text:
Wright v. Mattison/Opinion of the Court

The questions determined by the circuit court, whose decision we are called on to review, arose upon the construction of two statutes of the State of Illinois, which limit the right of action against the possessors of lands, held by purchasers in virtue of sales and conveyances under the authority of the State, for the non-payment of taxes.

The provisions of the statutes in question are as follow:--

January 17, 1835. Sect. 1. 'That, hereafter, no person who now has, or hereafter may have, any right of entry into any lands of which any person may be possessed by actual residence thereon, having a connected title in law or equity, deducible of record from this State or the United States, or from any public officer authorized by the laws of the State to sell such lands for the non-payment of taxes, or from any sheriff, marshal, or other person authorized to sell such lands on execution, or under any order, judgment, or decree of any court of record, shall make any entry therein except within seven years from the time of such possession being taken; but when the possessor shall acquire such title after taking such possession, the limitation shall begin to run from the time of acquiring title.'

By the statute of 1839 it is enacted, 'That, hereafter, every person in the actual possession of lands or tenements, under claim and color of title made in good faith, and who shall, for seven successive years after the passage of this act, continue in such possession, and shall also during the said time pay all the taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise, or descent, before said seven years shall have expired, and shall continue such possession, and continue to pay the taxes as aforesaid, so as to complete the possession and payment of the taxes for the term aforesaid, shall be entitled to the benefit of this section.'

In this case in the circuit court, which was an action of ejectment, the plaintiff's lessee, the defendant in error here, exhibited in proof a release from the widow of the patentee from the United States, of the premises in question; also deeds of conveyance from the heirs of the patentee, with the exception of one of those heirs, who was a minor, and whose estate or interest in the premises there seems to have been no attempt to transfer. The lessee of the plaintiff further proved the possession of the premises by the defendant at the commencement of the action on the 15th of July, 1851.

The defendant, to maintain the issue on his part, offered to read in evidence to the jury a deed of the 20th of December, 1823, from the auditor of public accounts of the State of Illinois, to Nathaniel Wright and Joel Wright, for the land in controversy, reciting the public sale of those lands by the auditor, in pursuance of the several acts of the general assembly of the State, and of the act entitled, 'An act for levying and collecting a tax on land and other property, approved February 18, 1823,' and the bidding off the said lands to Nathaniel Wright and Joel Wright, as the best bidders, for the sum of eleven dollars and six cents, being the tax and costs due thereon for the years 1821 and 1822.

In connection with the aforegoing deed from the auditor, the defendant offered to read in evidence to the jury a deed, properly executed and recorded, from the said Nathaniel Wright to the defendant, Joel Wright, for the northeast quarter of section thirty-four, (the premises claimed;) and offered further to prove to the jury, that the said defendant had been in the actual possession of the premises for more than seven years next preceding the commencement of this suit, and had paid all the taxes assessed thereupon; and the defendant stated by his counsel, that the purpose of offering the evidence was to secure to the defendant the benefit and protection of the seven years' limitation laws of 1835 and 1839.

To the introduction of this evidence by the defendant, the plaintiff objected, assigning for his objection, the following causes:--

1. That the defendant had neither proved, nor offered to prove, that the requisitions of the revenue law of 1823 had been complied with, prior to the sale of said land for taxes as stated in the auditor's deed, and that the deed was not prim a facie evidence of these facts.

2. That said deed was void upon its face.

The court excluded the evidence thus tendered by the defendant, who excepted to the opinion of the court.

The defendant next offered in evidence a deed from the auditor of public accounts to the defendant, dated on the 10th day of January, 1833, in which it is stated, that in conformity with all the requisitions of the several laws in such cases made and provided, the auditor had, on the 11th day of January, 1831, exposed to sale a certain tract of land, being the northeast quarter of section thirty-four, in township seven north, in range four east of the fourth principal meridian, for the sum of one dollar and eighty-two cents, being the amount of the tax for the year 1830, with the interest and costs chargeable on the said hands; and that the said Joel Wright had offered to pay the aforesaid sum for the whole of the said land; and the said Wright having paid the said sum into the treasury of the State, the auditor thereby granted and conveyed to the said Wright the whole of the northeast quarter of section thirty-four as above described, (being the land in controversy,) subject to the right of redemption, as provided by law.

This last-mentioned deed from the auditor was admitted in evidence without objection, and as well as the former deed from the auditor to Nathaniel and Joel Wright, bearing date on the 20th of December, 1823, was shown to have been regularly recorded in the proper recording office.

By a statement of facts agreed between the counsel, it was in proof on the trial, that Joel Wright, claiming that he and his brother, Nathaniel, were owners and tenants in common in fee-simple of the land in controversy, took possession of it in 1829, by inclosing and putting under actual cultivation a portion thereof, and that, from time to time, he had extended his inclosures, until, in 1841, he had all the said quarter section under actual cultivation, with the exception of about twenty acres; and that, from the date last mentioned forward, he had continued in actual possession and cultivation of the said land; and had paid all the taxes assessed upon the said land from the year 1840 to 1851, inclusive of both years, and that the land was of the value of more than three thousand dollars.

The evidence having been closed on the part of the plaintiff, and on that of the defendant, the plaintiff moved the court for the following instructions to the jury, namely:--

'That the deed offered in evidence by the defendant, of the 10th of January, 1833, from the auditor to the defendant, is of itself such a title as will protect a party in the possession of land under the act of 1839, provided it is made in good faith, and connected with the payment of taxes for seven successive years, and a continued possession for that time; but if the jury believe from the evidence that the defendant was in possession of the land in controversy, claiming to be the owner in fee, in the year 1829, and so continued to remain in possession until the year 1833, then he could acquire no title by permitting the land to be sold for taxes, and becoming the purchaser thereof in 1831; and the auditor's deed to the defendant on the sale of 1831 for the taxes of 1830, given in evidence by the defendant, conveys no title, and is not a title obtained in good faith; and such a deed, if obtained in the manner aforesaid, is not such a title as brings his possession within the protection of the limitation acts of 1835 and 1839.

This last instruction having been given as prayed by the plaintiff, was excepted to by the defendant.

After the closing of the testimony, there were on the part of the defendant, five several instructions prayed of the court. Of these, the first two having been granted, and no exception to them having been reserved, they are therefore not properly subjects for comment here.

The third one of these instructions being deemed unimportant, under the view which we take of this cause, will be dismissed without particular remark.

The 5th instruction prayed for by the defendant below, the materiality of which will hereafter be shown, was in the following words, namely: 'That the questions whether the deed given in evidence was made in good faith, and whether the defendant has occupied the said land under said deed in good faith, are questions of fact which must be decided by the jury upon consideration of all the facts and circumstances given in evidence upon the trial in this cause.' This fifth instruction the court refused to grant, except with the following qualification, namely: 'That this, as a general proposition, is true, but as a matter of law, the court charges the jury, that any man who is in possession of land, claiming to be the owner thereof, and who permits the land to be sold for the non-payment of taxes, and who himself becomes the purchaser, and acquires a deed under such purchase, such title cannot be said within the meaning of the law, to be made in good faith.'

To the above refusal and qualification by the court, the defendant in the ejectment excepted.

From the sketch which has been given of the proceedings in this cause in the circuit court, it is shown that the defendant did not found his title either exclusively or principally upon the provisions of the statute of 1835, but relied in defence of that title, and of his possession, equally, if not chiefly, upon the statute of 1839, and the acts of the auditor performed in the execution and under the authority of the latter law. And it is in viewing this cause as controlled by the provisions of the statute of 1839, that we regard it as entirely disembarrassed of any doubt or perplexity, which might surround an attempt to rest its decision upon a construction of the law of 1835. Hence we have dismissed from our consideration the several questions discussed and ruled in the circuit court, with reference to the law of 1835, as being irrelevant to the points regularly involved in this cause, which depend essentially upon the statute of Illinois of 1839.

By the 1st section of this statute, as we have already seen, it is declared: 'That hereafter every person in the actual possession of land or tenements under claim and color of title made in good faith, and who shall for seven successive years after the passage of this act continue in such possession, and shall also during said time pay all taxes legally assessed on such land or tenements, shall be held and adjudged to be the legal owner of said land or tenements, to the extent and according to the purport of his or her paper title.'

There exists no controversy in this case as to the facts, that the defendant in the ejectment proved the actual possession by him of the land, and the payment of all the taxes assessed thereon, for seven successive years previously to the institution of this suit. The proof of these facts by the defendant, therefore, left open under the 1st section of the statute of 1839 the single inquiry, whether it was shown or attempted to be shown by him that he held under claim and color of title made in good faith.

We deem it unnecessary to examine in detail, the numerous decisions adduced in the argument for the plaintiff in error, to define and establish the meaning of the phrase, 'color of title.' The courts have concurred, it is believed, without an exception, in defining 'color of title' to be that which in appearance is title, but which in reality is no title. They have equally concurred in attaching no exclusive or peculiar character or importance to the ground of the invalidity of an apparent or colorable title; the inquiry with them has been, whether there was an apparent or colorable title, under which an entry or a claim has been made in good faith.

We refer to a few decisions by this court which are deemed conclusive to the point, that a claim to property, under a conveyance, however inadequate to carry the true title to such property, and however incompetent might have been the power of the grantor in such conveyance to pass a title to the subject thereof, yet a claim asserted under the provisions of such a deed is strictly a claim under color of title, and one which will draw to the possession of the grantee the protection of the statutes of limitation, other requisites of those statutes being complied with. We will lastly, upon this point, refer to a recent decision of the supreme court of the State of Illinois, which not less for its intrinsic strength than on account of the circumstance that it is an interpretation by the highest judicial authority of the State, of the peculiar local legislation of that State, is entitled to special attention and respect.

In the case of Gregg v. The Lessee of Sayre and wife, 8 Pet. 253, 254, in which the question was raised as to the effect of a deed impeached either for fraud in the grantor, or want of estate in him coextensive with the terms of the instrument, this court say: 'It is not necessary to decide whether these conveyances were fraudulently made by Ormsby, (the grantor,) or not. The important point is to know whether Gregg and wife (the grantees) had knowledge of the fraud if committed, or participated in it. This knowledge the circuit court charged the jury was immaterial, as the fraud of Ormsby rendered the deeds void, and consequently they could give no color of title to an adverse possession. This construction is clearly erroneous. If Ormsby be justly chargeable with fraud, yet if Gregg and wife did not participate in it; if, when they received their deeds, they had no knowledge of it, there can be no doubt that the deeds do give color of title under the statute of limitations. Upon their face the deeds purport to convey a title in fee; and having been accepted in good faith by Gregg and wife, they show the nature and extent of their claim to the premises.'

The case of Ewing v. Burnett, 11 Pet. 41, was one in which plaintiff and defendant claimed under conveyances from the same grantor. The grantee in the junior deed relied upon his title as being protected by proof of adverse possession for the time of limitation. The introduction of this deed was objected to, because, as it was alleged, the defendant had notice of the claim of the grantee in the elder conveyance. To an objection thus urged to the introduction of the junior deed, this court said, that there were two answers: first, that the jury might have negatived the proof of such notice; secondly, though there was such notice of a prior deed as would make a subsequent one inoperative to pass a title, yet an adverse possession for twenty-one years, under claim and color of title merely void, is a bar.'

So late as the year 1851, in the case of Pillow v. Roberts, in the 13th of Howard, 472, speaking of the protection extended by statutes of limitation to a possession held under claim of color of title, this court say, 'statutes of limitation would be but of little use if they protected those only who could otherwise show an indefeasible title to the land. Hence color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims adversely to all the world.' And again, in the same case, it is said, in order to entitle the defendant to set up the bar of the statute after five years adverse possession, he had only to show that he and those under whom he claimed held under a deed from a collector of the revenue of lands sold for the non-payment of taxes; he was not bound to show that all the prerequisities of the law had been complied with in order to make the deed a valid and indefeasible conveyance of the title. If the court should require such proof before the defendant could have the benefit of this law, it would require him to show that he had no need of the protection of the statute before he could be entitled to it. Such a construction would annul the statute altogether, which was evidently intended to save the defendant from the difficulty after such a length of time, of showing the validity of his tax title.

The case of Woodward v. Blanchard, decided by the supreme court of Illinois within a few months past, was like the case at present under review-an action of ejectment against a purchaser of land sold for the non-payment of taxes.

The defendant in the ejectment, relied for the maintenance and protection of his title and possession, upon the statute of Illinois of 1839, already quoted; professing to hold under claim and color of title as expressed in that statute, all the other requirements of the law being fulfilled. The defence thus alleged, superinduced necessarily a construction of the statute as to the signification of the phrase, 'claim or color of title made in good faith,' and in their interpretation the court institute a comparison between its provisions and those of the statute of 1835, and point out the distinctive features of each. With respect to the law of 1839, they say: 'There is in this act not only a change in the facts, but an evident intention to dispense with part of the requirements of the former act, and to relax the strictness required in others. Possession is retained in one case, but residence is dispensed with; connection in the chain to be deduced of record, and its deduction from specified sources, are dispensed with; in place of these, claim and color of title made in good faith, with the payment of taxes, are substituted as to lands in possession. But, as to another class of lands, (vacant and unoccupied,) possession and claim are both dispensed with, and the party is only required to show color of title in good faith.' Further on, the court say: 'We are therefore, under this defence, not driven to the springs or sources of the title, to inquire if they be pure, nor to the successive channels through which it may pass, for the purpose of removing obstructions to or difficulties in its course and transmission. But we come at once to the party defendant, to inquire if he had a claim and color of title with his possession, at the beginning of this period; if they were made in good faith, and his possession continued and was accompanied by the payment of taxes for seven successive years.' What say the court is claim? The act of taking possession, if otherwise unexplained, will be referable to the paper title, and understood as making claim under it. Color of title may be made through conveyances, or bonds, or contracts, or bare possession under parol agreements.

Nor is it at all important, whether the title be weak or strong; for color of title is acquired to establish an adverse possession for the operation of the statute, which commences by disseisin of the rightful owner with a claim of the land. But our statute requires this color of title to be accompanied by a written evidence, 'a paper title,' and an act or motion of the mind. It must be in good faith. Defects in the title may not be urged against it as destroying color, but, at the same time, might have an important and legitimate influence in showing a want of confidence and good faith in the mind of the vendee, if they were known to him, and he believed the title therefore to be fraudulent and void. What is color of title is matter of law, and when the facts exhibiting the title are shown, the court will determine whether they amount to color of title. But good faith in the party in claiming under such color, is purely a question of fact, to be found and settled as other facts in the cause. We can entertain no doubt in this case that the auditor's deed to the purchaser at the tax sale is color of title in Woodward, in the true intent and meaning of the statute, and without regard to its intrinsic worth as a title. 'Good faith,' (say the court,) 'is doubtless used here in its popular sense, as the actual existing state of the mind, whether so from ignorance, skepticism, sophistry, delusion or imbecility, and without regard to what it should be from given legal standards of law or reason.'

We have quoted at some length from the opinion of the supreme court of Illinois, both on account of the clearness and accuracy of its reasoning, and on account of the respect which is due to it, as an interpretation of a statute of the State by her supreme judicial authority. We entirely approve of the exposition of the supreme court of Illinois, in its opinion of what constitutes color of title, upon well-established general principles, and within the scope and meaning of the statute of 1839, and in relation to the nature of the question of what constituted good faith in the possessor of such colorable title, and also as to the manner in which that question should be determined, namely: as a question of fact determinable by the jury, and not by the court.

But the court in the case before us withdrew from the jury, and assumed upon itself the right of deciding upon the motives and intention of the defendant in the ejectment; and it was with the view, doubtless, of exercising this function, that the qualification to the fifth prayer of the defendant was added by the court, and that the court had previously at the instance of the plaintiff, instructed the jury, that although the deed of the 10th of January, 1833, from the auditor to the defendant, was of itself, such a title as would protect the party in possession under the act of 1839, connected with payment of taxes, and continued possession for the period of limitation, yet, if the defendant being in possession of the land in controversy, had permitted it to be sold for taxes, and had himself become the purchaser thereof, the deed of the auditor in pursuance of such sale, could convey no title to the defendant, and was not a title obtained in good faith. The accuracy or inaccuracy of the legal positions taken by the court in this instruction, we deem it not necessary at present to determine.

We hold, that in assuming to decide upon the question of good faith on the part of the defendant, the court exerted an authority not legitimately belonging to it; a power exclusively appertaining to the jury. We further hold, that it was error in the court to decide as it did upon the prayer of the plaintiff in the ejectment, and by its qualification annexed to the fifth prayer of the defendant, that the deed from the auditor of the 10th of January, 1833, was not such an instrument as could be adduced in evidence under the statute of 1839, in order to show color of title. We are therefore of the opinion that the decision of the circuit court be reversed, and that this cause be remanded to that court, with directions to order a venire facias de novo for the trial thereof, in conformity with the law as herein expounded.

title: Wright v. Mattison/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Unwin, Mary

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


text: Talk:Wright v. Mattison/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Unwona


text:
Graham v. Bayne

THIS case was brought up by writ of error, from the circuit court of the United States for the district of Illinois.

It was an action of ejectment brought by Bayne against Graham, to recover the southeast quarter of section 15, in townships seven, range four east.

The circumstances under which the case came up are stated in the opinion of the court. It was argued by Mr. Browning for the plaintiff in error, and Mr. Williams, for the defendant; but as their arguments were directed to the merits of the case, which were not decided by this court, they are omitted.

Mr. Justice GRIER delivered the opinion of the court.

title: Graham v. Bayne


text: Talk:Graham v. Bayne

title: Talk:Graham v. Bayne


text:
Graham v. Bayne/Opinion of the Court

This case was tried in the circuit court for the district of Illinois, without the intervention of a jury, and under the following agreement of counsel:--

'Be it remembered, that upon the calling of this cause for trial, by the mutual agreement of the parties, and in accordance with the laws and practice of this State, a jury was waived, and both matters of law and fact were submitted to the court, upon the distinct understanding that the right of either party should be full and perfect to object to the admission of improper evidence, and to insist upon the admission of competent evidence, with the same privilege of excepting to the rulings of the court in either case, as though the cause were tried by a jury; and with the right to either party to avail himself in the supreme court of any erroneous ruling in this court, precisely as though the cause had been submitted to a jury, and with liberty to either party, if it should be necessary to a hearing of this cause in the supreme court, to treat the evidence in this cause in the nature of a special verdict.'

The common law has been adopted by Illinois, and all the States except Louisiana. In that State, the courts of the United States have been compelled to adopt the forms of pleading and practice peculiar to the civil law and the code. That system knows no distinction between law and equity. All cases are tried alike, on petition and answer, with or without the intervention of a jury, as the parties may elect.

This court having separate jurisdiction, both in equity and law, is compelled to distinguish. They can review cases in common law by writ of error only, and on bills of exception presenting questions of law. The circuit courts may adopt the forms of pleading and practice of the state courts, but no state legislation can be applied to the practice of this court, and the mode in which causes shall be brought into it for review.

The very numerous cases on this subject, (from Field v. United States, 9 Pet. 182, to Arthurs and Hart, 17 How. 6,) show the difficulties we have had to encounter in reconciling our modes of review to the civil code of practice as used in the courts of Louisiana.

But in the States governed by the common law, and where the circuit courts are not compelled to adopt every new code of practice invented for the benefit of state courts, there is no reason why the strict rules of the common law should be in anywise relaxed or changed in this court, to suit the anomalies in practice thus introduced in the circuit courts. That the courts of the United States should not be hasty in adopting new codes of practice, which attempt to ingraft the civil law system of pleading and practice on the stalk of the common law, the cases of Butterworth v. Burnet, and Toby v. Randon, 11 How., most amply demonstrate.

The 11th section of the practice act of Illinois, (March 3, 1845,) permits matters both of fact and law to be tried by the court, if both parties agree.

Counsel may agree, as in this case, to submit both fact and law to the decision of the court; but they cannot, by agreement, introduce a new practice into this court, or compel us to adopt the provisions of the 22d section of the same act, as to the mode in which such cases shall be reviewed in error. The practice of this court is regulated by the common law and acts of congress only. See Bayard v. Lombard, How. 530.

If the parties agree to submit the trial both of fact and law to the judge, they constitute him an arbitrator, or referee, whose award must be final and conclusive between them; but no consent can constitute this court appellate arbitrators. When the error alleged does not appear on the face of the record, or on a demurrer, a bill of exceptions to the ruling of the court on questions of law, either in admitting or rejecting testimony, or in their instructions to the jury, constitutes the only mode of bringing a case before this court for review.

It is true, that when there is no dispute as to the facts, counsel may agree on a case stated in the nature of a special verdict; and the judgment of the court below on such case stated, or verdict, may be reviewed here on a writ of error. See Stimpson v. The Railroad, 10 How. 329.

The counsel in this case have agreed, that 'if it should be necessary to a hearing of this cause in the supreme court, to treat the evidence in the nature of a special verdict,' this agreement may be good as between themselves, and point out the source from which the facts for a case stated, or special verdict, may be drawn, but it cannot compel this court to search through the evidence to find out the facts. The record exhibits the testimony and evidence laid before the judge. It is evidence of facts, but not the facts themselves as agreed or found. The court below decided that a certain deed given in evidence did not show sufficient 'color of title' under the limitation law of Illinois. The act referred to requires not only 'color of title,' but a possession taken and held 'in good faith,' with payment of taxes. The question of 'good faith' is one of fact, or of mixed fact and law, to be decided by the jury under proper instructions from the court. It is one necessary to be ascertained before the court can give a judgment.

Even if we should consent to review this loose statement of evidence as a case stated, it contains no finding or agreement whatever as to this material fact. Where there is a case stated, or special verdict, the court of error must not only reverse the judgment below, if found erroneous, but enter a correct and final judgment.

If a special verdict be ambiguous, or imperfect-if it find but the evidence of facts, and not the facts themselves, or finds but part of the facts in issue, and is silent as to others, it is a mistrial, and the court of error must order a venire de novo. They can render no judgment on an imperfect verdict, or case stated. See Prentice v. Zane, 8 How. 484.

No mere agreement of counsel can substitute evidence of facts in place of facts, or require the opinion of this court on an imperfect statement of them. A writ of error cannot by these methods be converted into a chancery appeal, nor a court of error into appellate arbitrators.

The judgment of the circuit court is therefore reversed, and a venire de novo awarded.

title: Graham v. Bayne/Opinion of the Court


text: Talk:Graham v. Bayne/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Upcott, William


text:
Carrington v. Brig

THIS was an appeal in admiralty from the circuit court of the United States for the district of Maine.

The case is stated in the opinion of the court.

It was argued by Mr. Rowe, for the appellant, and Mr. Fessenden, for the appellee.

Mr. Rowe made the following points, namely:--

1. Airey was rightfully in possession and command of the brig at St. Thomas, and had power to hypothecate her.

2. Airey's conduct, if wrong in this respect, cannot affect the libellant's claim. 3 Sumn. 228.

3. The attempt at deception was not for the purpose of wronging or injuring any party.

4. It does not appear that Carrington was particeps criminis.

5. The bond is not void in toto, but valid to the extent of the actual advances and interest. 1 Dodson, 389; 8 Pet. 228; 1 Wheat. 107.

6. The fraud, even if Carrington be particeps criminis, was not such as to render the bond void in toto. 3 C. Robinson, 240, 276.

7. If the bond is invalid in toto now, it was void ab initio, not voidable merely; and the rights of the parties are the same as if the instrument had not been drafted. 3 Camp. 119; Abbott on Shipping, Pt. II. 142, 151; 11 Mass. 359; 1 Pick. 415.

8. The libellant had a lien upon the brig for his advances, at the date of the bond. 8 Pet. 538, 550; The Hunter, Ware's Rep. 249.

9. The lien has never been extinguished or waived. 7 Pet. 324, 345; 4 Wheat. 255, 290, 291.

10. The lien was not lost by the subsequent fraud.

Mr. Fessenden made the following points:--

1. This was peculiarly a contract of bottomry, having all its characteristics and incidents. Kent's Comm. (7th ed.) 3, 429, 430; 3 Sumn. 228; 4 Law & Eq. Rep. 589.

The draft and agreement do not affect its character. Kent, 3, 423, 424; The Hunter, Ware's R. 249; The Nelson, 1 Hag. 169.

2. Being perfected, and in due form, it forms an express lien upon the vessel. Bottomry is a lien of the strictest kind, only seamen's wages having precedence of it. The Dowthorpe, 2 W. Rob. 73; 9 Eng. Ad. Rep. 79.

Having stipulated for and obtained an express lien of the highest character, as by bottomry, the material man, or lender, necessarily loses, or waives, the implied or tacit hypothecation, which he might otherwise have had.

Because the two liens are inconsistent, being of a different nature. One may coexist with a claim upon the owner; the other cannot. A bottomry bond binding the owner is held void as to that part, in order to sustain the express lien. The common law maxim applies, Expressum facit cessare tacitum. The Nestor, 1 Sumn. 1, 78, 83, 86; Abbott on Ship. from Molloy, 198; The Nelson, before cited; The Tartar, 1 Hag.

Maritime, like common-law liens, are lost by acts inconsistent with the lien-taking other securities and the like. Ramsay v. Allegre, 12 Wheat. 611; The William Money, 2 Hag. 136; The Betsey and Rhoda, Davies, 112; Paul v. Hayford, 22 Maine, 234; Story on Bailments, § 360; Swett v. Brown, 5 Mass. 180; Buck v. Ingersoll, 11 Met. 226; Libby v. Cushman, 29 Maine, 432.

3. The libellant having selected his security, must rely upon that alone, so far as the lien is concerned. And this security is lost by its fraudulent character. The Tartar, 1 Hag. 14; The Nelson, 1 Hag. 176; The Sydney Cove, 2 Dods. 1; Bouvier, Law Dic. Tit. Fraud; Willis v. Baldwin, Doug. 450; Smith v. Bromley, Doug. 696; Alsager v. Spalding, 4 Bing. N. C. 407; Smith v. Hubbs, 10 Maine, 70; The Ann C. Pratt, Curtis, 345; Lowry v. Pierson, 2 Bailey, 324.

A court of equity will not aid a party to enforce such a contract, or to escape from the consequences. Story's Eq. 1, § 59; Cases cited in note to same, 2, § 697.

This is equally true in the admiralty. Courts of admiralty act as courts of equity. Brown v. Lull, 2 Sumn. 449; The Betsey and Rhoda, Daveis, 119.

The fraud attempted in this case, if intended for the underwriters only, was upon a party directly interested, and for whom the master was agent, in the state of facts then existing. Bryant v. Com. Ins. Co. 6 Pick. 131; Douglass v. Moody, 9 Mass. 548.

4. The contract, being void for fraud, cannot be sustained for any part. The cases where a bottomry bond has been sustained for a part, go no further than to reject such portion as is inconsistent with the contract of bottomry, in order to give effect to the express contract. They do not reject the contract, and give another remedy. The Hunter, Ware, 249, stands alone, opposed to legal principles, and that was not a case of fraud. The libellant cannot, therefore, resort to the lien he might have had but for the bond. The Ann C. Pratt, and cases cited, Curtis, 352.

The libellant could only claim under a tacit hypothecation by alleging his own turpitude in the matter of the bond. This the law never permits.

Mr. Justice NELSON delivered the opinion of the court.

title: Carrington v. Brig


text: Dictionary of National Biography, 1885-1900/Upham, Edward


text: Talk:Carrington v. Brig

title: Talk:Carrington v. Brig


text:
Carrington v. Brig/Opinion of the Court

This is an appeal in admiralty from a decree of the circuit court of the United States for the district of Maine.

The original libel, filed by Carrington in the district court against the brig, was founded upon a bottomry bond executed by Airey, the mate and acting master, at the island of St. Thomas, by which the vessel was hypothecated to the libellant for the payment of the sum of $4,591.42, advanced by him for her necessary repairs and supplies, she having arrived at that port in a disabled condition, together with ten per cent. maritime interest, the whole sum amounting to $5,050.56.

The defence set up to the libel, so far as it is material to be noticed, was that the bond had been executed for a much larger sum than was loaned, and was received by the lender knowing the same, and in fraud of the rights of the parties interested.

Upon the coming of the proofs, it appeared that the sum really advanced to the acting master was but $3,877.25, it being $714.17 less than the amount for which the bond was given.

The proofs further showed that two sets of accounts and vouchers were made out by the clerk of the libellant; the one corresponding with the truth of the case, the other with the fictitious amount of the bottomry bond; both of which sets were forwarded to the father of the captain of the brig, with letters of advice, both from the lender and Airey, the mate, informing him that the bond was given for the larger sum, and the false accounts and vouchers sent, to enable the owner to make a claim for the same against the underwriters upon the vessel. Captain Pratt, the master of the brig, was on shore with the ship's papers, at St. Michael, when the storm occurred that disabled the vessel, and became separated from her, when Airey, the mate, took the command and proceeded to St. Thomas. By an arrangement between Airey and the libellant, it was agreed that the former should draw a bill in favor of the latter, upon the father of Captain Pratt, for the actual sum advanced, and, if paid at maturity, (thirty days' sight,) the maritime interest of ten per cent. would be relinquished. This accounts for the communication of the parties with the father on the subject, instead of with Captain Pratt himself.

The district court, after allowing an amendment of the libel at the sitting, setting up a claim upon the vessel for the true sum advanced, with the maritime interest, held that a lien existed upon the brig, in favor of the libellant, for this amount, by operation of the general admiralty law, and decreed accordingly.

The claimant appealed to the circuit court; that court reversed the decree below, and dismissed the libel, concurring with the district judge that the bottomry bond was fraudulent and void, and could not be admitted as the foundation of a decree in favor of the libellant, for any amount; but differed with him upon the other question in the case, and held that the contract between Airey and the lender, for security by bottomry, and fulfilment of that agreement by the execution of the bond, were acts wholly inconsistent with the idea of a general or implied maritime lien on the vessel, and that none therefore existed.

Upon full consideration, we all agree that the decree of the circuit court is right, and should be affirmed.

As it respects the right to a recovery upon a bottomry bond, the libellant is met by the defence resting upon the familiar principle that a court administering justice upon principles of equity will not lend its aid to enforce the fulfilment of a contract in favor of a party to it, which is founded in fraud. 2 Story's Eq. § 298, and cases. In such cases, the court leaves both parties where the law finds them, giving no relief or countenance to claims of this description. Here, the underwriters, who were sought to be defrauded by the use of the fictitious accounts and vouchers, were directly interested in the transaction, as the fair expenses of the repairs of the brig fell within one of the perils insured against. Any contrivance, therefore, to exaggerate them, or by which evidence could be furnished to enable the owner to recover on his policy a greater amount than actually advanced, was dishonest and fraudulent, and can receive no countenance in a court of justice.

It is insisted, however, that the security should be held valid for the amount actually advanced, conceding it to be void for the excess. It is true, that a bottomry bond may be good in part and bad in part, and may be upheld even in cases when taken for a sum in the aggregate larger than that which properly constitutes a lien upon the vessel within this species of security. There are many cases to this effect. Abbot, 126, n.; 1 Wheat. 107; 8 Pet. 228. These are cases, however, in which the items rejected were not properly chargeable on the ship, or were embraced within the bond from inadvertence or mistake, and entirely consistent with the good faith of the parties in the transaction. They stand upon widely different principles from those where the objectionable items are fictitious, and inserted in the bond with the intent to defraud third persons. The entire security in such cases becomes tainted with the fraud, and a particeps criminis is not allowed to come into court to enforce it, even for the money advanced or expended; for to permit it would afford countenance to the fraud by giving partial effect to it.

By holding the security valid to the extent of the loan, rejecting the excess, the guilty party would risk nothing; for, when detected in the fraud, he would still be enabled to reimburse himself for the amount really due. We have seen that the rule of equity-and which is the rule of admiralty in such cases-refuses to interfere for relief, and leaves the parties where the law finds them.

Assuming, then, the bond to be void, as an hypothecation for the money advanced, and, therefore, not available to charge the vessel, can the lender resort to the general or implied maritime lien that it is claimed attaches in cases of repairs or advances in the foreign port, in the absence of any special agreement to the contrary?

We think not. The contract of hypothecation, by bottomry, under which the money was loaned, is different from that implied by the general admiralty law. In the one case, the money advanced is payable only in the event of the safe arrival of the vessel at the port of destination, the lender taking the responsibility of the sea-risk, and entitled to charge extraordinary interest. According to the terms of the bond in this case, Carrington and Company, the lenders, 'agreed to stand to and bear the hazard and adventure thereof, on the hull or body of the said brig, during her voyage;' and the condition is, 'to pay or cause to be paid at the expiration of five days after first arrival of said brig,' &c.; but, 'if, during the said voyage, and utter loss of said brig, by fire, enemies, or other casualty, shall unavoidably happen, &c., then this obligation to be void;' and in the case of hypothecation the owner is not personally liable for the advance or repairs. In the other-the case of an implied lien-the obligation to pay the money is absolute; and to secure the payment, the vessel, the credit of the owner and of the master himself, are pledged.

Now, it is well settled that the lien implied by the general admiralty law, may be waived by the express contract of the parties, or by necessary implication; and the implication arises in all cases where the express contract is inconsistent with an intention to rely upon the lien. A familiar instance is where the money is advanced or repairs made, looking solely to the personal responsibility of the owner or master. Abbot, 125, n.; ibid. 116, n., Story's Ed. 1829. In that case, no credit being given to the vessel as a security, the implied lien is necessarily displaced.

It is true, in this case credit was given to the vessel by the lenders, and a lien thus provided for; but it was one altogether different from that implied by the admiralty law, and inconsistent with an intention to look to that as a security for the loan, as much so as if he had agreed to look solely to the personal responsibility of the owners.

It is insisted, however, assuming the bond to be void and inoperative, that the lender is then remitted to his implied lien, the same as if no bond had been given. How this might be in a case where the instrument was defective and void, for want of authority to execute it, or for any other cause consistent with the good faith of the parties, it is not now necessary to inquire, or express any opinion. But we think it clear that no such principle can be admitted in a case where the bond has been avoided on the ground that it was entered into in bad faith, and with intent to defraud, on the part of the lenders. Any other conclusion would be giving to a party the benefit of his own turpitude, which the law forbids.

The admiralty law treats this species of security with a good deal of indulgence, and properly so, as the advances to the master at the foreign port by the merchant is oftentimes essential, to enable the vessel to earn her freight, and is for the general interest of commerce. The advance is made also frequently at great risk, on the part of the lender, he being a stranger to the owner and master, and must look, from necessity, mainly to the pledge of the vessel for his security. The court, therefore, leans in favor of upholding these hypothecations, disregarding technical objections and nice distinctions, which sometimes invalidate instruments at common law; but, they are the creatures of necessity and distress, and are entered into in the absence of the owner, who has no opportunity to guard his interests; and the tansactions, therefore, out of which they arise should be strictly watched, and the observance of the utmost good faith exacted from all the parties concerned.

It has been recently held, in the court of exchequer in England, that the master can pledge the ship for repairs, or loan of money for that purpose, in the foreign port, only by bottomry security; and that, in the absence of this, the merchant must look to the personal responsibility of the owner or master. 73 Eng. Com. Law R. 417; Stainbank and Ambler v. Shepherd.

As this question does not necessarily arise in this case, it is not important to inquire as to the rule of the admiralty in this country in this respect.

Judgment of the court below affirmed.

title: Carrington v. Brig/Opinion of the Court


text: Talk:Carrington v. Brig/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Upington, Thomas


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Holroyd v. Pumphrey

THIS case was brought up by writ of error from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The case is stated in the opinion of the court.

It was argued by Mr. Davis and Mr. Lawrence, for the plaintiff in error, and Mr. Carlisle and Mr. Bradley, for the defendant in error.

The points did not involve any general principles of law, and are, therefore, omitted.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Holroyd v. Pumphrey


text: Talk:Holroyd v. Pumphrey

title: Talk:Holroyd v. Pumphrey


text:
Holroyd v. Pumphrey/Opinion of the Court

This action was commenced by the plaintiff, to recover a lot of land situate within the city of Washington, in possession of the defendant.

His title is derived from a sale by the city collector of taxes, in the year 1846, at which he was the purchaser; and to sustain it he produced, on the trial of the cause, evidence from the corporation records that the lot had been assessed for taxes as the property of James Thomas, for the years 1844 and 1845; that the taxes for those years were not paid; that the lot had been advertised for sale twelve weeks in one of the city papers, and that he purchased and obtained a deed for the lot from the mayor.

It appeared in the evidence, that James Thomas, to whom the lot had been assessed, had died in 1842; and that the lot had been advertised for sale in 1844, by the collector of taxes, to raise the taxes of that year, as the property of 'the heirs of James Thomas,' and bid off, but it did not appear that the taxes had been paid on this bid, or that there was any deed to the purchaser, nor was there an assessment of the lots as the property of the heirs.

The circuit court gave the following instruction to the jury: -

'If, from the whole evidence aforesaid, the jury shall find that the said lots in the said declaration mentioned were, up to the year 1844, assessed on the tax books, at the city of Washington, in the name of James Thomas; that the said James Thomas, to whom they were so assessed, in his lifetime held and claimed the same as his own; that he resided in the said city of Washington, and there died in November, 1842, and letters of administration on his personal estate were granted to his son by the orphans' court of Washington county, in December, 1842; that the said lots were, in December, 1844, advertised and sold by said corporation for taxes due thereon, in the name of the 'heirs of James Thomas,' and afterwards were advertised and sold as stated in said plaintiff's evidence, then the plaintiff is not entitled to recover in this action.'

Our opinion is, that the sale in 1844, as the property of the 'heirs of James Thomas,' was inoperative upon the title of the plaintiff. The advertisement did not express the name of the person to whom the lot was assessed on the books of the corporation at the time of such assessment, as was required by the act of congress of the 26th May, 1824, amending the city charter; (4 Stats. at Large, 75, § 2;) nor were the taxes due for that year collected by means of its sale; at most, it was an abortive effort to do so, which, failing, left the lien of the corporation on the lot for the assessed taxes, and its legal remedies to enforce it, unimpaired; nor will the fact of the assessment to James Thomas after his death, nor the advertisement of the property as assessed to him, defeat the conveyance under the sale.

The act of congress, above referred to, provides for the case. It declares, 'that no sale of real property, for taxes hereafter made, shall be impaired or [made] void, by reason of such property not being assessed or advertised in the name or names of the lawful owner or owners thereof, provided the same shall be advertised as above directed.' We have seen that the corporation was directed to advertise the name of the person to whom the lot appeared to be assessed on the books of the corporation.

The judgment of the circuit court is reversed, and the cause remanded for a venire, &c.


text: Talk:Holroyd v. Pumphrey/Opinion of the Court


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Smith v. Maryland

THIS case was brought up by writ of error from the circuit court of the second judicial circuit of the State of Maryland, in and for Anne Arundel county.

The case is stated in the opinion of the court.

It was argued by Mr. Latrobe, for the plaintiff in error, and Mr. Campbell, for the State of Maryland.

Mr. Latrobe contended that all the laws of Maryland, namely: 1833, ch. 254; 1837, ch. 310; 1846, ch. 38; 1849, ch. 217, and a law passed in 1854, should be taken in connection as forming a body of legislation in pari materia. 12 How. 299.

These laws were said to be unconstitutional on these grounds, namely:--

1. Because they are repugnant to the 8th section of the first article of the constitution of the United States, which grants to congress the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.

2. Because they are repugnant to the 2d section of the third article, which declares that the judicial powers of the United States shall extend to cases of admiralty and maritime jurisdiction.

3. Because the said laws contain (with the exception of the law of 1854) no provision for an oath or affirmation as to probable cause before issuing a warrant, nor was such oath or affirmation, in fact, made, or any warrant issued prior to the seizure.

4. Because the said laws are repugnant to the second section of article fourth, which declares that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

Mr. Campbell made the following points:--

1. That the soil of the Chesapeake Bay is vested in the State of Maryland as the successor of the lord proprietary, and that the object and effect of the laws assailed is to protect the oysters while fixed in such soil, and for which it alone has title to them before they become articles of commerce; and that the protection thus extended does not obstruct the free use of the waters of Mayland for commerce or navigation. Browne and Kennedy, 5 Harris & Johnson, 195; Casey and Inloes, 1 Gill, 512; Corfield and Coryell, 4 Wash. C. C. R. 371; Bennett and Boggs, Baldwin, 72; Martin and waddell, 16 Pet. 367; 3 Kent's Commentaries, 439.

2. That the offences punished by the laws in question are not within the admiralty or maritime jurisdiction of the United States. Corfield and Coryell, (above cited;) United States v. Bevans, 3 Wheat. 386; 2 Brown's Civ. and Adm. Law, Appendix, 420.

Mr. Justice CURTIS delivered the opinion of the court.

title: Smith v. Maryland


text: Talk:Smith v. Maryland

title: Talk:Smith v. Maryland


text: Dictionary of National Biography, 1885-1900/Upton, Arthur


text:
Smith v. Maryland/Opinion of the Court

This is a writ of error to the circuit court for Anne Arundel county, in the State of Maryland, under the 25th section of the judiciary act of 1789. It appears by the record that the plaintiff in error, being a citizen of the State of Pennsylvania, was the owner of a sloop called The Volant, which was regularly enrolled at the port of Philadelphia, and licensed to be employed in the coasting trade and fisheries; that, in March, 1853, the schooner was seized by the sheriff of Anne Arundel county, while engaged in dredging for oysters in the Chesapeake Bay, and was condemned to be forfeited to the State of Maryland, by a justice of the peace of that State, before whom the proceeding was had; that on appeal to the circuit court for the county, being the highest court in which a decision could be had, this decree of forfeiture was affirmed; and that the plaintiff in error insisted, in the circuit court, that such seizure and condemnation were repugnant to the constitution of the United States.

This vessel being enrolled and licensed, under the constitution and laws of the United States, to be employed in the coasting trade and fisheries, and while so employed having been seized and condemned under a law of a State, the owner has a right to the decision of this court upon the question, whether the law of the State, by virtue of which condemnation passed, was repugnant to the constitution or laws of the United States.

That part of the law in question containing the prohibition and inflicting the penalty, which appears to have been applied by the state court to this case, is as follows: (1833, ch. 254:)--

'An Act to prevent the Destruction of Oysters in the Waters of this State.

'Whereas, the destruction of oysters in the waters of this State is seriously apprehended, from the destructive instrument used in taking them, therefore—

SEC. 1. Be it enacted by the general assembly of Maryland, That it shall be unlawful to take or catch oysters in any of the waters of this State with a scoop or drag, or any other instrument than such tongs and rakes as are now in use, and authorized by law; and all persons whatever are hereby forbid the use of such instruments in taking or catching oysters in the waters of this State, on pain of forfeiting to the State the boat or vessel employed for the purpose, together with her papers, furniture, tackle, and apparel, and all things on board the same.'

The question is, whether this law of the State afforded valid cause for seizing a licensed and enrolled vessel of the United States, and interrupting its voyage, and pronouncing for its forfeiture. To have this effect, we must find that the State of Maryland had power to enact this law.

The purpose of the law is, to protect the growth of oysters in the waters of the State, by prohibiting the use of particular instruments in dredging for them. No question was made in the court below whether the place in question be within the territory of the State. The law is, in terms, limited to the waters of the State. If the county court extended the operation of the law beyond those waters, that was a distinct and substantive ground of exception, to be specifically taken and presented on the record, accompanied by all the necessary facts to enable this court to determine whether a voyage of a vessel, licensed and enrolled for the coasting trade, had been interrupted by force of a law of a State while on the high seas, and out of the territorial jurisdiction of such State.

To present to this court such a question upon a writ of error to a state court, it is not enough that it might have been made in the court below; it must appear by the record that it was made, and decided against the plaintiff in error.

As we do not find from the record that any question of this kind was raised, we must consider that the acts in question were done, and the seizure made, within the waters of the State; and that the law, if valid, was not misapplied by the county court by extending its operation, contrary to its terms, to waters without the limits of the State. What we have to consider under this writ of error is, whether the law itself, as above recited, be repugnant to the constitution or laws of the United States.

It was argued that it is repugnant to that clause of the constitution which confers on congress power to regulate commerce, because it authorizes the seizure, detention, and forfeiture of a vessel enrolled and licensed for the coasting trade, under the laws of the United States, while engaged in that trade.

But such enrolment and license confer no immunity from the operation of valid laws of a State. If a vessel of the United States, engaged in commerce between two States, be interrupted therein by a law of a State, the question arises whether the State had power to make the law by force of which the voyage was interrupted. This question must be decided, in each case, upon its own facts. If it be found, as in Gibbon v. Ogden, 9 Wheat. 1, that the State had not power to make the law, under which a vessel of the United States was prevented from prosecuting its voyage, then the prevention is unlawful, and the proceedings under the law invalid. But a State may make valid laws for the seizure of vessels of the United States. Such, among others, are quarantine and health laws.

In considering whether this law of Maryland belongs to one or the other of these classes of laws, there are certain established principles to be kept in view, which we deem decisive.

Whatever soil below low-water mark is the subject of exclusive propriety and ownership, belongs to the State on whose maritime border, and within whose territory it lies, subject to any lawful grants of that soil by the State, or the sovereign power which governed its territory before the declaration of independence. Pollard's Lessee v. Hagan, 3 How. 212; Martin v. Waddell, 16 Pet. 367; Den v. The Jersey Co. 15 How. 426.

But this soil is held by the State, not only subject to, but in some sense in trust for, the enjoyment of certain public rights, among which is the common liberty of taking fish, as well shellfish as floating fish. Martin v. Waddell; Den v. Jersey Co.; Corfield v. Coryell, 4 Wash. R. 376; Fleet v. Hagemen, 14 Wend. 42; Arnold v. Munday, 1 Halst. 1; Parker v. Cutler Milldam Corporation, 2 Appleton (Me.) R. 353; Peck v. Lockwood, 5 Day, 22; Weston et al. v. Sampson et al. 8 Cush. 347. The State holds the propriety of this soil for the conservation of the public rights of fishery thereon, and may regulate the modes of that enjoyment so as to prevent the destruction of the fishery. In other words, it may forbid all such acts as would render the public right less valuable, or destroy it altogether. This power results from the ownership of the soil, from the legislative jurisdiction of the State over it, and from its duty to preserve unimpaired those public uses for which the soil is held. Vattel, b. 1, c. 20, s. 246; Corfield v. Coryell, 4 Wash. R. 376. It has been exercised by many of the States. See Angell on Tide Waters, 145, 156, 170, 192-3.

The law now in question is of this character. Its avowed, and unquestionably its real, object is to prevent the destruction of oysters within the waters of the State, by the use of particular instruments in taking them. It does not touch the subject of the common liberty of taking oysters, save for the purpose of guarding it from injury, to whomsoever it may belong, and by whomsoever it may be enjoyed. Whether this liberty belongs exclusively to the citizens of the State of Maryland, or may lawfully be enjoyed in common by all citizens of the United States; whether this public use may be restricted by the State to its own citizens, or a part of them, or by force of the Constitution of the United States must remain common to all citizens of the United States; whether the national government, by a treaty or act of congress, can grant to foreigners the right to participate therein; or what, in general, are the limits of the trust upon which the State holds this soil, or its power to define and control that trust, are matters wholly without the scope of this case, and upon which we give no opinion.

So much of this law as is above cited may be correctly said to be not in conflict with, but in furtherance of, any and all public rights of taking oysters, whatever they may be; and it is the judgment of the court, that it is within the legislative power of the State to interrupt the voyage and inflict the forfeiture of a vessel enrolled and licensed under the laws of the United States, for a disobedience, by those on board, of the commands of such a law. To inflict a forfeiture of a vessel on account of the misconduct of those on board-treating the thing as liable to forfeiture, because the instrument of the offence is within established principles of legislation, which have been applied by most civilized governments. The Malek Adhel, 2 How. 233-4, and cases there cited. Our opinion is, that so much of this law as appears by the record to have been applied to this case by the court below, is not repugnant to the clause in the constitution of the United States which confers on congress power to regulate commerce.

It was also suggested, that it is repugnant to the second section of the third article, which declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. But we consider it to have been settled by this court, in United States v. Bevans, 3 Wheat. 386, that this clause in the constitution did not affect the jurisdiction, nor the legislative power of the States, over so much of their territory as lies below high-water mark, save that they parted with the power so to legislate as to conflict with the admiralty jurisdiction or laws of the United States. As this law conflicts neither with the admiralty jurisdiction of any court of the United States conferred by congress, nor with any law of congress whatever, we are of opinion it is not repugnant to this clause of the constitution. The objection that the law in question contains no provision for an oath on which to found the warrant of arrest of the vessel, cannot be here maintained. So far as it rests on the constitution of the State, the objection is not examinable here, under the twenty-fifth section of the judiciary act. If rested on that clause in the constitution of the United States which prohibits the issuing of a warrant but on probable cause supported by oath, the answer is, that this restrains the issue of warrants only under the laws of the United States, and has no application to state process. Barron v. Mayor, &c. of Baltimore, 7 Pet. 243; Lessee of Livingston v. Moore et al. 7 Pet. 469; Fox v. Ohio, 5 How. 410.

The judgment of the circuit court of Maryland in and for Anne Arundel county is affirmed, with costs.

title: Smith v. Maryland/Opinion of the Court


text: Talk:Smith v. Maryland/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Upton, James


text:
Jones v. League

THIS case was brought up, by writ of error, from the district court of the United States for the district of Texas.

It was an action of trespass to try title brought by League against Jones and the other plaintiffs in error. League averred himself to be a citizen of Maryland, in his original petition, or declaration, and claimed title to a tract of land in the county of Refugio, on St. Joseph's Island, in the State of Texas.

League claimed under a deed made to him on the 11th of May, 1850, by one John Power, a citizen of Texas, acting for himself and Hewetson and the representatives of Walker. This deed contained the following trust, namely:--

That League would commence the necessary suits to try title; that if decided adversely, he would carry the cases to the supreme court of the United States; that when the litigation should be finally determined, he would convey two thirds of the lands recovered to the grantors; that League should pay one third of the expenses of litigation heretofore incurred, and all costs and expenses for the future; that League might make sales and divide the proceeds in the proportion of one third to himself and two thirds to the grantors, &c., &c.

The defendants pleaded four pleas in abatement to the jurisdiction of the court. The first plea set forth the substance of the above deed, and then alleged that Power was, at the time of the commencement of the suit, a citizen of Texas; that League was also a citizen of Texas, but went to Maryland for the purpose of setting up a pretence of being a citizen of that State, and after remaining less than four months in Maryland, he returned to Texas: that it was a fraudulent device to enable him to bring the suits which Power could not have brought, &c.

The second and third pleas need not be noticed, as no question arose upon them in this court. The fourth alleged that, at the time of the commencement of the suit, League was a citizen of the State of Texas.

With respect to the first plea, the plaintiff demurred to it, and the demurrer was sustained by the court. On the fourth plea, the plaintiff took issue upon it, and a trial was had, which resulted, under the instructions of the court, which will presently be mentioned, in a verdict of the jury for the plaintiff. In order to understand the instructions, it is necessary to say that it was admitted of record by the plaintiff, for the purposes of the trial, that he was a citizen of the Republic of Texas from 1838 up to the time of annexation of the United States; that he remained domiciled in the State of Texas; and that he was a citizen of the State of Texas, on the first day of July, A. D. 1850; and he waived the necessity of proving the above facts.

And thereupon the court instructed the jury, that it is incumbent on the defendants on the issue made to show that the said plaintiff was a citizen of the State of Texas at the time of filing the petition in this cause; that the admission made by the plaintiff as above stated was, in law, presumptive proof that, at the time of filing the petition, the said plaintiff was a citizen of the State of Texas; but that on the other hand the allegation in the petition, that the plaintiff was, at the time of filing the same, a citizen of the State of Maryland was prim a facie, or presumptive proof that he was, as alleged, a citizen of the said State of Maryland at that time: That these two contradictory presumptions, one arising from the plaintiff's admission, the other from the allegation in his petition, were equivalent in weight, and counterbalanced or destroyed each other: And that if there was no other testimony beside the admissions of the plaintiff adduced on the part of the defendants to show that the said plaintiff was, at the time of filing the petition, a citizen of the State of Texas, the jury would on this point find for the plaintiff; to each and every part of which charge (except the first and second clauses thereof, to wit: That the burden of proof was upon the defendants, and that the plaintiff's admissions was presumptive proof of his being a citizen of Texas at the date of filing the petition) the said defendants by their counsel excepted, and tender this their first bill of exceptions, which they pray may be signed, sealed, and made a part of the record in this cause, and the same is now done accordingly.

[SEAL.] JOHN C. WATROUS.

January 28, 1854.

Other exceptions were taken in the progress of the trial, but it is not necessary to notice them.

The case was argued by Mr. Hale, for the plaintiffs in error, and Mr. Hughes, for the defendant. All other points are omitted except the one relating to jurisdiction. This point was stated by Mr. Hale as follows:--

The judicial power vested by the constitution extends to controversies-not merely suits-between citizens of different States; and in determining the limits of this power, we are to look to things, not names. McNutt v. Bland, 2 How. 9. The true rule as to the matters presented by the plea, is well settled to be that, when a conveyance is made for a valuable consideration, by a citizen of one State to a citizen of another State, it is effective to give the right to sue, although the principal motive, which influenced both parties, may have been a desire to give jurisdiction to courts of the United States; Smith v. Kernochen, 7 How. 215-217; McDonald v. Smalley, 1 Pet. 623. But the converse is equally true, that when no valuable consideration passes, and the grantee receives the legal title for the avowed purpose of giving jurisdiction to courts of the United States, while the real party in interest remains a citizen of the same State as the defendants, then, the court will not permit such a fraud upon the laws and the policy of the government, but will look into the transaction, on a plea in abatement, and ascertain the real party to the suit, without regard to the form of the conveyance, or of the action. Maxfield's Lessee v. Levy, 2 Dall. 381; S.C.. 4 Dall. 330; Hurst's Lessee v. Neil, 1 Wash. C. C. R. 70-81; Smith v. Kernochen, 7 How. 215-217.

Mr. Hughes contended that the court had jurisdiction by the averments of the petition; and the plea made the deed part of the plea, by which deed it was shown that League took the estate for a valuable consideration; that the instruction of the court was correct, because as this court had established the rule in 14 How. 510, that the averment of citizenship in the petition in prim a facie evidence of the fact averred, which defendant must remove by proof, it necessarily followed that the two presumptions counteracted each other, and the jury were constrained to find that the plaintiff was a citizen of Maryland at the commencement of the action, 9 Wheat. 537.

Mr. Justice McLEAN delivered the opinion of the court.

title: Jones v. League


text: Talk:Jones v. League

title: Talk:Jones v. League


text:
Jones v. League/Opinion of the Court

This is a writ of error to the district court of the United States of the district of Texas.

The plaintiff filed his petition in the district court, alleging that he was seized in fee of a certain tract of land in the county of Refugio, on St. Joseph's island, in the State of Texas; beginning, on said island, at the point nearest the Aransas bar; thence in a northeasterly direction with the sea-shore to the inlet from the sea into the bay; thence north forty-five degrees west to the shore of the bay or lagoon; thence, with the meanders of the bay, to the place of beginning, containing three and one-half leagues, be the same more or less. That the defendants entered the same by force and ejected the plaintiff.

And the petition further represents, that the plaintiff having possession of several other tracts of lands of which he was seized, the defendants forcibly entered and dispossessed him, &c.; and the petitioner prayed that after due trial, according to the forms of law, he may have judgment for his damages aforesaid, for the recovery of the lands aforesaid.

The defendants plead that the court ought not to take further cognizance of the action of the plaintiff, because they say that the plaintiff claims title under and through a pretended indenture, purporting to be made and entered into on the 11th of May, 1850, by a certain John Power, of the county of Refugio, and State of Texas, a certain James Hewetson, of the State of Coahuila, and Republic of Mexico, by his attorney in fact, James Power; and the said James Power, acting for and in behalf of the representatives of Duncan S. Walker, deceased, of the one part, and Thomas M. League, of the city of Galveston, and State of Texas aforesaid, of the other part, but really, and in law and fact, only by the said James Power, of the one part, and the plaintiff, of the other part; which said indenture purported to convey from James Power unto the plaintiff, his heirs and assigns forever, the said tracts and parcels of land described in the petition, and which the plaintiff seeks to recover in this action.

The said conveyance being made to the plaintiff in trust, for the following purposes: that the said League should commence all such suit, or suits, as might be necessary to settle the title to said lands, in the district court, and, should a decision be made adversely in said court, that he would prosecute a writ of error or appeal to the supreme court of the United States; and when the litigation was finally determined, the said League would convey two-thirds of the land recovered, in which the title should be settled, to said Power and Hewetson, and the representatives of the said Walker, and their heirs and assigns; and, until such conveyances were made, should hold said lands for the benefit of said parties; and the plaintiff agreed to pay one-third of the expense of litigation, and the expense before that time incurred, which it was agreed amounted to one thousand dollars.

And the defendants allege, that the said Power, at the time of the conveyance, and for years before and ever since, has been a citizen of Texas; and that the said plaintiff has resided in the State of Texas for twelve years, and is a citizen of that State. That before commencing suit he went to Maryland and other States, and remained absent about four months, and on his return brought this suit as a citizen of Maryland; and that the said conveyance, was colorable, and was made to give jurisdiction to the courts of the United States.

Three other pleas were filed representing that the conveyance was made by Power, a citizen of Texas, and who is the real plaintiff in the case, to give jurisdiction to the federal courts, and that League is a nominal plaintiff.

The plaintiff admits, for the purposes of this cause, that the only legal title which he claims to have to the several tracts of land in his petition described, is that conveyed to him by James Power, of the State of Texas.

A demurrer was filed to the first plea, and issues joined as to the others.

At an early period of this court, it was held in some of the circuit courts, that the averment of citizenship, to give jurisdiction, must be proved on the general issue. And as a consequence of this view, if at any stage of the cause it appeared that the plaintiff's averment of citizenship was not true, he failed in his suit. But it is now held, and has been so held for many years, that if the defendant disputes the allegation of citizenship in the declaration, he must plead the fact in abatement of the suit; and that this must be done in the order of pleading, as at common law.

In this case, jurisdiction is claimed by the citizenship of the parties. The plaintiff avers that he is a citizen of Maryland, and that the defendants are citizens of Texas.

In one of the pleas, it is averred that the plaintiff lived in Texas twelve years and upwards, and that, for the purpose of bringing this suit, he went to the State of Maryland, and was absent from Texas about four months.

The change of citizenship, even for the purpose of bringing a suit in the federal court, must be with the bon a fide intention of becoming a citizen of the State to which the party removes. Nothing short of this can give him a right to sue in the federal courts, held in the State from whence he removed. If League was not a citizen of Maryland, his short absence in that State, without a bon a fide intention of changing his citizenship, could give him no right to prosecute this suit.

But it very clearly appears from the deed of conveyance to the plaintiff, by Power, that it was only colorable, as the suit was to be prosecuted for the benefit of the grantor, and the one-third of the lands to be received by the plaintiff was in consideration that he should pay one-third of the costs, and superintend the prosecution of the suit. The owner of a tract of land may convey it in order that the title may be tried in the federal courts, but the conveyance must be made bon a fide, so that the prosecution of the suit shall not be for his benefit.

The judgment of the district court is reversed, for want of jurisdiction in that court.

title: Jones v. League/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Upton, Nicholas


text: Talk:Jones v. League/Opinion of the Court


text:
Page:Florence Earle Coates Mine and Thine 1904 021.jpg

thou be crowned, or if thou be not crowned

With that imperial round

Thy forbears from the distant ages wore,

Sorrow and suffering for thee have earned

A guerdon fairer than thy hope discerned;

And through renunciation, thou hast found

A cirque of sovereignty not dreamed before.

If thou be crowned? Nay, thou art crowned now;

For, lo! upon thy brow,

So lately shadowed by Death's mournful wing,

A mighty people's sympathy has laid


text:
Bush v. Person

THIS case was brought up from the high court of errors and appeals of the State of Mississippi, by a writ of error issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Bayard, for the plaintiff in error, and Mr. Crittenden, for the defendant.

Mr. Bayard explained the doctrine of estoppel at common law, and referred to Williams v. Saunders, 80, note. But where there is no covenant of warranty there is no estoppel, 11 How. 298; and in this case there was none. The law of the State implies such a covenant from a deed of bargain and sale, but not as between mortgagor and mortgagee.

Mr. Crittenden contended that the second section of the bankrupt act excepted mortgages and other securities for debt. It says that mortgages must remain unimpaired, but if Bush is allowed to hold, the mortgage certainly is impaired.

Mr. Justice CURTIS delivered the opinion of the court.

title: Bush v. Person


text: Talk:Bush v. Person

title: Talk:Bush v. Person


text:
Bush v. Person/Opinion of the Court

A bill to foreclose a mortgage on a lot of land in Mississippi was filed by the administrator of the assignee of the mortgage, in the superior court of chancery in that State. The complainant obtained a decree of foreclosure, and the respondent appealed to the high court of errors and appeals, where the decree of the superior court of chancery was affirmed. The appellant then prosecuted the writ of error, which brings the case before this court.

The case was, shortly, this: The appellant was one of two mortgagors. When the mortgage was executed, and land was encumbered by a lien from a judgment previously recovered against the mortgagors.

After executing the mortgage the appellant became a bankrupt, under the act of congress of August 19, 1841, 5 Stats. at Large, 440, and received his discharge. The land was exposed to sale to satisfy the judgment lien, and the appellant, after his discharge, purchased it. The court of appeals of Mississippi decided:--

1. That though the deed of mortgage contained no express covenant of warranty, the words 'grant, bargain and sell,' which were in the deed, under the law of that State, imported covenants of warranty of title, and against encumbrances, and for quiet enjoyment, as effectually as though such covenants had been expressly set out in the deed.

2. That, under the law of Mississippi, if there had been no discharge in bankruptcy, the appellant would be estopped by his covenants from setting up his after-acquired title to defeat the mortgage.

3. That the discharge in bankruptcy did not enable him to do so.

This last position is the only re examinable here; the decision by the state court, of all matters depending exclusively upon the law of the State, being conclusive, on a writ of error, under the 25th section of the judiciary act of 1789.

The question for our consideration is, what effect the discharge of a bankrupt has upon estoppels, arising by law from covenants of warranty contained in his deeds of conveyance of land.

To determine this, it is necessary to have in view the different modes of operation of such covenants. They are contracts, and an action lies for recovery of the damages sustained by their breach. At law, they run with the land; and if the covenantor subsequently acquire an outstanding paramount title, it enures by force of the covenant to him who claims under the deed of the covenantor. This rule is now established in the law of this country, and has been affirmed in numerous decisions in this and other courts. Many of them may be found collected in a note to 2 Smith's Leading Cases, 545, &c.

In equity, the covenantor is treated as estopped by his covenant to assert that any outstanding title existed inconsistent with what he undertook to sell and convey.

The argument on the part of the appellant is, that, under the 4th section of the bankrupt act, he was discharged from all debts, contracts, and other engagements provable under the act; that not only the debt secured by this mortgage, but the covenant of warranty itself, was provable under the act. And, consequently, the covenantor, being released from the covenant, it could no longer have the operation allowed to it by the courts of Mississippi.

It must be admitted, that if the covenantee or his assignee had released the covenant, it would be difficult to maintain that it could continue in existence for any purpose. But it must be considered, that whatever discharge has taken place in this case, is by force of a statute, which may have so qualified and limited its effect as still to leave the covenant in existence for one purpose, though not for others; and that the question, whether it has done so, can be determined only by examining the act, and ascertaining the will of the legislature in this particular.

The second section of the act contains that proviso: 'That nothing in this act contained shall be construed to annul, destroy, or impair any lawful rights of married women, or minors, or any liens, mortgages, or other securities on property, real or personal, which may be valid by the laws of the States respectively, and which are not inconsistent with the provisions of the second and fifth sections of this act.' There does not appear to have been anything in this mortgage inconsistent with those sections; and it is not denied that the mortgage itself, considered simply as a conveyance of the land, remained unaffected by the act.

It is therefore obvious, that though the bankrupt, personally, was released by the act, the debt due from the land continued undischarged. In this particular, beyond all doubt, the discharge by the act differs from a release by the creditor; since, if the latter had released the debtor, the mortgage would thereby have been satisfied, and the charge on the land destroyed.

The intention of the legislature to carry out this distinction between the personal liability of the debtor and the liability of the land, and to preserve the latter in full force, unaffected by the discharge of the debtor, is clearly declared by the act. The act says, in so many words, that a mortgage, valid by the law of the State, shall not be impaired by any thing in the act.

We think there is sufficient reason why this proviso should be so construed as completely to save the effect and operation of all estoppels running with the land and operating at law to pass the legal title, or in equity to conclude the grantor from asserting the existence of a title inconsistent with what he undertook to sell and convey. The purpose of the legislature to-afford complete and effectual protection to mortgage titles, against any thing which was to be done under the act, and the broad and strong terms in which this purpose is expressed, require us to say, that the debtor cannot derive from the act an enabling power to do or assert any thing which will impair a mortgage otherwise valid. Nor is there any incongruity with established principles, in holding that the personal discharge of the debtor does not free him from the estoppel.

If this obligation could rest solely upon a covenant, effectual in law to charge the grantor in a personal action, it would follow, that when such personal liability was released by the bankrupt act, the estoppel would naturally fall with it; and that an intention to preserve the estoppel ought to be clearly indicated, to induce the court to say it was not destroyed; but such estoppels do not depend on personal liability for damages. This is apparent, when we remember that estoppels bind, not only parties, but privies in blood and estate, though not personally liable on the covenants creating the estoppel. See Carver v. Jackson, 4 Pet. 85, 87; White v. Patten, 24 Pick. 324; Mark v. Willard, 13 New Hamp. R. 389; Baxter v. Bradbury, 20 Maine R. 260.

Indeed, it is the settled doctrine of this court, not only that no existing personal liability is necessary to work an estoppel, but that none need have existed at any time. In Van Renssalaer v. Kearney et al. 11 How. 322, it was held, after great consideration and a full examination of the authorities, that 'if a deed bear on its face evidence that the grantors intended to convey, and the grantee expected to become invested with, an estate of a particular description or quality, and that the bargain had proceeded upon that footing between the parties; then, although it may not contain any covenants of title, in the technical sense of the term, still, the legal operation and effect of the instrument will be as binding on the grantor and those claiming under him, in respect to the estate thus described, as if a formal covenant to that effect had been inserted; at least, so far as to estop them from ever afterwards denying that he was seized of the particular estate at the time of the conveyance.'

It is familiar law, also, which was applied in Carver v. Jackson, 4 Pet. 86, 88, that a mere recital of a fact in a deed is as effectual an estoppel as a covenant. There is no necessary connection, therefore, between the personal liability of the debtor on his covenant, and the estoppel which arises therefrom; and it is not an incongruity for the legislature to preserve the latter while they discharge the former.

Estoppels which run with the land and work thereon are not mere conclusions; they pass estates, and constitute titles; they are muniments of title, assuring it to the purchaser. Their operation is highly beneficial, tending to produce security of titles; and if a discharge under the bankrupt law were allowed to destroy this mode of assurance, it would in an important particular impair the operation of deeds containing it. This, by the express words of the bankrupt law, is prohibited.

In Stewart v. Anderson, 10 Alabama R. 504, the supreme court of Alabama had this precise question before them, and held that bankrupt estopped. A similar decision was made by the court of appeals of Maryland in reference to the effect of a discharge under the insolvent law of that State. Dorsey v. Gasaway, 2 H. and J. 411.

Our opinion is, that the decree of the high court of errors and appeals of Mississippi should be affirmed, with costs.

title: Bush v. Person/Opinion of the Court


text: Talk:Bush v. Person/Opinion of the Court


text:
Author:George William Kitchin

Works

 * A History of France
 * (tr.) A History of England Vol. VII by Ranke (1875)

title: Author:George William Kitchin


text:
Verden v. Coleman (59 U.S. 86)

THIS case was brought up from the supreme court of Indiana, by a writ of error issued under the 25th section of the judiciary act.

The case is explained in the opinion of the court.

It was argued by Mr. Gillett, for the plaintiff in error, no counsel appearing for Coleman.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Verden v. Coleman (59 U.S. 86)


text: Talk:Verden v. Coleman (59 U.S. 86)

title: Talk:Verden v. Coleman (59 U.S. 86)


text:
Verden v. Coleman (59 U.S. 86)/Opinion of the Court

The plaintiff filed his bill in the circuit court of Benton county, Indiana, sitting in chancery, to obtain a decree to cancel a mortgage and the mortgage note, and also to restrain, by injunction, the mortgagee from proceeding upon the power of sale contained in the mortgage until the final hearing, and from thence perpetually.

A temporary injunction was granted in vacation upon the usual conditions, which was dissolved, on the coming in of the answers upon the motion of the defendants, by the circuit court.

From the order dissolving the injunction there was an appeal to the supreme court of Indiana, where, after argument, the decree of the circuit court was affirmed. Upon this decree this writ of error is prosecuted.

This court has repeatedly decided that a decree upon a motion to dissolve an injunction in the course of a chancery cause, and where the bill is not finally disposed of, is not such a final decree as can be re examined in this court, under the terms of the 25th section of the judiciary act of the 24th September, 1789. McCollum v. Eager, 2 How. 61; Gibbons v. Ogden, 6 Wheat. 448.

The writ of error is dismissed.


text: Talk:Verden v. Coleman (59 U.S. 86)/Opinion of the Court


text:
Minter v. Crommelin

THIS case was brought up from the supreme court of Alabama, by a writ of error issued under the 25th section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Phillips, for the plaintiffs in error, and Mr. Bradley, for the defendant.

Mr. Justice CATRON delivered the opinion of the court.

title: Minter v. Crommelin


text: Talk:Minter v. Crommelin

title: Talk:Minter v. Crommelin


text:
Minter v. Crommelin/Opinion of the Court

The material facts of this case are as follows:--

On the 12th April, 1820, a certificate, No. 28, issued from the land-office of the United States to Tallasse Fixico, a friendly chief of the Creeks, appropriating to his use and occupancy fraction 24, T. 18, R. 18, east of Coosa River, in pursuance of the act of congress of 3d March, 1817, passed to carry into effect the treaty of Fort Jackson, of August 9, 1814, with the Creek Indians.

The reserve, Tallasse Fixico, was in possession of the land, and while in possession, in 1828, he sold it, for a valuable consideration, to George Taylor, to whom he gave a deed and the possession of the land at the time of sale.

The said Taylor, while in possession, in July, 1834, sold to C. Crommelin, the defendant in error, a portion of the land, about forty acres. The purchaser received deeds for the same at the time of sale, dated 12th and 14th July, 1834, and immediately, or a short time thereafter, entered into possession, and has continued in possession until the present time.

On the 4th June, 1839, Isham Bilberry and Samuel Lee obtained from the land-office at Cahawba, a pre emption certificate, No. 35,014, in their favor, under the pre emption act of 1834, for southeast fractional quarter of sec. 24, T. 18, R. 18, being a part of Tallasse Fixico's reservation, and embracing the land in possession of the defendant in error, and which is the land sued for, namely: the forty acres purchased by him from Taylor.

On the same day, namely: 4th June, 1839, Bilberry and Lee assigned the pre emption certificate to the plaintiffs in error, Hiram F. Saltmarsh, William T. Minter, and Ashley Parker, in whose favor a patent was subsequently issued.

The state court charged the jury 'that if they found the defendant held for a series of years, and continued to hold possession under deeds from Taylor, and that Taylor held possession under Tallasse Fixico, and that the plaintiffs were never in possession; that then, the defendant held under color of title, and was in a condition to contest the validity of the patent.

'2. That the certificate of possession which issued to Tallasse Fixico, was an appropriation of the land by the government of the United States to a particular purpose; and that if Tallasse Fixico, in 1828 or 1829, did abandon said land, it was not subject to entry under the pre emption laws. That the patent, under which the plaintiffs claimed title, was issued under the pre emption laws of the United States; that the land conveyed by said patent was not subject to entry under pre emption, and that, therefore, said patent had issued contrary to law, and was void.'

To this charge the plaintiffs excepted.

A verdict and judgment were rendered for the defendant, and the plaintiffs took up the cause to the supreme court of Alabama, where the judgment was affirmed, to bring up which judgment a writ of error was prosecuted out of this court.

The state court in effect pronounced the patent, under which the plaintiffs claimed title, to be void for want of authority in the officers of the United States to issue it, on the supposition that the land was reserved from sale when it was entered and granted. The presumption is, that the patent is valid, and passed the legal title; and, furthermore, it is prim a facie evidence of itself that all the incipient steps had been regularly taken before the title was perfected by the patent. It has been so held by this court in many instances, commencing with the case of Polk v. Wendell, 9 Cranch, 98, 99.

But if the executive officers had no authority to issue the patent because the land was not subject to entry and grant, then it is void, and the want of power may be proved by a defendant at law, 9 Cranch, 99. And the question here is, whether the defendant has proved the want of authority?

The 6th section of the act of 1817 provides that no land reserved to a Creek warrior should be offered for sale by the register of the land-office, unless specially directed by the secretary of the treasury. Both by the treaty and the act of congress, it was declared that if the Indian abandoned the reserved land, it became forfeited to the United States. The fact of abandonment, the secretary was authorized to decide, and if he did so find, he might then order the land to be sold as other public lands. The rule being that the patent is evidence that all previous steps had been regularly taken to justify making of the patent; and one of the necessary previous steps here being an order from the secretary to the register to offer the land for sale, because the warrior had abandoned it, we are bound to presume that the order was given. That such is the effect, as evidence, of the patent produced by the plaintiffs, was adjudged in the case of Bagnell v. Broderick, 13 Pet. 450, and is not open to controversy anywhere, and the state court was mistaken in holding otherwise.

The defendant being in possession, without any title from the United States, we deem it unnecessary to discuss the effect of the parol proof introduced in the state circuit court to defeat the patent.

It is therefore ordered that the judgment of the supreme court of Alabama, be reversed.


text: Talk:Minter v. Crommelin/Opinion of the Court


text:
McCready v. Wells

THIS was an appeal from the circuit court of the United States for the southern district of New York.

The case is stated in the opinion of the court.

The district court decreed that the collision was caused by the fault, want of precaution, and blamable conduct of the persons on board of and managing each of the vessels, and ordered the damages to be borne in equal moieties by them. Both parties appealed to the circuit court. Mr. Justice Nelson reversed the decree of the district court, and ordered that the libellants should recover against The Bay State the sum of $6,411, with interest from the 8th of October, 1849, and costs in both courts.

An appeal from this decree brought the case up to this court.

It was submitted, on printed arguments, by Mr. Lord, for the appellants, and Mr. Cutting, for the appellees.

The arguments of the counsel upon both sides consisted of comments upon the facts and evidence in the cause, which it would not be possible to explain without an abstract of the testimony.

Mr. Justice NELSON delivered the opinion of the court.

title: McCready v. Wells


text: Talk:McCready v. Wells

title: Talk:McCready v. Wells


text:
Page:Florence Earle Coates Mine and Thine 1904 022.jpg

 Rh An aureole whose brightness shall not fade:

Whose light, more worth than chrism, or seal, or vow,

Sceptre or throne, makes thee, indeed, a King!