds were issued, was fraudulent and void, and so were the bonds issued under it, and they resisted the foreclosure of the mortgage on that account.

The fraud charged in this answer and cross-bill is founded on two allegations: First. It is alleged that two of the board of directors who took part in making the construction contract were interested with the other parties in the contract. Second. That the other contractors besides these two made an agreement, at the same time that the construction contract was made, with 12 of the shareholders of the railroad company, that they would relieve them, as subscribers to the stock of said company, from the payment of any further assessments upon the stock which they had subscribed for, by paying out said stock and having same assigned to them; in all, not to exceed $16,500 of the $41,000 of individual subscriptions to said company. The names of the persons thus relieved by the construction company included all the directors of the railroad company at the time the contract for construction was made. As the stock was worthless, and these parties were liable to be called on to pay up this $16,500, the effect upon the directors in making a construction contract with the men who relieved them of their liability, two of them being also parties in the construction contract, is readily seen. These allegations are proved beyond question, and the circuit court held the contract void, and the bonds issued in fulfillment of it also void, and dismissed the bill. We concur with the circuit judge that no such contract as this can be enforced in a court of equity where it is resisted and its immorality is brought to light. But as this court said in the case of Twin Lick Oil Co. v. Marbury, 91 U.S. 587, such contracts are not absolutely void, but are voidable at the election of the parties affected by the fraud. It may often occur that, notwithstanding the vice of the transaction,-namely, the directors or trustees, or a majority of them, being interested in opposition to the interest of those whom they represent, and in reality parties to both sides of the contract,-that it may be one which those whose confidence is abused may prefer to ratify or submit to. It is therefore at the option of these latter to avoid it, and, until some act of theirs indicates such a purpose, it is not a nullity.

In the present case the stockholders of the corporation, whose officers accepted those benefits at the hands of the parties, with whom they were, in the name of the corporation, making a contract for over a million of dollars, do denounce and repudiate that contract. The conduct of these directors is utterly indefensible. The case of Wardell v. ''Union Pac. R. Co.'' 103 U.S. 651, is in precise analogy to this. See, also, same case in 4 Dill. 330. The original contract being such that the contractors can maintain no suit on it, the bonds which they received are affected with the same vice, and cannot be enforced unless they are negotiable instruments in the hands of innocent holders for value. This principle is set up and relied on to reverse the decree, on the ground that the bonds are in the hands of the Burlington & Missouri River Railroad Company. This company is no party to the suit, but it appears in evidence that, while it has possession of these bonds, it did not receive them by any purchase in the ordinary course of business. They came into their possession as part of a transaction in which they purchased the consolidated Nebraska Company's railroad, and these bonds were probably taken as security against their being used to injure the title. It is also shown that, as further security in the same direction, the Burlington & Missouri Railroad Company yet retains $400,000 of the price of the road, which they agreed to pay. Under these circumstances we do not see that that company is in condition to avail itself of the doctrine of bona fide holders for value.

But we are asked to reverse the decree so far as to permit the trustee in this case to recover such a sum as the construction company actually earned in building the road. The matter was referred to a master, who, on this hypothesis, reported that the contractors had done work for the railroad company, which it had accepted, to the value of $205,947.66 beyond what they had received payment for, except as it was paid by these bonds. He also reported that this work was of that much advantage to the company, and its value or cost is estimated as on a quantum meruit, without regard to the prices fixed by the contract. We are of opinion that appellant's view of this part of the transaction is sound. The bonds and mortgage in the hands of the trustee were issued in payment for this work. To the extent of $205,947.66 the consideration is good, and no sound principle is seen on which they cannot to that extent be enforced. To this extent they do not rest on the original contract, but on work, labor, and material actually furnished to the company and received by it. These services and materials are not estimated by the prices named in the contract, but by their real value to the company.

In the analogous case of Wardell v. ''Union Pac. R. Co.'' 4 Dill. 339, the circuit court, after rejecting the fraudulent contract on the same grounds that we reject this one, said:

'By what rule shall we measure Mr. Wardell's rights? He has     spent time and labor and money in discovering the mines, and      in placing them in condition to be profitably worked. * *  *      Apart from the contract, and if it had never existed, he is      entitled to a fair and reasonable compensation for his labor      and time and skill. The fraud gives the railroad company no     right to these without just compensation.'

This ruling was affirmed in this court on appeal in the same case. 103 U.S. 659. See, also, Gardner v. Butler, 30 N. J. Eq. 702.

There is another principle of equity jurisprudence which leads to the same conclusion. The stockholders who have resisted complainant's claim were not parties to the original suit for foreclosure, nor were they either necessary or proper parties as the case then stood. The decree and sale were made in a suit where all the usual parties to such a suit were agreed. These stockholders had no legal right to interfere. It was only by permission of the court that they were allowed to come in and contest the validity of the mortgage. In doing this they became actors. They filed their cross-bill. In this condition of the case they are amenable to the rule that they who seek equity must do equity. It is just that they should pay a fair price for what they have received; that this mortgage, given for the construction of the road, though excessive by reason of the fraud in the contract, should stand for the reasonable value of what the company actually received in the way of construction. To permit these intervenors to defeat the mortgage on any other terms would be unjust, and would make the court the instrument of this injustice.

The decree of the circuit court must therefore be reversed, and the case remanded to that court, with directions for a decree in favor of the plaintiff for the sum of $205,947.66, with interest. If a sale becomes necessary this sum must be paid out pro rata on the bonds secured by the mortgage, on their being produced and canceled, or surrendered for cancellation, provided the road sells for so much.

Mr. Justice FIELD and Mr. Justice MATTHEWS took no part in the hearing or decision of this case.


text: Talk:Thomas v. Brownville, Fort Kearney and Pacific Railroad Company/Opinion of the Court


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Canada Southern Railway Company v. Gebhard

What is now known as the Canada Southern Railway Company was originally incorporated on the twenty-eighth of February, 1868, by the legislature of the province of Ontario, Canada, to build and operate a railroad in that province between the Detroit and Niagara rivers, and was given power to borrow money in the province or elsewhere and issue negotiable coupon bonds therefor, secured by a mortgage on its property, 'for completing, maintaining, and working the railway.' Under this authority the company, on the second of January, 1871, at Fort Erie, Canada, made and issued a series of negotiable bonds, falling due in the year 1906, amounting in all to $8,703,000, with coupons for semi-annual interest attached, payable, principal and interest, at the Union Trust Company, in the city of New York. To secure the payment of both principal and interest as they matured, a trust mortgage was executed by the company covering 'the railway of said company, its l nds, tolls, revenues present and future, property and effects, franchises and appurtenances.' Every bond showed on its face that it was of this kind and thus secured. Before the thirty-first of December, 1873, the company became satisfied that it would be unable to meet the interest on these bonds maturing in the coming January, and so it requested the holders to fund their coupons falling due January 1, 1874, July 1, 1874, and January 1, 1875, by converting them into new bonds payable on the first of January, 1877, and by so doing only, in legal effect, extend the time for the payment of the interest, without destroying the lien of the coupons under the mortgage, or otherwise affecting the obligation of the old bonds. Some of the bondholders funded their coupons, in accordance with this proposition, and accepted the extension bonds, but under the arrangement, their coupons were not to be canceled until the new bonds were paid. In this condition of affairs the parliament of Canada, on the twenty-sixth of May, 1874, enacted that the Canada Southern Railway, which was the railway built by the Canada Southern Railway Company under its provincial act of incorporation, 'be declared to be a work for the general advantage of Canada,' and a 'body corporate and politic within the jurisdiction of Canada,' for all the purposes mentioned in, and with all the franchises conferred by, the several incorporating acts of the legislature of the province. This, under the provisions of the British North America act, 1867, passed by the parliament of Great Britain 'for the union of Canada, Nova Scotia, and New Brunswick, and the government thereof,' made the corporation a dominion corporation and subjected it to the legislative authority of the parliament of Canada.

On the fifteenth of March, 1875, another series of bonds, amounting in the agregate to $2,044,000, or thereabouts, was issued and secured by a second mortgage to trustees. After the issue of all the bonds the company found itself unable to pay its interest and otherwise financially embarrassed, and a joint committee, composed of three directors and three bondholders, after full consideration of all the circumstances, submitted to the company and to the bondholders 'a scheme of arrangement of the affairs of the company,' which was approved at a meeting of the directors on the twenty-eighth of September, 1877. This scheme contemplated the issue of $14,000,000 of 30-year bonds, bearing 3 per cent. interest for three years and 5 per cent. thereafter, guarantied, as to interest, for 20 years, by the New York Central & Hudson River Railroad Company, the first coupons being payable January 1, 1878. These new bonds were to be secured by a first mortgage on the property of the company, and exchanged for old bonds at certain specified rates. The old bonds of 1871 were to be exchanged for new at the rate of one dollar of principal of the old for one dollar of the new, nothing being given either for the pastdue coupons or the extension bonds executed under the arrangement in December, 1873. The proposed issue of bonds was large enough to take up all the old indebtedness at the rates proposed, whether bonded or otherwise, and leave a surplus, to be used for acquiring further equipment, and for such other purposes of the company as the directors might find necessary. This scheme was formerly assented to by the holders of 108,132 shares of the capital stock out of 150,000; by the holders of the bonds of 1871 to the amount of $7,332,000 out of $8,703,000; and by the holders of $1,590,000 of the second series of bonds out of $2,029,000 then outstanding. Upon the representation of these facts to the parliament of Canada the 'Canada Southern arrangement act, 1878,' was passed and assented to in the queen's name on the sixteenth of April, 1878. This statute, after reciting the scheme of arrangement, with the causes that led to it, and that it had been assented to by the holders of more than two-thirds of the shares of the capital stock of the company, and by the holders of more than three-fourths of the two classes of bonds, enacted that the scheme be authorized and approved; that the new bonds be a first charge 'over all the undertaking, railway works, rolling stock, and other plant' of the company; and that the new bonds be used for the purposes contemplated by the arrangement, including the payment of the floating debt. Section 4 is as follows: '4. The scheme, subject to the conditions and provisos in     this act contained, shall be deemed to have been assented to      by all the holders of the original first mortgage bonds of      the company secured by the said recited indenture of the      fifteenth day of December, one thousand eight hundred and      seventy, and of all coupons and bonds for interest thereon,      and also by all the holders of the second mortgage bonds of      the company secured by the said recited indenture of the      fifteenth day of March, one thousand eight hundred and      seventy-five, and of all coupons thereon, and also by all the      shareholders of the Canada Southern Railway company, and the      hereinbefore recited arrangement shall be binding upon all      the said holders of the first and second mortgage bonds and      coupons, and bonds for interest thereon, respectively, and      upon all the shareholders of the company.'

Under the arrangement thus authorized the New York Central & Hudson River Railroad Company executed the proposed guaranty, and the scheme was otherwise carried into effect.

The several defendants in error are, and always have been, citizens of the state of New York, and were, at the time the scheme of arrangement was entered into and confirmed by the parliament of Canada, the holders and owners of certain of the bonds of 1871, and of certain extension bonds, these last having been delivered to them respectively at the Union Trust Company in the city of New York, where the exchanges were made, in December, 1873. Neither of the defendants in error assented in fact to the scheme of arrangement, and they did not take part in the appointment of the joint committee. Their extension bonds have never been paid, neither have the coupons on their bonds of 1871, which fell due on the first of July, 1875, and since, though demanded. The company has been at all times ready and willing to issue and deliver to them the full number of new bonds, with the guaranty of the New York Central & Hudson River Railroad Company attached, that they would be entitled to receive under the scheme of arrangement.

These suits were brought on the extension bonds and past-due coupons. The company pleaded the scheme of arrangement as a defense, and at the trial tendered the new bonds in exchange for the old. The circuit court decided that the arrangement was not a bar to the actions, and gave judgments in each of them against the company for the full amount of extension bonds and coupons sued for. To reverse these judgments the present writs of error were brought. Two questions are presented for our consideration: (1) Whether the 'arrangement act' is valid in Canada, and had the effect of binding nonassenting bondholders within the dominion by the terms of the scheme; and (2) whether, if it did have that effect in Canada, the courts of the United States should give it the same effect as against citizens of the United States whose rights accrued before its passage.

Jos. H. Choate, for railway company.

John M. Bowers, for defendants in error.

WAITE, C. J.


text: Talk:Canada Southern Railway Company v. Gebhard