text:
Mayor v. Sheffield/Opinion of the Court

1. The first error claimed to be found in the record of this case is based on the proposition of the defendant below, that the locus in quo was not a legally established public street, and therefore the city was not liable for its condition. On this point the court ruled adversely to the city.

The facts as shown by the bill of exceptions in reference to this matter are in substance these: The place where the accident occurred was formerly a part of the City Hall Park, the property of the corporation of the city of New York. In November, 1847, the City Council ordered that the lower corner-line of the Park be so adjusted as to make a curve, instead of corners and angles, from Broadway to Chatham Street. The execution of those orders, placed in the street the ground where the plaintiff received his injury, and it became a part of the sidewalk at that place.

It is now argued that this is not a street, because the land was not condemned agreeably to a certain statute of the State for the opening and widening of streets. This statute was intended to secure to private land-owners compensation for their property taken for public uses, and can have no application to the case of an appropriation by the City Council, of land owned by the city to the purpose of a street.

It is also said that the Park is, both by contract and by statute, pledged for the redemption of the city debt, and therefore cannot be thus appropriated. It will be time enough to consider this question when some creditor of the city shall raise it. The legal title and the present use and possession are in the city, and were when the land was converted into a street, and it does not lie in the mouth of the city authorities, under these circumstances, to claim exemption for their negligence in the manner of making this conversion, under the plea that the act was a violation of their duty to public creditors.

If the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as they do other streets, and an individual is injured in consequence of the negligent and careless manner in which this is done, the corporation cannot, when it is sued for such injury, throw the party upon an inquiry into the regularity of the proceedings by which the land became a street, or into the authority by which the street was originally established.

2. The second error is supposed to have been found in an exception to the following language of the court in the charge to the jury: 'If they (the corporate authorities) leave an opening in the sidewalk, which is sometimes done, and a person coming along in the night falls into it, without any want of proper care on his part, the defendants are liable for any injury that may be occasioned. So, if an obstruction in the face of a sidewalk, over which a person stumbles-a box, if you please, left out on the sidewalk on a dark night, or barrels, over which a person stumbles and falls in the absence of want of care on his part-the defendants are equally liable for the injury. The opening, in the one case, and the obstruction, in the other, constitute the negligence on the part of the authorities who have control of the matter, and, in order to escape from the charge of liability, the burden is thrown upon them to disprove the negligence.'

To this charge it is objected that it precluded the defendants from any attempt to show that they were not guilty of negligence, because, if the obstruction constituted the negligence, the existence of the obstruction being proved, no defence could be offered. But this is a verbal criticism not justified by the language of the court, which in the same sentence declares that, in order to escape from liability, the burden is thrown upon defendants to disprove the negligence. No one can read the charge without seeing that the jury must have understood the court as meaning, that the existence of those obstructions was such evidence of negligence as required of the authorities explanations in order to escape liability.

Another objection to this charge is that it ignores the necessity of notice to the authorities of the existence of the obstruction.

It is certainly true, as a general proposition, that before the corporate authorities can be held liable in this class of cases, it must be shown that they knew of the existence of the cause of injury, or had been notified of it, or such a state of circumstances must be shown that notice would be implied. And it is true that this charge makes no reference to notice whatever. But when we look into the facts of this case, as shown by the bill of exceptions, we discover a very plain reason why this was omitted. The question of notice, as a fact, could not be disputed, and therefore did not arise as a matter on which the jury required instructions.

The city authorities, in converting the part of the Park already mentioned into a street, had cut down a tree, and left the stump standing from six to eight inches above the surface, and from fourteen to eighteen inches inside the curbstone, on the sidewalk. This was done in 1847; and this stump, thus left by the city authorities, who had cut down the tree, remained in that condition until the time of the accident to plaintiff, in 1857.

These facts were uncontradicted, and stronger proof of notice could not be given. It closed the question, and the omission in the judge's charge of any reference to that subject was justified by the testimony. It would have been superfluous.

JUDGMENT AFFIRMED.

title: Mayor v. Sheffield/Opinion of the Court


text: Talk:Mayor v. Sheffield/Opinion of the Court

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


text:
Christy v. Pridgeon

ERROR to the District Court of the United States for the Eastern District of Texas; the case being essentially thus: By the Mexican colonization law of August 18th, 1824, and the legislation of Coahuila and Texas authorized by it, the Governor of the State just mentioned had power to grant lands for colonization; but it was declared that the territory comprised within twenty leagues of the boundaries of a foreign nation, or within ten leagues of the sea-coast, could not be colonized without the previous approval of the supreme executive power.

In this state of the law, one Miguel Arceniga, a resident of Bexar, made his petition for concession of eleven leagues of land. The petition was dated March 31st, 1831, and the concession of the Governor, granting the quantity asked for, was made on the 6th of April of the same year, accompanied with a direction to the proper local officers to give possession of the land to the grantee, and to issue to him the proper title. Neither document designated the land. A petition to the alcalde, for survey, possession, and title, of the eleven leagues, in the vicinity of the 'Red River of the Nachitoches,' was followed by the appropriate action of the officer for that purpose, and on the 22d of September, 1835, by the issue to the grantee of a formal certificate of possession and title of the land thus situated. This was before the annexation of Texas to the United States, and the land thus granted laid within twenty leagues of what was then the northern boundary between Texas and the United States. Texas having become part of the Union, one Christy, claiming under the grantee, brought trespass to try title for these eleven leagues, now situated in Harrison County, Texas.

The court ruled that the grant being issued without the previous assent or approval of the supreme executive power of Mexico, was illegal and void, and excluded it from the jury. Thereupon, the jury found for the defendant. The alleged error in this ruling was the only question before this court.

Mr. T. Ewing, Jr., for the plaintiff in error:

The title, on its face, being valid and complete-its genuineness unquestioned-it comes within the principle declared by this court in Fuentes v. United States, that 'the public acts of public officers, importing to be exercised by public authority, shall not be presumed to be usurped, but that a legitimate authority had been previously given, or subsequently ratified;' and in Delassus v. United States, that the concession, being regular in form and made by the proper officer, is prim a facie evidence that it was within the power of the officer to make it, and that he who alleges that an officer intrusted with an important duty has violated it, must show it.

The chief object of the colonization law, as is known, was to encourage the immigration of foreigners, and their establishment in colonies with liberal bounties of lands. It was decided in Arguello v. United States, and affirmed in Cruz Cervantes v. The Same, that this law did not restrict the distribution by the States to Mexican citizens of public lands within the littoral and the frontier leagues. As there is no other provision of the constitution or laws of Mexico requiring the assent of the national executive to the disposition of vacant lands in Coahuila and Texas, it was therefore settled by those cases that the State had the power, without the assent of the supreme executive, to make the grant in question.

Mr. Adams and Mr. Leech, contra:

The invalidity and nullity of the Mexican grants within the ten coast, and twenty border, leagues of Texas, unless the assent of the supreme executive of Mexico was affirmatively shown to such grants, have been repeatedly and firmly settled by the Supreme Court of Texas, in a series of cases.

These decisions have, for years, been acquiesced in by the bar and the people, and constitute a rule of property for a very large portion of the State.

The plaintiff in this action undertook a course of litigation to overthrow these decisions; but they have been reiterated and affirmed both in the Supreme Court of Texas, and in this court, in League v. Egery, and Foote v. Egery, until it is not possible to conceive a more fixed and settled course of decisions and rule of property than the nullity of grants of this character.

Reply: 1. All the matters necessary to a consideration of the question do not seem to have been presented to this court in League v. Egery, and Foote v. Egery, acquiescing in the Texas decisions, and were not considered in its opinion when pronounced.

The first of the Texas decisions was at the December Term, 1848-one year before plaintiff brought this suit. He was the purchaser of the land from the State of Coahuila and Texas, in 1835, and had received complete legal title. Neither Mexico, nor the State of Coahuila and Texas, nor the Republic, nor the State of Texas, ever questioned his title by proceeding for forfeiture, or by a conveyance to a third person, or otherwise. The custom of the states and territories of Mexico, while the national colonization law of 1824 was in force, to sell to Mexicans lands in the border leagues, without the assent of the national executive, which is referred to in the Arguello case, and shown in the Texas and California Reports, and in the colonization law of Tamaulipas -undisputed as it was by Mexico-shows that the law was never interpreted by the national, state, or territorial authorities to impose the condition of national assent on such sales to Mexican citizens. This court, in the Arguello and Cervantes cases, in opinions from which there was no dissent, declared that this interpretation of the law by the national, state, and territorial authorities was right. It may, terefore, be assumed that such is the true interpretation of this law.

Hence, from 1835 to 1849, when this erroneous interpretation was first declared by any judicial tribunal, the plaintiff had a valid legal title by executed contract of purchase.

This court, in the Egery cases, takes the decisions of the Texas courts as a rule of property in that State. The court say, 'We do not inquire whether a more suitable rule might not have been adopted, nor whether the arguments which led to its adoption were forcible or just. We receive the decisions as having a binding force almost equivalent to positive law.' But we submit, that unless those Texas decisions have a binding force, more than equivalent to positive law, they cannot control this case. When the first of these erroneous decisions was made, Texas was a State of this Union, bound by the Constitution, and could not, even by a law, impair the validity of this contract, much less by a decision of its courts, or a series of decisions, which are only 'almost equivalent to positive law.' If, then, the plaintiff had a valid title before the earliest of these decisions, he has it still unimpaired by them. Decisions settling a rule of property cannot give or take away property, except in the very cases involved in them. They may, and of right ought to have, a persuasive influence on other courts deciding cases which originated in the past, but cannot control them any more than a statute law can control titles acquired in the past.

2. If the constitutional objection were removed, it seems to us not sound policy to give this effect to the Texas decisions. In 1855, nearly contemporaneous with the earliest of these decisions, this court, in the Arguello case, settled the construction of this part of the Mexican colonization law. That decision, affirmed in the Cervantes case, has stood for eleven years as an exposition of the settled law of such titles in all those states and territories which were acquired from Mexico.

It is, doubtless, still the received construction in those states and territories. Now, because the Texas courts refused to adopt that construction, and pertinaciously adhered to their own, will this court, by adopting the construction of the Texas courts, reverse its decision in the Arguello case, and destroy the titles resting on it? If the interpretation in the Arguello case is to be adhered to in deciding on titles in the states and territories acquired from Mexico, it cannot be abandoned in titles in Texas; for if a grant within the border leagues in California be not impaired by want of assent of the Mexican government, a like grant in Texas cannot be, without conceding to the Texas courts the power of establishing, by a train of decisions, a rule of property which destroys the obligation of contracts.

Mr. Justice FIELD delivered the opinion of the court.

title: Christy v. Pridgeon


text: Talk:Christy v. Pridgeon

title: Talk:Christy v. Pridgeon


text:
Christy v. Pridgeon/Opinion of the Court

This was an action to try the title to a tract of land situated in the County of Harrison, in the State of Texas.

The plaintiff relied for recovery upon title derived under a grant from the Governor of Coahuila and Texas, made whilst Texas was a province of Mexico. The defendant rested his defence upon the invalidity of the grant in question, and this invalidity was asserted upon the admitted fact that the land it embraces was situated, at the time the grant was made, within the twenty frontier leagues bordering on the United States, and the absence of any evidence tending to show the assent to the grant, or its approval by the national executive of the republic. The court held the grant, without such assent or approval, to be illegal and void, and excluded it from the jury. The ruling in this respect constitutes the only error assigned, which is properly before us for consideration.

The irregularities in the record mentioned by counsel we cannot notice, as they do not constitute the ground of any alleged error.

The absence of the signature of the judge of the court to the bill of exceptions is not made the subject of objection by the parties, and we hence infer that its omission was a mere clerical error.

The doctrine, that prior possession is sufficient evidence of title to maintain the action against a mere intruder and trespasser, we do not find at all controverted or doubted by the court below.

The only question presented by the bill of exceptions, and this arises upon the ruling mentioned, relates to the validity of the grant produced. The petition to the Governor upon which the grant was made, solicited, by way of sale, eleven leagues from the vacant lands of the department. This bore date in March, 1831. The decree of concession, which followed in April of the same year, gave the quantity as solicited, and directed the proper local officers to give possession of the land to the grantee, and issue to him the appropriate title. Neither the petition nor the concession designated the land; and, in September, 1835, the grantee applied to the alcalde of the district to place him in possession, and to issue to him the title of the eleven leagues in the immediate vicinity of the 'Red River of the Nachitoches.' By order of this officer the land was surveyed, and on the 22d of the same month formal evidence of title was given to the grantee. The land thus ceded lay within twenty leagues of what then constituted the boundary between the province of Texas and the United States.

The power of the Governor of Coahuila and Texas to make the grant was derived from the Mexican colonization law of August 18th, 1824, and the legislation of the State, which that law authorized. The object of that law was to induce the settlement of the vacant lands of the Republic. To this end the several States were empowered, under certain restrictions, to provide for the colonization of the lands within their limits. Their legislation was, of course, subject to the provisions of the fourth article of the law mentioned, which declares that 'those territories comprised within twenty leagues of the boundaries of any foreign nation, or within ten leagues of the sea-coast, cannot be colonized without the previous approval of the supreme general executive power.'

This law of 1824, though general to the Republic of Mexico, was, so far as it affected lands within the limits of Texas, after the independence of that country, a local law of the new State-as much so as if it had originated in her legislation. It had at the time no operation in any portion of what then constituted the United States. The interpretation, therefore, placed upon it by the highest court of that State must, according to the established principles of this court, be accepted as the true interpretation, so far as it applies to titles to lands in that State, whatever may be our opinion of its original soundness. Nor does it matter that in the courts of other States, carved out of territory since acquired from Mexico, a different interpretation may have been adopted. If such be the case, the courts of the United States will, in conformity with the same principles, follow the different ruling so far as it affects titles in those States. The interpretation within the jurisdiction of one State becomes a part of the law of that State, as much so as if incorporated into the body of it by the legislature. If, therefore, different interpretations are given in different States to a similar local law, that law in effect becomes by the interpretations, so far as it is a rule for our action, a different law in one State from what it is in the other. 'That the statute laws of the States,' says Mr. Justice Johnson, in delivering the opinion of this court in Shelby v. Guy, 'must furnish the rule of decision of this court, as far as they comport with the Constitution of the United States, in all cases arising within the respective States, is a position that no one doubts. Nor is it questionable that a fixed and received construction of their respective statute laws, in their own courts, makes, in fact, a part of the statute law of the country, however we may doubt the propriety of that construction. It is obvious that this admission may at times involve us in seeming inconsistencies-as where States have adopted the same statutes, and their courts differ in the construction. Yet that course is necessarily indicated by the duty imposed upon us, to administer, as between certain individuals, the laws of the respective States, according to the best lights we possess of what those laws are.'

In construing the fourth article cited from the colonization law of Mexico, the Supreme Court of Texas has repeatedly held that it operated as a prohibition of any grant of land within the littoral or coast leagues mentioned, without the previous assent of the federal executive of Mexico; that such assent was essential to the validity of a grant within those limits, and that such assent was not to be inferred from the existence of the grant, but must be affirmatively established. A series of decisions to this purport, from an early history of the State down to the present time, is found in the reports of her courts. These decisions have become a rule of property in that State, any departure from which would disturb titles to extensive and densely settled districts of country. We receive them, therefore, to quote the language of this court, in League v. Egery, 'as having a binding force almost equivalent to positive law.'

JUDGMENT AFFIRMED.


text: Talk:Christy v. Pridgeon/Opinion of the Court


text:
Lanfear v. Hunley

Court of Louisiana. The case was thus:

Lanfear brought suit against Hunley in a State District Court of Louisiana, to recover the possession of certain land occupied and claimed by Hunley as his own. The plaintiff relied on a title derived from a Spanish grant in early times to Paul Toups, and subsequently confirmed, as he alleged, by acts of Congress in 1807, 1814, 1820, and with greater particularity by an act of August 18th, 1856, to the children of Toups, and to a certain Daspit St. Amand through whom he claimed. Toups's petition was made in 1795, and was for

'A grant of land on the place called 'Les Coteaux de France,' at a distance of about eleven leagues from the capital, and about three and a half leagues from the river, on the other bank, reaching to a bayou named Crocodile, which runs parallel with the river, and the said land to be taken from the crossing of said bayou as far as the large swamp on the other side of Bayou des Cannes-the whole forming a strip of land about sixteen or eighteen arpents wide, and about two leagues and a half long-bounded on one side by floating prairies and on the other by lakes and marshes.'

The land was granted as prayed for. But there having been, as the plaintiff alleged, several bayous in that neighborhood named in former times Bayou Crocodile, though with one exception no longer now so named, the question as to the line to which the land extended-a question of boundary alone-became a disputed one.

The first act of Congress, that of 1807, relied on as confirming the claim as set up by Lanfear, the plaintiff, was a general act, authorizing commissioners to pass on claims to lands granted prior to 1803, limiting such grant to 2000 acres, and leaving locations to be determined. Nor was there anything of a particular kind in the act of 1814, or that of 1820. In 1854, Hawke, a deputy surveyor of the United States, made a survey of the land granted to Toups and confirmed to his children, and so surveyed it as to cover the lands of the defendant, now in dispute, and on the 18th August, 1856, Congress, referring specifically to the survey as made by Hawke, declared the same 'confirmed' in favor of Lanfear. The act contained these provisos:

'Provided, that such confirmation shall only be construed into a relinquishment of title on the part of the United States, and shall not affect the rights of any third persons claiming title, either under adverse title or as pre emptor; And provided further, that any person or persons, who are now settled on said lands, or any portion of the lands embraced in the said surveys, shall be entitled to have and maintain an action to test the validity of said surveys, and the extent of the said claims of the children of Paul Toups and of Daspit St. Amand, numbers 74 and 529, and to have the same determined judicially, in the same manner as though the land on which they are settled had been surveyed as public land, and they had been permitted to enter the same by way of pre emption, it being the true intent and meaning of this act that no person who would be now entitled to a right of pre emption to any part of said land, if the same were the property of the United States, shall be deprived of the same, unless it is judicially decided that the surveys were made in conformity with the legal rights of said Ambrose Lanfear, under the said confirmation.'

The State court in which the suit was brought decided against the plaintiff, and the Supreme Court of Louisiana having confirmed that judgment, the case came here for re-examination under the twenty-fifth section of the Judiciary Act, which provides that a final judgment in the highest court of a State-where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against that validity, or where is drawn in question the construction of any statute of the United States, and the decision is against the right specially set up or claimed by either party under such statute-may be re-examined in this court; enacting further, however, that no other error shall be assigned or regarded as ground of reversal than such as immediately respects the before-mentioned questions of validity or construction.

Messrs. M. Blair and F. A. Dick, for the plaintiff in error, and Mr. A. G. Riddle, contra, argued the case on its merits.

Mr. Janin, for the defendant in error, asked to have the case dismissed for want of jurisdicition. Against the right to take the jurisdiction, he said that the act of August 18th, 1856, was the only one which defined the claim in language less vague than the original grant; that the act of 1856, which did define it, referred it to the courts to settle the location of the survey, and what land really passed under the confirmation; that the courts of Louisiana had settled that and nothing else; and that this was not a subject for review. Hence that the writ could not be entertained.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Lanfear v. Hunley


text: Talk:Lanfear v. Hunley

title: Talk:Lanfear v. Hunley


text:
Lanfear v. Hunley/Opinion of the Court

We are met at the threshold of the investigation by the proposition, on the part of the defendant in error, that this court has no jurisdiction of the controversy between the parties, and that the case must be dismissed.

The defendant in error holds the lands in controversy by the right of pre emption, under the laws of the United States; and it is admitted that his title is valid and must prevail, unless his adversary has proved a better one. The plaintiff in error insists that such a title is shown in the record,-by a grant from the government of Spain to Paul Toups, in 1796, confirmed by the acts of Congress of the 3d of March, 1807, of the 12th of April, 1814, of the 11th of May, 1820, and especially by the act of the 18th of August, 1856.

None of these acts, except the one last mentioned, attempted to fix definitely the locality and boundaries of the grant. That act refers to surveys made by Hawke, in 1854, and confirms them. The plaintiff in error claims according to thsese surveys. They include the land in controversy. But the confirmation by this act was accompanied by important conditions.

[The learned judge here read the provisos as given, supra, p. 206, in the statement of the case.]

These provisos expressly save the rights, whatever they may be, of the defendant in error.

The act, considered in its entirety, confirmed to the plaintiff whatever he was entitled to by virtue of the original grant, conceding that to have been valid. It neither enlarges nor disminishes what the grant gave him. It extinguishes all claim, on the part of the United States, to the land covered by the surveys; but as regards all adverse claimants, it determines nothing, and concludes no one. It gives to the settlers upon the land, in express terms, the right to institute and maintain the litigation necessary to enable them to test the validity of the surveys. It leaves adverse claimants otherwise where they were before Congress legislated upon the subject, and in all respects as if this act had not been passed.

The defendant in error does not deny that a grant was made as alleged by the plaintiff in error, nor that it was confirmed by Congress; but he denies that its boundaries were properly defined by the surveys of Hawke; and he asserts, that if properly located it will not include the land in dispute. The plaintiff in error insists that these surveys conformed to the grant, and that they are made conclusive by the act of 1856.

The Supreme Court of Louisiana gave to this act the same construction which we have given, and proceeded to settle the rights of the parties according to the evidence.

The controversy in that court turned wholly upon the question of the locality of the eastern boundary of the grant. The plaintiff contended that it was a line eighty arpens from the west bank of the Mississippi River. The defendant alleged that it was the Bayou Crocodile. If the plaintiff's claim prevailed, the tract would include the land in controversy; if the defendant's, the opposite result would follow. The court, after an elaborate examination of the subject, sustained the theory of the defendant, and gave judgment accordingly.

Has this court jurisdiction to examine the grounds of this decision?

The case is brought here under the twenty-fifth section of the Judiciary Act of 1789. Our authority is derived from and limited by that section. This court has repeatedly held, that it does not warrant the review of an adjudication upon a mere question of boundary. The fact that the land to which the boundary relates is held by a title derived from an act of Congress does not change the result. If the title be admitted as recognized by the act, its location upon the land is a subject wholly within the cognizance of the State tribunals, and it is not within the power of this court to revise their action. In such cases our authority is limited to errors relating to the title. If any such are committed, it is our duty to correct them. If there are none, we have no more authority to interpose than in any other case of alleged maladministration of justice by a State court. A party cannot, by setting up an unfounded claim of title, compel us, after deciding the claim against him, to take to ourselves a jurisdiction which, but for such claim, we could not have exercised. Such a result would make the jurisdiction depend, not upon the nature and merits of the case, but upon what the party may choose to allege. In this way, in every case where the title is derived from the United States, and a question of boundary is involved, this court might be constrained to do what it has uniformly held to be beyond the sphere of its power.

In the case before us, the Supreme Court of Louisiana construed correctly the several acts of Congress relating to the subject of the controversy. No greater or different effect would have been given to them here if the case had been brought before us by appeal from a Circuit Court of the United States. Full effect was given to the title. The error, if any were committed, was in locating it upon the land, and fixing its boundaries. In the performance of this function by that court, no treaty, act of Congress, or authority exercised under the United States, was drawn in question. We cannot, therefore, review the conclusions at which the court arrived. The section referred to in express terms forbids it.

The decision having been correct upon the only question before us for consideration, the judgment below is

AFFIRMED.

title: Lanfear v. Hunley/Opinion of the Court


text: Talk:Lanfear v. Hunley/Opinion of the Court


text:
Witherspoon v. Duncan

ERROR to the Supreme Court of the State of Arkansas; the case, as stated by the learned justice who gave the opinion of the court, being thus:

title: Witherspoon v. Duncan


text: Talk:Witherspoon v. Duncan

title: Talk:Witherspoon v. Duncan


text:
Witherspoon v. Duncan/Opinion of the Court

The State of Arkansas, on her admission into the Union, made a compact with the General Government not to tax the public lands within the State, nor interfere with their primary disposal by the United States, or with the regulations adopted by Congress for securing the title in them to purchasers. It was claimed that this compact had been broken by the decision of the Supreme Court of Arkansas in this case.

The facts on which the claim was based were these: On the 23d day of May, 1828, a portion of the public domain, within the limits of the Territory of Arkansas, was, by treaty, ceded to the Cherokee Indians, west of the Mississippi River, and suitable provision made for the removal of the settlers from it. As an indemnity for the loss of improvements and the trouble and expense of removing, each settler who did remove was entitled, by an act of Congress, to enter, at the proper land office in Arkansas, two quarter sections of the public lands of the territory, the sale of which was authorized by law.

The children of Timothy Harrell (one of the settlers on these ceded lands) furnished the requisite proof to the register and receiver of the land office, at Little Rock, of the settlement, removal, and subsequent death of their father, and were, on the 22d day of May, 1830, allowed to enter the lands in controversy. The proper certificate of this donation entry, as it is called, was transmitted, as is usual in land entries, to the General Land Office at Washington; but, for some unexplained reason, a patent was not issued for the lands embraced in it until the 5th day of February, 1846. By mistake, owing, doubtless, to the neglect of the land officers at Little Rock to make the proper cancellation on their books, and to the multiplication of land districts, these same lands were entered at the land office at Washington (within which district they were then included), on the 8th day of June, 1836, by G. W. Denton, who received the usual certificate of purchase. This entry was cancelled by the Commissioner of the General Land Office, on the issue of the patent to the heirs of Harrell, and, in February, 1849, the purchase-money refunded to Denton.

In 1842, these lands were listed for taxation, by the authorities of Arkansas, in the name of Denton, and sold (because the taxes were unpaid) to Duncan and Flanigan, the defendants in error, who received a deed for them after the time for redemption had expired, and, by means of a proceeding peculiar to Arkansas, had their title confirmed by the decree of the proper court of record. Hardy, deraigning title through the heirs of Harrell, filed a bill in equity in the Circuit Court of Clark County, where the lands were situated, to annul the tax title thus acquired, and to quiet his own title. The Circuit Court, at the hearing of the case, dismissed the bill, and on appeal the Supreme Court of the State affirmed the decree.

This writ of error was brought to review that decision.

Mr. Carlisle, with a brief of Mr. Watkins, for the plaintiff in error:

We concede that when land has been sold by the United States, entered and paid for by the purchaser, who receives the usual certificate for the purchase-money, and in whose favor the usual patent certificate issues, it becomes the property of the purchaser. Such is the doctrine of Carroll v. Safford.

But that case was one of an ordinary cash entry, and the usual certificates were issued to Carroll, the purchaser. The sale was made and consummated, so far as it could be done by the United States, and in due course of official routine, the patent issued to Carroll, who never pretended that there was any circumstance to vitiate his entry, or give to the officers of the United States charged with the supervision of the Land Department and the issue of patents, any color of authority to cancel it, or excuse for withholding the patent.

In order to make the case, now under consideration, analogous to that, not only must the patent have issued to Denton, in pursuance of his entry, but he should be himself the party upon the record, contesting the validity of the tax, upon his own land.

The counsel for defendant, in Carroll v. Safford, admitted that if from accident or the exceptions which he had before adverted to, the certificate of purchase should not be matured into a patent, 'the purchaser, at tax sale, could not acquire a better title than the holder of the certificate.' That is his risk. But, he adds, 'in the case of the present complainant it is not pretended that his titles were not perfected. On the contrary, the record brought up here alleges and admits that the patents for his lands were issued before the lands were sold for taxes.'

The Supreme Court of the United States, in the case just named, never supposed they were overturning the numerous cases decided or founded on the proposition that Congress, having power to dispose of the public domain, and to enact all laws and needful regulations respecting the sale thereof, where it has, by its legislation, provided for the issue of patents, they are necessary to complete the title; and, until the patent issues, the fee remains in the United States, and the legal title has not passed. If this be not so, with the same propriety it could be contended that the verdict of a jury is sufficient, without any judgment of the court in pursuance of the finding; or that the existence of a judgment could be proved by parol evidence, without an exemplification of the record.

In most of tax title cases, the simple question has been, whether land, legally sold by an officer of the United States, became subject, under the State laws, to assessment and taxation against the purchaser of it as the owner, before the final emanation of the patent. In all of them the entries have been made in the usual mode of purchase at private sale, and it has not been pretended that there was any illegality or want of authority in the sales, or that the incipient title had failed. On the contrary, the bills to set aside the tax sales have been brought by the purchasers, asserting themselves to be the owners of the land by virtue of the patents which had issued upon their own entries. The whole scope of the decisions is, that by such entry the land was sold and appropriated according to law; and the purchaser being for all beneficial purposes the owner of the land, it became subject to taxation as his property. Clearly, the purchase at tax sale would fail, unless the particular title should afterwards be consummated by patent. Carroll v. Safford, is careful not to omit this reservation. The court say: 'It is true, if the land had been previously sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States, as having been issued through mistake.'

Until the issue of the patent, the paramount title in all cases remains in the government; and until then all State legislation is subordinate to the primary right of soil and disposition remaining in the Federal Government, and does not profess to interfere with it, and is contingent upon the issue or withholding of the patent; in regard to which the President, and the officers of the Land Department acting under him, have a discretion.

Now the heirs of Harrell, as we conceive, never had any ascertained right to the land in controversy, until the final decision of the Commissioner of the General Land Office in 1846, confirming their donation claim, and the issue of the patent to them for the lands applied for. Until then the whole subject remained under the control of the Land Department. If rejected, the entry of Denton would have held the land, and he would have received the patent.

The opinion in Carroll v. Safford proceeds upon the ground, that there is no lawful authority in any officer of the government to vacate a patent certificate upon a cash entry, made in accordance with law, and that it would be an abuse of power to do so; that the certificate imports an actual present sale of the land, and is as binding on the government as a patent; and therefore the land becomes subject to be assessed to the owner of it, for State taxes. How is it possible for this reasoning to condemn the lands applied for by the heirs of Harrell in 1830, in satisfaction of their claim to a donation-when there was no actual sale for a valuable consideration paid to the United States, and they had received no final certificate or evidence of purchase; when they had no right, as against the government, to possess and enjoy the land; when the President and his subordinates in the Land Department, had not ceased to have a lawful control over the subject of the claim, but had a continuing power to disallow and reject it?

If the government of the United States had the right to cancel the entry of Denton; if it had the right to confirm the donation claim of the heirs of Harrell, and grant them a patent for the land in 1846, all of which is unquestioned-then, and to that extent, the land in controversy, and upon which the State tax was levied in 1842, was the property of the United States. If the land officers of the United States had a jurisdiction and supervising control over the subject of this title, then the patent granted in 1846, under the seal of the United States, must have the effect of investing the patentees with a clear title, an unincumbered estate in the land, or else the tax sale in 1842 was a fundamental wrongful interference on the part of the State with the primary disposal of the land by the United States, and with the lawful regulations prescribed by her for securing title to the rightful owner.

It will not answer to say, that the heirs of Harrell had the best right to the land, because it ultimately prevailed. If the General Government had the right to take the land away from Denton, and give it to the heirs of Harrell, it had such a lawful power of disposal over it as could not be divested, or in the least degree impaired, by the intermediate sale of it for taxes. The government had the power to do effectually and completely what she professed to do, as an act of justice so long delayed. The patent would be a fruitless grant, if it can be effectually defeated by a State tax sale, whose only possible merit may be, that it was made in good faith, and without any intention to violate the compact.

The argument is, that at the time the land was assessed, the fee was in the United States, and the land not therefore subject to taxation. The position is too technical. What title did Harrell's heirs acquire under the certificate of entry of 1830? How is a party regarded who holds this certificate of entry? There are exceptions to the principle, but the general principle itself is that, as soon as the public land is purchased and paid for, it becomes the property of the purchaser, and may be sold and transferred by him (as is constantly the case), before being patented. It is the sale, not the patent, which is important. In Carroll v. Safford, the court, in speaking of the title under a certificate, says: 'When the land was purchased and paid for, it was no longer the property of the United States, but of the purchaser. He held for it a certificate, which could no more be cancelled than a patent. It is true, if the land had been previously sold by the United States, or reserved from sale, the certificate or patent might be recalled by the United States, as having been issued through mistake. In this respect, there is no difference between the certificate-holder and the patentee.'

In Goodlett v. Smithson, it was decided, that 'the patent is considered as evidence of title, by which it is shown that the prerequisites of sale have been complied with; by the act of entry and payment, the purchaser acquires a legal title, that may be aliened, descend or divested, in the same manner as any other legal title. So, previous to the issue of a patent, the estate of one in lands purchased of the United States, and for which he has received a certificate of payment, may be levied on and sold under execution, issued on a judgment at law, and ejectment can be maintained on such certificate.'

With such rights under a certificate of entry, it would be strange, if the lands for which this certificate was given, should not be subject to taxation! If an individual could purchase lands of the United States, settle, improve, and cultivate them, on certificates of purchase, then, in case, from the neglect and delay of the proper department, the patents are not issued for several years, the lands would be exempt from taxation, while lands adjoining were compelled to pay taxes, though their occupant was deriving no greater advantage from the possession and cultivation. A period of sixteen years elapses, during which time a party might have improved and cultivated the land, derived a subsistence from it, accumulated property on it, and wellnigh worn out the land, and yet, he must not pay taxes! Such a thing is possible, and easily to be done. And if this be the law, there is great consideration held out to induce persons not to get patents issued at all.

Mr. Justice DAVIS, after stating the case, delivered the opinion of the court.

It is not the province of this court to interfere with the policy of the revenue laws of the States, nor with the interpretation given to them by their courts. Arkansas has the right to determine the manner of levying and collecting taxes, and can declare that the particular tract of land shall be chargeable with the taxes, no matter who is the owner, or in whose name it is assessed and advertised, and that an erroneous assessment does not vitiate a sale for taxes.

Of course, the property must, under the compact, be taxable; but if it is, the mode of enforcing payment of taxes is wholly within legislative control. If, therefore, the lands in dispute could be taxed, the decision of the Supreme Court of the State is conclusive that the assessment, sale, and confirmation were regular, and divested the title derived through the heirs of Harrell. The taxability of the lands is, then, the only question which we are authorized to consider and determine.

The plaintiffs in error insist that the State had no power to impose a tax on them until the donation entry was actually confirmed and the patent had emanated. It is conceded that the power had been exercised, from an early period in the history of the State, to levy and collect a tax upon lands as soon as entered, and not to wait for the emanation of the patent, a practice that has obtained in nearly all the Western States, whose admission was under a compact similar to that with Arkansas.

Arkansas covenanted to abstain from taxation of the public lands within her limits, and to refrain from legislation that should impede the Federal Government in disposing of them, or interfere with the regulations of Congress for the security of titles. It is clear that the government has not been hindered in selling them, nor Congress obstructed in securing titles; but it is claimed the contract has been violated, because these lands, when taxed, were owned by the United States. In no just sense can lands be said to be public lands after they have been entered at the land office and a certificate of entry obtained. If public lands before the entry, after it they are private property. If subject to sale, the government has no power to revoke the entry and withhold the patent. A second sale, if the first was authorized by law, confers no right on the buyer, and is a void act.

According to the well-known mode of proceeding at the land offices (established for the mutual convenience of buyer and seller), if the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts, by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain. The government agrees to make proper conveyance as soon as it can, and in the meantime holds the naked legal fee in trust for the purchaser, who has the equitable title. As the patent emanates directly from the President, it necessarily happens that years elapse, before, in the regular course of business in the General Land Office, it can issue; and if the right to tax was in abeyance during this time it would work a great hardship to the State; for the purchaser, as soon as he gets his certificate of entry, is protected in his proprietary interest, can take possession, and make valuable and lasting improvements, which it would be difficult to separate from the freehold for the purpose of taxation. If it was the purpose of the acts of Congress, by which the new States were admitted into the Union, to prohibit taxation until the patent was granted, the national authority would never have suffered, without questioning it, the universal exercise of the power to tax on the basis of the original entry.

This question was fully considered by this court in Carroll v. Safford, and the views we have presented only reaffirm the doctrines of that case.

But it is insisted that there is a difference between a cash and a donation entry-that the one may be complete when the money is paid, but the other is not perfected until it is confirmed by the General Land Office and the patent issued,

That Congress has the entire control of the public lands, can dispose of them for money, or donate them to individuals or classes of persons, cannot be questioned. If the law on the subject is complied with, and the entry conforms to it, it is difficult to see why the right to tax does not attach as well to the donation as to the cash entry. In either case when the entry is made and certificate given the particular land is segregated from the mass of public lands becomes private property. In the one case the entry is complete when the money is paid; in the other when the required proofs are furnished. In neither can the patent be withheld if the original entry was lawful.

The power to tax exists as soon as the ownership is changed, and this is effected when the entry is made on the terms and in the modes allowed by law. If this were not so, those who, through the bounty of Congress, get a title to the soil, without money, would enjoy higher privileges and be placed on a better footing than the great body of persons who, by the invitation of the government, purchase lands with money. Such a discrimination could never have been contemplated by Congress.

These principles are well illustrated in the case at bar. The heirs of Harrell, by means of the Cherokee treaty, had a claim to two quarter sections of land in Arkansas. If they furnished proof to the register and receiver of the proper land office of the settlement and removal of their father, and it was accepted and the claim allowed, then they had an equal right to purchase the lands in question with this claim as with money. The claim was allowed, the selections made, and a certificate of entry given, and it was their duty to see that the taxes were paid. It is true, that the entry might be set aside at Washington; but this condition attaches to all entries of the public lands.

They took upon themselves the risk of confirmation, and perilled their title when they suffered the lands to be sold for non-payment of taxes. It does not appear from the record why the patent was so long delayed; but the claim was finally approved on the original proofs, and the patent, when issued, related back to the original entry. The lands were, therefore, under the laws of the State, properly chargeable with taxes from the date of the first entry, in 1830.

The judgment of the Supreme Court of Arkansas is

AFFIRMED.


text: Talk:Witherspoon v. Duncan/Opinion of the Court


text:
Rutherford v. Geddes

APPEAL from a decree in admiralty rendered by the Circuit Court for the Eastern District of Louisiana.

The appellant, Rutherford, was, in 1850, the owner of the steam propeller Stanton, and had put her in charge of the towboat Diana, which was to tow her to sea from New Orleans. The Diana proceeded down the Mississippi with her tow, the Stanton, and on the 23d of January a collision took place between the Diana and the steamship Ohio, coming up the river. The Stanton was struck and sunk, and the Diana greatly injured.

Immediately afterwards, Rutherford, as owner of the Stanton, and the Independent Towboat Company, as owner of the Diana, brought suit in the District Court for the Eastern District of Louisiana, against the Ohio, to recover damages, but in both failed to recover.

At a later date, to wit, in 1854, Rugherford instituted suit in the same court against the Towboat Company, asserting that the collision had been caused by the mismanagement of the towboat.

When the case was at issue, the libellant offered as his principal testimony the depositions taken on behalf of the Ohio, in 1850, in the two suits of the libellant, Rutherford, and the Towboat Company against the Ohio; the testimony by the weight of which the District Court decided the two cases in favor of the Ohio. The testimony was objected to by the present respondents, on the ground that they 'were not parties to the suit between the libellant Rutherford and the Ohio, and that the libellant herein was not a party to the suit between the Towboat Company and the Ohio.' The testimony was received by the District Court. On appeal to the Circuit Court it was rejected; and there not being otherwise, as that court thought, any sufficient evidence of fault on the part of the Diana, the libel was dismissed.

The only question of law considered on review in this court was whether the depositions originally taken, in 1850, on behalf of the Ohio, to show that the collision was attributable to the bad management of the towboat, was properly excluded in the present suit.

It was not shown that effort had been made to procure the attendance or direct testimony of the witnesses, or that they were either dead or absent.

The court below said: 'Depositions taken in one cause may sometimes be used as evidence in another, but it is only under special and particular circumstances. In every case such evidence is regarded as secondary evidence, and its introduction must be preceded by proof to show that the primary evidence could not be procured. It is a general rule that evidence which a witness has given on a trial between parties, is admissible upon the same subject-matter between the same parties on a subsequent trial, if the witness has died in the interim; or if he has gone abroad and has not returned. It is in general essential that the party to be affected by the evidence of depositions, or some person in privity with him, should have had an opportunity of cross-examining the witnesses with reference to the subject-matter. The rule of the common law is, that no evidence shall be admitted but what is or might be under the examination of both parties.

'It is to be observed that no evidence was given to show that any of these witnesses were dead, or that there was any impediment to their examination in this case. In the case of Rutherford v. The Ohio, the defendants were not parties, and had no power to examine in that particular case; and in the case of the Towboat Company v. The Ohio, the libellant was no party, and the defendants, though interested in that suit as members of the company, yet were so in a different character from that in which they are parties here.

'But the rule is well established that the cause in which the depositions were taken, must be between the same parties or persons, claiming in privity with them, to authorize their admission in another suit; and that the right to use them must be reciprocal, or neither can claim it. It cannot be asserted that the depositions in the case of the Towboat Company against the Ohio may be used against the libellant in this cause. In Goodenough v. Alway, Sir John Leach refused an order to allow depositions in a suit for tithes to be read in a tithe suit against other occupiers of land in the same parish, though the objects of both suits, and the interests of the parties were the same. In Cazenxve v. Vaughan, Lord Ellenborough said: 'The rule of the common law is, that no evidence shall be admitted but what is or might be under the examination of both parties.' This precise question arose in the case of Rushworth v. The Countess of Pembroke, where the defendant sought to introduce the depositions taken in a cause to which she was not a party. The court was of opinion-'That the former depositions could not be used, because the countess was not a party to that suit; and as they could not be read against her, no more could they be read for her; and because she was not bound by them, not having been a party to the suit; nor was she in a capacity of examining any witness in it, or preferring interrogatories in it; for that reason, also, she could not make use of the depositions of any that had been witness to it.' The American cases go to the length of those that I have cited: Harrington v. Harrington, 2 Howard's Missouri, 701; Boudereau v. Montgomery, 4 Washington, 186; Heth v. Young, 11 B. Monroe, 278; Sheridan v. Smith, 2 Hill's N. Y. 538.

'In the case last cited testimony delivered in another cause by a witness called by one of the parties, and when that party was present and expressed no dissent to the statements, was held to be inadmissible. My conclusion is, that all the depositions taken in the cases before mentioned, and used as evidence in this by the libellant against the objections of the defendants, were improperly admitted, and that the exception of the defendants was well taken.'

The case was submitted by Mr. Reverdy Johnson, for the appellant Rutherford, and by Mr. Janin, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Rutherford v. Geddes


text: Talk:Rutherford v. Geddes

title: Talk:Rutherford v. Geddes


text:
Rutherford v. Geddes/Opinion of the Court

On the trial of this case in the District Court the libellant procured a decree in his favor mainly upon testimony found in certain depositions offered by him. To the admission of these depositions in evidence, the defendants objected, and when the objection was overruled they carried the case by appeal to the Circuit Court.

The Circuit Court excluded the depositions, and if the action of that court was correct in this respect, there can be no doubt that its decree dismissing the libel was the necessary result of the case as it stood on the remaining testimony.

The depositions relied on by appellant were properly ruled out, for the reason that they were taken without notice to defendants, in another suit to which defendants were not parties, and in which they had no right or opportunity to cross-examine the witnesses. Nor were defendants in any manner privies to either party in the former suit, in which the depositions had been taken. This alone, it is well settled, is a sufficient reason for their exclusion.

But when, to this consideration, it is added, that no reason is shown why the witnesses were not introduced in person, it is quite clear that the Circuit Court was right in rejecting the depositions.

The decree of the Circuit Court dismissing the libel is, therefore,

AFFIRMED.


text: Talk:Rutherford v. Geddes/Opinion of the Court


text:
Evans v. Patterson

ERROR to the Circuit Court for the Western District of Pennsylvania; the case being thus:

The State of Pennsylvania in 1792 granted a warrant to survey a certain tract of land to William Barker. Barker, the warrantee, conveyed his interests to Daniel Broadhead. Broadhead died, and James Patterson bought his title from his heirs. But he had not, or at least could not find or prove the existence of any 'deed-poll' from Barker, conveying the warrant to Broadhead. However, using the name of Barker, the warrantee, he brought ejectment in 1831 against a certain Eli Evans and some other persons who were in possession of the land. Evans and these others set up in defence that Barker did not appear, and that his existence was uncertain, and that Patterson, asserting himself as he did, to be owner of the land, could not bring suit in Barker's name. But the court decided that under the peculiar system of land law of Pennsylvania, he could; and he had verdict and judgment accordingly. On error to the Supreme Court of the State (Ross v. Barker, 5 Watts, 391), that tribunal affirmed the judgment; holding to the doctrine previously declared in Campbell v. Galbraith, that in Pennsylvania a beneficial owner was entitled to use the name of a warrantee, though such warrantee was ignorant both of the action and that trust.

For some reason, however, Patterson did not get possession of the land. Eli Evans, against whom the ejectment had been brought, died, leaving a son, Elihu Evans, upon the land. Patterson, who had in the meantime found a deed-poll from Barker, the warrantee, to Broadhead, brought, A. D. 1855, a suit against this Elihu Evans; deraigning the title regularly from the warrantee to himself, and obtaining verdict and judgment. But still he did not get into actual or permanent possession. Elihu Evans yet maintained occupation.

Patterson, who was a citizen of Ohio, now brought a third ejectment-the suit below-in his own name against the said Elihu. This was in the Circuit Court of the Western District of Pennsylvania. He put in evidence the records of the two judgments just mentioned, proved his actual ownership at the time when the first suit (that in the name of William Barker), was brought, showed the identity of the land, now demanded with that recovered in the former suits, and that Elihu Evans was a son of Eli Evans, and in possession. He here rested; asserting that he had shown two recoveries for the same land; and claiming the benefit of them under a statute of Pennsylvania, passed 13th April, 1807, which enacts that 'where two verdicts shall in any suit in ejectment between the same parties be given in succession for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought.'

The defendant contended that the first ejectment having been instituted in the name of William Barker, the warrantee, after he had conveyed all his right and title to the land in controversy to Daniel Broadhead, as appeared from the evidence, there was no privity, and therefore the first verdict and judgment should not be counted against him, and prayed the court so to instruct the jury, which the court after argument of counsel declined to do, and charged the jury that if the evidence in the case was believed by them, the plaintiff had two verdicts and judgments for the land in controversy, which were conclusive in favor of his title, and he was entitled to recover.

The case was now here on error; the record showing a long and confused bill of exceptions, with recitals of all the deeds, and minute descriptions of the land and of the tracts bounding it.

Mr. Wilson, for the plaintiff in error:

This record raises two points for consideration:

1st. Whether the estoppel, under the Ejectment Act of Pennsylvania, arising from two verdicts and judgments between the same parties, or their privies, upon the same title, appelies to Elihu Evans, the defendant in the second ejectment, who was not a party to the first ejectment, and who was not proved to be privy to the same.

2d. Whether there was, at the time of the first ejectment, in the name of William Barker, in 1831, any privity between James Patterson, plaintiff in the second ejectment, and William Barker, the former plaintiff, since, in the second ejectment, it appeared that William Barker, the warrantee of the land, had, by deed-poll, in 1792, conveyed all his interest in the warrant to Daniel Broadhead, under whom Patterson, plaintiff, claimed title in the second ejectment.

It is not intended, under this second head, to controvert the settled doctrine in Pennsylvania, that so long as the relation of trustee and cestui que trust subsists between the warrantee and the real owner of the warrant, an ejectment may be maintained in the name of the warrantee, as nominal plaintiff, for the benefit of a real owner of the warrant; but the distinction is taken here, that any fiduciary relation between Barker, warrantee, and Broadhead, alleged owner of the warrant, had ceased as early as 1792, when the former conveyed his title to the latter, and, consequently, no privity between Patterson, claiming under Broadhead, could have existed in 1831.

It will not be denied that the decisions in the Pennsylvania courts, on the statute, have held,

1st. That the ejectment must have been for the same land.

2d. That in the trial the same title should have been passed upon.

3d. That the parties should be the same, or should stand in privity with those who were.

'It is certainly not enough that the former ejectment was upon the same land, on the same title, and under same deed, under which parties at present claim; it is necessary, besides, that the parties be the same, or stand in privity with those who were.'

Now, the first ejectment, or No. 1, and judgment on verdict, is not identical in name as to either plaintiff or defendant with the second ejectment, or No. 2; for in one, William Barker is plaintiff, and in the other, James Patterson.

The only identity or assumed privity, then, of James Patterson and William Barker is, that in both cases the warrant of William Barker, dated 3d April, 1792, was adduced in evidence, on the part of the plaintiff below, by which, in one case, No. 1, and through which, in the other, No. 2, recovery was asserted and had; in the former, in name of William Barker, the warrantee, as implying a legal title; in the latter, of Patterson, plaintiff, deducing title from Barker by regular mesne conveyance. The first suit, Barker v. Ross, as it went to the Supreme Court of Pennsylvania, was decided upon the presumption of the existence of William Barker, the warrantee and alleged trustee, without the evidence being given, as it was below in the present suit, that Barker had conveyed all his title and claim to Broadhead in 1792.

This brings us to the consideration of the second point.

The general doctrine in Pennsylvania is peculiar to her system of land adjudications, that ejectment at law may be instituted on either equitable or legal titles. That warrants and surveys are to be deemed as against all but the Commonwealth, in the same light as legal estates in the English common law, and the same consequences follow from any conveyance, devise, or assignment made by the warrantee or grantee.

It follows, then, that a conveyance by deed-poll of a warrantee carries with it all legal or equitable rights-they pass to the grantee or assignee-his relation of legal owner, or trustee of any beneficial owner, cease. Until transfer under the warrant, he attaches to himself a constructive legal seizin of the land, with the same advantages as if in the actual possession at common law, to be defeated by disseizin in fact, or by some adverse claim or right. Afterwards, his grantee or alienee is clothed with the attributes of an owner, and takes the title, subject only to the consequences of his predecessor's acts during his seizin. The assignee or alienee can then only maintain suit in his own name.

Applying these principles, the distinctions obviously arising in the case now here on error, and that of Barker v. Ross as it went to the Supreme Court of Pennsylvania, are appreciable. Chief Justice Gibson, delivering the opinion, says:

'The point raised (the non-existence of William Barker) is disposed of by the decision in Campbell v. Galbraith, 1 Watts, 78, that the beneficial owner may maintain ejectment in the name of a nominal warrantee, ignorant both of the action and the trust, no more being required than to disclose the name of the actual party.'

In the trial below, in that case, no mesne conveyances whatever were shown from Barker to Broadhead, or to Patterson; no transfer or sale came in evidence. The simple warrant and survey were introduced, Patterson claiming, outside the record, as beneficial owner, without title, legal or equitable. The evidence now discloses the fact, that at the impetration of the writ in the first suit, A. D. 1831, Barker, as a personal owner in fact, and not as a nominal and fictitious trustee, had already by deed-poll, the 12th April, 1792, conveyed the land to Broadhead in fee.

On these facts, thus disclosed, the authority of Campbell v. Galbraith, cited by Gibson, C. J., is not applicable.

Mr. Patterson, contra, submitted the case.

Mr. Justice GRIER delivered the opinion of the court.

title: Evans v. Patterson


text: Talk:Evans v. Patterson

title: Talk:Evans v. Patterson


text:
Evans v. Patterson/Opinion of the Court

The bill of exceptions (so called) in this case, is a sort of abstract or index to the history of a case tried in the Western District of Pennsylvania. Protesting against attempts at mystifying the merits of a case by such records, we shall proceed to notice the single error which it is supposed that the court has committed in the charge to the jury.

The case cannot be made intelligible without a brief notice of the very peculiar land law of Pennsylvania. The proprietors of the province, in the beginning, allowed no one man to locate and survey more than three hundred acres. To evade this rule in after times, it was the custom for speculators in land to make application in the names of third persons, and having obtained a warrant to take from them what was called a 'deed-poll,' or brief conveyance of their inchoate equitable claim.

Pennsylvania, until of late years, had no courts of equity. Hence, in an action of ejectment, the plaintiff might recover without showing a legal title. If he had a prior inchoate or equitable title, either as trustee or cestui que trust, he might recover. The courts treated the applicant, or warrantee, as trustee for the party, who paid the purchase-money, or paid even the surveying fees; for the purchase-money, under the location or application system, was not paid at the time, and sometimes never. When the State succeeded to the title of the proprietors, the application system was abandoned, and warrants were granted on payment of the purchase-money for the number of acres for which his warrant called. Hence, where the claimant of the warrant was unable to show his deed-poll, he might recover by showing that he paid the purchase-money; that the warrantee, whose name was used, was therefore trustee for him. And an ejectment might also be maintained in the name of the warrantee, although he had no beneficial interest in the land, and had no knowledge of the institution of the suit. See Campbell v. Galbraith, and also Ross v. Barker, which was decided on the title now in question.

To come to the history of the present case. Daniel Broadhead was the owner of the warrant in the name of William Barker. He had died intestate. The defendant in error had bought up the titles of the different heirs, and found Eli Evans, the father of the plaintiff in error, and others in possession, claiming title as settlers. But as the deed-poll from Barker to Broadhead could not be found, the defendant in error brought his first ejectment in the name of the warrantee, and recovered. The objection was made that Patterson, the defendant in error, could not maintain his suit in such form. But the Supreme Court, in the cases above cited, determined that he could.

Afterwards, finding the same parties or their privies in possession (A. D. 1855), he brought another ejectment in his own name, and having found the lost deed-poll to Broadhead, he was able to deraign his title regularly from the original warrantee, and had another verdict and judgment in his favor.

In the case now before us, Elihu Evans, the plaintiff in error, had succeeded to the claim of his father, Eli Evans. On the trial, the defendant in error had again deraigned his title from Barker, the warrantee, and gave in evidence also his two former recoveries. As he had already shown a title regularly deraigned from the original warrantee, and the defendant Evans had shown no title at all, the two former verdicts were unnecessary, but were conclusive, according to the laws of Pennsylvania, between the same parties and their privies.

The only objection made by Evans was, to the conclusiveness of the two verdicts, because the first suit was in the name of Barker, and, as now appeared by the deed to Broadhead, that Barker had no title. When the recovery was had in his name, it was argued that such 'verdict and judgment should not be counted.' The record showed that at the time the first ejectment was brought, Patterson had bought up the title from Broadhead's heirs; that the suit was carried on by him in the name of the warrantee for his own use. No objection was made to the admission of the first verdict and judgment, because the parties defendant were not the same, or for want of privity between the defendant and the parties defendant in the former action. But it was contended that the first verdict and judgment 'should not be counted against him' for want of privity between the plaintiffs. There was satisfactory evidence that Patterson was the real party in interest, and conducted both suits, and had recovered, in the first suit, in the name of a trustee, and in the second, in his own name, as cestui que trust of the equitable estate-as where one suit was in a real or fictitious lease from John Doe, and the other in the name of Richard Roe. The jury were instructed that if they believed the evidence that Patterson was the real party in both suits, the two verdicts and judgments were conclusive.

But the plaintiff below having deraigned title from the warrantee, and the plaintiff in error having shown no title, the question as to the estoppel was of no importance, as the court were bound to instruct the jury, that without its aid their verdict should be the same.

The plaintiff in error, having failed to show any error in the record, the

JUDGMENT IS AFFIRMED.

title: Evans v. Patterson/Opinion of the Court


text: Talk:Evans v. Patterson/Opinion of the Court


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Hughes v. United States (71 U.S. 232)

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

The United States in 1848 filed an information in the nature of a bill in equity in the court just named, against one Hughes, for the repeal and surrender of their patent for a tract of land issued to him in 1841; tendering back to him the purchase-money. The case was thus:

By the act of Congress of April 12th, 1814, every person who had inhabited and cultivated a tract of land lying in that portion of the State of Louisiana which had composed the Territory of Orleans, or in the Territory of Missouri, in cases where the land was not rightfully claimed by any other person, and who had not removed from the State or Territory, was entitled to the right of pre emption in the purchase of the land, under conditions and regulations prescribed by a previous act, passed with reference to certain settlers in Illinois. The same right was extended by the act to the legal representatives of the original occupant. Under this act one Goodbee, in 1822, applied to the register and receiver of the land office of the district to become a purchaser of a tract supposed to contain about one hundred and sixty acres, which had been occupied and cultivated by one Beedle, in 1813, under whose settlement he claimed. His right to preempt the tract was recognized by the officers, and, the required price being paid, the usual certificate was issued to him. The land at this time was designated as lot number one, under a special system of surveys authorized by the act of March 3d, 1811. It was some years later before the general system of surveys into ranges, townships, and sections, was extended over the country; and when this took place, the legal subdivision embraced about fifteen acres in excess over the one hundred and sixty. To this excess, as part of the original lot, Goodbee's right of pre emption under the regulations of the General Land Office also attached.

At the time he made his entry, Goodbee was in the open and exclusive possession of the premises, and either he or his grantees subsequently continued in such possession, and cultivated the land, and erected valuable and permanent improvements thereon.

In 1823, the President, by proclamation, ordered the sale of the public lands of the district. The proclamation was general in its terms, embracing all the lands, without excepting such as had been previously pre empted or reserved, but the parcels pre empted or reserved were designated by proper entries in the register of the land office. The tract occupied by Goodbee was thus designated, and was not offered at the public sale which took place.

In 1836 Hughes entered this tract at private sale, designating it by section, township, and range,-the proper description under the completed public surveys. The officers of the land office, overlooking, from the difference in its description, the fact that the tract had been previously sold to Goodbee, gave him the usual certificate of purchase and payment, upon which, in April, 1841, a patent was issued by the United States.

To the bill or information filed below, Hughes demurred. The court gave judgment sustaining the demurrer. This judgment having come on appeal here, at December Term, 1850, was reversed, the demurrer overruled, and the patent to Hughes decreed null and void, and ordered to be surrendered. This decree was afterwards, by consent, set aside, and the cause remanded to the Circuit Court, with leave to the defendant to answer, and for further proceedings according to equity. He accordingly did answer; the grounds of defence now set forth being that he had obtained, in the State courts of Louisiana, two several judgments in two distinct suits.

The first was, ejectment brought by him against one Sewall, tenant in possession and claimant of the title under Goodbee, which suit had gone in his favor.

The second one was brought against him by this same Sewall and one Hudson (both claimants under Goodbee), who sought to set aside the patent to Hughes, on the same allegations of fraud, as it was alleged, and the same exhibition of documents, that at their instance were now set forth by the United States, in the bill or information filed in the Circuit Court of the United States.

This second suit was dismissed for want of jurisdiction and absence of proper parties-so far as the petition related to the relief sought by the bill in the present suit-and it was dismissed generally, because it was defective, uncertain, and insufficient in the statement of the cause of action.

In the suit of Hughes v. Sewall, judgment was given in favor of Hughes, on the ground that the court could not, in that action, look behind the patent to inquire into the equities of the parties. The Supreme Court of Louisiana affirmed this judgment on appeal, but granted a stay of execution until the validity of the patent could be judicially ascertained.

The Circuit Court of the United States below was of opinion that no sufficient defence was shown by the judgments set up, as above stated, and that the United States were entitled to the relief prayed for, and it decreed accordingly.

The case came here by appeal, and was submitted by Mr. Stanbery, A. G., and Mr. Ashton, Assistant A. G., for the United States, and by Mr. Carey, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Hughes v. United States (71 U.S. 232)


text: Talk:Hughes v. United States (71 U.S. 232)


text:
Hughes v. United States (71 U.S. 232)/Opinion of the Court

This suit is brought to vacate the patent to Hughes, and compel its surrender for cancellation. It proceeds upon the ground that the patent was issued in violation of the rights of Goodbee, or parties deriving title under him, and that its existence impairs the ability of the government to fulfil its engagements to him.

By the act of April, 1814, the United States had extended to Goodbee the privilege of purchasing the land, and had prescribed the mode of proceeding to make the purchase, and fixed the price to be paid. When this mode was pursued, and the price was paid, a contract was completed between him and the government, which the latter was bound to execute by a transfer of the title. The patent to Hughes, subsequently issued, stood in the way of an efficient and just execution of this contract. Its operation was either to divest the United States of the legal title, or, by clouding the title, to impair the security which would otherwise flow from their conveyance. When this case was here on demurrer, #fn-s-s the patent was considered by the court to be a valid instrument conveying the fee of the United States, and, until annulled, as rendering them incapable of complying with their engagement to Goodbee or his alienees. Whether regarded in that aspect, or as a void instrument, issued without authority, it prim a facie passed the title, and, therefore, it was the plain duty of the United States to seek to vacate and annul the instrument, to the end that their previous engagement might be fulfilled by the transfer of a clear title, the only one intended for the purchaser by the act of Congress.

The power of a court of equity, by its decree to vacate and annul the patent, under the circumstances of this case, is undoubted. Relief, when deeds or other instruments are executed by mistake or inadvertence of agents, as well as upon false suggestions, is a common head of equity jurisdiction.

The patentee cannot complain of the proceeding, for the open, notorious, and exclusive possession of the premises, by the parties claiming under Goodbee, when the patentee made his entry and received the patent, was sufficient to put him upon inquiry as to the interests, legal or equitable, held by them; and if he neglected to make the inquiry, he is not entitled to any greater consideration than if he had made it and ascertained the actual facts of the case.

The judgments recovered by Hughes in the State court of Louisiana-one in an action brought by him against Sewall, and one in an action brought against him by Sewall and Hudson-constituted no bar to this suit. The first case was ejectment against Sewall, who was at the time in the occupation of the land, and judgment passed in Hughes's favor, on the ground that the court could not, in that form of action, go behind the patent and inquire into the equities of the parties. On appeal, the judgment was affirmed by the Supreme Court of the State, but was accompanied with a stay of execution until the validity of the patent should be judicially ascertained.

The second case was a petitory action, brought by Sewall and Hudson, claimants under Goodbee, having for its object the vacation of the patent, the annulment of the above judgment against Sewall, then pending on appeal in the Supreme Court of the State, the recovery of damages, and the obtaining of an injunction. No judgment was passed upon the merits of any matter alleged. The petition was dismissed for want of jurisdiction and the absence of proper parties, so far as it related to the special relief sought by this suit-the vacation and surrender of the patent-and it was dismissed generally on the ground that it was 'defective, uncertain, and insufficient in the statement of the cause of action.'

It requires no argument to show that judgments like these are no bar to the present suit. In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined on its merits. If the first suit was dismissed for defect of pleadings, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit. #fn-s-s-s

JUDGMENT AFFIRMED.

[See, as to the second point of the syllabus, United States v. Stone, 2 Wallace, 525.-REP.]


text: Talk:Hughes v. United States (71 U.S. 232)/Opinion of the Court


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Mitchell v. St. Maxent's Lessee

ERROR to the District Court of the Northern District of Florida. The case was thus:

On a proceeding on foreign attachment, judgment had been obtained in Florida, November 12th, 1825, against St. Maxent, a non-resident, but who owned certain lands in Escambia County there. St. Maxent died on the 25th day of November, 1825. On the 26th day of November a fieri facias was issued. The sheriff returned it December 1st, 1825, 'levied on the land' in question. Then followed a venditioni exponas, but all proceedings were stayed by injunction. Then, on the 21st of December, 1826, a writ of fieri facias against the said St. Maxent was issued, directed to the marshal of the district, and under this the land was sold and conveyed to J. K. Mitchell, or to persons from whom he derived title. The heir of St. Maxent having brought ejectment against Mitchell, the court, on the above state of facts, gave judgment for the heir.

In this court several questions were raised, among them, whether the sale to Mitchell, under the circumstances above stated, was valid.

Mr. Reverdy Johnson, for Mitchell, plaintiff in error:

At common law, if the execution be tested in the lifetime, it may be taken out and executed after death, for the execution related to the judgment, and might be tested immediately after it was rendered.

The doctrine of relation is carried still further; for if defendant die in vacation, judgment might still be entered after his death, and execution issued as of the preceding term.

This rule was limited by the statute of 29 Car. II, to the parties themselves, and bon a fide purchasers were protected from its operation.

In the eye of the law, therefore, it is the judgment which conclusively settles the rights of the parties on the day of its rendition, and a fiction is resorted to, to prevent a subsequent disability from interfering with its enforcement.

To the like effect is the act of 27th June, 1823, of the Legislative Council, Territory of Florida: 'The service of attachment on lands, &c., shall bind the property attached, and a judgment obtained therein shall have relation to the time of the service of attachment, and the plaintiff shall have priority of payment out of the property attached, except as to valid subsisting liens,' &c.

In this case the plaintiff in attachment had a right to an execution, tested the day after the judgment, and it is clear that if it had been so tested, the death could not have vitiated it.

The parties, therefore, have nothing to complain of, and if this irregularity could be taken advantage of at all, as against a bon a fide purchaser at a judicial sale, it must be by a direct proceeding, and not collaterally.

Voorhees v. Jackson, is in many respects parallel to this. The plaintiff in ejectment relied upon his purchase under an attachment suit, whcih was resisted on the ground that none of the prerequisites required by stature to vest the jurisdiction had been complied with, and defendant had never appeared. The court held, that while the judgment remained in force it was itself evidence of the right to the thing adjudged, and that errors, however apparent, can only be examined by the appellate power. That it would be a well-merited reproach to jurisprudence if an innocent purchaser, who had paid his money on the faith of an order of the court, should not have the same protection under an erroneous proceeding as the party who derived the benefit accruing from it. The purchaser under judicial proceedings pays the plaintiff his demand on the property sold; to the extent of this, he discharges the defendant from his adjudged obligation.

The land lying in Florida was under its sovereignty and jurisdiction, without regard to the citizenship of the owner, and the jurisdiction of its courts was ample.

The proceeding was by attachment, and by its levy the plaintiff acquired a right in the specific property consummated by the judgment. It thus became sequestered in the hands of the law, and was held for his benefit as fully as if it had been levied on by a ''fi. fa. The levy of a writ, or a levy of a fi. fa.'', stand under the same sanctions. Both are solemn judicial orders, executed by the officer of the law, under his official responsibilities; and if this be true, the case of Doe v. Taylor is conclusive of the question. On the objection to the title in ejectment, that the venditioni exponas under which the land was sold was tested subsequent to the death, the court held, that as the judgment operated as a lien on the land, and a prior execution attached 'specifically upon the subject of its operation,' that 'the rights of the parties to the subject-matter were determined, and all controversy closed. The law had taken the subject entirely to itself, to be applied by its own authority and its own rules.'

Here the party has his levy and a judgment, which the court in this case regarded as conclusive, and closing all controversy. He may have issued a mere 'venditioni;' all he wanted was an order of sale. That he sued out a ''fi. fa.'', instead of this, cannot vary the rights of the parties, which were fixed by the levy and judgment.

An attachment is a proceeding in rem. Notice is served upon the thing itself. This is necessarily constructive notice to all who have any interest, or can assert any title. Every such person is considered as a party to the proceeding, and the suit does not abate by death. As soon as such process is commenced, and the arrest of the property is made, it is in the custody of the law. For it is a general rule in proceeding in rem, that the custody of the thing in controversy belongs to the court in which the suit is pending.

The judgment of a competent court, proceeding in rem, is conclusive with respect to the thing itself, and operates as an absolute change of property; and no court of co-ordinate jurisdiction can examine into it. If an erroneous judgment binds the property on which it acts, it will not bind the less because its error is apparent. Of this error advantage can only be taken in a court capable of correcting it.

In Thompson v. Tolmie, the language of the court was, 'When there is a fair sale, and the decree executed by a conveyance, the purchaser will not be bound to look beyond the decree, if the facts necessary to give jurisdiction appear upon the record.'

Upon these settled principles, this court held, in the case of Whiting v. Bank of the United States, that the death of the mortgagor, after the decree of foreclosure and sale, but before the sale was made, constituted no ground for a bill of review.

The case now before the court appeals more strongly to its sense of justice. There, the application was to a court of equity, which, in affording relief, always compels the party to do equity. Here, there is an action at common law, where, if the party succeed, he recovers the land while retaining the purchase-money for which it was sold.

Messrs. Carlisle and McPherson, contra:

'That no individual or public officer can sell and convey a good title to the land of another, unless authorized to do so by express law, is one of those self-evident propositions,' said Marshall, C. J., in Thatcher v. Powell, 'to which the mind assents without hesitation, and that the person invested with such a power must pursue with precision the course prescribed by law or his act is invalid, is a principle which has been repeatedly recognized in this court.' St. Maxent, the defendant in the attachment, having died on the 25th of November, the writ of fieri facias, issued and tested on the 21st of December following, without any scire facias against his heirs or terre tenants, was necessarily void. This being a principle of the common law, was introduced into Florida by the act of the Legislative Council, passed June 29, 1823, § 1.

Mr. Justice DAVIS delivered the opinion of the court.

title: Mitchell v. St. Maxent's Lessee


text: Talk:Mitchell v. St. Maxent's Lessee

title: Talk:Mitchell v. St. Maxent's Lessee


text:
Mitchell v. St. Maxent's Lessee/Opinion of the Court

The solution of one question presented by the record is decisive of this case. Does the writ of fieri facias, tested and issued after the death of the party against whom the judgment is rendered, confer power on the ministerial officer to execute it? That St. Maxent was the owner of the lands in controversy at the time of his death, and the plaintiffs below are his heirs-at-law, is admitted; but it is claimed that the title was divested by certain proceedings in attachment against him in the courts of Florida, which ripened into a judgment while he was alive. It is a well-settled principle of law, which has often received the sanction of this court, that the decree or judgment of a court, having jurisdiction, is binding until reversed, and cannot be collaterally attacked. But the defect in this case occurs after the judgment, and is fatal to Mitchell's title, for purchasers at a judicial sale are not protected, if the execution on which the sale was made was void. Void process confers no right on the officer to sell, and all acts done under it are absolute nullities.

The writ of fieri facias on which Mitchell rests his title, was tested after the death of St. Maxent; and, according to a familiar rule of the common law, it was therefore void. The death of a defendant, before the test of an execution, compels the plaintiff to sue out a writ of scire facias, 'for the alteration of the person altereth the process.' The heirs, devisees, and terre-tenants of the deceased must have notice before an execution can regularly issue, for they are the parties in interest, and should have an opportunity to interpose a defence, if any they have, to the enforcement of the judgment. Erwin's Lessee v. Dundas is an authority in point, and it is unnecessary to refer to any other.

But it is contended that the doctrines of that case have been overturned by the decision of Taylor v. Doe, reported in 13th Howard. This is an erroneous view of that decision. The court held, in that case, that it is not necessary to revive a judgment by scire facias, where an execution regularly issued during the life of the defendant had been levied on land, but that the officer who had made the levy could proceed to sell, under a ''venditioni exponas. That writ'' was regarded as a completion of the previous execution, by which the property had been appropriated, and not as an original or independent proceeding.

It was in the power of the legislature of Florida to have changed the rule on the subject of the test of process; but, having failed to do it, and having adopted the common law of England, the question in issue must be decided by the rules of the common law.

But it is insisted that the rules of the common law only attach to suits prosecuted in the ordinary way, and do not apply where the proceedings are commenced by seizing property under a writ of attachment. This is a novel view, for the law of attachment, being in derogation of the common law, courts are not inclined to extend its provisions beyond the requirements of the statute authorizing it. In Florida the service of the writ of attachment binds the property, and retains it in custody of the law, for the benefit of the attaching creditor, if he obtains a judgment and execution, and the property is to be disposed of as in other cases of property levied upon and taken in execution.

As an execution is required, and the law is silent about the manner of its issue, it follows that it is to be tested and issued as writs of fieri facias are on judgments obtained through the usual methods of the common law.

AFFIRMED WITH COSTS.


text: Talk:Mitchell v. St. Maxent's Lessee/Opinion of the Court