text:
Bedford v. Burton/Opinion of the Court

This case arises on a bill in equity filed by G. W. Burton, the appellee, alleging that in February, 1872, he sold and conveyed to America Bedford, one of the appellants, wife of John R. Bedford, the other appellant, in fee, for her separate use, free from the control of her husband, a certain tract of land in Tennessee, for the consideration of $7,500, one-third of which was paid down, and the balance secured by the promissory notes of Mrs. Bedford, drawing interest at the rate of 10 per cent. per annum. The deed of conveyance specified these notes, and reserved a lien on the land for the payment thereof. The notes were paid in part but not in full, and the bill was filed for the foreclosure and sale of the land to raise the balance due. The defendants, Bedford and wife, filed a demurrer, which was overruled, and thereupon they filed an answer and cross-bill, admitting the facts stated in the bill, and that they took and still had possession under the purchase; and the cross-bill alleged that the defendants had made permanent improvements on the land to the value of $500; and claimed that the sale was void because of the coverture of the grantee, and prayed that it might be declared void, and that Burton should be decreed to refund the amount paid on the purchase, together with the value of the improvements, with interest, after deducting the value of the rents while the property was occupied by the defendants. Burton demurred to the cross-bill, and on final hearing the court sustained this demurrer, and made a decree for the foreclosure and sale of the property as prayed in the original bill, but declared that the complainant was not entitled to a personal judgment against America Bedford. From this decree the defendants have appealed.

The decree is sought to be reversed on two grounds: First, because the sale to America Bedford was void by reason of her coverture, and ought to be declared void, and the money paid by her decreed to be refunded; secondly, because the decree gives 10 per cent. interest on the notes,-a rate of interest which is not allowed by the law unless there is a special contract therefor, the legal rate being only 6 per cent.; and a feme covert is incapable of making such special contract.

The authorities are numerous and conclusive to the effect that a feme covert may, with her husband's consent, take land by purchase, and that a security given thereon by her for the purchase money will be enforced. It was so held by this court in the case of Chilton v. Braiden's Administratrix, 2 Black, 458, where a lien for the unpaid purchase money of land sold to a married woman was enforced by a decree for the sale of the land. Mr. Justice GRIER, delivering the opinion of the court, said: 'When one person has got the estate of another, he ought not, in conscience, to be allowed to keep it without paying the consideration. It is on this principle that courts of equity proceed as between vendor and vendee. The purchase money is treated as a lien on the land sold, where the vendor has taken no separate security.' In a well-considered case decided by the chancellor of New Jersey, (Armstrong v. Ross, 5 C. E. Green, 109,) where property was sold and conveyed to a married woman, and she and her husband executed a mortgage for the purchase money, but the execution by the wife was void because she was not privately examined, it was nevertheless held that the vendor had a lien for the purchase money, and also that the mortgage, being given for the benefit of her separate estate, although void as a mortgage, might be decreed a lien on such separate estate. In the case of Willingham v. Leake, 7 Baxter, 453, it was held by the supreme court of Tennessee that where land was sold and a title bond given to a married woman, who gave her notes for a part of the purchase money, the vendor's lien could be enforced, although the notes might be void as against the vendee personally.

In the subsequent case of Jackson v. Rutledge, 3 B. J. Lea, 626, decided as late as December term, 1879, the same court held that if a married woman buy land, partly for cash and partly on time, and accept a deed of conveyance to her separate use, a lien being retained for the unpaid installments, she cannot have the money which she has paid refunded merely because of her coverture, and the lien reserved for the payment of the purchase money may be enforced in equity. This case was nearly parallel to the present. A deed was executed to the married woman for her sole and separate use, retaining a lien on the land for the payment of the notes given for the purchase money, and the grantee and her husband went into possession. A cross-bill was filed, as in the present case, seeking to set aside the contract as void, and for a return of the money paid, and the value of permanent improvements. A decree for the sale of the land to satisfy the unpaid purchase money was made by the chancellor, but no personal decree against the parties. This decree was affirmed by the supreme court in an elaborate judgment, in which the authorities on the subject are fully reviewed. The court concludes the examination by saying, 'If the conveyance be to the sole and separate use of the married woman, there seems to be no difficulty in treating a debt contracted in the purchase as binding on the property, although not personally obligatory on the feme, because where she takes possession under the conveyance the debt is contracted for the benefit of her separate estate.' Again: 'Her incapacity to execute valid notes, if we treat the purchase notes as void on that ground, and because not expressly made obligatory on her separate estate, would not affect the vendor's right to subject the land to the satisfaction of the unpaid purchase money by virtue of the vendor's equity and of the lien reserved. By the delivery and acceptance of the deed of conveyance, the contract was executed and the title vested in her. She takes the title subject to the charge created by the terms of the deed. Trezenant v. Bettis, 1 Leg. Rep. 48; Lee v. Newman, 1 Memph. L. J. 139; Eskridge v. Eskridge, 51 Miss. 522. Under such circumstances the married woman is not entitled to have the cash payment refunded. In making the payment, as we have seen, she exercised a right which the law concedes. * *  * All she can claim is exemption from personal liability.

These cases decided by the highest court of Tennessee, where the land lies, and where the transaction took place, are of stringent authority, and they accord with our own views of the law.

It should be added that, by the statute law of Tennessee, 'married women over the age of 21 years, owning the fee or other legal or equitable interest or estate in real estate, shall have the same powers of disposition, by will, deed, or otherwise, as are possessed by femes sole, or unmarried women.' Code of Tennessee, § 2486. This provision would seem to be sufficient to confer upon a married woman, purchasing land to her own use, power to execute a mortgage upon the land to secure the purchase money, binding at least upon the land, if not creating any personal obligation against her. But the present case is a stronger one than that of a mortgage. The deed by which she holds the property is qualified by expressly retaining a lien for the payment of the purchase money. The lien goes with the estate and affects it in a manner similar to a condition. It is, indeed, in the nature of a condition impressed upon the estate itself. It makes the deed say in effect, 'I convey to you the land, but only upon the condition that you pay the notes given for purchase money; if they are not paid I am to hold it as security.' This peculiar character of the lien seems to be a good answer to the second ground for reversal, the reservation of interest at the rate of 10 per cent. per annum on the notes. Ten per cent. is not an unlawful rate of interest in Tennessee. It may be reserved if the parties so agree. If they make no agreement the law gives six. The agreement to pay 10 per cent. in this case may not be binding on the wife personally, but it is not binding on the same ground that the principal is not binding upon her personally. Nevertheless, as it is a rate that may be lawfully stipulated for, if it is stipulated for, and is made part of the consideration for which a lien is retained on the land, it is as much secured by the lien as the principal is.

We see no error in the decree, and it is therefore affirmed.

title: Bedford v. Burton/Opinion of the Court


text: Talk:Bedford v. Burton/Opinion of the Court

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


text:
Ames v. Quimby (106 U.S. 342)

M. J. Smiley, for plaintiffs in error.

L. D. Norris, for defendant in error.

BLATCHFORD, J.

title: Ames v. Quimby (106 U.S. 342)


text: Talk:Ames v. Quimby (106 U.S. 342)

title: Talk:Ames v. Quimby (106 U.S. 342)


text:
Ames v. Quimby (106 U.S. 342)/Opinion of the Court

The defendant in error brought this suit against the plaintiffs in error in July, 1872, in a court of the state of Michigan. It was removed into the circuit court for the western district of Michigan in August, 1872, before the declaration was filed. The action is assumpsit. The declaration claims $25,000 for goods sold and delivered, and a like amount for money had and received, and $15,000 for interest. The plea was non-assumpsit, with a notice of setoff off to the amount of $25,000, and a notice that the goods alleged to have been furnished by the plaintiff were furnished under a special contract that they were to be of first-class quality, and that they were not. A further notice under the plea alleged that the goods furnished were furnished under three several contracts, made January 2, 1865, January 27, 1866, and December 25, 1866, for the furnishing by the plaintiff to the defendants of shovel handles; and that the plaintiff did not fulfill the contracts as to the quality of the handles. In April, 1875, the suit was tried by the court without a jury. On the findings of the court a judgment was rendered for the plaintiff for $7,825.62. The defendants brought the case to this court by a writ of error, and the judgment was reversed, and the cause was remanded to the circuit court with directions to award a new trial. The decision of this court is reported in 96 U.S. 324. The only question there presented and determined was as to the proper construction of a written contract made between the parties January 2, 1865, in a particular not now important. The construction put by the court below upon that contract was held to have been erroneous. The case was tried a second time before a jury in April, 1879. The jury found a verdict for the plaintiff for $12,816.53, and a judgment thereon was rendered against the defendants. To review and reverse this judgment the present writ of error has been brought.

The plaintiff, to maintain the issues on his part, read in evidence a stipulation, signed by the respective attorneys, whereby the defendants admitted the sale and delivery of shovel handles shipped to the defendant's firm and received by it at North Easton, Massachusetts, at the dates and in the quantities therein set forth, being, in 1865, 15,607 dozen, in 6 items, in May and July; in 1866, 10,188 dozen, in 13 items, in June, July, August, and September, and 2,852 dozen, in 3 items, in November and December, up to the 20th; in 1867, 33,814 dozen, in 37 items, in every month but January, November, and December; and in 1868, 11,113 dozen, in 11 items, in April, May, July, September, and October. The stipulation stated that the dates given were the dates of the shipment by rail from Michigan and Canada; that the dates of the receipt by the defendants at North Easton were 15 days later than the several dates of shipment; and that the plaintiff admitted payments on account of said handles, at the dates and in the sums specified thereafter in the stipulation, the payments amounting to $83,153.48. The stipulation concluded with this clause: 'The question of the quality of the handles delivered as aforesaid, and all other questions of fact not stipulated, are left open to the jury and for other and further evidence.' The plaintiff was then examined as a witness on his own behalf. On his cross-examination he testified that there was a contract signed by the parties for 1865 for handles. The contract being shown to him, he 'identified' it, as the bill of exceptions states, and it was read in evidence by the defendants. It bore the date of January 2, 1865. The plaintiff rested his case, and the defendants introduced testimony and rested their defense. One of the defendants testified that he made the contract of 1865, and it was made in the evening, and he stated who were present. Then the plaintiff, being recalled, testified, without objection, that the contract dated January 2, 1865, was not signed on that day-on the evening of that day. He was then asked, 'When was that contract signed?' The defendants objected to the question on the ground that 'it was irrelevant and immaterial, and there had been no previous denial by affidavit or otherwise of the execution of the contract, and it was incompetent.' The plaintiff replied that the fact of the execution of the contract was not denied, 'but he proposes to show the time of the execution of the contract was on Sunday, which avoids the contract.' The court overruled the objection, and the defendants excepted. The witness then answered that the contract was signed and delivered on Sunday, January 1, 1865, stating the hour and the place, and giving particulars as to who were present and what was done. The defendants then gave testimony by three witnesses to contradict the plaintiff. The defendants now contend that the court erred in permitting the plaintiff to testify that the contract was executed on Sunday, in view of the then situation of the case and what had transpired on the trial; that he had given evidence as to its execution and allowed it to be put in evidence without suggesting any infirmity in it; and that the defendants would necessarily be surprised by such testimony. The defendants also claim that, under a rule of court governing the pleadings and practice in Michigan, where a defendant insists on a claim by way of set-off, founded on a written instrument, he cannot 'be put to the proof of the execution of the instrument or the handwriting' of the opposite party, unless an affidavit is filed 'denying the same;' that the failure of the plaintiff to file such affidavit was an admission of the execution of the instrument in manner and form as set up, and as being of the date of January 2d; and that the testimony went to show that the contract set up was not executed.

The only ground alleged at the trial for the incompetency of the evidence was that the execution of the contract had not been denied by affidavit. Assuming that the rule of court referred to can be taken notice of by this court, it not being set forth in the record, and there being no statement in the record that the affidavit referred to was required by any rule of court, and assuming that it is to be inferred that there was not any such affidavit, it not being set forth in the bill of exceptions that there was not, we are of opinion that the rule cited refers only to proof of the genuineness of a seal or of handwriting, and does not refer to any matter which goes to show the invalidity otherwise of an instrument. Such a provision in a rule of court or in a statute is not uncommon, and, whenever it is expressed in language such as that now presented, it has never, that we are aware, received any other construction.

In the case of Pegg v. Bidleman, 5 Mich. 26, Pegg and another were sued on a note signed 'S. Pegg & Co.' They appeared and pleaded the general issue, but did not deny on oath the execution of the note. Judgment was given against them without proof that they 'composed the firm of S. Pegg & Co. and executed the note.' It was held that, as the defendants had appeared and the declaration was against them as individuals and did not allege they were partners, the question was simply whether they executed the note by the name subscribed to it; and that they must be taken to have admitted that the note was executed by the parties declared against. The decision was that the admission covered the fact that the signature was that of the parties sued. If the parties be sued as partners, the admission that the signature is their signature as partners necessarily admits that they were partners. This was the principle applied in Thomas v. Clark, 2 McLean, 194, and Pratt v. Willard, 6 McLean, 27.

In Curran v. Rogers, 35 Mich. 222, a written contract was signed in the name of a firm, the two partners in which were sued on the contract. The general issue was pleaded without any affidavit. One of the firm sought to prove that the other, who had signed the firm name, had no authority to do so. It was held that, as the declaration set out the contract verbatim, and alleged it to have been jointly executed, its execution was admitted as to both defendants. There is nothing in these decisions which goes to show that the plaintiff, notwithstanding anything in the language of the rule of court invoked, could not prove that the contract was in fact signed at a date different from that appearing on its face. The evidence did not go to show that it was not dated January 2d when it was signed, but went to show that, though dated January 2d, it was signed on January 1st. It admitted the execution of the contract, but tended to avoid it by proving a fact in regard to it which did not appear on its face, and which went to the merits. This was competent evidence, and was not irrelevant or immaterial. All question as to surprise, or as to re-opening the case, or as to the order of proof, were matters of discretion, not reviewable here.

Another written contract was shown to the plaintiff, and 'identified by him,' and put in evidence by the defendants, dated December 25, 1866. It provided for advances by the defendants to the plaintiff, and for their acceptance of his drafts, and for his payment to them of '2 1/2 per cent. commission for accepting his drafts.' On the language of the contract so put in evidence, a question was raised as to whether the commission was to be paid on all drafts accepted, or only on those which were in excess of shipments of handles. On his re-direct examination, when first called, the plaintiff stated, without objection, that he had had a duplicate of the contract, which was destroyed by fire; that the copy so introduced was not an exact copy of the one he had, in its reference to the 2 1/2 per cent. commission; that the one he had was made by one of the defendants; that drafts for handles shipped he was to pay no commissions on; and that those for advances before shipments he was to pay commissions on. He was then asked, 'What change was made in the duplicate which you had?' This question was objected to by the defendants on the ground that it was incompetent and irrelevant, 'and, there having been no denial of the execution of this contract as pleaded and given notice of by the defendants, it is incompetent to vary it by parol.' The objection was overruled, and the defendants excepted. The witness answered that the word 'advanced' was inserted after the word 'drafts,' so as to read '2 1/2 per cent. commission for accepting his drafts advanced.' The defendants contend that the evidence went to a denial of the execution of the contract, and was, therefore, incompetent under the rule of court before referred to. The remarks before made apply to this point also. The evidence went to show what the actual written contract between the parties was. It did not go to show that the defendants' copy was not actually signed by the parties. The one copy was as competent evidence of the real contract as the other was. What the plaintiff had testified to in regard to the contents of his original of the contract was admitted without objection and permitted to stand, and no motion was made to strike it out. The evidence sought by the question objected to, only went to explain the previous evidence.

A question having arisen as to the quality of the handles furnished to the defendants by the plaintiff in 1867 and 1868, a witness for the plaintiff was asked as to the quality of the handles furnished by the plaintiff to the Old Colony Company in 1867 and 1868. The defendants objected to the question on the ground that it was irrelevant and incompetent, and not admissible to show the quality of the handles furnished to the defendants. The plaintiff's counsel then stated that he proposed to show, in connection with the offered testimony, that the handles were of the same general quality as those furnished to the defendants. Thereupon the objection was overruled and the defendants excepted, and the witness answered that the quality of the handles sent to the Old Colony Company in 1867 and 1868 was good. Evidence had been given for the defendants that the quality of the handles furnished by the plaintiff to the defendants in 1867 and 1868 was inferior to the quality of those he had furnished in previous years. The plaintiff subsequently gave evidence tending to show that the handles furnished by him to the defendants in 1867 and 1868, and the handles furnished by him to the Old Colony Company in 1867 and 1868, were of the same kind and quality. After this evidence was given there was no motion to strike out the evidence so objected to, or to rule upon its admissibility. The evidence objected to was admissible.

Alleged errors in the charge to the jury, and in refusals to charge as requested, are urged by the defendants. As to the request to charge respecting the right of the defendants, under the contract of January 27, 1866, to charge the plaintiff back with the full value of such handles as broke in the process of bending, it is sufficient to say that the record discloses that there was a settlement between the parties respecting the 172 dozen handles charged back in 1866 under that contract, and that there was really no question for the jury as to those handles. If the charge given, and the refusal to charge as requested, had the effect to withdraw from the jury the consideration of the 172 dozen, it only effected the result required by the settlement, and worked no injury to the defendants.

In regard to the refusal to charge that the plaintiff could recover $1.37 1/2 per dozen for only such handles delivered between October 8, 1866, and April 20, 1867, as he had carried out at that price in his bill of particulars, and to the charge to the contrary, it is sufficient to say that the bill of particulars is not in the record, and there is no statement in the bill of exceptions as to its contents; and that when, in the course of the evidence, the claim was made by the plaintiff for $1.37 1/2 per dozen for the handles delivered between those dates, the defendants objected that there were three items in April, 1867, carried out in the bill of particulars at $1.25 per dozen, and the plaintiff then and there claimed that the bill of particulars contained a mistake in that respect. The charge of the court was that while the plaintiff could not recover for any more handles than his bill of particulars set forth, he was not bound by a mistake in carrying out the rate or price, but could show what he was actually to have. We see no error in this, under the circumstances.

The request made to charge as to the operations of 1868 was granted, and the instruction given is not open to the objection that the price for 1868 was fixed by the court and was not left to the jury to determine.

Although this court reversed the first judgment, and remanded the cause for a new trial, and a new trial has been had, with a new judgment, the plaintiffs in error now urge, without having raised the point before, that this court, instead of having awarded a new trial, should have rendered a judgment for the defendants below on the findings made by the circuit court at the first trial, and that it should now do so. The question is not open for this court to review on this writ of error the judgment it rendered on the former writ of error. That judgment has been carried into effect, and the parties who procured it have enjoyed the benefit of it in the new trial they have had.

The judgment of the circuit court is affirmed.


text: Talk:Ames v. Quimby (106 U.S. 342)/Opinion of the Court


text:
St. Clair v. Cox

C. J. Walker, for plaintiff in error.

Don M. Dickinson and Levi T. Griffin, for defendant in error.

FIELD, J.

title: St. Clair v. Cox


text: Talk:St. Clair v. Cox

title: Talk:St. Clair v. Cox


text:
St. Clair v. Cox/Opinion of the Court

This action was brought by the plaintiff in the court below to recover the amount due on two promissory notes of the defendants, each for the sum of $2,500, bearing date on the second of August, 1877, and payable five months after date, to the order of the Winthrop Mining Company, at the German National Bank, in Chicago, with interest at the rate of 7 per cent. per annum. To the action the defendants set up various defenses, and, among others, substantially these: That the consideration of the notes had failed; that they were given with two others of like tenor and amount to the Winthrop Mining Company, a corporation created under the laws of Illinois, in part payment for ore and other property sold to the defendants upon a representation as to its quantity, which proved to be incorrect; that only a portion of the quantity sold was ever delivered, and that the value of the deficiency exceeded the amount of the notes in suit; that at the commencement of the action, and before the transfer of the notes to the plaintiff, the Winthrop Mining Company was indebted to the defendants in a large sum, viz., $10,000, upon a judgment recovered by them in the circuit court of Marquette county, in the state of Michigan, and that the notes were transferred to him after their maturity and dishonor, and after he had notice of the defenses to them. On the trial, evidence was given by the defendants tending to show that the plaintiff was not a bona fide holder of the notes for value. A certified copy of that judgment was also produced by them and offered in evidence, but on his objection that it had not been shown that the court had obtained jurisdiction of the parties, it was excluded, and to the exclusion an exception was taken. The jury found for him for the full amount claimed, and judgment having been entered thereon, the defendants brought the case here for review. The ruling of the court below in excluding the record constitutes the only error assigned.

The judgment of the circuit court in Michigan was rendered in an action commenced by attachment. If the plaintiffs in that action were, at its commencement, residents of the state, of which some doubt is expressed by counsel, the jurisdiction of the court, under the writ, to dispose of the property attached cannot be doubted, so far as was necessary to satisfy their demand. No question was raised as to the validity of the judgment to that extent. The objection to it was as to evidence that the amount rendered was an existing obligation or debt against the company. If the court had not acquired jurisdiction over the company, the judgment established nothing as to its liability, beyond the amount which the proceeds of the property discharged. There was no appearance of the company in the action, and judgment against it was rendered for $6,450 by default. The officer, to whom the writ of attachment was issued, returned that, by virtue of it, he had seized and attached certain specified personal property of the defendant, and had also served a copy of the writ, with a copy of the inventory of the property attached, on the defendant, 'by delivering the same to Henry J. Colwell, Esq., agent of the said Winthrop Mining Company, personally, in said county.'

The laws of Michigan provide for attaching property of absconding, fraudulent, and non-resident debtors and of foreign corporations. They require that the writ issued to the sheriff, or other officer by whom it is to be served, shall direct him to attach the property of the defendant, and to summon him if he be found within the county, and also to serve on him a copy of the attachment and of the inventory of the property attached. They also declare that where a copy of the writ of attachment has been personally served on the defendant the same proceedings may be had thereon in the suit in all respects as upon the return of an original writ of summons personally served where suit is commenced by such summons. 2 Comp. Laws 1871, §§ 6397, 6413. They also provide, in the chapter regulating proceedings by and against corporations, that 'suits against corporations may be commenced by original writ of summons, or by declaration, in the same manner that personal actions may be commenced against individuals, and such writ, or a copy of such declaration, in any suit against a corporation, may be served on the presiding officer, the cashier, the secretary, or the treasurer thereof; or, if there be no such officer, or none can be found, such service may be made on such other officer or member of such corporation, or in such other manner as the court in which such suit is brought may direct;' and that 'in suits commenced by attachment in favor of a resident of this state against any corporation created by or under the laws of any other state, government, or country, if a copy of such attachment, and of the inventory of property attached, shall have been personally served on any officer, member, clerk, or agent of such corporation within this state, the same proceedings shall be thereupon had, and with like effect, as in case of an attachment against a natural person, which shall have been returned served in like manner upon the defendant.' 2 Comp. Laws 1871, §§ 6544, 6550.

The courts of the United States only regard judgments of the state courts establishing personal demands as having validity or as importing verity where they have been rendered upon personal citation of the party, or, what is the same thing, of those empowered to receive process for him, or upon his voluntary appearance.

In Pennoyer v. Neff we had occasion to consider at length the manner in which the state courts can acquire jurisdiction to render a personal judgment against non-residents which would be received as evidence in the federal courts; and we held that personal service of citation on the party or his voluntary appearance was, with some exceptions, essential to the jurisdiction of the court. The exceptions related to those cases where proceedings are taken in a state to determine the status of one of its citizens towards a non-resident, or where a party has agreed to accept a notification to others or service on them as citation to himself. 95 U.S. 714. The doctrine of that case applies, in all its force, to personal judgments of state courts against foreign corporations. The courts rendering them must have acquired jurisdiction over the party by personal service or voluntary appearance, whether the party be a corporation or a natural person. There is only this difference: A corporation, being an artificial being, can act only through agents, and only through them can be reached, and process must, therefore, be served upon them. In the state where a corporation is formed it is not difficult to ascertain who are authorized to represent and act for it. Its charter or the statutes of the state will indicate in whose hands the control and management of its affairs are placed. Directors are readily found, as also the officers appointed by them to manage its business. But the moment the boundary of the state is passed difficulties arise; it is not so easy to determine who represent the corporation there and under what circumstances service on them will bind it. Formerly it was held that a foreign corporation could not be sued in an action for the recovery of a personal demand outside of the state by which it was chartered. The principle that a corporation must dwell in the place of its creation, and cannot, as said by Chief Justice TANEY, migrate to another sovereignty, coupled with the doctrine that an officer of the corporation does not carry his functions with him when he leaves his state, prevented the maintenance of personal actions against it. There was no mode of compelling its appearance in the foreign jurisdiction. Legal proceedings there against it were, therefore, necessarily confined to the disposition of such property belonging to it as could be there found; and to authorize them legislation was necessary.

In McQueen v. Middleton Manuf'g Co., decided in 1819, the supreme court of New York, in considering the question whether the law of that state authorized an attachment against the property of a foreign corporation, expressed the opinion that a foreign corporation could not be sued in the state, and gave as a reason that the process must be served on the head or principal officer within the jurisdiction of the sovereignty where the artificial body existed; observing that if the president of a bank went to New York from another state he would not represent the corporation these; and that 'his functions and his character would not accompany him when he moved beyond the jurisdiction of the government under whose laws he derived this character.' 16 John. 6. The opinion thus expressed was not, perhaps, necessary to the decision of the case, but nevertheless it has been accepted as correctly stating the law. It was cited with approval by the supreme court of Massachusetts, in 1834, in Peckham v. North Parish in Haverhill, the court adding that all foreign corporations were without the jurisdiction of the process of the courts of the commonwealth. 16 Pick. 286. Similar expressions of opinion are found in numerous decisions, accompanied sometimes with suggestions that the doctrine might be otherwise if the foreign corporation sent its officer to reside in the state and transact business there on its account. Libbey v. Hodgdon, 9 N. H. 397; Moulin v. ''Ins. Co.'' 4 Zab. 223.

This doctrine of the exemption of a corporation from suit in a state other than that of its creation, was the cause of much inconvenience and often of manifest injustice. The great increase in the number of corporations of late years, and the immense extent of their business, only made this inconvenience and injustice more frequent and marked. Corporations now enter into all the industries of the country. The business of banking, mining, manufacturing, transportation, and insurance is almost entirely carried on by them, and a large portion of the wealth of the country is in their hands. Incorporated under the laws of one state, they carry on the most extensive operations in other states. To meet and obviate this inconvenience and injustice, the legislatures of several states interposed and provided for service of process on officers and agents of foreign corporations doing business therein. While the theoretical and legal view, that the domicile of a corporation is only in the state where it is created, was admitted, it was perceived that when a foreign corporation sent its officers and agents into other states and opened offices, and carried on its business there, it was, in effect, as much represented by them there as in the state of its creation. As it was protected by the laws of those states, allowed to carry on its business within their borders, and to sue in their courts, it seemed only right that it should be held responsible in those courts to obligations and liabilities there incurred. All that there is in the legal residence of a corporation in the state of its creation consists in the fact that by its laws the corporators are associated together and allowed to exercise as a body certain functions, with a right of succession in its members. Its officers and agents constitute all that is visible of its existence; and they may be authorized to act for it without as well as within the state. There would seem, therefore, to be no sound reason why, to the extent of their agency, they should not be equally deemed to represent it in the states for which they are respectively appointed when it is called to legal responsibility for their transactions. The case is unlike that of suits against individuals. They can act by themselves, and upon them process can be directly served, but a corporation can only act and be reached through agents. Serving process on its agents in other states, for matters within the sphere of their agency, is, in effect, serving process on it as much so as if such agents resided in the state where it was created.

A corporation of one state cannot do business in another state without the latter's consent, express or implied, and that consent may be accompanied with such conditions as it may think proper to impose. As said by this court in ''Lafayette Ins. Co. v. French'', 'these conditions must be deemed valid and effectual by other states and by this court, provided they are not repugnant to the constitution or laws of the United States or inconsistent with those rules of public law which secure the jurisdiction and authority of each state from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defense.' 18 How. 407; Paul v. Virginia, 8 Wall. 181.

The state may, therefore, impose as a condition upon which a foreign corporation shall be permitted to do business within her limits, that it shall stipulate that in any litigation arising out of its transactions in the state, it will accept as sufficient the service of process on its agents or persons specially designated, and the condition would be eminently fit and just. And such condition and stipulation may be implied as well as expressed. If a state permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission; and corporations that subsequently do business in the state are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable; and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. The decision of this court in the case of ''Lafayette Ins. Co. v. French'', to which we have already referred, sustains these views.

The state of Michigan permits foreign corporations to transact business within her limits. Either by express enactment, as in the case of insurance companies, or by her acquiescence, they are as free to engage in all legitimate business as corporations of her own creation. Her statutes expressly provide for suits being brought by them in her courts, and for suits by attachment being brought against them in favor of residents of the state. And in these attachment suits they authorize the service of a copy of the writ of attachment, with a copy of the inventory of the property attached, on 'any officer, member, clerk, or agent of such corporation,' within the state, and give to a personal service of a copy of the writ and of the inventory on one of these persons the force and effect of personal service of a summons on a defendant in suits commenced by summons.

It thus seems that a writ of foreign attachment in that state is made to serve a double purpose-as a command to the officer to attach property of the corporation and as a summons to the latter to appear in the suit. We do not, however, understand the laws as authorizing the service of a copy of the writ, as a summons, upon an agent of a foreign corporation unless the corporation be engaged in business in the state, and the agent be appointed to act there. We so construe the words 'agent of such corporation within this state.' They do not sanction service upon an officer or agent of the corporation who resides in another state, and is only casually in the state, and not charged with any business of the corporation there. The decision in Newell v. ''Great Western Ry. Co.'' reported in 19 Mich. 336, supports this view, although that was the case of an attempted service of a declaration as the commencement of the suit. The defendant was a Canadian corporation owning and operating a railroad from Suspension Bridge in Canada to the Detroit line at Windsor, opposite Detroit, and carrying passengers in connection with the Michigan Central Railroad Company, upon tickets sold by such companies respectively. The suit was commenced in Michigan, the declaration alleging a contract by the defendant to carry the plaintiff over its road, and its violation of the contract by removing him from its cars at an intermediate station. The declaration was served upon Joseph Price, the treasurer of the corporation, who was only casually in the state. The corporation appeared specially to object to the jurisdiction of the court, and pleaded that it was a foreign corporation, and had no place of business or agent or officer in the state, or attorney to receive service of legal process, or to appear for it; and that Joseph Price was not in the state at the time of service on him on any official business of the corporation. The plaintiff having demurred to this plea the court held the service insufficient.

'The corporate entity,' said the court, 'could by no     possibility enter the state, and it could do nothing more in      that direction than to cause itself to be represented here by      its officers or agents. Such representation would, however,     of the corporation, and not as an isolated the mere presence      here of a person possessing, when in Canada, the relation to      the company of an officer or agent. To involve the     representation of the company here, the supposed      representative would have to hold or enjoy in this state an      actual present official or representative status. He would be     required to be here as an agent or officer of the      corporation, and not as isolated individual. If he should     drop the official or representative character at the      frontier, if he should bring that character no further than      the territorial boundary of the government to whose laws the      corporate body itself, and consequently the official      positions of its officers also, would be constantly indebted      for existence, it could not, with propriety, be maintained      that he continued to possess such character by force of our      statute. Admitting, therefore, for the purpose of this suit,     that in given cases the foreign corporation would be bound by      service on its treasurer in Michigan, this could only be so      when the treasurer, the then official, the officer then in a      manner impersonating the company, should be served. Joseph     Price was not here as the treasurer of the defendants. He did     not then represent them. His act in coming was not the act of     the company, nor was his remaining the business or act of any      besides himself. He had no principal and he was not an agent. He had no official status or representative character in this     state.'

According to the view thus expressed by the supreme court of Michigan service upon an agent of a foreign corporation will not be deemed sufficient unless he represents the corporation in the state. This representation implies that the corporation does business, or has business in the state for the transaction of which it sends or appoints an agent there. If the agent occupies no representative character with respect to the business of the corporation in the state, a judgment rendered upon service on him would hardly be considered in other tribunals as possessing any probative force. In a case where similar service was made in New York upon an officer of a corporation of New Jersey accidentally in the former state, the supreme court of New Jersey said that a law of another state which sanctioned such service upon an officer accidentally within its jurisdiction was 'so contrary to natural justice and to the principles of international law that the courts of other states ought not to sanction it.' Moulin v. ''Ins. Co.'' 4 Zab. 234.

Without considering whether authorizing service of a copy of a writ of attachment as a summons on some of the persons named in the statute-a member, for instance, of the foreign corporation, that is, a mere stockholder-is not a departure from the principle of natural justice mentioned in ''Lafayette Ins. Co. v. French'', which forbids condemnation without citation, it is sufficient to observe that we are of opinion that when service is made within the state upon an agent of a foreign corporation it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record either in the application for the writ or accompanying its service, or in the pleadings or the finding of the court-that the corporation was engaged in business in the state. The transaction of business by the corporation in the state, general or special, appearing, a certificate of service by the proper officer on a person who is its agent there would, in our opinion, be sufficient prima facie evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another state, to show that the agent stood in no representative character to the company, that his duties were limited to those of a subordinate employe, or to a particular transaction, or that his agency had ceased when the matter in suit arose.

In the record, a copy of which was offered in evidence in this case, there was nothing to show, so far as we can see, that the Winthrop Mining Company was engaged in business in the state when service was made on Colwell. The return of the officer, on which alone reliance was placed to sustain the jurisdiction of the state court, gave no information on the subject. It did not, therefore, appear even prima facie that Colwell stood in any such representative character to the company as would justify the service of a copy of the writ on him. The certificate of the sheriff, in the absence of this fact in the record, was insufficient to give the court jurisdiction to render a personal judgment against the foreign corporation. The record was, therefore, properly excluded.

Judgment affirmed.

title: St. Clair v. Cox/Opinion of the Court


text: Talk:St. Clair v. Cox/Opinion of the Court


text:
Van Wyck v. Knevals

[Syllabus from page 360 intentionally omitted]

[Statement of Case from pages 360-364 intentionally omitted]

E. E. Brown, for appellant.

J. M. Woolworth, for appellee.

FIELD, J.

title: Van Wyck v. Knevals


text: Talk:Van Wyck v. Knevals

title: Talk:Van Wyck v. Knevals


text:
Van Wyck v. Knevals/Opinion of the Court

The principal question for determination in this case is, when does the grant made to Kansas by the act of congress of the twenty-third of July, 1866, for the use and benefit of the St. Joseph & Denver Railroad Company in the construction of a railroad from Elwood, in that state, to its junction with the Union Pacific Railroad. or a branch thereof, take effect so as to cut off the right of pre-emption from subsequent settlers on the land? The grant is similar in its main features to numerous other grants of land made by congress in aid of railroads, and contains the same limitations, or, rather, exceptions to it. It differs from some of the grants in that it is made to the state, and not directly to the company to be benefited. The act of congress, however, provides, notwithstanding the designation of the state as grantee, that patents for the land shall be issued directly to the company upon the completion of every 10 consecutive miles of the road. The grant is of 10 alternate sections, designated by odd numbers, on each side of the proposed road, subject to the condition that if it appear, when the route of the road is 'definitely fixed,' that the United States have sold any section or a part thereof, or the right of pre-emption or homestead settlement has attached, or the same has been reserved by the United States for any purpose, the secretary of the interior shall cause an equal quantity of other lands to be selected from odd sections nearest those designated in lieu of the lands appropriated, which shall be held by the state for the same purpose. The grant is one in prcesenti, except as its operation is affected by that condition; that is, it imports the transfer, subject to the limitations mentioned, of a present interest in the lands designated. The difficulty in immediately giving full operation to it arises from the fact that the sections designated as granted are incapable of identification until the route of the road is 'definitely fixed.' When that route is thus established the grant takes effect upon the sections by relation as of the date of the act of congress. In that sense we say that the grant is one in proesenti. It cuts off all claims, other than those mentioned, to any portion of the lands from the date of the act, and passes the title as fully as though the sections had then been capable of identification. Nor is this operation of the grant affected by the fact that patents of the United States are subsequently, upon the certificate of the governor, to be issued by the secretary of the interior directly to the company and not to the state. This is only a mode of divesting the state of her trust character, and of passing the legal title held by her to the party for whose benefit the grant was made. The legal title under the grant goes to the state, but the equitable right vests in the company. The state cannot dispose of the lands; she simply holds them for the use and benefit of the company, the act of congress providing how her trust shall be discharged and the legal title be conveyed to the company. The act says that the land granted 'shall inure to the benefit of the said company as follows,' and then proceeds to declare that when the governor of the state shall certify that a section of the road of 10 consecutive miles is completed 'in a good, substantial, and permanent manner as a first-class railroad,' the secretary of the interior shall issue to the company patents for the sections of land granted which lie opposite to and coterminous with the completed road, and that similar patents shall issue upon a like certificate upon the completion of every successive section of 10 miles. It matters not, so far as subsequent settlers are concerned, in what manner the title, which has passed out of the United States, is transferred to the company from the state. When the route of the road is 'definitely fixed' no parties can subsequently acquire a pre-emption right to any portion of the lands covered by the grant. The right of the state and of the company is thenceforth perfect as against subsequent claimants under the United States.

The inquiry then arises, when is the route of the road to be considered as 'definitely fixed' so that the grant attaches to the adjoining sections? The complainant in the court below, who derives his title from the company, contends that the route is definitely fixed, within the meaning of the act of congress, when the company files with the secretary of the interior a map of its lines, approved by its directors, designating the route of the proposed road. On the other hand, the defendant,-the appellant here,-who acquired his interest by subsequent settlement on the lands and a patent therefor, contends that the route cannot be deemed definitely fixed, so that the grant attaches to any particular sections and cuts off the right of settlement thereon, until the lands are withdrawn from market by order of the secretary of the interior, and notice of the order of withdrawal is communicated to the local land-officers in the districts in which the lands are situated.

We are of opinion that the position of the complainant is the correct one. The route must be considered as 'definitely fixed' when it has ceased to be the subject of change at the volition of the company. Until the map is filed with the secretary of the interior the company is at liberty to adopt such a route as it may deem best, after an examination of the ground has disclosed the feasibility and advantages of different lines. But when a route is adopted by the company and a map designating it is filed with the secretary of the interior and accepted by that officer, the route is established; it is, in the language of the act, 'definitely fixed,' and cannot be the subject of future change, so as to affect the grant, except upon legislative consent. No further action is required of the company to establish the route. It then becomes the duty of the secretary to withdraw the lands granted from market. But if he should neglect this duty, the neglect would not impair the rights of the company, however prejudicial it might prove to others. Its rights are not made dependent upon the issue of the secretary's order, or upon notice of the withdrawal being given to the local land-officers. Congress, which possesses the absolute power of alienation of the public lands, has prescribed the period at which other parties than the grantee named shall have the privilege of acquiring a right to portions of the land specified, and neither the secretary nor any other officer of the of the route established-and period by requiring something to be done subsequently, and until done, continuing the right of parties to settle on the lands as previously. Otherwise, it would be in their power, by vexatious or dilatory proceedings, to defeat the act of congress, or at least seriously impair its benefit. Parties learning of the route established-and they would not fail to know it-might between the filing of the map and the notice to the local land-officers, take up the most valuable portions of the lands. Nearness to the proposed road would add to the value of the sections and lead to a general settlement upon them.

This view of the law disposes of the claim of the defendant. A map designating the route of the proposed road, made by the engineers of the company after careful surveys, and adopted by its direcors, was filed on the twenty-fifth of March, 1870, with the secretary of the interior, who accepted it, and on the twenty-eighth of that month transmitted it to the commissioner of the general land-office, with directions to instruct the proper local officers to withhold from sale, or other disposition, the odd-numbered sections within the limits of 20 miles on each side of the route. On the eighth of April following, the commissioner forwarded a copy of the map to the register and receiver of the land-office at Beatrice, in Nebraska, but it was not received by them until the fifteenth of that month. On the 13th the defendant entered at that office the land in question, at private entry, and paid the government price therefor. In November of the following year a patent for it was issued to him. His entry, as thus seen, was after the map had been filed and the route 'definitely fixed,' and the grant had attached to the adjoining odd sections. It could, therefore, initiate no rights to the land, and the subsequent patent issued upon that entry conferred no valid title to the defendant as against the company or parties claiming under it. The defendant having failed to establish the validity of his own title, attacks the right of the company to the lands covered by the grant, alleging that the company never completed the construction of the entire road for which the grant was made; that after filing its map with the secretary of the interior it changed, for part of the distance, the route of the road, and that it never complied with the conditions of the laws of Nebraska for the extension of its road within the limits of that state. We do not deem these objections, when considered with the facts on which they are based, as having any force. There is to them a ready and conclusive answer. Assuming that the Burlington & Missouri River Railroad, with which the company's road connected, was not, as averred by the complainant, a branch of the Union Pacific Railroad, and that, therefore, the company's proposed road was not entirely completed, the fact remains that the company constructed a portion of the proposed road, and that portion was accepted as completed in the manner required by the act of congress. Patents for some of the adjoining sections were accordingly issued to the company, and a right to all of them, not specially reserved by the condition of the grant, vested in it. So far as that portion of the road which was completed and accepted is concerned, the contract of the company was executed, and as to the lands patented, the transaction on the part of the government was closed and the title of the company perfected. The right of the company to the remaining odd-numbered sections adjoining the road completed and accepted, not reserved, is equally clear. If the whole of the proposed road has not been completed, any forfeiture consequent thereon can be asserted only by the grantor, the United States, through judicial proceedings, or through the action of congress. Schulenberg v. Harriman, 21 Wall. 45. A third party cannot take upon himself to enforce conditions attached to the grant when the government does not complain of their breach. The holder of an invalid title does not strengthen his position by showing how badly the government has been treated with respect to the property.

As to the alleged deviation of the road constructed from the route laid down in the map, admitting such to be the fact, the defendant is in no position to complain of it; the lands in controversy are within the required limit, whether that be measured from one line or the other. A deviation of the route without the consent of congress, so as to take the road beyond the lands granted, might, perhaps, raise the question whether the grant was not abandoned, but no such question is here presented. The deviation within the limits of the granted lands in no way infringed upon any rights of the defendant.

As to the want of compliance with the conditions imposed by the laws of Nebraska, allowing railroad companies organized in other states to extend and build their roads within its limits, it is sufficient to say that when the grant was made to the company Nebraska was a territory, and it was entirely competent for congress to confer upon a corporation of any state the right to construct a road within any of the territories of the United States. The grant of land and a right of way for the construction of a road to a designated point within the territory was sufficient authority for the company to construct the road to that point. It may be well doubted whether the state subsequently created out of the territory could put any impediment upon the enjoyment of the right thus conferred. As we said in Railroad v. Baldwin, 'it could do so only on the same terms that it could refuse a recognition of its own previously-granted right, for in such matters the state would succeed only to the authority of congress over the territory.' 103 U.S. 428. It does not appear from anything before us that the state has ever attempted to interfere with the road or the company for its delay in filing its articles of incorporation with the secretary of state, or in complying with other provisions of law. And it hardly need be added that any such interference would not operate to divest the company of its title to lands granted by the United States.

It follows from what we have said that when the defendant made his entry of the lands in controversy, and obtained a patent therefor, the title had passed from the United States, and consequently no right could be conferred upon him. Still the patent gave color of title, and because of its issue the officers of the land department have refused to give a patent to the company embracing the land, holding, as may be inferred, the view for which the defendant contends that his right to acquire a pre-emptive right by settlement continued until notice of the order of the secretary directing the withdrawal of the lands from market was received by the local land-officers. The existence of the patent, therefore, embarrasses the assertion of the complainant's rights, that is, it prevents him from obtaining a strictly legal title which would enable him to recover possession of the premises by an action at law. The existence of the patent also creates a cloud upon the title of the land. Every instrument purporting by its terms to convey land from the original source of title however invalid, creates a cloud upon the title if it require extrinsic evidence to show its invalidity. Pixley v. Huggins, 15 Cal. 128.

The existence of the patent, therefore, under these circumstances furnishes ground for equitable relief. That relief, however, should properly be limited to a decree declaring the equity of the complainant, the invalidity of the title of the defendant, and enjoining him from the assertion of any claim to the property under the patent; but inasmuch as no objuction is taken to the form of the decree as entered, which requires the defendant to execute a conveyance of the premises to the complainant, and as the execution of such a conveyance, amounting, in fact, to a release of his claim to the property, will accomplish all that could be legally effected, it is not considered necessary to order a modification of it. The decree is accordingly affirmed.


text: Talk:Van Wyck v. Knevals/Opinion of the Court


text:
Ex Parte Curtis

''Wm. Stanley, S. G. Clarke, and E. B. Smith'', for petitioner.

Solicitor General Phillips, E. P. Wheeler, and F. W. Whitridge, for respondent.

WAITE, C. J.

title: Ex Parte Curtis


text: Talk:Ex Parte Curtis

title: Talk:Ex Parte Curtis


text:
Ex Parte Curtis/Opinion of the Court

In the act of August 15, 1876, making appropriations for the legislative, executive, and judicial expenses of the government, (chapter 287, 19 St. 143; 1 Supp. Rev. St. 245,) the following appears as section 6:

'Sec. 6. That all executive officers or employes of the     United States not appointed by the president, with the advice      and consent of the senate, are prohibited from requesting,      giving to, or receiving from, any other officer or employe of      the government any money or property or other thing of value      for political purposes; and any such officer or employe, who      shall offend against the provisions of this section, shall be      at once discharged from the service of the United States; and      he shall also be deemed guilty of a misdemeanor, and on      conviction thereof shall be fined in a sum not exceeding      $500.'

Curtis, the petitioner, an employe of the United States, was indicted in the circuit court for the southern district of New York, and convicted under this act for receiving money for political purposes from other employes of the government. Upon his conviction he was sentenced to pay a fine and stand committed until payment was made. Under this sentence he was taken into custody by the marshal, and on his application a writ of habeas corpus was issued by one of the justices of this court in vacation, returnable here at the present term, to inquire into the validity of his detention. The important question presented on the return to the writ so issued is whether the act under which the conviction was had is constitutional. The act is not one to prohibit all contributions of money or property by the designated officers and employes of the United States for political purposes. Neither does it prohibit them altogether from receiving or soliciting money or property for such purposes. It simply forbids their receiving from or giving to each other. Beyond this no restrictions are placed on any of their political privileges. That the government of the United States is one of delegated powers only, and that its authority is defined and limited by the constitution, are no longer open questions; but express authority is given congress by the constitution to make all laws necessary and proper to carry into effect the powers that are delegated. Article 1, § 8. Within the legitimate scope of this grant congress is permitted to determine for itself what is necessary and what is proper.

The act now in question is one regulating in some particulars the conduct of certain officers and employes of the United States. It rests on the same principle as that originally passed in 1789 at the first session of the first congress, which makes it unlawful for certain officers of the treasury department to engage in the business of trade or commerce, or to own a sea vessel, or to purchase public lands or other public property, or to be concerned in the purchase or disposal of the public securities of a state, or of the United States, (Rev. St. § 243;) and that passed in 1791, which makes it an offense for a clerk in the same department to carry on trade or business in the funds or debts of the states or of the United States, or in any kind of public property, (Id. § 244;) and that passed in 1812, which makes it unlawful for a judge appointed under the authority of the United States to exercise the profession of counsel or attorney, or to be engaged in the practice of the law, (Id. § 713;) and that passed in 1853, which prohibits every officer of the United States or person holding any place of trust or profit, or discharging any official function under, or in connection with any executive department of the government of the United States, or under the senate or house of representatives, from acting as an agent or attorney for the prosecution of any claim against the United States, (Id. § 5498;) and that passed in 1863, prohibiting members of congress from practicing in the court of claims, (Id. § 1058;) and that passed in 1867, punishing, by dismissal from service, an officer or employe of the government who requires or requests any working-man in a navy-yard to contribute or pay any money for political purposes, (Id. § 1546;) and that passed in 1868, prohibiting members of congress from being interested in contracts with the United States, (Id. § 3739;) and another, passed in 1870, which provides that no officer, clerk, or employe in the government of the United States shall solicit contributions from other officers, clerks, or employes for a gift to those in a superior official position, and that no officials or clerical superiors shall receive any gift or present as a contribution to them from persons in government employ getting a less salary than themselves, and that no officer or clerk shall make a donation as a gift or present to any official superior, (Id. § 1784.) Many others of a kindred character might be referred to, but these are enough to show what has been the practice in the legislative department of the government from its organization, and, so far as we know, this is the first time the constitutionality of such legislation has ever been presented for judicial determination.

The evident purpose of congress in all this class of enactments has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope of legislative power, and it is not easy to see why the act now under consideration does not come fairly within the legitimate means to such an end. It is true, as is claimed by the counsel for the petitioner, political assessments upon office-holders are not prohibited. The managers of political campaigns, not in the employ of the United States, are just as free now to call on those in office for money to be used for political purposes as ever they were, and those in office can contribute as liberally as they please, provided their payments are not made to any of the prohibited officers or employes. What we are now considering is not whether congress has gone as far as it may, but whether that which has been done is within the constitutional limits upon its legislative discretion. A feeling of independence under the law conduces to faithful public service, and nothing tends more to take away this feeling than a dread of dismissal. If contributions from those in public employment may be solicited by others in official authority, it is easy to see that what begins as a request may end as a demand, and that a failure to meet the demand may be treated by those having the power of removal as a breach of some supposed duty, growing out of the political relations of the parties. Contributions secured under such circumstances will quite as likely be made to avoid the consequences of the personal displeasure of a superior, as to promote the political views of the contributor-to avoid a discharge from service, not to exercise a political privilege. The law contemplates no restrictions upon either giving or receiving, except so far as may be necessary to protect, in some degree, those in the public service against exactions through fear of personal loss. This purpose of the restriction, and the principle on which it rests, are most distinctly manifested in section 1546, supra, the re-enactment in the Revised Statutes of section 3 of the act making appropriations for the naval service for the year ending June 30, 1868, (14 St. 492, c. 172,) which subjected an officer or employe of the government to dismissal if he required or requested a working-man in a navy-yard to contribute or pay any money for political purposes, and prohibited the removal or discharge of a working-man for his political opinions; and in section 1784, the re-enactment of the act of February 1, 1870, (c. 63, 16 St. 63,) 'to protect officials in public employ,' by providing for the summary discharge of those who make or solicit contributions for presents to superior officers. No one can for a moment doubt that in both these statutes the object was to protect the classes of officials and employes provided for from being compelled to make contributions for such purposes through fear of dismissal if they refused. It is true that dismissal from service is the only penalty imposed, but this penalty is given for doing what is made a wrongful act. If it is constitutional to prohibit the act, the kind or degree of punishment to be inflicted for disregarding the prohibition is clearly within the discretion of congress, provided it be not cruel or unusual.

If there were no other reasons for legislation of this character than such as relate to the protection of those in the public service against unjust exactions, its constitutionality would, in our opinion, be clear; but there are others, to our minds, equally good. If personsin public employ may be called on by those in authority to contribute from their personal income to the expenses of political campaigns, and a refusal may lead to putting good men out of the service, liberal payments may be made the ground for keeping poor ones in. So, too, if a part of the compensation received for public services must be contributed for political purposes, it is easy to see that an increase of compensation may be required to provide the means to make the contribution, and that in this way the government itself may be made to furnish indirectly the money to defray the expenses of keeping the political party in power that happens to have for the time being the control of the public patronage. Political parties must almost necessarily exist under a republican form of government, and when public employment depends to any considerable extent on party success, those in office will naturally be desirous of keeping the party to which they belong in power. The statute we are now considering does not interfere with this. The apparent end of congress will be accomplished if it prevents those in power from requiring help for such purposes as a condition to continued employment.

We deem it unnecessary to pursue the subject further. In our opinion the statute under which the petitioner was convicted is constitutional. The other objections which have been urged to the detention cannot be considered in this form of proceeding. Our inquiries in this class of cases are limited to such objections as relate to the authority of the court to render the judgment by which the prisoner is held. We have no general power to review the judgments of the inferior courts of the United States in criminal cases, by the use of the writ of habeas corpus or otherwise. Our jurisdiction is limited to the single question of the power of the court to commit the prisoner for the act of which he has been convicted. Ex parte Lange, 18 Wall. 163; Ex parte Rowland, 104 U.S. 604.

The commitment in this case was lawful, and the petitioner is, consequently, remanded to the custody of the marshal for the southern district of New York.

title: Ex Parte Curtis/Opinion of the Court


text: Talk:Ex Parte Curtis/Opinion of the Court


text:
Geekie v. Kirby Carpenter

S. D. Hastings, Jr., for plaintiffs in error.

L. S. Dixon and B. J. Brown, for defendant in error.

BLATCHFORD, J.

title: Geekie v. Kirby Carpenter


text: Talk:Geekie v. Kirby Carpenter

title: Talk:Geekie v. Kirby Carpenter


text:
Geekie v. Kirby Carpenter/Opinion of the Court

This suit was brought in a court of the state of Wisconsin, by Peter W. Geekie, sheriff of Oconoto county, Wisconsin, and William Klass, citizens of Wisconsin, against the Kirby Carpenter Company, an Illinois corporation, and was removed into the circuit court of the United States for the eastern district of Wisconsin, before answer. The cause of action set forth in the complaint was that the plaintiff Klass was the owner of certain saw-logs lying in the waters of the Menominee river, in Oconto county, Wisconsin; that in April, 1876, the plaintiff Geekie, as such sheriff, levied on and attached said logs under a writ of attachment issued against said Klass by the circuit court of said county; that the defendant, by its employes, took, in Wisconsin, a large quantity of saw-logs from the sheriff, and converted them to its own use, to the value of $8,500; and that the sheriff expended $940 in endeavoring to safely keep the logs so wrongfully taken, and as increased expense in keeping what logs the defendant did not succeed in taking. The claim made is for treble damages, with interest. The answer sets up that the logs were not the property of Klass, but were the property of the defendant; that whatever the defendant did in regard to the logs was done under a writ of replevin issued in a suit brought by it, as plaintiff, in the circuit court for Menominee county, Michigan, to the sheriff of that county, commanding him to take said logs and deliver them to it; and that said sheriff took said logs into his custody under said writ in said county of Menominee, in the state of Michigan, and delivered them to said company.

The case was tried before a jury. The record states that the jury 'rendered a special verdict in answer to the questions propounded by the court, said questions and the answers of the jury thereto being as follows.' There is no other or further special verdict than the eight questions and answers which then follow, and there is no general verdict for either party. Afterwards the plaintiffs moved the court 'upon the special verdict,' and on 'the records and evidence in said cause,' 'for judgment in their favor for $6,791.56, with interest at the rate of 7 per cent. per annum from April 24, 1876, and costs.' The defendant also moved for judgment in its favor on the 'special verdict,' 'and because in law the plaintiffs established no cause of action.' The court ordered judgment in favor of the defendant and overruled the motion of the plaintiffs for judgment in their favor. Judgment was rendered for the defendant, against the plaintiffs, for $186.02, costs. This writ of error is brought by the plaintiffs to review and reverse this judgment.

At the trial, as appears by the bill of exceptions, the plaintiffs, to show title in Klass to the logs, offered in evidence a tax deed from the state of Wisconsin and Oconto county to one S. A. Coleman, dated and acknowledged April 27, 1867, and the certificate of its record indorsed on it, showing that it was recorded in the office of the register of deeds for said county, on the same day. The defendant objected to the reception of the deed in evidence (1) because it was not in the form prescribed by statute; (2) because it was not executed and acknowledged as required by law; (3) because it was void upon its face. The court reserved its rulings on said objections, and received said deed and certificate in evidence subject to said objections. Like objections and a like ruling were made in respect to a certified copy of the record of said deed, showing the date of its recording. The deed covered 79 58-100 acres of land in section 13, in town 33, of range 22, and 120 acres in section 14, in town 33, of range 22, being five several tracts, all in Oconto county. The sale was for $12.20, which was the amount of the taxes and costs of sale. The plaintiffs then proved that Klass purchased from Coleman the timber standing on the premises described in the deed; that all the logs in controversy were cut by Klass from the premises during the winter of 1875 and 1876, and put into the river; that the premises remained vacant and unoccupied during the whole of the three years next after the recording of the deed; that the logs were held by Geekie, as sheriff, under a regular and valid attachment and levy; and that the company claimed to own the logs and sought to take them from the custody of Geekie.

After the plaintiffs had rested, the defendant offered to show by certified copies of the records from Oconto county that the county treasurer of that county, in making the sale of the lands on which the said tax deed to Coleman was based, added to the amount of all legal taxes and charges for which each of said tracts was liable to be sold the sum of five cents to pay for a United States revenue stamp to be placed on the certificate issued to the purchaser on such sale; that said illegal excess of five cents was included in the amount for which each one of said tracts was sold; and that a five-cent United States internal-revenue stamp was affixed to each one of said certificates of sale. The plaintiffs objected to the reception of said evidence as incompetent and immaterial, because said tax deed was regular and valid on its face, and had been recorded more than three years before the commencement of the action and the cutting of the timber. The court reserved its ruling on said objection until the close of the case, and received said testimony subject to said objection. It was then admitted by the plaintiffs that the facts relative to said sale were as the defendant offered to show them to be, but not waiving their objection to said evidence, or consenting to its being received. The defendant then gave evidence showing that it owned in fee-simple, at the time the tax deed to Coleman was executed and recorded, the premises from which said timber was cut. After the close of the evidence the questions to be answered by the jury were submitted to them by the court, and they were answered by the jury. The bill of exceptions states as follows:

'Both said plaintiffs and said defendant filed motions for     judgment on the pleadings, records, and evidence in said      cause, and, upon the argument of said counter-motions and      said objections to testimony reserved, the court overruled      said defendant's objections to the admissibility of said tax      deed in evidence, and said plaintiffs' objection to said      defendant's testimony showing the illegal excess of five      cents in the amount for which each of said tracts of land was      sold by said county treasurer, and overruled said plaintiffs'      motion for judgment and ordered judgment for said defendant;      to each of which said rulings against said plaintiffs, said plaintiffs then      and there duly excepted.'

To obviate any objection that this court could not review the judgment in this case because there was no general verdict of the jury, and no special verdict in any form known to the common law, and no waiver in writing of a jury trial, and no such proceeding of the court below upon the facts as is provided for by section 649 of the Revised Statutes, the parties have filed in this court a written stipulation, agreeing 'that the facts appearing from the special verdict and stated by the bill of exceptions to have been proved, shall be taken and considered as the facts in this case for all purposes, and as fully as if they had been specifically found by the circuit court;' and 'that the circuit court submitted certain questions to the jury by agreement of the parties, and that the other facts were to be found and stated as shown by the bill of exceptions, and that upon the whole case, as thus shown, judgment was to be pronounced by the court below, as they should determine the law.' The ground upon which the circuit court overruled the objection of the plaintiffs to the testimony on the part of the defendant to show the illegal excess of five cents in the amount for which each of the tracts of land was sold, was that, in being sold to raise the five cents, the land was sold for that which was not a tax; that the amount assessed against the land for a tax was less than the amount for which it was sold; that, although a tax was included in that amount, there was also included in it that for which the land could not be sold; and that this fact deprived the officer of the power to sell and made the tax deed void. The statute of Wisconsin applicable to this subject is found in chapter 138 of the General Laws of 1861, §§ 5 and 6:

'Sec. 5. No action shall be commenced by the former owner or     owners of any lands, or by any person claiming under him or      them, to recover possession of land which has been sold and      conveyed by deed for non-payment of taxes or to avoid such      deed, unless such action shall be commenced within three      years next after the recording of such deed. Sec. 6. The     limitation for bringing actions prescribed in the last preceding section shall not apply *  *  * where the taxes      for the non-payment of which the land was sold and the tax      deed executed were paid prior to the sale, or where the land      was redeemed from the operations of such sale, as provided by      law, nor where the land was not liable to taxation.'

The sole question presented under these provisions is whether the land in this case can be said not to have been sold for non-payment of taxes, because in the $12.20 for which it was sold was included 25 cents for the five stamps, in addition to $11.95 for taxes proper. It is admitted that the land could not properly be sold to raise the five cents as a tax, and that, if the question had been raised on behalf of the original owner of the land in a suit commenced within three years next after the recording of the deed on the sale, he could have had relief against the sale; but it is contended for the plaintiffs in error that the lapse of the three years prevented the questioning of the validity of the deed because of the irregularity complained of.

We are of opinion that the circuit court erred in its construction of the statute. The exceptions in section 6 do not apply to this case, and the land was sold for non-payment of taxes, although an improper item was included in the amount for which the sale was had. It matters not whether such item was five cents for a revenue stamp, or an illegal excess for fees, or any other illegal excess. The statute applies whenever there has been an actual attempt, however defective in detail, to carry out a proper exercise of the taxing power. As against the grantee in the tax deed the statute puts at rest all objections raised, after the time specified, against the validity of the tax proceeding, from and including the assessment of the land to and including the execution of the deed. If the deed is valid on its face, and purports to convey the land on a sale for the non-payment of taxes, it is, during the three years, prima facie evidence of the regularity of the tax proceeding, and, after the statute has run in favor of the grantee, the deed becomes conclusive to the same extent. The general authority of the taxing officers and the liability of the land to taxation having existed, there was no want of authority to put the taxing power in motion. That being so, the lapse of time establishes conclusively the validity of the tax and of the sale, as against the irregularity in question. There having been jurisdiction, all error was conclusively barred by the statute. This construction is that held by the supreme court of Wisconsin in regard to this statute in Oconto Co. v. Jerrard, 46 Wis. 317, and Milledge v. Coleman, 47 Wis. 184; and it is said, and correctly, in the latter case, that that is the view which has been uniformly taken of that statute by that court, and that to adopt a contrary view would disturb numerous titles. Such construction was, therefore, always a rule of property, in respect to land, in Wisconsin, and is one which this court will follow. Suydam v. Williamson, 24 How. 427. In Milledge v. Coleman the illegality alleged was the including of five cents for a United States revenue stamp in the amount for which the land was sold. That case was decided some four months after the decision in the present case was made by the court below.

The deed in question was not open to the other objections taken to it at the trial. One of those objections was that the deed was not substantially in the form prescribed by statute, or any equivalent form, and was void upon its face. The form is given in chapter 50, § 22, of the General Laws of Wisconsin, of 1859, and the statute says that the deed 'shall be substantially in the following or other equivalent form.' There is no doubt that the form must be substantially pursued, or the deed will be invalid. Part of the form is a recital that the purchaser or his assignee has deposited a certificate, whereby it appears that certain lands, describing them, were, for the non-payment of taxes, sold by the officer named at public auction, at a place and time named, to the said purchaser, for a sum named, 'in the whole, which sum was the amount of taxes assessed and due and unpaid' on said tracts of land, etc. The deed in the present case recites that 'S. A. Coleman, assignee of Oconto county,' has deposited five certificates, whereby it appears that five certain parcels of land, describing them, three containing 40 acres each, each sold for $2.43, one containing 39 58-100 acres, sold for $2.43, and one containing 40 acres, sold for $2.48, were, for the non-payment of taxes, sold by the officer named, at public auction, at a place and time named, 'to the said Oconto county, and by its treasurer assigned to S. A. Coleman, for the sum of $12.20, in the whole, which sum was the amount of taxes assessed and due and unpaid' on said tracts of land, etc.

The objection made is that the recital is not that the lands were sold for so much in the whole, but that they were sold 'to the said Oconto county, and by its treasurer assigned to S. A. Coleman,' for so much in the whole; that the words, 'the sum of,' in the recital, relate to the word 'assigned;' that the meaning is that the lands were assigned to Coleman for the $12.20 in the whole, or were sold and assigned for that sum in the whole, and not that they were sold for that sum in the whole. The circuit court held that it clearly enough appeared, taking the whole deed together, for what sum in dollars and cents the land was sold in the whole, as required by the statute; and that, taking the statement as to the $12.20 with the preceding statement as to the sum for which each parcel of land sold, the inference was irresistible that the $12.20 was the amount for which the land was sold in the whole, for the non-payment of taxes. We think this view was correct. A like construction was given to a recital in the same language, by the supreme court of Wisconsin, in Milledge v. Coleman, ubi supra. It is manifest that the words, 'and by its treasurer assigned to S. A. Coleman,' are to be read as if they were in a parenthesis. In connection with the prior words, 'Whereas, S. A. Coleman, assignee of Oconto county, has deposited.' etc., they are put in to indicate that Oconto county was the purchaser, and Coleman was its assignee of the purchase by assignment from the treasurer of the county. Everything required by the statute as to form is found in the deed, with added facts as to the assignment.

The objection as to the form of the acknowledgment of the deed does not seem to be insisted on by the defendant in error. We think the circuit court was correct in its ruling that the acknowledgment was in proper form. The same form was upheld as proper by the supreme court of Wisconsin in Milledge v. Coleman, ubi supra.

The defendant offered in evidence at the trial a copy of a judgment in an action in the circuit court for the county of Menominee, Michigan, in which the Kirby Carpenter Company 'was plaintiff, and the Menominee River Manufacturing Company, Charles J. Ellis, and Millard F. Powers were defendants, in which action a writ of replevin was issued to the sheriff of said county, commanding him to forthwith take into his custody the goods and chattels therein mentioned, which were the logs in controversy, and deliver them to said Kirby Carpenter Company, which action was commenced on the thirty-first day of May, 1876, and process therein served on said parties therein named as defendants on said day, and in which action judgment was entered as by default against the defendants therein named on the twenty-fourth day of September, 1878, adjudging the title to said logs to be in said Kirby Carpenter Company.' The plaintiffs objected to the admission of said record in evidence as incompetent and immaterial, 'because neither of the plaintiffs in this action were parties to said action.' The court reserved its ruling upon said objection and received said testimony subject to said objection. The record does not show that the objection was afterwards either overruled or sustained. As the court held that Coleman acquired no title under the tax deed, it was unnecessary for it to make any ruling as to the effect of the judgment in the replevin suit. But under the stipulation so made in this court the question is here to be passed upon.

The bill of exceptions states that the defendant showed that the Millard F. Powers named as one of the defendants in said replevin suit was the under-sheriff of Oconto county; that process in said suit was served on said Powers on an island in the Menominee river, near its mouth, on the Michigan side of the main channel of said river, near the head of which island are situated what are called the dividing piers; and that at the time of the service of said process upon said Powers he was on said island assisting the plaintiff Geekie in his endeavors to retain said logs under said writ of attachment under which they were levied on by said Powers; that all of said logs that were taken from said plaintiffs, after the issuing of said writ of replevin, were taken by said sheriff and his posse, acting under the authority of said writ; that not to exceed 20 of said logs came to the possession of said defendant before the issuing of said writ of replevin; and that the point in said Menominee river at which said dividing piers are located, and at which said defendant took from said Geekie said logs, was on the Michingan side of the main channel of said river.

The bill of exceptions states that the plaintiffs showed that Geekie, by and through Powers, his under-sheriff, levied on said logs on April 24, 1876, in the Menominee rivr, about one mile above said piers; that the piers were managed and controlled by the Menominee River Manufacturing Company, a corporation; that Powers, after making the levy, remained in charge of the logs for some days, and then turned the writ over to Geekie, the sheriff, on or about May 9, 1876, it not being shown on the trial that the defendant had notice of that fact; that the defendant claimed to own said logs and sought to take them from the custody of said sheriff, as they passed through said dividing piers; that from the time they commenced running through said piers until they had all passed through, said Geekie, and others acting for and under him, and parties acting for and under the direction of the defendant, were struggling with each other for the possession of the logs; that the Menominee river runs between the states of Michigan and Wisconsin; that when said logs were levied upon by said sheriff they were in a bend in said river and on the Wisconsin side of the channel; and that the expense of executing said writ of attachment by said sheriff, if he had not been interfered with by said defendant, would have been not more than $240.

The questions and answers forming the so-called special verdict were as follows:

'(1) Did the defendant take, or cause to be taken, from the     possession of the plaintiffs, and convert to its own use, the      logs in question, or any part thereof? Answer. Yes. (2) If     you answer the preceding question in the affirmative, then      when were said logs so taken from the possession of the      plaintiffs? A. On the twenty-fourth day of April, 1876. (3)     What quantity of logs, if any, were so taken and converted to      its own use by the defendant? A. 1,040,238 feet. (4) What was     the value of the logs so taken and appropriated by the      defendant? A. Six dollars per thousand feet. * *  * (6) What      was the amount of expenses necessarily incurred and paid by      the plaintiff Geekie in endeavoring to retain possession of      said logs? A. $538.14. (7) What number of days was the     plaintiff Geekie necessarily engaged in endeavoring to keep possession of said logs,      and what was the value of his service. per day? A. Forty-nine     days, at three dollars per day, $147. (8) What number of days     was M. F. Powers necessarily engaged in attempting to keep      possession of said logs, and what was the value of his      services per day? A. Fifteen days, at three dollars per day,     $45.'

It is contended for the defendant in error that Geekie was concluded by the judgment in the replevin suit, and that, although he was not a party to it, the judgment against Powers, his under-sheriff, bound him. But it clearly appears, from the foregoing facts, that Powers did not have possession of the logs when the replevin suit was commenced, and that Geekie did. Powers was sued as an individual. Geekie was not served with process in the suit, nor did he appear in it or defend it; and, so far as appears, no defense was made to it.

It is further contended for the defendant in error that the conversion by the defendant took place in Michigan, and not in Wisconsin, as alleged in the complaint, because it is shown that the place where the defendant took the logs from Geekie was on the Michigan side of the main channel of the river. This is not equivalent to a finding that the taking was wholly or exclusively in Michigan, so as to make, as against Geekie, a taking at a place where the lien of the attachment did not exist. But, aside from this, the Menominee river being, as found, the boundary between Michigan and Wisconsin at the locus in quo, Wisconsin has, by section 3 of the act of congress of August 6, 1846, (9 U.S. St. at Large, 57,) concurrent jurisdiction with Michigan over the waters of the Menominee river.

Klass having the general property in the logs, and Geekie a specia; property in them, and the logs having been taken by the defendant from the possession of Geekie, who held them as sheriff, under the attachment against Klass, it was proper for both to join in the suit. The damages found to have been sustained by each may be added together and awarded to them as plaintiffs. The damages to Klass are the value of the logs, 1,040,238 feet at $6 per thousand feet, being $6,241.42. The damages to Geekie are the $538.14 expenses, less the $240, being $298.14, extra expenses, and the $147 and the $45. The sum of the whole to Klass and Geekie is $6,731.56. The date of the conversion, found by the jury, was April 24, 1876. There appears to be some confusion in the record. It is stated that the replevin suit was commenced May 31, 1876; that all of the logs which were taken from the plaintiffs after the issuing of the writ of replevin were taken by the sheriff under that writ; and that not to exceed 20 of such logs came to the possession of the defendant before the issuing of said writ. Yet the jury found that the defendant took all the logs or caused them to be taken from the possession of the plaintiffs, and converted them to its own use, on the twenty-fourth of April, 1876. But the attachment levy was made on the twenty-fourth of April by Powers, and the record states that he remained in charge of the logs for some days, and turned the writ over to Geekie on May 9th. The bill of exceptions states, however, that there was other evidence tending to show the time of the conversion of the logs by the defendant, and the manner in which the defendant and the sheriff of Menominee county took possession of them. On the whole, we think, that as to the damages to Klass interest should be given from the twenty-fourth of April, 1876, the date of conversion found by the jury, and as to those to Geekie, interest should be given from the bringing of this suit, November 21, 1876.

The judgment of the circuit court is reversed, with costs, and the case is remanded to that court, with directions to it to enter a judgment for the plaintiffs for $6,731.56, with lawful interest on $6,241.42 thereof from April 24, 1876, and with lawful interest on $490.14 thereof from November 21, 1876, with costs.


text: Talk:Geekie v. Kirby Carpenter/Opinion of the Court


text:
Lansdale v. Smith

[Syllabus from page 391 intentionally omitted]

[Statement of the Case on Pages 391-392 intentionally omitted]

C. P. Culver, Jesup Miller, C. G. Lee and H. O. Claughton, for appellants.

''Jas. S. Edwards and Job Barnard'', for appellee.

HARLAN, J.

title: Lansdale v. Smith


text: Talk:Lansdale v. Smith

title: Talk:Lansdale v. Smith