text:
Gordon v. Gilfoil/Opinion of the Court

In January, 1867, Patrick Gilfoil, of Madison Parish, La., being indebted to Gordon & Castillo, of New Orleans, in the sum of $4,500, or thereabouts, gave them his promissory notes therefor, payable on the 1st of January, 1868, and 1st of January, 1869, secured by a mortgage on his cotton plantation in the parish of Madison. The property was in fact community property, and Gilfoil's wife had died the year preceding this transaction, leaving minor son, James H. Gilfoil, as her only heir-at-law. The notes not being paid, Mary Cartwright Gordon, the holder thereof, in February, 1869, filed a petition in the District Court for the parish of Madison for an order of seizure and sale of the mortgaged premises, and executory process was issued accordingly, and an the 3d of July, 1869, the sheriff sold the property to Mrs. Gordon for the sum of $600, and executed to her a deed therefor; but no possession was delivered.

In January, 1872, Mrs. Gordon instituted a suit in the District Court of the parish against Patrick Gilfoil, to recover the land, and the rent thereof from the time of the sheriff's sale. This suit was known as No. 772.

To the petition in this suit Patrick Gilfoil filed an answer containing a general denial, and specially denying that the plaintiff had any good and valid title. By a supplemental answer, he particularized the cause of nullity of plaintiff's title to be, that the executory proceeding was in every respect illegal; that no service of notice of the order of seizure and sale, nor any notice of seizure, nor any appraisement, was legally made, nor any of the forms of law observed by the sheriff in making the sale; and that no due and valid advertisement was made.

Patrick Gilfoil died Oct. 2, 1872. Before his death, in May, 1872, his son, James H. Gilfoil, by petition intervened in the suit, claiming that the property was was community property, and that he was the legal owner of one undivided half thereof by inheritance from his deceased mother; and praying judgment accordingly.

In April, 1874, Mrs. Gorden filed an amended and supplemental petition, alleging the death of Patrick Gilfoil, and that James H. Gilfoil had possessed himself of the property, claiming to be the legitimate heir of Patrick, and refused to deliver possession thereof. Wherefore the petitioner prayed that James H. Gilfoil be made a party to the suit; and that petitioner recover of him judgment as prayed for in her original petition, and the rents since the death of Partick Gilfoil; and for general relief. She also filed an answer to James H. Gilfoil's petition of intervention.

James H. Gilfoil filed an answer to the supplemental petition, as well as to the original petition, denying all the allegations thereof, and specially denying any legal sale of the land. By a further answer he pleaded prescription of three and five years, and prescription generally; alleging that the debt was prescribed when Patrick Gilfoil acknowledged it.

The case having gone to trial in November, 1874, the District Court decided in favor of the plaintiff, Mrs. Gordon, as to one half of the property, and as to the other half, decided in favor of the defendant; but on appeal to the Supreme Court of Louisiana, the judgment in favor of the plaintiff was reversed, the court deciding that the sale by the sheriff under the executory process was void, because the sheriff at no time had the mortgaged property in his possession. The held that an actual corporal possession of property seized must take place in order to make a sheriff's sale valid, and to render a compliance with the law complete; that the sheriff must have the property in his own possession and under his own control, or in the possession and under the control of some person duly authorized by him. The judgment in favor of the defendant was affirmed, and judgment was given in his favor generally. The case is reported in 27 La. Ann. 265.

This judgment of the Supreme Court was rendered March 8, 1875.

Thereupon, on the 19th of October, 1876, the present suit was commenced in the Circuit Court of the United States, against James H. Gilfoil, charging him on the notes as universal heir of Patrick Gilfoil, and praying judgment for the amount of the debt, with mortgage lien and privilege out of the mortgaged premises.

The defendant pleaded as follows: '1. That the said petition discloses no cause of action against this respondent. 2. That this court is without jurisdiction, for the reason that said plaintiff, having elected to sue in the court of the State of Louisiana, the thirteenth district court, in and for the parish of Madison, and jurisdiction of this cause has already vested in the said State court. 3. That the obligations sued on are prescribed by the lapse of more than five years.'

The court, upon argument, ordered that the plea of prescription be referred to the merits, and that the plaintiff be allowed to amend her petition by setting up the facts upon which she relied to interrupt prescription.

This she did by setting up the order of seizure and sale; and she claimed that James H. Gilfoil was liable for the debt, because he, as heir of Patrick Gilfoil, took possession of his estate and property.

The defendant filed an answer, denying the supplemental petition generally, denying the plaintiff's ownership of the notes, and setting up the order of seizure and sale as a merger of the original debt; and further, that as said proceedings had never been discontinued, the Circuit Court was without jurisdiction.

By a supplemental and amended answer he set up his ownership in one undivided half of the mortgaged property as heir of his mother; and as to the other half he averred that, as administrator and sole beneficiary heir of his father (Patrick Gilfoil), he became possessor thereof as belonging to his father's succession; but denied that he had taken such possession as would make him liable personally for any debt or mortgage claim against the property, or for any of the rents and revenues thereof. He again set up the order of seizure and sale as a merger of the debt; and averred that the said executory proceedings were still pending in the District Court. He also set up and annexed to his answer the proceedings and judgment in the suit No. 772, by virtue of which he insisted that the matters in controversy in this suit had become res adjudicata; and the cause came on for trial upon the issues thus presented by the pleadings.

The proceedings on the order of seizure and sale, and in the suit No. 772 in the District Court and in the Supreme Court of Louisiana, as also the mortgage and sheriff's deed, were either admitted or proved. Certain evidence taken in the latter case, and certified with the other proceedings, was also admitted by stipulation of the parties. This was all the evidence adduced at the trial in the Circuit Court.

The evidence admitted by stipulation was to the effect, amongst other things, that James H. Gilfoil resided with his father on the property in question at the time of the latter's death, and still resided there in November, 1874, and had possession of the said property; that Patrick Gilfoil died Oct. 2, 1872; that Catharine his wife died April 13, 1866; that the defendant was her son and only heir; that he was fifteen years of age in 1867; but that he was emancipated before his intervention was filed in the suit No. 772 (being a minor).

The Circuit Court gave judgment for the defendant, but on what ground does not appear. The ground taken in this court by the appellee in support of the judgment is, first, the point of res judicata; and, secondly, the prescription of five years. The appellant attempts to controvert these grounds of defence by showing, as to the first, that the question presented in the present suit is not the same question which was decided between the parties in the suit No. 772, and that the order of seizure and sale is no merger of the original debt; as to the second, that the alleged prescription was interrupted and suspended by the order of seizure and sale, and the subsequent proceedings in reference thereto.

The first matter to be considered, therefore, is whether the question endeavored to be raised in this suit was or was not passed upon or necessarily involved in suit No. 772.

The object of the present suit is to charge the defendant, as universal heir of his father, Patrick Gilfoil, with the entire debt, on the ground that the defendant as such heir possessed himself of his father's interest in the plantation. Was this question passed upon or necessarily involved in suit No. 772? From the recital of the pleadings in that case it is apparent that the primary and main object was to maintain the plaintiff's title to, and to recover, the land itself under the sheriff's sale, made by virtue of executory process in 1869. The defence of Patrick Gilfoil, prior to his death, was that the sale was absolutely void by reason of non-compliance with the forms of law required in such cases. The defence of James H. Gilfoil, as intervener, was, as to one undivided half of the land, that it belonged to his mother by right of community, and was inherited by him from her; and as to the other undivided half, that the sheriff's sale was void for want of possession, and that the debt for which it was sold was prescribed. The decision of the Supreme Court was with the defendant on both points; namely, first that the defendant was owner of one undivided half of the land by virtue of his inheritance from his mother, who was decreed to have been the undivided half owner or partner in community with her husband; secondly, that the sheriff's sale was void for want of actual service and possession. From all that appears by the record, there was no adjudication on the question of defendant's liability as arising from his taking and keeping possession of one undivided half of the property as heir of his father, unless such adjudication is to be implied from the pleadings. A more particular examination of these is necessary to determine this matter.

The original petition simply claimed ownership of the property, alleged that Patrick Gilfoil was in unlawful possession of it as a trespasser, and prayed that the petitioner's title might be recognized, that she might have judgment for the property, and a judgment against Patrick Gilfoil for the rents and revenues. It was almost the exact equivalent of the common-law action of ejectment, or rather of a real action involving the question of title only.

After the intervention of James H. Gilfoil, and the death of Patrick, the plaintiff answered the intervener's claim by denying that he was the legal heir either of Patrick or his wife, and denying any right of community in the latter, alleging that the property was the separate property of Patrick; but if there was any community, alleging that the debt for which the property was sold was a community debt, and as such the property was liable for it, and was properly and legally sold to pay the same.

By her supplementary petition against James, the plaintiff alleged that he was then in possession of the property, and claimed to be the legitimate heir of Patrick, and refused to deliver the possession; and that if Patrick left any succession at his death, it was taken possession of by James without any process of law, and used for his own purposes, whereby he became an intermeddler, thereby rendering himself liable for all the debts of the succession, and especially personally bound for the rents and revenues of the property in question from the date of the unlawful possession thereof by Patrick. But the prayer was only that the petitioner might recover of James judgment as prayed for in the original petition, and the rents and revenues since the death of Patrick. The petition contained no prayer for a personal judgment against him; and the debt itself was not set up as a ground of claim or action, in either the original or supplemental petition.

It seems plain, therefore, that the character of the suit was consistently maintained throughout as a petitory suit for the property, and for an account of its rents and revenues. No judgment was sought by the plaintiff against the defendant for the debt. His supposed liability for the debts of the succession on account of possessing himself thereof without any process of law was only stated incidentally, by way of rebutting his pretension of being other than a mere trespasser on the property. His liability for the debt was not put in issue by the pleadings, and was not considered by the court. The question of the title alone was the burden of the action, and was all that was decided in the judgment.

We are of opinion, therefore, that the plea of res judicata is not maintained.

We are also of opinion that the order of seizure and sale effected no merger of the debt. That order was made upon the act of mortgage as an authentic instrument importing confession of judgment. Code of Practice, arts. 732, &c. The order was a mere award of executory process, and did not affect in the slightest degree the nature or dignity of the primary securities for the debt. If seizure and sale of mortgaged property do not result in full satisfaction of the debt, suit has to be brought on the primary security in order to recover the balance. Harrod v. Voorhies's Adm'x, 16 La. 254; Humphreys v. Brown, 19 La. Ann. 158.

The next question is, whether the plea of prescription has been sustained in this case. Five years is the regular time of prescription against bills of exchange and promissory notes payable to order or bearer. Civ. Code, art. 3540. And this prescription runs against minors and interdicted persons. Art. 3541. The last of the notes upon which the defendant is sought to be made liable matured on the 1st of January, 1869. The claim, therefore, became prescribed on the 1st of January. 1874, unless the prescription was interrupted by some lawful cause. A legal interruption takes place by a judicial demand made upon the debtor. The plaintiff alleges that prescription in this case was interrupted by service of notice of the order of seizure and sale upon Patrick Gilfoil, on the twenty-fifth day of March, 1869, and that such interruption continued at least until the death of Patrick Gilfoil, Oct. 2, 1872, because the plaintiff could at any time, after the writ had expired, or after the sale under it has been set aside, issue an alias writ without a new order. The plaintiff contends, in other words, that an order for seizure and sale, served on the debtor, is a judicial demand, the same as an ordinary suit; and that it continues in operation as such until it has been rendered effective by a valid sale. This position seems to be sustained by several decisions of the Supreme Court of Louisiana. Stanbrough v. McCall, 4 La. Ann. 322; Fortier v. Zimpel, 6 id. 53; Rhea v. Taylor, 8 id. 23; Walker v. Lee, 20 id. 192; Roupe v. Carradin, id. 244; Hebert v. Chastant, 22 id. 152; 23 id. 687. In Roupe v. Carradin (20 id. 244), the note matured in January, 1858, and an order of seizure and sale was made and served in June, 1858, a writ was issued and a levy was made, but no sale took place. In 1867 (nine years afterwards), a new writ was issued on which an injunction was obtained on two grounds: first, a claim of homestead; secondly, prescription. Both of these grounds were overruled. As to the latter, the court say: 'The plea of prescription cannot avail; it was interrupted by the order of seizure and sale, duly notified to the plaintiff, as we have recently decided in Walker v. Lee.'

Numerous authorities also show that the setting aside of a sale for irregularity does not affect the order of seizure and sale, but a new writ may issue upon it. In Citizens' Bank v. Dixey (21 id. 32), the court say: 'This is an appeal from an order of seizure and sale. It is well settled that on such an appeal the only question is, whether there was before the judge a quo sufficient evidence to authorize the fiat. The order cannot be set aside on appeal, on account of subsequent irregularities in the execution of it, as by not notifying the proper parties or otherwise. Dodd v. Crain and Another, 6 Rob. (La.) 60.' In Fortier v. Zimpel (6 La. Ann. 54), there were three successive writs issued upon the same order. The first was stayed by the plaintiff, and an alias issued. This was annulled, on the ground of being issued for too large a sum. Plaintiff, considering the original petition still in court, then applied for a pluries writ, which was granted. A sale made under this writ, though strenuously contested, was homologated and confirmed. In Riddel v. Ebinger (6 id. 407), the sale was sought to be annulled. The court, amongst other things, say: 'The writ under which the sale was made was an alias, and it is contended that the order of seizure was a judgment only so far as the original writ was concerned; that it expired when the writ was returned, and that no other writ could issue without a new order of court. This objection has so often been held unfounded by our predecessors and ourselves, that we deem it unnecessary to do more than to refer to some of the case in point.' The court then referred to Ursuline Nuns v. Depassau, 2 Mart. N. S. (La.) 646; Mader v. Fox, 15 La. 159; Harrod v. Voorhies, 16 id. 254; Fortier v. Zimpel, 6 La. Ann. 53. In Stanborough v. McCall (4 id. 327), the court explain the reason why proceedings on an order of seizure and sale interrupt the prescription of the personal action for the same debt. They say: 'The rule harmonizes with the theory of prescription, which has its basis in the presumption of renunciation on the part of him who neglects his rights, and which presumption cannot be entertained against a party who is struggling to collect a debt, and is not sui juris contemptor. The interruption, then, created by the institution of one species of action must also be considered as continuous, and as preserving the personal action while the hypothecary action is in course of prosecution.

These cases, with others that might be cited, seem fully to establish the position of the plaintiff, and we think that the position is clearly applicable to the present case. In 1869, soon after the debt became due, the plaintiff filed her petition for an order of seizure and sale. The order was granted and served on the debtor, then in possession of the mortgaged premises, and the property was sold. From that time to the debtor's death in October, 1872, and afterwards, until judgment was given against her in March, 1875, she was engaged in a continuous struggle in the courts to obtain the fruits of that order and sale. The sale was held to be void by the irregular proceedings of the sheriff; and according to the decisions of the State courts, her petition and the order made thereon were still in force, and, if she pleased, she could have applied for the issue of another writ thereon. It may be that it would have been necessary to have the petition and order amended; but that would not disaffirm the pendency of the proceedings or the jurisdiction of the court.

We think, therefore, that the proceeding for seizure and sale interrupted the prescription of the personal action on the notes; and that this interruption continued up to the time when the final judgment of the Supreme Court of Louisiana was rendered against the plaintiff. The present action was commenced about a year and a half afterwards; and therefore, in our judgment, the plea of prescription must fail.

It may be proper here also to observe, although the point was not pressed in the argument, that the exception to the jurisdiction of the Circuit Court is destitute of foundation. The suggestion was, that, as the proceedings in the order of seizure and sale were still pending in the District Court, the debt could not be prosecuted in the Circuit Court of the United States. But it has been frequently held that the pendency of a suit in a State court is no ground even for a plea in abatement to a suit upon the same matter in a Federal court. What effect the bringing of this suit, via ordinaria, may have had on the order of seizure and sale, it is not necessary to determine. It is possible that it superseded it. But the pendency of that proceeding, when the suit was commenced, cannot affect the validity of the proceedings in this suit, nor the jurisdiction of the court in respect thereof.

The only remaining question is, whether the defendant has rendered himself liable for the notes by taking possession of the plantation and receiving to his own use to the rents and revenues thereof. At the time of his father's death the defendant was only nineteen, or, at most, twenty years of age. Art. 977 of the Civil Code declares that 'it shall not be necessary for minor heirs to make any formal acceptance of a succession that may fall to them; but such acceptance shall be considered as made for them with benefit of inventory by operation of law, and shall in all respects have the force and effect of a formal acceptance.' Heirs having the benefit of inventory are called beneficial heirs, and are not personally liable for the debts of the succession. This shows that the defendant, though he took possession of his father's property, did not thereby make himself personally liable for the notes in suit, unless the fact that he was emancipated before his father's death, and while yet a minor, renders him so liable. Art. 370 of the Code declares that 'the minor who is emancipated has the full administration of his estate, and may pass all acts which are confined to such administration, grant leases, receive his revenues and moneys which may be due him, and give receipts for the same.' But art. 371 adds, that 'he cannot bind himself legally by promise or obligation for any sum exceeding the amount of one year of his revenue.' The position of the plaintiff is, that the defendant, by taking possession of his father's undivided half of the mortgaged property, made himself liable for the whole debt in suit. It seems to us that this would be in contravention of the spirit, if not the letter, of arts. 371 and 977 of the Code.

Besides, the defendant was owner of one undivided half of the property as heir of his mother; and he could not possess himself of his own property without, at the same time, possessing himself of the other half. Under these circumstances, considering his status as a minor at the time of his father's death, the sort of possession which he assumed ought not to be turned to his disadvantage as any evidence of an intention to accept his father's succession as universal heir.

The conclusion to which we have come is, that the plaintiff cannot have any personal decree against the defendant for the amount of the debt; but that she is entitled to a decree for the foreclosure and sale of one undivided half part of the plantation covered by the mortgage. The decree of the Circuit Court is reversed, and the cause remanded to that court, with directions to render a decree in accordance with this opinion.

Each party will be decreed to pay his and her own costs, both in this court and in the Circuit Court; and it is

So ordered.

title: Gordon v. Gilfoil/Opinion of the Court


text: Talk:Gordon v. Gilfoil/Opinion of the Court

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


text:
Burt v. Panjaud

ERROR to the Circuit Court of the United States for the Northern District of Florida.

The facts are stated in the opinion of the court.

Mr. H. Bisbee, Jr., for the plaintiff in error.

Mr. James M. Baker, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Burt v. Panjaud


text: Talk:Burt v. Panjaud

title: Talk:Burt v. Panjaud


text:
Burt v. Panjaud/Opinion of the Court

This was an action of ejectment brought in the Circuit Court of St. John's County, Florida, by Maria M. Panjaud, to recover the possession of two lots or parcels of land in the city of St. Augustine. The suit was subsequently removed to the Circuit Court of the United States. The defendant set up no title whatever to the lots, nor, as far as the record shows, did he even rely upon the Statute of Limitations, although he had been in possession of the demanded premises for several years before the commencement of the suit. Judgment was rendered against him, and he sued out this writ of error.

A bill of exceptions presents the errors we are called upon to examine.

It appears that, before the jury was sworn to try the case, one of the panel, Henry Holmes, was sworn on his voire dire, and was asked whether or not he had aided or abetted the late rebellion against the United States, when he was told by the presiding judge that it was optional with him whether he would answer the question or not; and said Holmes declined to answer. The defendant excepted to this ruling, and then moved that Holmes be excluded for cause, which the court overruled, and defendant excepted again.

It appears affirmatively that Holmes was not sworn as one of the jury, and no reason is given for it.

1. We are of opinion that, since Holmes did not sit on the jury, no harm was done to defendant. The object of both motions was to exclude him as one incompetent to sit. It is immaterial to the defendant how this was brought about. It is possible that if defendant had shown affirmatively that he was excluded by reason of his peremptory challenge, and that in doing so the exercise of his right of peremptory challenge had been abridged, the result might be otherwise. It is sufficient to say that the record does not show that he was on the jury, but in fact that he was not, or that in getting rid of him any right of defendant was abridged or lost.

2. But we are further of opinion that a juror is no more than a witness obliged to disclose on oath his guilt of any crime, or of any act which would disgrace him, in order to test his qualification as a juror. The question asked him, if answered in the affirmative, would have admitted his guilt of the crime of treason. Whether pardoned by a general amnesty or not pardoned, we think the crime was one which he could not be required to disclose in this manner. Nor would this ruling deprive the party of his right of challenge. Like a conviction for felony, or any other disqualifying circumstance, the challenger was at liberty to prove it by any other competent testimony.

He did not offer to do this, and as the juror's incompetency was not proved, the court was not bound to exclude him.

All the other exceptions relate to the insufficiency of plaintiff's title to recover, it being conceded that defendant showed none in himself.

It is true that plaintiff does not trace her title to any acknowledged source. But as to lot 4, she produces a deed from M. C. Mordecai and Thomas Kerr, dated April 30, 1845, conveying the lot to her; and she proves by a competent witness that there were two houses on this lot, and that she lived in one or both of them from 1845 to 1847, and that one Solonoa, as agent for plaintiff, returned this property for taxes and paid the taxes from 1857 to 1860, and that the two houses were occupied.

As regards the other lot of ground, no written evidence of title is proved, but the tax-collector states that the same Mr. Solonoa, professing to act for plaintiff, paid the taxes on this lot as on the other, and that witness leased this lot from him, professing to act as agent of plaintiff.

On this evidence the court instructed the jury in several forms, that if they believed the plaintiff had possession of the lots in suit at the times mentioned, that the presumption was that she retained possession by herself or tenants until ousted by defendant, and that her removal from the city of St. Augustine was not necessarily an abandonment of this possession; and if her possession had continued for seven years, it was sufficient to enable her to recover against a trespasser or one showing no right to enter.

We think there was sufficient evidence as to both lots of plaintiff's possession under claim of ownership. The deed from Mordecai and Kerr, with her actual residence on lot 4, any payment of taxes, was clearly sufficient to establish such possession. So, also, as regards the other lots, the witness who paid the rent was her tenant. The payment of the rent to a man who professed to act as her agent bound the tenant to her as such, and he could not have disputed her title. It was her possession. This was corroborated by the payment of taxes and the absence of any proof of abandonment or loss of possession prior to defendant's tortious entry. It was sufficient for the jury, in the absence of any pretence of right by defendant.

This principle is so well settled in the law of ejectment and trespass quare clausum fregit, as to need no citation of authority. It will be found laid down by Mr. Greenleaf in 2 Greenl. Evid., sect. 311, that either actual possession of the premises or receipt of rent is prima facie evidence of title in fee; also sects. 618, 618 a. See also Hutchison v. Perley, 4 Cal. 33; Nagle v. Massey, 9 id. 426.

There are no other assignments of error worthy of notice, and we see no error in the record.

Judgment affirmed.

MR. JUSTICE STRONG dissented, on the ground that the evidence of plaintiff's possession was not sufficient to raise the presumption of title.

title: Burt v. Panjaud/Opinion of the Court


text: Talk:Burt v. Panjaud/Opinion of the Court


text:
Atwood v. Weems

ERROR to the Circuit Court of the United States for the Northern District of Florida.

The facts are stated in the opinion of the court.

Mr. H. Bisbee, Jr., for the plaintiff in error.

Mr. James M. Baker, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Atwood v. Weems


text: Talk:Atwood v. Weems

title: Talk:Atwood v. Weems


text:
Atwood v. Weems/Opinion of the Court

This is an action of ejectment for a lot in St. Augustine, brought in the proper court of the State of Florida, and transferred into the Circuit Court of the United States for that district, where the plaintiff below recovered a judgment against the plaintiff in error, which we are called on to review. The questions to be decided are all raised by a bill of exceptions.

1. It appears 'that the defendants moved the court that the jurors of the panel be required to answer upon oath whether or not they had given aid and comfort to, or aided and abetted, the late rebellion against the government of the United States, within the true sense and meaning of sect. 820 of the Revised Statutes, for the purpose of exercising the right of challenging them, if they came within its provisions.' The court denied the motion, on the ground that said section was unconstitutional.

We decided in Burt v. Panjaud (supra, p. 180), from the same circuit, that a man cannot be compelled to answer this question when put to him separately in reference to the right of challenge for the disqualification prescribed by that section, and that to enable a party to avail himself of the right there given, he must prove by other evidence, if the proposed juror declines to give it, that he has been guilty of the offences which so disqualify him.

But sect. 821 authorizes such an oath to be tendered to the whole panel, at the instance of the district attorney or his representative. This, however, must be at the beginning of the term, and relates to service on the panel for the term. The right to tender the oath is discretionary with the attorney for the government, and belongs to no one else.

It is not a right, therefore, in a party to a civil suit to tender such oath in that suit. Sect. 821 does not require the panel, or any one on it, to take the oath or to take a general oath to answer questions touching his qualifications, but provides expressly for his declining to take the prescribed oath. This act of declining of itself disqualifies him as a member of the panel for that term. This right to decline to swear confirms what we have said in Burt v. Panjaud; namely, that it was not intended to compel the proposed juror to disclose on oath his own guilt. Since, therefore, the defendant had no right to challenge the entire panel, as the district attorney might have done at the beginning of the term, nor to require each member of it to testify as to his guilt or innocence of treason, and since he offered no evidence that any one of them was so disqualified, the court was right in overruling his motion.

The judge's declaration of opinion that the law was unconstitutional did not make his action erroneous when it was right on other grounds.

2. The next question arises out of the construction of the will of Francis M. Weems, under which plaintiffs claimed title.

The will is in the record, and is dated Sept. 25, 1865, and conveys a lot in St. Augustine, three notes due from J. H. Meyers for $500, each given for the purchase of a lot in St. Augustine, and all his other property, to his wife and three sons, who are the plaintiffs. A written agreement, made in 1860 by Francis M. Weems, for the sale of this lot to J. H. Meyers, is offered in evidence, with proof that Meyers had taken possession under it. The court was asked to instruct the jury that the will did not convey the title to the lot, but only the notes of Meyers; and that, if it was designed to convey the title, it was void, by reason of the adverse possession of defendant. The court refused to do this, and said that the failure to pay the notes gave to the testator, Weems, a right of entry which passed by the will.

It is clear that the contract with Meyers left the legal title in Weems. This legal title passed by the will as well as the notes; and though it may have been the desire of the testator to recognize the contract for the sale, it was necessary, to enable the devisees and the executor to enforce the collection of the notes, that the title should be in them also. They could then either tender a deed and demand payment, or assert their right of entry for failure of the purchaser to pay.

It is not necessary to decide here whether by the common law a testator having the legal title and right of entry of land in the adverse possession of another could make a valid devise of the title, or whether, if that be the common law, it was the law of Florida; for it appears both by the will itself and by other evidence in the record that the plaintiffs are heirs as well as devisees of Francis M. Weems, and if the will did not convey the title, it was theirs by inheritance.

3. Defendants produced in evidence a certificate of sale of this lot for taxes made by commissioners appointed under the act of June 5, 1862, for the collection of direct taxes in insurrectionary districts within the United States, to Adolph Mayer, and an assignment from Mayer to Anna M. Atwood, one of the defendants, and possession under that certificate. In avoidance of this certificate, plaintiffs introduced evidence tending to prove that the sale was not advertised as long as the law required, and also that before the sale their testator offered to pay the taxes and costs, which the commissioners refused to receive.

The evidence on this last point, which is without contradiction, is that the commissioners had determined that no taxes could be lawfully paid, after the advertisement of the sale, by any one else but the owner of the property; and that under this view of the matter the clerk of the board of commissioners, who had charge of the office at St. Augustine, twice peremptorily refused to receive the tax due from Weems on this lot.

One offer to pay was made by Amos Corbitt, who was in possession of the lot under J. H. Meyers, the purchaser from Weems, and the other by Christoval Bravo, an agent authorized by Weems to do so. To Corbitt the clerk said he would take the money from no one but the owner, and he might as well talk of paying tax for Jeff. Davis.

In Bennett v. Hunter (9 Wall. 326) and Tacey v. Irwin (18 id. 549) we decided this very question. In the former case, the tax was offered by a tenant of the owner and refused, and we held the sale void; and further, that said payment could be made by any friend or agent of the owner, whose act he recognized. The case of Tacey v. Irwin went further, and held that neither payment nor actual tender was indispensable, but that a refusal to receive the taxes rendered a manual tender unnecessary. If the party offered to pay, was ready to pay, and was told it would not be accepted, it defeated the sale as much as payment.

Some attempt is made to show that Dunham, the clerk, to whom Corbitt and Bravo applied, was not authorized to receive taxes, and that they could only have been lawfully paid or tendered to the commissioners in person at Fernandina.

But it appears by the testimony of the commissioners themselves that they had an office at St. Augustine as well as at Fernandina. That Dunham, their clerk at the former place, was authorized to receive, and did receive, the taxes which were payable there, and that all the money received for taxes at that place was paid to him. Of their right to authorize him to act for them in the receipt of taxes we have no doubt, and that his refusal to receive these taxes, which was under instructions from them, was the same as if they had done it in person.

The sale, therefore, was void. Payment of the taxes is one of the matters which, by the express terms of sect. 7 of the amendatory act of 1862, may be shown to avoid the certificate; and in the cases cited we have held that an offer to pay, and refusal to receive, had the same effect. The error of the judge concerning the length of the advertisement of the sale, which is not one of the matters that will avoid the certificate under that section, was immaterial, as it was clearly void, for the reason we have just stated.

We see no error in the judgment, and it is, therefore,

Affirmed.

title: Atwood v. Weems/Opinion of the Court


text: Talk:Atwood v. Weems/Opinion of the Court


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Ketchum v. Buckley

ERROR to the Supreme Court of the State of Alabama.

In accordance with a special statute of Alabama, authorizing the appointment of a general administrator and general guardian for Mobile County, and for other purposes, approved Dec. 14, 1859, Wesley W. McGuire having been duly appointed to that office for the term of four years, he, March 7, 1864, made and delivered to the probate judge of the county his bond, in the penal sum of $150,000, conditioned according to law, with Ketchum and others as his sureties thereon. Letters of administration were granted to him Sept. 21, 1865, upon the estate of William Buckley, deceased, by the Probate Court of said county, by virtue whereof he administered upon the estate. In May, 1869, in answer to a citation served upon him at the instance of the heirs of Buckley, he made a final settlement of his administration of the estate, and decrees were entered against him for the sums due to each of them respectively. Executions were issued on the decrees, and returned 'no property found.' George W. Buckley, one of said heirs, thereupon brought suit in the Circuit Court of Mobile County for the sum due to him by said decree, alleging that for the devastavit of the assets of the deceased, committed by the said McGuire, he and the other defendants, his sureties, were liable on the bond.

McGuire died after the commencement of this suit. His sureties set up that at the time of his appointment Alabama, as one of the so-called Confederate States, was at open war with the United States, but that before June 20, 1865, the Confederate government was subdued, the insurrectionary government of the State overthrown, and her entire people under martial law; that the President, in his proclamation of June 21, 1865 (13 Stat. 767), declared that the rebellion had 'deprived the people of the State of Alabama of all civil government;' that he appointed Lewis E. Parsons governor, and authorized him to organize civil government in the State; that Parsons, in pursuance of the proclamation, and by virtue of the authority thereby conferred, called a convention of the people to be elected as therein prescribed to meet at Montgomery, to inaugurate civil government in the State; that he retained in office by name all justices of the peace and certain other officers, but declared that sheriffs and judges of the Probate Court were only retained until others should be appointed upon application of the people of the respective counties, but he authorized them to continue to discharge the duties of their respective offices upon taking the oath of fidelity to the United States; that George W. Bond had been elected probate judge of that county in May, 1861, for the term of six years, and was in office when the insurrectionary State government was overthrown; that said Parsons appointed said Bond to the office of probate judge; that the office of said McGuire as general administrator and general guardian had, by reason of the premises, ceased before the letters of administration were granted to him on the estate of said Buckley; that he was not named in the proclamation as one of the officers retained; that the grant of the letters to him was therefore void; and that his sureties were not liable for his administration of said estate.

The Circuit Court held, on demurrer, the defence to be insufficient to bar the suit. Judgment was rendered for the plaintiff, and it having been affirmed by the Supreme Court, the defendants sued out this writ of error.

Mr. Thomas J. Price, for the defendant in error, moved to dismiss the writ for want of jurisdiction, and to affirm the judgment below.

Mr. Philip Phillips and Mr. E. S. Dargan, contra.

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

title: Ketchum v. Buckley


text: Talk:Ketchum v. Buckley

title: Talk:Ketchum v. Buckley


text:
Ketchum v. Buckley/Opinion of the Court

We are not willing to hear an argument on the only possible Federal question presented by this case. It is now settled law in this court that during the late civil war 'the same general form of government, the same general law for the administration of justice and the protection of private rights, which had existed in the States prior to the rebellion, remained during its continuance and afterwards. As far as the acts of the States did not impair or tend to impair the supremacy of the national authority, or the just rights of the citizens, under the Constitution, they are in general to be treated as valid and binding.' Williams v. Bruffy, 96 U.S. 176; Horn v. Lockhart et al., 17 Wall. 570; Sprott v. United States, 20 id. 459; Texas v. White, 7 id. 700. The appointment by the President of a military governor for the State at the close of hostilities did not of itself change the general laws then in force for the settlement of the estates of deceased persons, and did not remove from office those who were at the time charged by law with public duties in that behalf. It is not alleged that the governor after his appointment undertook by any positive act to remove McGuire from the position he occupied as general administrator, or that McGuire himself at any time ceased to perform the duties of his office by reason of what was done by the President or others towards the restoration of the State to its political rights under the Constitution of the United States. From all that appears in the record, he continued to act during the whole of his term as general administrator of the county, notwithstanding the changes that were going on in the other departments of the State government. Under these circumstances, it is so clear that the judgment of the court below was right, that we grant the motion to affirm.

title: Ketchum v. Buckley/Opinion of the Court


text: Talk:Ketchum v. Buckley/Opinion of the Court


text:
Express Company v. Railroad Company

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

This is a bill in equity, filed June 18, 1875, by the Southern Express Company, a corporation of Georgia, against the Western North Carolina Railroad Company, a corporation of North Carolina, W. A. Smith, and Henry Clews, for the specific performance of a contract entered into Dec. 2, 1865, between the railroad company and the complainant.

The bill alleges that the railroad company was organized for the purpose of constructing a railroad from Salisbury, North Carolina, to a point on the Tennessee line; that it completed that portion of its line between Salisbury and Morganton, and put it in running order; that the road-bed, rolling-stock, & c., became dilapidated during the war, and that the company in 1865 was without the means to repair the road and make it safe for the transportation of passengers and freight; that the company, having been unsuccessful elsewhere, applied to the complainant for a loan or advance of $20,000; that the complainant having agreed to loan or advance that sum in consideration of securing the exclusive privilege of transporting freights over said road as far as Morganton, and of certain other advantages, entered, with the advice and consent of the stockholders of the railroad company, into the following contract with that company:--

'This indenture of agreement, made and entered into this second day of December, A. D. eighteen hundred and sixty-five, between the Western North Carolina Railroad Company, as party of the first part, and the Southern Express Company, as party of the second part, witnesseth as follows:--

'Whereas the party of the second part has agreed to loan and advance to the party of the first part the sum of twenty thousand ($20,000) dollars upon the notes of said railroad company, bearing interest at the rate of six per cent per annum, which sum is to be expended in repairs and equipments for said road. And whereas the party of the first part is desirous of securing the services of an efficient and responsible agent for the transaction of all of the express business over its road, and is willing to provide the requisite facilities for the proper transaction of said express business in the manner and upon the terms hereinafter specified:

'Now, therefore, in consideration of said loan and advance, and the rents, covenants, and agreements hereinafter made and provided, said party of the first part hereby agrees and binds itself to grant to the said party of the second part the necessary privileges and requisite facilities for the transaction of all the express business over the entire length of their road, extending from Salisbury to Morganton, in North Carolina, and furnish such facilities by all its passenger trains running each way over its road as may be necessary to forward without delay all the express matter that may be offered by said party of the second part, and to do all in its power to promote the convenience of said party of the second part in the transaction of its express business, both at way and terminal stations.

'Said party of the second part agrees to load and unload said express matter by its own agents, at its own proper costs and charges, and save harmless said party of the first part against all claims for loss and damage to the express matter of the party of the second part, except that which occurs from the negligence and carelessness of said party of the first part of its agents.

'The said party of the first part agrees to carry free of charge the messengers in charge of express matter and the officers and agents of the said party of the second part passing over the road upon express business. The said party of the second part agrees to pay to the said party of the first part fifty cents per hundred pounds for all express matter carried over the road. An account of the weights of all express matter shall be taken by said party of the first part whenever they shall see fit to do so, and delivered to the agent of the party of the first part, weekly or monthly, as may be desired.

'The accounts for transportation to be made up monthly, and the sum found to be due to said railroad company for transportation, at the rate hereinafter specified, shall be applied monthly toward the payment of said twenty thousand ($20,000) dollars, until the whole sum, with interest, is paid, after which payments for transportation shall be made by said party of the second part monthly in cash.

'This contract shall remain in force for the full term of one year, from the first day of January, eighteen hundred and sixty-six. If the said sum of twenty thousand ($20,000) dollars, with interest thereon, shall not have been repaid to the said second party at the expiration of said one year, this contract shall continue in force for a further period, and until the whole of said twenty thousand ($20,000) dollars, with interest thereon, shall have been repaid. And the said party of the first part hereby covenants and agrees that it will not furnish express privileges over said road to any other parties during the existence of this contract on any more favorable terms than those herein made with the said party of the second part, both as to rate of transportation paid, advance payments, and total amount paid per annum. It is mutually covenanted and agreed by the parties hereto that any other contracts that may now exist, whether verbal or written, for express service between the parties hereto, shall terminate and cease on the thirty-first day of December, eighteen hundred and sixty-five, at which time this contract shall take effect.

'In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.

'TOD R. CALDWELL,

'Pres't W. N. C. R. R. Co.

'H. B. PLANT,

'Pres't Southern Express Company.'

The bill then alleges that the $20,000 was paid in compliance with the contract, and that shortly thereafter the complainant entered upon the road, transported freight according to the terms of the contract, kept regular accounts and exhibited them to the company, which were always approved, and it continued to act under said contract until July, 1873; that in 1870 the railroad company conveyed to Tod R. Caldwell and Henry Clews, as joint tenants, and to the survivor of each,-the former of whom has since deceased, all its real and personal property, including its franchises, in trust, to secure a large number of its bonds then about to be issued; that $1,400,000 of said bonds were sold or hypothecated, and came into the hands of persons unknown to the complainant, but for much less than their value and not by a bona fide sale; that, notwithstanding, the alleged creditors of the company instituted foreclosure proceedings in the Circuit Court of the United States for the Western District of North Carolina, and in 1873 obtained a decree ordering the sale of all the property of said company; that the defendant, Smith, having in that suit been appointed receiver of the company, forbade the complainant, in July, 1873, from further using the cars of the company, unless upon conditions whereby said contract was virtually surrendered or ignored; that thereupon the complainant was compelled to abandon said railroad, although the money so loaned, with a portion of the interest thereon, is still due and unpaid. It then alleges that the suit is brought with the consent of said court, and with the privilege of making such parties defendant as might be deemed necessary for that purpose; that the trustees in the mortgage to secure the bonds of the railroad company had express notice of the contract when they accepted the trust, and that it was claimed by the complainant as an existing lien; that the substance of said contract had been published separately at the instance of the stockholders of the railroad company, and was well known to its creditors and to the purchasers of its bonds at the time, and especially to the defendant Smith; and that the railroad company having conveyed away its property, and being in part insolvent, the violation of the contract cannot be compensated by any damages which would be recovered at law. The bill therefore prays for a decree compelling the railroad company to specifically perform its contract, and for such other and further relief as the nature and circumstances of the case may require, and for process against the defendants.

The charter of the railroad company granted in February, 1855, is annexed to the bill and made a part thereof. Its twenty-fifth and twenty-sixth sections are as follows:--

'SECT. 25. Be it further enacted, that the said company shall have the exclusive right of conveyance, transportation of persons, goods, merchandise, and produce over the said railroad, to be by them constructed, at such charges as may be fixed on by the board of directors.

'SECT. 26. Be it further enacted, that said company may, when they see fit, farm out their right of transportation over said railroad, subject to the rules above mentioned; and the said company and every one who may have received from it the right of transportation of goods, wares, and merchandise over the said railroad, shall be deemed and taken to be a common carrier, as respects all goods, wares, produce, and merchandise intrusted to them for transportation.'

At rule-day in July, 1875, the writ of subpoena was returned executed, and the cause continued until the October Term, when it was ordered that the commissioners in possession of the road in the western district of North Carolina, and Howerton, president of the company, be notified to appear and answer or demur to the bill of complaint at rule-day in January, 1876. The commissioners appeared and demurred. The demurrer was sustained and the bill dismissed. The express company then brought the case here.

Mr. Clarence A. Seward for the appellant.

The bill avers that the trustees in the mortgage had notice of the existence of the contract between the companies, and this fact is admitted by the demurrer. Caldwell, who executed the contract, was also one of the trustees in the mortgage, and he, therefore, as trustee, knew that he had executed the contract as president. Ex parte Rogers, 8 De G., M. & G. 271; Weetjen v. St. Paul, &c., 4 Hun (N. Y.), 529. Notice to him was, in judgment of law, notice to all the trustees. Smith v. Smith, 2 Cromp. & M. 230; Willes v. Greenhill, 4 De G., F. & J. 147; Mandeville v. Reed, 13 Abb. (N. Y.) Pr. 173.

As between the two companies the contract was valid. It was lawful for the express company to agree to look for its remuneration to the fund arising from the transportation of its freight over the road of the railroad company; and having made an agreement so to resort to such fund, equity would compel it to perform such agreement, and restrain it from prosecuting a suit at law.

The railroad company having authorized the express company to carry its freight, and specifically appropriated the moneys for such transportation when they came to the hands of the express company to the repayment of the loan, thereby constituted a fund in the hands of the express company, which the railroad company could not impair, divert, or waste. Ketchum v. Union Pacific, 4 Dill. 78; Bird v. Hall, 30 Mich. 37.

The contract created as between the companies an equitable lien upon the right of transportation, and upon an accruing fund, which equity will enforce as against all parties having notice thereof. Groton v. Gardiner, 11 R. I. 626; Smithurst v. Edmunds, 14 N. J. Eq. 408; Butt v. Ellett, 19 Wall. 544; Pennock v. Coe, 23 How. 117; Dunham v. Railway Company, 1 Wall. 254. If it may mortgage the property per se, no good reason is perceived why it may not, upon the use of the property, create an equitable lien which can be enforced against all subsequent purchasers who had notice of its existence.

The contract was a license for the enjoyment of the occupancy of way and terminal stations, and of the vehicles of the railway company while in transit. Such license was executed by the express company so far as an advance payment of rent was concerned. The payment is called rent in the contract. Such license could not be revoked by the railroad company, or by those who purchased, or had notice prior to the attachment of their interest of the existence of such license. Winter v. Brockwell, 8 East, 308; Taylor v. Waters, 7 Taunt. 374; Wood v. Lake, Say. 103; Ameriscoggin Company v. Bragg, 11 N. H. 108.

The owner in fee of land may, by covenant, impose upon it any burden, not inconsistent with his general right of ownership, which is not in violation of public policy, and does not injuriously affect the rights or the property of others. Van Rensselaer v. Albany, 1 Hun (N. Y.), 507. Here the railroad company, by an instrument under seal, and without violating public policy, imposed upon its road the burden of occupancy of its stations and vehicles by the express company for a specific period, at a designated rent paid in advance.

As long as the owner of the fee retains the title in himself, his covenants and agreements respecting the use and enjoyment of his estate will be binding on him personally. A purchaser with notice is bound to perform them. Parker v. Nightingale, 6 Allen (Mass.), 344.

A court of equity can grant the relief prayed for not only by injunction, but by a decree for specific performance. Mechanics' Bank of Alexandria v. Seton, 1 Pet. 299; Clark v. Flint, 22 Pick. (Mass.) 231; Barnes v. Barnes, 65 N. C. 261; Parker v. Winnipiseogee Company, 2 Black, 545; Kirkpatrick v. Peshine, 24 N. J. Eq. 206; Trustees v. Lynch, 70 N. Y. 440; Laning v. Cole, 3 Green (N. J.), Ch. 229; Shirman v. Morris Company, 27 N. J. Eq. 264; Errington v. Aynesley, 2 Bro. C. C. 341; Phillips v. Berger, 2 Barb. (N. Y.) 608; Withy v. Cottle, 1 Sim. & St. 174; Adderley v. Dixon, id. 607; Story, Eq., sect. 723; Storer v. The Great Western Company, 2 You. & Coll. 48; Wilson v. Furness Company, Law Rep. 9 Eq. 28; Ball v. Coggs, 1 Bro. P. C. 296; Price v. Mayor, 4 Hare, 505; Sanderson v. Cockermouth Company, 11 Beav. 497; Great Northern Company v. Manchester Company, 5 De G. & Sm. 138; Greene v. West Cheshire Company, Law Rep. 13 Eq. 44; Hood v. Northeastern Company, 8 id. 666; Raphael v. Thames Valley Company, Law Rep. 2 Ch. 147; Lytton v. Great Northern Company, 2 Kay & J. 394; Dorsey v. St. Louis Company, 58 Ill. 65; Lloyd v. London Company, 2 De G. & Sm. 568; Johnstown v. Veghte, 69 N. Y. 16; Amedon v. Harris, 113 Mass. 59; Taylor v. Waters, 7 Taunt. 39; Colt v. Netherville, 2 P. W. 304; Buxton v. Lister, 3 Atk. 387; Rerick v. Kern, 14 Serg. & R. (Pa.) 267; Thurman v. Clark, 3 Stock. (N. J.) 306; Clavering v. Clavering, Mos. 224; Wilson v. Wilson, 14 Sim. 405, affirmed 5 H. of L. Cas. 40; Pembroke v. Thorpe, 3 Swans. 436, 443; Nelson v. Bridges, 1 Jur. N. S. 753; Anon., 2 Free. Ch. 253; Thomson v. Harcourt, 2 Bro. P. C. 415; Odessa Tramways Co. v. Mendall, 37 L. J. N. S. 275.

A receiver has, prior to a final decree, no larger rights than those which appertain to the owner of the property sequestered. If the property in the possession of the owners was lawfully incumbered, he cannot, sua sponte, and without judicial proceedings, dispute such incumbrance. Receivers v. Patterson, 3 Zab. (N. J.) 283; Hyde v. Lynde, 4 N. Y. 387; Bell v. Shipley, 33 Barb. (N. Y.) 610; Lincoln v. Fitch, 42 Me. 456.

The railroad company was properly made a defendant. At the time of suit brought, it was the owner in fee of the right of way, and the sole owner of the rolling-stock, the right to use which was granted by the contract. Railroad Company v. Orr, 18 Wall. 471; Mechanics' Bank of Alexandria v. Seton, 1 Pet. 299; Story v. Livingston, id. 357.

Mr. A. S. Merrimon, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Express Company v. Railroad Company


text: Talk:Express Company v. Railroad Company


text:
Express Company v. Railroad Company/Opinion of the Court

The bill avers that it was filed against the receiver appointed by the court below, that he was in possession of the railroad, and that the institution of the suit was by the consent of the court. Without this latter fact the bill could not have been filed or maintained. The suit would have been a contempt of the court which had appointed the receiver, and punishable as such. Davis v. Gray, 16 Wall. 203.

The citizenship of the complainant corporation is sufficiently averred. Express Company v. Kountz Brothers, 8 id. 342. Such a complainant need not prove its existence, unless the fact is directly put in issue by the defendant. The Society for the Propagation, &c. v. The Town of Paulet, 4 Pet. 480.

To the objection that the requisite corporate power of the complainant is not shown, there are two answers. The contract of a corporation is presumed to be infra vires, until the contrary is made to appear. 2 Waite, Actions and Defences, 334.

The charter is set out in the record, and forms a part of it. That leaves no room for doubt upon the subject.

Adequate capacity on the part of the railroad company to make the contract is to be presumed in like manner.

No party defendant was necessary but the receiver. He was in the possession of the property and effects of the railroad company, subject to the order of the court, and could have specifically performed the contract, or paid back the money loaned if the court had so directed. The presence of the other parties was immaterial, and the bill might well have been dismissed as to them. Davis v. Gray, supra; Doggett v. Railroad Company, supra, p. 72.

The contract between the express company and the railroad company was that the latter should give to the former the necessary facilities for the transaction of all its business upon the road, forward without delay by the passenger trains both ways all the express matter that should be offered, do all in its power to promote the convenience of the express company, both at the way and terminal stations, and carry free of charge the messengers in charge of the express matter, and the officers and agents of the express company passing over the road on express business. The consideration for these stipulations was a loan by the express company to the railroad company of $20,000, to be expended in repairs and equipments for the road, the loan to bear interest at the rate of six per cent per annum, and the payment of fifty cents per hundred pounds for all express matter carried over the road, to be applied in discharge of the loan and interest. The contract was to continue for one year from the first day of January, 1866, and until the principal and interest of the debt should be fully paid. The bill avers that the receiver had refused to carry out the contract, and that the principal of $20,000 and a part of the interest were unpaid.

The enforcement of contracts not relating to realty by a decree for specific performance is not an unusual exercise of equity jurisdiction. Such cases are numerous in both English and American jurisprudence. They proceed upon the ground that under the circumstances a judgment at law would not meet the demands of justice, that it would be less beneficial than relief in equity, that the damages would not be an accurate satisfaction, that their extent could not be exactly shown, or that the pursuit of the legal remedy would be attended otherwise with doubt and difficulty.

Judge Story, after an elaborate examination of the subject, thus lays down the general rule: 'The just conclusion in all such cases would seem to be that courts of equity ought not to decline the jurisdiction for a specific performance of contracts whenever the remedy at law is doubtful in its nature, extent, operation, or adequacy.' 2 Story, Eq. Jur., sect. 728. See also Stuyvesant v. ''The Mayor, &c. of New York, 11 Paige (N. Y.), 414; Barr v. Lapsley'', 1 Wheat. 151; Storer v. The Great Western Railway Co., 2 You. & Coll. 48; Wilson v. Furness Railroad Co., Law Rep. 9 Eq. 28.

But we need not pursue the subject further, because there is one provision of the contract in this case which is fatal to the relief sought. A court of equity never interferes where the power of revocation exists. Frye, Specif. Perform. 64.

The contract stipulates that after the first year it shall cease upon the payment of the $20,000 and interest. This might be made immediately upon the rendition of the decree. The action of the court would thus become a nullity.

There is another objection to the appellant's case which is no less conclusive.

The road is in the hands of the receiver appointed in a suit brought by the bondholders to foreclose their mortgage. The appellant has no lien. The contract neither expressly nor by implication touches that subject. It is not a license as insisted by counsel. It is simply a contract for the transportation of persons and property over the road. A specific performance by the receiver would be a form of satisfaction or payment which he cannot be required to make. As well might he be decreed to satisfy the appellant's demand by money, as by the service sought to be enforced. Both belong to the lien-holders, and neither can thus be diverted.

The appellant can, therefore, have no locus standi in a court of equity.

Both these objections appear by its own showing. It was, therefore, competent and proper for the court below, sua sponte, to dismiss the bill for the want of equity upon its face. Brown et al. v. Piper, 91 U.S. 37.

Decree affirmed.


text: Talk:Express Company v. Railroad Company/Opinion of the Court


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Godden v. Kimmell

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

The case was argued by Mr. James M. Johnston and Mr. John Scott for the appellant, and by Mr. Calderon Carlisle and Mr. George F. Appleby for the appellee.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Godden v. Kimmell


text: Talk:Godden v. Kimmell

title: Talk:Godden v. Kimmell


text:
Godden v. Kimmell/Opinion of the Court

Statutes of limitation form part of the legislation of every government, and are everywhere regarded as conductive and even necessary to the peace and repose of society. When they are addressed to courts of equity as well as to courts of law, as they seem to be in controversies of concurrent jurisdiction, they are equally obligatory in both forums as a means of promoting uniformity of decision.

Stale claims are never favored in equity, and where gross laches is shown and unexplained acquiescence in the operation of an adverse right, courts of equity frequently treat the lapse of time, even for a shorter period than the one specified in the Statute of Limitations, as a presumptive bar to the claim. Stearns v. Page, 7 How. 819; Badger v. Badger, 2 Cliff. 154.

Time, it is said, is no bar to an established trust, which may be true in cases of concealed fraud, provided the injured party is not guilty of undue laches subsequent to its discovery. Circumstances of the kind form an exception to the rule; but the rule still is, that when a party has been guilty of such laches in prosecuting his equitable remedy as would bar him if his title was solely at law, he will be barred in equity, from a wise consideration of the paramount importance of quieting titles. Michaud v. Girod, 4 How. 561.

It appears that the complainants are, or claim to be, creditors of Edwin Walker, deceased, and that they instituted the present suit in behalf of themselves and other creditors of the deceased to recover a moiety of certain real and personal property, together with the rents and profits of the same, which, as they allege, belonged to their creditor in his lifetime and at the time of his decease. They allege that their creditor owned and held the property described in the bill of complaint in common with one Abram F. Kimmell, of the city of Washington, since deceased, with whom he was carrying on the livery-stable business, under the firm name of Walker & Kimmell, the said property being used for the purposes of said business; that the said Walker being largely indebted to the complainants, their testators and intestates, as well as other parties, dissolved partnership with said Kimmel and conveyed all his real and personal estate, after payment of all partnership debts, to one Voltaire Willett, by deed dated Oct. 8, 1857, in trust to pay off the complainants, their testators and intestates, with the proceeds thereof, the remainder to be paid over to the grantor, his heirs and assigns. Possession of the property at the time was in the junior partner; and the complainants allege that he continued in the possession thereof up to the day of his death, holding the same and applying the proceeds thereof to his own use, without accounting for the rents and profits, either to the grantor, the trustee, or to the creditors, and that since his death the property has been in the possession of his widow and children, who have appropriated the same to their own use, and that they utterly deny all right of the complainants to any part or interest in the same.

Sufficient appears from the preceding statement to show what the circumstances were on the first day of February, 1871, when the present bill of complaint was filed against the respondents in the subordinate court. They are Mary A. Kimmell, administratrix of Abram F. Kimmell, deceased, his four children, the heirs of the deceased trustee, and the administrator of the deceased senior partner, who, as alleged, was the debtor of the complainants.

Service was made; and the respondents appeared and filed answers, setting up several defences, the most material of which are contained in the answer of the widow and children of the deceased junior partner. They deny all the material allegations of the bill of complaint, to the effect following:--

1. That the complainants or either of them are creditors of the deceased senior partner of the firm, or that the senior partner of the firm was ever the owner of the real estate described in the bill of complaint, or that he ever owned or possessed any personal property, or that the deceased junior partner ever had in his possession any personal property which belonged either to the deceased senior partner or to the firm.

2. They admit the death of the trustee, but they aver that they are not informed and cannot state whether he ever did any thing in discharge of the trusts created by the said deed, and they also admit that the trustee and the deceased junior partners made the alleged conveyance to the brother-in-law of the latter, but they aver that it was made in good faith, and that the moiety of the consideration belonging to the senior partner was appropriated to pay his just debt, as fully explained in the answer.

3. They also allege as a defence that the debtor of the complainants left Washington in the year 1846; that he went to Richmond and entered into business there with a new partner; that the there contracted large debts for which he was liable; that in the latter part of 1857 he conveyed to his new partner a large amount of real and personal property to pay all his debts, including those set up by the complainants; that all these claims were fully satisfied and extinguished either by payment in money or by the acceptance of other securities; and that the supposed debtor of the complainants, at the time of the dissolution of the partnership here, before he went to Richmond, relinquished all interest in the future earnings of the concern, and that the partnership as between the parties was dissolved, though they admit that no formal notice of the dissolution was published.

4. They also admit that besides the real estate there was at the time on hand a large stock of horses, vehicles, and other property, all of which was taken by the junior partner; but they aver that the junior partner from time to time made payments and advances to the retired partner exceeding in amount the value of his interest in the assets of the partnership, as estimated by himself; and they aver that no formal settlement of accounts ever took place, but they allege that if one could be made, which, as they state, it would be difficult and expensive to accomplish, it would be found that the estate of the debtor of the complainants is largely indebted to the estate of the junior partners.

Finally, they set up as defence to the suit that the claims are stale demands, and of a character that courts of equity will not countenance, because, as they allege, it would now be inequitable and unjust that the complainants should be permitted to enforce an account from the respondents, after having slept upon their rights, if any they have, for so long a time and until all the parties to the transaction are dead.

By consent the cause was referred to an auditor, with instructions to ascertain and report what amount, if any, was due to the respective complainants, and to ascertain and state the partnership accounts and the character of the partnership property at the date of the trust-deed, and the disposition made of the rents and profits by the respondents. Hearing was had before the auditor, and he made the report set forth in the transcript.

Testimony was taken by the complainants prior to the order of reference, and they took further testimony before the examiner subsequent to the appointment of the auditor. By his report it appears that two schedules were attached to the deed of trust, one of which purported to be a list of drafts, notes, and bonds due to a third person, and the other to be a list of debts due by the debtor to the complainants. Among other things, the deed recited that the said debtor, independently of his indebtedness to the firm of which he was a member, owed a large amount to the persons named in the two schedules, and that he desired, after paying all the firm debts, to secure pro rata the debts in the first schedule, and if sufficient was left after that, to pay in full the debts in the second schedule.

It appears that the deed was duly executed, and that the grantor conveyed to the trustee, his heirs, executors, administrators, and assigns for ever, all of his right, title, and interest in and to the real and personal property, debts, effects, credits, and assets of every kind whatever and in any manner belonging to the firm, subject to the debts and liabilities of the firm and to the right of the junior partner in winding up and paying off the same, the true intent and meaning of the instrument being only to convey the interest of the senior partner after all the liabilities of the firm have been discharged. Matters of the kind being fully explained, the auditor proceeds to report that he has not stated the claims of the respective complainants; and he gives the reasons for the omission, which appear to be satisfactory, as the report shows that the complainants did not furnish the means to enable him to comply with that direction, except perhaps in the single instance fully set forth in the report.

Directions were also given by the decretal order that the auditor should state the partnership accounts, which he also failed to do, for the satisfactory reason, as he states, that no testimony or other material was furnished by the parties to enable him to perform the required service. Another direction of the decretal order was to state the amount of the property belonging to the firm at the date of the trust-deed. For a compliance with that order, so far as the real estate in concerned, the auditor refers to the deeds introduced in evidence before the examiner, and in respect to the personal property he states that there was no evidence given to show what, if any, belonged to the partnership at that date.

Lots numbered 16, 17, and the west half of 18, in the square numbered 491, were included in the trust-deed. On the 16th of November, 1858, the junior partner and his wife, the trustee of the senior partner joining with them, conveyed the west half of lot 18 and part of lot 17 to the trustee of the sister-in-law of the first-named grantor, in respect to which the auditor reports that the deed conveying the same refers to the prior deed of trust given by the senior partner, and he states that the recitals of the deed specify the purpose for which it was executed, and show that the firm owed the cestui que trust the sum of $2,000 money loaned, and that the property was conveyed to her for the sum of $5,000, one-half of which went to pay that debt and interest, and the other moiety was paid or secured to the junior partner of the firm.

Six years later the grantee in the deed reconveyed the same to her brother-in-law for five dollars, as expressed in the consideration of the deed. Complainants charge in the bill of complaint that the junior partner fraudulently procured the conveyance to be made in order to secure the title to himself; but the respondents in their answer deny all fraud and bad faith in the premises, and the auditor reports that no testimony was given touching the conveyance. Instead of that, he states, in response to that charge, that while the circumstances attending the conveyance may be well calculated to cast suspicion upon it, he finds nothing in the case to warrant him in pronouncing it fraudulent and void.

Where the answer of the respondent is responsive to the bill it is evidence in his favor, and is conclusive, unless disproved by more than one witness. Story, Eq. Plead. (7th ed.), sect. 875 a; Daniel v. Mitchel, 1 Story, 188.

Two witnesses, or one witness with confirmatory circumstances, are required to outweigh an answer asserting a fact responsive to the bill, the reason for the rule being that when the complainant calls upon the respondent to answer an allegation he admits the answer, if duly filed, to be evidence, and if it is testimony, it is equal to the testimony of any other witness; and as the complainant cannot prevail unless the balance of proof is in his favor, he must have circumstances in addition to his single witness, else he fails to establish the affirmative of the issue. Clark's Executors v. Van Reimsdyk, 9 Cranch, 153; Hughes v. Blake, 6 Wheat. 453.

Chancery courts invariably hold, where the answer is responsive to the bill and positively denies the matters charged, and the denial has respect to a transaction within the knowledge of the respondent, the answer is evidence in his favor; and unless it is overcome by the testimony of two credible witnesses, or of one witness corroborated by other facts and circumstances which give it greater weight than the answer, it is conclusive, so that the court will neither make a decree nor send the case to trial, but will simply dismiss the bill. Badger v. Badger, supra.

Only one witness was examined before the auditor as to the rents and profits received by the respondents, and the report of the auditor states that the annual rental value of the property, excluding that charged to have been fraudulently conveyed, was only $938, and if that be excluded, then the real estate consists only of lot 16 in square 491, with the improvements.

Ten exceptions to the auditor's report were filed by the complainants, alleging for error that he did not report their respective claims as liens against the property in controversy. Pursuant to the order of the court the parties were heard upon the auditor's report and the exceptions thereto, and the court entered a decree that the bill of complaint be dismissed, from which decree the complainants appealed to the general term, where the decree of the subordinate court was affirmed.

Proceedings in the court below being ended, the complainants appealed to this court, and filed the following assignment of errors: 1. That the court erred in not entering a decree cancelling and setting aside as fraudulent the said conveyance to the sister-in-law of the junior partner. 2. That the court erred in not entering a decree that the real estate transferred to the trustee of their debtor should be sold and distributed to his creditors. 3. That the court erred in not entering a decree that the administratrix of the junior partner should account and pay to the trustee to be duly appointed so much of the personal assets of the firm included in the trust-deed as were held by her intestate in his lifetime. 4. That the court erred in dismissing the bill of complaint. 5. That the court erred in not entering a decree that the representatives of the deceased junior partner should account for the rents and profits of the real estate conveyed to the trustee up to the date of the decree in this cause.

That the partnership existed is not denied; and the proof is clear that the senior partner left Washington in 1846, and that he went to Richmond and there formed a new partnership, and engaged largely in business for twenty years before his death. As before remarked, the right of the complainants, if any, to prosecute the suit sprang from the trust-deed dated Oct. 8, 1857, and executed by their alleged debtor to his trustee for the purpose of paying his debts, including what he owed to the complainants. Annexed as the deed is to the bill of complaint, it may properly be referred to as an exhibit, from which it appears that their debtor and the intestate of the first-named respondent were 'engaged as partners in the city of Washington, and in the progress of the business acquired real and personal estate, including horses, carriages, buggies, sulkies, and other property,' and that they held claims against various persons, and that the senior partner was independently indebted to the persons named in the schedules appended to the deed; that he conveyed all his right, title, and interest in the real and personal property, debts, effects, credits, and assets of the firm to the grantee of the trust-deed for the described purposes, subject to the debts and liabilities of the firm, and the right of the junior partner in winding up and paying off the same.

There is no averment in the bill that any interest in the partnership property was ever collected by the trustee, or that he could have made any such collection, nor is it averred that any of the complainants are judgment creditors.

Fourteen years elapsed from the date of the deed to the filing of the bill, and throughout that period none of the complainants during the lifetime of the partners and trustee or any of them, took any step whatever to ascertain or enforce their rights, if any they had, under that trust-deed. Nothing appears to show that the trustee ever took any beneficial title whatever to the real property. Beyond doubt, he took the legal title by the words of the deed; but there is no proof to show that he ever acquired the possession or the right of possession, it appearing by the deed that the right of possession was secured to the junior partner, for the purpose of winding up the partnership.

Concede that the grantor might have joined the trustee in a suit for an account on his own motion or at the suggestion of the trustee or creditors, still the answer to that suggestion, if made, is that he did not do so; and now the grantee, the trustee, and the junior partner all being dead, unless there can first be an account of the partnership property, the complainants can obtain no relief, as there is nothing on which a decree in their favor could operate for their benefit. They do not allege that there was ever any settlement of the partnership affairs, nor do they in terms pray in the bill for an account of the partnership assets. By consent an auditor was appointed to ascertain and state the partnership accounts, but he char acterizes the proceedings in the cause as involved in obscurity, and the testimony 'as incomplete, vague, and indefinite,' and reports that there is only one instance in which the amount due to any one of the complainants has been proven with any reasonable degree of certainty. Except the prayer that the administratrix and heirs of the junior partner account with and pay over to the complainants the rents and profits of the estate conveyed to the trustee, the bill of complaint contains nothing which can possibly be construed as a prayer for an account of the assets of the partnership.

Four lots, to wit, 16, 17, 18, and 19, the complainants claim were held and used as partnership property; but the answer of the principal respondents denies that claim, and avers that the firm never owned any of the real estate mentioned, except lot 16 and parts of lots 17 and 18; and the auditor reports that, excluding the property conveyed to the other trustee, the assets consist only of lot 16 with the improvements on the same, and that there is not a particle of testimony to prove that the conveyance to the other trustee was fraudulent. Attempt is made to set aside that conveyance without making either the trustee or cestui que trust parties to the bill, though it is said by the complainants that they are both alive, of which, however, there is no proof in the record.

Exceptions to the auditor's report were taken by the complainants because he did not report as liens against the property described in the cause the claims of each and every complainant, when his report shows that the evidence given did not enable him, except in one instance, to ascertain the amount of the claims, which was much less than the minimum of jurisdiction.

For fourteen years the complainants slept upon their rights, and there is not a single allegation in the bill nor a particle of proof introduced in their behalf to excuse their manifest laches in not seeking an account until all the parties in interest have departed this life.

Equity courts in cases of concurrent jurisdiction usually consider themselves bound by the Statute of Limitations which govern courts of law in like cases, and this rather in obedience to the Statute of Limitation than by analogy. Wagner v. Baird, 7 How. 234. In many other cases they act upon the analogy of the statutory limitations at law, as where a legal title would in ejectment be barred by twenty years' adverse possession courts of equity will act upon the like limitation, and apply it to all cases of relief sought upon equitable titles or claims touching real estate. Moore v. Greene, 2 Curt. C. C. 202; 2 Story, Eq. Jur. (8th ed.) 520; Farnum v. Brooke, 9 Pick. (Mass.) 243.

Support to those propositions is found everywhere; but there is a defence peculiar to courts of equity founded on lapse of time and the staleness of the claim where no Statute of Limitations governs the case. Such courts in such cases often act upon their own inherent doctrine of discouraging for the peace of society antiquated demands by refusing to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights. Badger v. Badger, supra; Roberts v. Tunstall, 4 Hare, 269; Stearns v. Page, supra.

Authorities to support that proposition are numerous and decisive, nor is it necessary to look beyond the decisions of this court for the purpose. Lapse of time, said Mr. Justice Thompson, and the death of the parties to the deed have always been considered in a court of chancery entitled to great weight and almost controlling circumstances in cases where the controversy grows out of stale transactions. Jenkins v. Pye, 12 Pet. 241; Beckford v. Wade, 17 Ves. 96; Humbert v. Rector, 7 Paige (N. Y.), 193.

Few cases can be found more nearly analogous to the case before the court than the one in which the controversy had its origin in this district. It had respect to a deed of trust executed to secure certain creditors named in the schedule annexed to the deed. Enough appears to show that the deed was filed by the trustee himself within twenty years, and that the subordinate court decreed that the amount of debts enumerated in the schedule should be paid. Appeal from that decree was taken to this court, and Mr. Chief Justice Taney, in disposing of the case and reversing the decree, remarked as follows: 'We do not found our judgment upon the presumption of payment. For it is not merely on the presumption of payment, or in analogy to the Statute of Limitations, that a court of chancery refuses to lend its aid to stale demands. There must be conscience, good faith, and reasonable diligence to call into action the powers of the court. In matters of account, where they are not barred by the Statute of Limitations, courts of equity refuse to interfere after considerable lapse of time, from considerations of public policy and from the difficulty of doing entire justice when the original transactions have become obscured by time and the evidence may be lost.' McKnight v. Taylor, 1 How. 168.

Corresponding views were expressed by Mr. Justice Story prior to that time, and the Chief Justice referred to the same as having settled the doctrine of the court upon the subject. Piatt v. Pattier, 9 Pet. 416; Smith v. Clay, Amb. 645.

Courts of equity, acting on their own inherent doctrine of discouraging for the peace of society antiquated demands, refuse to interfere in attempts to establish a stale trust, except where the trust is clearly established, or where the facts have been fraudulently and successfully concealed by the trustee from the knowledge of the cestui que trust. Relief in such cases may be sought; but the rule is that the cestui que trust should set forth in the bill specifically what were the impediments to an earlier prosecution of the claim, and how he or she came to be so long ignorant of their alleged rights, and the means used by the respondent to keep him or her in ignorance, and how he or she first came to the knowledge of their rights. Badger v. Badger, 2 Wall. 87; White v. Parnther, 1 Knapp, C. C. 227.

When a party appeals to the conscience of the Chancellor in support of a claim, says Mr. Justice Field, where there has been laches in prosecuting it or long acquiescence in the assertion of adverse right, he should set forth in his bill specifically what were the impediments to an earlier prosecution of the claim; and if he does not, the Chancellor may justly refuse to consider his case on his own showing, without inquiring whether there is a demurrer or any formal plea of the Statute of Limitations contained in the answer. Marsh v. Whitmore, 21 Wall. 185.

Laches and neglect, says Mr. Justice Swayne, are invariably discountenanced in equity, and therefore there has always been a limitation of suits in such courts from the beginning of their jurisdiction. Limitations of the kind are dictated by experience and are founded on a salutary policy, as the lapse of time carries with it the memory and life of witnesses, the muniments of evidence, and the other means of judicial proof. Brown v. County of Buena Vista, 95 U.S. 161.

Difficulties often arise in controversies of the kind in getting at the truth so as to administer justice with any thing like reasonable certainty. That the parties to the original transaction have long since deceased is shown from the proofs in the case, and it is not improbable that many or all of their clerks and agents may be inaccessible as witnesses, for the same or some other reason, or if alive and their attendance as witnesses may be secured, they may not be able to remember any thing about the transactions.

Viewed in the light of these authorities and suggestions, the court is of the opinion that the last defence set up in the respondents' answer is fully maintained, and that there is no error in the record.

Decree affirmed.

title: Godden v. Kimmell/Opinion of the Court


text: Talk:Godden v. Kimmell/Opinion of the Court


text:
Vansant v. Gas-Light Company

MOTION to dismiss for want of citation an appeal from the Supreme Court of the District of Columbia.

This was a bill in chancery brought in the Supreme Court of the District of Columbia by John Vansant, and William A. Duncan, trustee for Susan A. Duncan, against the Electro-Magnetic Gas-Light Company and others. The defendants answered; and the cause coming on to be heard upon the pleadings and proofs, a final decree was rendered at the special term, which was affirmed at the general term of that court. The following entry then appears upon the record:--

'JOHN VANSANT et al.

v.

THE ELECTRO-MAGNETIC GAS-LIGHT CO.

No. 3707.

Equity Doc. 13.

'DEC. 17, 1875.

'The clerk will enter an appeal to the Supreme Court of the United States from the decision in general term, passed Nov. 29, 1875.

'DURANT & HORNOR,

'For Plaintiffs and Appellees.

'Dec. 17, 1875. Appeal entered as directed.

'By the clerk.'

It was conceded that a bond had been approved by the Chief Justice of that court and filed with the clerk during the term.

Mr. J. Hubley Ashton and Mr. Nathaniel Wilson in support of the motion.

Mr. Thomas J. Durant, contra.

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

title: Vansant v. Gas-Light Company


text: Talk:Vansant v. Gas-Light Company

title: Talk:Vansant v. Gas-Light Company


text:
Vansant v. Gas-Light Company/Opinion of the Court

No citation has been issued in this cause. A citation only becomes unnecessary when the appeal is allowed in open court during the term at which the decree is rendered. This implies some action of the court while in open session, and, to be regular, should be entered on the minutes. Here, although an appeal bond was approved by the Chief Justice of the court and filed with the clerk during the term, it does not appear to have been done while the court was actually in session. So far as the record shows, it was the act of the Chief Justice alone out of court. The entry on the order-book is simply a direction to the clerk, by the solicitor of the appellant, to enter an appeal. It in no way indicates any action whatever either in or by the court.

Appeal dismissed.


text: Talk:Vansant v. Gas-Light Company/Opinion of the Court


text:
Supervisors v. Galbraith

ERROR to the District Court of the United States for the District of Mississippi.

This was an action brought by William B. Galbraith, a citizen of Tennessee, against the board of supervisors of Calhoun County, Mississippi, on certain bonds and coupons thereto attached. The bonds are in the words and figures following, except as to the numbers and amounts, and a copy of one of the coupons is hereto annexed. They differ only as to the time of payment and the reference to the bond to which they are attached. 'Bond No.--.

'COUNTY OF CALHOUN, STATE OF MISSISSIPPI.

'500.]

[500.

'Be it known that the county of Calhoun, State of Mississippi, is indebted unto and promises to pay the Grenada, Houston, and Eastern Railroad Company, or bearer, at the agency of said company in the city of New York, two years from the date hereof, five hundred dollars, lawful money of the United States of America, with interest at the rate of eight per cent per annum, payable semiannually on the first day of March and September of each year, on the presentation and surrender of the proper coupon hereto annexed.

'This bond is one of a series of bonds issued and delivered to the Grenada, Houston, and Eastern Railroad Company by Calhoun County, to meet and pay off the amount subscribed by said county to the capital stock of the railroad company aforesaid, in pursuance of an act of the legislature of the State of Mississippi, entitled 'An Act to aid in the construction of the Grenada, Houston, and Eastern Railroad,' approved Feb. 10, 1860, and of an act amendatory thereof, passed March 25, 1871, and in obedience to a vote of the people of said county at an election held in accordance with the provisions of said acts.

'In witness whereof, the board of supervisors of said county have caused the signature of the president of said board to be hereto affixed, countersigned by the clerk, with his official seal affixed, and who have also signed the coupons hereto attached at their office in Pittsboro', this first day of September, 1871.

(Signed) 'JOEL ABNEY,

'Pres't B'd of Supervisors.

'J. S. RYAN, Clerk.'

'Coupon.

'UNITED STATES OF AMERICA:

'$4.00.]

[$4.00.

'The county of Calhoun will pay to the Grenada, Houston, and Eastern Railroad Company, or bearer, four dollars at their agency in the city of New York, on the first day of March, 18__, being six months' interest on bond No. ___.

(Signed) 'JOEL ABNEY,

'Pres't B'd Supervisors.

'J. S. RYAN, Clerk.'

In addition to the plea of nil debet, the defendant filed several special pleas, all of which were demurred to. The demurrers were sustained, and judgment was rendered against the defendants. They then sued out this writ. Their assignment of errors is referred to, and the remaining facts are set forth in the opinion of the court.

Mr. Philip Phillips for the plaintiffs in error.

Mr. Wiley P. Harris, contra.

MR. JUSTICE SEAYNE delivered the opinion of the court.

title: Supervisors v. Galbraith


text: Talk:Supervisors v. Galbraith

title: Talk:Supervisors v. Galbraith