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Bartemeyer v. Iowa (85 U.S. 129)/Opinion of the Court

The case has been submitted to us on printed argument. That on the part of the plaintiff in error has taken a very wide range, and is largely composed of the arguments familiar to all, against the right of the States to regulate traffic in intoxicating liquors. So far as this argument deals with the mere question of regulating this traffic, or even its total prohibition, as it may have been affected by anything in the Federal Constitution prior to the recent amendments of that instrument, we do not propose to enter into a discussion. Up to that time it had been considered as falling within the police regulations of the States, left of their judgment, and subject to no other limitations than such as were imposed by the State constitution, or by the general principles supposed to limit all legislative power. It has never been seriously contended that such laws raised any question growing out of the Constitution of the United States.

But the case before us is supposed by counsel of the plaintiff in error to present a violation of the fourteenth amendment of the Constitution, on the ground that the act of the Iowa legislature is a violation of the privileges and immunities of citizens of the United States which that amendment declares shall not be abridged by the States; and that in his case it deprives him of his property without due process of law.

As regards both branches of this defence, it is to be observed that the statute of Iowa, which is complained of, was in existence long before the amendment of the Federal Constitution, which is thus invoked to render it invalid. Whatever were the privileges and immunities of Mr. Bartemeyer, as they stood before that amendment, under the Iowa statute, they have certainly not been abridged by any action of the State legislature since that amendment became a part of the Constitution. And unless that amendment confers privileges and immunities which he did not previously possess, the argument fails. But the most liberal advocate of the rights conferred by that amendment have contended for nothing more than that the rights of the citizen previously existing, and dependent wholly on State laws for their recognition, are now placed under the protection of the Federal government, and are secured by the Federal Constitution. The weight of authority is overwhelming that no such immunity has heretofore existed as would prevent State legislatures from regulating and even prohibiting the traffic in intoxicating drinks, with a solitary exception. That exception is the case of a law operating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case, that of Wynehamer v. The People, has held that as to such property the statute would be void for that reason. But no case has held that such a law was void as violating the privileges or immunities of citizens of a State or of the United States. If, however, such a proposition is seriously urged, we think that the right to sell intoxicating liquors, so far as such a right exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by this court in the Slaughter-House Cases.

But if it were true, and it was fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to Hickey, at the time that the State of Iowa first imposed an absolute prohibition on the sale of such liquors, then we concede that two very grave questions would arise, namely: 1. Whether this would be a statute depriving him of his property without due process of law; and secondly, whether if it were so, it would be so far a violation of the fourteenth amendment in that regard as would call for judicial action by this court? Both of these questions, whenever they may be presented to us, are of an importance to require the most careful and serious consideration. They are not to be lightly treated, nor are we authorized to make any advances to meet them until we are required to do so by the duties of our position.

In the case before us, the Supreme Court of Iowa, whose judgment we are called on to review, did not consider it. They said that the record did not present it.

It is true the bill of exceptions, as it seems to us, does show that the defendant's plea was all the evidence given, but this does not remove the difficulty in our minds. The plea states that the defendant was the owner of the glass of liquor sold prior to the passage of the law under which the proceedings against him were instituted, being chapter sixty-four of the revision of 1860.

If this is to be treated as an allegation that the defendant was the owner of that glass of liquor prior to 1860, it is insufficient, because the revision of the laws of Iowa of 1860 was not an enactment of new laws, but a revision of those previously enacted; and there has been in existence in the State of Iowa, ever since the code of 1851, a law strictly prohibiting the sale of such liquors; the act in all essential particulars under which the defendant was prosecuted, amended in some immaterial points. If it is supposed that the averment is helped by the statement that he owned the liquor before the law was passed, the answer is that this is a mere conclusion of law. He should have stated when he became the owner of the liquor, or at least have fixed a date when he did own it, and leave the court to decide when the law took effect, and apply it to his case. But the plea itself is merely argumentative, and does not state the ownership as a fact, but says he is not guilty of any offence, because of such fact.

If it be said that this manner of looking at the case is narrow and technical, we answer that the record affords to us on its face the strongest reason to believe that it has been prepared from the beginning, for the purpose of obtaining the opinion of this court on important constitutional questions without the actual existence of the facts on which such questions can alone arise.

It is absurd to suppose that the plaintiff, an ordinary retailer of drinks, could have proved, if required, that he had owned that particular glass of whisky prior to the prohibitory liquor law of 1851.

The defendant, from his first appearance before the justice of the peace to his final argument in the Supreme Court, asserted in the record in various forms that the statute under which he was prosecuted was a violation of the Constitution of the United States. The act of the prosecuting attorney, under these circumstances, in going to trial without any replication or denial of the plea, which was intended manifestly to raise that question, but which carried on its face the strongest probability of its falsehood, satisfies us that a moot case was deliberately made up to raise the particular point when the real facts of the case would not have done so. As the Supreme Court of Iowa did not consider this question as raised by the record, and passed no opinion on it, we do not feel at liberty, under all the circumstances, to pass on it on this record.

The other errors assigned being found not to exist, the judgment of the Supreme Court of Iowa is affirmed.

Whilst I concur in the conclusion to which the court has arrived in this case, I think it proper to state briefly and explicitly the grounds on which I distinguish it from the Slaughter-House Cases, which were argued at the same time. I prefer to do this in order that there may be no misapprehension of the views which I entertain in regard to the application of the fourteenth amendment of the Constitution.

This was a prosecution for selling intoxciating liquor, in Iowa, contrary to a law of that State which prohibits the sale of such liquor. The defendant pleaded that he was the lawful owner of the liquor in Iowa and a citizen of the United States prior to the day on which the law was passed, being chapter sixty-four of the revision of 1860. Judgment was given against the defendant on his plea. The truth is, that the law in question was originally passed in 1851 and was incorporated into the revision of 1860, in the chapter referred to in the plea. Whether the plea meant to assert that the defendant owned the liquor prior to the passage of the original law, or only prior to its re-enactment in the revision, is doubtful, and, being doubtful, it must be interpreted most strongly against the pleader. It amounts, therefore, only to an allegation that the defendant became owner of the liquor at a time when it was unlawful to sell it in Iowa. The law, therefore, was not in this case an invasion of property existing at the date of its passage, and the question of depriving a person of property without due process of law does not arise. No one has ever doubted that a legislature may prohibit the vending of articles deemed injurious to the safety of society, provided it does not interfere with vested rights of property. When such rights stand in the way of the public good they can be removed by awarding compensation to the owner. When they are not in question, the claim of a right to sell a prohibited article can never be deemed one of the privileges and immunities of the citizen. It is toto coelo different from the right not to be deprived of property without due process of law, or the right to pursue such lawful avocation as a man chooses to adopt, unrestricted by tyrannical and corrupt monopolies. By that portion of the fourteenth amendment by which no State may make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, or take life, liberty, or property, without due process of law, it has now become the fundamental law of this country that life, liberty, and property (which include 'the pursuit of happiness') are sacred rights, which the Constitution of the United States guarantees to its humblest citizen against oppressive legislation, whether national or local, so that he cannot be deprived of them without due process of law. The monopoly created by the legislature of Louisiana, which was under consideration in the Slaughter-House Cases, was, in my judgment, legislation of this sort and obnoxious to this objection. But police regulations, intended for the preservation of the public health and the public order, are of an entirely different character. So much of the Louisiana law as partook of this charter was never objected to. It was the unconscionable monopoly, of which the police regulation was a mere pretext, that was deemed by the dissenting members of the court an invasion of the right of the citizen to pursue his lawful calling. A claim of right to pursue an unlawful calling stands on very different grounds, occupying the same platform as does a claim of right to disregard license laws and to usurp public franchises. It is greatly to be regretted, as it seems to me, that this distinction was lost sight of (as I think it was) in the decision of the court referred to.

I am authorized to say that Justices SWAYNE and FIELD concur in this opinion.

I concur in the views expressed by Mr. Justice BRADLEY, but will add a few observations.

I accept the statement made in the opinion of the court, that the act of Iowa of 1860, to which the plea of the defendant refers, was only a revision of the act of 1851, and agree that, for this reason the averment of the ownership of the liquor sold prior to the passage of the act of 1860 did not answer the charge for which the defendant was prosecuted. I have no doubt of the power of the State to regulate the sale of intoxicating liquors when such regulation does not amount to the destruction of the right of property in them. The right of property in an article involves the power to sell and dispose of such article as well as to use and enjoy it. Any act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such arbitrary legislation by any State the fourteenth amendment affords protection. But the prohibition of sale in any way, or for any use, is quite a different thing from a regulation of the sale or use so as to protect the health and morals of the community. All property, even the most harmless in its nature, is equally subject to the power of the State in this respect with the most noxious.

No one has ever pretended, that I am aware of, that the fourteenth amendment interferes in any respect with the police power of the State. Certainly no one who desires to give to that amendment its legitimate operation has ever asserted for it any such effect. It was not adopted for any such purpose. The judges who dissented from the opinion of the majority of the court in the Slaughter-House Cases never contended for any such position. But, on the contrary, they recognized the power of the State in its fullest extent, observing that it embraced all regulations affecting the health, good order, morals, peace, and safety of society, that all sorts of restrictions and burdens were imposed under it, and that when these were not in conflict with any constitutional prohibition or fundamental principles, they could not be successfully assailed in a judicial tribunal. But they said that under the pretence of prescribing a police regulation the State could not be permitted to encroach upon any of the just rights of the citizen, which the Constitution intended to guard against abridgment; and because, in their opinion, the act of Louisiana, then under consideration, went far beyond the province of a police regulation, and created an oppressive and odious monopoly, thus directly impairing the common rights of the citizens of the State, they dissented from the judgment of the court.

They could not then, and do not now, see anything in the act which fell under the denomination of a police or sanitary regulation, except the provisions requiring the landing and slaughtering of animals below the city of New Orleans and the inspection of the animals before they were slaughtered; and of these provisions no complaint was made. All else was a mere grant of special and exclusive privileges. And it was incomprehensible to them then, and it is incomprehensible to them now, how, in a district of country nearly as large as the State of Rhode Island, and embracing a population of over two hundred thousand souls, any conditions of health or morals should require that the preparation of animal food, a prime necessity of life, should be intrusted to a single corporation for twenty-five years; or how in all that vast district, embracing eleven hundred and fifty-four square miles, there could be only one locality and one building in which animals could with safety to the public health be sheltered and slaughtered. And with all the light shed upon the subject by the elaborate opinion of the majority, they do not yet understand that it belongs to the police power of any State to require the owner of animals to give to the butcher a portion of each animal slaughtered. If the State can say the owner shall give the horns and the hoofs, it may say he shall give the hide and the tallow, or any part of the animal. It may say that the butcher shall retain the four quarters and return to the owner only the head and the feet. The owner may require the very portions he is compelled to surrender for his own business the horns, for example, for the manufacture of combs, and the hoofs for the manufacture of glue, and other portions for equally useful purposes.

It was because the act of Louisiana transcended the limits of police regulation, and asserted a power in the State to farm out the ordinary avocations of life, that dissent was made to the judgment of the court sustaining the validity of the act.

It was believed that the fourteenth amendment had taken away the power of the State to parcel out to favored citizens the ordinary trades and callings of life, to give to A. the sole right to bake bread; to B. the sole right to make hats; to C. the sole right to sow grain or plought the fields; and thus at discretion, to grant to some the means of livelihood, and withhold it from others. It was supposed that there were no privileges or immunities of citizens more sacred than those which are involved in the right to 'the pursuit of happiness,' which is usually classed with life and liberty; and that in the pursuit of happiness, since that amendment became part of the fundamental law, every one was free to follow any lawful employment without other restraint than such as equally affects all other persons.

Before this amendment and the thirteenth amendment were adopted, the States had supreme authority over all these matters, and the National government, except in a few particulars, could afford no protection to the individual against arbitrary and oppressive legislation. After the civil war had closed, the same authority was asserted, and, in the States recently in insurrection, was exercised to the oppression of the freedmen; and towards citizens of the North seeking residence there, or citizens resident there who had maintained their loyalty during the war for nationality, a feeling of jealousy and dislike existed which could not fail soon to fined expression in discriminating and hostile legislation. It was to prevent the possibility of such legislation in future, and its enforcement where already adopted, that the fourteenth amendment was directed. It grew out of the feeling that a union which had been maintained by such costly sacrifices was, after all, worthless if a citizen could not be protected in all his fundamental rights everywhere-North and South, East and West throughout the limits of the Republic. The amendment was not, as held in the opinion of the majority, primarily intended to confer citizenship on the negro race. It had a much broader purpose; it was intended to justify legislation, extending the protection of the National government over the common rights of all citizens of the United States, and thus obviate objections to the legislation adopted for the protection of the emancipated race. It was intended to make it possible for all persons, which necessarily included those of every race and color, to live in peace and security wherever the jurisdiction of the nation reached. It, therefore, recognized, if it did not create, a National citizenship, and made all persons citizens except those who preferred to remain under the protection of a foreign government; and declared that their privileges and immunities, which embrace the fundamental rights belonging to citizens of all free govenments, should not be abridged by any State. This National citizenship is primary, and not secondary. It clothes its possessor, or would do so if not shorn of its efficiency by construction, with the right, when his privileges and immunities are invaded by partial and discriminating legislation, to appeal from his State to his Nation, and gives him the assurance that, for his protection, he can invoke the whole power of the government.

This case was considered by the court in connection with the Slaughter-House Cases, although its decision has been so long delayed. I have felt, therefore, called upon to point out the distinction between this case and those cases, and as there has been some apparent misapprehension of the views of the dissenting judges, to restate the grounds of their dissent.

I concur in the judgment in this case.

JUDGMENT AFFIRMED.


text: Talk:Bartemeyer v. Iowa (85 U.S. 129)/Opinion of the Court

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Sykes v. Chadwick

ERROR to the Supreme Court of the District of Columbia, the case being thus:

James Sykes and H. A. Chadwick (the latter a married man, his wife being Eleanor Chadwick), owning a piece of real estate in the city of Washington, and wishing to borrow money on it, conveyed it by deed of trust-that is to say, mortgaged it-to Hyde to secure a sum which he lent them; Mrs. Chadwick joining in the mortgage, and her acknowledgment of the same being taken separately and apart from her husband, in the way prescribed by the laws of the District in order to pass the estate of a feme covert.

Desiring afterwards to sell the same property (the mortgage being still unpaid), Sykes and Chadwick requested Mrs. Chadwick to join them in a deed to the purchaser for the purpose of releasing her right of dower.

She did so; and, in consideration therefor, they gave her a note in this form:

$5000.

WASHINGTON, October 15th, 1869.

Six months after date, we promise to pay to the order Eleanor Chadwick five thousand dollars, value received.

JAMES SYKES,

H. A. CHADWICK.

At the time when this note was thus given, there prevailed in the District an act of Congress, passed April 10th, 1869, in these words: An Act regulating the Rights of Property of Married Women in the District of Columbia.

SEC. 1. The right of any married woman to any property, personal or real, belonging to her at the time of her marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were feme sole, and shall not be subject to the disposal of her husband, nor liable for his debts; but such married woman may convey, devise, and bequeath the same, or any interest therein, in the same manner and with like effect as if she were unmarried.

SEC. 2. Any married woman may contract and sue and be sued, in her own name, in all matters having relation to her sole and separate property, in the same manner as if she were unmarried; but neither her husband, nor his property, shall be bound by any such contract, nor liable for any recovery against her in any such suit; but judgment may be enforced by execution against her sole and separate property, as if she were sole.

Also another act, of February 22d, 1867, in these words:

An Act to amend the law of the District of Columbia in relation to Judicial Proceedings therein.

SEC. 20. Where money is payable by two or more persons jointly or severally, as by joint obligors, covenantors, makers, drawers, or indorsers, one action may be sustained and judgment recovered against all or any of said parties, by whom the money is payable, at the option of the plaintiff.

In this state of facts and of statutes, the note to Mrs. Chadwick not being paid, she brought suit upon it against Sykes alone, at law, in the court below, a court having jurisdiction both in equity and at common law.

The court below sustained the suit; and from its judgment in the matter this writ of error was taken.

Messrs. W. F. Mattingly and R. T. Merrick, for the plaintiff in error:

1st. There was no consideration for the note. The deed of trust to Hyde, executed previously to the deed of sale (or mortgage), in connection with which the note was given, pased Mrs. Chadwick's right of dower, and in the District, where the ancient rule of the English law, inherited by the District from the colonial law of Maryland, prevails, a widow has no dower in an equity of redemption. It will not do to allege that her mere execution of the deed was a sufficient consideration for the note.

2d. Even if she had a right of dower in the real estate, it was not her sole and separate property within the meaning of the law. The right of dower is not an estate in lands. If the contrary view is held to be law, then every married woman, whose husband happens to own real estate, has a sole and separate property, with reference to which she may contract.

3d. The note was a joint note, and being void as to her husband, one of the makers, the plaintiff was not entitled to recover.

4th. This case, in no view of it, comes within the letter or spirit of the acts of Congress. Mrs. Chadwick has no separate property, and therefore could not make any contract as to it. The note itself could not be her separate estate, under the law, for the note is merely the evidence of the contract, which she was incapable of making. Moreover, it is void, as already said.

Messrs. A. G. Riddle, C. M. Hawley, and F. Miller, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Sykes v. Chadwick


text: Talk:Sykes v. Chadwick

title: Talk:Sykes v. Chadwick


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Sykes v. Chadwick/Opinion of the Court

The question is whether the note on which this suit is brought against Sykes is valid, as against the defendant, so as to sustain the present action. In aid of the plaintiff's case certain acts of Congress relating to the District of Columbia have been referred to. First, an act regulating the rights of property of married women in the District of Columbia, passed April 10th, 1869, by which it is enacted, in substance, that the right of a married woman to any property belonging to her at the time of marriage, or acquired during marriage, in any other way than by gift or conveyance from her husband, shall be as absolute as if she were a feme sole, and not subject to the disposal of her husband or liable for his debts; and she may convey or bequeath the same as if she were unmarried. Also, that any married woman may contract and sue and be sued in her own name in all matters having relation to her sole and separate property in the same manner as if she were unmarried. Secondly, an act to amend the law of the District of Columbia, in relation to judicial proceedings therein, passed February 22d, 1867, by the twentieth section of which it is enacted that where money is payable by two or more persons jointly or severally, as by joint obligors, covenantors, makers, drawers, or indorsers, one action may be sustained and judgment recovered against all or any of said parties by whom the money is payable, at the option of the plaintiff.

With regard to the first-mentioned statute, relating to a married woman's property possessed at the time of marriage or acquired afterwards, we think it clear that it does not refer to her contingent interest in her husband's estate, but to property owned by or coming to her independent of her husband-property which, but for the statute, he would acquire an interest in by right of marriage. The sole object of the statute was to prevent his acquiring such interest in her property. Her right of dower in his property stands as it did before the statute. She cannot dispose of it independently of her husband; nor can she, without his consent, separate it from his estate in the land.

Still her right of dower is a valuable interest, which she cannot be compelled to resign, and which the law very carefully protects from the control of her husband. When she does part with it an officer must examine her apart from her husband, to ascertain whether she does it freely and voluntarily. And whilst this interest is a valuable right of the wife, it is a corresponding incumbrance upon the land to which it attaches. By the aid of modern science it is capable of a definite valuation. Hence it is easy to ascertain whether an undue valuation is placed upon it. In this case no suggestion of that kind is made. For all that appears the transaction was made in good faith. At all events the parties to it cannot allege the contrary.

The wife's interest being valuable, and one that may be disposed of by her with her husband's concurrence, the question arises whether her release of her right of dower is a good consideration for a separate provision for her benefit, or of a promise to pay money to her separate use. And of this we have no doubt. The question would hardly have been raised had the arrangement been made with the purchaser instead of the vendors of the land, one of whom was the plaintiff's husband. But arrangements of this kind made with the husband are sustained in equity by very high authority. In Garlick v. Strong, where a husband who was about to sell his estate agreed with his wife that if she would release her dower she should share a portion of the purchase-money to her separate use, it was held by Chancellor Walworth that the agreement was valid, and that a note given by the purchaser to a trustee for the wife for the amount allowed to her in the arrangement became her separate property, and though the money due on the note was paid and invested by the trustee in a bond in the wife's name, which bond was afterwards disposed of by the husband without her consent, the fund was followed into the hands of the party receiving it with notice, and decreed to belong to the wife. The chancellor said: 'It is well settled that a postnuptial agreement between the husband and wife, by which property is set apart to her separate use, will be sustained in equity though void at law. The relinquishment of the dower in this case was a sufficient consideration to support this agreement on the part of the husband. Although as against creditors, whose debts existed at the time, postnuptial agreements will not be permitted to stand beyond the value of the consideration, that principle cannot be applied to this case, which appears to be an attempt on the part of these defendants to defraud the wife of the moneys to which she is equitably entitled under this agreement.' These views of the chancellor seem to us to be founded in justice and good sense. The same principle was decided in Virginia in the case of Harvey v. Alexander, and in Quarles v. Lacy. In each of these cases property was conveyed to the separate use of the wife, by the procurement of her husband, in consideration of releases of dower made by her in his lands. It was held in the latter case that such a transaction was good as against creditors to the extent of the value of the dower released. Indeed, as far back as the time of Chief Justice Hale, it was held that if a wife join in a fine so as to relinquish her dower, it will be a good consideration for a settlement.

We may therefore regard the transaction under consideration as valid and binding in equity both on the defendant and the husband of the plaintiff. The note given to the plaintiff was the fruit of this transaction. The transaction itself was a good and sufficient consideration for note. The latter is her separate property, as much so as an equal amount of money would have been, if it had been placed by the vendors to her credit in bank. She having performed her part of the agreement, there became due to her so much money for her separate use, and as her separate property. The note is no part of the contract by which her dower was released. It is a mere security given to her for the money growing due to her out of that contract. Her husband and his copartner became indebted to her, and gave her this note as her separate property. Such a note must be just as valid as if she had lent them the amount out of her separate estate, and taken their note as security for the payment of it. The transaction is virtually the same as if they had paid her the money, and she had lent it to them on the note in question.

By the act of 1869 the plaintiff, as a married woman, acquired the capacity at law to receive property to her separate use, and subject to her separate and exclusive control as if she were unmarried, provided it does not come to her by gift or conveyance from her husband-by which is undoubtedly meant voluntary gift or conveyance. Having this capacity, she did receive and acquire, for a good and valid consideration moving from herself, the promissory note in question.

This note, then, being her separate property, not acquired by gift or conveyance from her husband in the sense in which the statute uses those terms, she is entitled to the benefit of the statute in reference to the exclusive possession and enjoyment of the note, and to the exclusive right of suing upon it. As to it, she is relieved from the incapacity which the common law imposed upon her, and is as if she were unmarried. The technical reasons, therefore, which, at the common law, rendered void a note or other obligation made by the husband to the wife, no longer exist in this case. And if there are still any such reasons which would compel the plaintiff in enforcing the note as aginst her husband to seek the aid of a court of equity, there are none to prevent her from suing the defendant upon it in a court of law. The statute of 1867, above referred to, enables the holder of a joint obligation to sue either or any of the parties to it without suing the others. The defendant, therefore, has no legal ground of defence to the action. The note is founded upon a good and valid consideration. Whether a right to sue the other maker of it exists or not is of no consequence to the defendant. As to him, there can be no doubt that the plaintiff is invested with all the capacities and rights which are necessary to enable her to maintain an action at law on the note.

It is contended, however, that prior to the sale of the property and the giving of the note the plaintiff had joined the defendant and her husband in a deed of trust for the same property, given to secure the payment of a loan made by them, and that by this outstanding deed of trust her right of dower was extinguished.

If it be true, as contended for by counsel, and as the cases seem to show, that in this District the antiquated rules on this subject still prevail-so as to bar a widow of al dower in an equity of redemption-if, instead of being a mere security for money, a mortgage or deed of trust in nature of a mortgage, transfers the legal estate so as to deprive the mortgagor of the ownership of his property, yet the plaintiff would have been reinvested with her right to demand dower in the land whenever the purposes of the trust should be accomplished, and no purchaser would deem it safe to take a conveyance of the equity of redemption from the mortgagors without a release of her contingent right. And whatever technical obstacles the trust-deed may have raised against her right to recover dower at law, in case of the death of her husband, no one desiring to purchase the property would be willing to incur the hazard of those obstacles being removed. At all events, the defendant when he was endeavoring to negotiate the sale of his property deemed it of sufficient importance to give the note in question in consideration of the plaintiff joining in the deed, and releasing any contingent right she might have. This very act of hers may have been necessary, and we have a right to infer that it was deemed important, to the closing up of the transaction and securing the sale of the property. If any release is deemed requisite to confirm the title of lands with which one has been connected, though by a proper construction of the law he has no interest in them whatever, still such release will be a good consideration for a promise or for the payment of money.

JUDGMENT AFFIRMED.

This is a common-law action brought on a promissory note on the law side of a court which possesses and exercises in separate forums both common law and equity jurisdiction.

The District of Columbia, for which that court sits, and whose laws it administers, has preserved the principles of the common law less affected by statutes than any part of America, and, perhaps, less than England herself.

That a married woman could make no express contract, except as she joined her husband with her, by that law is, I think, too clear for argument. It is, therefore, a waste of learning to inquire under what circumstances she could contract with her husband. The plaintiff in this case could make no lawful contract with Sykes unless under very special circumstances.

The act of Congress relied on, and which is deemed necessary to the validity of the note, so far removed this general disability as to enable her to make contracts in respect to her separate property, and I agree to the definition of the court as to what is separate property within the meaning of that act. Her dower interest in her husband's land is not separate property. This is conceded.

On the other hand, it is undoubtedly true that a release of dower is a good consideration for a promise, whether in writing or otherwise, and the promise would be valid if made to a person capable of contracting. But this leaves untouched the question of plaintiff's capacity to make the contract.

The release of dower and the agreement to pay a certain sum for it was one contract. The execution of the deed of release and of the notes were each the consideration for the other. I cannot see the force of the dialectics by which, after the contract is made, the note given as evidence of one part of it is called the separate property of the wife, concerning which the contract was made. That is to say, this contract was made in reference to the paper, and it constitutes the material part of the note, and, this being her separate property, enables her to make the contract by which Sykes became her debtor.

But suppose no note had been taken, the promise would have been just as good as it is with it. Where would then have been her separate property, about which she was authorized to contract?

It is clear to me that, to enable a married woman to contract, she must have and own separate property at the time of making the contract, and that to make that contract valid of must relate to that property. If the proposition on which this case is rested be sound, the wife need have no separate property to enable her to contract; but she can make any agreement by which she is to receive something, put it in writing, call the paper which evidences the agreement her separate property, and the thing is done.

As to the invasions which courts of equity have made on the rigid and unjust rules of the common law on this subject, they are wise and beneficent, and they were made because the common law courts afford no remedy, and if this were a suit in equity by Mrs. Chadwick to recover the value of her dower after she had legally conveyed it, I would gladly enforce her right. But that is not the case, and I do not think the courts have an unlimited right to overturn the clearest principles of the common law because legislation has lagged behind the progress of the age in the jurisprudence which governs the rights of married women.

I regret to have to dissent, but I think the precedent of making laws in this manner too pernicious to be acquiesced in by my silence.

title: Sykes v. Chadwick/Opinion of the Court


text: Talk:Sykes v. Chadwick/Opinion of the Court


text:
Batesville Institute v. Kauffman

APPEAL from the Circuit Court for the Eastern District of Arkansas; the case being thus:

Womach and Welsh, builders, having a mechanics' lien against an edifice and the grounds on which it stood at Batesville, Arkansas, owned by a corporation of that State, known as the Batesville Institute, got judgment on the lien on the 15th of January, 1861. By the laws of Arkansas the liens of judgments continue three years from the day that they are rendered. Having thus got their judgment, and being indebted by promissory notes to a firm known as Hirsch & Adler, they assigned their lien by deed to one Gibbs, in trust, authorizing him to make the lien effectual in any and all ways, to pay Hirsch & Adler the notes out of its proceeds, and to return any surplus. Hirsch & Adler, in turn, assigned the notes to Kauffman & Co., of Louisiana, and by indorsement on it, in their firm name, all their 'rights and interests' in the deed of trust.

In the spring of 1861 the rebellion broke out in Arkansas, and continued till the spring of 1866.

In this state of things, and the Batesville Institute having conveyed the legal title of the ground on which the building was, to one Cox, Kauffman & Co., setting forth in the same,

'That during the existence of the recent rebellion it was impossible, by reason of the resistance to the laws of the United States, to have said mechanics' lien foreclosed, all judicial proceedings in the courts of the United States being interrupted and suspended during a period of several years within the State of Arkansas; and also that before the close of the said rebellion the trustee named in the said deed of trust departed this life, and that there was no one left to execute the same,'--

now, on the 5th of March, 1868, filed their bill in the court below against the Batesville Institute and Cox, to enforce payment of the lien against the edifice and lot, and in default of payment have them sold.

The defendants demurred, assigning as reasons:

1st and 2d. That the complainants showed no title which authorized a suit by them; the point of the objection being that the transfer of the notes of Hirsch & Adler did not pass the title to the judgment obtained on the mechanics' lien; and it being insisted that Hirsch & Adler were necessary parties to the suit.

3d and 4th. That Gibbs, the trustee, was dead, and no successor appointed in his place.

5th. That the lien of the judgment had been lost by lapse of time; the judgment having been recovered in March, 1861, and the present suit brought in March, 1868; an interval of seven years.

Womach, one of the defendants, made a further defence that the debt of the complainants had been paid by the rents and profits of the bulding received by them for several years past, or which they should have received.

The court below overruled the demurrer, and referred the matter of defence, set up, as just mentioned by Womach, to a master to take testimony and to report upon the subject. He took much testimony, and made a report, fixing the amount due to the plaintiffs at $14,410, for which sum the lien was ordered to stand, with interest at ten per cent., and the property decreed to be sold; costs to be paid by the defendants. From this action of the court below the present appeal was taken.

Mr. A. H. Garland, for the appellants; Mr. W. M. Rose, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Batesville Institute v. Kauffman


text: Talk:Batesville Institute v. Kauffman

title: Talk:Batesville Institute v. Kauffman


text:
Batesville Institute v. Kauffman/Opinion of the Court

The demurrants object, first, that the complainants show no title which authorizes a suit by them. The point of this objection is that the transfer of the notes of Hirsch & Adler did not pass the title to the judgment on the mechanics' lien obtained for the security of the notes. It is further insisted, under this head, that Hirsch & Adler were necessary parties to the suit.

Neither of these objections is sound. Hirsch & Adler had parted with their interest in the notes and in the judgment, and by their assignment had vested the entire title thereto in their assignees. The sole right of recovery is in the latter parties; and, if equities exist between them and their assignors, they are to be settled between them at their convenience and in their own manner. These defendants have no interest in that part of the transaction.

Again, no principle is better settled than this, that the assignment of a debt carries with it an assignment of a judgment or mortgage by which it is secured. If a part only of the debt is assigned, a pro tanto portion of the security follows it.

The third and fourth points of the demurrer rest upon the objection that Gibbs, the trustee, being dead, and no successor having been appointed, the trust cannot be enforced.

That the court have power to appoint a new trustee, and to compel the performance of the trust by him, is quite certain. It is, however, equally within the power of a court of equity to decree and enforce the execution of the trust through its own officers and agents, without the intervention of a new trustee. If by the deed to Cox the legal title to the property is now in him or his representatives, a perfect execution of the trust may be effected through a decree that they shall convey the property to the parties entitled to it; or, the property may be decreed to be sold, and payment made from the proceeds of sale.

The remaining point of the demurrer alleges that the lien of the judgment has been lost by lapse of time; that the judgment was recovered more than three years before the filing of the bill, and that no good reason appears for not enforcing the same within the three years. The bill alleges, 'that during the existence of the recent rebellion it was impossible, by reason of the resistance to the laws of the United States, to have said mechanics' lien forclosed, all judicial proceedings in the courts of the United States being interrupted and suspended during a period of several years within the State of Arkansas.' The judgment was recovered in March, 1861. The present suit was commenced in March, 1868. If from this period of seven years we except the time when civil war was flagrant in Arkansas, to wit, from April, 1861, until April, 1866, there remain but two years in which the statute of limitations was in force against this judgment. These are the dates at which the war was officially recognized, and at which it was by proclamation officially declared to be at an end in Arkansas. It has been repeatedly held in this court that the statute of limitations was suspended in the rebellious States during the existence of the war.

We perceive no occasion to find fault with the principles on which the sum of $14,410 was fixed by the master as the amount due the complainants, or with the rate of interest given by the court below. No authority is cited to show that this is a greater rate of interest than may be ordered by the courts of Arkansas in such cases.

The defendants resisted the complainants' claim, and, as the court held, unjustly. It was competent to the court to decree that the defendants should personally pay the costs of such resistance.

JUDGMENT AFFIRMED.


text: Talk:Batesville Institute v. Kauffman/Opinion of the Court


text:
Day v. Micou

ERROR to the Supreme Court of the State of Louisiana.

An act of Congress, Commonly called the Confiscation Act, passed July 17th, 1862, during the rebellion, and entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' after providing in its first section that treason shall be punished with death, and in its second that persons inciting, setting on foot, assisting, or engaging in rebellion, &c., shall be punished with fine and imprisonment; in the third that every person guilty of either of the offences described in the act shall be incapable to hold any office under the United States; with a limitation in the fourth section that the act should not affect those guilty before its date, &c., enacted further:

'SEC. 5. That to insure the speedy termination of the present rebellion, it shall be the duty of the President to cause the seizure of all the estate and property of the persons hereinafter named, and to apply and use the same and the proceeds thereof for the support of the army of the United States.'

The section proceeded to name six classes of persons whose property should be liable to seizure: officers of the army and navy of the rebels in arms against the government, or officers of the so-called 'Confederate' States, and among them any person thereafter acting as a 'Cabinet officer' of such States, or agents of the same, or officers or agents of some one of the rebel States, or persons who gave aid and comfort to the rebellion.

The sixth section was thus:

'If any person within any State or Territory of the United States, other than those named as aforesaid, being engaged in armed rebellion against the government of the United States, or aiding or abetting such rebellion, shall not within sixty days, &c., cease to aid, countenance, and abet such rebellion, all the estate and property, moneys, stocks, and credits of such person shall be liable to seizure as aforesaid; and it shall be the duty of the President to seize and use them as aforesaid or the proceeds thereof.'

The seventh section provided:

'That to secure the condemnation of any such property after the same shall have been seized, so that it may be made available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States in any District Court thereof or in any Territorial Court, or in any United States District Court within which the property above described or any part thereof may be found,. . . which proceedings shall conform as nearly as may be to proceedings in admiralty and revenue cases; and if said property. . . shall be found to have belonged to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemies' property, and become the property of the United States, and may be disposed of as the court shall decree.'

By a Joint Resolution, explanatory of this act, passed on the same day with it, it was resolved by Congress that no punishment or proceedings under the act should be 'so construed as to work a forfeiture of the real estate of the offender beyond his natural life.'

This statute, thus explained, being in force, a libel of information was filed, in January, 1865, in the District Court for the Eastern District of Louisiana, against 'two squares of ground [described], property of J. P. Benjamin,' which property the said Benjaming had, in 1858, by proper instrument duly inscribed, mortgaged to one Madame Micou. In the libel of information Mr. Benjamin was charged to have been owner of the property at the date of the act just named, and the ground on which a forfeiture was claimed was that subsequently to the passage of the act he had acted as a Cabinet officer of the so-called Confederate States. An order of publication was made, by which all persons interested in the property were required to appear on the 13th of February, 1865, to answer and to show cause 'why said property and real estate, and the right, title, and interest therein of the said J. P. Benjamin, should not be condemned and sold according to law.' There was no opposition, and on the 18th day of March, 1865, the judgment of condemnation was entered; the decretal order describing the property as belonging to J. P. Benjamin. The property was sold May 15th, 1865, and a deed was executed to the purchaser, Madison Day.

In this state of things Madame Micou or her representatives filed, in 1868, a bill of foreclosure of the mortgage against Benjamin as mortgagor and Day as a 'third possessor' or terre tenant. Benjamin made no opposition, but Day set up a claim as owner of the property in fee simple, discharged of all liens; the foundation of such his claim being the already mentioned proceeding in rem in the District Court under the Confiscation Act.

The court in which the bill was filed held that under this act no estate of any kind in fee simple passed, but at best the life estate of Mr. Benjamin, and that this was subject to the mortgage of Madame Micou, regularly created and in existence before the rebellion began. The decree founded on this view being affirmed in the Supreme Court of the State, the case was now brought here.

Mr. Madison Day, appellant, propri a person a:

The court below erred, among other ways,

1st. In its view that no estate but the life estate of Mr. Benjamin passed, and 2d. In its view that the mortgage of Madame Micou was not discharged.

1. The Confiscation Act, as it is called, is an exercise of both sovereign authority and the belligerent right of confiscating enemy property on land during a state of war.

The first four sections of the statute relate to the punishment of treason and rebellion. This is an exercise of sovereign authority, and constitutes alone the criminal portion of the act. The other provisions of the act providing for the seizure and condemnation of the property seized, 'as enemies' property,' is but an exercise of the bellingerent right of confiscating enemy property in time of war.

These different provisions of the act are, therefore, to be taken and regarded as distinct from each other, as if they were embodied in two separate acts. The one relates to citizens and proceedings in time of peace; the other relates to enemies and proceedings in time of war. And they also differ from each other as to the mode of procedure and the rules of law which apply to and govern the same. A resolution or provision of law, therefore, which only embraces the one cannot be said to extend to and include the other. And this being so, it follows, as a matter of course, that the joint resolution which says 'nor shall any punishment or proceedings under the act be so construed as to work a forfeiture of the real estate of the offender beyond his natural life,' only applies to punishments and proceedings against offenders under the criminal portion of the act, and does not extend to or limit the confiscation of property under the other provisions of the statute, as enemies' property, to a mere life estate.

2. As it is provided in the Confiscation Act that the proceedings were to be in rem, and that if the property seized was found to belong to a person named in the act, the same was to be condemned as enemies' property, it follows as a matter of course, that the operation and effect of the decree of condemnation and sale must be the same as that which attaches to other decrees and sales in a proceeding in rem. Now what is the known and established operation and effect of a decree and sale in rem? In the Propeller Commerce, the court says:

'Process in rem is founded on a right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on a real or quasi proprietary right in it.'

In such a proceeding there are no adversary parties-no personal defendant. The thing itself is seized and impleaded as the defendant. But all persons who have any claim upon, or right in or to the thing, may, if they choose, come in as claimants and propound their interest in the thing and be heard, and are, therefore, deemed parties and bound accordingly, whether any party actually appears or not. Hence all persons who have this right may be, and are fairly considered as parties to the suit, and bound by the result thereof. Every party in interest is, therefore, estopped by a decree in rem from disputing the judgment, which, as is well said by the court in Parker v. Overmann, 'is conclusive against the absent claimant as well as the present contestant.'

Mr. Thomas Allen Clarke (whom the court declined to hear), contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Day v. Micou


text: Talk:Day v. Micou

title: Talk:Day v. Micou


text:
Day v. Micou/Opinion of the Court

Most of the questions in this case were settled adversely to the claims of the plaintiff in error by our decision of Bigelow v. Forrest. We then determined that under the act of Congress of July 17, 1862, known as the Confiscation Act, and the Joint Resolution of the same date explanatory thereof, only the life estate of the person for whose offence the land had been seized was subject to condemnation and sale. We also determined that nothing more was within the jurisdiction or judicial power of the District Court, and that consequently a decree condemning the fee could have no greater effect than to subject the life estate to sale. This in effect disposes of the present case.

It is insisted, however, the Supreme Court of Louisiana erred in holding that the property condemned and sold remained in the hands of the purchaser at the sale, subject to the mortgage given in 1858 to the ancestor of the defendants in error. The argument rests upon a misconception of the act of 1862. That act, for the purpose of insuring the speedy termination of the rebellion, authorized the seizure of all the estate and property, money, stocks, credits, and effects of six classes of persons described in the fifth section. The persons designated in those several classes were either officers in the army or navy of the rebels in arms against the government of the United States, or officers of the so-called Confederate States, or agents thereof, or officers or agents of some one of the States of that confederacy, or persons who gave aid and comfort to the rebellion. So the sixth section directed the seizure of all the estate and property of the persons described in that section. It was not any property in which the persons described in these two sections might have an interest that was made subject to seizure, but it was their estate and property, their interest in it, whatever that interest might be. The act manifestly contemplated no seizure of anything more than that which belonged to the offending person, and the thing seized, or its proceeds, was by the fifth section directed to be applied for the use of the army of the United States. If now we proceed to the seventh section, it will appear plainly that only that which was seized, seized lawfully in accordance with the directions of the two preceding sections, was made the subject for condemnation and sale. That section commences thus: 'That to secure the condemnation and sale of any such property, after the same shall have been seized, so that it may be made available for the purpose aforesaid, proceedings in rem shall be instituted in the name of the United States in any District Court thereof, or in any Territorial Court, or in the United States District Court for the District of Columbia, within which the property above described or any part thereof may be found,' &c. What property is this thus brought within the jurisdiction of the District Court? Beyond doubt the property which had been seized, that is, the estate and property of the offending person, and no other. If it was a term, or an estate at will, or a life estate, or an estate in joint tenancy, or in common, whatever it was, it was the subject alike of seizure and of condemnation. It is true proceedings in rem were ordered to be instituted in the District Court, but the question remains, what was the res against which the proceedings were directed? The answer must be, that which was seized and brought within the jurisdiction of the court. A condemnation in a proceeding in rem does not necessarily esclude all claim to other interests than those which were seized. In admiralty cases and in revenue cases a condemnation and sale generally pass the entire title to the property condemned and sold. This is because the thing condemned is considered as the offender or the debtor, and is seized in entirety. But such is not the case in many proceedings which are in rem. Decrees of courts of probate or orphans' courts directing sales for the payment of a decedent's debts or for distribution are proceedings in rem. So are sales under attachments or proceedings to foreclose a mortgage, quasi proceedings in rem, at least. But in none of these cases is anything more sold than the estate of the decedent, or of the debtor or the mortgagor in the thing sold. The interests of others are not cut off or affected.

If then, as we hold, the property and estate of J. P. Benjamin was all that was seized, or all that could be seized and condemned in these confiscation proceedings, those who held other interests in the land were not bound to come in and assert their claims. Their interests did not pass to the purchaser at the sale, and they remain unaffected by the decree of condemnation and the sale thereunder.

There is, therefore, no error in the judgment of the Supreme Court, and it is

AFFIRMED.

title: Day v. Micou/Opinion of the Court


text: Talk:Day v. Micou/Opinion of the Court

title: Talk:Day v. Micou/Opinion of the Court


text:
Ex parte Lange

ON petition for writs of habeas corpus and certiorari.

Edward Lange filed a petition to this court at a former day, praying for a writ of habeas corpus to the marshal for the Southern District of New York, on the allegation that he was unlawfully imprisoned under an order of the Circuit Court of the United States for that district. On consideration of the petition, the court was of opinion that the facts which it alleged very fairly raised the question whether the Circuit Court, in the sentence which it had pronounced, and under which the prisoner was held, had not exceeded its powers. It therefore directed the writ to issue, accompanied also by a writ of certiorari, to bring before this court the proceedings in the Circuit Court under which the petitioner was restrained of his liberty.

From the record of the case in the Circuit Court, and the return of the marshal in whose custody the prisoner was found, the following facts appeared, and were stated, by the learned justice who delivered the opinion of the court, as the case:

title: Ex parte Lange


text: Talk:Ex parte Lange

title: Talk:Ex parte Lange


text:
Page:Triangles of life, and other stories.djvu/19

Rh be too careful in these here cases." He made his bed in the open, on some boughs, under the saplings, and laid the bundle beside it, and tied a cord to it and to his arm when he laid him down to rest. But he was seen, when they all were down, save Billy and his new warder, sitting up against the rising moon, and not like a "Queen of Night palm" either, and passing his hand nervously over his "pumpkin" and glancing, apprehensively, it seemed, from Billy and his new mate to the wood-heap—perhaps he was thinking of mashed raw pumpkin.

Bogan gets a fright here through Jack Moonlight stumbling over him. Then he was seen no more, and in the morning, just as they were reckoning that he'd "gone off too," and worse calamity of all! had taken the tools, he came out of the scrub from another direction with his bundle and blankets on his shoulder, and looking as if he'd passed a bad night. He said, "Yer could never be too careful in these here cases. They was so —— cunnin', and allers turned agin them as was nearest an' dearest to 'em. That was a sure sign." Which reminds me that I could never see why it should be considered a sure, or even extra, or even one sign of insanity that patients turn against friends and relatives first, and cleave to strangers. Look more like a sign of returning, or temporary, sanity, the more I think of it. Next evening Billy was better, though he feared it coming on with the night. He had taken a great liking to the new man, whom he persisted in recognizing as a long-lost village school-mate. The swagman said he