text:
French v. Hay (89 U.S. 231)/Opinion of the Court

It is plain that no other equity is asserted in the bill of the complainant than such as grew out of the alleged assignment and power of attorney of August 24th, 1860. There is none arising out of payments made by the complainant in the purchase of the debts and judgments. So far as it is charged by the bill, every dollar that was paid for the judgments was paid with the defendant's money, advanced by him to the complainant for the purchase. It is true the allegation is made that all the money over and above the $5000 advanced, that was paid in the purchase of the debts, was furnished by the complainant out of his own resources but it is not averred that any more than $5000 in all were paid. It is, therefore, the alleged assignment of August 24th, 1860, alone which is the basis of the complainant's equity.

That instrument, however, called an assignment, was, at most, but an executory agreement to assign. Construed with the power of attorney made at the same time, it admits of no other construction. The instrument was signed by Hay alone. French, the complainant, did not sign it, and it is not averred that he promised to pay the $5000. Hay undertook only that French should hold the judgments and claims 'upon his payment' of the stipulated consideration, with interest from the date. And the power of attorney given by Hay to French at the same time was an authority to deal with the securities in the name of Hay, and for Hay. The power was worse than useless, if the intention of the parties was that a present ownership of the judgment should be vested in French, without the payment of the agreed price. The utmost effect, therefore, that can be given to these two instruments of August 24th, 1860, upon which alone the complainant must rely, is that they amounted to an offer that if French would pay the $5000 he should be the owner of the judgments. The transmission of the title and the payment of the price were intended to be contemporaneous. If this is so, how long was the defendant under obligation to hold the offer extended? No time for its acceptance was mentioned. The offer was made in August, 1860. The complainant never accepted it. No acceptance is averred in his bill. He never paid or tendered the $5000; he never assumed to pay it. He asserted no claim to the judgments until 1868, when he filed this bill. Now, while it is true that in equity time is generally not considered as of the essence of a contract, it is only true when compensation can be made for its lapse, and the rule is inapplicable in case of an offer that requires acceptance to make a contract. In May, 1861, the complainant having given no indication of acceptance, and having, so far as it appears, asserted no claim to the judgments, abandoned his home, and did not return until 1865. Not until three years after his return did he commence this action. Was the defendant under obligation to remain inactive and make no efforts to obtain the debts due him, uncertain whether French would ever elect to pay the $5000 and take the judgments? We think not. Nothing in the instruments of August, 1860, imposed such an obligation. To say the least, therefore, it may well be doubted whether the complainant has any right under those instruments that a court of equity will enforce.

And were it conceded that, by the instrument through which he claims, French became the owner of the judgment, as between himself and Hay, we do not perceive how the concession could aid him in this case. If, as the bill avers, Hay collected the judgments and now holds the money for the use of the complainant, there is a complete remedy at law. This is not a bill for discovery, and the aid of a court of equity is not needed.

But the judgments never were collected. It is not pretended that the judgment debtors ever paid anything, or that French of Lenox, who were sureties for the payment of the debts, ever paid anything. In 1862 the railroad and property of the railroad company was sold under a deed of trust which the company had given prior to any of the judgments, and Hay became the purchaser. He paid none of the purchase-money with the judgments he held. He could not have paid with those judgments, for his bid was less than the sum due under the deed of trust, and that sum was prior in right to any of the judgments. Nor is there any attempt to prove that any part of the purchase-money was paid by the judgments. The evidence shows that after Hay purchased, a new company was formed; that a portion of its stock was allotted to him; that he subsequently sold the stock so allotted for a sum greater in amount than the aggregate of the judgments he held against the old company, and that after the formation of the new company, he caused satisfaction of the judgments to be entered of record. In no other manner than this is it now pretended that the judgments have been collected. The presumption of collection that might arise from the entries of satisfaction, if unexplained, is rebutted by the proof that all the defendant received was the proceeds of sale of his stock in the new company, by no possibility the fruit of the judgments. And the complainant cannot claim an interest in that stock or its proceeds, without affirming the trustees' sale of the railroad, and the subsequent formation of the new company, followed by the issue of the stock. Such a sale, if valid, would have destroyed the old company, three-quarters of the stock of which the complainant owned. But the sale has been judicially determined to have been invalid, the old company has recovered the property, and the new has been consequently adjudged never to have had a legal existence. The consequence of this is that the complainant now holds his full interest in the old company, unimpaired by any sale. After this it is impossible to see how he can assert that any part of the new stock or its proceeds belonged to him; and if it did not, nothing has been collected for him, even if he can be considered the owner of the judgments. Nor has he been injured by the entries of satisfaction, for if he became the owner of the judgments by force of the instruments of August 24th, 1860, as he avers, he is the owner still, notwithstanding the entries of satisfaction, for no one but the owner could cause valid acknowledgments of satisfaction to be made. For these reasons the decree must be

AFFIRMED.


text: Talk:French v. Hay (89 U.S. 231)/Opinion of the Court

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


text:
French v. Hay (89 U.S. 238)

[Syllabus from pages 238-240 intentionally omitted]

APPEAL from the Circuit Court for the Eastern District of Virginia; the case, though between the same parties as the preceding one (that is to say, between French and Hay), not relating to the same transactions, and being thus:

In October, 1858, McCullough owning a house and lot in Alexandria, Virginia, and being indebted to Harper in the sum of $3000, evidenced by six negotiable notes of $500 each, conveyed the premises in the month named, to Brent, in trust to secure the payment of the six notes. He then leased the premises, together with certain furniture then in the house, to James French, for five years at a rent of $600 a year; and in March, 1859, conveyed the premises to Robert French in trust for the wife of the said James; assigning at the same time to Robert French the lease previously made to James; the money to be paid upon which would in the course of the five years amount to exactly $3000, and which it was agreed should be paid to Harper in extinguishment of his debt of that amount.

On the execution of the lease James French went into possession.

The rents were applied as agreed on, so that when the rebellion became flagrant, as it did in the spring of 1861, all the notes had been paid, excepting one. Five hundred dollars were, therefore, thus due by McCullough to Harper, and were still secured by the deed of trust to Brent.

In this state of things McCullough, the debtor, died; Harper, his creditor, went south into the rebel lines, indorsing the note for the $500 and leaving it with his wife in Alexandria. James French and wife followed Harper, leaving a Mrs. Brandy, a sister of French's, in occupation of the house and furniture; and things in Alexandria got into such confusion as in a civil war might occur in a place situated as it was.

With the death of McCullough and the withdrawal south of the other original actors, two new persons appeared. One Alexander Hay, a citizen of Pennsylvania, a creditor of McCullough, who upon his death applied for and got letters of administration from the proper court at Alexandria on McCullough's estate; and the other, J. B. Stewart, a citizen of New York, who alleging himself to have become owner of the remaining note of $500 due by the estate of McCullough, applied for and got in the usual court at Alexandria, an order by which Hay was substituted as trustee in the place of Brent, now alleged to be in the Confederate army.

Hay, in order, as he alleged, properly to administer on McCullough's estate as the legal administrator of it, and also to execute as substituted trustee, his newly received trust, now, December, 1865, advertised and sold as trustee under the deed of trust executed to Brent in 1858, the premises conveyed by it; Dr. Ripley, a surgeon in the army, bidding them off as purchaser at $2600; the deed of McCullough to Robert French in trust for the wife of James French, executed in March, 1859, having never been put on record until about a month before this sale, and neither Hay nor Dr. Ripley apparently having ever heard of it until after the sale was made.

Dr. Ripley, now hearing of the deed to French, and fearing that there might be trouble about title, and about getting possession, refused to pay for or to take the property; and Stewart being willing to take his bid, Ripley assigned the bid to him. But Hay too was alarmed, and some allegations reaching his ears that Stewart when he made the motion for the substitution of a trustee in the place of Brent, did not own the remaining note of $500 as he had alleged he did, would take no money from nor execute any deed to Stewart. In short, after the sale he did nothing whatever, and his connection with the property ended. Stewart, however, got possession of the house under an arrangement between himself and its then occupant, and being once in, held on to the occupancy.

In February, 1866, the rebellion being now ended, and Harper and the other parties who had gone south having come back to Alexandria, their old home, Robert French, as trustee of Mrs. James French, filed a bill in the County Court of Alexandria, against Stewart, Hay, Brent et al., alleging that Stewart was not owner of the remaining $500 note, when the order of court putting Hay as trustee in the place of Brent was made, and that the note was at that time still owned by Harper, and that the sale by Hay was collusive and void; that the note had since been paid, and that so the whole $3000, which the property was conveyed to Brent to secure, was now discharged; and the complainant entitled to hold the property upon the trusts created for Mrs. Robert French by the deed of March, 1859, there being now no prior trust. The prayer of the bill was:

'That the defendants, Stewart and Hay, may make full and true discovery of all their transactions connected with the sale, by the said Hay, of the property described, to the said Stewart, that the sale may be set aside, and the deed made in pursuance thereof delivered up and cancelled; that the said Stewart may render an account of the rents and profits of the said property while in the use and occupation thereof.'

No prayer, as the reader will observe, was made that Hay might be charged with rents and profits.

On the 2d of June, 1866, Stewart filed his answer; the same being sworn to and signed in the ordinary way, and signed also by his attorney, C. F. Doddridge, Esquire.

On the 8th of December following, the court decreed that the sale was void; that the property should be restored to the complainant; that Stewart was chargeable with the rents and profits, and that the case should be referred to a master to ascertain the amount. An appeal was thereupon taken by Stewart to the proper court of the State-the State District Court-which affirmed the decree of the County Court. Upon the return of the case to the County Court it was referred to a master to take an account of the rents and profits, pursuant to the decree.

The master reported that Stewart was chargeable with $3276, from which sum was to be deducted the payments made by him, amounting in all to $887, and leaving a balance against Stewart of $2389, and on the 2d of June, 1869, the court decreed that he should pay that sum with interest from the 26th of October, 1868. This the reader will understand was for rents and profits of the real estate only, and not for use of furniture.

At the same time when this decree was made leave was given to the complainant to file an amended bill; 'William Dulany' (said the record), 'an attorney of the court, appearing in court and consenting thereto.'

He thereupon, June 7th, 1869, did file such bill, charging that Hay had participated in the frauds of Stewart, and should be held equally liable with him for rents, and that both were chargeable in addition for loss and damage touching the furniture in the house when Stewart took possession. The bill was taken as confessed by Hay, and on the 21st of August, 1869, it was decreed that he should pay to the complainant on account of rents and for the detention and damage to the furniture, $3389, with interest from the 26th of October, 1868, the date already named in the former decree. Thereafter Hay and Stewart applied to the court to vacate the decrees against them, and for leave to appear and answer; the grounds of their application being that no process upon the amended bill had been served upon them, and that they had no notice or knowledge of its pendency against them until after the decree pro confesso had been entered, nor until a short time before the application now made; and Hay averred and showed by his own oath and by other proofs that Mr. Dulany, the attorney, who had acted for him in that behalf had done so by a misunderstanding, wholly without his consent or knowledge; and he set forth a variety of facts which, if true, made a complete defence to the bill.

On the 23d of December, 1869, the court vacated the decree of the 21st of August, 1869, against Hay, but at the same time and in the same order decreed against him for the sum of $2389, with interest from the 26th of October, 1868, on account of the rents, and ordered that an issue should be tried on the law side of the court touching the furniture; and that Hay and Stewart should both have leave to answer. They thereupon answered as to the whole case; denying each and all of the allegations both of the original and the amended bill. On the 8th of February, 1870, they moved the court for an order for the removal of the case to the Circuit Court of the United States for that district, pursuant to the act of Congress of the 2d of March, 1867. An order was made and the cause was removed accordingly. The whole proceedings in the State court, including, of course, all the bills and the answers, among the latter, the answer of Hay denying each and all of the allegations of the bills, were thus transferred as the record for the circuit of the United States.

In the Circuit Court of the United States Hay and Stewart severally moved the court to vacate the several decrees against them made by the Circuit Court of the county. These motions were heard, and the several decrees were annulled, and it was 'ordered that the case do now stand for hearing on the bill, answer, and pleadings.' Testimony was thereafter taken, by agreement, upon both sides. On the 13th of October, 1873,-near three years after the case had been removed, and when it was ready for hearing-the complainant moved the court to remand it to the court whence it came, he insisting that the act of Congress under which the case had been removed, had not been complied with in respect to time and several other important particulars. The motion was overruled. The case was then heard upon the merits and the bill dismissed.

The complainant appealed to this court, and the case was thus brought here for review.

In the argument here the objection touching the removal of the case from the State court was renewed, and the case otherwise discussed both on technical points and on merits.

Mr. W. Willoughby, for the appellant; Messrs. H. H. Wells and G. W. Paschall, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: French v. Hay (89 U.S. 238)


text: Talk:French v. Hay (89 U.S. 238)

title: Talk:French v. Hay (89 U.S. 238)


text:
French v. Hay (89 U.S. 238)/Opinion of the Court

The objection made in the court below touching the removal of the case from the State court, and which objection has been renewed here, was not made in the court below until the testimony was all taken, the case was ready for hearing, and nearly three years had elapsed since the transfer was made. The objection came too late. Under the circumstances it must be held to have been conclusively waived.

We shall consider the record as regards Stewart and Hay as if they were not joint defendants. The case as to each presents a distinct aspect, and requires a separate examination.

I. AS TO STEWART.

On the 2d of June, 1866, he filed his answer to the original bill. It was subscribed and sworn to by himself, and signed by Mr. Doddridge as his counsel. He thus entered his appearance and placed himself within the jurisdiction of the court. The proceedings thereafter, including his appeal to the State District Court, appear to have been in all things regular down to the removal of the case to the Circuit Court of the United States. The decree of the 8th of December, 1866, from which the appeal was taken, was a final one. When affirmed by the appellate court it was conclusive of the rights of the parties as to everything covered by it, and could not be affected by any action of the Circuit Court of the county or of the United States in the subsequent progress of the case. That decree was res judicata of the most solemn character.

The decree of the 2d of June, 1869, ascertained the amount due from Stewart for the rents, and ordered that he should pay it. This terminated the litigation under the original bill. After the close of that term-except for reasons not claimed nor shown to exist-the court had no power to revoke or modify this decree. Nothing of the kind was attempted. At the same time that this decree was entered leave was given to the complainant to file the amended bill, William Dulany, Esq., an attorney of the court, 'appearing in court and consenting thereto.' The amended bill was filed on the 17th of that month. It sought to make Hay liable also for the rents, and Hay and Stewart liable for the loss and damage as to the furniture. This did not in any wise affect the previous litigation and decrees as to Stewart under the original bill. Those decrees continued to stand as if the amended bill had not been filed. The general rule is that an amendment of the bill gives a defendant the right to answer as if he had not answered before. In the state of the case which existed when the amendment here in question was made, no amendment could be allowed. It was then too late. A final decree covering the entire original case subsisted. The court had no power over that decree and never attempted to exercise any. The further relief sought could be reached, if at all, only by a supplemental bill. It was a gross error to allow the amended bill to be filed. But the point was not made in the State court nor in the court below, nor in the argument here. The case, according to our views, can be properly disposed of without reference to it. We have, therefore, laid it out of view. An amended bill is esteemed a part of the original bill and a continuation of the suit. But one record is made. But the amendment is sometimes of such a character that it is regarded as an independent graft upon the original case and the beginning of a new lis pendens. Stewart complained that Dulany appeared and acted for him as to the amended bill without authority. Whether Dulany did so or not is immaterial. New process is necessary unless waived upon a supplemental bill and a bill of revivor, but not upon an amended bill as to defendants who are already before the court. Being in court they are bound to take notice of the filing of such bills as of any other proceeding in the case. In the English practice the complainant is required to serve a copy of the amendment upon the solicitor of the defendant, but this, it is believed, is rarely if ever done in the courts of the States, unless required by an established rule of practice or a special order in the case. In the courts of the United States the subject is regulated by the twenty-eighth rule of equity practice. The State court, by an order of the 23d of December, 1869, directed an issue to be tried as to the furniture, and gave Stewart leave to answer the amended bill.

This was all he had a right to claim, and left him nothing to complain of. In this condition of things the case went to the Circuit Court of the United States. That court possessed the same power in the case as the State court while the case was before it, no more and no less. It certainly did not sit as a court of errors or appeal with jurisdiction to reverse the final decree of the State court made under the original bill. That would be contrary to the intent and meaning of the act of Congress under which the removal was made. Its authority as to Stewart was limited to the allegations of the amended bill in regard to the furniture. So far as he was concerned it presented no other subject of litigation, and nothing else was open to examination under it. If that bill had not been filed there could have been no transfer as to him. On the 22d of October, 1872, the court below, as before stated, set aside all the decrees of the State court and ordered that 'this case do now stand for hearing on the bill, answer, and pleadings.' The entire case was thsu opened anew, as if nothing had been done under the original bill by the State court. This was clearly an error. We think the liability of Stewart as to the furniture was well made out by the complainant.

The court below, by an issue at law, as directed by the interlocutory order of the State court, or by a reference to a master, should have ascertained the amount and decreed accordingly.

The order vacating the decrees of the State court as to Stewart, made under the original bill, is VACATED. The final decree dismissing the bill as to him is REVERSED, and the case will be REMANDED to the court below with directions to proceed

IN CONFORMITY WITH THIS OPINION.

II. AS TO HAY.

He also filed an answer to the original bill. Like Stewart's, it was subscribed and sworn to by himself, and was subscribed by counsel. He, too, was bound to take notice of the filing of the amended bill. But the original bill claimed no decree against him. The amended bill, as to him, made an entirely new case. It set up the first claim against him as to the rent and the furniture. His own affidavit and the other proofs showed clearly that Dulany had no authority to appear as his counsel; that he had no actual knowledge of the filing of the bill until after the decree pro confesso was taken against him, and that he had a complete defence. It is within the discretion of a court of equity, upon a proper showing, to set aside a decree pro confesso upon such terms as it may see fit to prescribe.

The State court well exercised its authority in setting aside the decree against Hay, but it committed a gross error in decreeing against him eo instanti the payment of $2387 on account of the rent, leaving the case open only as to the furniture. To revoke the first decree because he had been ignorant of the filing of the amended bill, and, hence, had made no defence, and then to renew it without giving him an opportunity to be heard, was, to say the least, a singular anomaly. So far as he was concerned the claim as to the rent and the furniture rested upon exactly the same foundation. If it was proper that he should be heard as to one it was equally so that he should be heard as to the other. There was no difference. The same considerations applied with respect to both. In the renewed decree damages as to the furniture might as well have been included as the charge for the rent. It was no less wrong as to the latter than it would have been as to the former. Time and opportunity to defend being refused, the decree was in effect another decree pro confesso. It certainly was not a decree upon the merits after a hearing upon the charge as to the rents.

After the transfer of the case he applied to the Circuit Court of the United States to vacate this decree upon the same showing as in the State court, and it was done. A bill for fraud could not have been maintained, because there was no foundation for the charge. A bill of review would not have availed him, because there was no error apparent upon the face of the decree nor upon the record. The circumstances under which the decree was rendered were very peculiar. They have been stated. The proper mode of seeking redress was by motion upon the showing which was made. The Circuit Court had the power to do what it did and properly did it. This was less expensive, less dilatory, and much to be preferred to a bill, even if the same relief could have been had in that way. It was also more in accordance with the spirit of sound equity practice.

The entire case made by the bill as to Hay was thus opened. His answer denied all the material allegations against him, and we find in the record no evidence whatever to sustain them. No effort seems to have been made to procure any.

The bill as to him was rightly dismissed, and in this respect the decree of the Circuit Court is

AFFIRMED.

AT the same time with the preceding case was argued, and just after its adjudication was adjudged, another which here follows, an offshoot from the first case, issuing from it as a branch from a main stock. It is requisite, of course, that before reading the smaller case now given, the reader should be possessed of the larger one already reported.


text: Talk:French v. Hay (89 U.S. 238)/Opinion of the Court


text: Category:United States Department of Justice


text:
French v. Hay (89 U.S. 250)

THE present case was thus:

On the 3d of February, 1870, that is to say, six weeks after the decree for $2389 (leaving the matter of furniture open), for rents mentioned in the former case as having been given, 23d of December, 1869, in the County Court of Alexandria, in favor of James French, the trustee, against Alexander Hay, the said French sent a transcript of the decree to Philadelphia, the place of Hay's residence, and sued Hay on it, in one of the local courts there. Hay had, two days before the transcript was sued on, that is to say on the 1st of February, 1870, made the affidavits requisite to remove the case into the Circuit Court of the United States under the act of Congress; though the case was not yet actually removed, nor indeed removed until the 12th following.

On the transcript just mentioned, from the State court, French got a judgment against Hay, in the local court at Philadelphia, March 21st, 1871; and Hay at once took the case on error to the Supreme Court of Pennsylvania, where he had it now pending.

Before the other side could get that court to proceed in the case, Hay filed a bill-the present bill-in the court below-the Circuit Court for the Eastern District of Virginia-into which he had, before this time and with a view of vacating all that had been done there, removed the case from the County Court of Alexandria, in which French as trustee had got the decree against him for rents, and was about proceeding for the furniture. And in his said now bill prayed for and at once obtained, a preliminary injunction to restrain French from proceeding further in Pennsylvania or elsewhere to collect his decree in the County Court of Alexandria on the transcript. And the said Circuit Court having at a later date annulled that decree and dismissed the bill on which it was founded (a course of action which this court in the last preceding case approved and affirmed) proceeded now, after answer put in and testimony taken, to make perpetual the preliminary injunction which it had previously granted restraining French from suing in Pennsylvania or elsewhere on the transcript of the decree so ultimately, with the affirmance of this court, annulled as aforesaid.

From this its action French took this appeal.

Mr. W. W. Willoughby, for the appellant:

1. When the case of French, Trustee, v. Hay et al. was removed from the Alexandria County Court into the Circuit Court of the United States, Hay, if he meant to restrain the use of the transcript, could have filed a cross-bill; and that would have been the proper way. What we now have is an original bill, asking the Circuit Court of the United States for Virginia to take jurisdiction of things in the State of Pennsylvania. This sort of bill was unallowable.

2. But there was a graver objection to the decree from which we appeal. Its effect is to restrain the proceedings of a State court. The Circuit Court of the United States for Virginia is asked to and does restrain the party from prosecuting a suit or enforcing a judgment which he has in the court of the State of Pennsylvania. Now, the Judiciary Act enacts:

'Nor shall a writ of injunction be granted to stay proceedings in any court of a State.'

It is of no pertinence to argue that though the court itself could not be enjoined, yet that a party suing in it may be. This would do indirectly what the statute says shall not be done at all. In Peck v. Jenness the court say:

'The fact that injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are a necessary result of an attempt to exercise that power over a party who is a litigant in another independent forum.'

Even though a State court might enjoin a party from using or enforcing a judgment in another State, the Federal court cannot enjoin proceedings in any State court. The act of Congress has no effect upon the State court, but it has upon a Federal court, and says such court shall not enjoin proceedings in a State court.

Messrs. H. H. Wells and G. W. Paschall, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: French v. Hay (89 U.S. 250)


text: Talk:French v. Hay (89 U.S. 250)

title: Talk:French v. Hay (89 U.S. 250)


text:
French v. Hay (89 U.S. 250)/Opinion of the Court

A stronger equity can hardly exist than that which is developed in favor of the appellee in the case before us.

The order of the court below, annulling the decree upon which the suit at law in Pennsylvania was founded, was fatal to that action, and entitled Hay to a perpetual injunction, without reference to the final result of the prior case.

This bill is not an original one.

It is auxiliary and dependent in its character, as much so as if it were a bill of review. The court having jurisdiction in personam had power to require the defendant to do or to refrain from doing anything beyond the limits of its territorial jurisdiction which it might have required to be done or omitted within the limits of such territory. Having the possession and jurisdiction of the case, that jurisdiction embraced everything in the case, and every question arising which could be determined in it until it reached its termination and the jurisdiction was exhausted. While the jurisdiction lasted it was exclusive, and could not be trenched upon by any other tribunal. The court below might, upon a cross-bill, and, perhaps, upon motion, have given the relief which was given by the interlocutory and the final decree in the case before us.

If it could not be given in this case the result would have shown the existence of a great defect in our Federal jurisprudence, and have been a reproach upon the administration of justice. In that event the payment of the annulled decree may be enforced in Pennsylvania, and Hay, notwithstanding the final decree in that case, and in this case, would find himself in exactly the same situation he would have been if those decrees had been against him instead of being in his favor. They would be nullities as regards any protection they could have given him. Instead of terminating the strife between him and his adversary, they would leave him under the necessity of engaging in a new conflict elsewhere. This would be contrary to the plainest principles of reason and justice.

The prohibition in the Judiciary Act against the granting of injunctions by the courts of the United States touching proceedings in State courts has no application here. The prior jurisdiction of the court below took the case out of the operation of that provision.

If the State courts should persist in proceeding-a thing not to be expected-the wrong will be on the part of those tribunals and not of the court below.

DECREE AFFIRMED.


text: Talk:French v. Hay (89 U.S. 250)/Opinion of the Court


text:
Connoyer v. Schaeffer

ERROR to the Supreme Court of Missouri; the case being thus:

An act of the 2d March, 1805, for enabling claimants of land in the territory acquired by us from France in the year 1803 (within which territory the present State of Missouri is included), to have their incomplete titles to lands confirmed and perfected, enacts that the claimant of such land shall file within a certain time, with the register or recorder of land titles of the district, his notice in writing, together with every grant, 'order of survey, deed, conveyance, or other written evidence of his claim,' and that unless he shall so file 'such written evidence,' all his right shall be void. 'Nor shall any grant,. . . deed of conveyance, or other written evidence,' says the act, 'which shall not be so recorded, as above directed, ever be considered or admitted in evidence in any court of the United States, against any grant derived from the United States.'

The act then provides for the appointment of commissioners, who were to hear and decide in a summary manner 'all matters respecting such claims.'

By a subsequent act, one of 21st April, 1806, the time for filing the 'notices in writing and written evidences of claims' was extended, but with a similar provision, as to all claims not so presented being barred, and the evidence of them not admitted in evidence if not so filed. The act enacts that oral testimony may be heard in support of or opposition to such claims.

Under these acts many old French and Spanish tiles in Missouri were examined and confirmed. But the acts expired before all that were filed could be disposed of. Accordingly new acts were passed; one July 9th, 1832, and one March 2d, 1833, providing 'for the final adjustment of land claims in Missouri.' These acts provided for a board of commissioners to 'examine all unconfirmed claims to lands in that State heretofore filed in the office of said recorder according to law;' and enacted that in examining these claims heretofore filed, they 'shall proceed in the examination in a summary manner, with or without any new application of claimants.' Under these acts, therefore, no new claim could be filed before the board; the commissioners were only to pass upon the claims already filed.

These statutes being on the statute-book, Louis Labeaume, on the 27th of June, 1808, gave notice to the old board of commissioners-that is to say, the board proceeding under the acts of 1805 and 1807-of his claim to a lot of land-a common field lot in the city of St. Louis. The tract had been conceded in 1772 by the acting lieutenant-governor of the Spanish government to a certain Francoise, widow Dodier; Labeaume, of course, claiming by conveyances under her.

The conveyance to Labeaume, as filed before the boards as evidence of his title, showed two different conveyances on the same paper. One conveyance was from eight persons named, who purported to be the right heirs of the widow Dodier, and was dated 18th August, 1806; one of the eight persons being a certain Joseph Hortez, who signed the conveyance in behalf of Margaret Bequette, his wife, as one of the heirs of the said widow. The other conveyance was from the same Hortez, and in this conveyance he conveys the tract as having been acquired by him, at a judicial sale, as the property of the said widow, made and ordered by the lieutenant-governor; but the proces verbal (or record, to use the English term) of which sale and adjudication, the deed recites had been lost in the secretary's office. This deed was dated the 23d August, 1806, was acknowledged, and with the acknowledgments appended thereto was recorded in the recorder's office of St. Louis County.

The board before which Labeaume appeared and presented the concession and his derivative title-papers-that is to say, the board acting under the acts of 1805 and 1807-did not confirm his title.

Labeaume himself died in 1821, having made a will by which he devised all his estate to his widow.

After the passage of the acts authorizing the appointment of a board to examine claims previously filed according to law, but not confirmed, a son of Labeaume appeared before the new board and presented in behalf of his mother as now representing the original claimant, the claim originally filed by Labeaume. And in June, 1835, this board reported 'that this claim ought to be confirmed to the said widow Dodier or her legal representatives,' and it was so confirmed accordingly, by act of Congress of July 4th, 1836.

In this state of things, a certain Schaeffer (A.D. 1860) being in possession and now confessedly vested with whatever title was vested by these proceedings in Labeaume, Connoyer, and others (who it was equally admitted was, as to a part of the premises in controversy, vested with whatever title passed to the heirs of the widow Dodier by virtue of the confirmation) sued him in ejectment.

On the trial, the plaintiffs, already mentioned as heirs of the widow Dodier, relied on the confirmation as being to her, and to her legal representatives, contending that from defective execution the deeds upon which Labeaume founded his derivative title could pass no title, and therefore that there could have been no confirmation to him made upon them.

The defendant, who had put in evidence the original deeds set out in the proceedings of the first board, relied much more on the confirmation; he contending that the history of these confirmations of land claims under the already-mentioned acts of Congress showed that there were two classes of cases which came before the boards:

1st. Where the claimant exhibited only the original concession and did not attempt to show any title out of the person to whom the concession had been made originally.

2d. Where, with the original concession, there were exhibited mesne conveyances, which the claimant relied on as bringing the title down to himself.

And that while in the former class of cases nothing was established on a confirmation to the original grantee and his representatives but the title of that grantee, in the second, under the decision of this court in Bissell v. Penrose both the title of the original grantee and the derivative title to the claimant were established.

The defendant therefore insisted that the regularity of the papers accompanying Labeaume's claim could not be inquired into, as the confirmation when made inured to Labeaume, if living, and if dead, to his legal representatives.

The court in which the ejectment was brought held that the confirmation of the lot sued for inured to Labeaume, and those claiming under him, and not to the widow Dodier and her heirs. As the plaintiffs claimed as such heirs, that ruling of the court decided the whole case. The holding being affirmed in the Supreme Court of the State of Missouri, the plaintiffs brought the case here.

The question, of course, was to whom did the confirmation inure? If to Labeaume, then it was an unimportant inquiry whether the title-papers produced by him were imperfectly executed or not. If to the legal representatives of the widow Dodier, the inquiry was important.

It may be here added, though the thing is scarce worth reporting, that for the purpose of showing that those from whom he sought to deduce title were claimants before the land commissioners, the plaintiff sought to introduce, in connection with the Dodier claim, a certified copy of a request in writing, as found of record in the office of the recorder of land titles in and for the Territory of Missouri, signed by one T. B. Reddick and twelve others, in which these thirteen requested the recorder, 'for the benefit of all parties interested, to record the registered concessions in Livre Terrein, Nos. 1, 2, 3, 4, 5, and 6, on file' in his office. It did not appear that those under whom the plaintiffs claimed had any agency in giving this notice. No evidence was offered connecting them with the transaction, nor did it appear that any signer was interested in the lands or represented any one who was.

The court in which the ejectment was brought rejected this evidence; and the Supreme Court, adverting to the characteristics of it just mentioned, confirmed its action; adding 'that the paper pointed to a mass of books, and asked that certain records should be made, but named no claimant, described no lands, and did not intimate that any one was in fact claiming under any of the concessions referred to.'

Mr. C. C. Whittelsey, with whom was Mr. H. A. Cunningham, for the plaintiffs in error, asserted the true rule of law to be, that where the board of commissioners omitted all mention of the person presenting the claim as assignee of the original grantee of the former government, and confirmed the claim to the legal representatives of the person who held the claim by grant from the French or Spanish governments, then that the confirmation inured to the benefit of the persons showing themselves to be the legal representatives of such grantee by inheritance as heirs, or by will as devisees, or by conveyance as purchasers, and did not inure to the benefit of the party filing the claim, except so far as he showed himself by plainly good muniments to be the legal representative by descent, devise, or purchase.

It was impossible, the counsel argued, to read over the list of claims filed before the board of commissioners, or with the recorder of land titles, prior to 1814, and then to examine the list of confirmations, without observing in how many cases the commissioners confirmed the claims as against the United States, but refused to decide that the claimant was the person entitled to the land by derivative title. By examining these reports it would be seen that the commissioners issued certificates sometimes by name to the person filing the claim, sometimes to the claimant as assignee, and sometimes to the representatives of the person under whom the claim was claimed.

The form 'to the original concessionee or his legal representatives' by descent, devise, or purchase, left the question open to inquiry in a court of justice, to whom the certificate, confirmation, or patent should inure, and thus saved the officers of the government the necessity of deciding upon many and difficult questions of derivative title. When, therefore, the board of commissioners in their action, June, 1835, declared that this claim ought to be confirmed to the said 'widow Dodier or her legal representatives,' they plainly showed that they did not intend to confirm the land to Labeaume or his representatives by name, for he was not named in the judgment of confirmation.

The assumption that the judgment of confirmation inured to the benefit of the person who filed the claim in all cases, when the party presenting the claim presented any evidence whatever, to show a derivative title from the original concessionee of the former governments, took from the board of commissioners all authority to pass upon the validity of the derivative title, and rendered their decision nugatory. Must they decide in express words that the derivative title was invalid, and so enter it of record and reject the claim for that reason, although as against the government the original claim was equitably entitled to confirmation, or were they at liberty to put this question by and leave it to be settled by the courts as advised by the attorney-general?

Of course, if the confirmation inured to Labeaume simply because he in person appeared to present the claim, that closed the case; but such a position could not be maintained.

The learned counsel, referring to Bissell v. Penrose, much relied on by the plaintiff, contended that if it applied to this case at all, it was in reality inconsistent with the well-established rule in regard to the confirmation of land claims previously laid down in Strother v. Lucas, and moreover could not be reconciled with what of quite late time had been implied in Hogan v. Page; that, in addition, the case could not be maintained on principle.

The rejection of the copy of the paper signed by Reddick and the twelve others, was not strongly insisted on.

Messrs. Glover and Shepley, contra, contending that the confirmation inured to Labeaume, relied on Bissell v. Penrose, in support of that position, arguing that the cases of Strother v. Lucas and Hogan v. Page were misconceived and misapplied by the learned counsel opposing.

Mr. Justice DAVIS delivered the opinion of the court.

title: Connoyer v. Schaeffer


text: Talk:Connoyer v. Schaeffer

title: Talk:Connoyer v. Schaeffer


text:
Connoyer v. Schaeffer/Opinion of the Court

The substantial point of inquiry presented in this case is, to whom did the confirmation inure? The question which we are thus called on to answer, is not a new one. If it were, it would certainly not be free from difficulty. It has, however, been settled so long that it has become a rule of property, and it would produce infinite mischief to disturb it.

Two classes of claims were presented to the commissioners-one where the claimant exhibited with his claim evidence of a derivative title from the concedee, the other where he only produced the original concession without attempting to show his connection with it.

In the latter class of cases the claim, if confirmed, has been held to have the effect of a confirmation to the legal representatives of the person to whom the original concession was made. This ruling proceeds upon the theory that the commissioners passed upon nothing but the merits of the original concession, having no opportunity to pass upon the validity of anything else. Of this class, where no evidences of derivative title at all were filed with the concession is the case of Hogan v. Page.

But where the claimant presented before the board, besides the original title, evidences of derivative title, it has been held that the commissioners decided upon both, and that the confirmation operated as a grant to the claimant, although his name was omitted in the form of confirmation. This was expressly ruled in Bissell v. Penrose. The claim there was confirmed to Benito, Antoine, Hypolite, Joseph, and Pierre Vasquez, or their legal representatives, according to the concession. Rudolph Tillier presented the claim for confirmation and produced the concession, with written evidence of his title, which would appear to have been imperfect. It was argued there, as here, that the act of 1836 confirms only the Spanish concession in the abstract, but the court held otherwise, and decided that the title was confirmed to Tillier, the assignee, as claimant. Besides the general reasoning on which this opinion is based, the decision in Strother v. Lucas, and the usages of the land office are cited in support of it.

Shortly after the decision in Bissell v. Penrose, the case of Boone v. Moore arose in Missouri. The confirmation in that case was to David Cole, or his legal representatives. The claim was filed by Jesse Richardson, who produced before the old board his derivative title-papers. The Supreme Court of Missouri held that the confirmation was to Richardson, and not to the legal representatives of Cole, on the authority of Bissell v. Penrose, and this, too, while evidently doubting the propriety of that decision. The same point was again presented to the Supreme Court of Missouri in Carpenter v. Rannells, with the same result. The record in that case shows that James Bankson, as assignee of John Butler, under an executory contract, claimed the land, and produced to the board the evidence upon which a confirmation was granted. The judgment of confirmation, however, was to John Butler or his legal representatives, but the court held, on the authority of Bissell v. Penrose and Boone v. Moore, that the legal effect of this confirmation was to vest the title in Bankson. The principles in this case are examined and adhered to in the case of the present plaintiffs against Labeaume's heirs, reported in 45 Missouri, 139.

The case of Carpenter v. Rannells was brought to this court, and it was held, substantially, that Bankson, having presented the claim and filed his paper title with it, the confirmation inured to him, and that no other representative of Butler, whether hereditary or by contract, had any right, legal or equitable, to the premises in controversy.

It would seem that these cases should be decisive of the question at issue. Instead of this the plaintiffs seek to overturn the authority of Bissell v. Penrose, on which all the cases rest. It is too late to question the soundness of that decision. To permit it to be done now would not only unsettle titles to which this decision is applicable, but weaken confidence in all titles in Missouri growing out of Spanish concessions. There can be no hardship in applying the doctrine of Bissell v. Penrose to the facts of this case. After the lapse of more than sixty years Leabeaume's title is disputed in behalf of persons who never appeared before the commissioners with any claim of their own. In that early day there must have been great ignorance among the people of the forms of legal papers. And this fact was, doubtless, considered by the commissioners in reaching the conclusion which they did. They treated the papers of Labeaume as a transfer to him of all the interest that the heirs of Dodier had in the premises, and having the power to adjudicate the title to the claimant on such papers as he presented, their decision, having been confirmed by Congress, whether right or wrong, is final.

An attempt was made in this case to show that the persons from whom the plaintiffs seek to deduce their title were claimants before the board of commissioners, but this attempt wholly failed. It is unnecessary to discuss the piece of evidence introduced for this purpose, for the Supreme Court of Missouri in their opinion have said all that can be said on the subject.

JUDGMENT AFFIRMED.


text: Talk:Connoyer v. Schaeffer/Opinion of the Court


text:
Hampton v. Rouse (89 U.S. 263)

ERROR to the Circuit Court for the Southern District of Mississippi; the case being thus:

A valuable planation in Mississippi belonging to Wade Hampton, and at the time in his possession, though mortgaged by him, was sold on the 11th of April, 1867, to John Rouse, under a statute of the State just named, entitled 'An act to incorporate the Board of Levee Commissioners, &c.' This act gives to this board power to assess taxes on lands such as the plantation of Hampton was, and if the taxes are not paid to have the sheriff sell the lands.

It contains, however, this provision on the subject of redemption:

'The sheriff's deed, however, for all lands sold for taxes, shall be and remain with the probate clerk; and should the owner or owners of said land, their agents or attorneys, apply, they, or either of them, shall be entitled to the redemption of said land at any time within two years of the day of sale, upon the payment of the purchase-money, &c., &c. This redemption may be made from the levee treasurer or from the probate clerk where the sheriff's deed is kept.'

In this state of things Hampton, on the 29th of December, 1868, applied for the benefit of the Bankrupt Act, and on the 17th of April, 1869, was decreed a bankrupt under it. On the 19th, an assignee in bankruptcy was appointed.

The Bankrupt Act of March 2d, 1867, the now existing act and the one under which Hampton was decreed bankrupt, enacts:

'SECTION 11. If any person owing debts provable under this act exceeding the amount of $300, shall apply by petition to the judge of the judicial district in which such debtor has resided,. . . setting forth his inability to pay all his debts in full, his willingness to surrender all his estate and effects for the benefit of his creditors, and shall annex to his petition a schedule containing a full and true statement of all his debts,. . . also an accurate inventory,. . . of all his estate, such petitioner shall be adjudged a bankrupt.'

The same section of the act, at its close, further directs that the district judge in that state of the case, shall issue a warrant directed to the marshal of the district, authorizing him to publish notices in such newspapers as the warrant specifies; to serve written or printed notices on all creditors named in the schedule filed with the petition of the applicant, and to give such notice to all concerned as the warrant directs, which notice shall state as follows:

(1.) That such a warrant has been issued.

(2.) That the payment of debts or the delivery or transfer of property to the debtor is forbidden by law.

(3.) That the creditors will meet, on a day therein named, to prove their debts and choose an assignee.

The twelfth section enacts that at the meeting of the creditors, such as the preceding section contemplates, one of the registers of the District Court shall preside, and that the creditors in his presence shall choose one or more assignees of the estate of the debtor.

The act then goes on in its fourteenth section thus:

'As soon as said assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register,. . . shall by an instrument under his hand assign and convey to the assignee all the estate real and personal of the bankrupt, with all his deeds, books, and papers relating thereto; and such assignment shall relate back to the commencement of said proceedings in bankruptcy, and thereupon, by operation of law, the title to all such property and estate, both real and personal, shall vest in said assignee.'

The Bankrupt Act of 1841 differed, as to the mode and time of appointing the assignee in bankruptcy, from the now existing and above-quoted act of 1867. It ran thus:

'SECTION 3. That all the property and rights of property,. . . of every bankrupt. . . shall, by mere operation of law, ipso facto, from the time of such decree be deemed to be divested out of such bankrupt without any other act or conveyance whatsoever; and the same shall be vested by force of the same decree in such assignee, as, from time to time, shall be appointed by the proper court for the purpose.'

Hampton being still in possession of his land, Rouse now brought ejectment against him for it; and on the trial Hampton offered to prove that on the 10th day of April, 1869-that is to say, 'within two years of the day of sale,' the same having been made as above stated on the 11th of April, 1867-his son, as his agent, offered to redeem the land, under circumstances which made the offer equivalent to a redemption.

The son testified in substance thus:

'On the 10th of April, 1869, I went as agent of Wade Hampton to the office of Mr. Haycroft, the levee treasurer, and offered to redeem the lands in controversy. I had the means to redeem the lands. There were so many applicants waiting to redeem lands before me that I could not then be attended to. The press of business in the treasurer's office prevented my redeeming the lands when I went on the 10th of April, and that pressure continued until the time of redemption had passed.

'The means which I had were levee bonds. They were my means and not my father's. They were in the hands of Mr. Haycroft, in his office. Some of them had been converted into currency. I do not know how much. The proceeds of some of these bonds had been applied to the redemption of another estate, which was redeemed entirely out of them.

'When I applied to redeem these lands, in controversy, Mr. Haycroft exhibited a map of the county to me, and it was perfectly understood between him and myself what lands I wished to redeem, and also the taxes of what year. He knew at the time what means were to be used in redeeming said lands, and he made no objection, and the only reason why the lands were not then redeemed was because of the press of business in his office.'

Mr. Haycroft, the levee treasurer, referred to above, testified that he occasionally sold the levee bonds, such as just above spoken of, as an accommodation to taxpayers, and with the proceeds paid the redemption-money; that he had done so in the case of other lands for Hampton; but that it was no part of his official duty so to sell bonds and apply the proceeds; that in this case he had told Hampton's son that he would have to pay in currency. He added, however, that the applications for redemption on the 10th of April, 1869, were so numerous that he could not on that day have attended to the redemption of these lands under any circumstances; and that on the 11th the time expired.

The court charged the jury,

'That Wade Hampton, having been adjudged a bankrupt on his own application, after the land was sold for the taxes, had thereby ceased to be the owner of the land, and had lost the right to redeem.'

And this charge was assigned for error.

Messrs. James Lowndes and W. W. Boyce, for the plaintiff in error:

It is clear that under the eleventh and twelfth sections of the Bankrupt Act, the decree in bankruptcy does not, under the present Bankrupt Act, divest the debtor of his estate, though under the act of 1841 it did do so in terms. Under the present act the decree only settles the fact that the debtor is a bankrupt; that is to say that he cannot now pay his debts as they come due.

It is by what is prescribed in the fourteenth section as to be done-that is to say, by the appointment of the assignee and the assignment and conveyance to be executed, 'as soon as said assignee is appointed,' that the debtor's property is divested. Now, as no assignee was appointed in this case, nor any assignment or conveyance made until several days after the offer to redeem was made, it can only be through the words at the close of the paragraph which declares that 'such assignment shall relate back, &c.,' that it can be pretended that the redemption was of no effect. But while the assignment and conveyance vest the assignee with 'the title to all such property and estate' as the bankrupt had when the proceedings were begun, it does not follow that they vest him with that title wholly unaffected by what has been lawfully done as to the estate in the meantime; what has been done by way of benefit to the estate. If, for example, a debtor at the time when the proceedings in bankruptcy were begun, had land heavily charged by mortgage, and by the voluntary act of the mortgagee the mortgage were satisfied, would the assignee take the land still subject to the mortgage or discharged from it? or if the debtor or any one else put on the land valuable improvements, would the assignee get those improvements or not get them? We suppose that the assignee in one case would take the land clear of the mortgage, and in the other would take it improved by the new erections. In the case now before the court, a defeasible estate is made by the act of the debtor, between the time of the decree and that of the assignment and conveyance, and indefeasible one. In this case as in the former ones, we suppose that the assignee in other words the creditors or the assets-get the benefit of what is done. They still get 'all the title to all such property and estate.'

But even if the estate were vested in the assignee the old owner could redeem.

I. In Dubois v. Hepburn, this court said:

'Any right which in law or equity amounts to an ownership in the land; any right of entry upon it, to its possession or enjoyment, or any part of it which can be deemed an estate, makes the person the owner, so far as it is necessary to give him the right to redeem.'

Now, though a man may be a bankrupt-that is to say, though he may be unable to pay all his debts as they fall due, and though his estate may be passed accordingly to his assignee in bankruptcy it does not follow that the debtor may not himself afterwards, from other property, coming to him by descent or gift or other good fortune, pay all his debts; nor follow that without this good fortune of any kind the assignee may not, with the proceeds of the assigned estate, pay all the debts and return a surplus to the former debtor. The debtor has, therefore, 'a right which in equity amounts to an ownership.' He has a right to pay the debts, and if he do pay them, all the estate is his; or if the assignee pay them from a part of the estate assigned, all the residue of the estate is equally his. Such an interest, says the above-cited case, 'makes the person owner so far as it is necessary to give him the right to redeem;' for that case makes 'any (possible) right of enjoyment of any part of it enough,' if that part can be called an estate. Indeed it is only by a liberal construction of the word 'owner' that an assignee in bankruptcy can redeem. Strictly speaking he is but a trustee to pay debts, and return any balance to the debtor

It may be here observed that long since the case of Dubois v. Hepburn, this court has twice construed statutes authorizing redemption from taxes, with the utmost benignity. The cases of Bennet v. Hunter, in 9th Wallace, and Tracy v. Irwin, in the 18th of the same reports, show this; the former case deciding that any person may act as the owner's agent to redeem, and that the action of such person if ratified by the proper party operates as a redemption. If it were necessary to enlarge the scope of Dubois v. Hepburn these cases minister the means. But it is not necessary.

We assert, therefore, that notwithstanding the retroactive words of the fourteenth section of the Bankrupt Act of 1867, Hampton had still the right to redeem. No doubt the assignee also had. So indeed had any creditor; or, if the proper person ratified the act of redemption, any person whatever. It would certainly be monstrous if an estate worth $100,000, which had been sold for $500 tax, should be wholly lost to creditors because the bankrupt owner had no right to redeem and the assignee as yet no money to do so; or because the time for redemption expired between the time of filing the petition and the appointment of the assignee.

II. If our views are at al correct, then the charge was wrong. We assert that under the two last cases above cited from Wallace, that which was in law a tender was made. But whether or not, evidence was certainly given tending to show that a tender was made; and if such evidence was given, the charge was equivalent to having rejected the evidence on the trial. To have done this would have been error.

Mr. P. Phillips, contra:

The fourteenth section of the Bankrupt Act enacts that 'the assignment shall relate back to the commencement of the proceedings in bankruptcy;' and thereupon, 'by operation of law,' the title to all the property of the bankrupt shall vest in the assignee. The present act herein goes further than did the act of 1841. Under the third section of that act the bankrupt's estate was divested out of him ipso facto by the decree. But so, too, under that act, the assignee in bankruptcy was appointed by the court, at the moment of the decree made. In fact, in some courts, the assignee was always the same person in all cases; so that he was really a permanent officer of the court existing previously to the decree. There was thus a person in whom the estate could, on the divestiture from the bankrupt, immediately vest. The present act, we say, goes further, and means to vest the bankrupt's property in his assignee from the time that proceedings are begun from the time, namely, that the debtor himself has proclaimed that he was bankrupt, or is shown by his creditors to have been so. And, why should it not so vest it? The bankrupt's estate ought to pass from him from that time if bankrupt acts are to prevail at all. But this difficulty occurred here. Under the present act the assignee is not an officer of the court, but is appointed in each case by the creditors, pro re nat a. He cannot be appointed, therefore, until after the petition is filed, in other words, until after 'the commencement of the proceedings.' The creditors must have notice of them, and meet before they can appoint the assignee. If, therefore, the act had said that the estate of the debtor 'shall be divested from him on the commencement of proceedings in bankruptcy,' there would be no one in whom it could vest. It would be in nubibus. It accordingly leaves it to the assignment to divest the estate, but declares that 'such assignment shall relate back to the commencement of the proceedings.'

But whatever may have been the reason for the special character of the enactments, the language of the fourteenth section is positive; and under the enactment made by it all the property of Hampton, as he owned it, on the day when he filed his petition, vested in the assignee. Thus vesting, Hampton was not 'owner' of it when the alleged offer to redeem was made. The assignee was owner, and he alone had power to redeem.

The statute of Mississippi doubtless uses the word 'owner' in the sense in which people ordinarily use it. Now, people do not ordinarily call a man owner of an estate after a bankrupt act has, even by relation back, divested him of the estate which he once had. A person may be interested in an estate-a lien-creditor is directly interested, and every creditor is interested indirectly but he is not owner in either a legal or a popular sense.

The case, therefore, does not come within any expressions in Dubois v. Hepburn, nor is it helped by Bennet v. Hunter. The first case decided that 'the owner, either acting in person or through some friend or agent, compensated or uncompensated,' might redeem-in other words, that anybody might redeem, if professing to act in behalf of the 'owner'-and that a ratification by the owner would be presumed in furtherance of justice. But the case does not decide that a 'no owner,' acting either in person or through some friend or agent, may redeem. In the present case, had an assignee been appointed, and had Hampton's son, without being authorized so to act, professed to act for him, the case would be in point. But the son did not so profess to act; but professed to act, and was authorized to act, for quite another person, to wit, his father, who was not owner.

Nor does Tracy v. Irwin help the difficulty of this part of the case; though it may help the difficulty of another part; the part, namely, involving the question whether Hampton's son made any tender for anybody. Tracy v. Irwin decides that if tax collectors, being bound, as they are in law, to receive redemption-money from the agents of owners, announce by general announcements that they will receive it from nobody but owners themselves, an agent who goes to the proper office to pay, need not show an actual offer of the money. And this we admit to be good law. If he had the money ready to tender, it was enough; for an actual tender would have been nugatory. But, as we have said, this case does not show at all who is owner, or that the agent of a person not owner need or need not do anything.

Everything here, it is to be observed, is statutory. Considerations of common law do not come in; still less any equitable ones. It is a case where the oft-quoted sentence of the great English Chief Justice, Sir Henry Hobart, is applicable: 'The statute makes sure work. The statute is like a tyrant. Where he comes, he makes all void; but the common law is like a nursing father.'

But there was no tender by anybody, or at any time. Hampton's son offered to redeem the premises, not by the payment of any money in his hands, but out of the proceeds of certain bonds which had been deposited in the hands of Haycroft, the treasurer, and which were then unsold and which the levee treasurer was under no official obligation to sell. The evidence shows that the levee treasurer told Hampton's son that he must pay the redemption-money in currency. But if he had not so told him, and if the treasurer had specially undertaken to redeem the lands, yet-as it was no part of his official duty thus to undertake or to redeem-his failure to redeem, from whatever cause the failure arose, and even if it arose from fraud, could not avoid the deed made to Rouse by the treasurer in the discharge of his official duty. Under the case of Tracy v. Irwin it cannot be doubted that the party going to see about the redemption must be able to redeem; that is to say, must have, somewhere at command, money to redeem with.

Of course, if there was no tender in law, the court properly charged as it did. Indeed, it would have acted properly enough had it excluded the evidence in the first place; the old doctrine about submitting a case, if there is a scintilla of evidence, having been long an exploded one.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Hampton v. Rouse (89 U.S. 263)


text: Talk:Hampton v. Rouse (89 U.S. 263)

title: Talk:Hampton v. Rouse (89 U.S. 263)


text:
Hampton v. Rouse (89 U.S. 263)/Opinion of the Court

It appears by the record that the offer to redeem was made by the agent of the owner on the 10th of April, 1869, less than two years from the sale. This was within proper time, as allowed by law.

It is clear that a decree in bankruptcy, without more, will not, under the Bankrupt Act, which in the first part of its eleventh section provides for the decree, have the effect to discharge the debts of the petitioner nor to divest him of the title to either his real or personal estate. And argument is hardly necessary to show that none of the proceedings contemplated in any part of the eleventh section, or those directed in the twelfth, have that effect, as neither of the sections contains any language whatever to import or indicate that anything of the kind was intended by the framers of the act.

Conclusive support to this view, if any be needed, is derived from the fourteenth section of the act. Prior to the assignment and conveyance authorized and directed by that section, the title, whatever it be, of the estate belonging to the debtor, both real and personal, remains unchanged, except that the court, in certain cases, may in the meantime restrain the debtor or any other person, by injunction, from making any transfer or disposition of any part of the same, not excepted from the operation of the act.

Sufficient appears in the sections of the act referred to, when considered in connection with the admissions and other evidence exhibited in the record, to show beyond doubt that the instruction of the court under discussion is erroneous, and that the error was of a character to supersede every question of fact submitted to the jury.

Plenary evidence was given that the offer to redeem, as exhibited in the transcript, was made on the 10th of April, 1869, and the assignee of the estate of the bankrupt was not appointed and qualified as such until the 19th of April in the same year, and the testimony reported shows that the bankrupt was in the possession of the premises and that he ever after continued in the possession of the same to the present time.

Whether or not the evidence introduced to prove that an offer to redeem the premises was made at the time was sufficient to avail the defendant as equivalent to a tender, it is not necessary at the present time to decide, but the court is of the opinion that it was of such a character, in view of a recent decision of this court, that it ought to have been submitted to the jury, untrammelled by a prior instruction, which in substance and effect amounted to a direction to the jury that their verdict must be for the plaintiff.

Such an offer to redeem it was held, in the case of Bennet v. Hunter, might be made by the owner or by an agent or by any person willing to act for the party interested, upon the ground that an act done by a third person for the benefit of another is valid if ratified either expressly or by implication, and that such ratification will be presumed in furtherance of justice. Since that time it has also been decided, in the case of Tracy v. Irwin, that if the tax commissioners announce that they will not receive the payment of the taxes in such cases unless tendered by the owner, that a formal offer by another to pay is unnecessary, that it is enough if a relative of the owner went to the office of the commissioners to see after the payment of the tax, even though he made no formal offer to pay, because such an announcement is in effect a waiver of a tender by the commissioners, they having declined to receive payment unless the tender is made by the owner in person.

Apply that rule to the case and it is clear that the evidence introduced by the defendants tending to show an offer to redeem the premises should have been submitted to the jury under proper instructions. Instructions of the kind, however, would have been useless after the jury had been told that the defendant ceased to be the owner of the land, and that he lost his right to redeem the same when he was adjudged a bankrupt, it appearing that the decree was entered before the offer to redeem was made, as assumed by both parties.

Enough appears in the language of the fourteenth section of the Bankrupt Act to demonstrate the proposition that the instruction of the Circuit Court in that regard was incorrect, nor is the question affected in the least by the fact that the same section provides that such assignment or conveyance shall relate back to the commencement of the proceedings, as the instrument of assignment cannot operate either retrospectively or prospectively before it is executed. Until an assignee is appointed and qualified and the conveyance or assignment is made to him, the title to the property, whatever it be, remains in the bankrupt, which is the plain meaning of the fourteenth section of the Bankrupt Act. Different regulations in that respect were enacted in the former Bankrupt Act, as the third section of that act provided that 'all the property and rights of property, of every name and nature, of the bankrupt, not excepted from the operation of the act,. . . shall, by mere operation of law ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt, without any other act, assignment, or other conveyance whatsoever.' Unlike the old act, the existing act makes it the duty of the court, or, where there is no opposing interest, of the register, by an instrument under his hand, to assign and convey to the assignee all the estate, real and personal, of the bankrupt, and the rule is that such a conveyance or assignment divests the bankrupt of the whole of his property, except what is exempted from the operation of the Bankrupt Act, and vests the title to the same in the assignee, but the record in this case shows that no assignee had been appointed when the alleged offer to redeem was made, which affords a demonstration that the charge of the court that he had ceased to be the owner of the land and thereby lost his right to redeem was improper, being equivalent to a direction to the jury to find a verdict for the plaintiff.

JUDGMENT REVERSED, and the cause remanded with directions to issue

A NEW VENIRE.


text: Talk:Hampton v. Rouse (89 U.S. 263)/Opinion of the Court


text: Mechanics' and Traders' Bank v. Union Bank


text: Talk:Mechanics' and Traders' Bank v. Union Bank