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Lucas v. Brooks/Opinion of the Court

ERROR to the Circuit Court for the District of West Virginia; in which court P. C. Brooks brought ejectment against Robert Lucas for a farm. The case was thus:

The farm, in 1844, was owned by Edward Lucas, the father of this Robert Lucas. In the year mentioned one Towner recovered three judgments against Edward Lucas, which became liens on the farm. In 1848, Edward Lucas, being embarrassed, conveyed the farm with general warrantee to his son, the said Robert.

In 1858, Towner (Edward Lucas being now dead) filed a bill against his executor, against Robert Lucas, purchaser of the farm, and other heirs, to have satisfaction. Robert Lucas answered, admitting the liens and his purchase of the farm from his father; alleging that it was subject to other liens by judgments and deeds of trust older than these of Towner, and stating that to enable him to make the purchase he had borrowed $9000 from one R. D. Shepherd (whose niece Catharine he had married), and paid the same upon such prior liens; that these were assigned and now held by the said Shepherd as security for the loan, and should be paid before the liens of the complainant. The court, after various references and reports, ordered a sale of the farm, and it was sold; Shepherd, who in the meantime had become the owner of all the liens reported by the master as existing, becoming the purchaser and paying only the costs. Lucas and his wife, the niece, as already said, of Shepherd, were at this time in possession.

Shepherd thereupon, by writing, dated August 30th, 1859, agreed that Lucas (nothing being said about the wife) should continue on the land as his tenant until the 1st of April, 1861, at a rent of $600.

Shepherd died in November, 1865. His will, proved on the 12th of March following, ran thus:

'First. Having given property and money at different times to my family connections, the greater part of which stands charged on my books under the head of an account there opened and called 'Family Accounts,' I will and bequeath to each therein named whatever may have been so given and charged, or anything that I may hereafter give during my lifetime.

'Second. I will and bequeath to my daughter, Ellen Brooks, and to her two sons, Peter C. Brooks. . . and Shepherd Brooks. . . all my property, real, personal, and mixed,. . . giving one-third to each; and I direct that they may be put into possession of it without delay.

'Third. I appoint my said two grandsons, P. C. Brooks and S. Brooks, executors of this my will, giving them seizin of my entire estate.'

Accompanying this will, and of the same date with it, was a sealed letter of the testator to his daughter and two grandsons named, in which he says:

'I have this day made my will, in original and duplicate, one copy with this letter deposited with you,. . . but write this letter for your information and government so far only as you may see fit to carry out my present views and wishes. Circumstances frequently change, so as to make what was proper and expedient at one time the reverse at another time. I therefore rely on your doing what is right, keeping in view what you believe my wishes would be were I living.'

He mentions that a brother of his, named James, had died in 1837, with debts exceeding half a million of dollars; that he, the writer, had would up his estate, and after years of toil and anxiety had worked through and saved himself from ruin; that he had derived no benefit whatever from his said brother's estate, and had most strictly complied with all the requests which his brother had made as to the residue of it, after paying certain debts.

'I take very little interest in any of my family connections here, except Henry Shepherd and J. H. Shepherd, my two nephews; for all the others, of both sexes, I have done as much as I ever wish done for them, and more than some of them deserve. Should ever Henry or James require aid or assistance, give it to them in such way as you may deem best.'

And after some expression of regard for a young man, whom he requests his executors to befriend, and a request that a ship, which was then named Montgomery, should be called Alexander Hamilton, a great admiration for which statesman he avows, he adds:

'As to the plantation in this county, belonging to me and known as the Lucas farm, allow Catharine Lucas, my niece, to live upon it during her lifetime, on the condition that she pay you a small rent of three or four per cent. on its cost, which is $24,000, but don't sell it unless you get the cost. Then give my said niece $10,000 out of the proceeds, well secured on her children.'

Though the lease by Shepherd to Lucas, mentioned some distance back, was by its terms limited as there stated to the 1st of April, 1861, Lucas and his wife remained on the farm after that time, and were living on it when Shepherd died.

After that event, P. C. and S. Brooks, named by him, R. D. Shepherd, as his executors, though the will was not yet proved, wrote to Mrs. Lucas as follows:

'BOSTON, MASS., November 29th, 1865.

'DEAR MADAM: As executors of the estate of Mr. R. D. Shepherd, we address you regarding the disposition of the farm belonging to him, on which you live. We have two propositions to make to you, either of which you can accept. First, to occupy the place and pay therefor to us, or our agent, the yearly rent of $600, on the 1st of December of each year; the lease to begin January 1st, 1866. If the rent should be increased, or any other change made, you are to receive one year's notice of it in advance; you are to make all repairs and to pay all expenses on the property excepting taxes, not allowing it to deteriorate. Second, the place to be sold as soon as convenient; to be paid for one-half in cash, to come to us; the other half to remain on mortgage, which will be put in trust for your benefit during your life, and go to your children outright at your death. Meanwhile, until the sale, and as long as you occupy the place, we expect you to pay rent at the rate of $600 per annum, beginning January 1st, 1866.

'Yours, &c.,

'P. C. BROOKS,

'SHEPHERD BROOKS.'To this Mrs. Lucas replied:

'ELMWOOD, VA., December 11th, 1865.

'MESSRS. P. C. AND S. BROOKS.

'DEAR SIRS: Your letter of November 29th was received the 2d instant. I have concluded to accept of your first proposition, that is, rent this farm at $600 a year. As all property is rented here the 1st of April, I wish to make one request, which is to change the date. The rent to be paid the 1st of January, the lease to begin the 1st of April. My reason for making this request is, in case I should be required to leave the farm, I would then have time to find another home.

'Yours, &c.,

'CATHARINE LUCAS.'

Subsequently, the commencement of the lease was by mutual agreement fixed for the 1st of April, instead of the 1st of January. After this Mrs. Lucas continued to pay the stipulated rent until 1868, but the rent subsequent to that time was withheld. On the 19th of May, 1866, Mrs. Ellen Brooks and Shepherd Brooks, describing themselves as, with the said P. C. Brooks, equal and only devisees of R. D. Shepherd, conveyed to P. C. Brooks all their right, title, and interest in the land, to hold to him in fee simple; and on the 15th of February, 1869, he gave to Lucas and his wife notice that he terminated the lease on the 1st day of April, 1870, and required them to surrender possession of the land on that day. They declining to do this, P. C. Brooks brought an action of ejectment in the court below to recover it.

The defence was, that the possession and right of possession were in the defendant's wife, as her separate estate, after the expiration of Mr. Shepherd's lease to him; that is, after April 1st, 1861. For this purpose the defendant offered in evidence another lease from Shepherd to his wife for one year from April 1st, 1861, at the yearly rent of $900, and offered proof that this was followed by the lease of 1865, already mentioned. This evidence was received.

The defendant then offered the deposition of his wife to prove a part of his case, contending that it was admissible under the act of Congress of July 2d, 1864, which enacts that—

'In courts of the United States there shall be no exclusion of any witness. . . in civil actions because he is a party to, or interested in, the issue tried.'

The court excluded the deposition, and its action herein was the first error assigned.

He then offered in evidence certain depositions, which tended to prove the following facts, viz., that James Shepherd (the brother already referred to of R. D. Shepherd) died unmarried in 1837, leaving a large estate, and leaving also several brothers and sisters, one of the brothers being father of the defendant's wife; that R. D. Shepherd was in affluent circumstances and a large creditor of the decedent, whilst the other brothers and sisters were poor; that having great confidence in the honor and generosity of his brother R. D. Shepherd, and to secure his debts to him, James Shepherd devised all his estate to his rich brother R. D. Shepherd; that at the same time he left therewith a sealed letter, directed to this brother, directing that out of his estate, after the payment of his debts, his sisters should receive certain sums named, and his nephews and nieces the residue; that the estate (probably by reason of good management upon the part of R. D. Shepherd) yielded a considerable sum after paying the debts, and that therefore R. D. Shepherd paid the amounts to his sisters as directed in the sealed letter, and for a time aided certain of his brothers and nephews and nieces by distribution of the surplus, by virtue of the will and sealed letter aforesaid.

These depositions tended to prove also by admissions of R. D. Shepherd, that he bought the land in controversy for the defendant's wife, and as her separate property; that it was first purchased in 1848, from the father of the defendant, in the name of the defendant, but in equity for his wife; that when it was purchased in 1859, in the name of R. D. Shepherd, it was purchased for her benefit.

The plaintiff objected to the reception of this testimony, 'and the court sustained the objection so far as it tended to prove that Catharine Lucas derived title to the property in controversy under the will of R. D. Shepherd, and so far as it referred to conversations and other verbal statements held between said witnesses and R. D. Shepherd concerning his purposes as to said farm, to which ruling the defendant excepted.'

This action of the court was the ground of the defendant's second assignment of error.

The defendant, for the same purpose of showing the interest of his wife in the land, and the character of their occupancy, offered in evidence the letter already referred to, bearing even date with the will of R. D. Shepherd, written by him, and addressed to the devisees in his will, which the court permitted to be read in evidence only for the purpose of showing the intention of the executors in executing the lease to Catharine Lucas, which restriction of it the defendant assigned as a third error.

The defendant then, for the purpose last stated, and to show the recognition of the plaintiff that his wife had and controlled the possession of the farm, by the service of a notice upon her the year previous to the one given in evidence by the plaintiff, and a subsequent waiver thereof, offered in evidence a transcript of a record from the Circuit Court of Jefferson County, duly certified, in a proceeding in forcible detainer in the case of P. C. Brooks v. R. A. Lucas, which contained as the foundation of the suit a notice of the plaintiff upon the defendant's wife, dated, March 16th, 1867, and giving notice to her that she would be required to surrender possession of the premises and remove therefrom on the 1st of April, 1868. To this transcript the plaintiff objected, and the objection was sustained and the transcript excluded from the jury. The defendant excepted; this being his fourth assignment of error.

The defendant then offered in evidence a transcript of a distress warrant (issued upon the affidavit of W. A. Chapline, representing himself to be agent of P. C. Brooks in the matter), for rent sworn to be due for the year ending April 1st, 1871, a distress accordingly on the defendant's property, and a replevin and forthcoming bond by the defendant. The transcript was certified by the deputy clerk of the court, and was not under the court seal. It was, therefore, objected to and excluded as not properly certified. To this exclusion the defendant excepted, the same being made his fifth assignment of error.

The defendant then proved orally the same thing which the transcript if received would have shown, but his witness (Chapline himself) testified also that he had not been authorized by Brooks to issue the said distress warrant.

The defendant also gave in evidence (to show that the legal title was not in the plaintiff), two deeds of trust with the bonds secured by them, executed by Edward Lucas and his wife, whilst he was the owner of the land; one to R. H. Lee, dated in February, 1847, in trust for Peter Saurwien, the other to H. Berry, dated in 1843, to secure said bonds of him the said Edward Lucas, to Saurwien and Douglass, which had been assigned by them to Robert Lucas, and by him to J. H. Shepherd, trustee, for the sole and separate use of Catharine Lucas, wife of the said Robert.

The testimony being closed, the defendant asked for four separate instructions:

'1st. That the distress warrant sued out by Chapline, as agent of the plaintiff, for rent claimed as due for the year ending April, 1871, levied as it was on the property of the defendant, who had given a forthcoming bond, and being still pending, constituted a waiver of the notice to quit, and, therefore, that the defendant was entitled to a verdict.

'2d. That no expression of disapprobation by the plaintiff or his attorney of the act of the agent in issuing the distress warrant could defeat its operation as a waiver of the notice to quit, while the proceedings on the warrant were pending, and so long as the plaintiff held the forthcoming bond for the property distrained.

'3d. That if there was an outstanding deed of trust, made February 18th, 1847, conveying the legal title to the farm in question to R. H. Lee, in trust for Peter Saurwein, and if neither he nor the cestui que trust, nor any one entitled to receive payment of said debt so secured, were made parties to the suit of Towner v. Lucas, executor, and others, and if the said outstanding lien was of older date than the lien of Towner's judgment, and if the said first-mentioned lien was still subsisting and unpaid, they would find for the defendant.

'4th. That if the debts secured by the deeds of trust from Edward Lucas to R. H. Lee and H. Berry, were assigned to J. H. Shepherd as trustee for Catharine Lucas, and if the said R. D. Shepherd was not the owner of the said debts, at the time of the sale under the decree of the Circuit Court of Jefferson County, that proceeding could not defeat the title of the trustees to the deeds of trust to secure their payment, although they may have been audited and credited to him in that proceeding, unless the said J. H. Shepherd and Catharine Lucas were parties to that proceeding.'

The court, on its own motion, in lieu of instructions requested, instructed the jury thus:

'The will of R. D. Shepherd grants the land in controversy to the three devisees and legatees, Ellen Brooks, P. C. Brooks, and Shepherd Brooks, and the sealed letter accompanying said will in no wise alters or modifies it, and creates no new estate in any one, and it having been produced at the instance of the defendants, and by them offered in evidence, they are bound by its contents, and are not permitted to impeach the correctness of its statements.

'The letter of P. C. Brooks and Shepherd Brooks, addressed to Mrs. Lucas, the wife of the defendant in this cause, and her reply, and the subsequent agreement by letters changing the time of the commencement of the lease from the 1st of January to the 1st of April, as well as the time of the payment of the rents from the 1st day of January to the 1st of December, constitutes a lease of the premises to her by them, which she may take, but being a married woman, by operation of law, the lease becomes the absolute property of her husband, and thereby creates the relation of landlord and tenant between him and the lessors; and the fact that no particular time is mentioned in the contract of lease, when such relation should cease between the parties, taken in connection with the fact, that the plaintiffs reserved in the contract the right to increase the rent thereafter, or to make other changes in it, upon giving one year's notice, creates a tenancy from year to year, which may be terminated upon one year's notice as prescribed by said contract of lease.

'The relation of landlord and tenant, having been established, as set forth in the preceding instruction, the tenant is estopped from denying his landlord's title.

'And the fact that there were outstanding liens upon the said land, or that the defendant was in possession of the same at the time that the testator, R. D. Shepherd, became to purchaser under the decree of the Circuit Court of Jefferson County, at the suit of Towner v. Lucas, executor, et al., does not warrant the defendant, under the circumstances of this case, in disclaiming his landlord's title.

'Before the plaintiff can recover, the jury must be satisfied that the notice required by the contract of lease was given, and, if given by the plaintiff, and there was afterwards a distress warrant sued out to recover rent due and in arrear for the leased premises, in favor of the plaintiff by his agent Chapline, the presumption of law would be that it was sued out with the assent of the plaintiff, in which event he could not maintain this action, unless the evidence satisfies the jury, that the agent Chapline exceeded his authority in suing out such warrant, acting without the knowledge or consent of his principal, after his principal, the plaintiff, had, by notice, according to the contract of lease, terminated the tenancy, in which event he would be entitled to recover.'

'To which instructions the defendant excepted.'

The instructions were assigned as the seventh error.

Messrs. C. W. B. Allison and D. B. Lucas, for the plaintiff in error:

As to the first error. Was the testimony of the wife properly excluded? The testimony of the husband himself would have been competent. But the interest of the wife is the interest of the husband. Cases may indeed be well conceived where, in a suit by her husband, the wife's testimony should be excluded upon the ground of public policy, or of domestic peace. But this rule does not apply here, because the testimony was given with the assent of the husband, and in entire harmony with his wishes.

As to the second error. The restriction placed upon the evidence given by the depositions of the witnesses, was calculated to mislead the jury by reason of its indefiniteness. As a whole the testimony had a bearing upon the questions of possession, how, when, and from whom obtained, under what lease, if any; whether held by the defendant or his wife, as her separate property, whether by an equitable interest in the fee, with the right of possession, or as tenant for years, from year to year, at will or sufferance, or for life. Some of these questions were important to be ascertained by the jury, before the doctrine of estoppel could be applied. It was thus competent generally, and if any portions were incompetent, they should have been pointed out and excluded.

As to the third error. The testamentary letter of Shepherd, dated on the day that his will was, and found with it, should not have been restricted as it was, but was competent in connection with the other testimony, to go to the jury to enable them to determine the character of the occupancy of the defendant and his wife, and particularly whether she had a separate interest in the land. Analyze the letter of November 29th, 1865, by P. C. and S. Brooks to Mrs. Lucas, and then place in juxtaposition with it this testamentary letter.

The former letter (November 29th, 1865), begins thus:

'AS EXECUTORS of the estate of R. D. Shepherd, we address you.'

Now, does not this offer, made as executors, naturally cause us to recur to the will, whence all their representative authority was derived? But, upon recurring to the will, as probated, we find no such authority as this letter would indicate.

We must look beyond the formal will for any such power in the executors. We find it in the letter accompanying the will, and bearing even date. Here then, we have the key to the action of the executors; the authority under which, as executors, they were proceeding to dispose of the Lucas farm. Here is the trust, which the executors (who are also, with Ellen Brooks, the only devisees) accepted, in favor of Catharine Lucas, and which they proceeded to execute. It matters not, as far as the present question is concerned, whether this letter were mandatory or only advisory. The present question is: Did the executors intend, in their letter to Catharine Lucas of November 29th, 1865, to offer to her, substantially, the alternative propositions which the sealed letter sets out?

If they did, the court below erred in pronouncing the lease from year to year only.

But if we be wrong, still, was not this duty of construing and comparing separate papers, with a view to extract therefrom the true intent of the contracting parties, a labor for the jury, of which the court could not relieve them? Did not this duty, if it devolved upon the jury, correspond to a right on the part of the appellant, of which the court below erroneously deprived him?

As to the fourth error. The transcript of the record of proceedings in forcible detainer, commenced by the plaintiff in 1868, was proper evidence to show that the plaintiff, when he gave the notice therein shown, looked upon and treated the defendant's wife as the tenant in her own right, by giving the notice to her alone, and the abandonment of the suit when she paid the rent.

As to the fifth error. Was the transcript of the proceedings under the distress warrant properly excluded? We understand it to be settled, that in the courts of the United States no other certificate or authentication is required, than is required in the courts of the State in which the Federal court is sitting. If this transcript was excluded because the attestation was by the deputy, and not the clerk himself, or for want of the seal of the court, the ruling in either case was erroneous. Now, when the court erroneously excluded primary evidence, and drove us to prove by secondary and inferior testimony the same facts which we proposed so to prove by the record, we were substantially injured. We were driven to examine the plaintiff's agent, who stated that what he did was unauthorized. Were we not thus injured? If the record had been received the authority of the agent could not have been drawn in question, without the principal's first dismissing the proceeding.

As to the sixth error. 1. The first instruction asked by the defendant should have been given, because the jury from the evidence before them would and should have found the facts stated therein, that such facts did constitute a waiver, upon the part of the plaintiff, of the notice to quit which he had given in evidence.

2. So, too, the defendant's second instruction asked for was proper. The plaintiff should have repudiated the act of the agent by a positive act, in discharging the forthcoming bond and dismissing the proceeding.

3. The third and fourth instructions asked for should have been given. They seem to have been refused because the court was of the opinion that the defendant 'under the circumstances of the case,' that is, that by reason of some one or more of the leases was estopped denying the plaintiff's title and right of possession, and that the question of estoppel under the facts proved should not be left to the jury, but should be settled by the court. We treat of this matter further on.

As to the seventh error. I. The first instruction given by the court was calculated to mislead the jury.

Both the legal title and right of possession must be in the plaintiff to entitle him to recover in this action. By the second clause of the will it would seem to be vested in the daughter and grandchildren in equal proportions. But by the third it is vested in the executors as such. 'Seizin' (the term used in the third clause) means the legal title, or lawful right of possession. What else could the testator have meant by the sentence 'giving them seizin of my entire estate?'

Both clauses should be construed together and reconciled if possible. This can be done by giving to the executors the possession or right of possession and control for a time, and the legal title, and making the devisees the sole beneficiaries with the right to receive the possession from the executors. If the two clauses cannot be reconciled by reason of being in conflict, then, by the rule for construction of wills, the last clause must prevail. The plaintiff below recognized the right of the executors to rent, control, and dispose of the land under the will, by the correspondence with Mrs. Lucas and the lease in the name of the executors.

II. The court erred in its second instruction. The lease should be construed in connection with the other evidence, showing her former interest in the land derived from the testator, and thus construed. The lease to Mrs. Lucas was her separate estate and not the property of the husband by operation of law or otherwise. No particular phraseology is necessary to create a separate estate for a feme covert. There was enough here to show the purpose.

This second instruction is erroneous on several other grounds:

1. It removed and precluded from the consideration of the jury an important question of fact depending upon the interpretation of a series of documents, including the sealed letter, viz.: was this a lease from year to year, or for life?

2. It wrongly stated the law, in saying that 'a lease to the wife by operation of law becomes the absolute property of the husband.' There must be proof of his assent expressed or implied; and his property in it is only qualified, there being a right of survivorship in the wife.

Again, the lease from the executors did not create a tenancy from year to year.

If the rent should be increased, or any other change made, Mrs. Lucas was to have one year's notice of it in advance. It will be seen that no limit is made to the term, but it contemplates a continuance for years. Power is reserved to increase the rent after a year's notice, and also to make other changes after a like notice. Does the reservation of the power to make a change authorize a termination of the lease, as held by the court below?

III. The third instruction of the court is erroneous, because:

1. It touched on the province of the jury; it declared that the relation of landlord and tenant had been established [proved], and that the tenancy was established [proved], to be from year to year.

2. A person having entered under a lease is estopped from denying it. The rule is founded on the importance which the law attaches to good faith. But there was no such entry here. Lucas and wife were already in possession under another title. The lease was at best but an acknowledgment of tenancy by one previously in possession, and the court should have so qualified the application of the doctrine of estoppel as to have allowed the jury to determine whether the acknowledgment of tenancy was not procured by fraud or undue influence, or made by mistake, or through ignorance.

There was no deed, and hence no technical estoppel; and where possession is not derived from the lease, a mere acknowledgment of tenancy is no equitable estoppel. The alleged landlord has not been placed in any worse position, and the question is whether, all things considered, the supposed tenant, by such acknowledgment, ought to be precluded from asserting a superior title in himself.

IV. The fourth instruction was erroneous, because:

1. An outstanding unsatisfied mortgage is a good defence in an action of ejectment, when the defendant has an equitable title.

2. The court repeats the error of deciding upon the 'circumstances [facts] of this case,' which ought to have been left to the jury.

Mr. C. J. Faulkner, contra.

Mr. Justice STRONG delivered the opinion of the court.

Before proceeding to a consideration of the several errors assigned, it may be remarked that if the defendant was in possession under a lease from the plaintiff, or from any one to whose reversion the plaintiff had succeeded, he was not at liberty to controvert the title of the plaintiff or of that reversioner, while he remained in possession. In view of this undoubted principle it is impossible to see how he could have resisted a recovery, if in fact he was the tenant of the plaintiff, or if the plaintiff had succeeded to the title of R. D. Shepherd. But it is very plain that during the lease of 1859, he was Shepherd's tenant, and that after its expiration he continued a tenant from year to year under that lease; unless the one made in 1861, or that made in 1865, supplanted it. Both the later leases were made to his wife. As he did not dissent, they became her chattels real, and during the coverture they belonged to him. Necessarily, therefore, his possession was in law under those leases, or one of them, or it was as a tenant of Mr. Shepherd from year to year, in virtue of his holding over after the expiration of the lease of 1859. How then he could show, so long as he retained that possession, that Shepherd had no title, or that Shepherd held in trust for his wife, or that any one who had succeeded to Shepherd's title, or one, though not thus succeeding, to whom he had attorned by the payment of rent, had no title or held in trust for his wife, we are not informed, nor can we be. That was a defence which he was not at liberty to set up, even upon his own showing of the facts. That the plaintiff had succeeded to Shepherd's title is, we think, very certain. The will, as we have seen, devised and bequeathed to Ellen Brooks, the testator's daughter, and to her two sons, all his property, real, personal, and mixed, and directed that they should be put into possession of it without delay. If this stood alone, it could not be doubted that the devisees named took the entire estate of the testator. The third item of the will, however, it is insisted, gave the estate to the executors. Its language is: 'I constitute and appoint my two grandsons, Peter C. Brooks, the younger of that name, and Shepherd Brooks, executors of this my will, giving them seizin of my entire estate.' But this clause must be construed consistently, if possible, with the other provisions of the will, so as to give effect to all its parts. Hence, it is clear that the testator intended by the word 'seizin,' possession; and that he gave it to his executors for the purposes which he had in view when he constituted them executors. The will exhibits no reason why they should be invested with the title to the testator's real estate, and such an investiture is directly in conflict with the second item, which casts the title by apt words upon his daughter, the plaintiff, and Shepherd Brooks. Hence, it must be held that by force of the will and the deed from Mrs. Brooks and Shepherd Brooks, the plaintiff had succeeded to the reversion of Mr. Shepherd, and to all the right which his co-devisees ever had. His title, therefore, was unassailable by the defendant, and his right to the possession as against the defendant was unquestionable, if notice of the termination of the lease, and of his intention to resume possession, was duly given.

This view of the case makes the consideration of the specific errors assigned very easy. So far as they are aimed at showing that the defendant did not stand in the relation of a tenant of the plaintiff, or of one to whose reversion the plaintiff had succeeded, they are material, but unless that was shown, they can have no effect upon the judgment which has been obtained.

The first is, that the court refused to admit in evidence the deposition of Catharine Lucas, the wife of the defendant. That it is a rule of the common law, a wife cannot be received as a witness for or against her husband, except in suits between them, or in criminal cases where he is prosecuted for wrong done to her, is not controverted. But it is argued, because Congress has enacted that in civil actions in the courts of the United States there shall be no exclusion of any witness because he is a party to, or interested in the issue tried, the wife is competent to testify for her husband. Undoubtedly the act of Congress has cut up by the roots all objections to the competency of a witness on account of interest. But the objection to a wife's testifying on behalf of her husband, is not and never has been that she has any interest in the issue to which he is a party. It rests solely upon public policy. To that the statute has no application. Accordingly, though statutes similar to the act of Congress exist in many of the State, they have not been held to remove the objection to a wife's competency to testify for or against her husband. And in West Virginia it has been expressly enacted that a husband shall not be examined for or against his wife, nor a wife for or against her husband, except in an action or suit between husband and wife. Were there any doubt respecting the question, this statute would solve it, for the act of Congress of July 6th, 1862, declares that the laws of the State in which the court shall be held, shall be the rules of decision as to the competency of witnesses in the courts of the United States.

The second assignment of error is, that the court sustained the plaintiff's objections to certain other depositions offered by the defendant, so far as they tended to prove that Catharine Lucas obtained title to the property in controversy under the will of R. D. Shepherd, and so far as they referred to conversations of the witness with Mr. Shepherd concerning his purposes respecting the farm. The objection sustained by the court was to the subject-matter of the testimony, and it was sustained because it was inadmissible for the defendant to introduce evidence to impeach his landlord's title. There can be no doubt the ruling was correct. For the same reason the ruling complained of in the third assignment was unobjectionable. Indeed, it is difficult to perceive what possible bearing upon the case the letter of Mr. Shepherd to his daughter and grandsons could have. Certainly it contained nothing that tended in the slightest degree to support any defence the defendant was at liberty to set up.

Nor can we perceive that the record of the proceeding for a forcible detainer, commenced by the plaintiff in 1868, was pertinent in any degree to any matter in controversy in this case. It was, therefore, properly excluded. A judge well performs his duty when he guards the jury against having their attention diverted from the real issue by the introduction of immaterial evidence.

The fifth assignment is, that the court erred in excluding what is called a transcript of a distress warrant issued by Chapline, agent for the plaintiff, against the defendant, and also in excluding the forthcoming bond. They were offered apparently to show that the notice to quit on the 1st of April, 1870, had been waived by the plaintiff, but they were rejected by the court because not properly certified. Whether the court erred in this or not is of no importance, for the fact that such a distress warrant was issued the defendant was allowed to prove by other evidence, and he had the full benefit of such proof. There was not a fact stated in the transcript which did not otherwise appear, and the facts were not controverted. The error of the court, therefore, if there was an error, was perfectly harmless, and it would not justify directing a new trial.

The remaining assignments which require any notice all relate to the charge. The first instruction asked by the defendant and refused by the court was, in substance, that the distress warrant sued out by Chapline, as agent of the plaintiff, for rent claimed to be due for the year ending April, 1871, levied as it was on the property of the defendant, who had given a forthcoming bond, and being still pending, constituted a waiver of the notice to quit, and, therefore, that the defendant was entitled to a verdict. The prayer overlooked the fact, of which there was evidence, that Chapline had no authority from the plaintiff to issue the distress warrant, and that his act had been disapproved by the plaintiff's attorney. The second prayer was, in effect, that no expression of disapprobation by the plaintiff or his attorney of the act of the agent in issuing the distress warrant could defeat its operation as a waiver of the notice to quit, while the proceedings on the warrant were pending, and so long as the plaintiff held the forthcoming bond for the property distrained. This prayer assumes as a fact that of which there was no evidence. It assumes that the plaintiff held the forthcoming bond. But it is very manifest that the defendant was not entitled to have either of these instructions asked for by him given to the jury. It is true the notice to quit might have been waived, and doubtless should have been regarded as waived by the distress warrant if it had been issued by the plaintiff, or by his authority. But waiver is always in part a question of intent, and there could have been no intent to waive if the act claimed to have been a waiver was either unknown to the plaintiff, or unauthorized by him, or not ratified by him. That the distress warrant was unauthorized, and, indeed, disavowed, is a fact of which there was evidence, and no attempt was made to show that it had ever been ratified. The defendant has, therefore, no reason to complain that his prayer for the instruction mentioned was refused. The court did charge that notice to quit was necessary to entitle the plaintiff to recover, and that if notice was given, and afterwards a distress warrant was sued out to recover rent due and in arrear for the leased premises, the presumption of law would be that it was sued out with the assent of the plaintiff, in which event he could not maintain the action unless the evidence satisfied the jury that the agent, Chapline, exceeded his authority in suing out such warrant, acting without the knowledge and consent of his principal. More than this the defendant had no right to ask.

The third and fourth instructions asked for were also properly denied. They were in Keeping with the efforts made by the defendant throughout the trial to attack the title under which he had held as tenant. If not still retaining possession under the first lease made to him, he was in under a subsequent lease made to his wife, which he himself had given in evidence. It was not open to him, therefore, to show that some other person had the legal title, or a better title than that of the landlord.

It would be sufficient to say of the seventh assignment of error that it has been made in entire disregard of the rules of this court. It avers simply that the court below erred in giving the instructions which were given to the jury, on its own motion (that is, in the general charge), in lieu of the instructions asked for by the parties, but in what the error consisted, or in what part of the charge it is contained, is not specified. That under the twenty-first rule this is an insufficient assignment is very plain. Were it, however, made as directed by our rule it could not be sustained. We have already said that, under the will of R. D. Shepherd, his daughter and two sons took the legal estate in the lands devised by him. We might have added that the sealed letter accompanying the will was not testamentary, and that it in no respect created any estate, legal or equitable, in any one.

It has been conceded in the argument, as it should have been, the court properly ruled that the letter of P. C. Brooks and Shepherd Brooks, executors, to the defendant's wife, dated November 29th, 1865, with her reply to it, and the subsequent modification agreed upon, constituted a lease of the premises to her. But it is denied that the lease enured to the benefit of her husband, and brought him into the relation of a tenant under the lessors, because, as it is claimed, it was a lease for her separate use. This claim, however, is without any foundation in the contract. There is no word that looks to the exclusion of the husband. No particular phraseology, it is true, is necessary for the creation of a separate estate for a feme covert, but there must be something to show an intent to create it, and nothing of the kind appears in this case. The court, therefore, correctly charged the jury, in the absence of any proof of dissent by the defendant, that the lease became his property, and that in force of it he became the tenant of the lessors. That the lease created a tenancy from year to year is too plain to need argument.

There is nothing more in the record or in the assignments of error that requires notice. We fail to perceive anything of which the defendant below, now plaintiff in error, can justly complain, and the judgment is, therefore,

AFFIRMED.

title: Lucas v. Brooks/Opinion of the Court


text: Talk:Lucas v. Brooks/Opinion of the Court

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


text:
Thompson v. Whitman

ERROR to the Circuit Court for the Southern District of New York; the case being thus:

A statute of New Jersey, approved April 16th, 1846, and commonly known there as the Oyster Law, thus enacts:

'SECTION 7. It shall not be lawful for any person who is not at the time an actual inhabitant and resident of this State,. . . to rake or gather claims, oysters, or shell-fish,. . . in any of the rivers, bays, or waters of this State, on board of any. . . boat or other vessel; and every person who shall offend herein shall forfeit and pay $20;. . . and the said. . . boat or other vessel, used and employed in the commission of such offence, with all the clams, oysters, clam-rakes, tongs, tackle, furniture, and apparel, shall be forfeited, and the same seized, secured, and disposed of, in the manner prescribed in the ninth and tenth sections of this act.

'SECTION 9. It shall be the duty of all sheriffs. . . to seize and secure any such. . . boat or other vessel as aforesaid, and immediately thereupon give information thereof to two justices of the peace of the county where such seizure shall have been made, who are hereby empowered and required to meet at such time and place as they shall appoint for the trial thereof, and hear and determine the same; and in case the same shall be condemned, it shall be sold by the order and under the direction of the said justices, who, after deducting all legal costs and charges, shall pay one-half of the proceeds of said sale to the collector of the county in which such offence shall have been committed, and the other half to the person who shall have seized and prosecuted the same.'

This statute being in force, Whitman, a citizen of New York, sued Thompson, sheriff of Monmouth County, New Jersey, in the court below in an action of trespass, for taking and carrying away a certain sloop of his, named the Anna Whitman, her cargo, furniture, and apparel.

The declaration charged that on the 26th of September, 1862, the defendant, with force and arms, on the high seas, in the outward vicinity of the Narrows of the port of New York, and within the Southern District of New York, seized and took the said sloop, with her tackle, furniture, &c., the property of the plaintiff, and carried away and converted the same. The defendant pleaded not guilty, and a special plea in bar. The latter plea justified the trespass by setting up that the plaintiff, a resident of New York, on the day of seizure, was raking and gathering clams with said sloop in the waters of the State of New Jersey, to wit, within the limits of the county of Monmouth, contrary to a law of that State, and that by virtue of the said law the defendant, who was sheriff of said county, seized the sloop within the limits thereof, and informed against her before two justices of the peace of said county, by whom she was condemned and ordered to be sold. In answer to this plea the plaintiff took issue as to the place of seizure, denying that it was within the State of New Jersey, or the county of Monmouth, thus challenging the jurisdiction of the justices, as well as the right of the defendant to make the seizure. On the trial conflicting testimony was given upon this point, but the defendant produced a record of the proceedings before the justices, which stated the offence as having been committed, and the seizure as made, within the county of Monmouth, with a history of the proceedings to the condemnation and order of sale. The defendant, relying on the provision of the Constitution which says that—

'Full faith and credit shall be given in each State to the. . . judicial proceedings of every other State; and that Congress may by general laws prescribe the manner in which such. . . proceedings shall be proved, and the effect thereof:'

and on the act of Congress of May 26th, 1790, which, after prescribing a mode in which the records and judicial proceedings of the courts of any State shall be authenticated, enacts that—

'The said records and proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or may be taken:'

asserted that this record was conclusive both as to the jurisdiction of the court and the merits of the case, and that it was a bar to the action, and requested the court so to charge the jury. But the court refused so to charge, and charged that the said record was only prim a facie evidence of the facts therein stated, and threw upon the plaintiff the burden of proving the contrary. The defendant excepted, and the jury, under the direction of the court, found for the plaintiff generally, and, in answer to certain questions framed by the court, found specially, first, that the seizure was made within the State of New Jersey; secondly, that it was not made in the county of Monmouth; thirdly, that the plaintiff was not engaged on the day of the seizure in taking clams within the limits of the county of Monmouth. Judgment being rendered for the plaintiff, the case was brought here for review.

The chief error assigned was the charge of the court, abovementioned, that the record from New Jersey was only prim a facie evidence of the facts which it stated; though the counsel for the plaintiff in error also argued that if the record was not conclusive of the facts stated in it, and if the seizure was first made outside of the limits of Monmouth County, yet that confessedly the vessel was brought right into Monmouth County, so that the seizure, being continuous, might properly enough be held to have been made there; and that this was particularly true, if it was assumed, as it was on the other side, that the vessel, when first seized, though seized within the State, was not seized within the limits of any county.

''Mr. C. N. Black, for the plaintiff in error; Mr. R. Gilchrist, attorney-general of New Jersey, intervening and arguing in the same interest. Messrs. W. M. Evarts and J. L. Cadwalader, contra''.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Thompson v. Whitman


text: Talk:Thompson v. Whitman

title: Talk:Thompson v. Whitman


text:
Thompson v. Whitman/Opinion of the Court

The main question in the cause is, whether the record produced by the defendant was conclusive of the jurisdictional facts therein contained. It stated, with due particularity, sufficient facts to give the justices jurisdiction under the law of New Jersey. Could that statement be questioned collaterally in another action brought in another State? If it could be, the ruling of the court was substantially correct. If not, there was error. It is true that the court charged generally that the record was only prim a facie evidence of the facts stated therein; but as the jurisdictional question was the principal question at issue, and as the jury was required to find specially thereon, the charge may be regarded as having reference to the question of jurisdiction. And if upon that question it was correct, no injury was done to the defendant.

Without that provision of the Constitution of the United States which declares that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' and the act of Congress passed to carry it into effect, it is clear that the record in question would not be conclusive as to the facts necessary to give the justices of Monmouth County jurisdiction, whatever might be its effect in New Jersey. In any other State it would be regarded like any foreign judgment; and as to a foreign judgment it is perfectly well settled that the inquiry is always open, whether the court by which it was rendered had jurisdiction of the person or the thing. 'Upon principle,' says Chief Justice Marshall, 'it would seem that the operation of every judgment must depend on the power of the court to render that judgment; or, in other words, on its jurisdiction over the subject-matter which it has determined. In some cases, that jurisdiction unquestionably depends as well on the state of the thing as on the constitution of the court. If by any means whatever a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property. Upon principle, then, it would seem that, to a certain extent, the capacity of the court to act upon the thing condemned, arising from its being within, or without, their jurisdiction, as well as the constitution of the court, may be considered by that tribunal which is to decide on the effect of the sentence.'

The act of Congress above referred to, which was passed 26th of May, 1790, after providing for the mode of authenticating the acts, records, and judicial proceedings of the States, declares, 'and the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken.' It has been supposed that this act, in connection with the constitutional provision which it was intended to carry out, had the effect of rendering the judgments of each State equivalent to domestic judgments in every other State, or at least of giving to them in every other State the same effect, in all respects, which they have in the State where they are rendered. And the language of this court in Mills v. Duryee, seemed to give countenance to this idea. The court in that case held that the act gave to the judgments of each State the same conclusive effect, as records, in all the States, as they had at home; and that nil debet could not be pleaded to an action brought thereon in another State. This decision has never been departed from in relation to the general effect of such judgments where the questions raised were not questions of jurisdiction. But where the jurisdiction of the court which rendered the judgment has been assailed, quite a different view has prevailed. Justice Story, who pronounced the judgment in Mills v. Duryee, in his Commentary on the Constitution, after stating the general doctrine established by that case with regard to the conclusive effect of judgments of one State in every other State, adds: 'But this does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given, to pronounce it; or the right of the State itself to exercise authority over the person or the subject-matter. The Constitution did not mean to confer [upon the States] a new power or jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within their territory.' In the Commentary on the Conflict of Laws, substantially the same remarks are repeated, with this addition: 'It' (the Constitution) 'did not make the judgments of other States domestic judgments to all intents and purposes, but only gave a general validity, faith, and credit to them, as evidence. No execution can issue upon such judgments without a new suit in the tribunals of other States. And they enjoy not the right of priority or lien which they have in the State where they are pronounced, but that only which the lex fori gives to them by its own laws in their character of foreign judgments.' Many cases in the State courts are referred to by Justice Story in support of this view. Chancellor Kent expresses the same doctrine in nearly the same words, in a note to his Commentaries. 'The doctrine in Mills v. Duryee,' says he, 'is to be taken with the qualification that in all instances the jurisdiction of the court rendering the judgment may be inquired into, and the plea of nil debet will allow the defendant to show that the court had no jurisdiction over his person. It is only when the jurisdiction of the court in another State is not impeached, either as to the subject-matter or the person, that the record of the judgment is entitled to full faith and credit. The court must have had jurisdiction not only of the cause, but of the parties, and in that case the judgment is final and conclusive.' The learned commentator adds, however, this qualifying remark: 'A special plea in bar of a suit on a judgment in another State, to be valid, must deny, by positive averments, every fact which would go to show that the court in another State had jurisdiction of the person, or of the subject-matter.'

In the case of Hampton v. McConnel, this court reiterated the doctrine of Mills v. Duryee, that 'the judgment of a State court should have the same credit, validity, and effect in every other court of the United States which it had in the State courts where it was pronounced; and that whatever pleas would be good to a suit therein in such State, and none others, could be pleaded in any court in the United States.' But in the subsequent case of McElmoyle v. Cohen, the court explained that neither in Mills v. Duryee, nor in Hampton v. McConnel, was it intended to exclude pleas of avoidance and satisfaction, such as payment, statute of limitations, &c.; or pleas denying the jurisdiction of the court in which the judgment was given; and quoted, with approbation, the remark of Justice Story, that 'the Constitution did not mean to confer a new power of jurisdiction, but simply to regulate the effect of the acknowledged jurisdiction over persons and things within the State.'

The case of Landes v. Brant, has been quoted to show that a judgment cannot be attacked in a collateral proceeding. There a judgment relied on by the defendant was rendered in the Territory of Louisiana in 1808, and the objection to it was that no return appeared upon the summons, and the defendant was proved to have been absent in Mexico at the time; but the judgment commenced in the usual form, 'And now at this day come the parties aforesaid by their attorneys,' &c. The court pertinently remarked, that the defendant may have left behind counsel to defend suits brought against him in his absence, but that if the recital was false and the judgment voidable for want of notice, it should have been set aside by audita querela or motion in the usual way, and could not be impeached collaterally. Here it is evident the proof failed to show want of jurisdiction. The party assailing the judgment should have shown that the counsel who appeared were not employed by the defendant, according to the doctrine held in the cases of Shumway v. Stillman, Aldrich v. Kinney, and Price v. Ward. The remark of the court that the judgment could not be attacked in a collateral proceeding was unnecessary to the decision, and was, in effect, overruled by the subsequent cases of D'Arcy v. Ketchum and Webster v. ''Reid. D'Arcy v. Ketchum'' was an action in the Circuit Court of the United States for Louisiana, brought on a judgment rendered in New York under a local statute, against two defendants, only one of whom was served with process, the other being a resident of Louisiana. In that case it was held by this court that the judgment was void as to the defendant not served, and that the law of New York could not make it valid outside of that State; that the constitutional provision and act of Congress giving full faith, credit, and effect to the judgments of each State in every other State do not refer to judgments rendered by a court having no jurisdiction of the parties; that the mischief intended to be remedied was not only the inconvenience of retrying a cause which had once been fairly tried by a competent tribunal, but also the uncertainty and confusion that prevailed in England and this country as to the credit and effect which should be given to foreign judgments, some courts holding that they should be onclusive of the matters adjudged, and others that they should be regarded as only prim a facie binding. But this uncertainty and confusion related only to valid judgments; that is, to judgments rendered in a cause in which the court had jurisdiction of the parties and cause, or (as might have been added) in proceedings in rem, where the court had jurisdiction of the res. No effect was ever given by any court to a judgment rendered by a tribunal which had not such jurisdiction. 'The international law as it existed among the States in 1790,' say the court, 'was that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process or voluntarily made defence, because neither the legislative jurisdiction, nor that of courts of justice, had binding force. Subject to this established principle, Congress also legislated; and the question is, whether it was intended to overthrow this principle and to declare a new rule, which would bind the citizens of one State to the laws of another. There was no evil in this part of the existing law, and no remedy called for, and in our opinion Congress did not intend to overthrow the old rule by the enactment that such faith and credit should be given to records of judgments as they had in the States where made.'

In the subsequent case of Webster v. Reid, the plaintiff claimed, by virtue of a sale made under judgments in behalf of one Johnson and one Brigham against 'The Owners of Half-Breed Lands lying in Lee County,' Iowa Territory, in pursuance of a law of the Territory. The defendant offered to prove that no service had ever been made upon any person in the suits in which the judgments were rendered, and no notice by publication as required by the act. This court held that, as there was no service of process, the judgments were nullities. Perhaps it appeared on the face of the judgments in that case that no service was made; but the court held that the defendant was entitled to prove that no notice was given, and that none was published.

In Harris v. Hardeman et al., which was a writ of error to a judgment held void by the court for want of service of process on the defendant, the subject now under consideration was gone over by Mr. Justice Daniel at some length, and several cases in the State courts were cited and approved, which held that a judgment may be attacked in a collateral proceeding by showing that the court had no jurisdiction of the person, or, in proceedings in rem, no jurisdiction of the thing. Amongst other cases quoted were those of Borden v. Fitch, and Starbuck v. Murray; and from the latter the following remarks were quoted with apparent approval. 'But it is contended that if other matter may be pleaded by the defendant he is estopped from asserting anything against the allegation contained in the record. It imports perfect verity, it is said, and the parties to it cannot be heard to impeach it. It appears to me that this proposition assumes the very fact to be established, which is the only question in issue. For what purpose does the defendant question the jurisdiction of the court? Solely to show that its proceedings and judgment are void, and, therefore, the supposed record is, in truth, no record. . . . The plaintiffs, in effect, declare to the defendant,-the paper declared on is a record, because it says you appeared, and you appeared because the paper is a record. This is reasoning in a circle.'

The subject is adverted to in several subsequent cases in this court, and generally, if not universally, in terms implying acquiescence in the doctrine stated in D'Arcy v. Ketchum.

Thus, in Christmas v. Russell, where the court decided that fraud in obtaining a judgment in another State is a good ground of defence to an action on the judgment, it was distinctly stated, in the opinion, that such judgments are open to inquiry as to the jurisdiction of the court, and notice to the defendant. And in a number of cases, in which was questioned the jurisdiction of a court, whether of the same or another State, over the general subject-matter in which the particular case adjudicated was embraced, this court has maintained the same general language. Thus, in Elliott et al. v. Peirsol et al., it was held that the Circuit Court of the United States for the District of Kentucky might question the jurisdiction of a county court of that State to order a certificate of acknowledgment to be corrected; and for want of such jurisdiction to regard the order as void. Justice Trimble, delivering the opinion of this court in that case, said: 'Where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But, if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void.'

The same views were repeated in The United States v. Arredondo, Vorhees v. Bank of the United States, Wilcox v. Jackson, Shriver's Lessee v. Lynn, Hickey's Lessee v. Stewart, and Williamson v. Berry. In the last case the authorities are reviewed, and the court say: 'The jurisdiction of any court exercising authority over a subject may be inquired into in every other court when the proceedings in the former are relied upon and brought before the latter by a party claiming the benefit of such proceedings;' and 'the rule prevails whether the decree or judgment has been given in a court of admiralty, chancery, ecclesiastical court, or court of common law, or whether the point ruled has arisen under the laws of nations, the practice in chancery, or the municipal laws of States.'

But it must be admitted that no decision has ever been made on the precise point involved in the case before us, in which evidence was admitted to contradict the record as to jurisdictional facts asserted therein, and especially as to facts stated to have been passed upon by the court.

But if it is once conceded that the validity of a judgment may be attacked collaterally by evidence showing that the court had no jurisdiction, it is not perceived how any allegation contained in the record itself, however strongly made, can affect the right so to question it. The very object of the evidence is to invalidate the paper as a record. If that can be successfully done no statements contained therein have any force. If any such statements could be used to prevent inquiry, a slight form of words might always be adopted so as effectually to nullify the right of such inquiry, Recitals of this kind must be regarded like asseverations of good faith in a deed, which avail nothing if the instrument is shown to be fraudulent. The records of the domestic tribunals of England and some of the States, it is true, are held to import absolute verity as well in relation to jurisdictional as to other facts, in all collateral proceedings. Public policy and the dignity of the courts are supposed to require that no averment shall be admitted to contradict the record. But, as we have seen, that rule has no extra-territorial force.

It may be observed that no courts have more decidedly affirmed the doctrine that want of jurisdiction may be shown by proof to invalidate the judgments of the courts of other States, than have the courts of New Jersey. The subject was examined and the doctrine affirmed, after a careful review of the cases, in the case of Moulin v. Insurance Company, in 4 Zabriskie, and again in the same case in 1 Dutcher, and in Price v. Ward; and as lately as November, 1870, in the case of Mackay et al. v. Gordon et al. The judgment of Chief Justice Beasley in the last case is an able exposition of the law. It was a case similar to that of D'Arcy v. Ketchum, in 11 Howard, being a judgment rendered in New York under the statutes of that State, before referred to, against two persons, one of whom was not served with process. 'Every independent government,' says the chief justice, 'is at liberty to prescribe its own methods of judicial process, and to declare by what forms parties shall be brought before its tribunals. But, in the exercise of this power, no government, if it desires extra-territorial recognition of its acts, can violate those rights which are universally esteemed fundamental and essential to society. Thus a judgment by the court of a State against a citizen of such State, in his absence, and without any notice, express or implied, would, it is presumed, be regarded in every external jurisdiction as absolutely void and unenforceable. Such would certainly be the case if such judgment was so rendered against the citizen of a foreign State.'

On the whole, we think it clear that the jurisdiction of the court by which a judgment is rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provision of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself.

This is decisive of the case; for, according to the findings of the jury, the justices of Monmouth County could not have had any jurisdiction to condemn the sloop in question. It is true she was seized in the waters of New Jersey; but the express finding is, that the seizure was not made within the limits of the county of Monmouth, and that no clams were raked within the county on that day. The authority to make the seizure and to entertain cognizance thereof is given by the ninth section of the act, as follows:

'It shall be the duty of all sheriffs and constables, and may be lawful for any other person or persons, to seize and secure any such canoe, flat, scow, boat, or other vessel as aforesaid, and immediately thereupon give information thereof to two justices of the peace of the county where such seizure shall have been made, who are hereby empowered and required to meet at such time and place as they shall appoint for the trial thereof, and hear and determine the same; and in case the same shall be condemned, it shall be sold by the order of and under the direction of the said justices, who, after deducting all legal costs and charges, shall pay one-half of the proceeds of said sale to the collector of the county in which such offence shall have been committed, and the other half to the person who shall have seized and prosecuted the same.'

From this it appears that the seizure must be made in a county, and that the case can only be heard by justices of the county where it is made-'two justices of the peace of the county where such seizure shall have been made.' The seizure in this case as specially found by the jury, was not made in Monmouth County; but the justices who tried the case were justices of that county. Consequently the justices had no jurisdiction, and the record had no validity.

It is argued that the seizure was continuous in its character, and became a seizure in Monmouth County when the sloop was carried into that county. This position is untenable. Suppose the seizure had been made in Cumberland County, in Delaware Bay, could the sloop have been carried around to Monmouth County and there condemned, on the ground that the seizure was continuous, and became finally a seizure in Monmouth County? This would hardly be contended. But it is said that the seizure was made within the State, off the county of Monmouth, and not within the limits of any county; and, hence, that Monmouth County was the first county in which the seizure took place. If this had been true (as it undoubtedly was), and the jury had so found, still it would not have helped the case. The major proposition is not correct. A seizure is a single act, and not a continuous fact. Possession, which follows seizure, is continuous. It is the seizure which must be made within the county where the vessel is to be proceeded against and condemned. The case may have been a casus omissus in the law; it is certainly not included in it.

As this disposes of all the errors which have been assigned, the judgment must be

AFFIRMED.


text: Talk:Thompson v. Whitman/Opinion of the Court


text:
Tennessee and Alabama Central Railroad Company v. Orr

APPEAL from the District Court for the Middle District of Alabama.

Orr, a citizen of Mississippi, suing for himself and in behalf of all others, holders of bonds of the county of Limestone, in the State of Alabama (secured by a certain mortgage hereinafter specifically described and which the bill set forth), who might come in and contribute to the expenses of the suit, filed a bill in the court below against the said county and 'The Nashville and Decatur Railroad Company,' both corporations of Alabama.

The bill set forth that in the year 1853 a railroad company, under the name of 'The Tennessee and Alabama Central Railroad Company,' was incorporated by the legislature of Alabama for the purpose of making and working a railroad within the limits of Limestone County; a further purpose of the incorporation being, however, that the railroad thus incorporated might be connected and ultimately consolidated with railroads in Tennessee; that in 1855 the legislature of Alabama authorized the county of Limestone to subscribe $200,000 to the stock of the said company, and in payment thereof to issue and deliver to the company the bonds of the county to that amount; that the county did issue and deliver such bonds; that in 1858 the company was authorized by the legislature to sell the said bonds, and for the purpose of securing their redemption, to mortgage all its property and franchises; that on the 29th of July, 1858, the company did execute such mortgage, and sold and assigned the said bonds to various persons, and among others to the complainant to the amount of $10,000; that the mortgage, dated as just said, was made between the railroad company on the one part and James McDonald, James Sloss, Booth Jones, and twelve other persons, including the complainant, all named specifically in the mortgage (and in the recital of it given in the bill) and holders, all of them, of the bonds intended to be secured by the mortgage; that the mortgage, after reciting the debts due to each of the said persons, the amounts, manner in which the debt accrued, granted, bargained, and sold all the land which made the bed of the road and its appurtenances to the said James McDonald, James Sloss, Booth Jones, and the twelve others, including the complainant, as security to each person for the payment to each of the bonds held by him; that the complainant, now, at the time of filing his bill, remained the owner of about $6500 of them, of which both the interest and principal remained unpaid; that in 1866 and 1867 'The Tennessee and Alabama Central Railroad Company' was consolidated with order railroad companies, and that the consolidation became known as 'The Nashville and Decatur Railroad Company,' and that the property and assets of the former company passed into the hands of the latter; that the complainant presented his bonds for payment to the proper authorities of Limestone County, in 1866, and that payment was refused; and that 'The Nashville and Decatur Railroad Company,' though fully aware of the default of the county, neglected and refused to provide for the payment of the bonds, and that the rights and interests of the bondholders were greatly endangered. The prayer of the bill was for an account, for a decree requiring the company to pay the amount that should be found to be due to the complainant, for the foreclosure of the mortgage, and the sale of the mortgaged property.

The county of Limestone failed to appear, and a decree pro confesso was taken against it. 'The Nashville and Decatur Railroad Company' appeared, and demurred for want of proper parties and other causes. The court below overruled the demurrer, and considering, on certain pleas put in, that the case was with the complainant, decreed a sale of the road, &c., unless, within a time named, the company paid the amount due on the complainant's bonds.

On appeal here the question was whether the demurrer was rightfully overruled for want of proper parties.

Mr. R. T. Merrick, for the appellant; no opposing counsel.

Mr. Justice HUNT delivered the opinion of the court.


text: Talk:Tennessee and Alabama Central Railroad Company v. Orr


text:
Tennessee and Alabama Central Railroad Company v. Orr/Opinion of the Court

The principal question in the case, and the one upon which the decision is now placed, is whether there are the proper parties present in the suit?

It is a general rule in equity that all parties entitled to litigate the same questions are necessary parties. All persons having an interest, although remote, in the subject-matter of the bill must be made parties, or the bill must be so framed as to give them an opportunity to come in and be made parties. The principle that all must be made parties whose interests may be affected by the decree is only departed from where it becomes extremely difficult or inconvenient to enforce the rule.

The principle is also well settled that when it appears on the face of the bill that there will be a deficiency in the fund, and that there are other creditors or legatees who are entitled to a ratable distribution with the complainants, and who have a common interest with them, such creditors or legatees should be made parties to the bill, or the suit should be brought by the complainants in behalf of themselves and all others standing in a similar situation, and it should be so stated in the bill. The rule in the United States courts is thus expressed: 'That all persons who have any material interest in the subject of the litigation should be joined as parties, either as complainants or defendants.'

The frame of the mortgage now sought to be enforced differs from the ordinary trust-deed or mortgage by which the payment of railroad bonds is secured. A trustee is ordinarily named, to whom the security runs as mortgagee, and the instrument recites that the mortgage is made to him in trust to secure the bonds described to the holders thereof. Here the mortgage is made directly to the persons holding the bonds, who are named, and their several interests described.

The bill does not distinctly allege the insufficiency of the fund to pay all the debts secured by it. It does, however, allege that the county of Limestone, the maker of the bonds, has refused to pay them, that the railroad company neglects to make payment, and that the rights and interests of the bondholders are greatly endangered.

Upon two grounds, therefore, it would seem to be necessary that the other bondholders should be parties to this suit: 1st. The adequacy of the security of the mortgage for the payment of all the bonds purporting to be secured by it is quite doubtful. The fund is, to some extent, 'tabula in naufragio.' It is the interest of every bondholder to diminish the debt of every other bondholder. In so far as he succeeds in doing that, he adds to his own security. Each holder, therefore, should be present, both that he may defend his own claims and that he may attack the other claims should there be just occasion for it. If upon a fair adjustment of the amount of the debts there should be a deficiency in the security, real or apprehended, every one interested should have notice in advance of the time, place, and mode of sale, that he may make timely arrangements to secure a sale of the property at its full value.

2d. It is a rule of general application, both at law and in equity, that a suit upon a written instrument must be brought in the name of all who are formal parties to it, and who retain an interest in it. No reason is shown in this bill to take the case out of the rule. No reason is assigned why the fifteen persons named do not unite in the action. No allegation is made that they have been requested so to unite, and have refused. The general rule is applicable to this action.

For the cause set forth in the demurrer, to wit, a want of proper parties, the decree must be REVERSED, AND THE CAUSE REMANDED with directions to

DISMISS THE BILL WITHOUT PREJUDICE.


text: Talk:Tennessee and Alabama Central Railroad Company v. Orr/Opinion of the Court


text:
Glenn v. Johnson

APPEAL from the District Court for the Northern District of Georgia.

Glenn and another, assignees in bankruptcy of George Johnson, who, in 1868, in proceedings instituted on his own petition, had been declared a bankrupt by the District Court of Georgia, filed a bill in the court below against the said George, his wife, and a certain Flynn, trustee of the wife, to reach certain real property situated in the city of Atlanta, standing in the name of Flynn, as such trustee, and to subject it to the payment of his debts.

The court below dismissed the bill, and the assignees of the bankrupt took this appeal.

Messrs. E. N. Broyles and R. Arnold, for the appellants; no opposing counsel.

Mr. Justice FIELD stated the facts of the case, and delivered the opinion of the court, as follows:

title: Glenn v. Johnson


text: Talk:Glenn v. Johnson

title: Talk:Glenn v. Johnson


text:
Glenn v. Johnson/Opinion of the Court

It appears that in July, 1863, one Thomas S. Powell conveyed to the trustee the property in question, for the alleged consideration of four thousand dollars; and that subsequently, in 1867, buildings and other improvements were placed upon the property to the value of two thousand dollars. The deed recites that the consideration was paid by Mrs. Johnson, and declares that the property is conveyed to the trustee in trust for her sole and separate use, and is not to be liable for the debts or contracts of her husband.

The bill alleges, upon the belief of the complainants, that the consideration was paid, and the improvements were made, out of the funds of the husband, who, at the time the property was purchased, was greatly embarrassed by debts, and at the time the improvements were made was wholly insolvent. It, therefore, charges that the conveyance to the wife and the improvements upon the property were made in fraud of the creditors of the husband, and prays that the conveyance may be declared fraudulent, and the property decreed to be sold and the proceeds administered by the complainants under the provisions of the Bankrupt Act; or, if the conveyance be not thus declared fraudulent, that the property be sold and the proceeds, to the extent of the value of the improvements, be thus administered.

The husband, the wife, and the trustee separately answered the bill, and all averred, the husband and wife positively, and the trustee upon information and belief, that the consideration of the conveyance and the cost of the improvements were paid out of the earnings of the wife from her individual labor and business carried on with the consent of her husband. The answers are under oath, and their averments in this particular were subsequently sustained by the testimony of the parties as well as by the testimony of other persons.

The position of the complainants that this fact constitutes no defence to the suit, would be a sound one if the case were to be determined independently of the statute of Georgia. At common law, an agreement after marriage between husband and wife that the latter may carry on business on her own account and retain her earnings, is invalid as against his creditors, unless founded upon a valuable consideration; a voluntary agreement to that effect is only good as against him.

But the statute of Georgia comes to the aid of the wife and protects her separate earnings from his creditors. Section 1702, of the code of that State, whilst providing that all property given to the wife during the coverture, or acquired by her, shall vest in the husband, declares that 'any words in the gift or bequest indicating a wish for the personal enjoyment thereof by the wife, such as a gift to the wife by name, shall create a separate estate therein for her, and in no case shall the personal acquisitions of the wife be subject to the debts of the husband.'

The earnings of the wife are thus placed beyond the reach of his creditors and of course of his assignees in bankruptcy.

DECREE AFFIRMED.

title: Glenn v. Johnson/Opinion of the Court


text: Talk:Glenn v. Johnson/Opinion of the Court


text: New Jersey Steamboat Company v. The Collector


text: Talk:New Jersey Steamboat Company v. The Collector


text:
New Jersey Steamboat Company v. The Collector/Opinion of the Court

ERROR to the Circuit Court for the Southern District of New York.

The New Jersey Steamboat Company had a night-line of steamboats which ran between New York and Albany, and which paid tonnage duty in conformity with the laws of the United States. The boats were furnished with berths and state-rooms. But it was not obligatory on passengers going on the boats to take either. They might pay for a passage only, that is to say pay for the 'bare right' to be on the boat, while it was going from one place to the other, in which case they would have to sit up all night; or they might pay in addition to the passage-money a certain sum, in which case they had the privilege to occupy a berth or a state-room. The accounts of passage-money received were kept distinct from those of money received for berths or state-rooms.

In this state of things, the collector of the United States at New York, asserting that he was justified by the ninth section of an act of Congress of July 13th, 1866, hereinafter set forth, demanded from the company the sum of $7972.66, which he alleged to be a tax assessed at the rate of 2 1/2 per cent. on the company's 'gross receipts from passengers' during the summer of 1869.

For the transportation of passengers (passage-money),. $4831

For berths or state-rooms, ........ 3140


text: Talk:New Jersey Steamboat Company v. The Collector/Opinion of the Court