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Miles v. Caldwell/Opinion of the Court

1. The complainant's first proposition-that his title is good, founded on the prior mortgage, and, being the true legal title, should prevail-contains no element as it is stated, or in the facts which go to make up his title, that calls into action the powers of a court of chancery. If under the proceedings which took place in regard to the mortgage of Gallagher, the complainant acquired the legal title to the real estate in question, a court of law would notice that title, and is as much bound to respect it as a court of equity. If he did not really obtain the legal title, but having the possession, was entitled to be treated as a mortgagee in possession, a court of law is bound to protect him in that possession against any title, not paramount to the mortgage under which he held.

We cannot perceive that there is any circumstance connected with the title of complainant, which brings his case within the jurisdiction of a court of equity. Although it is true that in the practice of the English courts, and in those States of the Union where the fictitious action of ejectment is still in use, chancery will interfere where there have been repeated verdicts in favor of the same title to prevent further litigation, it is not true that chancery will interpose in favor of the unsuccessful party in the first trial, upon the sole ground that he has the legal title, and, therefore, ought to have succeeded in the action at law. It would be a novelty that a court of chancery, which in proper cases quiets a title which has been established by several verdicts and judgments at law, should reverse its course of action to quiet a title strictly legal, with no impediment to its assertion in a court of law, where it had been defeated in the only action in which it had been thus set up.

2. The second proposition, in respect of which complainant asks relief,-that the mortgage to Carswell and McClellan is fraudulent, made to hinder creditors, &c.,-is one of the common grounds of equity jurisdiction. To relieve against fraud, and to set aside and cancel fraudulent conveyances, are among the ordinary duties of courts of chancery. Courts of law, however, have concurrent jurisdiction of questions of fraud, when properly raised; and, although they cannot cancel or set aside fraudulent instruments of writing, yet when they are produced in evidence by a party claiming any right under them, their fraudulent character may, under proper circumstances, be shown, and their validity in the particular case contested.

It is a general rule, growing out of the concurrent jurisdiction of the courts of law and chancery over this subject, as well as a variety of others, founded also upon the principle that it is the interest of the public, that there should be some end to litigation, that when a matter has once been heard and determined in one court, it shall not be subject to re-examination in another court between the same parties. The defendant in this suit invokes the benefit of this rule as regards the question of fraud in the mortgage from Ely to Carswell and McClellan, and also as to the fact charged by him that the Gallagher mortgage had been fully satisfied, and was no longer of any force; alleging that both questions were submitted to the jury and decided against complainant in the action of ejectment, the judgment in which is now sought to be enjoined. Of the fact of such submission and finding there can, in this case, be no doubt. Under the instructions of the court, which are in proof in this record, if the jury found either of these issues in favor of Caldwell, the plaintiff was not entitled to a verdict. The plaintiff, however, did get a verdict. It thus appears conclusively that the jury found that there was no fraud in the second mortgage, and that the first had been satisfied.

The complainant, however, seeks to evade the force of the general principle on the ground that the verdict and judgment in actions of ejectment have not that conclusive effect between the parties which they have in other actions, either in courts of law or equity. It must be conceded that such is the general doctrine on the subject, as applicable to cases tried under the common law form of the action of ejectment.

One reason why the verdict cannot be made conclusive in those cases is obviously due to the fictitious character of the action. If a question is tried and determined between John Doe, plaintiff, and A. B., who comes in and is substituted defendant in place of Richard Roe, the casual ejector, it is plain that A. B. cannot plead the verdict and judgment in bar of another suit brought by John Den against Richard Fen, though the demise may be laid from the same lessor, for there is no privity between John Doe and John Den. Hence, technically, an estoppel could not be successfully pleaded so long as a new fictitious plaintiff could be used. It was this difficulty of enforcing at law the estoppel of former verdicts and judgments in ejectment, that induced courts of equity (which, unrestrained by the technicality, could look past the nominal parties to the real ones) to interfere, after a sufficient number of trials had taken place, to determine fairly the validity of the title; and by injunction, directed to the unsuccessful litigant, compel him to cease from harassing his opponent by useless litigation.

There was, perhaps, another reason why the English common law refused to concede to the action of ejectment, which is a personal action, that conclusive effect which it gave to all other actions, namely, the peculiar respect, almost sanctity, which the feudal system attached to the tenure by which real estate was held. So peculiarly sacred was the title to land with our ancestors, that they were not willing that the claim to it should, like all other claims, be settled forever by one trial in an ordinary personal action, but permitted the unsuccessful party to have other opportunity of establishing his title. They, however, did concede to those solemn actions, the writ of right and the writ of assize, the same force as estoppels, which they did to personal actions in other cases.

The first of the above reasons, for the inconclusiveness of the action of ejectment, does not exist in the case before us. That is not the old fictitious action, but is a suit by Thomas Miles against William Caldwell, in which the former complains of the latter 'in a plea of trespass and ejectment,' and sues for the possession of the land and for damages for its detention. If Caldwell should sue Miles to regain possession after the latter had obtained it under his judgment, there exists no technical reason to prevent Miles from pleading the former judgment, and alleging that it involved the same subject-matter as that for which the second suit was brought.

How far the peculiar sanctity attaching to titles to real estate is still a reason, if it were ever one, for taking judgments in ejectment out of the general rule of conclusiveness, we will consider hereafter. At present we proceed to inquire into a qualification of the rule which is alleged to apply in all cases where the action relied on as an estoppel was in tort, namely, that nothing will be held as concluded by the verdict which was not put directly in issue by the pleadings. If this principle is a sound one, the plea in this case being the general issue of not guilty, no parol proof can be received to show what questions of fact were submitted to the jury under that issue. The case of Standish v. Parker, would seem to countenance this doctrine. But, after a careful examination of the authorities, we do not think that the rule is sustained, nor do we believe it to be founded on sound principle. No reason is perceived why parol proof should be admitted to show what facts were proved, or were put in issue, under the general issue in assumpsit, that would not be equally applicable to the same issue in trespass. Yet it is quite clear, from numerous authorities, that the facts put in issue in assumpsit may be shown in another action by parol. The case of Outram v. Moorewood is a leading case on the subject. It is there decided that the action of trespass is conclusive on all questions put expressly in issue by the pleadings. But there is nothing in the opinion touching the introduction of parol proof, for the pleas in that case rendered it unnecessary, the facts in dispute having been set forth in a special plea. In Kitchen v. Campbell, the former action was trover for the conversion of goods; and the same plaintiff having afterwards sued in assumpsit for their value, his defeat in the former suit was held to be a bar to his recovery in the second action. Although it is not stated in the case what was the plea in the action of trover, there is no reason to suppose that it was other than not guilty; nor does it seem that any importance was attached to the form of the plea. In Burt v. Sternburgh, -an action of trespass quare clausum fregit,-the plaintiff was allowed to introduce the record of a former recovery between the same parties in an action of trespass, and then to prove by parol that the locus in quo was the same, and that the title relied on by defendant in the action then on trial, was the same title which had been set up and defeated in the first action. In Doty v. Brown, the action was replevin for oats, hay, &c. The case turned on the validity of a bill of sale, which was alleged to be fraudulent and void as to creditors. The defendant relied on a judgment of a justice of the peace in a former suit, between the same parties, for the conversion of a part of the goods covered by the same bill of sale. The justice was allowed to testify that he had rendered his judgment in favor of defendant on the ground that the bill of sale was fraudulent as to creditors; and this was held conclusive in the Court of Appeals of New York.

We are of opinion that the prevailing doctrine of the courts at present is, that whenever the form of the issue in the trial relied on as an estoppel is so vague that it does not determine what questions of fact were submitted to the jury under it, it is competent to prove by parol testimony what question or questions of fact were before the jury, and were necessarily passed on by them. In the case under consideration, the record leaves no doubt on that subject.

Reverting now to the question of policy, grounded on the supposed sanctity of land titles as affecting the conclusiveness of judgments in trespass or ejectment, we remark that it is the settled doctrine of this court in reference to all questions affecting the title to real estate, to permit the different States of the Union to settle them each for itself; and when the point involved is one which becomes a rule of property, we follow the decisions of the State courts, whether founded on the statutes of the States or their views of general policy.

As regards the particular question before us, there is a great difference in the different States in the value attached to real estate, and to the title by which it is held, as compared with other species of property. But no doubt is entertained that in all of them the feeling is far removed from that which formerly prevailed in England, or which prevails there even now. While some of our older States still uphold many of the safeguards of the common law, with its complicated system of conveyancing, operating as a strong drag upon the facility and frequency of transfers of real property, our Western people traffic in land as they do in horses or merchandise, and sell a quarter-section of land as readily and as easily as they do a mule or a wagon. The laws of the people correspond with their habits. Deeds of conveyance are, by statute, rendered exceedingly simple and effectual, the main safeguard being a well-digested system of registration. In consonance with this general facility of traffic, it is their policy to prevent those endless litigations concerning titles to lands, which, in other countries, are transmitted from one generation to another. The rapid settlement of a new country requires that a title once fairly determined shall not be again disturbed as between the same parties.

The Revised Statutes of Missouri of 1855, concerning the action of ejectment, say: 'A judgment, except of nonsuit, in an action authorized by this act, shall be a bar to any other action between the same parties, or those claiming under them, as to the same subject-matter.' We hold this enactment to be binding on the Federal courts as well as those of the State. It is a rule of property. It concerns the stability of titles to land, and it would be highly improper to adopt in the Federal courts a rule tending to increase litigation and unsettle those titles, which is in conflict with the one prescribed by the law-making power of the State. It is a matter which involves something more than a mere rule of practice. It is a question whether a matter, which is conclusive of the title to land in the State courts, shall have the same effect in the Federal courts. It is our opinion that it should.

3. As regards the claim for improvements made in good faith by complainant, the matter is not alluded to by his counsel in this court at all. It is barely mentioned by the counsel for appellant, and no importance seems to have been attached to it either here or in the court below. Such a right must depend wholly upon the statutes of Missouri, and none are cited to us. We are unwilling to enter upon an investigation of the law and the facts both under such circumstances. Besides, without deciding the point, we may remark that upon an examination of the statute of Missouri on that subject, and looking to the policy which dictated it, it does not seem probable that it was intended to give this kind of relief to an unsuccessful defendant in ejectment, while he was still contesting the title of the plaintiff. As to this point, we incline to rule that the bill shall be dismissed without prejudice.

GRIER, J., expressed his concurrence, adding as another reason why the bill should have been dismissed, that even if the mortgage given to Carswell and McClellan had been fraudulent, which his Honor, after examining the testimony, said it was not, the complainant, who was not a creditor, had no equity to found his bill.

DECREE REVERSED, with costs; case remanded to the court below, with directions that there the bill be dismissed with costs; the dismissal, however, to be without prejudice to any remedy of the complainant for compensation for improvements on the land made in good faith.

title: Miles v. Caldwell/Opinion of the Court


text: Talk:Miles v. Caldwell/Opinion of the Court

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Page:Cournot Theory of Wealth (1838).djvu/27

 Rh It has been long remarked, and justly, that commerce, properly so called, i.e. the transportation of raw materials or finished products, from one market to another, by adding to the worth of the objects transported, creates value or wealth in just the same way as the labour of the miner who extracts metals from the bowels of the earth, or the workman who adapts them to our needs. What ought to have been added, and what we shall have occasion to develop, is that commerce may also be a cause of destruction of values, even while making profits for the merchants who carry it on, and even when in every one's eyes it is a benefit to the countries which it connects in commercial intercourse.

A fashion, a whim, or a chance occurrence may cause a creation or annihilation of values without notable influence on what is regarded as public utility or the general welfare; it can even come about that a destruction of wealth may be salutary, and an increase detrimental. If chemists should solve the problem of making diamonds, jewellers and the ladies who own sets of jewellery would suffer heavy losses; the general mass of wealth capable of circulation would experience a notable decrease, and yet I can hardly think than any sensible man would be tempted to consider it a public calamity, even though he might regret the individual losses involved. On the contrary, if the taste for diamonds should decline, if wealthy people should stop devoting an important part of their fortunes to this idle vanity, and if, in consequence, the value of diamonds in commerce should decrease, wise men would gladly commend this new departure of fashion.


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Tool Company v. Norris

IN July, 1861, the Providence Tool Company, a corporation created under the laws of Rhode Island, entered into a contract with the Government, through the Secretary of War, to deliver to officers of the United States, within certain stated periods, twenty-five thousand muskets, of a specified pattern, at the rate of twenty dollars a musket. This contract was procured through the exertions of Norris, the plaintiff in the court below, and the defendant in error in this court, upon a previous agreement with the corporation, through its managing agent, that in case he obtained a contract of this kind he should receive compensation for his services proportionate to its extent.

Norris himself, it appeared,-though not having any imputation on his moral character,-was a person who had led a somewhat miscellaneous sort of a life, in Europe and America. Soon after the rebellion broke out, he found himself in Washington. He was there without any special purpose, but, as he stated, with a view of 'making business-anything generally;' 'soliciting acquaintances;' 'getting letters;' 'getting an office,' &c. Finding that the Government was in need of arms to suppress the rebellion, which had now become organized, he applied to the Providence Tool Company, already mentioned, to see if they wanted a job, and made the contingent sort of contract with them just referred to. He then set himself to work at what he called, 'concentrating influence at the War Department;' that is to say, to getting letters from people who might be supposed to have influence with Mr. Cameron, at that time Secretary of War, recommending him and his objects. Among other means, he applied to the Rhode Island Senators, Messrs. Anthony and Simmons, with whom he had got acquainted, to go with him to the War Office. Mr. Anthony declined to go; stating that since he had been Senator he had been applied to some hundred times, in like manner, and had invariably declined; thinking it discreditable to any Senator to intermeddle with the business of the departments. 'You will certainly not decline to go with me, and introduce me to the Secretary, and to state that the Providence Tool Company is a responsible corporation.' 'I will give you a note,' said Mr. Anthony. 'I do not want a note,' was the reply; 'I want the weight of your presence with me. I want the influence of a Senator.' 'Well,' said Mr. Anthony, 'go to Simmons.' By one means and another, Norris got influential introduction to Mr. Secretary Cameron, and got the contract, a very profitable one; the Secretary, whom on leaving he warmly thanked, 'hoping that he would make a great deal of money out of it.'

But a dispute now arose between Norris and the Tool Company, as to the amount of compensation to be paid. Norris insisted that by the agreement with him he was to receive $75,000; the difference between the contract price and seventeen dollars a musket; whilst the corporation, on the other hand, contended, that it had only promised 'a liberal compensation' in case of success. Some negotiation on the subject was had between them; but it failed to produce a settlement, and Norris instituted the present action to recover the full amount claimed by him.

The declaration contained several counts; the first and second ones, special; the third, fourth, and fifth, general. The special ones set forth specifically a contract, that if he, Norris, procured the Government to give the order to the company, the company would pay to him, Norris, 'for his services, in obtaining, or causing and procuring to be obtained, such order, all that the Government might, by the terms of their arrangement with the company, agree to pay above $17 for each musket.' The general counts were in the usual form of quantum meruit, &c.; but in these counts, as in the special ones, a contract was set forth on the basis of a compensation, contingent upon Norris's procuring an order from the Government for muskets for the Tool Company; reliance on this contingent sort of contract running through all the counts of the declaration. There was no pretence that the plaintiff had rendered any other service than that which resulted in the contract for the muskets.

On the trial in the Circuit Court for the Rhode Island District, the counsel of the Tool Company requested the court to instruct the jury, that a contract like that declared on in the first and second counts was against public policy, and void; which instruction the court refused to give. The same counsel requested the court to charge, 'that upon the quantum meruit count the plaintiff was not entitled in law to recover any other sum of money, for services rendered to the Tool Company in procuring a contract for making arms, than a fair and reasonable compensation for the time, speech, labor performed, and expenses incurred in performing such services, to be computed at a price for which similar servies could have been obtained from others.' The court gave this instruction, with the exception of the last nine words in italics. The jury found for the defendant on the first and second-that is to say, upon the special-counts, and for the plaintiff on the others, and judgment was entered on $13,500 for the plaintiff. The case came, by writ of error, here.

Messrs. Payne and Thurston for the Tool Company, plaintiff in error: The general principle that 'many contracts which are not against morality are still void as being against sound policy,' is one that was distinctly announced so long ago, at least, as Lord Mansfield's day, and one which will not be denied. Thus, no recovery can be had upon a contract for the payment of a part of the profits of an office to the former incumbent, in consideration of his resignation of such office; and the principle has been extended to the case of a contract stipulating merely for the resignation of an office, without any agreement to exert any influence toward the appointment of a successor, and this, too, where the sum agreed to be paid for such resignation was only an equitable return of a portion of a sum of money previously paid by the retiring officer upon a like contract to his successor, who had also been his predecessor in the same office. In consistency with the doctrine that benefits from the Government ought not to be the result of any corrupting influence, but should be awarded on the principle of detur digniori, it has been held that an agreement on the part of one person to pay a sum of money to another person, as an inducement for the latter not to propose to carry the mail upon a certain post-route in opposition to the former, is against public policy and void, although no act whatever was done by the party, to whom the promise was made, to influence the success of the other party's application, and the applicant was a suitable and responsible man to perform the service. Similar principles governed the court in the Vermont case of Pingry v. Washburn, where it refused to sustain an agreement to pay a sum of money for withdrawing opposition to the passage of an act affecting the interest of a corporation. The Supreme Court of Massachusetts, in Boynton v. Hubbard, remark, in reference to the class of illustrations now being considered: 'It is upon this same principle that bargains to procure offices are rescinded, not on account of fraud in either of the parties, but for the sake of the public, because they tend to introduce insuitable persons into public offices.'

Another, and a large class of cases to which the principle has been applied, relate to agreements for compensation for procuring legislation. All such have, without an exception, been held to be void. In Marshall v. Baltimore and Ohio Railroad Co., this court stated that it was an undoubted principle of the common law that it will not lend its aid to enforce a contract 'which tends to corrupt or contaminate, by improper influences, the integrity of our social or political institutions.' And again: 'Bribes in the shape of high contingent compensation must necessarily lead to the use of improper means and the exercise of undue influence. Their necessary consequence is the demoralization of the agent who covenants for them.'

That it is not necessary for the element of sinister or personal influence to be contemplated by the agreement, or to be, in fact, resorted to by the agent, in order to render such agreement for service obnoxious to the law, is directly asserted in other cases. The plaintiff in Harris v. Roofs sought to recover in indebitatus assumpsit, and on a quantum meruit, for his services and expenses in prosecuting before the legislature of New York a claim, in behalf of the defendant, to a certain tract of land derived under an Indian grant. It does not appear from the case that the plaintiff was to observe any secrecy, or that his true representative character was not fully understood. Neither was it suggested that he was expected to employ, or did in fact make use of, any sinister or improper influence with the members of the legislature. It was shown that he appeared at hearings of the committee to whom the same was referred, and that the value of his services to the plaintiff, and the expenses by him incurred during his stay in Albany, were equal to the amount charged, which was not a large sum, he having failed of establishing the defendant's title. Some question was made whether his compensation was not to be contingent, as was proved to have been the agreement with a former agent of the defendant in the same business. The court, however, use the following language: 'Even without any agreement to share in the avails of the claim, we think the claim invalid as against public policy and sound legislation. It certainly would imply a most unjustifiable dereliction of duty to hold that the employment of individuals to visit and importune the members is necessary to obtain justice. Such practices would have a tendency to prevent the free, honorable, and correct deliberation and action of this most important branch of sovereignty. We cannot think it good public policy to require our courts to enforce such contracts. It can neither be necessary or proper for the legislature to be surrounded by swarms of hired retainers of the claimants upon public bounty or justice. To legalize such a system would, to say the least, be a reflection upon the ability and industry of our legislators.'

The Louisiana case of Gill v. Williams & Davis, and another in Massachusetts, Fuller v. Dame, are in point. The principle to be deduced from the cases is, in its fullest force, applicable to the one at bar. The evil tendencies of an agreement to procure a favor from one of the departments of the Government for a compensation contingent upon the success of the undertaking, are as great as in the case of an agreement to procure legislation upon a similar consideration. The heads of the several departments exercise by delegation the high duties which, by law, have been intrusted to them, and are only the executive ministers appointed to carry out the will of the law-making power. The authority to make contracts for arms was derived from the legislature. It would have been competent for Congress to have authorized the making of such contracts through one of its own committees, or by the concurrent action of the two houses of which it is composed, to have settled upon and agreed to the terms of each contract. It follows, therefore, that if the agreement set up by the defendant in error would be condemned if it related to the procurement of legislation beneficial to the plaintiff in error, it must, for the same reasons, fail of support if it relates to the procurement of the same benefit from the Secretary of War, to whom the power of conferring it had been delegated.

If any one ever doubted of the wisdom of such principles as the cases which we have cited a little way back decide, will he doubt it after reading the statement of this case? With a sense of decorum, the reporter will probably suppress some of its salient features,-the tacenda of the case. Its general character he will not dare, even for decorum's sake, to falsify. 'Wounds cannot be cured without searching.' This case has been probed, and requires to be laid open.

The transaction is creditable to no one concerned but to Mr. Anthony. Such principles as the court below declared in regard to the contract are wholly untenable. And the effect is seen in the fact that, for service which any clerk in the employ of the company might have rendered in a single day, and at a trifling expense, the jury awarded a compensation nearly double what is allowed to one of your Honors for the service of a year upon this bench.

May it please this court, a profound thinker of our own country has observed that nothing so base as American politics had become, before the breaking out of our rebellion, had been seen in human history since the Roman Empire was put up at auction. Our politics, it may be hoped, have grown no worse during the honorable contest which our country has been waging. But may it not be feared that what are called the morals of business have been descending to the level of politics rapidly? No one expects absolute purity in politics or business, especially in time of war. Contractors followed the armies of Wellington as they follow those of Grant. The Treasury was plundered when William Pitt was Chancellor of the Exchequer; and we may doubt, Mr. CHIEF JUSTICE, whether, when YOU held a corresponding office, you were able to keep the hands of all your subordinates as clean as you ever kept YOUR OWN. These are the necessary consequences of the disordered condition in which we now temporarily are. But they are not to be encouraged; least of all are they to have judicial sanction. This court will pronounce, we feel assured, that this agreement for contingent compensation, as the reward of procuring contracts with the Executive Department of the Government, is contra bonos mores, and wholly void.

Mr. Blake, contra.

1. It is not easy to conceive of a more ungracious defence. Confessedly, the contract was procured through the exertions of Norris alone. Of course, he gave his time, spent his money, invoked the aid of acquaintances, solicited influence, waited about the ante-rooms, and went through such operations as persons seeking contracts at Washington generally go through; operations distasteful in the extreme to any man of independence; impossible, indeed, for such a man to undergo. There is no imputation upon the generally fair character of Mr. Norris, nor allegation that Mr. Cameron acted corruptly. Having got the contract through Norris's labors, having made an immense sum by it, the company now turn round, and plead the illegality of their agreements! Is not this base? More than this, is it not a case for the maxim, Nemo allegans turpitudinem suam audiatur?

The cases cited do not apply. Not one is a case like this. There is no case which says that a corporation may not employ an agent to negotiate with the War Department, for a contract to manufacture arms; or that, if the agent is openly acting as such, the terms of his compensation may not lawfully be whatever the corporation and himself agree on.

2. The refusal of the court to charge that such a contract was unlawful, was expressly directed to the contract between Norris and the Tool Company, as specifically set forth in the first and second counts; that is to say, as set forth in the special counts. In them, Norris set up a specific agreement to give him all above seventeen dollars a musket. But on these two counts the jury found for the Tool Company. Of course, the instruction asked for by the company on these counts, and refused, is not open to consideration here.

Mr. Justice FIELD delivered the opinion of the court.

title: Tool Company v. Norris


text: Talk:Tool Company v. Norris

title: Talk:Tool Company v. Norris


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Tool Company v. Norris/Opinion of the Court

Several grounds were taken, in the court below, in defence of this action; and, among others, the corporation relied upon the proposition of law, that an agreement of the character stated, that is, an agreement for compensation to procure a contract from the Government to furnish its supplies,-is against public policy, and void. This proposition is the question for the consideration of the court. It arises upon the refusal of the court below to give one of the instructions asked.

A suggestion was made on the argument, though not much pressed, that the instruction involving the proposition cannot properly be regarded, inasmuch as it was directed in terms to the agreement set forth in the special counts of the declaration, upon which the jury found for the defendants. There would be much force in this suggestion, if the general counts, upon which the verdict passed for the plaintiff, did not also aver that his services were rendered in procuring the same contract from the Government. The instruction was directed especially to the legality of a contract of that kind, which having been once refused with reference to some of the counts, it was not necessary for counsel to renew with reference to the other counts to which it was equally applicable. The subsequent instructions were, therefore, directed to other matters.

It was not claimed, on the trial, that the plaintiff had rendered any other services than those which resulted in the procurement of the contract for the muskets. We are of opinion, therefore, that the proposition of law is fairly presented by the record, and is before us for consideration.

The question, then, is this: Can an agreement for compensation to procure a contract from the Government to furnish its supplies be enforced by the courts? We have no hesitation in answering the question in the negative. All contracts for supplies should be made with those, and with those only, who will execute them most faithfully, and at the least expense to the Government. Considerations as to the most efficient and economical mode of meeting the public wants should alone control, in this respect, the action of every department of the Government. No other consideration can lawfully enter into the transaction, so far as the Government is concerned. Such is the rule of public policy; and whatever tends to introduce any other elements into the transaction, is against public policy. That agreements, like the one under consideration, have this tendency, is manifest. They tend to introduce personal solicitation, and personal influence, as elements in the procurement of contracts; and thus directly lead to inefficiency in the public service, and to unnecessary expenditures of the public funds.

The principle which determines the invalidity of the agreement in question has been asserted in a great variety of cases. It has been asserted in cases relating to agreements for compensation to procure legislation. These have been uniformly declared invalid, and the decisions have not turned upon the question, whether improper influences were contemplated or used, but upon the corrupting tendency of the agreements. Legislation should be prompted solely from considerations of the public good, and the best means of advancing it. Whatever tends to divert the attention of legislators from their high duties, to mislead their judg ments, or to substitute other motives for their conduct than the advancement of the public interests, must necessarily and directly tend to impair the integrity of our political institutions. Agreements for compensation contingent upon success, suggest the use of sinister and corrupt means for the accomplishment of the end desired. The law meets the suggestion of evil, and strikes down the contract from its inception.

There is no real difference in principle between agreements to procure favors from legislative bodies, and agreements to procure favors in the shape of contracts from the heads of departments. The introduction of improper elements to control the action of both, is the direct and inevitable result of all such arrangements.

The same principle has also been applied, in numerous instances, to agreements for compensation to procure appointments to public offices. These offices are trusts, held solely for the public good, and should be conferred from considerations of the ability, integrity, fidelity, and fitness for the position of the appointee. No other considerations can properly be regarded by the appointing power. Whatever introduces other elements to control this power, must necessarily lower the character of the appointments, to the great detriment of the public. Agreements for compensation to procure these appointments tend directly and necessarily to introduce such elements. The law, therefore, from this tendency alone, adjudges these agreements inconsistent with sound morals and public policy.

Other agreements of an analogous character might be mentioned, which the courts, for the same or similar reasons, refuse to uphold. It is unnecessary to state them particularly; it is sufficient to observe, generally, that all agreements for pecuniary considerations to control the business operations of the Government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void as against public policy, without reference to the question, whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation, by refusing them recognition in any of the courts of the country.

It follows that the judgment of the court below must be reversed, and the cause remanded for a new trial; and it is

SO ORDERED.


text: Talk:Tool Company v. Norris/Opinion of the Court


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Gregg v. Forsyth (69 U.S. 56)

FORSYTH had brought ejectment against Gregg in the Circuit Court for Illinois, and obtained judgment for the land sued for. On writ of error taken by Gregg, this court reversed that judgment and remitted the case with directions to issue a venire de novo. Between the time, however, that the Circuit Court gave its judgment of recovery, and that when this court gave its of reversal, Forsyth had been put in possession of the premises by a habere facias, and had collected, moreover, the costs of the suit.

As soon as the mandate of this court reversing the judgment was sent down to the court below, but before it had been filed or a rule entered in pursuance of its directions, Gregg moved the court for a writ of restitution. This motion the court refused to grant. Whereupon, a writ of error-the present writ-was brought.

Mr. Justice NELSON delivered the opinion of the court.

title: Gregg v. Forsyth (69 U.S. 56)


text: Talk:Gregg v. Forsyth (69 U.S. 56)

title: Talk:Gregg v. Forsyth (69 U.S. 56)


text:
Gregg v. Forsyth (69 U.S. 56)/Opinion of the Court

Upon the facts of this case, it will be seen that at the time the motion was made in the court below, the cause was not then pending in the court. Although the mandate had been sent down to the circuit from this court it had not been filed there, nor had the rule been entered in pursuance of its directions reversing the judgment. The court had not, therefore, obtained possession of the cause, and this was, doubtless, the reason for refusing the motion for restitution. The plaintiffs in error were entitled to restitution both of the premises and costs on the reversal of the judgment, and the modern practice is to apply to the court on the coming down of the mandate from the appellate tribunal and the entry of the judgment of reversal for a writ of restitution, setting forth the facts entitling the party to the remedy and giving notice of the motion to the adverse party. The earlier and more formal remedy was by scire facias.

It seems that the writ of restitution may be granted though a new venire has been directed. In Smith's Lessee v. Trabue's Heirs, this court held, that a writ of error would not lie to an order of the Circuit Court awarding a writ of restitution on motion, and dismissed the case for want of jurisdiction. The writ in the present case must be dismissed for the same reason. The order is not considered a final judgment within the meaning of the Judiciary Act.

DISMISSAL ACCORDINGLY.


text: Talk:Gregg v. Forsyth (69 U.S. 56)/Opinion of the Court


text:
Banks v. Ogden

THIS was an ejectment brought to December Term, 1859, in the Circuit Court for the Northern District of Illinois, to recover a lot of ground, A A, formed by accretion on the western shore of Lake Michigan. The case was thus:

Kinzie, being owner in fee of a fractional section of land bounded on the east by the said lake, and lying immediately north of the original town of Chicago, made a subdivision of it in 1833, which he called Kinzie's addition, and deposited a plat of it in the office of the county recorder, where it was recorded in February, 1834: though not in accordance with certain statutes of Illinois, which, it was contended in the argument, give an effect to plats properly made, acknowledged, and recorded, that changes the rule of the common law regarding the streets on which the lots are sold.

The north and south street of the subdivision nearest the lake was called Sand Street; the east and west street nearest the north line of the fraction was named Superior Street. The waters of the lake limited Sand Street on the north by an oblique line extending from a point on its eastern side, about a hundred feet below, to a point on its western side about a hundred feet above Superior Street; as indicated on the diagram opposite. The northeastern block of the subdivision, numbered 54, was bounded, on its eastern side, in part by Sand Street and in part by the lake. Sand Street, therefore, terminated in a small triangular piece of land, b, c, d, between the lake and Block 54. This triangle was less than thirty-three feet wide at its lower or southern end, and diminished to a point at its northern extremity. Upon this triangle, distinctly shown by the plat, new land was formed in 1844-'5-the date must be observed-by accretion; and extended eastwardly, in the direction of the dotted lines, more than two hundred feet. The question was, to whom did this new land belong?

In 1842, Kinzie had been declared a bankrupt under the bankrupt act of 1841, and his whole property passed of course by operation of law to his assignee.

Under this title the assignee claimed, subject to public use as a street, the eastern half of the triangle, and the newly-formed land as accretion. Acting upon this claim he sold, under petition and order of the District Court, made in 1857, part of the accretion, being the land in controversy, to one Sutherland, who conveyed to Banks, plaintiff in the ejectment. Of course this newly-formed land had not been included in the assignee's inventory of the bankrupt's effects.

On the other hand, Ogden, the defendant, deriving title by regular conveyance in 1833 from Kinzie, to that part of Block 54 to which the triangle was adjacent, conceived that the fee of the whole triangle, subject to the public use, passed to him with the land bounded by it. His theory was, that Sand Street, which was sixty-six feet wide below its meeting with the lake, continued sixty-six feet wide to its northern termination, and that the whole triangle being everywhere less than thirty-three feet wide, was west of the middle line of the street, and therefore belonged to him as owner of the adjoining land. As the legal result of these propositions he claimed the whole accretion, as formed upon land of which he held the fee.

It is necessary here to state that the bankrupt act, under which Banks, the plaintiff, claimed, enacts, by its eighth section, that 'no suit at law, or in equity, shall, in any case, be maintained by or against the assignee of the bankrupt, touching any property or rights of property of the bankrupt, transferable to or vested in him, in any court whatever, unless the same be brought within two years of the declaration of bankruptcy, or after the cause of suit shall have first accrued.' At what date Ogden, the defendant, went into possession, did not appear. The bankrupt act (§ 10) also enacts that all proceedings in bankruptcy shall, if practicable, be brought to a close by the court within two years after a decree.

Upon this case the court below instructed the jury that the law was for the defendant; and, judgment having been so entered after verdict, the case was now before the court on error.

Mr. Fuller, for Ogden, defendant below and in error.

1. The first question is, whether or not Kinzie had any title remaining in him to any land east of Block 54, after making and recording the plat of Kinzie's addition, and the conveyance of 1833?

By making and recording the plat, Kinzie dedicated all the land which there then was in front of the block; and, so far as it sufficed to make a street, to public use, and as the land increased, by accretion or otherwise, the public was entitled to extend the street in a line with that part of it south of this block. 'Where a city is laid out with streets running to the water,' says a California case, 'such streets should be held to continue on to the high water, if the city front is afterwards filled in, or the space enlarged by accretion or otherwise. Any other doctrine would be destructive of the interests of commercial communities.' The curved line on Kinzie's plat, showing the course of the lake opposite to the block, was not meant to declare its boundary in all time on that side. It meant simply to show that along that line was the then course of the water; that there was where the lake came, and to prevent purchasers from supposing that the street held good for its original width of sixty-six feet below or southward. If it was washed away after that, it was the purchaser's loss. If it was extended by accretion, his gain. Had a street of full width been there, it would have carried the grant to the middle; but, before the middle was reached, the granted premises touched the waters of the lake; and the purchaser, like Kinzie himself had been, became riparian owner, and entitled to the privileges of such ownership,-one of which is that above stated, of having the whole road.

Independently of this he may rely on the common law principle of ad medium filum, or to the dividing line. The land in front of Block 54, at its widest part, did not suffice to make one-half the width of the street when the grant of the lot was made; and the conveyance of the block invested the purchaser with the fee, not only of the block itself, but of all the land to the water's edge. 'As between grantor and grantee,' says a recent and leading case in New York, 'the conveyance of a lot bounded upon a street in a city, carries the land to the centre of the street. There is no difference in this respect between the streets of a city and country highways.' This case overrules all the preceding ones in New York which had been supposed to establish a different rule. There is, indeed, no doubt-notwithstanding several dicta and some decisions to the contrary-that the rule, in the broad and imperative way in which it is above asserted-is now rapidly becoming-has in fact become the rule of our courts. They are disposed to regard the matter not as one of intention or of construction at all, but as one of policy; and as in Paul v. Carver, to carry the grant to the middle line, in spite of words limiting it in the clearest way to the edge. And this is reason; for, whether the new ground arise from the abandonment of a former street, or from the creation of new soil by accretion, there is no reason for giving it to the old owner. In neither case did he ever expect to have it. In the first he has been paid for it in the price of the adjoining lots made of higher price by being on the street; in the latter he has parted, as he supposed, with every vestige of soil, and should not be allowed to block up and intercept light and view-in this case a view upon a noble lake, itself a matter of value to any residency-by building upon soil so accidentally and unexpectedly obtained, and so to injure persons who supposed, as he did, that they had acquired ownership to the water's edge. The purchaser is therefore a riparian owner, and is entitled, as such proprietor, to the accretions which have been formed in front of the block. 'The question,' says this court, in one case, 'is well settled at common law, that the person whose land is bounded by a stream of water, which changes its course gradually, by alluvial formations, shall still hold by the same boundary, including the accumulated soil. No other rule can be applied on just principles. Every proprietor whose land is thus bounded is subject to loss, by the same means which may add to his territory; and as he is without remedy for his loss in this way, he cannot be held accountable for his gain.' This rule was also tacitly recognized in Jones et al. v. Johnston; Johnston v. Jones et al., here as applicable to accretions formed on Lake Michigan, and at almost the precise place where the accretions in question have been formed. The same rule has elsewhere been held applicable to the Detroit River. To the same effect is Seaman v. Smith.

That this right to the accretion is not divested by the intervention of a public highway between the riparian estate and the water-course, was decided by the Supreme Court of Louisiana; a region where, from the nature of their soil, this whole subject of accretion and diminution is specially studied and most wisely settled in the well-considered case of Morgan v. Livingston. 'If there be a public road between a field and the river,' says that case, 'still that which is made by alluvion accrues to the field.' This case was decided in 1819. In 1841 the same question came before the same court in the case of Municipality v. The Orleans Cotton Press; and the court cited the language used in the former case, with approval, as a correct statement of the law on this subject. It added further, 'that the intervention of a public road between the front tract and the river does not prevent accretion by alluvion, because the road and the levee themselves belong to the front proprietors, subject to the public use;' and the court, in summing up the points intended to be decided, say:

'We are of opinion that urban property fronting on a water-course is entitled to alluvion, as well as rural estates; and that cities can acquire jure alluvionis only in virtue of a title which would constitute them front proprietors. That the defendants must be considered as owning down to the road last laid out, and that the intervention of the road does not in law prevent their being regarded as front proprietors, and entitled to any alluvion which now exists or may hereafter be formed between the levee and the water, subject to the public use under the administration of the municipal authorities.

The language first quoted is descriptive of the present case, and that cited last states the rule which should be applied. The principles established by these cases have been affirmed in the later ones.

The right to accretion is one that belongs to the principal estate, not to the person of the owner, nor to the proprietor of the easement. It does not belong to the latter, because he enjoys a benefit in another man's property or estate, and the loss or gain of that estate is not his, but the owner's. 'The right to future alluvion,' says one of the cases cited by us, 'is inherent in the property itself, and forms an essential attribute of it, resulting from natural law in consequence of the local situation of the land, just as much as the natural fruits of a tree belong to the owner of the land; and that such an attempt to transfer from the owner of the land to the city the future increase by alluvion, would be as legally absurd as if the legislature had declared, that after the incorporation of the city, the fruits of all the orange trees within its limits should belong thereafter to the city, and not to the owners of the orchards and gardens.'

It cannot be contended, we think, that the medium filum was to the middle of the triangle only. Such a view would be unreasonable. It would be a view first of all extremely technical. It would decide, moreover, that because the purchaser of Block 54 had less than anybody else, less than he needed for the proper enjoyment of his lot, less than was usual and natural, he should have but half of that. Is it possible to suppose that Kinzie meant to reserve one-half the triangle? Of what use could such a piece of ground be to him? Of what necessity was it not sure to prove to the purchaser? A full street is supposed to be equally divided, because the owner on each side needs half; but here there was no owner on the east or lake side. The broad and fathomless Michigan was there. Ownership was not predicable of that side at all, and was predicable of the other side only. Had the road been full sixty-six feet wide, yet we might say that at common law, even then coming to the water's edge, it was a case where the owner would take it all. In grants on tidal waters the grant is almost universally to low water mark; and this for the obvious reason that, if this mark change, the purchaser may still have as near as possible what was sold and what was bought. By analogy we may fairly contend that here the purchase is to the water's edge, even had the street been full, there being nothing to be sold beyond it. That seems to be the doctrine of the Louisiana case; specially, as we have said, worthy of respect in this branch of law.

The case does not show that Kinzie ever asserted or supposed he had any interest left after his deed of 1833. Years after he had parted with his interest there, the accretion began to form. It was not inventoried among the assets of his bankrupt estate, because it did not then exist. Fifteen years after that, a 'prowling assignee' asks for, and obtains, an order to sell the demanded premises, which had no existence, either in fact or law, until after Kinzie had been declared a bankrupt, and when he was no longer the owner of the principal estate, or any part of it, to which the right to accretions could attach. The assignee takes no greater interest than the bankrupt had in the estate assigned to him, and we cannot well see how a right to accretions, which is an incident to the principal estate, can arise or exist in favor of one who had no such estate.

2. Kinzie was declared a bankrupt in 1842, under the act of August 19, 1841. The petition and order for a sale of the demanded premises were made in 1857. If any interest or estate was left in Kinzie, after his conveyance of 1833, his assignee, and those claiming under him, are barred from maintaining this suit by the 8th section of the bankrupt act. This, like all limitation laws, was intended as a 'statute of repose,' and to insure a prompt settlement of the bankrupt estate; and the public good requires that full effect be given to it by the courts.

It is a practice too common all over the country for assignees to make sales of real and pretended interests in the bankrupt estate down to the present time, and for the purchasers to bring suits upon the titles thus acquired. It cannot be pretended that this is done for the benefit of the creditors. It is now more than twenty years since that law was enacted and repealed, and the interests of the creditors of the bankrupts have, in most cases, passed away, and these proceedings are instituted obviously for speculating and litigious purposes. They belong to the class of suits described by Lord Bacon as 'contentious suits,' which that great judge declares 'ought to be spewed out as the surfeit of courts.' The act, in express terms, limits the right of the assignee to bring any suit, at law or in equity, against any person claiming an adverse interest touching the property, and rights of property, assigned to him, to two years after the declaration and decree of bankruptcy, or after the cause of suit shall first have accrued. The present cause of action (if there is any) arose fifteen years before the petition for the sale of the demanded premises was filed. The assignee acquired title to them at the date of the assignment, or he never did; and if his right was barred, so was that of his grantee, for it was a limitation against the right to recover these premises, and he could transfer no greater right than he had. This point has been decided in New York.

Mr. Wills, contra.

The CHIEF JUSTICE delivered the opinion of the court, and, after stating facts, proceeded as follows:

title: Banks v. Ogden


text:
Page:Cournot Theory of Wealth (1838).djvu/28

 14 4. When any event, accounted favourable to a country, as improving the condition of the majority of its inhabitants (for what other basis can be taken to estimate utility?), has nevertheless for its first effect the diminution of the mass of values in circulation, we are tempted to suppose that this event conceals the germ of an increase in the general wealth by means of its remote consequences, and that it will in this way turn out to the advantage of the country. Experience unquestionably shows that this is true in most cases, since, in general, an incontestable improvement in the condition of the people has kept pace with an equally incontestable increase in the sum total of wealth in circulation. But in consequence of the impossibility of following up analytically all the consequences of such complex relations, theory is unable to explain why this usually happens and is still less able to demonstrate that it must always continue to occur. Let us avoid confounding what is in the domain of accurate reasoning with what is the object of a more or less happy guess; what is rational with what is empirical. It is enough to have to guard against errors in logic on the first score; let us avoid encountering passionate declamations and insoluble questions on the other.

5. From a standpoint of mere etymology, whatever appertains to the organization of society belongs to the field of Political Economy; but it has become customary to use this last term in a sense much more restricted and by so much less precise. The Political Economist, being occupied principally with the material wants of mankind, only considers social institutions as far as they favour or interfere with labour, thrift, commerce, and population; and as far as they


text: Talk:Banks v. Ogden

title: Talk:Banks v. Ogden


text:
Banks v. Ogden/Opinion of the Court

The rule governing additions made to land, bounded by a river, lake, or sea, has been much discussed and variously settled by usage and by positive law. Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land, thus bounded, is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion; by others, it is derived from the principle of public policy, that it is the interest of the community that all land should have an owner, and most convenient, that insensible additions to the shore should follow the title to the shore itself.

There is no question in this case that the accretion from Lake Michigan belongs to the proprietor of land bounded by the lake. The controversy turns on ownership.

In deciding this controversy, we derive to important aid from the statutes of Illinois, referred to in the argument. The plat of Kinzie does not appear to have been executed, acknowledged, and recorded, in conformity with either of them. It operated, therefore, only as a dedication; and the law applicable to dedications must control our judgment.

It is a familiar principle of that law, that a grant of land bordering on a road or river, carries the title to the centre of the river or road, unless the terms or circumstances of the grant indicate a limitation of its extent by the exterior lines. There is indeed a passage in one of the judgments of the Supreme Court of Illinois which, if taken literally, would exclude grantees of lots in towns and cities from any interest whatever in the streets beyond the common use. The court said: 'In the case of a valid plat,' that is, a plat duly executed, acknowledged, and recorded, 'the title to the ground set apart for public purposes is held by the corporation for the use and benefit of the public; in the case of a dedication by a different mode the fee continues in the proprietor, burdened with the public easement.' This rule would limit the grantee of Block 54 to the lines of the block, and he would take nothing in Sand Street; but the propositions quoted were not essential to the decision of the question before the court, and there are other cases which seem to warrant a belief that when the operation of an ordinary dedication shall come directly before that tribunal, it will not apply any other principle to its construction than that generally recognized.

We shall assume, therefore, that the owner of the southeast part of Block 54 was the owner of the adjacent part of Sand Street to its centre. But adjacent to that part of the block, Sand Street had been reduced, as the plat clearly shows, to the small triangle already described; and it must follow that it was to the centre line of the street thus reduced that the defendant acquired title. He took, subject to the public use, the westerly half of the triangle and no more.

But Kinzie was the original owner of the whole fractional section. He retained every part of which he did not divest himself by deed or dedication. By the dedication of Sand Street, he gave to the public the use and only the use of the land within the artificial and natural lines marked on the plat. By the conveyance of Block 54 west of the street, he conveyed the fee of Sand Street within those lines to its centre. On the east side of the street, opposite that block, he conveyed nothing, for he had nothing to convey. The fee, therefore, of the eastern half of the triangle which there formed the street, remained in him. In the words of the Supreme Court of Illinois, clearly just when applied to the land in question, 'the fee continued in the proprietor, subject to the easement.'

Upon Kinzie's bankruptcy the fee of this strip of land passed to the assignee. It was about this time, or shortly afterwards, that the alluvion began to form upon it, and continued to increase until the commencement of the suit below. The title to the accretion, thus made, followed the title to the land and vested in the assignee.

It is unnecessary to consider the effect of the accretion, under the dedication, upon the width of the street; for, whatever that effect may have been, the fee of the east half and of the accretion beyond the true width, whatever that width was, remained constantly in Kinzie or the assignee. A part, therefore, of the bankrupt's estate remained unsold when the order of sale, under which the plaintiff in error claims, was made by the District Court; and the only remaining inquiry is, whether that order was lawfully made.

The eighth section of the bankrupt act of 1841 limited suits concerning the estate of the bankrupt by assignees against persons claiming adversely, and by such persons against assignees, to two years after decree of bankruptcy or first accrual of cause of suit. There is no express limitation upon sales, nor any limitation upon any action other than suits, by the assignee, except a general requirement in the tenth section, that all proceedings shall, if practicable, be brought to a close by the court within two years after decree. We are not satisfied that the limitation in the eighth section can be applied to sales of real estate made by assignees under orders of district courts having general jurisdiction of proceedings in bankruptcy. But it is not necessary now to pass upon this point. The limitation certainly could not affect any suit, the cause of which accrued from an adverse possession taken after the bankruptcy, until the expiration of two years from the taking of such possession; and there is nothing in the record which shows when the adverse possession relied on by the defendant in error commenced, and therefore nothing which warrants the application of the limitation to the petition for the order of sale.

We think the court below erred in instructing the jury that the defendant in error, upon the case made, was entitled to their verdict. Its judgment must therefore be reversed, and the cause remanded with directions to issue a

NEW VENIRE.

title: Banks v. Ogden/Opinion of the Court


text: Talk:Banks v. Ogden/Opinion of the Court


text: Brooks v. Martin

title: Brooks v. Martin


text: Talk:Brooks v. Martin

title: Talk:Brooks v. Martin