text:
Elwood v. Flannigan/Opinion of the Court

This was an action of ejectment to recover the possession of fractional section 7, T. 37 N., R. 15 E., in Cook County, Illinois. By the third article of the treaty with the Potowatomies of the State of Indiana and Michigan Territory, made on the 27th of October, 1832 (7 Stat. 399), the United States agreed to grant and to convey by patent to Ash-kum, one of the chiefs, and a reservee under the treaty, two sections of land to 'be selected, under the direction of the President of the United States, after the lands shall have been surveyed.' Under this provision the lands now in dispute were selected. The selection was approved by the President on the 29th of March, 1837. Ash-kum died intestate in 1846. On the 3d of November, 1864, after his death, a patent was issued, conveying the lands 'unto. . . Ash-kum, and to his heirs and assigns forever.' Both parties claim under this patent: the plaintiff in error, who was also plaintiff below, by deed from the heirs of Ash-kum; and the defendant by deed with covenants of warranty from Ash-kum himself, while in life, 'to Louis De Salle, of the township of Niles, in Berrien County, Michigan Territory,' bearing date Oct. 24, 1835.

All the objections to the defendant's title, insisted on in the argument, except those relating to the proof of the deed of Ash-kum, and to the refusal of the court to charge as requested by the plaintiff upon the assumption of fraud in its procurement, are, as we think, disposed of by Doe v. Wilson, 23 How. 457, and Crews v. Burcham, 1 Black, 352. Similar reservations and grants under the same treaty were there involved, and it was held that, when such a patent issued, the title to the lands vested in those holding under any deed the patentee might have previously made.

The principal controversy is as to the evidence admitted to prove the deed. After proof of the loss of the original, a certified copy from the records of Cook County was offered in evidence. The record was made on the 31st of May, 1836, and the copy showed a deed purporting to convey the land, signed by Ash-kum with his mark, sealed, and attested by two witnesses. The certificate of acknowledgment is as follows:-- 'TERRITORY OF MICHIGAN, }

ss. }

BERRIEN COUNTY. }

'Be it remembered, that on the twenty-fourth day of October,     anno Domini 1835, before me, Titus B. Williard, Esquire, one      of the justices of the peace for said county of Berrien, came      the above-named Ash-kum, an Indian chief, and acknowledged      the above-written indn ture by him subscribed to be his free      act and deed, and desired that the same might be recorded as      such according to law.

'In testimony whereof, I have hereunto set my hand and seal     the day and year above written.

'TITUS B. WILLARD, [L. S.]

'Justice of the Peace.'

No certificate of any kind as to the official character of Willard was added to the deed before it was recorded. Neither was there before the record any certificate of any clerk of a court of record of Michigan, under the seal of his court, to the effect that the deed had been executed and acknowledged in conformity with the laws of that State. There was, however, annexed to the copy of the deed from the record the following certificate:--

'OFFICE OF COUNTY CLERK, BERRIEN CO., MICH., BERRIEN SPRINGS,     ___ 187_.

'EDWIN D. COOKE, Clerk.

'STATE OF MICHIGAN, }

ss. }

BERRIEN COUNTY. }

'I, Edwin D. Cooke, clerk of said county, and of the Circuit     Court therein, the same being a court of record and having a      seal, do hereby certify that the certificate of      acknowledgment by Ash-kum, an Indian chief, taken before      Titus B. Willard, a justice of the peace in and for said      county of Berrien, on the twenty-fourth day of October, A. D.      1835, as appears on the certified copy of the deed hereto      annexed, was executed according to and in conformity with the      laws of the Territory of Michigan, as they existed at the      time of taking such acknowledgment; and I further certify      that, as appears by the records of and in the office of the      register of deeds of said county of Berrien, that the said      Titus B. Willard was, at the time of taking such      acknowledgment, an acting justice of the peace in and for      said county of Berrien.

'In testimony whereof, I have hereunto set my hand and     affixed the seal of said Circuit Court, at Berrien Springs, this      second day of January, A. D. 1878.

'EDWIN D. COOKE, Clerk.'

{SEAL OF THE CIRCUIT COURT OF BERRIEN COUNTY, MICH.}

In this connection the defendant proved by parol that Willard was an acting justice of the peace of Berrien County at the date of the certificate of acknowledgment; and they also put in evidence a certificate of the Secretary of State of Michigan, of which the following is a copy:--

'STATE OF MICHIGAN, OFFICE OF THE SECRETARY OF STATE, ss.

'I, E. G. D. Holden, Secretary of State of the State of     Michigan, do hereby certify that Titus B. Willard was, on the      seventh day of March, one thousand eight hundred and      thirty-four, duly appointed justice of the peace for the      county of Berrien, as appears from the records in this      office; and that the term of office fixed by law at the time      of his appointment was three years.

'In testimony whereof, I have hereunto set my hand and     affixed the great seal of the State of Michigan, at Lansing,      this twenty-fourth day of December, in the year of our Lord      one thousand eight hundred and seventy-seven.

{THE GREAT SEAL OF THE STATE OF MICHIGAN.}

'E. G. D. HOLDEN,

'Secretary of State.

'By WM. CROSBY,

'Deputy.'

The defendant also put in evidence a statute of Michigan 'concerning deeds and conveyances,' in force at the date of the deed. Laws of Mich. 1833, p. 279. It provided that deeds of lands in that Territory, signed and sealed by the parties granting the same, and signed by two or more witnesses, and acknowledged by the parties, should be good and valid to pass title. The acknowledgment required might be made before, among other officers, a justice of the peace in any county in the Territory, and a certificate of the acknowledgment being indorsed on the deed, 'and signed by the person before whom the same was taken,' the deed was entitled to be recorded.

To the admission of this evidence the plaintiff in due time objected, and his objections having been overruled, exceptions were taken and made part of the record. The assignments of error relate principally to these exceptions.

By the statutes of Illinois in force when the deed in question was executed, a deed signed and sealed by the party mai ng the same was sufficient for the conveyance of any lands in that State. Rev. Laws 1833, p. 129, sect. 1. To entitle such a deed to record, however, an acknowledgment was required before one of certain designated officers, among which were justices of the peace. If the justice resided out of the State, it was required that there be added to the deed a certificate of the proper clerk, 'setting forth that the person before whom such. . . acknowledgment was made was a justice of the peace at the time of making the same.' Id., p. 138, sect. 1. Further statutes provide that whenever a deed entitled to be recorded is lost, a certified copy from the record may be used in evidence with the same effect as the original. Rev. Stat. 1845, p. 103, sect. 25; id. 1874, p. 279, sect. 36.

By the Revised Statutes of Illinois adopted in 1845 (Rev. Stat. 1845, p. 105, c. 24, sect. 16), it was enacted that a deed made out of the State and within the United States should be entitled to record when executed and acknowledged or proved in conformity with the laws of the State, Territory, or district where made, 'provided, that any clerk of a court of record, within such State, Territory, or district, shall, under his hand and the seal of such court, certify that such deed or instrument is executed and acknowledged or proved in conformity with the laws of such State, Territory, or district.' Then, in 1851, it was further enacted (Scate's Stat. 972, sect. 5; Sess. Laws, Feb. 15, 1871, p. 122) 'that a certified copy of any deed,. . . affecting any real estate situate within this State which has been acknowledged without this State, in conformity with the laws of the State where such deed. . . was acknowledged, and which has been recorded in the proper county in this State, shall be evidence in all courts and places: Provided, the party offering such certified copy in evidence will exhibit with the same a certificate of conformity, as provided for in the six-teenth section of chapter 24 of the Revised Statutes, notwith-standing said certificate of conformity has never been recorded.' And again, in 1874 (Rev. Stat. 1874, p. 276, c. 30, sect. 20), 'An acknowledgment or proof may be made in conformity with the laws of the State, Territory, or district where it is made: Provided, that if any clerk of a court of record, within such State, Territory, or district, shall, under his hand and the seal of such court, certify that such deed or instrument is executed and acknowledged or proved in conformity with the law of such State, Territory, or district, or it shall so appear by the laws of such State, Territory, or district, duly proved and certified copies of the record of such deed, mortgage, or other instrument relating to real estate, heretofore or hereafter made and recorded in the proper county, may be read in evidence, as in other cases of certified copies, upon such a certificate of conformity to the laws of the State, Territory, or district where such deeds, mortgages, or other instruments were made and acknowledged, being exhibited therewith or annexed thereto.'

Such being the laws of the two States applicable to the facts of this case, we proceed to the consideration of the specific objections to the evidence. These may be stated generally, as follows: 1. That the deed was not entitled to record in Illinois because it was not accompanied by a certificate of the proper clerk that the person before whom the acknowledgment was made was a justice of the peace; and, 2. That the deed was not executed in conformity with the laws of Michigan.

It is conceded that the deed was not acknowledged in conformity with the laws of Illinois, and it is no doubt true that when recorded there was no law of that State which allowed a certified copy to be used in evidence. It was, however, recorded in fact. Consequently, under the later statutes, if actually executed in conformity with the laws of Michigan, and that fact was properly certified, the copy was admissible. There is no question but that the deed, if executed, was in form u fficient to convey the land. It was signed and sealed by the grantor, and was otherwise sufficient as a conveyance between the parties under the laws of Illinois. The whole controversy here is as to the proof of its execution in conformity with the laws of Michigan, so as to make the copy from the record competent evidence in place of the original. The laws of Illinois, therefore, requiring the certificate of a clerk in certain cases as to the official character of a justice of the peace, are unimportant. If in Michigan such a certificate was not necessary to complete the execution of the deed, none was required in Illinois. Certainly a deed may be said to be fully executed when all has been done that is necessary to entitle it to record, and for that purpose in Michigan the evidence of an acknowledgment was complete when the officer before whom it was taken signed a certificate to that effect indorsed on the deed. No provision was made for any authentication of his official character. His certificate, made, as it must necessarily be, under the obligations of his official oath, was deemed sufficient.

Was, then, the deed executed in conformity with the laws of Michigan? Under the laws of Illinois, that fact may be proven by the laws of Michigan themselves, or by the certificate of the proper clerk. There was probably no necessity for the proof of the laws of Michigan which was made, as the courts of the United States take judicial notice of all the public laws of the several States. Owings v. Hull, 9 Pet. 607; Covington Drawbridge Company v. Shepherd, 20 How. 227.

The deed was signed and sealed by the grantor, and it was attested by two witnesses. Of that there can be no dispute. It had indorsed upon it a certificate of acknowledgment signed by Titus B. Willard, which set forth that he was one of the justices of the peace of Berrien County, and that Ash-kum, who was named in the deed as grantor, came before him and acknowledged its execution. It is true the certificate does not state that the officer was one who by law could take the acknowledgment of deeds, but it does state what the office was, and as the statute makes it the official duty of one holding such an office to take the acknowledgment of deeds, the statement of his official character necessarily included a statement of his official authority.

It is next objected that the certificate does not state that Ash-kum was personally known to the officer. There is nothing in the Michigan statute which requires any such statement, though there is in Illinois. It is enough in Michigan if the officer certifies to the fact of an acknowledgment by the proper party. That has been done in this case. The statement is that Ash-kum, an Indian chief, came before the officer and made the necessary acknowledgment. This implies that the grantor was in some way known to the officer, and that the acknowledgment was in fact made. The making of the certificate was an official act, done under the sanction of an official oath, and is presumptively true. The laws of Michigan did not require the officer to state in his certificate the evidence by which the identity of the person was established in his mind. It was enough that he certified to the fact.

The fact that the grantor was in this case an Indian is unimportant. The duty of the officer was precisely the same in respect to him as it was to other men. The officer must, in his case as in others, be satisfied of the identity of the person, as well as of the fact of an acknowledgment. That being done, it was his duty to make the certificate. There is nothing in Dewey v. Campau (4 Mich. 565) to the contrary of this. There the deed was rejected because the officer in effect only certified that he was told by an interpreter that an Indian woman made the acknowledgment, no power having been given him to swear an interpreter for such a purpose. Here the certificate is that an acknowledgment was in fact made. That is enough until impeached.

It is next objected that there was nop roof that Willard was at the time in fact a justice of the peace. The laws of Michigan required no other evidence of that fact to entitle a deed to record than the certificate of the officer himself. That was given in this case, and in addition it was shown that he was acting as a justice of the peace at the time. This makes it unnecessary to consider whether the certificate of the secretary of state, of the fact of his appointment, was competent evidence. The law did not require a copy of his commission, or proof of his having taken the official oath. It was sufficient that he was acting under color of right. That fact was clearly shown. This disposes of the case, so far as the proof of the deed was concerned. Having been executed in conformity with the laws of Michigan, and recorded, a certified copy, with the requisite certificate of conformity annexed, was admissible in evidence, according to the laws of Illinois, after proof of the loss of the original.

In respect to the request which was made of the court to charge the jury as to the effect of fraud in the procurement of the deed, it is sufficient to say there is not a particle of evidence in the record to sustain such a claim. If the jury had found for the plaintiff on any such theory, it would have been the duty of the court to set the verdict aside and grant a new trial. Consequently there was no error in refusing the charge requested.

Judgment affirmed.


text: Talk:Elwood v. Flannigan/Opinion of the Court

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


text:
Davis v. Friedlander

APPEAL from the Circuit Court of the United States for the Western District of Tennessee.

Friedlander, Stich, & Co., sued Kaufman, their debtor, in the law court of Memphis, taking out an attachment, which was levied, Nov. 30, 1866, upon his real estate in that city. On different days in December, 1866, and January, 1867, Davis and other creditors sued him in the chancery court, each taking out an attachment, which was promptly levied on the same real estate. On the 14th of July, 1868, he was adjudged a bankrupt upon his petition, filed the 30th of the preceding May,-more than a year after the levy of the last of the attachments. Cirode and Coronna were appointed his assignees in bankruptcy, and to them was made an assignment of his rights, property, and effects. On the 21st of November, 1868, they appeared in the suits in the chancery court,-then consolidated and about to be heard,-and, with their consent, and order was entered making them, in their capacity as his assignees, parties defendant. They had the benefit of any defence they might at any time have had, and assented that the hearing of the cases should proceed. On the 21st of December, 1868, a final decree was entered in the chancery court ascertaining the amount of his indebtedness to the respective complainants, and adjudging that the attached property be sold, free from any right or equity of redemption in him, or in any of the other defendants, and that the proceeds be applied in satisfaction of the debts due the attaching creditors,-the surplus, if any, to be paid to his assignees.

On the 1st of March, 1869, the day fixed for the sale of the attached property, by the master's advertisement, Friedlander, Stich, & Co. presented to the chancellor of the chancery court a petition asserting, in virtue of their prior attachment in the law court, a lien superior to that acquired by Davis and others, under their respective attachments in the chancery court, and praying that the sale, so far as it related to the property covered by their attachment, be postponed; that they be made parties to the consolidated equity suits; and that their priority of lien be established. He declined to order the postponement asked, but indorsed upon the petition that 'the sale will proceed, and the complainants to this bill may file this, or a petition, in the consolidated causes to establish their priority, if such exists, to the fund.' It does not appear that Friedlander, Stich, & Co. availed themselves of this right, or gave any further atention to, or had any further connection with, the chancery suits. The sale took place as advertised, Hill becoming the purchaser of a part of the property at the price of $2,500, while the remainder was struck off to Carter, Kirtland, & Co., attaching creditors, at the price of $12,520. The bids were less, by nearly one-half, than the aggregate debts of the attaching creditors in the equity suits. No exceptions were filed to the report of sale. Hill complied with the terms of sale, and his purchase was confirmed. A decree was entered declaring that all the right, title, and interest of the parties, in and to the property purchased by Hill, be divested out of them, and vested in him. It does not appear, from the transcript, that Carter, Kirtland, & Co. complied with the terms of sale, or that any final action was taken by the court as to their purchase. In July, 1869, Friedlander, Stich, & Co. obtained judgment in the law court against Kaufman for the sum of $19,311.81, the amount of their claim, and also an order for the sale of the attached property, the same previously sold under the decree. But that order was suspended to await the consent of the court in bankruptcy to its execution, or until the further order of the law court.

The present suit was commenced on the 20th of August, 1870, by Friedlander, Stich, & Co. filing their petition in the District Court sitting in bankruptcy. The attaching creditors in the suit in the chancery court, the purchasers at the sale of March 1, 1869, and the assignees in bankruptcy of Kaufman were made defendants. Its manifest object is to secure an adjudication, establishing the prior lien of Friedlander, Stich, & Co., as against the other attaching creditors, upon the real estate attached, alike, in the suits in the law and the chancery courts of Memphis. To that end a decree is asked declaring the sales under the order of the latter court to be void, and placing the attached property in the possession of Kaufman's assigness, to be by them sold, under the order of the bankruptcy court,-the proceeds of sale to be applied first to the satisfaction of the judgment of Friedlander, Stich, & Co., in the law court. The District Court disregarding the sale made under the decree of the State court, gave those parties all the relief asked, and its decree was affirmed by the Circuit Court. Davis and the other creditors thereupon appealed.

Other facts are disclosed by the record, but in the view taken of the case by the court it is unnecessary to state them.

Mr. Fillmore Beall and Mr. William M. Randolph for the appellants.

Mr. Lewis Abraham and Mr. Charles D. Mayer for the appellees.

MR. JUSTICE HARLAN, after stating the facts, delivered the opinion of the court.

title: Davis v. Friedlander


text: Talk:Davis v. Friedlander

title: Talk:Davis v. Friedlander


text:
Davis v. Friedlander/Opinion of the Court

In Doe v. Childress (21 Wall. 642), we considered the effect of proceedings in bankruptcy upon an attachment issued from a State court and levied upon the property of the bankrupt, more than four months prior to their commencement. That was an action of ejectment, by the assignee of a bankrupt, to recover land claimed by the defendant under a decretal sale in an attachment suit in a State court against the bankrupt. The latter was declared a bankrupt ten months after the institution of the attachment suit, four months before the decree therein, and seven months prior to the sale at which the defendant became the purchaser of the land. Upon this state of facts it was ruled that the proceedings in bankruptcy did not operate to dissolve the attachment; that the debtor's title passed to the assignee, subject to the lien created by the attachment; and that a judgment could be entered for the sale of the property, notwithstanding a discharge previously granted was pleaded in bar of the action. It was said by the court that, 'where the power of a State court to proceed in a suit is subject to be impeached, it cannot be done except upon an intervention by the assignee, who shall state the facts and make the proof necessary to terminate such jurisdiction. . . . If the assignee had intervened in the si t, he would have been entitled to the property or its proceeds, subject to this [the attachment] lien. He did not, however, intervene or take any measures in the case. He allowed the property to be sold under the judgments in the attachment suits, and those under whom the defendant claims purchased it, obtaining a perfect title to the same.'

In Scott v. Kelly (22 id. 57), it appears that the assignee in bankruptcy became a party to an attachment suit in a State court, commenced shortly before the defendant was declared a bankrupt. The attachment was issued and levied after the adjudication. The assignee claimed the attached property, but the decision in the State court was adverse to him. Upon writ of error to this court, we said that 'the assignee in bankruptcy voluntarily submitted himself and his rights to the jurisdiction of the State court. Being summoned, he appeared without objection, and presented his claim for adjudication by that court. No effort was made to remove the litigation to the courts of the United States. It in now too late to object to the power of the State court to act in the premises and render judgment.'

In Eyster v. Gaff (91 U.S. 521), the main question considered was whether a State court, in which a foreclosure suit was pending at the time of the bankruptcy of the defendant, had jurisdiction to proceed without bringing the assignee before the court. The question arose in an action of ejectment instituted by the assignee against the purchaser at the decretal sale in the foreclosure suit. Referring to the authority expressly given the assignee by statute, to prosecute or defend all suits in which the bankrupt was a party, the court said: 'If there was any reason for interposing, the assignee could have had himself substituted for the bankrupt, or made a defendant on petition. If he chose to let the suit proceed without such defence, he stands as any other person would on whom the title had fallen since the suit was commenced. It is a mistake to suppose that the bankrupt law avoids, of its own force, all judicial proceedings in the State or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition. The court, in the case before us, had acquired jurisdiction of the parties and of the subject-matter of the suit. . . . Having such jurisdiction, and performing its duty as the case stood in that court, we are at a loss to see how its decree can be treated as void.' Again: 'The debtor of a bankrupt, or the man who contests the right to real or personal property with him, loses none of those rights by the bankruptcy of his adversary. The same courts remain open to him in such contests, and the statute has not divested those courts of jurisdiction in such actions. If it has, for certain classes of actions, conferred a jurisdiction, for the benefit of the assignee, on the Circuit and District Courts of the United States, it is concurrent with, and does not divest that of, the State courts.'

These doctrines were further elaborated in Claflin v. Houseman (93 id. 130), where it was held that the assignee in bankruptcy, under the act of 1867, had authority to bring a suit in the State courts, wherever those courts were invested with appropriate jurisdiction suited to the nature of the case. See also Jerome v. McCarter, 94 id. 734; McHenry v. La Soci et e Francaise, 95 id. 58.

The principles announced in the foregoing cases would seem to be decisive of the main questions arising on this appeal, and we are of opinion that the decree below cannot be sustained. It rests, necessarily, upon the ground, that immediately upon the assignment of the bankrupt's property to his assignees, the State court of chancery-although the attachments therein were sued out more than four months preceding the bankruptcy-had no jurisdiction to determine the relative rights of the attaching creditors and the assignees in bankruptcy, or to order a sale of the attached property, and appy the proceeds to the satisfaction of the debts of those creditors. But no such position can be maintained. It was competent for the assignees, upon their appointment and qualification, by appropriate proceedings, directed against individual creditors, suing in other courts, to have brought all the property in which the bankrupt had an interest, including that attached in the suits in the State courts, under the direct control of the bankruptcy court, to be disposed of under its orders, with due regard, however, to the previously acquired rights and equities, in whatever way arising, of all the creditors of Kaufman. But they were not bound to pursue that course. Consistently with the bankrupt law, as interpreted by this court, they were at liberty to appear in the State court, and assert there whatever rights they, as assignees, had in the attached property. Electing to pursue the latter course, they voluntarily submitted to the jurisdiction of the State court, which had ample authority to adjudicate, between the attaching creditors and the assignees in bankruptcy, upon all matters arising in the suits before it. Without questioning (as they do not now) the debts of the attaching creditors or the validity of their attachments, the assignees became parties defendant in the equity suits. They neither filed nor offered to file any formal pleading. Nor did they advise the chancery court of the attachment of Friedlander, Stich, & Co. in the law court. They left that court to adjudge what were their rights in the property attached. Its final decree secured to them whatever surplus might remain after applying the proceeds of sale to the demands of the attaching creditors. If the bankrupt owed the attaching creditors the sums by them respectively claimed, and if the attachments were so issued and levied as, under the laws of the State, to create a valid lien upon the property, it is clear that the State court gave the assignees all that could have been awarded them.

It results from what has been said, that the sale, under that decree,-whoever became the purchasers of the attached property, whether third persons or parties to the suits,-divested the assignees of whatever interest or title they had in the property. That decree, having been passed by a court of competent jurisdiction as to parties and subject-matter, and never having been modified by the court which rendered it, or by any court having authority to review its action, the assignees are precluded from asserting in any other court any interest or title whatever in the property thus sold. Had the present suit been instituted directly by the assignees, for the purpose of setting aside the sale made under the order of the State court, and of procuring another sale of the attached property, under the orders of the court in bankruptcy, the proceedings in the State court would have been a conclusive answer to such an action.

Plainly, therefore, the present suit by Friedlander, Stich, & Co. is an attempt to invoke the jurisdiction of the District Court sitting in bankruptcy, to the end that they may establish, as against other creditors of Kaufman, their priority of lien upon property, in which, as we have seen, the assignees can now assert no right or interest for the benefit of general or unsecured creditors. Whether appellees have such priority of lien in virtue of their attachment in the law court; whether the proceedings in that court were such as, under the laws of Tennessee, gave them a lien superior to that acquired by the respective attaching creditors in the suits in the chancery court; whether, by reason of their petition addressed to the chancellor of the latter court, and his action thereon, they became, in any proper sense, parties to those suits, or bound by the decree therein rendered, or, whether their rights were altogether unaffected by that decree,-are all questions in which the assignees have now no interest. These questions concern only the respective attaching creditors in the law and chancery courts, and for h e determination of them the present appellees may not invoke the jurisdiction or aid of the bankruptcy court. The decree, and the sale thereunder, withdrew the attached property from the assets of the bankrupt. The property brought less than the claims of the attaching creditors; and since the assignees cannot question, collaterally, the proceedings in the State court, to which they voluntarily became parties, they have no possible interest in this litigation. It is, we repeat, a contest exclusively between attaching creditors as to priority of liens upon property in the disposition of which, so far as we can ascertain from the present record, the assignees have not the slightest pecuniary interest.

The decree of the Circuit Court will be, therefore, reversed, with directions that the petition of Friedlander, Stich, & Co., filed in the District Court sitting in bankruptcy, be dismissed with costs to the present appellants, but without prejudice to any claim they may assert, by any proper proceedings in a court of competent jurisdiction, to a prior lien as against appellants, or others, upon the property levied upon by the attachment in the law court of Memphis; and it is

So ordered.


text: Talk:Davis v. Friedlander/Opinion of the Court


text:
Ex Parte Cockcroft

PETITION for a writ of mandamus.

The facts are stated in the opinion of the court.

Mr. William E. Earle for the petitioner.

There was no opposing counsel.

Mr. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Ex Parte Cockcroft


text: Talk:Ex Parte Cockcroft

title: Talk:Ex Parte Cockcroft


text:
Ex Parte Cockcroft/Opinion of the Court

This is a petition for a writ of mandamus requiring the Circuit Court of the United States for the District of South Carolina to allow an appeal by the petitioner from an order of the court entered on the 7th of October, 1881, confirming a sale of a railroad made pursuant to a decree filed on the 25th of September, 1880, in the suit of Calvin, Claflin, and Others v. The South Carolina Railroad Company and Others. The petitioner was not a party to the suit, neither does it appear that he ever asked to be made a party. He is not the holder of any of the bonds that by the decree under which the sale was made are entitled to a distributive share of the proceeds. Unless the property should bring at another sale enough to satisfy the mortgages and leave the balance for distribution among the general creditors of the company, he can get no advantage from setting aside the sale which has already been made. In his showing to the Circuit Court he certainly did not make it appear that he had any real interest in the controversy. He was evidently heard as a matter of favor, and not because he had any right to intervene. Before confirming the sale the court seemed desirous of ascertaining whether, under all the circumstances, in the exercise of its judicial discretion such an order ought to be made. For this purpose it was willing to consider the affidavits produced by the petitioner. This seems to have been done out of abundant caution, not because it was necessary in law.

Inasmuch, therefore, as the petitioner was not made a party to the suit, either by an express order of the court to that effect, or by being treated as such, his application for an appeal was properly denied. This case cannot be distinguished in principle from Ex parte Cutting, 94 U.S. 14.

Motion denied.

title: Ex Parte Cockcroft/Opinion of the Court


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


text: County of Clay v. Society for Savings

title: County of Clay v. Society for Savings


text:
The New International Encyclopædia/Gützlaff, Karl F. A.

GÜTZLAFF, gụts'lȧf, (1803-51). A missionary, historian, and author, born at Pyritz, Pomerania. In the service of the Netherlands Missionary Society, he studied Chinese at Batavia, 1826-28. Severing his connection with the Missionary Society, he went to Singapore, and a few months later to Siam, where he engaged in translating the Scriptures into Siamese. His wife dying in 1831, he went to Macao, where, and later at Hong Kong, he assisted Morrison (q.v.) and Medhurst (q.v.) in translating the Bible into Chinese, and was incessantly active in Gospel labors. In personal appearance, Gützlaff was so like a native that he was able to pass for one when traveling in the costume of the country. His influence as physician and preacher was magnetic. He served for a while as interpreter to the British Government, assisting in the peace negotiations of 1842. He was especially active in raising up a native ministry and in diffusing information in Chinese. He made many voyages in countries near China. On his visit to Europe, his powerful addresses inspired many young men to enter upon Eastern careers, among them G. F. Verbeck (q.v.), Japan, and Sir Harry Parkes (q.v.), China. See his Journal of Three Voyages Along the Coast of China, with Notices of Siam, Corea, and the Loo Choo Islands (New York, 1833); Chinese History (2 vols., London, 1834); China Opened (revised by the Rev. Andrew Reed. 2 vols., London, 1838; a German edition of this work was also published, Stuttgart, 1847); Life of Taon-Kwang, Late Emperor of China (1851), besides many learned contributions to periodicals. He died at Hong Kong. One of the ablest and most efficient men in the opening of the East, his services have received scant recognition. A biography of Gützlaff by Gaïhan, Gützlaff der Missionar der Chinesen, was brought out at Duisburg in 1850.


text: Talk:County of Clay v. Society for Savings


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County of Clay v. Society for Savings/Opinion of the Court

ERROR to the Circuit Court of the United States for the Southern District of Illinois.

On Nov. 6, 1849, the legislature of Illinois passed an 'Act authorizing counties and cities in the State of Illinois to subscribe to the capital stock or make loans to railway companies,' which contained the following provisions:--

'SECT. 1. Whenever the citizens of any city or county in this State are desirous that said city or county should subscribe for stock in any railroad company, already organized or incorporated, or hereafter to be organized or incorporated, under any law of this State, suh city or county may, and are hereby authorized to, purchase or subscribe for shares of the capital stock in any such company, in any sum not exceeding $100,000, for each of such cities or counties, and the stock so subscribed for or purchased shall be under the control of the county court of the county, or common council of the city, making such subscription or purchase, in all respects as stock owned by individuals.

'SECT. 2. For the payment of said stock the judges of the county court of the county, or the common council of the city, making such subscription or purchase, are hereby authorized to borrow money at a rate not exceeding ten per cent, per annum, and to pledge the faith of the county or city for the annual payment of the interest and the ultimate redemption of the principal, or, if the said judges or common council should deem it more advisable, they are hereby authorized to pay for such subscription or purchase in bonds of the city or county, making such subscription to be drawn for that purpose in sums not less than $50, bearing interest not exceeding ten per centum per annum: Provided, that no bond shall be paid out at a rate less than par value.

'SECT. 3. The railroad companies already organized or incorporated, or hereafter to be organized or incorporated, under the laws of this State, are hereby authorized to receive the bonds of any county or city becoming subscribers to the capital stock of such company at par and in lieu of cash.

'SECT. 4. No subscription shall made, or purchase or bond issued, by any county or city, under the provisions of this act, whereby any debt shall be created by said judges of the county court of any county or by the common council of any city, to pay any such subscription, unless a majority of the qualified voters of such county or city (taking as a standard the number of votes thrown at the last general election previous to the vote had upon the question of subscription under this act) shall vote for the same; and the judges of the county court of any county, or the common council of any city, desiring to take stock as aforesaid, shall give at least thirty days' notice, in the same manner as notices are given for election of State and county officers in said counties, requiring said electors of said counties or cities to vote upon the day named in such notices, at their usual place of voting, for or against the subscription for such capital stock which they may propose to make,' &c. See Gross's Statutes of Illinois (3d ed.), pages 552, 553.

Afterwards, on Feb. 26, 1867, the legislature passed an act to incorporate the Illinois Southeastern Railway Company, the seventh section of which was as follows:--

'The county court, or board of supervisors (where such county has adopted township organization), of any county into or through which this road or its branches may pass, is hereby authorized and fully empowered to donate to said company, as a bonus or inducement towards the building of said railroad or its branches, any sum not exceeding one hundred thousand dollars, and may order the clerk of the county court or board of supervisors of such county to issue bonds of the county to the amount donated; and such clerk of the county court or board of supervisors, as the case may be, of such county, shall countersign and deliver such bonds so issued to the president or directors of said company; which said bonds may bear any rate of interest not to exceed ten per cent. per annum, payable at the maturity of the bonds, as hereinafter expressed, and yearly thereafter: Provided, that no donation by the county court or board of supervisors of any such county shall be of a greater sum than fifty thousand dollars, until the question of such larger donation shall have been submitted to the legal voters of such county, at an election to be called, conducted, returns made, canvassed, and published, in the usual manner of calling, conducting, making returns, canvassing, and publishing special county elections,' &c.

On Feb. 24, 1869, an act was passed to amend the c t to incorporate the Illinois Southeastern Railway Company, sect. 10 of which provided:--

'That any village, city, county, or township organized under the township organization law, or any other law of this State, along or near the route of said railway or its branches, or that are in anywise interested therein, may, in their corporate capacity, subscribe to the stock of said company, or make donations to said company, to aid in constructing and equipping said railway: Provided, that no such subscriptions or donations shall be made until the same shall be voted for, as hereinafter provided.'

The section then proceeded to declare that upon the application of twenty legal voters of any such city, village, county, or township, the clerk thereof should call an election to be held by the legal voters, to determine 'whether such village, city, county, or township shall subscribe to the capital stock of said company, or make a donation thereto to aid in building or equipping said railway, and whether to be subscribed or donated, and the rate of interest and the time of payment of the bonds to be issued in payment thereof. Section 12 of the act declared as follows:-- 'That when payment of subscription to the capital stock of said company or payments for donations to said company have been or shall be made by villages, cities, counties, or townships, in bonds of such villages, cities, counties, or townships, under any act authorizing such subscription or donation to be made, all such bonds issued or negotiated by the proper authorities of such villages, cities, counties, or townships, and appearing regular on the face thereof, shall, in the hands of said company or any other bona fide holder thereof, be deemed and taken in all courts and elsewhere, as prima facie evidence of the regularity

On April 16, 1869, the legislature the several acts in relation to the issuing of said bonds or by any other act to be done preliminary to the issuing and negotiation of said bonds.'

On April 168 1869, the legislature passed an act for the registration of municipal bonds in the office of the auditor of state, sect. 7 of which required that, before any county bond could be registered, the presiding judge of the county court should certify under oath to the auditor that all the preliminary conditions to their issue required by law had been complied with. See Underwood's Statutes of Illinois, p. 994.

The Constitution of Illinois, which went into effect Aug. 8, 1870, declares (second additional section):--

'No county, city, town, township, or other municipality shall ever become subscriber to the capital stock of any railroad or private corporation, or make donation to, or loan its credit in aid of, such corporation: Provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions when the same have been authorized under existing laws by a vote of the people of such municipalities prior to such adoption.'

This suit was brought by The Society for Savings against the County of Clay upon certain bonds dated Nov. 1, 1869, with the coupons attached, of a series issued by it to pay for stock in the Illinois Southeastern Railway Company, subscribed by the county board of supervisors, and upon certain bonds dated Jan. 4, 1871, with coupons attached, of another series issued by it to pay for a donation made to the company by that board, both series being issued, as was claimed, by authority of the foregoing legislation.

Although the instruments sued on are under seal, the suit is called in the record an action of assumpsit, and the defendant pleaded non-assumpsit.

Upon the trial, a jury being waived, the court made an elaborate and comprehensive finding of the facts, in which is set out in full a copy of one of the bonds belonging to each class sued on, and of one of the coupons attached to each respectively.

The subscription bonds, as appears by the finding of the court, contain this recital:--

'This bond being issuedu nder and pursuant to orders of the board of supervisors of Clay County, Illinois, for subscription to the capital stock of the Illinois Southeastern Railway Company, as authorized by virtue of the laws of the State of Illinois. And the faith of the county of Clay is hereby irrevocably pledged for the payment of said principal and interest as aforesaid.'

The donation series of bonds the court found to contain the following recital:--

'This bond is one of a series of bonds issued by Clay County to aid in the construction of the Illinois Southeastern Railway Company, in pursuance of the authority conferred by an act of the General Assembly of the State of Illinois, entitled 'An Act to incorporate the Illinois Southeastern Railway Company,' approved February 25, 1867, and an act amendatory thereof approved February 24, 1869, and of an election of the legal voters of Clay County, Illinois, held on April 22, 1868, under the provisions of said act.'

'This bond is not to become a binding obligation of the said county of Clay until the following conditions shall have been complied with, to wit: this bond to become due and payable on the express conditions that said company shall have completed the whole length of its line from Shawneetown, on the Ohio River, to the Chicago Branch of the Illinois Central Railroad, and shall have the cars running thereon.'

Upon the back of each one of the donation series of bonds was printed the following certificate:--

'STATE OF ILLINOIS, CLAY COUNTY, ss:

'I, Jno. L. Moore, clerk of the County Court of Clay County, in the State of Illinois, do hereby certify that the county court of said county have entered an order on the records of said county court, directing me to indorse upon this bond the following words, to wit: All the conditions upon which this bond was to become a binding obligation of the county of Clay have been complied with.

'In testimony whereof, I hereto affix my hand and the seal of said court, at Louisville, this fourth day of January, A. D. 1871.

[SEAL.]

'JNO. L. MOORE, Clerk.'

Upon all the bonds of both series was printed the certificate of the auditor of public accounts, as follows:--

'STATE OF ILLINOIS, AUDITOR'S OFFICE,

'Jan. 9, 1871, Springfield.

'I, Charles E. Lippincott, auditor of public accounts of the State of Illinois, do hereby certify that the within bond has been registered in this office this day, pursuant to the provisions of an act entitled 'An Act to amend an act entitled 'An Act to incorporate the Illinois Southeastern Railway Company," approved February fund and provide for paying the railroad debts of counties, townships, cities, and towns,' in force April 16, 1869.

'In testimony whereof, I have hereunto subscribed my name and affixed the seal of my office the day and year aforesaid.

[SEAL.]

'C. E. LIPPINCOTT, Auditor P. A.'

The court further found that on March 2, 1868, the board of supervisors made an order calling an election to be held by the qualified voters of the county upon two propositions: First, that the county should subscribe $100,000 to the capital stock of the Illinois Southeastern Railway Company, and issue in payment thereof bonds for an equal amount; and, second, that the county should donate $50,000 to the railway company, and issue bonds of the county to pay said donation; that the election was held in accordance with the order of the board of supervisors, and resulted in a majority of votes being cast in the county in favor of both of the propositions; that at a special meeting of the board of supervisors, held on the first Monday of November, 1868, the president of the board was instructed, by resolutions duly passed by the board, to make such donation, and to subscribe said amount upon the books of said railway company, the subscription and donation to be made strictly and only in accordance with the terms of the proposition aforesaid, submitted and voted upon on April 22, 1868.

The court also found that the company had located its road and graded, bridged, ad tied ten miles thereof before the first day of November, 1869, and that on that day the president of the board of supervisors made the subscription upon the books of the railway company, under and in pursuance of the submission, vote, and resolution aforesaid, the subscription being made upon the terms and conditions aforesaid.

The court further found that the $100,000 of bonds so voted as subscription as aforesaid were delivered to the company on Nov. 1, 1869, and subsequently thereto, the company having fully complied with the terms and conditions of the vote before receiving the bonds.

The court further found that, on Jan. 1, 1871, 'the fifty thousand dollars so donated as aforesaid, under and in pursuance of the vote aforesaid, in the bonds of said county, were delivered and donated to said railway company, said railway company having complied with the conditions of said vote,' &c.

The court also found that both series of bonds had been registered in the office of the auditor of public accounts, and that taxes had been certified by him, and the interest paid on the bonds up to the commencement of this suit.

The findings of the court further state that the plaintiff purchased all the bonds sued on for full value before maturity, and was an innocent holder thereof without notice of any irregularity in the issue, except such constructive notice as the law charges it with.

The court found the issue for the plaintiff and rendered judgment. The county sued out this writ.

Mr. W. J. Henry for the plaintiff in error.

Mr. David T. Littler for the defendant in error.

MR. JUSTICE WOODS, after stating the facts, delivered the opinion of the court.

Two classes of bonds are sued on, namely, the subscription bonds and the donation bonds. The defences set up against each class will be separately considered.

The findings of the court and the sections of the act of 1849, recited in the preceding statement of facts, furnish ample ground for the judgment in favor of the defendant in error upon the subscription bonds held by it.

The plaintiff in error, however, insists that there is no evidence or finding that the thirty days' notice of the election required by the statute had been given, or that a majority of the legal voters, taking as a standard the number of votes thrown at the last general election for county officers, voted in favor of the proposition to subscribe stock and issue the bonds of the county to pay for it.

There are three conclusive answers to this contention.

First, the bonds recite that they were issued under and pursuant to the orders of the board of supervisors of Clay County, as authorized by virtue of the laws of the State of Illinois. The act of Nov. 6, 1849, authorized the judges of the county court to issue the bonds only in case a majority of the voters of the county, taking as a standard the number of votes thrown at the next preceding general election, should vote in favor of the proposition to subscribe to the stock of some designated railroad company, and pay for it by the issue of county bonds. The ultimate decision of the question whether such a vote had been cast was, therefore, left with the judges of the county court. The recital of the bonds, that they were issued pursuant to the orders of the board, the successor of the county court, as authorized by virtue of the laws of the State of Illinois, is equivalent to a declaration by the board, upon the face of the bond, that the election had been held and had resulted so as to authorize the lawful issuing of the bonds. When the bonds are in the hands of a bona fide holder this recital is conclusive and binding upon the municipality. Town of Coloma v. Eaves, 92 U.S. 484; Marcy v. Township of Oswego, id. 637.

The second answer is, that if the county had, under the law, authority to issue bonds, and did issue them, and they went into circulation and came to the hands of a bona fide holder, he was not, in a suit upon them, required to aver or prove the performance of an of the requisites necessary to give them validity. The want of such performance is a matter of defence, and the burden of proof is upon the county to establish it. Lincoln v. Iron Company, 103 U.S. 412. In this case the county offered no evidence in any degree tending to show that the conditions precedent upon the performance of which the issue was authorized had not been complied with. It cannot, therefore, assume that the conditions were not performed, and insist on non-performance as a defence.

The third answer is, that sect. 12 of the act of Feb. 24, 1869, amendatory of the act to incorporate the Illinois Southeastern Railway Company, which was indorsed on the bonds, expressly provided that when payment to the capital stock of the company should be made in the bonds of counties or townships, under any act authorizing such subscription, all such bonds issued by the proper authorities and appearing regular on their face should, in the hands of a bona fide holder, be deemed and taken in all courts, and elsewhere, as prima facie evidence of the regularity of everything required by the several acts in relation of the issuing of said bonds, or by any other act to be done preliminary to their issue and negotiation.

As no proof has been submitted of any irregularity in the issuing of the bonds, this section of the law is conclusive against the existence of any.

It is next insisted by plaintiff in error that the general statute of Nov. 6, 1849, so far as it concerned the Illinois Southeastern Railway Company, was repealed by sect. 7 of the act to incorporate that company. That section authorized the county court of any county, or the board of supervisors (when the county had adopted township organization), to donate to said company, as a bonus or inducement towards the building of said railroad or its branches, any sum not exceeding $100,000, and to issue to the company its bonds in satisfaction of said donation; provided, that no donation of a greater sum than $50,000 should be made until the question of such larger donation should have been submitted to the vote of the legal voters of the county, and a majority thereof should have voted in favor of such donation. The contention is that it was not the purpose of the legislature in these enactments to permit a county to purchase or subscribe to the capital stock of a railroad company and also make a donation to the same company.

There is not a word in the charter of the Illinois Southeastern Railway Company which expressly excludes it from the benefits of the general railroad subscription law of Nov. 6, 1849. Nor is there the slightest repugnancy between the provisions of the two acts. The latter, being a general law, authorized any city or county in the State to purchase or subscribe to the capital stock of any railroad company anywhere in the State; the former, being an act to incorporate a private corporation, authorized any county through which the railroad of the company or any of its branches might pass, to make a donation to the company as a bonus or inducement towards the building of the railroad or its branches. There is no ground whatever for the contention that the general law was repealed or modified, in any respect, by the act incorporating the Illinois Southeastern Railway Company. There is no repugnancy or inconsistency between them. A statute can be repealed only by an express provision of a subsequent law or by necessary implication. To repeal a statute by implication, there must be such a positive repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently reconciled. McCool v. Smith, 1 Black, 459; Wood v. United States, 16 Pet. 342.

We are of opinion, therefore, that the act incorporating the Illinois Southeastern Railway Company does not repeal or modify the general law of Nov. 6, 1849.

The plaintiff in error further insists that sect. 10 of an act approved Feb. 24, 1869, amendatory of the charter of the Illinois Southeastern Ral way Company, had the effect to repeal, not only sect. 7 of the charter of the company, but also the general law of Nov. 6, 1849, so far as it concerned the company.

This section provides 'that any village, city, county, or township along or near the route of said railway or its branches, or that are in anywise interested therein, may, in their corporate capacity, subscribe to the stock of said company, or make donations to said company to aid in constructing and equipping said railway,' provided the same shall be voted for at an election called by the clerk of the village, city, county, or township, upon the written request of twenty legal voters thereof, and upon thirty days' notice.

Conceding that this section is a substitute for sect. 7 of the original charter, it cannot be held to repeal the general law, for the reasons already stated in reference to sect. 7 of the original charter; namely, that there is no direct appeal, and there is no repugnancy between the two acts which would make a repeal by implication.

The subscription bonds sued on were, according to the findings of the court, issued in substantial conformity, not only with the general act of Nov. 6, 1849, but also with the amendatory act of 1869, so that, conceding that the latter act is applicable to the issuing of the bonds in question, they are valid in the hands of a bona fide holder. When these bonds were issued there was ample authority for their issue under the laws of the State of Illinois. The recital that they were issued in conformity with the laws of the State, as already shown, is binding on the county, when the suit is brought on the bonds by a bona fide holder, and concludes the county from setting up any irregularities in their issue, if any existed. We are of opinion, therefore, that the suit upon the subscription bonds was well maintained.

The objections to the bonds known and designated as donation bonds have nothing substantial in them. The bonds refer on their face to the laws which authorized their issue, and recite that they were issued in pursuance of authority granted thereby. They carry an indorsement made by the clerk of the county court, by its order and under its seal, that all the conditions upon which they were to become a binding obligation of the county have been complied with, and printed on every one of them is a copy of sect. 12 of the act of Feb. 24, 1869, amendatory of the charter of the company, which makes the fact of the negotiation of them in payment of a donation to it prima facie evidence of the regularity of their issue when in the hands of a bona fide holder. There is no proof or offer of proof that they were not issued in conformity with the requirements of law.

The plaintiff in error argues, however, as conclusive against their validity, that they were not issued until after Aug. 8, 1870, the date upon which the present Constitution of Illinois went into effect, which by the second additional section declared that no municipal corporation should ever make donation to any railroad or private corporation.

The findings of the court show that the people of Clay County, on April 22, 1868, voted in favor of a proposition to donate $50,000 to the Illinois Southeastern Railway Company, provided the railroad of said company should be located on a certain line specifically described, and provided the bonds issued in payment of such donation should not be payable until the railway had been completed the whole length of the line, from Shawneetown, on the Ohio River, to the Chicago Branch of the Illinois Central Railroad, and the cars running thereon; that on the first Monday of November, 1868, the board of supervisors of the county, by resolution duly passed, directed its president to make the donation aforesaid upon the books of the railway company, in accordance with the condition of said vote, and that before the first day of November, 1869, the railway company had located its line of road, as required by the conditions upon which the donation was to be made, and had 'grd ed, bridged, and tied ten miles thereof.'

We think it may be fairly deduced from the findings of the court below that, on Nov. 1, 1869, the president of the board of supervisors subscribed upon the books of the railway company as directed by the board of supervisors the donation of $50,000, which the county had voted, and the brief of counsel for plaintiff in error distinctly admits that such is the proper construction of the findings.

These transactions made a contract between the county and the railway company to the effect that in consideration that the railway company should construct its road upon the line designated, and complete it and have the cars running thereon between the points mentioned, the county would deliver its bonds to the railway company in satisfaction of its donation. This contract had been partly performed by the railway company before the Constitution of 1870 went into effect. The adoption of the Constitution could not annul or impair it. The county was bound notwithstanding the provision of the Constitution of 1870. Town of Concord v. Savings Bank, 92 U.S. 625.

And when, as appears by the findings of the court, the railway company had, on Jan. 1, 1871, fully completed its road according to the terms upon which the donation was to be made, it was entitled in law under its contract to the bonds of the county in satisfaction of the donation.

There was, therefore, authority to issue these bonds upon the conditions prescribed. The court found that the defendant in error was a bona fide holder, and that the railroad company had complied with all the conditions upon which the bonds were to be issued to it. Upon this state of facts the attempt of the plaintiff in error to avoid its liability upon these bonds seems a hopeless undertaking.

Other defences are set up against a recovery in this case. Plaintiff in error alleges that the authority to donate $50,000 to the railway company was expressly conferred upon the board of supervisors without any vote or precedent condition whatever, and the authority being conferred upon the board could not be by it 'delegated to the people to be voted upon at a popular election.' It further alleges that the bonds are not negotiable, and it insists that the authority of the board of supervisors, under the original charter of the railway company, to make the donation, was repealed by the amendatory act of Feb. 24, 1869.

These defences do not in our judgment merit reply.

The plaintiff in error has received in consideration for the issue of each series of bonds everything for which it bargained. They were regularly issued, and have been registered under the Statute of Illinois with the auditor of public accounts, upon the strength of a certificate under oath made by a supervisor of the county pursuant to law, to the effect that all the preliminary conditions to the issue of the bonds required by law had been complied with. The record shows that taxes had been levied to pay interest, and that interest had been paid on the subscription bonds for eleven years, and on the donation bonds for nine years. This fact would of itself cure mere irregularities in the issuing of the bonds when they were sued on by a bona fide holder for value. Supervisors v. Schenck, 5 Wall. 772. Under these circumstances, when a suit is brought on them by such a holder, as found to be the case here, some substantial defence must be set up by the county before it can escape its liability. Such defences as are relied on in this case will not avail.

Judgment affirmed.


text: Talk:County of Clay v. Society for Savings/Opinion of the Court


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Bonaparte v. Tax Court

ERROR to the Court of Appeals of the State of Maryland.

Mrs. Elizabeth Patterson, a resident of Baltimore, Md., returned, in accordance with the law of that State, to the proper board of assessors, the following property: City of New York stock, six per cent; City of New York stock, seven per cent; County of New York stock, seven per cent; County of New York stock, i x per cent; State of New York stock, six per cent; State of Pennsylvania stock, six per cent; State of Ohio stock, six per cent; and City of Philadelphia stock, six per cent. She stated their several amounts, and claimed their exemption from taxation because they were of a public character, and, except a portion of the City of Philadelphia stock, were exempt from taxation by the laws of the States respectively authorizing their issue, while that portion had always been subjected by Pennsylvania to a tax which she had paid to that State. They were of the character known as 'registered;' i.e., transferable only on the public record books of the States and municipalities issuing them, and the interest was paid only at places provided by the laws of those States, and beyond the boundaries of Maryland. The board of control and review by which this return was revised, disallowed her claim for exemption. She thereupon filed a petition in the Baltimore City Court, praying that the above-described property should be stricken from the lists. The order of the court granting the relief prayed was reversed by the Court of Appeals, whereupon she sued out this writ of error. She died during its pendency, and her executor was substituted in her stead.

Mr. I. Nevitt Steele and Mr. Charles J. Bonaparte, for the plaintiff in error, submitted her following propositions:--

The asserted right of one State to tax the loans of its citizens to another State involves its right to prohibit such loans, and forbid all dealings on the part of its citizens with the governments of other States. Such a right assumes the existence of a power which is inconsistent with the mutual amity imposed on all the States by the Constitution.

The registered public debt of a State is properly subject to its sovereignty, and therefore to its taxing power; and whenever this sovereignty is exercised by the public acts of the State, either taxing or exempting from taxation this debt, they must, under art. 4, sect. 1, of the Constitution, be recognized by the courts of other States as giving it for taxation a situs in the State by which it was incurred.

The same property cannot at the same time have more than one situs for the purpose of taxation. It, therefore, follows, and it is the only Federal question presented by this record, that the proper situs for taxation of property of this description is, under the Constitution, in the State owing the debt. This view finds support also in the following considerations:--

1. It shuts the door to fraud and perjury. The ownership of the debt of each State can be determined by an inspection of public records, always open to its fiscal officers; that of the debt of other States can be learned only from the returns of taxpayers. To say nothing of the gain to public morality, the advantages to the treasury, in the narrowest sense, of a mode of collection dependent in no wise upon the consciences of contributors, would largely exceed the amount raised by taxing foreign investments.

2. It simplifies the whole method of collection. The stock, the thing taxed, remains within the State, subject to levy and sale whenever the tax thereon is in arrear. If a resident of one State, on the other view, invested all his property in the debts of other States (a perfectly supposable contingency), it is hard to see how the State where he resides could compel him to pay taxes.

3. It gives the public debt of each State a fixed value for all investors, and in each of the great financial centres of the country. This is of almost incalculable advantage to the States that borrow, and to the capitalists who wish the largest choice of investments. The opposite construction would, in the last resort, confine the loans of each State to its own citizens.

4. Finally, it gives the citizens of one State a direct interest in the good order and prosperity of sister States; tends to prevent sectional jealousies and antagonisms; avoids the danger of reciprocally hostile legislation by the several States against the crd it of their neighbors, and promotes the 'more perfect union' aimed at by the Constitution.

Mr. Charles J. M. Gwin, Attorney-General of Maryland, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Bonaparte v. Tax Court


text: Talk:Bonaparte v. Tax Court

title: Talk:Bonaparte v. Tax Court


text:
Bonaparte v. Tax Court/Opinion of the Court

The question we are asked to decide in this case is whether the registered public debt of one State, exempt from taxation by the debtor State, or actually taxed there, is taxable by another State when owned by a resident of the latter State. We know of no provision of the Constitution of the United States which prohibits such taxation. It is conceded that no obligation of the contract of the debtor State is impaired. The only agreement as to taxation was that the debt should not be taxed by the State which created it.

It is insisted, however, that the immunity asked for arised from act. 4, sect. 1, of the Constitution, which provides that full faith and credit shall be given in each State to the public acts of every other State. We are enabled to give such an effect to this provision. No State can legislate except with reference to its own jurisdiction. One State cannot exempt property from taxation in another. Each State is independent of all the others in this particular. We are referred to no statute of the debtor State which attempts to separate the situs of the debt from the person of the owner, even if that is within the scope of the legislative power of the State. The debt was registered; but that did not prevent it from following the person of its owner. The debt still remained a chose in action, with all the incidents which pertain to that species of property. It was 'movable' like other debts, and had none of the attributes of 'immovability.' The owner may be compelled to go to the debtor State to get what is owing to him; but that does not affect his citizenship or his domicile. The debtor State is in no respect his sovereign, neither has it any of the attributes of sovereignty as to the debt it owes, except such as belong to it as a debtor. All the obligations which rest on the holder of the debt as a resident of the State in which he dwells still remain, and as a member of society he must contribute his just share towards supporting the government whose protection he claims and to whose control he has submitted himself.

It is true, if a State could protect its securities from taxation everywhere, it might succeed in borrowing money at reduced interest; but, inasmuch as it cannot secure such exemption outside of its own jurisdiction, it is compelled to go into the market as a borrower, subject to the same disabilities in this particular as individuals. While the Constitution of the United States might have been so framed as to afford relief against such a disability, it has not been, and the States are left free to extend the comity which is sought, or not, as they please.

Taxation of the debt within the debtor State does not change the legal situs of the debt for any other purpose than that of the tax which is imposed. Neither does exemption from taxation.

As the only Federal question involved was decided right in the court below, we cannot look into the other errors which have been assigned. Murdock v. City of Memphis, 20 Wall. 590.

Judgment affirmed.


text: Talk:Bonaparte v. Tax Court/Opinion of the Court


text:
Dugger v. Bocock

ERROR to the Supreme Court of the State of Alabama.

The facts are stated in the opinion of the court.

Mr. Samuel Field Phillips for the plaintiffs in error.

Mr. Michael L. Woods for the defendants in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Dugger v. Bocock


text: Talk:Dugger v. Bocock

title: Talk:Dugger v. Bocock


text:
Dugger v. Bocock/Opinion of the Court

This is a suit in equity begun by the appellants, two of the children and heirs of Henry Dugger, deceased. The case, which was decided on demurrer to the bill, may be stated generally as follows:--

Henry Dugger, a citizen of Alabama, died in 1852, leaving Alice G. Dugger, his widow, and eight children, of whom the present appellants were the youngest. The widow was appointed by the Probate Court of Mr engo County administratrix of the estate, which consisted of lands and personal property. The estate being free from debt, she, on the 3d of September, 1860, filed her petition in the Probate Court for leave to sell the lands for the purposes of distribution. The proper order was made, and on the 19th of November they were sold to Willis P. Bocock, one of the appellees, at $42.01 an acre, amounting in the aggregate to $28,806.40, for which he gave her his three notes with sureties, one for $10,370.30, payable Nov. 19, 1861, another for $11,138.47, payable Nov. 19, 1862, and the other for $11,906.64, payable Nov. 19, 1863. The sale was reported to and confirmed by the court, but under the law of Alabama the legal title to the lands did not pass from the heirs to the purchaser until the purchase-money was paid, and a conveyance actually made under an order of the court for that purpose. Until such a conveyance, the heirs might maintain ejectment for the recovery of possession if the conditions of the sale were not complied with. Doe v. Hardy, 52 Ala. 297.

It is averred in the bill 'that although said Willis P. Bocock was the ostensible purchaser of the whole of said land, yet, by some arrangement between him and said Henry A. Tayloe, made before or at the time of said purchase, said Tayloe obtained by the understanding with Bocock the one hundred and ninety-six acres of land before mentioned, and undertook with said Bocock to pay the purchase-money for the same at the rate aforesaid, and said Tayloe went into and has since had possession thereof.' The present suit is brought with reference to this one hundred and ninety-six acres only, the whole property sold consisting of something more than six hundred and forty acres.

The bill then proceeds to state as follows:--

'VI. Your orator and oratrix further show to your Honor that neither said Bocock nor any one else has ever paid the purchase-money evidenced by said notes, or any part thereof, according to the terms of his purchase, or in any manner, except as hereinafter stated, and the purchase-money for said one hundred and ninety-six acres, with interest thereon, remains wholly unpaid.

'VII. That said Bocock took up the said two notes first falling due with Confederate States treasury notes, and the said note last falling due he took up by handing over to Mrs. Alice G. Dugger bonds of the Confederate States. Your orator and oratrix, who were then infants, state, upon information and belief, that Bocock and the defendant Henry A. Tayloe together urged said Alice G. Dugger to accept said Confederate notes and bonds in payment of said Bocock's notes, at a time when all of her children who were of age were absent from home, and the said Alice G. Dugger received such Confederate notes for the note first falling due without remonstrance; she reluctantly yielded and received the Confederate notes for the note secondly falling due, but when they urged her to accept the said treasury notes or Confederate bonds for the last note, she peremptorily refused to accept said Confederate notes and bonds, which were then really almost worthless, in payment of said note, and for a long time she continued to refuse, and sent the said Bocock and Tayloe away without taking the offer; but she had great confidence in and esteem for said Bocock and Tayloe, who were her neighbors, and were men of high character, and they brought great pressure to bear on her to induce her to take the Confederate notes or bonds. They represented to her that she would be ruinously taxed by the Confederate government if she refused to take Confederate money in payment of said note, and that she would be made to pay the tax in gold, and they or one of them reported her refusal to the Confederate tax-collector, who called upon her and told her he was informed of her refusal, and finally, under great pressure, under protest, and unwillingly, the said Alice G. Dugger very reluctantly yielded and took said Confederate bonds, and gave up to said Bocock said last note. The sons f Alice G. Dugger then of age were absent in the army.'

Payment of the purchase-money was never reported in form to the court by Mrs. Dugger, and no order was ever made for her to convey the property. Neither did she ever execute any conveyance, but at the April Term, 1864, of the court she filed her final account as administratrix, in which she charged herself with the purchase-money, making no mention of the fact that it had been paid in the notes and bonds of the Confederate States. This account was audited and settled by the court, and a distribution ordered. The balance found due from the administratrix was $40,170.41, of which the share of each distributee was $5,021.30. These appellants were then infants, and the record shows that in the proceedings for settlement and distribution they were represented by H. A. Woolf. Mrs. Dugger was at the time their guardian, and she charged herself in her accounts as guardian, which were then pending before the court for partial settlement, with the distributive shares of her wards.

The 1866, after the close of the war, no conveyance having been made to Bocock, Mrs. Dugger and her surviving children, including the present appellants, who were still infants, commenced in one of the State courts of Alabama a suit, in the nature of an action of ejectment, against Bocock and Tayloe to recover the lands. Fearing that an attempt would be made by the defendants to get a deed, the widow and heirs, on the 12th of May, 1866, filed in the Probate Court their protest against any order to that effect; but the bill avers that Bocock did, 'for the express purpose of defeating said action at law, on the twenty-first day of March, 1868, file his petition in said Probate Court,. . . wherein he represented and stated that he had paid the whole purchase-money for said lands, when in fact he had never paid it, or any part thereof, otherwise than in Confederate States treasury notes and bonds, as already herein set forth in detail, and further setting forth in his petition that the said Alice G. Dugger had not reported such payment, though more than a reasonable time had elapsed for her to have done so, and praying that an order for a conveyance of said lands to him might be made, and said Probate Court, notwithstanding said caveat and protest filed by the heirs-at-law of said Henry Dugger, deceased, long before that time, and which was then on file, and without notice to the administratrix or to any of the said heirs, and without the knowledge by them of said application, and upon exparte proof made by said Bocock, did appoint Henry A. Woolf, a brother of the judge of said court and an entire stranger to the estate, having no interest therein or knowledge of the affairs thereof, to execute titles to said Bocock, and said Woolf, in compliance with said order and decree of said court, made conveyances of said lands to said Bocock, without notice to or knowledge by the administratrix. . . . And the said action in the nature of ejectment brought by said heirs was defeated by the production of said conveyance, on the ground that the remedy was by direct proceedings in chancery to impeach said order or decree.'

On the 11th of June, 1868, after Bocock got his deed, the widow and children, the appellants being represented by their guardian, entered into an agreement of compromise with Bocock, by which, 'in full and final compromise and settlement of the claims between the parties,. . . touching and concerning their claims and rights in and to the lands hereinafter mentioned, and of the suits between them in respect thereto, and of the damages, rents, and mesne profits,' the widow and children agreed to convey to Bocock a certain portion of the lands, and he to convey to them the rest, except the one hundred and ninety-six acres now in dispute. By an express stipulation nothing in that compromise was 'to impair or affect any right, title, or claim of any or either of the parties of the second part [the widow and children] to any lands in possession of said Henry A. Tayloe, or to rents and damages for the use thereof by said Tayloe, or to any action pending against Tayloe.'

This agreement was in all respects ratified by the appellants after they came of age, but on the 31st of October, 1873, they began this suit to reach the one hundred and ninety-six acres held by Tayloe, and as to him they made the following averments:--

'Your orator and oratrix have but imperfect knowledge or information of the exact arrangement by which said Tayloe obtained the same, or whether he has the same in his own name or in the name of some other person, and pray that said Bocock and Tayloe and Maupin may answer and set forth how and in what manner the same was acquired and is held by them, or either of them, and also what said Tayloe and Maupin, and each of them, paid for it, and in what sort of money or currency; and your orator and oratrix state upon information and belief that the Confederate currency and bonds with which said Bocock took up his notes was furnished by said Tayloe to the amount of the purchase-money for said one hundred and ninety-six acres, and that said payment, though made in Bocock's name, was in full to the extent of the amount due for said one hundred and ninety-six acres made in part by said Tayloe.

'XVI. Your orator and oratrix charge that said Tayloe paid nothing for said land except Confederate money and bonds, which were not a valuable consideration as against your orator and oratrix, who were then minors; and they further say that said Tayloe well knew that said Bocock had paid only Confederate notes and bonds for said lands; and on information and belief they charge that he participated with said Bocock in said wrong and injury to your orator and oratrix. And your orator and oratrix show that said Maupin is the son-in-law of said Tayloe, and lives with him; that he married the daughter of said Tayloe in 1864 or 1865, and that he has no title to said land, and is not a purchaser for value, and that he acquired whatsoever rights he may have with full knowledge or notice that nothing but Confederate notes and bonds had been paid for said land.'

The prayer of the bill is as follows:--

'To the end, therefore, that an account may be taken of the amount due to your orator and oratrix, respectively, as their several portions of money arising from the sale of said one hundred and ninety-six acres of land, as heirs-at-law of said Henry Dugger, deceased, and as heirs-at-law of said John W. Dugger, deceased, and that payment of the same may be enforced against said on hundred and ninety-sixty acres of land, and against the rents thereof, to accrue from the filing of this bill, and that said lands may be sold therefor, and that the decree for titles to said Bocock, and the deed made thereto, may be held void, or, if not, that it may be set aside, or held to be subordinate to your orator's and oratrix's lien, and that your orator and oratrix may have such other and further relief as to your Honor may seem proper and as justice may require.'

The Supreme Court of the State having affirmed the decree of the court below dismissing the bill, the case has been brought here upon a writ of error allowed by the chief justice of that court. A motion to dismiss for want of jurisdiction has been made, which now stands for hearing with the case on its merits.

The only averments in the bill that can by any possibility raise a Federal question are those which relate to the payments in the notes and bonds of the Confederate States. In Delmas v. Insurance Company (14 Wall. 661), we said distinctly that a Federal question was not necessarily involved in a case because the consideration of a contract to be enforced was Confederate money, and Mr. Justice Miller, speaking for the court, said: 'When a decision on that point, whether holding such contract valid or void, is made upon the general principles by which courts determine whether a consideration is good or bad on principles of public policy, the decision is one we are not authorized to review. Like in many ote r questions of the same character, the Federal courts and the State courts, each within their own spheres, deciding on their own judgment, are not amenable to each other.' This case was followed in Tarver v. Keach, 15 Wall. 67; Rochold v. Rockhold, 92 U.S. 129; ''New York Life Ins. Co. v. Hendren'', id. 286; Bank v. McVeigh, 98 id. 332.

In Thorington v. Smith (8 Wall. 1), a case which came up from one of the District Courts of the United States for Alabama, the question arose whether contracts for the payment of Confederate notes made during the late rebellion, between parties residing within the Confederate States, could be enforced in the courts of the United States, and we held that they could, if made in the usual course of business, and not for the purpose of giving currency to the notes, or otherwise aiding the rebellion. The Chief Justice, in delivering the opinion of the court, said, in speaking of these notes: 'As contracts in themselves, except in the contingency of successful revolution, these notes were nullities, for except in that event there could be no payer. They have, indeed, that character on their face, for they were payable only 'after a ratification of a treaty of peace between the Confederate States and the United States of America.' While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency imposed on the community by irresistible force.' And, further on, in reference to contracts stipulating for payment in think kind of currency: 'They have no necessary relations to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and, through they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have have been entered into with actual intent to further invasion or insurrection.' Such is now the settled rule of decision in this court. Delmas v. Insurance Company, supra; Confederate Note Case, 19 Wall. 548; Wilmington & Weldon Railroad Co. v. King, 91 U.S. 3; Stewart v. Salamon, 94 id. 434.

In Hanauer v. Woodruff (15 Wall. 439), it was held that 'the war bonds issued by the secession ordinance of Arkansas, though used as a circulating medium in that State and about Memphis, did not constitute any forced currency which the people in the State and city were obliged to use,' and 'that they were only a circulating medium in the sense that any negotiable money instruments, in the payment of which the community has confidence, constitute a circulating medium.' For this reason we decided in that case, which came up from the Circuit Court of the United States for the Eastern District of Arkansas, that a note given in the purchase of such bonds could not be enforced in the courts of the United States. Mr. Justice Field, in delivering the opinion of the court, stated the difference between that case and Thorington v. Smith to be 'the difference between submitting to a force which could not be controlled, and voluntarily aiding to create that force.'

In the light of these cases it is easy to see that this bill does not necessarily involve the decision of any Federal question. There is no pretence that the parties intended, in the payments that were made, to aid the rebellion. Neither is it alleged that the first and second notes were paid in any other than the usual course of business. As to the third, the utmost that can be claimed from the allegations is, Mrs. Dugger was forced against her will to accept the Confederate bonds and give up the note. There can be no doubt that under our decisions the payment of the first and second notes was good, if she was authorized by law to accept anything else than lawful money. About the third, the question presented was, apparently, not as to the validity of the Confederate bonds, but as to the ef ect of the coercion employed to get them taken. None of these are Federal questions. Neither is the further one, whether a payment good as to her would be good as to these appellants. All these questions are of a class as to which the judgment of the State court is final and not reviewable here.

The rule in relation to our jurisdiction is that it must either appear from the record in express terms that there has been a decision against the right claimed under the Constitution, laws, or treaties of the United States, or that the judgment or decree complained of could not have been given without so deciding. Murray v. Charleston, 96 U.S. 432. Here there are no averments in the bill which directly present the validity under the laws of the United States of a payment in Confederate securities, and it may fairly be inferred that the appellants relied upon an entirely different ground for the relief they asked. Such being the case, no Federal question was necessarily involved in the decision that has been made. As the burden is on the appellants to show our jurisdiction, and we cannot entertain the case unless they have done so, the writ of error is.

Dismissed.

title: Dugger v. Bocock/Opinion of the Court


text: Talk:Dugger v. Bocock/Opinion of the Court