text:
Williams v. McLane/Opinion of the Court

The defendants recovered a judgment in the District Court, in a plea of debt against one Mahone. The latter having no property in possession liable to an execution, the defendants, in consequence, served a garnishment on the plaintiff, (Williams,) to attach any debt he might owe their debtor, or secure any effects of theirs he might have.

The garnishee answered to the process, that on the day the writ of garnishment issued, he had sold some personal property of the debtor, under the authority of two deeds of trust, for the satisfaction of the debts described in them; and there remaining a balance due, he sold a house and lot, described in one of the deeds, for a sum sufficient to extinguish those debts and to leave a surplus. He further answered that Mahone, prior to the judgment, was indebted to him upon another account, and had so continued a debtor till the sale; that before the judgment, and afterwards, before the sale, Mahone had instructed him to apply any surplus that might arise from the sale to the payment of that account; and he had done so, in accordance with the instructions.

There was an issue formed upon the answer of the garnishee, and the subject of the controversy was the claim of the respective parties to the surplus above described.

The garnishee produced on the trial a number of promissory notes, dated prior to the judgment, and proved the signature of Mahone to them; he also proved that Mahone had admitted the authority of the garnishee to apply the surplus to the payment of his demands, not described in the deeds, shortly after the sale, and at that time disclaimed any power to control it. No evidence was given of the existence of the notes of a day prior to the answer, nor of their consideration. The defendants proved a conversation between their attorney and the garnishee, on the day of the sale, relative to the amount of the debt from Mahone to him, and that the notes were not mentioned by him in that conversation. The court instructed the jury that the inquiry for them was, whether there was fraud or collusion between the garnishee and the debtor. That if they found that the notes were made in fraud or collusion, they would render a verdict in favor of the attaching creditors, for the amount of the surplus in the hands of the garnishee. This charge includes the substance of all the questions presented to the court or jury.

We think the case was submitted as favorably for the garnishee as the facts warranted, and that he has no reason to complain in consequence of the instructions given or refused.

The plaintiff is not entitled to hold the surplus in his hands arising from the sale of the trust property, for the payment of the notes, under any stipulation in the deeds. Those provide for a return of the surplus to the grantor, after the payment of the debts described. Nor can the real property conveyed in the deed be retained as a security for advances, or debts subsequently made on the strength of a parol engagement. Such a contract would be avoided by the statute of frauds. Nor is the deed of trust such a conveyance or title-paper as to afford a security, as a deposit, for subsequent engagements.

In Ex parte Hooper, (1 Meri. Ch. R., 7,) Lord Eldon said: 'The doctrine of equitable mortgage by deposit of title deed has been too long established to be now disputed; but it may be said that it ought never to have been established. I am still more dissatisfied with the principle upon which I have acted, of extending the original doctrine so as to make the deposit a security for subsequent advances. At all events, the doctrine is not to be enlarged. In the present case, the legal estate has been assigned, by way of mortgage. The mortgagee is not entitled to say this conveyance is a deposit, because the contract under which he holds it is a contract for conveyance only, and not for deposit.'

The only other title that the garnishee has interposed against the claim of the attaching creditor is, that the debtor made a valid appropriation of the surplus arising from the sale, to the satisfaction of a bona fide demand of the garnishee against him, prior to the service of the garnishment. The principle adopted by the courts of Alabama for such cases is, that the adverse claimant for property or effects seized at the suit of a creditor by attachment or execution, must prove the bona fides of his claim, if it is derived from the debtor after the origin of the creditor's demand; and the declarations or acknowledgments of the debtor will not be received to support the title. The recitals in a deed or mortgage executed by him, or admissions made at the time of its execution, will not be received. (Goodgame v. Cole, 12 Ala., 77; Nolen & Thompson v. Gwinn, 16 Ala., 725.) Nor is the consideration of a note in favor of the claimant shown by the production of the note itself. (De Vendell v. Malone, 25 Ala., 272.) The objection to such evidence is said to be, that it can be manufactured by one indebted, and by that means a creditor might be defeated; for, in most cases, it would not be practicable for him to prove a negative, or disprove the statement made by his debtor. In the present case, the consideration of the notes was not proved; nor was their existence before the service of the garnishment shown otherwise than by their date-that is, by an assertion of the debtor. Nor was the order to appropriate the surplus to their payment proved, except by an acknowledgment to a stranger, after the writ of garnishment had been issued.

The bona fides of the title of the garnishee to the surplus in his hands was not supported by competent proof, and therefore the lien of the garnishment was properly maintained.

The plaintiff contends that the proceeding by garnishment is a statutory proceeding, by which a creditor is enabled to reach a demand in favor of his debtor against a third person; and that the remedy can only be resorted to when the debtor himself could maintain debt or indebitatus assumpsit; and that the only issue which can be made upon an answer of the garnishee is, indebitatus vel non. The Supreme Court of Alabama have decided, in the cases cited, that merely equitable demands or rights of action, not involving a debt or assumpsit, are not the subject of the garnishee process. But the same court has determined that money or effects in the hands of the garnishee, which are fraudulently withdrawn from the creditors of a defendant, may be reached, in an attachment or judgment, by that process. Hazard v. Franklin, 2 Ala., 349; Lovely v. Caldwell, 4 Ala., 684, and the civil code of Alabama, sec. 2,523, provides explicitly for the attachment of a demand similar to that existing in this case.

Judgment affirmed.

title: Williams v. McLane/Opinion of the Court


text: Talk:Williams v. McLane/Opinion of the Court

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


text: Bell v. Hearne

title: Bell v. Hearne


text: Talk:Bell v. Hearne

title: Talk:Bell v. Hearne


text:
Bell v. Hearne/Opinion of the Court

THIS case was brought up from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the judiciary act.

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

It was argued by Mr. Baxter and Mr. Johnson for the plaintiff in error, and by Mr. Lawrence and Mr. Taylor for the defendants.

The following notice of the points for the plaintiff in error is taken from the brief of Mr. Baxter:

I. John Bell was the purchaser of the land from the United States, and James Bell had no right or interest in it.

The receiver's receipt and his certificate prove the purchase was made by John Bell, and vested in him all the inchoate title which could be vested by the purchase.

It was the duty of the register to issue a certificate conforming to the receiver's receipt.

On this receipt, no certificate of purchase could lawfully be given to any other person than John Bell or his assignee; and an assignment, to be acted on by the officers of the land office, must be executed before the register, or a judge, or justice of the peace; must be preserved in the register's office until certificate granted, and must then be sent to the Department. And in the certificate to the assignee the name of the original purchaser must be inserted throughout, except in the last entry, preceding the words 'shall be entitled.' (See Circular to Registers of July 5, 1805, Land Laws, 2d vol., 257-'8; do. May 5, 1821, 307; do. May 29, 1820, 302; May 5, 1831, sec. 19, p. 446; sec. 32, pp. 451 and 466.)

No assignment by John Bell, the purchaser, to James Bell, exists, nor is it pretended any ever was made. The insertion of the name of James Bell in the register's certificate was a mere misnomer.

The cancellation of this certificate affords stringent evidence that this was a mere error, and it is confirmed by the fact that when the patent was demanded, John Bell held the certificates, on the production of which the patent was to issue.

II. James Bell having no right or interest in this land, the attempted sale under the execution of St. John Fabre & Co. against James Bell was a nullity, and created no estate, right, or interest, in the supposed purchaser, Smith, or those claiming under him, and gave to him or them no right to demand a patent, either to James Bell, or to them as assignees of James Bell.

Code of Louisiana, article 2,427: 'The sale of a thing belonging to another person is null. It may give rise to damages, when the buyer knew not the thing belonged to another.'

Under an execution, the interest of the debtor, only, in the property can be sold. The right of a stranger to the record and proceeding will not pass thereby.

III. James Bell having no title or interest in this land, and the pretended purchasers under the execution not having acquired any right or interest therein, John Bell was the only person who could be recognised by the United States as entitled to a patent, and the act of making a patent in the name of James Bell was an accident, which, if uncorrected, would defeat the contract of sale; but which, by the practice of the land office and the law of the land, might be corrected as long as the patent was in the power of the land office. And if such erroneous patent had been delivered, it might be returned and cancelled; and if the holder refuses to deliver it up to be cancelled, the United States may institute proceedings to cancel it, or may authorize the party injured to institute such proceedings in the name of the United States. (See Putnam's Case, and Opinion of Mr. Wirt, 2 Land Laws, 27-'8; Opinion of Mr. Wirt, p. 24; Master's Case, pp. 32, 34; Opinion of Mr. Butler, 86-'7; Regulations, May 4 and 6, 1836, pp. 92-'3; Opinion of Mr. Butler, pp. 123-'4.)

For the common-law doctrines, reference is made to the 17th vol. Viner, p. 78, title Prerogative, letter (G b 2.)

The King's grant is void in five cases: 1st. When he is misinformed. 2d. Misrecital shall avoid it. 3d. If the King be deceived in matter of fact or matter of law. 4th. Want of form. 5th. When the thing granted is in the King, or comes to him in another manner than he supposes.

In Barwick's case, (5 Coke, 94,) it is said: 'And it is a maxim, that if the consideration which is for the benefit of the Queen, be it executed or be it executory, or be it on record or not on record, be not true or be not duly performed, or if prejudice may accrue to the Queen, by reason of the non-performance of it, the letters-patent are void.'

In the case of the Alton Woods, (1 Coke Rep., 51 a,) it held, if the King's grant cannot take effect, according to his intent, it is void.

2 Williams Saunders's Rep., p. 72 q, note 4 to Underhill v. Devereux, where a patent is granted to the prejudice of another's right, he may have a scire facias to repeal it at the King's suit, and the King is of right to permit the person prejudiced to use his name. (Dyer, 276 b; 3 Lev., 220; Sir Oliver Butler's Case, 2 Vent., 344.)

Bill in equity will lie to decree a patent to be delivered up and cancelled in a case of fraud, surprise, or gross irregularity in issuing it. (Attorney General v. Vernon, 1 Vernon's Rep., 277, 280, 281; Sawyer, Attorney General, v. Vernon, 1 Vernon's Rep., 370, 386 to 392.)

In this country, the proper proceeding is probably by bill in equity; but whether by scire facias or bill in equity, is only a question of form. In either case, the same results may be attained.

But the law forces no man to make a defence against conscience. A party who has wrongfully obtained a patent may surrender it to be cancelled. (Comyn's Digest, vol. 5, title Pat., letter [G,] p. 388.) 'So, if a man surrenders his patent, and it be cancelled, and a note of it endorsed, and afterwards the surrender enrolled, it shall be vacated by it.' (Dy., 167 a; R. Dy., 179 b.)

In Grant v. Raymond, (6 Peters, 218,) this court held, that a patent for a useful invention might be surrendered, and a new patent issue. (See C. J. Marshall's Opinion, from page 240 to 244.)

In Shaw v. Cooper, (7 Peters, 292,) the same doctrine was held. Both cases were before the act of 1836.

In the case at bar, John Bell had, by his contract of purchase, the only rights which the United States could lawfully recognise and carry into patent. He applied for his patent. A patent in the name of James Bell was tendered to him. He returned it to the Land Office. According to the regulations of the Land Office and the common law, the Commissioner held the patent in the name of James Bell void, cancelled it, and issued a corrected patent in conformity with the contract of sale to John Bell.

The Supreme Court of Louisiana has adjudged this cancelled patent valid, and superior to the corrected patent; and the inquiry is, shall this judgment be reversed?

IV. The judgment of the Supreme Court of Louisiana in the case at bar adopts the decision of that court in Lott v. Prudhomme, (3 Rob., 294-'5-'6,) and applies it to this case, and carries it to the extent of declaring that the Commissioner of the Land Office has no right to cancel a patent which has passed the seal of the office; intimating the naked act of cancellation is a fraud, and holding that the jurisdiction of the Government of the United States over the subject is ended when the patent is sealed, and setting up the cancelled patent as superior to the corrected patent issued to pass the title of the United States.

1. We insist the Supreme Court of Louisiana erred in the proposition 'that the question whether a patent which has issued from the Land Office of the United States may be annulled for mistake or fraud, is, so far as it concerns a citizen of Louisiana, to be solved by the laws of Louisiana.'

a. The State of Louisiana has no laws which regulate the grant of the lands of the United States, and no officers who can grant these lands. Lands of the United States are granted by the officers of the United States, acting under the laws of the United States. All questions of the authority of those officers, and of the conformity of their proceedings to law, must be solved by the laws of the United States.

b. The United States has an interest in the sale of these lands as vendor, and may incur, by the misconduct of her officers, the responsibility of a defaulting vendor. There must therefore be, in her jurisdiction as a Government, a power to correct the errors of her officers to her prejudice, and to the prejudice of persons contracting with her. And she is not denuded of this jurisdiction when the question whether a patent issued to her prejudice is to be solved.

c. In Wilcox v. Jackson, the court says, the question, whether the property has passed, is to be resolved by the laws of the United States.

But fraud, laches, accident, and mistake, may so defeat the intended contract of sale, that the patent may be void, and the title not pass by it. (Alton Wood's Case, 1 Coke, 44 a, b; Magdalen College Case, 11 Coke, 72.)

2. We insist, the proposition of the Supreme Court of Louisiana, that 'the moment a patent has passed the great seal, it is beyond the power of the officers of the General Government,' is erroneous.

a. This proposition seems to assume that the seal of the Land Office is analogous to the great seal of England.

In England, the King is the fountain of justice, of honor, of office, and of privilege; and the great seal is the emblem of his royal authority and dignity. The powers of the court of chancery flow from the great seal. (1 Strange, 157, 158.) And all grants of land, held by the King in right of his crown, are to be under the great seal. (Lane's Case, 2 Coke's Rep., 16.)

In the Land Office of the United States there is no seal analogous to the great seal. The public lands are not held jure coronae, to be disposed of as matter of royal bounty, but are held in trust for the States; (Pollard v. Hagan, 3 Howard, 212;) and are to be disposed of to purchasers, by contracts of sale, under the laws of the United States.

In England there are many seals. (17 Viner, pp. 67 to 77.) If an analogy to some of the seals in England must be found, it will be best found in the case of Attorney General v. Vernon, (1 Vernon, 391.)

b. The effect of a patent sealed by the recorder, and the power of the Commissioner over it, must be ascertained from our Constitution and laws.

The Constitution makes it the duty of the President to take care that the laws are faithfully executed.

The act re-organizing the Land Office (1 L. Laws, 553) confers on the Commissioner, under the direction of the President, the executive powers and duties prescribed by law, and appertaining to the sale and survey of the public lands, and the issuing of all patents for grants. Section 1, sect. 4, makes it the duty of the recorder, in purauance of instructions from the Commissioner, to affix and certify the seal of the Land Office, to attend to the correct engrossing and transmission of patents.

The act of the recorder is a ministerial act. The system of disposing of our public lands is a system of bargain and sale. The contract is made by the purchase from the receiver; and all the steps subsequently taken in the Land Office are merely to insure to the purchaser a title to the land for which he has paid.

These proceedings are all to be taken under the executive discretion of the Commissioner, acting under the direction of the President; and there must be such enlarged discretion as will protect the purchaser from accident or errors occurring in the office.

The purchaser, standing in the relation of vendee, has the right to see that the title made out for him conveys the thing purchased. He cannot be compelled to accept a patent which does not give him the land which he has bought and paid for.

From these relations of contracting parties it follows that the title is consummated by the delivery and acceptance of the patent. (Bagnell v. Broderick, 13 Peters, 450.)

There cannot be, by any fancied analogies of the English law, a magic in the errors or even misconduct of any clerk or ministerial officer through whose hands the title may pass, which will defeat the rights of the purchaser, or prevent the President from exercising his duty of seeing that the laws are faithfully executed.

We contend, then, that the practice of receiving back and cancelling patents which fail, from accident or mistake, to effect the designed sale, is legal; and the act of cancellation by the Commissioner in this case was a lawful act.

The judgment of the Supreme Court of Louisiana, setting up the cancelled patent, is erroneous, and should be reversed.

Mr. Lawrence for defendants in error.

It appears from the record, that on the 3d of July, 1839, a certificate of purchase was issued by the register of the land office at Natchitoches, in the name of James Bell, the brother of the plaintiff in error, which certificate was transmitted by the register to the General Land Office at Washington, and upon this certificate a patent was issued to James Bell on the 10th of July, 1844, and was transmitted to the register at Natchitoches for delivery, where it remained until 1849, when it was delivered to the agent of Mr. John Bell, and by the latter was filed in the General Land Office in 1850, to be cancelled; and a patent issued in his name, upon a duplicate certificate and receiver's receipt, in his possession and in his name. In the mean time, the land had been sold under execution, as the land of James Bell, and had come by mesne conveyances to the defendants in error.

I maintain that the Commissioner had no right to cancel a patent which had passed the seal, and been transmitted for delivery. It is not pretended that there is any statutory authority giving him this power. On the contrary, like all other officers of the General Government, having only so much power as is expressly conferred, and this power of cancelling being neither expressed nor necessarily implied, he could not be invested with this authority, unless, upon general principles of law, it would be incident to his office.

But we find that, upon the principles of the common law, both in this country and in England, it has been constantly held that a patent which has passed the great seal can only be vacated by a scire facias, or bill in equity. In England, where letters patent are of record in the chancery, a scire facias would be proper, but here we should resort to a bill in equity. In the case of Jackson v. Lawton, (10 Johns., 24,) Chief Justice Kent, after a most elaborate examination of the authorities, both in England and this country, held, that a patent issued by mistake could not be avoided, except by scire facias, or bill in equity, or some equivalent proceeding. And this case has ever since been the leading authority on the subject. In Maryland, it was held that so long as a grant remained unrepealed by chancery, it must prevail at law against a younger grant. (2 H. and M., 141.)

Now, the practice of the Department has been in accordance with these principles, and this case of Jackson v. Lawton has been acted on again and again. The Department has even refused to issue a second patent when another patent, issued by mistake, has been unrepealed. (See the opinions of Attorneys General Berrien and Legar e.) I conclude, then, that there is no statutory provision giving the power to the Commissioner; that the decisions at common law and the practice of the Department are against it.

But even if the Commissioner had the naked power to cancel a patent issued by mistake, he could not do it to the injury of those who had purchased for valuable consideration, without notice. And the very possibility that there might be purchasers bona fide, without any notice of the mistake, illustrates the propriety of a bill in equity for the vacating of the patent. And no court of equity would vacate a patent, as against innocent purchasers, although it should be made manifest that it had issued by mistake. Yet this monstrous power is claimed for the Commissioner of the Land Office, that by the mere sweep of his pen, upon ex parte testimony, without any notice to others in interest, and without any record of his reasons, he may cut off, without a hearing and without a remedy, persons who have bought and paid for lands standing upon the records of his own office in the name of him whose title they have purchased. This very case illustrates the enormity of this pretension. Here were parties in possession of land which had been conveyed through several persons to them, and which was originally sold as the property of James Bell, (who had, by the way, pointed it out as his,) and in whose name it stood upon the records of the Land Office. Now, if the Commissioner, in the retired apartment of his office, could, without any notice to these parties, cancel this patent, as to them, so that they could not prove its former existence as a legal title under which they had innocently purchased and gone into possession, but should be met with the suggestion that such patent had been cancelled, and was therefore of no legal effect, why, then, without any fault of their own, they could, without a hearing, be deprived of what they had bona fide bought, and were in the actual possession of, by the mere sic jubet of the Commissioner.

Mr. Justice CAMPBELL delivered the opinion of the court.

This is a writ of error to the Supreme Court of Louisiana, under the 25th section of the judiciary act of September, 1789.

The plaintiff commenced a petitory action in the District Court of Caddo parish, Louisiana, for a parcel of land in the possession of the defendants. He claims the land by a purchase from the United States, and exhibits their patent for it, bearing date in June, 1850, with his petition. The defendant (Hearne) appeared to the action, and answered that the United States had sold the land to James Bell, and as the property of James Bell it had been legally sold by the sheriff of Caddo, under a valid judgment and execution against him, and that a person under whom he (Hearne) derives his title was the purchaser at the sheriff's sale. A number of parties were cited in warranty, and answered to the same effect. A judgment was given for the defendants in the District and Supreme Courts; and upon the judgment in the last, the plaintiff prosecutes this writ of error.

The title of the plaintiff consists of the duplicate receipts of the receiver of the land office at Natchitoches, Louisiana, (No. 1,270,) dated in July, 1839, by which he acknowledges the receipt, from the plaintiff, of full payment for the lands described in the receipt and petition; a patent certificate, of the same date and number, from the register of that office, certifying the purchase of the plaintiff, and his right to a patent; and a patent, issued in due form, for the said lands, in pursuance of the act of Congress and the patent certificate.

The case of the defendants originates in these facts: The register of the land office at Natchitoches, in making up his duplicate certificate of purchase, to be returned to the General Land Office, inserted the name of James Bell for that of John Bell. That certificate was sent to the General Land Office, with the monthly returns of the register, and in July, 1844, a patent was issued in the name of James Bell, and sent to the register at Natchitoches, who retained it in his office till 1849. In 1849, John Bell sent to the office of the register his duplicate receipts, and the patent in the name of James Bell was delivered to him. Upon a representation of the facts to the Commissioner of the General Land Office, this patent was cancelled, and a new one issued to the plaintiff.

It appears, from the proof in the case, that the plaintiff had a brother, named James Bell, who was his agent for making the entry, and that the land was sold in March, 1844, as his property, by the sheriff of Caddo, as is stated in the answers of the defendants.

The act of Congress of the 24th April, 1820, providing for the sales of the public lands of the United States, enacts, 'That the purchaser at private sale shall produce to the register of the land office a receipt of the Treasurer of the United States, or from the receiver of public moneys of the district, for the amount of the purchase money on any tract, before he shall enter the same at the land office.' At various times, since the passage of the act, the modes of conducting sales at the different land offices of the United States have been prescribed by the Commissioner, and the evidence to be afforded to the purchaser designated. The circular issued in 1831 contains the instructions under which the local officers were acting at the date of this entry. The instructions pertinent to this case are, that 'when an individual applies to purchase a tract of land, he is required to file an application in writing therefor; on such application the register endorses his certificate, showing that the land is vacant and subject to entry, which certificate the applicant carries to the receiver, and is evidence on which the receiver permits payment to be made, and issues his receipt therefor; the duplicate of this is handed to the purchaser, as evidence of payment; and which should be surrendered when a patent, forwarded from the General Land Office, is delivered to him. The other receipt is handed to the register, who must immediately indicate the sale on his township plat, and enter the same on his tract book, and is transmitted to the General Land Office with the monthly abstract of sales and certificates of purchase.'

The certificates of purchase are made according to forms furnished by the General Land Office. One is issued to the purchaser, and another is retained, to be sent to the Commissioner. They should be deplicates; and the instructions to the register in regard to them are, 'that the designation of the tract, in the certificates of purchases, is always to be in writing, not in figures. The certificates are to be filled up in a plain, legible hand, and great care is to be taken in spelling the names of the purchasers. The monthly return must always be accompanied by the receiver's receipts and register's certificates of purchase.' From this statement of the act of Congress and the regulations of the Land Office, it will be seen that the embarrassment in which this title is involved proceeds from an error committed by the register at Natchitoches in making up the duplicates of his certificate of purchase-the duplicate intended for the General Land Office-and from which the monthly abstract was prepared.

The plaintiff was nowise responsible for this. He had paid his money into the receiver's office, and obtained the receipt prescribed by the act of Congress of 1820, before cited.

He had obtained his certificate of purchase, evincing his title to a patent certificate. At this stage of the proceeding, the register of the land office, in completing his office papers, and in making up his returns for Washington city, committed a mistake, which was not detected by the officers at Natchitoches in comparing their returns, (as they are ordered to do,) and eluded the vigilance of the officers at Washington. It was discovered at Natchitoches, when an agent of the plaintiff applied for the patent, and surrendered his duplicate receipt and certificate.

It was then discovered that the christian name of the plaintiff had been inaccurately set out in the returns at Washington and the patent. The Supreme Court of Louisiana say: 'It appears, from the evidence, that the plaintiff and his brother James Bell purchased the land in dispute from the United States on the same day-3d July, 1839-and that the patent certificates were issued in their respective names by the register of the land office at Natchitoches, Louisiana, bearing the same number.'

We interpret the papers from the land office differently from the Supreme Court. There is no evidence, in our opinion, of more than one sale-that evinced by the receiver's receipt-and, in that receipt, John Bell, the plaintiff, is named as the purchaser. We think there was but one certificate of purchase issued to a purchaser-that in favor of John Bell. The certificate of purchase which contains the name of James Bell is found in the General Land Office. If that was intended for a James Bell, there should have been another for John Bell. But there is only a single certificate there, and the conclusion is irresistible, that the name James was entered by mistake for John. We find no evidence in the record to show that James Bell held any evidence of a purchase.

Whatever appearance of a title he had, is owing to the mistake in the duplicate certificate returned to the General Land Office, and the patent issued in his name. But this patent was never delivered to him. The question then arises, had the Commissioner of the General Land Office authority to receive from John Bell the patent erroneously issued in the name of James Bell, and to issue one in the proper name of the purchaser? And the question, in our opinion, is exceedingly clear. The Commissioner of the General Land Office exercises a general superintendence over the subordinate officers of his department, and is clothed with liberal powers of control, to be exercised for the purposes of justice, and to prevent the consequences of inadvertence, irregularity, mistake, and fraud, in the important and extensive operations of that officer for the disposal of the public domain. The power exercised in this case is a power to correct a clerical mistake, the existence of which is shown plainly by the record, and is a necessary power in the administration of every department. Our conclusion is, that the Supreme Court of Louisiana erred in denying the validity of this title, and in conceding any effect or operation to the certificate of purchase or patent issued in the name of James Bell, as vesting a title in a person bearing that name.

It is objected that this court has no jurisdiction over this judgment of the Supreme Court of Louisiana.

The plaintiff claimed the land described in his petition, under a purchase made from the United States, and produced muniments of title issued by their authority, and this title is pronounced to be inoperative by the District and Supreme Courts of Louisiana.

Does this appear by the record before us? The record in the Supreme Court of Louisiana purports to be a true and faithful transcript of the documents filed, orders made, proceedings had, and evidence adduced, on the trial in the District Court. The Supreme Court possesses the right, and is under the obligation of examining questions of fact as well as of law, and to state the reasons of their judgment. The statement of the evidence adduced is taken as an equivalent for a statement of the facts by the district judge in the practice of that court. It clearly appears that the ground upon which the judgment in the Supreme Court was given was the invalidity of the title of the plaintiff, because an older patent had been issued in favor of James Bell. We think this court has jurisdiction. (Armstrong v. Treasurer, &c., 16 Pet., 261; Grand Gulf R. R. and B. Co. v. Marshall, 12 How., 165; Almonester v. Kenton, 9 H., 1.)

Judgment reversed. Cause remanded.

title: Bell v. Hearne/Opinion of the Court


text: Talk:Bell v. Hearne/Opinion of the Court


text:
Richardson v. City of Boston (60 U.S. 263)

[MR. JUSTICE CURTIS, HAVING BEEN OF COUNSEL, DID NOT SIT IN THIS CAUSE.]


text: Talk:Richardson v. City of Boston (60 U.S. 263)


text:
Richardson v. City of Boston (60 U.S. 263)/Opinion of the Court

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Rhode Island, to which it had been removed from the district of Massachusetts.

It was an action of trespass on the case brought by Richardson against the city of Boston, for the continuance of a nuisance which is described in the case of the city of Boston v. Lecraw, (17 Howard, 426.) He was the owner of two wharves between which the drain in question was erected, whereby the access to his wharves by boats or vessels was very materially interrupted. The case was tried at June term, 1855, and resulted in a judgment for the defendants. The bill of exceptions taken by the counsel of Richardson will be mentioned hereafter.

As one of the important questions in the case was, whether or not the record of a former case between the same parties could be given in evidence, it is proper to see what that record was.

At June term, 1853, a case was tried between the same parties, having also been removed from the district of Massachusetts to Rhode Island. The opinion of the district judge (who tried the case) was, that the right of property could not be taken from Richardson without compensation, and that, under the circumstances of the case, he was entitled to recover against the city of Boston whatever damages he might prove under the sixth count of his declaration. That sixth count stated the occupancy of Price's wharf by Bullard as tenant, the reversionary interest being in Richardson, and the occupancy of the Bull wharf by Lecraw & Perkins, the reversionary interest being in Richardson, and averred that the dock in front of these wharves was, and had been for a long time, a public way, slip, or dock, so as to allow a free communication between the wharves and the channel of the sea. Under this instruction of the court, the jury found a verdict for the plaintiff, and assessed his damages at $1,209.69. It was this record of the case, tried in 1853, which the counsel of the plaintiff offered in evidence in the present suit, but the judge ruled that the judgment was not admissible in evidence for any purpose, and refused to admit the same to be put in evidence; to which refusal and ruling the plaintiff excepted.

The plaintiff then offered in evidence an agreed statement of facts contained in the record of the former suit, which the judge refused to admit, and to this ruling also the plaintiff excepted.

The plaintiff then gave in evidence all the documents enumerated in said agreed statement of facts, together with much parol testimony relative to the premises, which it is impossible to specify particularly.

The plaintiff then rested, whereupon the defendants offered the following:

ORDER OF MAYOR AND ALDERMEN, JUNE 18, 1849.

CITY OF BOSTON.

An Ordinance constituting the Board of Health for the City.

Be it ordained by the Mayor, Aldermen, and Common Council, of the City of Boston, in City Council assembled, as follows:

The Mayor and Aldermen shall constitute the Board of Health of the City, and shall exercise all the powers and perform all the duties now vested in the City Council as a Board of Health, with the right of carrying into execution such powers and duties through the agency of any persons whom they may select, or in any manner which they may prescribe.

In Common Council, June 14, 1849. Passed. Sent up for concurrence.

BENJAMIN SEAVER, President.

In Board of Mayor and Aldermen, June 18, 1849. Passed.

JOHN P. BIGELOW, Mayor.

A true copy. Attest: S. F. McCLEARY, City Clerk. And without offering any further evidence on their part, did request the court to rule and instruct the jury that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff, and the violation of those rights by the defendants, such as to sustain the plaintiff's action. The plaintiff on his part did request the court to rule and instruct the jury as follows:

1. That there is evidence in the case competent to go to the jury, and to be judged and weighed by them, that, at the time of the grants by the town to Gridley & Baxter of their estates or possessions, there existed a town or public way between those possessions, for access to and from the sea in boats and vessels, upon which those possessions were bounded, and that the right to use and enjoy said way passed to said grantees by the grant of those possessions, and is an appurtenance thereto, and to their heirs and assigns.

2. That if said way, so bounded on said possessions, existed at the time of the grant of those possessions, and the title to the land thereunder to high water was in the town, but not the title to the flats between said way at high-water mark, and the sea or low-water mark; and if said title rested in the town subsequently by the ordinance of 1641, then, by and after the said ordinance, said way became shaped and restricted over the flats to the interval between the flats annexed by said ordinance to the possessions of said Gridley & Baxter, and was and continued to be an appurtenance to the possessions so granted to Gridley & Baxter, their heirs and assigns.

3. That there is evidence competent to go to the jury, and be judged and weighed by them, that at the time of the grants of liberty to wharf to Gridley, Gill, & Bull, there existed a public or town way between the possessions of Gridley & Baxter, and bounding thereon for access of boats and vessels to the sea or low water, and that such liberties to wharf were bounded by said way, and thereby the right to use said way for access of boats and vessels to and from such wharves, one or both of them, became, by virtue of said respective grants, annexed or appurtenant to said grants, and to said possessions of Gridley & Baxter, their heirs or assigns.

4. That if the jury shall find that at the time of the staking out of said highway, October 31st, 1683, the same extended below high-water mark, and that the possessions of said Baxter bounded on said way, then by virtue of the liberty to wharf, granted at the same time to the proprietors of lands on Sea street, the right to use said way for access by boats and vessels to and from such wharf, became by virtue thereof annexed or appurtenant to the possession of said Baxter, his heirs and assigns.

5. That there is evidence competent and proper to be submitted to the jury, to be judged and weighed by them, that a town way or highway was laid out by the selectmen, October 31st, 1683, to the sea or low-water mark; that the estates or wharves claimed by the plaintiff were bounded thereon; that said way was a way for boats and vessels, and that, at the time of the acts complained of, plaintiff was the owner and possessed of said wharves, as stated in the declaration; and if the jury shall so find, and that defendants while said way remained, and without a previous due and legal discontinuance thereof, erected the structure alleged in the declaration, and continued the same for the time and in the manner set forth therein, and that by reason thereof the plaintiff has been deprived of the use of said way for access to and from his wharves, with boats and vessels, then the plaintiff is entitled to recover.

6. That if the jury shall find that by reason of the acts of defendants complained of in the declaration, that part of plaintiff's wharf below low-water mark, held by him under a grant of the Legislature, has been injured in the manner set forth in the declaration, then the plaintiff is entitled to recover.

Thereupon his honor the judge did decline and refuse to make and give either of the said rulings and directions so prayed by the plaintiff, but did rule and instruct the jury as prayed by the defendants as aforesaid.

Whereupon the plaintiff excepted, and the jury found a verdict for the defendants.

The case came up to this court upon these several exceptions, and was argued by Mr. Bartlett for the plaintiff in error, and by Mr. Chandler and Mr. Loring for the defendants.

The reporter regrets that the limited space which must be allotted to the report of this case will not allow him to state the arguments of the respective counsel upon the various points which arose in the case.

Mr. Justice GRIER delivered the opinion of the court.

This is an action of trespass on the case brought by the plaintiff in error against the city of Boston, for the erection and maintenance of a drain at the foot of Summer street, which, it is alleged, is a nuisance, and injurious to the property of plaintiff. He is owner of two wharves, called the Price and the Bull wharf, which are extended from high to low-water mark, from the lots which adjoin Summer street on each side. The nuisance, which is the subject of complaint in this case, is the same as that in the case of Boston v. Lecraw, decided in this court, and reported in 17 Howard, 426.

The declaration contains seven counts, in four of which the plaintiff, as owner of the several wharves, and having the seizin and possession, claims a right of way, as appurtenant to the same, over the 'dock' or 'way and dock,' which constitutes the interval between the wharves; also, that his wharves are bounded on the 'town dock,' 'town way or deck,' which he alleges to have been long used as a 'public dock, slip, or way.'

The fifth and sixth counts are for injuries to the reversion, with like averments. A seventh count avers the wharves to be bounded, respectively, 'by a highway, town way, or public way, to the sea, extending from the corner of Summer and Sea streets to the channel, or low-water mark, which was duly laid out and established pursuant to law.'

The defendant pleaded the general issue, and on the trial the plaintiff offered in evidence the record of a former verdict and judgment rendered in his favor in an action against defendant for the erection of the same nuisance, the continuance of which is the subject of the present suit. The rejection of this evidence by the court is the subject of the first bill of exceptions.

It is contended that this record was not only evidence, but conclusive of the right of the plaintiff, and prima facie evidence of the continuance of such right; and that plaintiff, having no opportunity to plead it as an estoppel, may exhibit it as matter of evidence.

It may be admitted that numerous decisions may be found in many of the State courts affirming this proposition; nevertheless, it has not been universally adopted. The leading case of Outram v. Morewood (2 East., 174) establishes the following proposition, in which all concur: 'That if a verdict be found on any fact or title distinctly put in issue in any action of trespass, such verdict may be pleaded, by way of estoppel, in another action between the same parties or their privies, in respect to the same fact or title.' But estoppels, which preclude the party from showing the truth, are not favored. To give the verdict the effect of an estoppel, the facts must be distinctly put in issue.

The plea of the general issue, in action of trespass, or case, does not necessarily put the title in issue; and, although the judgment is conclusive as a bar to future litigation for the thing thereby decided, it is not necessarily an estoppel in another action for a different trespass. The judgment can only give the plaintiff an ascertained right to his damages, and the means of obtaining them. These principles seem to have been adopted by the courts of Massachusetts, and applied to cases like the present. In the decision of this point, we must be guided by the decisions of the courts of that State.

In the case of Standish v. Parker, (2 Pick., 20,) which was an action for a nuisance, the court say: 'We think it very clearly settled that nothing is conclusively determined by the verdict but the damages for the interruption covered by the declaration. In actions for torts, nothing is conclusively settled but the point or points put directly in issue. By the plea of the general issue, the title is not concluded, because it cannot be made to appear upon the general issue that the title ever came in question.' (See also 15 Pick., 564.)

Nevertheless, though a verdict in such case is not conclusive, it is permitted to go to the jury as prima facie, or persuasive, evidence. (3 Pick., 288.) If the evidence of the facts involved in the first trial are still doubtful, if witnesses were then examined whose testimony cannot now be obtained, for these and many other reasons the former verdict may have the effect of highly-persuasive evidence on another trial of the same question. But if on the last trial new evidence has been discovered, or if the question of title submitted on the first trial was connected with instructions in law which have since been found to be erroneous; or if a different verdict on the same evidence would have resulted from the different instructions given on the last, it is plain that the first verdict could have but little or no persuasive effect. Title is often a question of mixed law and fact and a party is not concluded by an erroneous opinion of the court, pronounced in a former case.

We are of opinion, therefore, that the court erred in not permitting the record of the former suit to be given in evidence to the jury.

2. At the conclusion of the trial, the court, at the request of defendant's counsel, instructed the jury 'that there was not sufficient evidence in the cause to authorize the jury to find the rights claimed by the plaintiff.'

As it is the duty of the jury to decide the facts, the sufficiency of evidence to prove those facts must necessarily be within their province. The jury cannot assume the truth of any material averment without some evidence; and it is error in the court to instruct the jury that they may find a material fact of which there is no evidence. An instruction like this is imperative on a jury; it has taken the place, in practice, of a demurrer to evidence, and must be governed by the same rules. If there be 'no evidence whatever,' as in the case of Parks v. Ross, (11 How., 393,) to prove the averments of the declaration, it is the duty of the court to give such peremptory instruction. But if there be some evidence tending to support the averment, its value must be submitted to the jury with proper instructions from the court. If this were not so, the court might usurp the decision of facts altogether, and make the verdict but an echo of their opinions.

The court below seem to have considered the decision of this court, in the case of Boston v. Lecraw, as requiring them to give the instruction demanded by the defendant. The action in that case was for the same alleged nuisance by a tenant of the present plaintiff. But the plaintiff in that case claimed no other right of way over the lands of defendant, save the public right of navigation; and this court decided that the public right of navigation, between high and low-water mark, was defeasible at any time by the owner of the subjacent land. That, as the space between the plaintiff's wharves had been converted into a dock by the accident of its position, so long as it remained unreclaimed, every person had a right to pass and repass over it. The exercise of this public right, for any length of time whatever, would therefore form no grounds of presumption either of a public dedication or a private grant to the owners of the adjoining wharves. While it remains unreclaimed, it is a public highway or dock, by a paramount but defeasible title. The adjoining wharves may receive much more advantage than others from the use of it, but they cannot convert it to a private use, under color of a public right.

The public officers of a town have no right to lay out a town way between high water and the channel of a navigable river, or appropriate the shore or flats to the use of the inhabitants of a town in the form of a way or road. (1 Pick., 179; 5 Pick., 494.) But in the present case the city of Boston is owner of the land, and has the same right to reclaim their flats which other owners have. Before they are so reclaimed, the public and the adjoiners may exercise their paramount right of navigation. But if the city elects to reclaim its portion of the shore, and extend Summer street to low water, it has a right so to do. And if the street should be less beneficial to the adjoiners in this form, than when they could use it as a dock under the public right of navigation, they cannot complain. The absence of these advantages may be a loss to them but if incurred by the defendants' exercise of their own rights, it is no wrong to them.

But if the city has determined to reclaim this land, and has laid out a street thereon, or continued Summer street to low-water mark, the right to use it as a street or highway on land becomes appurtenant to the property of the adjoiners. It may be the duty of the city to make drains along or under the streets, but they cannot construct them so as to hinder the public use of them as streets, or erect thereon a nuisance to the adjoiners. If Summer street be extended to low water, the plaintiff has a right to pass along and across the same, and anything which obstructs such passage is a nuisance, and injurious to his rights.

The seventh count of plaintiff's declaration claims a right of way as appurtenant to his land or wharves, on the ground that Summer street extends to low water. In support of this allegation, the following entry in the town records was given in evidence: 'October 31, 1683. The selectmen all met this day, staked out a highway for the town's use, on the southerly side of the land belonging to the late John Gill, deceased, being thirty foot in breadth from the lower corner of said Gill's wharf next the sea.'

It is the duty of the court to construe written instruments; but the application of their provisions to external objects described therein is the peculiar province of the jury. Whether this document describes Summer street as it was afterwards laid out from high-water mark; whether 'the lower corner of Gill's wharf next the sea' was at that time (in 1683) at low-water mark; whether this street was staked out to low water, were questions which should have been submitted to the jury. The fact that the learned counsel differ so widely as to the situation of the points called for as the boundary of the street next the sea, shows conclusively that it is a question for the jury, and not for the court.

Moreover, the court were requested by plaintiff's counsel to instruct the jury, 'that if the jury shall find that, by reason of the acts of defendants complained of in the declaration, that part of plaintiff's wharf below low-water mark, held by him under a grant of the Legislature, has been injured in the manner set forth in the declaration, then the plaintiff is entitled to recover.'

There was some evidence that the drain constructed by defendant was not carried out sufficiently to discharge its contents so as to be swept off by the tides; but that it caused an accumulation of matter at the outer end of the plaintiff's wharves, insomuch that vessels could not approach them with the same depth of water as formerly. If this be so, it was an injury to the plaintiff, for which he was entitled to recover damages.

This question should have been submitted to the jury, and this instruction given, as requested by plaintiff's counsel. The others are disposed of by the opinion of this court in Boston v. Lecraw.

For these reasons, the judgment is reversed, and venire de novo awarded.


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SYRIA, THE LAND OF LEBANON the Pilgrim Route exactly half-way between Constantinople and Mecca, and the Dome of the Treasure, where, hidden jealously from infidel eyes, are kept the sacred books and the records of the mosque. Above tower three minarets, which are known as the Western, the Bride's and—strange as this name may at first seem—the Minaret of Jesus. The Moslems, however, believe that 'Isa, as they call Him, was one of the greatest of the prophets, hardly, if at all, inferior to Mohammed himself; and the "Son of Mary" is held in unusual reverence by the inhabitants of Damascus, who say that He will stand upon this minaret at the Last Judgment.

The mosque itself extends along the entire southern side of the court. I know of no other non-Gothic structure which seems so well fitted to uplift one's thoughts in solemn, spiritual worship of the unseen [ 122 ]


text: Talk:Richardson v. City of Boston (60 U.S. 263)/Opinion of the Court


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 counter current flowing north-east is close in shore and is taken advantage of by vessels going from Cape Town to Natal. On the west coast the current runs northwards. It is a deflected stream from the west drift of the “roaring forties” and coming from Antarctic regions is much colder than the Agulhas current. Off the southern point of the continent the Agulhas current meets the west drift, giving rise to alternate streams of warm and cold water. This part of the coast, subject alike to strong westerly and south-easterly winds, is often tempestuous, as is witnessed by the name, Cabo Tormentoso, given to the Cape of Good Hope, and to the many wrecks off the coast. The most famous was that of the British troopship “Birkenhead,” on the 26th of February 1852, off Danger Point, midway between Cape of Good Hope and Cape Agulhas.

Cape Colony map EB1911.png Mountains and Tablelands.—It has been stated that the land rises by well-marked steps to a vast central plateau. Beyond the coast plain, which here and there attains a height of 600 ft., are mountain ranges running parallel to the shore. These mountains are the supporting walls of successive terraces. When the steep southern sides of the ranges nearest the sea are ascended the hills are often found to be flat-topped with a gentle slope northward giving on to a plateau rarely more than 40 m. wide. This plateau is called the Southern or Little Karroo, Karroo being a corruption of a Hottentot word meaning dry, arid. Having crossed the Little Karroo, from which rise minor mountain chains, a second high range has to be climbed. This done the traveller finds himself on another tableland—the Great Karroo. It has an average width of 80 m. and is about 350 m. long. Northwards the (q.v.) is bounded by the ramparts of the great inner tableland, of which only a comparatively small portion is in Cape Colony. This sequence of hill and plain—namely (1) the coast plain, (2) first range of hills, (3) first plateau (Little Karroo), (4) second range of hills, (5) second plateau (the Great Karroo), (6) main chain of mountains guarding, (7) the vast interior tableland—is characteristic of the greater part of the colony but is not clearly marked in the south-east and north-west borders. The innermost, and most lofty, chain of mountains follows a curve almost identical with that of the coast at a general distance of 120 m. from the ocean. It is known in different places under different names, and the same name being also often given to one or more of the coast ranges the nomenclature of the mountains is confusing (see the map). The most elevated portion of the innermost range, the (q.v.) follows the curve of the coast from south to north-east. Only the southern slopes of the range are in Cape Colony, the highest peaks—over 10,000 ft.—being in Basutoland and Natal. Going westward from the Drakensberg

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Fletcher v. Babin

THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in equity.

The facts of the case are stated in the opinion.

It was argued by Mr. Smiley and Mr. Perin in a printed argument for the appellants, and orally by Mr. Taylor for the appellees.

The manner in which the counsel for the appellants sought to sustain the equity jurisdiction of the court in the case was as follows:

In the opinion of the judge of the Circuit Court, the cause was not one over which the equity side of the court had any jurisdiction. The title being merely legal, and the documents upon which the title rested being accessible to all parties, there was 'a case where plain, adequate, and complete remedy may be had at law.' Several cases were cited and relied upon to sustain this opinion. But without referring to them, we may observe that this case is distinguished from all those cited, in this: that no objection is raised in this case by the defendants to the jurisdiction, neither in the pleadings nor upon the argument. It was not raised in the Circuit Court, and we are assured by the opposite counsel that it will not be in this. The objection was raised in some form, either by demurrer or in argument upon final hearing in all the others.

In the case of United States v. Sturges et al., (1 Paine C. C. R., 525,) it was objected, at the hearing for the first time, (not by the court, but by the party,) 'that there was a want of equity apparent on the face of the bill in two particulars,' &c.

The court observes:

'There are several answers to be given to these objections. If, admitting the charges or facts stated in the bill to be true, there is no foundation in equity for the relief prayed, it was a proper cause for a demurrer, and the objection comes now with less weight that it would at an earlier stage of the proceedings.' (See p. 531.)

The case of Pierepont v. Towle (2 W. and M., 24) we conceive to be quite as far from establishing the doctrine upon which this bill was dismissed. After a thorough examination of a great many authorities on the point, the judge says, (p. 35:)

'But the correct rule probably is, that a respondent may and usually should demur, if it appears, on the face of the bill, that nothing is sought which might not be had at law.'

Without pursuing the authorities further, and even admitting, for the sake of the argument, that the judge was correct in his views of the authorites relied upon as a matter of law and practice, still we contend, and will endeavor to show to your honors, that he has fallen into an error on the facts exhibited in the record. He observes:

'The bill in the present case furnishes no reason for an application to the court of chancery, arising out of any particular condition of the parties; nor that a court of chancery is possessed of means to render a relief better suited to the claims of the case.'

Now, with all deference, we conceive there are many distinct and separate grounds of chancery jurisdiction in the record. Although no ground for the interference of a court of chancery is shown by the bill, yet, if it appear in a supplemental bill, replication, answer, or any subsequent proceeding, the jurisdiction will be maintained. (Craft v. Bullard, 1 Smedes and M. Ch. R., 373; Lafayette Ins. Co. v. French et al., 18 How., 404.)

In the former case, the chancellor stated that he would have dismissed the bill, had not the answer disclosed the only ground upon which equity could take jurisdiction.

Among the undoubted grounds of jurisdiction presented by the record, are:

First. To avoid a multiplicity of suits. It appears in the original bill that five persons, and others, were sued in the State court in 1824. On filing the record from that court, it is shown that five separate suits at law where brought for the land included in the bill. The fact is admitted in the plea, and also in the answers of the defendants, by setting out the subdivisions of the lands, and the parcels held by them, respectively.

This is one of the exceptions, in the case of Welby v. Duke of Rutland, to the general rule that chancery will not entertain suits upon legal titles merely. In that case, none but the appellant and respondent were concerned in the question, and there was no pretence for avoiding vexation or a multiplicity of suits at law. But why mention this circumstances at all, if it was not intended to recognise the right of going into chancery where five suits at law, or even a less number, could be united in one bill in equity? It appears clear, that if your honors acknowledge the principle above stated, that the jurisdiction may be shown by any part of the record, you will entertain this cause upon this ground, if upon no other. Whatever may be said of the facility afforded by the civil-law practice of the courts of Louisiana, to give relief in cases where, in the common-law States, the equity jurisdiction is undoubted, the expense and 'other vexations' of a multiplicity of suits cannot be avoided there, any more than in Massachusetts or Mississippi.

The remedy, then, as it appears by this view of the case, not being as full and complete at law, the court would entertain jurisdiction on the rule established in Boice's Ex. v. Grundy, (3 Pet., 215; 9 Wheat., 842; 4 Wash., 202, 205.)

Second. Another class of cases, in which chancery will lend its aid for relief, is in matters of trust.

Thus, 'if a man intrudes upon the estate of an infant, and takes the profits thereof, he will be treated as a guardian, and held responsible therefor to the infant in a suit in equity. (2 Story Eq., sec. 1,356; Ibid., sec. 511; 1 Mad. Ch., 91; Carmichael v. Hunter, 4 How., Miss., 315; Nelson v. Allan, 1 Yerger, 360; 8 Beaven, 159.)

In the last case, the equity jurisdiction was maintained upon a suit, by a person of full age, for mesne profits, accruing while he was a minor; 'such disseizor being viewed in chancery as guardian, bailiff, or trustee.' In Carmichael v. Hunter, it was admitted that this circumstance was the only ground of jurisdiction; as the title set up by complainant was legal, and an action for rents and profits a legal remedy.

Third. For discovery.

The discovery by defendants of their titles, the particular portions of the plantation claimed by them, and the time their possession and liability for rents and profits commenced, was material to complainants in making out their case.

Fourth. For partition.

'The necessity for a discovery of the titles, the inadequacy of the remedy at law, the difficulty of making the appropriate and indispensable compensatory adjustments, the peculiar remedial process of courts of equity, and their ability to clear away all intermediate obstructions against complete justice,' are grounds upon which 'these courts have assumed a general concurrent jurisdiction with courts of law, in all cases of partition. So that it is not now deemed necessary to state in the bill any ground of equitable interference.' (1 Story Eq., sec. 658.)

Fifth. The remedy at law is not plain, adequate, and complete.

The record shows that there are five sets of defendants, each claiming separate and distinct subdivisions of the plantations in controversy. At law, complainants would have to commence by five distinct petitory actions, against the five sets of defendants. And partition could only be made at law by giving them three-fourths of each subdivision, which would divide the two plantations, of only thirteen arpens front, into ten tracts, five of which would belong to complainants, and each of which would be separated from the other by the five small tracts allotted to the defendants. This would so cut up the plantations as greatly to injure the interest of all parties. In such cases, courts of equity may decree a sale, or pecuniary compensation for owelty or equality of partition, which a court of law is not at liberty to do. (1 Story Eq., sec. 654, 656, 657.)

The long and difficult accounts to be taken on one side for rents and profits, and for the value of improvements on the other, make the case more suitable for a master in chancery than for a jury.

Catharine Hipp was the owner of one undivided fourth of the lands in controversy; that portion she could and did sell to Daniel Clark. Not having complied with the formalities required by law, she could not and did not sell the other three-fourths belonging to complainants. (C. C., 2,427; 12 Rob., 552; Fletcher v. Cavallier, 4 La., 267.)

Clark never was in actual possession of any part of the land, and could only be in the constructive possession of the one-fourth conveyed by Mrs. Hipp. And he could only convey the one-fourth that belonged to him. (C.C., art. 2,427.) There is, therefore, no question of legal title properly in controversy in this suit. The defendants having illegally taken possession of the whole estate, while complainants were infants, and received the rents and profits for a series of years, the whole scope of the bill is substantially a bill for partition and account between tenants in common.

'This court has been called upon to consider the sixteenth section of the judiciary act of 1789, and as often, either expressly or by the course of its decisions, has held that it is merely declaratory, making no alteration whatever in the rules of equity on the subject of legal remedy. It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.' (Boyce's Ex'r v. Grundy, 3 Pet., 215.)

In this case, although the bill may not, yet the whole record does show particular circumstances for the necessity of the court's interposition to prevent multiplicity of suits, other vexation, and for preventing an injustice irremediable by a court of law.

In Louisiana, the distinction between courts of law and equity is unknown. All remedies are, in fact, both in form and substance, equitable. We look to the English chancery practice, at the date of the adoption of the Constitution, for the equity remedies of the United States courts. Otherwise, the equity jurisdiction of the United States courts would be abolished in half the States of the Union. (Gordon v. Hobart, 2 Sum., 401; Mayer v. Foulkrod, 4 Wash., 354; Fletcher v. Morey, 2 Story, 567; Hawshaw v. Parkins, 2 Swans., 546.)

Courts of equity refuse to decide upon legal titles, and all cases when there is an adequate remedy at law; because such cases are properly triable by a jury. The reason of the rule does not exist in Louisiana, for the trial by jury is not respected there, and is not allowed, except on the application of one of the parties. And it is the universal practice of the Supreme Court of the State to render final judgments, on appeal upon the law and the facts, without a renire facias de novo. (1 Hen. Dig., [La.,] p. 95, No. 5.) It is therefore unreasonable to refuse equity jurisdiction in cases from Louisiana, on the ground that such cases are properly triable by jury, or because adequate remedy may be had at law in the State courts, under the State practice. Courts of equity will and ought to dismiss bills, when their decrees would be absolutely void for want of jurisdiction; but we have found no case, in the reports of England or America, where a bill has been dismissed for want of jurisdiction, on the motion of the court, on the sole ground that there was an adequate remedy at law. Many courts of the highest respectability have held, that questions of jurisdiction, founded solely on the fact that there was an adequate remedy at law, must be presented by the pleadings. (Wiswall v. Hall, 3 Paige, 313; Bank of Utica v. City of Utica, 4 Ib., 399; 2 John. Ch. R., 339; 4 Paige Ch. R., 77; 1 Baily Ch. R., 62, 113; 1 S. and Marsh. Ch. R., 5, 13.)

The jurisdiction of the court in this case has been admitted during a litigation of more than ten years. No objection to it is raised by the pleadings, or on argument in the Circuit Court or in this court. There can be no doubt that a final decree would be binding and conclusive on all the parties. If this case is dismissed on the ground of want of equity jurisdiction, prescription, as we have shown, will commence only from the date of the decree of this court, and the costs and vexation attending five suits at law will be multiplied in proportion. It is therefore to the interest, and, we understand, the desire of all parties, that this court should decide the case upon its merits, and put an end to all further litigation, in a case which seems, and in reality will be, if this bill is dismissed, interminable.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Fletcher v. Babin


text: Talk:Fletcher v. Babin

title: Talk:Fletcher v. Babin


text:
Fletcher v. Babin/Opinion of the Court

The appellants filed their bill to recover land within the district, in the possession of the defendants, and for an account of the rents, profits, and receipts, during the period of their occupancy. They allege that James Fletcher, their ancestor, died in 1804, leaving a valid will, by which he devised to his widow and three children the principal portion of his succession, and appointed the former the executrix. The property described in the bill had been sold in 1801, but the purchaser had not paid the price stipulated at this time. The testator directed, that if the purchaser should complete the purchase, the sum received should be put to interest, on good security, for the mother and children, until the children should attain the age of sixteen years, when the succession should be divided. In May, 1806, the executrix agreed with the purchaser to rescined the contract of sale, received a conveyance of his title to the heirs of Fletcher, and refunded to him the money he had paid, being near $4,000.

In June, 1806, the executrix filed her petition in the Superior Court of the Orleans Territory, being the court of general law, equity, and probate jurisdiction, for the Territory, in which she declares the cancellation of the contract of sale aforesaid; and to enable her to refund the money, she had borrowed that sum from Daniel Clark; that the land was unproductive, and that she was unable to pay her debt. She prayed an order for the sale of the property, to provide for the education and maintenance of her minor children, and the discharge of her debt, and to carry the will of her husband into effect respecting the disposition of the remainder of the purchase-money. The court made the necessary order, to empower the executrix to sell and convey the lands for such price as she could obtain, and to receive the money therefor; also, to appropriate the sum necessary for the payment of her debt, and to put out the remainder at interest, as required by the will.

Daniel Clark became the purchaser at private sale from the executrix, for the sum of $9,000, and received her conveyance.

The appellants impeach this sale as unauthorized and illegal, and insist upon their title under the conveyance to them.

The defendants claim by their answers as bona fide purchasers from persons deriving their title by valid conveyances in good faith from Daniel Clark, and affirm that the family of Fletcher left the United States in 1807, and enjoyed the benefit of the money paid to the executrix; that the lands have become valuable by their improvements, and that they, and the persons under whom they claim, have held the possession since 1806. The bill was dismissed by the Circuit Court, on the ground that the remedy at law is plain, adequate, and complete, and from this decree this appeal is prosecuted.

The Supreme Court of Louisiana, in a contest between the appellants and other parties, for other lands, have decided that the executrix was not authorized to convey the shares of her minor children by private act. (Fletcher v. Cavelier, 4 La. R., 268; 10 La. R., 116 S.C..)

But we are relieved from the duty of applying these decisions, or inquiring into the validity of the pleas of the appellees, by the opinion we have formed concerning the jurisdiction of the court of chancery over the cause. The sixteenth section of the judiciary act of 1789 declares, 'that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law.'

The bill in this cause is, in substance and legal effect, an ejectment bill. The title appears by the bill to be merely legal; the evidence to support it appears from documents accessible to either party; and no particular circumstances are stated, showing the necessity of the courts interfering, either for preventing suits or other vexation, or for preventing an injustice, irremediable at law. In Welby v. Duke of Rutland, (6 Bro. P. C., cas. 575), it is stated, that the general practice of courts of equity, in not entertaining suits for establishing legal titles, is founded upon clear reasons; and the departing from that practice, where there is no necessity for so doing, would be subversive of the legal and constitutional distinctions between the different jurisdictions of law and equity; and though the admission of a party a suit is conclusive as to matters of fact, or may deprive him of the benefit of a privilege which, if insisted on, would exempt him from the jurisdiction of the court, yet no admission of parties can change the law, or give jurisdiction to a court in a cause of which it hath no jurisdiction.

Agreeably hereto, the established and universal practice of courts of equity is to dismiss the plaintiff's bill, if it appears to be grounded on a title merely legal, and not cognizable by them, notwithstanding the defendant has answered the bill, and insisted on matter of title. In Foley v. Hill, (1 Phil., 399,) Lyndhurst, Lord Chancellor, dismissed a bill upon an appeal from the Vice Chancellor upon the same grounds. He said 'it was a point of great importance to the practice of the court.' The objection was not made in the pleadings nor presented in the decree of the Vice Chancellor.

This decree was affirmed by the House of Lords. (2 H. L., cas. 28.) The practice of the courts of the United States corresponds with that of the chancery of Great Britain, except where it has been changed by rule, or is modified by local circumstances or local convenience. This court has denied relief in cases in equity where the remedy at law has been plain, adequate, and complete, though the question was not raised by the defendants in their pleadings, nor suggested by the counsel in their arguments. (2 Cr., 419; 7 Cr., 70, 89; 5 Pet., 496; 2 How., 383.) In Parsons v. Bedford, (3 Pet., 433,) the court insists on the necessity imposed on the Circuit Court in Louisiana, to maintain the distinction between the jurisdiction in which legal rights are to be ascertained, and that where equitable rights alone are recognised and equiable remedies administered.

And the result of the argument is, that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury.

The appellants contend, that upon the pleadings and evidence a proper case for the jurisdiction of chancery appears, and that the Circuit Court mero motu was not warranted in dismissing the bill: 1st. Because it is shown that in 1806 the children of Fletcher were minors, and they are authorized to call upon the defendants for an account as guardians. 2d. That the defendants being entitled to the estate of the executrix and widow, under her conveyance, the plaintiffs can maintain the bill for a partition. 3d. That the court of chancery is better fitted to take an account for rents, profits, and improvements, and may decide the question of title as incident to the account. 4th. That a multiplicity of suits will be avoided.

There are precedents in which the right of an infant to treat a person who enters upon his estate with notice of his title, as a guardian or bailiff, and to exact an account in equity for the profits, for the whole period of his occupancy, is recognised. (Blomfield v. Eyre, 8 Beav., 250; Van Epps v. Van Deusen, 4 Paige, 64.) But in those cases the title must, if disputed, be established at law, or other grounds of jurisdiction must be shown. In the present case, the defendants have all entered upon the lands since the plaintiffs arrived at their majority. They are purchasers of adverse titles under which possession has been maintained for a long period. The bill does not recognise their title to any part of the land, and there has been no unity of possession; so that the bill cannot be maintained, either as a bill for an account on behalf of minors or for a partition. (Adams's Eq., sec. 229; 4 Rand. Va. R., 74, 493.)

Nor can the court retain the bill, under an impression that a court of chancery is better adapted for the adjustment of the account for rents, profits, and improvements. The rule of the court is, that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause.

But when a party has a right to a possession, which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds have been stated, to show that courts of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been successful at law has been allowed to file a bill for an account of rents and profits during the tortious possession held against him, or in which the complexity of the account has afforded a motive for the interposition of a court of chancery to decide the title and to adjust the account. (Dormer v. Fortescue, 3 Atk., 124; Barnewell v. Barnewell, 3 Rid. P. C., 24.) Nor does the case show that a multiplicity of suits would be avoided, or that justice could be administered with less expense and vexation in this court than a court of law.

Decree affirmed.

title: Fletcher v. Babin/Opinion of the Court


text: Talk:Fletcher v. Babin/Opinion of the Court


text:
Wolfe v. Lewis

THIS was an appeal from the District Court of the United States for the northern district of Alabama, sitting in equity.

The present appeal was from a collateral decree of the District Court, under the following circumstances:

Lewis had been for many years the attorney of Thomas A. Ronalds, the deceased testator of the present appellants. In the course of his practice, he had filed a bill in chancery to foreclose a mortgage, and thus obtain payment of a debt which was due to his client. The money was voluntarily paid, without a sale, and brought into court. Lewis then claimed a lien upon that fund, not only for his professional services in that particular case, but also for a general balance which he alleged to be due to him from his client, upon a general settlement of accounts between them. At November term, 1848, the court passed the following order:

Order referring matters of account between Lewis and his clients to the Standing Master, to report, &c., at November, 1848 and Order to continue.

'Come the parties by their solicitors, and, by their consent, it is ordered by the court that all matters of account between John H. Lewis, Esq., and his late client, the said Thomas A. Ronalds, deceased, and between the said John H. Lewis and the said John D. Wolfe, executor, and Maria D. L. Ronalds, executrix, of the last will and testament of the said Thomas A. Ronalds, deceased, be referred to the standing master in chancery; and it is further ordered, that said master report a statement thereof, and of all his proceedings relative thereto, to the next term of this court. And it is further ordered, that this cause be continued.'

Under this order, the master went into a detailed examination of all the transactions between Lewis and his client for many preceding years, and made the report which is mentioned in the opinion of the court. From this report, when confirmed by the court, the present appellants appealed.

The case was argued by Mr. Thomas for the appellants, and by Mr. Reverdy Johnson, jr., and Mr. Reverdy Johnson, for the appellee.

The arguments being chiefly directed to the merits of the case, into which this court did not enter, it is not deemed advisable to insert them.

Mr. Justice McLEAN delivered the opinion of the court.

title: Wolfe v. Lewis


text: Talk:Wolfe v. Lewis

title: Talk:Wolfe v. Lewis


text:
Wolfe v. Lewis/Opinion of the Court

This is an appeal from the District Court for the northern district of Alabama.

The bill was filed to foreclose a mortgage, given to secure the payment of $12,000. Payments on this debt were made, amounting to the sum of $8,527, the last payment being made the 9th of October, 1839. An account was prayed, and that the mortgaged premises might be sold.

A supplemental bill was filed the 30th of November, 1843, stating that the last instalment of the mortgage debt had become due, and praying that the premises might be sold to satisfy that payment also.

The answer admitted the allegations of the bill, but claimed an additional credit of $600 on the mortgage. On the 23d of May, 1844, a final decree was entered, directing a sale of the mortgaged premises to pay the amount due, stated to be $10,077.68, with interest to the time of sale. Afterwards, at November term, 1848, the commissioner, who had been appointed to make the sale, returned that Cox, the defendant, had, without sale of the property, paid him the balance due under the decree, after deducting certain payments made before his appointment, which amounted to the sum of $8,318.47, which was brought into court.

At that term an entry in the cause was made, by consent of the solicitors of the parties, that all matters of account between John H. Lewis and his late client, Thomas A. Ronalds, deceased, and between the said Lewis and John D. Wolfe, executor, and Maria D. L. Ronalds, executrix, of the last will and testament of Thomas A. Ronalds, be referred to the standing master in chancery, 'who was directed to report a statement thereof, and of all his proceedings relative thereto, to the next term of the court.'

At November term, 1850, the master filed his report, which was exceedingly voluminous-covering more than two hundred and sixty pages of the record.

The master states an account, in which he charges Lewis with all sums, and interest, from the time he became chargeable up to the date of the report, 25th of November, 1850, amounting to the sum of $63,461.71. He shows the amount of credits claimed by Lewis, to same date, amounting to the sum of $55,966.82. Exceptions were filed to this report by both parties; and at May term, 1854, the court made a final decree on the master's report; in which is set out the manner in which the controversy arose, and referring to the order of November term, 1848, founded upon the motion in the Cox case, to remove Lewis from his capacity as attorney, so as to procure the payment to the complainants directly of the proceeds under the decree brought into court. And the court states that it considers the proceedings, as presented, not within its cognizance, inasmuch as no writ had been issued as between these parties, no bill filed, and no suit in any form commenced; there was no allegation or charge on the one side, or response or denial on the other; nor was the matter collateral to, or growing out of, any case pending.

On consideration, the court, though disposed to strike the matter from the docket, yet decreed that, as a large sum of money had been paid in under its order, it must be, in the language of the court, in some way paid out; and the exceptions to the master's reports were overruled, and the same was confirmed; and the marshal, as receiver, was ordered to pay over to Lewis the sum of $4,336.42 of the proceeds in his hands, and the residue, $3,982.05, he was directed to pay to the complainants. From this decree the complainants appealed.

This was an irregular proceeding, and without the authority of law. The bill was filed originally against Bartley Cox, the defendant, against whom the decree for the sum of $10,077.68 was entered. This being done, Lewis procured an order for his dismissal from the case, that he might bring up an account against Thomas A. Ronalds in his lifetime, and his executors since his decease, for professional services. And this was done without the form of suit, or the matter having any relation to the case before the court. And when it is considered that Ronalds was a citizen of New York, and that his representatives are citizens of New York, and do not seem to have had any notice of this illegal procedure, it can receive no sanction from this court.

It is contended that Lewis, as counsel, had a right to receive and receipt for moneys in the case; and whether he was entitled to reserve any portion thereof or not, can be properly tested only by a bill filed by the appellants against him to account.

But the whole proceeding in behalf of Lewis, as against the complainants, was irregular and void, the court having no jurisdiction of the matter. The order was of no importance that the decree should be without prejudice to either party, and not pleadable in bar to any subsequent litigation between them upon the same subject-matter, as the proceedings were invalid. But, as regards the complainants, it was error in the court to order any part of its original decree in their favor to be paid to one who was not properly before it as a party. For this purpose, neither complainants, nor the defendant, Lewis, were before the court, or amenable to its jurisdiction. The decree is therefore reversed, with costs. And the court direct that an order be transmitted to the Circuit Court, to require the defendant, Lewis, to pay over any money received by him under the decree to the proper officer of the court, that it may be paid to the complainants.

title: Wolfe v. Lewis/Opinion of the Court


text: Talk:Wolfe v. Lewis/Opinion of the Court


text:
Beebe v. Russell

THIS was an appeal from the Circuit Court of the United States for the district of Arkansas, sitting in chancery.

The bill was filed by William Russell against Roswell Beebe, Mary W. W. Ashley, Henry C. Ashley, William E. Ashley, George C. Watkins, and Mary A. Freeman, praying that they might be ordered to convey to the complainant certain pieces of property, which, it was alleged, they fraudulently withheld from him, and account for the rents and profits.

The Circuit Court decreed that the defendants should execute certain conveyances, surrender possession, and then proceeded to refer the matter to a master, with the instructions which are stated in the opinion of the court. The defendants appealed to this court.

It was submitted by Mr. Lawrence for the appellants, and Mr. Pike for the appellee.

Mr. Justice WAYNE delivered the opinion of the court.

title: Beebe v. Russell


text: Talk:Beebe v. Russell

title: Talk:Beebe v. Russell