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Warner v. Norton/Opinion of the Court

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the northern district of Illinois.

It was an action of trespass brought by Norton, Jewett, & Busby, against Warner, for taking certain goods in a storehouse in the village of Lasalle. Warner justified the taking, as sheriff of Lasalle county, under certain writs of attachment against one Haskins, the former owner.

The jury found a verdict for the plaintiffs, assessing the damages at five thousand six hundred dollars and sixty-four cents.

The bill of exceptions shows the whole case, and it is inserted in extenso, because the questions of law involved have been decided in different ways by courts of justice, and elementary writers do not agree about them.

Be it remembered, that on the trial of this cause, plaintiffs in this action claimed title to the goods, for the taking of which this suit was brought, by a sale of the goods alleged to have been made by one Haskins to them, through one Isaac Anderson, as their agent.

The proof of the plaintiffs tended to show that Beman, one of the plaintiffs, had a claim as creditor against Haskins, of about $1,200, and that the firm of Norton, Jewett, & Busby, had a similar claim of about $3,000. That each of these claims had been put in the hands of one Anderson, by the owners thereof, respectively, for collection, with authority to settle or arrange in any way. That on the 10th of January, A. D. 1855, the goods were chiefly in a hardware storeroom, and in the tin shop attached thereto, in the village of Lasalle; and that, up to that time, Haskins had been carrying on the business of a hardware retailer, and of manufacturing tinware in his tin shop adjoining; that while he was absent, his business was conducted for him by one Atherton, as his head clerk, who employed the operatives and superintended them, the business being done in the name of Haskins; that on the tenth of January, 1855, Haskins sold his stock of hardware and tinware to Beman and the firm of Norton, Jewett, & Busby, through Anderson, as their agent as aforesaid, Anderson cancelling the aforesaid debts, and giving his notes on time, to Haskins, for the balance of the price agreed upon; that thereupon, by way of putting the purchaser in possession, Haskins, Anderson, and Atherton, being in the storeroom, Haskins got the key of the front door, and gave it to Anderson, and Anderson gave the key and charge of the store and tin shop to Atherton, who up to that time had been carrying on the business for Haskins, but then undertook to act for Anderson.

That Anderson left town, and about the same time Haskins left town, and neither of them returned until after the taking by the defendant, (Haskins never having returned to reside there, and never having since resided there, or interfered with the goods in any way after the sale;) that Cephas H. Norton, Albert, Jewett, and Benjamin Busby, were the ostensible partners of the firm of Norton, Jewett, & Busby; but that Anderson, in preparation for the bringing of this suit, was informed by the ostensible partners that there were special partners; that John C. Phelps was a special partner, and a brother of John C. Phelps.

There was no distinct evidence in the case to show that John J. Phelps and Isaac N. Phelps, or either of them, were members of the firm of Norton, Jewett, & Busby, or that they ever were in any way interested in the property taken; but the witness stated he believed or supposed the parties named in the record were the parties in interest, but he did not actually know it of his own knowledge.

[It is but fair to state, that while this point was made by the defendant, it was not pressed or insisted on, and the court thinks the plaintiffs' counsel might so infer, and therefore might not have thought it necessary to furnish additional proof.]

Plaintiffs' proof further tended to show that defendant was sheriff of Lasalle county, and that, as such, he did, on the ninth day of February, A. D. 1855, take and carry away the said hardware and tinware. Defendant offered evidence tending to prove, that before and at the time of said sale, said Haskins was in failing, and that certain creditors (by judgment) had sued out writs of attachment, as set forth in defendant's special pleas, against the goods of said Haskins; and that said taking, complained of in this suit, was the levying of legal process upon the said property as the property of said Haskins.

Defendant further offered evidence tending to prove that said sale was made secretly; but several of the plaintiffs' witnesses stated the sale was not made secretly, but that while the invoice was being made out, people were coming in and out of the store, as usual; that no steps were taken by any one to make it known till after said levy; that from the time of the sale, said Atherton continued to control the goods and the business as before, and to all appearance was doing so for Haskins, as he had done before; that he made sales to customers as formerly, without notice to any one of the change in proprietors, and in some instances made out the bills and receipts of said sales to customers in the name of Haskins.

That no change was made in keeping the books; that the servants and operatives about the store and tin shop continued to work under the direction of Atherton, with no knowledge of any sale, and supposing the business was being carried on as formerly, in the name and for the use of Haskins; but it did not appear that any of these things were authorized by the plaintiffs, or known to them. And that this condition and course of things continued until said goods were seized by said sheriff on the 9th day of February, 1855.

After the evidence was given to the jury, the court charged as follows, substantially:

1. That the jury must be satisfied, from the evidence, that the plaintiffs named in the declaration had a joint interest in the property sued for, or they must find for the defendant.

2. That if the jury believe, from the evidence, the sale was made for the purpose of hindering, delaying, or defrauding creditors, it was invalid as against the defendant.

3. That whether the sale was or was not fraudulent, was a question of fact, to be determined by the jury under all the circumstances of the case.

4. That if the sale was secret, and no means taken to apprise the public of the sale, these were facts which threw suspicion upon the transaction, but did not make the sale fraudulent in law as against the defendant.

5. That the jury were to determine the facts as to the possession after the sale. If a sale is made by a party, and the vendor remains in possession, it is ordinarily a badge of fraud, and requires explanation. But in this case there did not seem to be any evidence tending to show that the vendor (Haskins) was in possession after the supposed sale, except that Atherton retained possession, and as to his possession the jury would determine. If it was the possession of the plaintiffs, and not of Haskins, the sale was not necessarily fraudulent.

6. The court declined to charge the jury, that, as a matter of law under the facts in evidence, the sale was fraudulent as to the defendant; but left it to the jury to decide whether the sale was in good faith, and for an honest purpose.

After verdict, a motion for a new trial was overruled. To which instructions, as then given, the defendant's counsel, and to each severally, then and there excepted, and also to the overruling the motion for a new trial.

Exceptions allowed.

THOMAS DRUMMOND. [seal.]

The case came up upon this exception, and was argued by Mr. Dickey for the plaintiff in error, and Mr. Badger for the defendants, upon which side there was also a brief by Mr. Badger and Mr. Carlisle.

The question, whether a sale of goods, unaccompanied by a change of possession, is good as against creditors, has been a vexed question in England and in many of the United States. The weight of American authority is thought to be against the validity of such sales. See 2 Kent's Com., 515 to 529, where the subject is fully discussed.

The decisions of the Federal courts are against the validity of such sales-and this is considered 'a settled principle in Federal jurisprudence.' (2 Kent, 521; Hamilton v. Russell, 1 Cranch, 309.)

This sale was made in Illinois, and the Supreme Court of that State have adopted and adhered to what Chancellor Kent calls the more wise, sound, wholesome, and true doctrine, and have held, in Thornton v. Davenport, 1 Scam., 296, that where possession of goods is permitted to remain with the vendor, the sale is fraudulent, unless the retaining is consistent with the deed. The same doctrine is recognised in Powers v. Green, 14 Illinois, 386; so that there is no debate about the law in that State on this question-the decision of the Supreme Court of the United States and of the Supreme Court of that State concurring.

This change of possession, to be effective, must be actual, and not colorable. (2 Kent Com., 525.)

It must be substantial and exclusive. (2 Kent Com., 518.)

It must be an apparent, open, avowed, notorious change of possession. The purpose must not only be honest, but appearances must agree with the real state of the case. (2 Kent Com., 553; Burrell on Assignments, 303.)

This change of possession must also be continued. If Atherton did agree to hold possession of said goods and conduct said business for Anderson, he did not in fact do so; and if he violated his duty to Anderson, that is Anderson's misfortune. Even if Atherton was acting for Anderson in good faith all the time, still Anderson, by his agent, Atherton, permitted the visible possession to remain in Haskins, and the question for the jury ought to have been not merely whether this possession of Atherton was that of Anderson, and not that of Haskins, but was an apparent, visible, open, avowed, substantial change of possession effected.

The court held that an actual change of possession was sufficient; but we insist that such change of possession, to be good against creditors, must be not only actual and bona fide, but must be apparent, avowed, open, and not secret.

Again: plaintiffs claimed Anderson's title to said goods; and to show title in themselves, proved that Anderson made the purchase for James Beman, and for the members of the firm of Norton, Jewett, & Busby.

Who were the members of this firm? The plaintiffs proved on that subject that Cephas Norton, Albert Jewett, and Benj. C. Busby, ostensibly constituted the firm; and that in preparation for this suit, these ostensible partners told witness that there were special partners, and that John C. Phelps was one of these special partners, and a brother of said John C. was another special partner.

There was no direct evidence that John L. Phelps or Isaac N. Phelps were members of the firm-all that was shown on that subject was, that witness had no personal knowledge, but supposed the parties to the record were the parties in interest.

This constitutes no evidence at all that John L. Phelps or Issac N. Phelps had any interest in the property. It was essential, to maintain the action, for plaintiffs to show that they all jointly owned the property in question. This point was distinctly made, and yet the court submitted the question to the jury. This was error.

Whether there is any evidence on a point, is a question of law for the court. Whether the evidence is sufficient to convince or satisfy, is a question for the jury. (,1st Greenleaf Ev., p. 63, sec. 49.)

The court certifies, that although this point was made, it was not pressed. We reply, that it was not waived; and when such a point is distinctly made and overruled, courtesy requires that it should not be pressed. It is sufficient that it was not waived.

The counsel for the defendants in error made the following points:

The first instruction to the jury was, that they must be satisfied that the plaintiffs named in the declaration had a joint interest in the goods, or they should find for the defendant.

This instruction in form is unexceptionable, and, if there was any evidence of such ownership, was properly given to the jury. The plaintiff in error, as shown by the record, (p. 19,) objected to the admissibility of evidence offered for that purpose, but did not insist upon his objection.

Therefore, he cannot raise the objection here; but, on the contrary, it must be held waived; for, in the case of Walton v. United States, already cited, the court say: 'It is true that the bill of exceptions states that the evidence was objected to at the trial; but it is not said that any exception was then taken to the decision of the court; so that, in fact, it might be true that the objection was made, and yet not insisted on by way of exception.'

In our case, the record shows that the objection was not insisted on.

Again: in the case of Phelps v. Mayer, already cited, the court say, in substance, that objections to evidence must be insisted on by way of exception, for, if this is done, the opposite party may then supply the defect. (See, also, Hinds's Lessee v. Longworth, 11 Wheaton, 199.)Therefore, the objection to the evidence being waived, by not being insisted upon by way of exception, no objection can now be made, and therefore there was evidence to be left to the jury on the point of ownership.

But, if there was not, that question cannot be raised upon an instruction formally right, but must have been specially presented in the court below; for in Garrard v. Reynolds's Lessee, 4 Howard, 123, it was held, that whether there was evidence to be left to a jury, was a question which could not be considered by this court, unless the opinion of the court below had been asked thereon, and an exception regularly taken.

Therefore, in our case the question cannot be here raised.

The substance of all the other instructions is this:

The court having declined to charge the jury that the sale was fraudulent in law, left it to them, under all the circumstances, to say whether the sale was or was not made to delay, hinder, or defraud creditors; telling them that if the sale was secret, suspicion was thrown upon it thereby, but that it did not thereby become fraudulent in law; and, leaving them to decide as to the possession after the sale, instructed them that if the possession of Atherton was the possession of the plaintiffs, (defendants in error,) the sale was not necessarily fraudulent.

Now, there could be no possible ground for the judge below declaring the sale void in law. Had Haskins, the vendor, remained in possession, the case would have been like Edwards and Harben in the King's Bench, and Hamilton and Russell in this court; but it is certain that Haskins did not personally have possession after the sale, for he left the town, ceased altogether to reside there, and was never there for any purpose until after the taking of the goods by the plaintiffs in error. It was proved that an inventory of the goods was taken, the price agreed upon and paid, the door-key given to the agent of the defendants in error, and by him delivered to Atherton, the former salesman of Haskins, who undertook to hold for the plaintiffs in error. Here, then, was evidence of a change of possession. All might indeed be illusive and fraudulent; but that was a question for the jury under all the circumstances of the case; and until that question was decided, no other than a hypothetical instruction could be given.

And the court did instruct the jury, in effect, that if the possession after the sale was in Haskins, the sale was necessarily fraudulent.

To this instruction the plaintiffs in error cannot object, though the defendants in error, had the verdict been against them, would have had just cause of complaint.

For if it were necessary to our case, and were allowable for us to question any decision of this court, we should contend that the rule laid down in Hamilton v. Russell, (1 Cranch, 310,) founded upon Edwards v. Harben, in 2 Term Reports, cannot be supported. In England, Edwards and Harben has been long since overruled; first questioned, then impugned, and finally denied. The cases fully justify the position of the very learned Mr. Smith, in his Leading Cases, (1 vol., p. 41, of 4 Amer. ed.,) in these words:

'It may therefore be safely laid down, that, under almost any circumstances, the question, fraud or no fraud, is one for the consideration of the jury;' and again, page 40: 'Though in Edwards v. Harben it was laid down, in the express terms above stated, that an absolute sale, without delivery of possession, was in point of law fraudulent, the tendency of the courts has lately been to qualify that doctrine, and leave the whole circumstances of each case to a jury, bidding them decide whether the presumption of fraud deducible from the absence of possession shall prevail.'

And the admission of plaintiff's counsel, (whose interest it was to maintain the doctrine of Edwards and Harben,) in Wood v. Dixie, 7 Q. B., 894, is in these words: 'Some doubt has existed whether upon certain facts, as, for instance, want of possession, fraud is a question of law to be decided by the court, or of fact for the jury; but it seems to be now established that the question is for the jury.'

This position of Mr. Smith is further supported by Martindale v. Booth, 3 B. and Ad., 498, in which Parke, J., says: 'The dictum of Buller, J., in Edwards v. Harben, has not been generally considered in subsequent cases to have that import. The want of delivery is only evidence that the transfer was colorable.' It is fully sustained by the numerous cases cited by him, and especially by Benton v. Thornhill, 2 Mar., 427, and Latimer v. Batson, 4 Barn. and C., 652, in the former of which, Ld. Ch. J. Best dissented from the doctrine of Edwards v. Harben, when assumed by counsel; and in the latter, the court notices and in effect repudiates, as furnishing a general rule, what was said by Lord Ellenborough in Wordall v. Smith, 1 Camp., 332.

(These two cases also show that the question of possession under the circumstances of our case was for the jury, and not for the court, and was therefore properly left to them by the court below.)

It may therefore be assumed with confidence, that the stringent rule laid down in Edwards v. Harben is entirely exploded in England, and there want of possession by the vendor is only a badge of fraud to be considered by the jury. Why should a rule adopted by this court from Edwards v. Harben be here maintained, after the foundation of the rule has been utterly demolished in the country from which it was taken? It does not tend to expose and defeat fraud, any more than to disappoint an honest purchaser. Every case of real fraud will be sufficiently reached by making want of possession a badge or evidence of fraud, according to Twyne's case, whilst an indiscriminating disallowance of all sales which are not followed by possession must in many cases do injustice.

But whether the rule in Edwards v. Harben be maintained in all its strictness or not, is in our case immaterial. Here, possession was taken by the purchaser. It has been so found by the jury. There was evidence proper to be left to the jury of that fact; but if there was not such evidence, no objection can be made therefor, because there was no special prayer for an instruction that there was not such evidence as required by this court in the before-cited case of Garrard v. Reynolds's Lessee, 4 How., 123; and consequently the whole case was for the jury on the question of fraud.

As to the alleged secrecy of the sale, the court instructed the jury that secrecy threw suspicion on the transaction, but did not make it fraudulent in law.

Now, this is giving to secrecy precisely the effect properly belonging to it according to Twyne's case, dona clandestina sunt semper suspiciosa. In Twyne's case, the judges in the Star Chamber, passing on fact as well as law, gave what effect they pleased to the suspicious secrecy, with the other circumstances, in drawing the conclusion to which they came, that the sale made by Twyne was fraudulent. In our case, the secrecy was left, with the other circumstances, to the jury, to draw the inference which upon the whole evidence was in their judgment just. No exception can be taken to this, for secrecy has never been by any judicial decision withdrawn from the place it occupies amongst the other signs or badges of fraud, and dignified, like want of possession, with an unexplainable and resistless legal effect.

Of course, the exception for error in the refusal to grant a new trial is merely idle, after the decisions of this court in Marine Insurance Company of Alexandria v. Hodgson, 6 Cr., 206; Barr v. Grat's Heirs, 4 Wheat., 213 and Blount's Lessee v. Smith, 7 Wheat., 248.

Mr. Justice McLEAN delivered the opinion of the court.

This case is brought before us by a writ of error from the northern district of Illinois.

An action of trespass was commenced by Norton et al. against Warner, charging him with having seized and carried away personal property of the value of ten thousand dollars. The defendant pleaded not guilty, and by several special pleas set up that certain creditors of Augustus A. Haskins, who had left his residence at Lasalle, procured a writ of attachment, under the statutes of Illinois, which was directed to the defendant, as sheriff, in virtue of which he attached the personal property of Haskins, which is the trespass charged, &c.

The bill of exceptions taken on the trial will show the points of law which were made on the facts. The proof of the plaintiffs tended to show that Beman, one of the plaintiffs, had a claim as creditor against Haskins for the sum of twelve hundred dollars, and that the firm of Norton, Jewett, & Busby, had also a claim of about three thousand dollars; that each of these claims had been put into the hands of one Anderson for collection, with authority to settle them; that on the 10th of January, 1855, the goods were chiefly in a hardware store-room, and the tin shop attached thereto, in the village of Lasalle; that up to that time Haskins had been carrying on the business of a hardware retailer and manufacturer of tin ware; that while he was absent the business was conducted by one Atherton, his head clerk, who employed the operatives and superintended their work; that on the 10th of January, 1855, Haskins sold his stock to Beman, and the firm of Norton, Jewett, & Busby, through Anderson as their agent, Anderson cancelling the aforesaid debts, and giving his notes on time to Haskins for the balance of the price agreed upon; and thereupon, by way of putting the purchaser into possession, Haskins, Anderson, and Atherton, being in the store-room, Haskins got the key of the outer door, and gave it to Anderson, and Anderson gave the key and charge of the store and tin shop to Atherton, who, up to that time had been carrying on the business for Haskins, but then undertook to act for Anderson.

Anderson and Haskins left Lasalle, and did not return until after the attachment was laid on the goods. Haskins never returned to reside there, and exercised no ownership over the goods after the sale. Norton, Jewett, & Busby, were the ostensible partners of their firm, but they informed Anderson that John C. Phelps and his brother were special partners. There was no further evidence to show the interest of the Phelpses, except the belief of the witness that they were parties, though he could not so state from his own personal knowledge. An objection to this defect of proof was made, but not insisted on.

The plaintiffs' proof further tended to show that the sheriff, on the 9th of February, 1855, did take property attached, and removed it; and evidence was offered to show that, before and at the time of said sale, Haskins was in failing circumstances, and that certain creditors had sued out writs of attachment, as set forth in defendants' special pleas, against the goods of said Haskins, and that the taking of the property complained of was by legal process.

Defendant offered further evidence, tending to prove that said sale was made secretly, but several of the plaintiffs' witnesses stated the sale was not made secretly, and that, while the invoice was being made out, people were coming in and going out of the store as usual; that no steps were taken by any one to make the sale known until after the attachment was laid; that from the time of the sale, Atherton continued to control the goods and the business as before, and to all appearance was doing so for Haskins; that sales were made to customers as formerly, without notice to any one of the change of proprietors, and, in some instances, the bills and receipts of sales to customers were made out in the name of Haskins. No change was made in keeping the books; that the servants and operatives about the store and tin shop continued to work under the direction of Atherton, with no knowledge of any sale, and supposing the business was being carried on as formerly, and for the use of Haskins; but it did not appear that any of these things were authorized by the plaintiffs or known to them; and that this condition and course of things continued until the goods were seized by the sheriff.

After the testimony was closed, the court charged the jury: First, they must be satisfied, from the evidence, that the plaintiffs named in the declaration had a joint interest in the property sued for, or they must find for the defendant.

The jury found for the plaintiffs; which shows they were satisfied with the evidence on the point made, or considered the objection abandoned. If it were not insisted on in the court below, it cannot be raised here. There is no error in this charge of the court.

The second, third, and fourth charges were, 'that if the jury believe from the evidence the sale was made for the purpose of hindering, delaying, or defrauding creditors, it was invalid as against the defendant; and that whether the sale was or was not fraudulent was a question of fact, to be determined by the jury under all the circumstances of the case. That if the sale were secret, and no means taken to apprise the public of it, these were facts which threw suspicion upon the transaction, but did not make the sale fraudulent in law as against the defendant.'

It is insisted that the sale was void as matter of law against creditors, and should have been so held by the court; and the case of Hamilton v. Russell, 1 Cranch, 310, 1 Curtis, 415, is cited as sustaining this position. In that case, Hamilton made an absolute bill of sale for a slave on the 4th of January, 1800, which was acknowledged and recorded on the 14th of April, 1801. The slave continued in the possession of the vendor until an execution was levied on him as the property of the vendor. Trespass was brought against the plaintiff in the execution, who directed the levy to be made. The court held, under the statute of Virginia against frauds, that an absolute bill of sale, unless possession 'accompanies and follows' the deed, is fraudulent; and the case of Edwards v. Harben, 2 Term Rep., 587, was cited. It is admitted that the statute is in affirmance of the common law.

In his 3d volume of Commentaries, Chancellor Kent has an interesting chapter on this subject, in which the case of Edwards v. Harben, and many other authorities, are cited; and he favors the doctrine, that unless the possession of goods follows the deed, it is fraudulent per se. But he states many exceptions to this rule, as where the possession of the vendor is consistent with the deed or the circumstances of the case. And he says, in Steward v. Lambe, 1 Brod. and Bing, 506, the court of C. B. questioned very strongly the general doctrine in Edwards v. Harben, that actual possession was necessary to transfer the property in a chattel, and the authority itself was shaken. And he observes, the conclusion from the more recent English cases would seem to be, that though a continuance in possession by the vendor be prima facie a badge of fraud, yet the presumption of fraud may be rebutted by explanations.

In the case of Wood v. Dixie, 7 Q. B., 894, the counsel, who was interested in maintaining the doctrine of Edwards v. Harben, admitted that 'some doubt has existed whether upon certain facts, as, for instance, want of possession, fraud is a question of law to be decided by the court, or of fact for the jury; but it seems to be now established that the question is for the jury.' In Martindale v. Booth, 3 B. and Ad., 498, Parke, Justice, says, the dictum of Buller, Justice, in Edwards v. Harben, has not been considered in subsequent cases to have that import; the want of delivery is only evidence that the transfer was colorable. In Benton v. Thornbell, 2 Marsh., 427; Lattimer v. Batson, 4 Barn. and Cress., 652; the same doctrine is laid down. In the more modern English cases, the stringent doctrine of Edwards v. Harben has been departed from; and the want of possession of chattels purchased is considered evidence of fraud before the jury. In Kidd v. Rawlinson, 2 Bas. and Pull., 59, Lord Eldon admitted that a bill of sale of goods might be taken as a security on a loan of money, and the goods fairly and safely left with the debtor. And this decision conformed to Lord Holt's view, in Cole v. Davis, 1 Lord Raymond, 724; and Lord Eldon, many years afterwards, declared, in Lady Arundell v. Phipps, 10 Ver., 145, that possession of goods by the vendor was only prima facie evidence of fraud. In Eastwood v. Brown, 1 Ryan and Moody, Lord Tenterden held, want of possession was only prima facie evidence of fraud.

It would seem to be difficult, on principle, to maintain that the possession of goods sold is, per se, fraud, to be so pronounced by the court, as that cuts off all explanation of the transaction, which may have been entirely unexceptionable. If circumstances, at law, may be proved to rebut the presumption of fraud, the case must be submitted to the jury.

But the case before us is not similar to that of Hamilton v. Russell. There was a change of possession in the goods purchased by Anderson, by the delivery to him of the key of the outer door of the storehouse, which he delivered to Atherton, who had agreed to continue in the business as the agent of the purchasers. From the time of the purchase, Haskins had no possession of the property, nor did he exercise any acts no ownership over it. He was absent from Lasalle from the time of the sale until after the attachment was laid.

Now, whether this was a colorable delivery or not, was a matter of fact for the jury, and not a matter of law for the court. It is clearly not within the case of Hamilton v. Russell.

Few questions in the law have given rise to a greater conflict of authority than the one under consideration. But for many years past the tendency has been, in England and in the United States, to consider the question of fraud as a fact for the jury under the instruction of the court. And the weight of authority seems to be now, in this country, favorable to this position. Where possession of goods does not accompany the deed, it is prima facie fraudulent, but open to the circumstances of the transaction, which may prove an innocent purpose. But if such explanation may be given, it is a departure from the stringent rule in the case of Edwards v. Harben.

It is urged that the fourth instruction is erroneous, as the jury were told, though the sale was secret, and no means taken to make it public, it was not fraudulent in law against the defendant. Whilst in the old cases it was held that the possession of the vendor of goods sold was fraudulent against creditors, no case, it is believed, has been so held by the court on the alone ground of secrecy in making the contract. It is a circumstance connected with other facts from which fraud may be inferred. But if the secrecy supposed amounted to absolute fraud, yet the court could not have so pronounced in this case, as there was evidence controverting the supposition of secrecy, which the court could not properly take from the consideration of the jury.

The fifth and sixth charges were, that the jury were to determine the facts as to the possession after the sale; and that, if a sale is made by a party, and the vendor remains in possession, it is ordinarily a badge of fraud, and requires explanation; and under the sixth they left the case to the jury, to determine whether the sale was in good faith and for an honest purpose; which instructions were, as we think, correct, and in accordance with the general doctrine on the subject.

A decision on a motion for a new trial, being addressed to the discretion of the court, is no ground for a writ of error.

The judgment of the Circuit Court is affirmed.

title: Warner v. Norton/Opinion of the Court


text: Talk:Warner v. Norton/Opinion of the Court

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Stinson v. Dousman

THIS case was brought up, by writ of error, from the Supreme Court of the Territory of Minnesota.

The facts are stated in the opinion of the court.

It was argued by Mr. Cooper for the plaintiff in error, and Mr. Cushing and Mr. Gillet for the defendant.

The principal question in the case was, whether or not time was of the essence of this contract as to the payment of the first instalment. Upon this point, the counsel for the plaintiff in error admitted that-

While time is material, it was not so far of the essence of such a contract as this, as to authorize Dousman to declare it void, especially when it was manifest that there was neither wilful laches, negligence, nor want of ability, on the part of Stinson to perform the contract. In such a case, equity always affords relief. (2 Story's Eq. Jur., secs. 775, 776, 776 note, 777, 1314, 1315, 1316, 1319; Taylor v. Longworth, 1 McLean, 402, 403; same, 14 Pet., 170; Brashear v. Gratz, 6 Wheat., 528; Bank of Washington v. Hagner, 1 Pet., 464; 1 Fontblanque's Eq., 31 and 32, note; Newland on Contr., ch. 12, p. 238.)

Upon the question of time, the counsel for the defendant in error said:

At law, the time of performance is a material part of a contract; non-performance, at the very day, is always to be held as a breach. There is no other rule applicable, except the one named in the contract.

In equity, the same rule applies where, in the agreement, the parties evidently contemplated that time would be material, and influence their action or interests. In the present case, the parties not only looked to the possibility of the non-performance according to the letter of the agreement, but they made an express agreement providing for that contingency. They did not leave the law to determine the consequences of a default, but made a law for themselves on that subject, by an express provision in the body of their agreement. Instead of providing that the performance might be made at a future day, and a compensation in damages for the delay, the parties provided that, in case of default in making payment, or insuring, or paying taxes, the plaintiff might waive the contract of sale, and accept the defendant as his tenant, from the date of the agreement to the time of the election by the plaintiff to avoid the contract. There is no case for the law to act upon; nothing has occurred unprovided for in the contract. The law cannot step in and act upon a case, and declare what shall be done by the parties, when they had, by their agreement, determined for themselves.

[The counsel then quoted the cases of Hipwell v. Knight, and Secombe v. Steele, and continued:]

In the present case, it clearly appears affirmatively that the parties regarded the time an essential element in their agreement, because they made a special provision to meet that very contingency. They arranged that the plaintiff might elect to annul the contract, if it was not literally fulfilled. No other reason can be assigned for that provision. Without it, the plaintiff could only have sued upon the agreement to recover the purchase-money and interest by way of damages. Before suit, the defendant might have avoided the strict rule of law, by tender, and resorting to equity to relieve from his default; but after suit, that relief would not have been open to him. In the present case, the parties stipulated for an additional privilege in behalf of the plaintiff. They made a provision for a change in the contract, by which the original agreement to sell was converted, by the action of the plaintiff, into a lease, with a specified rent. The plaintiff availed himself of this provision on the occurrence of the default by the defendant, as he had the legal and equitable right to do.

Hence, if it be true, under the laws of Minnesota, (Laws of March 3, 1953, p. 20, secs. 5, 6,) which we controvert, that the defendant can meet a legal claim by setting up an equity, there is nothing in this case to authorize any such defence, because there is no such equity in favor of the defendant which he can set up.

[Other points were made upon both sides, but the above was the principal one upon which the decision of the court turned.]

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Stinson v. Dousman


text: Talk:Stinson v. Dousman

title: Talk:Stinson v. Dousman


text:
Stinson v. Dousman/Opinion of the Court

This suit was commenced in the District Court of the United States for Ramsey county, Minnesota, by Dousman, to recover of Stinson four hundred and eighty-one and sixteen one-hundredths dollars, as the rent of a parcel of land in the city of St. Paul, under a written contract, executed in February, 1854, by those persons. In that contract, Dousman covenanted to sell and convey to Stinson the same land for the sum of eight thousand dollars, which was to be paid, with interest at the rate of ten per cent. annually, in three instalments; the first instalment of two thousand dollars, and interest, was to be paid the 1st of September, 1854. The vendee was required to keep the buildings insured, and engaged that the policy in case of loss should inure to the benefit of the vendor; and also agreed to pay all the taxes accruing from May, 1853. The contract concludes with an express condition, 'that in case of failure by the vendee to perform either of the covenants on his part, the vendor was at liberty to declare the contract void, and thereupon to recover, by distress or otherwise, all the interest which shall have accrued upon the contract up to the day of declaring the contract void, as rent for the use and occupation of the premises, and to take immediate possession thereof; to regard the person or persons in possession at the time as tenant or tenants holding without permission, and to recover all damages sustained by unnecessary destruction of timber or trees growing on the premises, or by holding over without permission.'

It was agreed, that if the vendee paid the entire purchasemoney, or secured it to the satisfaction of the vendor, he should have a deed at any time after the payment of the first instalment. Contemporaneously with the execution of the contract, under the seals of the parties, the vendee gave his promissory note for the first instalment. This instalment was not paid according to the note or contract; no insurance was effected on the property within the terms of the agreement before September, 1854; nor were the taxes on the lot paid before that date.

On the 14th of September, 1854, the plaintiff notified the defendant that the contract of sale was annulled, and he should claim as rent the amount of interest that had accrued on the price stipulated for the property, and demanded immediate possession of the premises, under the conditions of the contract. The object of this suit is to recover that sum as rent.

The statute law of Minnesota provides, 'that all equities existing at the commencement of any action in favor of a defendant therein, or discovered to exist after such commencement, and before a final decision, shall be interposed, if at all, by way of defence to the action, by answer or supplemental answer in the nature of a counter claim, and issue taken thereon, by a reply or supplemental reply thereto, and be determined as other issues in such actions;' and that, 'when the party prosecuted has equities, claims, or demands, which could heretofore only be enforced by cross-action or cross-bill, the same shall be interposed by way of answer in the nature of a counter claim, and the plaintiff may reply thereto and put the same in issue; and if the same be admitted by the plaintiff, or the issue thereon be determined in favor of the defendant, he shall be entitled to such relief, equitable or otherwise, as the nature of the case demands, by judgment or otherwise. The court of chancery and the right to institute chancery suits are abolished in the Territory. (Acts of Minnesota, 1853, ch. 9, secs. 5, 6, 14.) The answer of the defendant is framed not only to present a legal defence against the claim preferred in the petition, but also to obtain a decree affirmative of the continuing validity of the contract of sale.

He alleges that the note executed for the first instalment of the purchase-money was accepted and received by the plaintiff for that instalment. That, to provide for the punctual payment of the note, he sent to the agents of the plaintiff, who held, and were authorized to collect it, a draft on a merchant of responsibility for its full amount, under a reasonable expectation and belief that the money would be paid. That this draft was presented at the office of the drawee by the agents of the plaintiff, at a time when he was absent, and that his clerk, through mistake or error, declined to pay it; that, as soon as he heard of the dishonor of the bill, he made other arrangements for the payment of the first instalment by a bill on bankers in New York, and that this bill was offered to the plaintiff before the date of his notice to the defendant. That he has tendered the money and interest to the plaintiff, and his tender has been refused, and he now deposits the money in court for his use. He further answers, that the buildings on the lot have been covered by a suitable policy of insurance, but the amount of the loss, if any, was not payable to the plaintiff. That there was a mistake in the contract relative to this stipulation, which needed amendment, and that he deferred the transfer of the policy till the correction was made. That he is now willing to assign the policy to the plaintiff.

He answers, that since the notice of the plaintiff he has attempted to pay the taxes in arrear, but that he had been forestalled by him; that he is ready to pay the amount of taxes paid by the plaintiff into court. The defendant claims that the plaintiff has sustained no injury from any delay on his part, and that he is able and willing to fulfil his contract.

The District and Supreme Court of Minnesota decided that the answer was not sufficient, and judgment was entered for the plaintiff. The admissions of the answer exhibit a case of default on the part of the defendant in respect to his performance of the covenants in the contract of sale. The technical rule, that 'accord and satisfaction is no bar to an action for debt certain, covenanted to be paid,' is, perhaps, inapplicable in a system like that contained in the code of Minnesota; and it is probably true, that a debt by covenant may be discharged there by a simple contract or agreement. But the answer of the defendant does not show that the promissory note given for the first instalment of the purchase-money was designed to be a substitute for the covenant, and was taken in discharge of the debt created by it. Nor can we suppose that the plaintiff intended to release the condition which formed so important a part of his security. The contract and the note bear date of the same day, relate to the same subject, and are consistent with each other. The evidence must be very explicit and unequivocal, to lead to the conclusion that the one was designed to impair or alter the effect of the other.

The excuses rendered by the defendant for his non-payment of the taxes due upon the property, and his failure to insure the buildings for the security of the plaintiff, are insufficient. The record discloses a case of inattention and neglect on the part of the defendant, which authorized the plaintiff at law to annul the contract.

The question arises, whether his answer affords any ground for equitable interposition in his favor. In respect to contracts for the sale of land, a court of equity, in general, does not exact from the parties a punctual performance of their engagements, to entitle them to its aid in obtaining a specific performance. If the contract is silent in respect to the condition of time, or fails to indicate a distinct purpose of the parties to make it an essential consideration, and where no circumstance exists to manifest its importance, it is the habit of the court to relax the stringency of the rules of legal interpretation on that subject, and to decree performance, and direct compensation, even in cases where there has been inattention or neglect. (Secombe v. Steele, 20 How., sup.; Roberts v. Berry, 3 De G., M., and Gord.) But if the parties have declared in thir contract that time is a material consideration, and have agreed that their rights shall depend upon a scrupulous fidelity to their engagements, it does not belong to that court to make another law for the parties. Where it plainly appears that the sale is conditional, and its completion is dependent upon the fulfilment of any of the terms with punctuality by either party, a court of equity, in general, will not interpose to relieve the party in default, on the principle that time is not of the essence of the contract.

In the case before us, the contract recites, that the vendor, in consideration of one dollar, part of the purchase-money thereafter mentioned, and then actually paid, and upon the express condition that the defendant do well and faithfully perform the covenants and agreements thereafter mentioned, agreed to execute and deliver a deed of conveyance in fee simple, &c.

To the terms of sale there is the condition, 'Provided, always, (and these presents are upon this express condition,) that in case of failure in the performance of either of the covenants or agreements on the part of the vendee to be performed, the vendor shall have the right to declare this contract void.' The contract concludes with a minute description of the relations and consequences that were to ensue from the exercise, by the vendor, of the right he had thus reserved.

The contingency thus foreseen and provided for occurred. The defendant failed to perform either term of his contract, and his answer contains no valid excuse for his neglect.

The defendant in error objected, that the matter in dispute was not of the value of one thousand dollars, and therefore this court had no jurisdiction of the cause. The objection might be well founded, if this was to be regarded merely as an action at common law.

But the equitable as well as the legal considerations involved in the cause, are to be considered. The effect of the judgment is to adjust the legal and equitable claims of the parties to the subject of the suit.

The subject of the suit is not merely the amount of rent claimed, but the title of the respective parties to the land under the contract. The contract shows that the matter in dispute was valued by the parties at eight thousand dollars. (Bennett v. Butterworth, 8 How., 124.) We think this court has jurisdiction. Judgment affirmed.

title: Stinson v. Dousman/Opinion of the Court


text: Talk:Stinson v. Dousman/Opinion of the Court


text:
Roberts v. Cooper (61 U.S. 467)

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Michigan.

It was the same case which was before this court at December term, 1855, and is reported in 18 Howard, 173.

A venire de novo having been ordered, the case came up again for trial, on the circuit, in June, 1856. The result was a verdict and judgment in favor of Cooper, the lessor of the plaintiff in the original action.

The bill of exceptions stated that an agreed state of facts, dated Washington city, April 17th, 1854, signed by S. F. Vinton for plaintiff, and Truman Smith for defendant, with all the papers therein referred to and thereto annexed, was read in evidence to the jury, a true copy of which statement, with the papers thereto annexed, is hereto appended.

And there was also put in evidence, and read to the jury, a statement and stipulation, dated June 24th, 1856, and signed by S. F. Vinton for the plaintiff, and T. Romeyn for the defendant, together with the papers therein referred to and attached thereto, a true copy of which statement, with a copy of all the papers thereto annexed, is hereto appended. The plaintiff objected to the reading of the deposition of John Wilson, and the court excluded the same from the jury, to which ruling the defendant excepted.

The defendant then produced and offered to prove a deed of release from Alfred Williams and wife to the Minnesota Mining Company, dated June 20th, 1856, covering the lands in controversy; and further offered to prove, in connection therewith, that at the time when the said Cooper obtained the deed of the premises in controversy from Alfred Williams, the Minnesota Mining Company was in actual and open possession of the same, claiming title under their patent from the United States, and that the said Cooper knew of such claim and occupancy before and at the time of his purchase, and of said conveyance; that he obtained said title from Alfred Williams, he being the naked trustee of John Bacon, and that all the negotiations for the said purchase, and the purchase itself, were had between said Cooper and Bacon, the said Williams acting under the directions and for the benefit of said Bacon, and having or claiming no personal interest in said lands; that said purchase and conveyance were made for the following purpose, namely: That said Cooper should hold the same in trust for a corporation known as the National Mining Company, all of whose stock was held by said John Bacon; and by the conditions of said sale, the said Cooper was to receive, and did receive, with said conveyance, six-tenths of the stock aforesaid, and the said Bacon was to retain, and did retain, four-tenths of said stock. That the said Cooper purchased said stock, and took said conveyance, with a full knowledge of the claims and occupancy of the Minnesota Mining Company, and with the intention of prosecuting the title purchased by him, by legal proceedings in this court against the Minnesota Mining Company, for the benefit of the National Mining Company; and that before said conveyance was delivered to him by said Williams, the said Cooper, in conjunction with the said Bacon, applied to counsel in the city of Detroit, to employ such counsel in the litigation aforesaid, which was to be had with the Minnesota Mining Company-to which evidence the plaintiff objected, and the court excluded the same-to which the defendant excepted.

The bill of exceptions then stated sundry prayers offered by the defendant upon points which were covered by the decision of this court in 18 Howard, and which it is not thought necessary to insert.

The defendant further requested the court to charge the jury, that if, when said Williams conveyed to said Cooper the premises in question, the said Minnesota Mining Company was in actual and open possession of said lands, claiming title thereto under their patent, the said conveyance was void in law against the said company and all claiming under them; which instructions the court refused to give, and to this ruling the defendant excepted.

Upon these exceptions the case came up to this court, and was argued by Mr. Truman Smith and Mr. Reverdy Johnson for the plaintiff in error, and Mr. Vinton for the defendant.

The counsel for the plaintiff in error made the following points:

I. The plaintiff in error, who was the defendant below, should have a rehearing accorded to him on the whole case, irrespective of the former decision.

1. The statute of Michigan gives to the defendant in ejectment an opportunity for a new trial before he is dispossessed. (Mich. Rev. Stat., 492.)

On a revision of the case, the party is to be heard at large, both as to the law and fact. Besides, in this case, the former verdict and the intermediate rulings were all in favor of the defendant below; and therefore it might well happen that he did not (as the fact was) introduce all the evidence at his command, nor take all the available grounds of defence.

2. In this case, the court was obliged to deal with questions arising under the acts of Congress, which treat of a peculiar subject in a new and special manner, and therefore it could not avail itself of the aids of familiar practice and analogous adjudication, usually at command in disposing of cases arising under our land laws, and often throwing much light on the path to satisfactory results. The court, on the former occasion, without knowing, or having any means of knowing, what had been the contemporaneous construction of the act of March 1st, 1847, and what had been the uniform action and course of the Executive in carrying that act into effect, could only look to the terms in which it is conceived; and as it is, to some extent at least, wanting in perspicuity, it is no matter of surprise that a contrariety of opinion should have existed on the bench, or that the court should have arrived at conclusions with some difficulty and hesitation. The new lights alluded to now appearing, on the deposition of the late Commissioner Wilson, and the court being informed that all these lease titles stand on precisely the same footing, it can hardly fail to realize the propriety of giving the act of March 1st a careful reexamination, before it adopts as irreversible a construction which must subvert numerous titles, and involve in ruin millions of capital. The circumstance that there are numerous properties to be deeply affected by the judgment of the court, where the parties interested have no opportunity to be heard, constitutes a strong reason for according to the plaintiff in error a rehearing, without prejudice-thus realizing one of the principal objects of the statute alluded to.

3. On a careful analysis of the record, it will be found to involve-

a. Two questions arising out of objections, made on the former hearing by the present plaintiff in error, to the title of the defendant in error, based on the compact with Michigan for school lands, or rather on the terms in which that compact is expressed; which objections stand on this record precisely as they stood before; and which, having been fully considered and disposed of adversely to the present plaintiff, are not now renewed.

b. A question arising out of an objection made by the same party to the title of the present defendant, based on the laws of the State of Michigan, which will be renewed for the purpose of submitting acts of the Michigan Legislature that escaped notice on the former hearing, and have, it is conceived, a most important bearing on the matter in issue.

c. A question on the construction to be given to the compact between the United States and Michigan, relative to school lands, insisted on by the defendant in error at the former hearing, and constituting an objection to the title of the Minnesota Mining Company, which was, impliedly at least, overruled by the court, and will doubtless be now renewed; therefore the subject must be re-examined by us (the counsel for the plaintiff in error.)

d. A question on the construction to be given to the acts of Congress of March 1st, 1857, and September 26th, 1850, which the defendant in error contended, and which a majority of the court held, to be fatal to the title of the plaintiff in error. This question will be re-examined in connection with new and very material facts, appearing on the record, which change, it is conceived, the whole aspect of the case. It will be insisted, that if there be anything in this objection, neither the Minnesota Mining Company nor the defendant in error have any title to the lands in dispute, that they remain and are public land, and consequently the defendant in error cannot recover.

e. A question on the admissibility of the evidence offered by the plaintiff in error on the trial below, to show that the deed by which the defendant in error derived title was void, by reason of a champertous agreement made by and between him (the defendant in error) and John Bacon, in equity the owner of the property in dispute.

f. A question as to the regularity of the verdict and judgment below, and whether the former should not be set aside, and the latter reversed, for reasons which appear of record.

4. The circumstance that the court was not full on the former occasion, and that there was a divided opinion, in connection with the vast interests at stake, constitute strong reasons why there should be a rehearing without prejudice.

[The second, third, fourth, and sixth points are omitted, as being covered by the decision in 18th Howard. The fifth referred to that part of the bill of exceptions which involved the charge of champerty.]

It is difficult to conceive a more aggravated case of champerty. Hence we insist that the deed from Williams and wife to Cooper, executed at the request of Bacon, in performance of this corrupt agreement on his part, was utterly void; and that therefore the evidence was clearly admissible.

Before the enactment of the revision of 1846, by the Legislature of Michigan, it was held, in conformity with the principles of the common law, by the courts of that State, that a grant of land is inoperative and void, if, at the time of the grant, such land is in the actual possession of another, claiming under a title adverse to the grantee. (1 Doug. Rep., 19, 38; Buckner's Lessee v. Lawrence; ib., 546, 566; Stockton v. Williams, Walker's Ch. Rep., 260; Godfrey v. Desbrow.)

But by the revision of 1846, tit. xiv, ch. 65, sec. 7, the Legislature enacted, that 'no grant or conveyance of land, or interest therein, shall be void, for the reason that, at the time of the execution thereof, such lands shall be in the actual possession of another claiming adversely.' By this provision, the Legislature undoubtedly abolished so much of the common law of the State as inhibited the purchase, under the circumstances named, of disputed titles; but it is submitted that they did not abrogate the common law on the subject of champerty. It is believed that the following remarks, to evince the invalidity of the deed from Williams and wife to Cooper, will not be deemed inappropriate:

1. What is champerty at the common law? 'It is,' says Lord Coke, (in his Com. on Litt. Ins., 368 b,) 'to maintain to have a part of the land, or anything out of the land, or part of the debt, or other thing in plea or suit; and this is campipartia, or champertie. The circumstance that the champertous agreement is a verbal one makes no difference; for Fitz. Nat. Brev., 171, A, says, that 'the writ of champerty lieth where a man, by covenant or agreement, made by writing or by word, agreeth to have a part of the thing, or land, or debt, which is in suit, that shall be recovered if the party recover, to maintain and aid him in the action and in the manner for which he sueth.' (a.) 'Then he who is grieved shall have this action against him who maintaineth the suit for the same intent." The author then proceeds to give the form of the writ which is not material to the argument, and therefore is omitted. 'Champerty is the most odious species of maintenance.' (Comyns, Dig., tit. Maintenance, A 2.) 'If he who maintains another is to have, by agreement, a part of the land or debt, &c., in suit, it is called champerty,' (ib.;) 'or if he agrees to have a rent or other profit out of the land,' (ib.,) 'though the agreement be by parol or deed.' (Ib.) Blackstone, in his Com., vol. 4, p. 135, speaks of these champertors as 'the pests of civil society, that are perpetually endeavoring to disturb the repose of their neighbors, and officiously interfering in other men's quarrels, even at the hazard of their own fortunes;' and he adds, they 'were severely animadverted on by the Roman law.'

2. Champerty is an offence at the common law, irrespective of the old English statutes on the subject. (Com. Dig., tit. Maintenance, A 2; 4 Kent. Com., p. 449; Story's Eq. Com., sec. 1048; 3 Greenl. Ev., sec. 180; 1 Russell on Crimes, 180; 3 Vesey, jr., 449, Wallis v. The Duke of Portland; 11 Mass. Rep., 549, Sweet v. Poor; 5 Pick. Rep., 348, Brinley v. Whitney; ib., 353, per Parker, C. J.; 9 Metc. Rep., 489, Lathrop v. Amherst Bank; 22 Wend. Rep., 403, Small v. Mott; ib., 405, 406, per Walworth, Ch.; 1 Ham. Rep., Ohio, 132, Key v. Vattier; 13 ib., 175, Weekly v. Hale; 4 Litt., 417, Rust v. Larue; 5 Monr., 416, Brown v. Beauchamp; 3 S. and M. Rep., 130, Sessions v. Reynolds.)

3. Champerty is malum in se at the common law, and was so held to be by Bracton before the enactment of the statutes; (3 Edward I, ch. 28, and ch. 33; and 28 Edw. I, ch. 11, per Walworth, Ch., 22, Wend. Rep., 406.) That learned Chancellor, after denouncing champerty as the worst specres of maintenance, and after admitting that the revised statutes of New York had in a general degree abrogated the law of maintenance, adds: 'I do not think, however, that an agreement actually champertous, as when a stranger to the subject of litigation, who has no interest therein in law or equity, or in expectancy, by the ties of blood or affinity, agrees to assist in embroiling his neighbor in litigation, or in carrying their suits through the different courts after they are commenced, upon a stipulation that he shall receive a share of the fruits of the litigation as a reward for his mischievous interference, can be enforced in courts of justice.'4. The courts in this country have uniformly pronounced against the validity of all contracts or transactions tainted with champerty. In Massachusetts, 11 Mass. Rep., 549, Sweet v. Poor; 5 Pick. Rep., 348, Brindley v. Whiting; 9 Metc. Rep., 489, Lathrop v. Amherst Bank; in New York, 2 Sand. Supr. Ct. Rep., 141, Satterlee v. Frazer; 5 John. Ch. Rep., 44, Arden v. Patterson; 22 Wend. Rep., 403, Small v. Mott; in Ohio, 1 Ham. Rep., 132 Key v. Vattier; in Kentucky, 8 B. Mon. Rep., 488, Thompson v. Warren; in Alabama, 9 Ala. Rep., 755, Byrd v. Oden; 17 ib., 206, Elliott v. McClelland; 24 ib., 472, Wheeler v. Pounds; in Mississippi, 7 S. and M., 130, Sessions v. Reynolds; 11 ib., 249, Doe v. Ingersolls; in Tennessee, 11 Humph. Rep., 189, Wilson v. Nance; 10 ib., 342, Morrison v. Draderick; and in Illinois, 11 Ill. Rep., 558, McGoon v. Ankeny. In Dishler v. Dodge, 16 How. Rep. S.C.. U.S., 622; ib., 632, 633, 645, where Dodge, the defendant in error, treasurer, and tax collector of Cuyahoga county, Ohio, had distrained the amount due for taxes from certain banks in bank notes, and had deposited such notes with the Cleveland Insurance Company, and where the banks had subsequently united in a written and absolute transfer of these notes to the plaintiff in error, who brought replevin, it was held by two of the justices of this court (Catron and Daniel) that the transaction was 'disreputable,' and the transfer void for champerty. But if, in place of making an absolute sale, the banks had transferred the notes on an express agreement that Dishler should institute an action, prosecute it to consummation, and divide the results as in this case, would not the whole court have united in pronouncing the transfer corrupt, and the title thus attempted to be acquired a nullity? It was precisely because the transfer was absolute, and the banks had, or were to have, no remaining interest, that the majority of the court upheld the transaction.

5. Champerty being deemed immoral, and at the common law rendering all contracts or transactions tainted therewith null and void, it is to be presumed that the common-law rule on that subject obtains in the State of Michigan. 'But if maintenance or champerty,' says Ch. J. Parker, (1 Pick. Rep., 417, Thurston v. Percival,) 'is malum in se, or an offence at common law, it is to be presumed, without any statute, that the same law is in force there;' that is to say, in the State of New York. But we are not left to presumption in this case; for the Supreme Court of Michigan have held expressly that the common law is in force in that State, except so far as it is repugnant to or inconsistent with its Constitution or statutes. (2 Doug. Rep., 184, Stout v. Keyes; ib., 515, Rue High, appellant; ib., 528, per Wing, J.) And they have particularly recognised and enforced the common law, on the subject of maintenance and champerty, in that State. (1 Doug. Rep., 19; ib., 38, Buckner's Lessee v. Lawrence; ib., 566, Stockton v. Williams.)

6. The statute of Michigan, Rev., 1846, tit. xiv, ch. 65, sec. 7, p. 263, did no more than remove the illegality of a conveyance when there was an adverse possession. It did not touch the illegality of an agreement tainted with champerty, nor make a deed, executed in conformity with such agreement, valid. The statute merely allows a grantee, in a case of adverse possession, to recover, in his own name, what the law, as it previously stood, permitted him to do, in the name of his grantor. (1 Doug. Rep., 546, Stockton v. Williams; 5 Pick. Rep., 348, Brinkley v. Whiting; 8 B. Mon. Rep., 368, Ring v. Gray; 11 Humph. Rep., 189, Wilson v. Nance.)

7. The authorities show that the offence of champerty is quite distinct from that of the illegality of buying a title in a case of adverse possession. This distinction is recognised in this country, both in statutory enactments and by the decisions of the courts. Thus, in Ohio, it is held that a conveyance of land, in the adverse possession of another, is not void, (15 Ohio Rep., 156, Cressinger v. Welch;) but that the aid of the courts will not be given to sanction and enforce champerty or other contracts, contrary to public justice and to the peace and happiness of the community. (1 Ham. Rep., 132, Key v. Vattier.) There can be no champerty without an adverse possession; but in Michigan there may be a sale or conveyance where there is an adverse possession, either with or without champerty. In the latter case, the deed is made valid by the statute referred to, and in the former it is void at the common law. In England, and in most of the States of this Union having laws against buying disputed titles, the question of champerty can hardly arise an in this case; but the statute of Michigan, having enabled a party disseized to convey notwithstanding, we now find a champertor in court, invoking the judgment and process of the court to consummate the illegality. Will the court aid him? In ordinary cases, the champertor merely contracts to pay or contribute to the expenses of a lawsuit commenced, or to be commenced, in the name of the party with whom the arrangement is made, in consideration of a share of the proceeds; but Blackstone, in his Commentaries, (4 vol., p. 135,) says, 'that, in our sense of the word,' champerty 'signifies the purchasing of a suit, or right of suing;' and then he adds: 'No man should purchase any pretence to sue in another's right.' Quoted and approved by Catron, J., in 16 How. Rep. S.C.. U.S., 633.) I am not aware,' says the learned judge, 'that this, as a general rule, has been disputed.' Certainly not, if the case involves a division of proceeds; and this is exactly what Mr. Cooper has done. The law of champerty does not require an obligation to pay the costs of the suit, or a contribution in cash to the expenses of the litigation, to constitute the offence; but professional or any other aid, in consideration of having a part of the subject or thing in controversy, is sufficient. (Vide opinion of Green, J., Backus v. Byron, Appendix B.) In this case, Cooper has made himself liable for all the costs, and assumed all the expenses, by taking a deed of the property, and instituting a suit in his own name. Surely the court will not hold that a champertor can elude the imputation arising in the case, by taking a conveyance and making himself plaintiff in a lawsuit which he prosecutes on shares. Champerty will have free course in Michigan if that can be done. The pains and penalties inflicted by the laws of that State on champerty, as a crime at the common law, (vide opinion of Green, J., Backus v. Byron, Appendix B,) will amount to nothing.

title: Roberts v. Cooper (61 U.S. 467)


text: Talk:Roberts v. Cooper (61 U.S. 467)

title: Talk:Roberts v. Cooper (61 U.S. 467)


text:
Roberts v. Cooper (61 U.S. 467)/Opinion of the Court

8. The principles here indicated are fully sustained by a recent decision of the Supreme Court of Michigan, (vide Backus v. Byron, Appendix B.) The opinion given by Judge Green recognises and establishes the following propositions:

1. That the common law on the subject of champerty is in full force in Michigan, and makes all contracts tainted with it void.

2. That it is not necessary to constitute the offense, that the party should obligate himself to pay the taxable costs of a suit, or to contribute to the expenses of the litigation in cash.

3. That champerty as a crime at the common law is to be visited with pains and penalties under and by virtue of a statute of that State. (Revision 1846, tit. xxx, ch. 161, sec. 22.)

The learned judge was the revisor of the statutes of 1846, and is likely to know whether the Legislature intended to set aside or abrogate the law of champerty. The positions assumed in Backus v. Byron are so ably reasoned and so thoroughly sustained by authority, that it will be superfluous to add another word on the general subject. (For many authorities, both English and American, not hereinbefore quoted, see the opinion of Judge Green.)

9. If there ever was a case calling for a rigorous application of that law, it is this. The Minnesota Mining Company were in possession of the premises in good faith, relying on the construction given to the act of 1847 by the authorities of the United States, without the slighest suspicion that Michigan could or would advance pretensions under the school-land compact, and had made costly improvements on the same, when such premises were put up at auction at Lansing, behind their backs, and bid in for a song. Cooper must have been cognizant of all the facts. He knew the situation of the property, and that the claims of Bacon would meet with stern resistance. With his eyes open, after having consulted counsel, he deliberately entered into a copartnership of champerty with Bacon, and now asks the interposition of this court to enable him and his associate to realize the object and end of the corrupt arrangement. What is particularly aggravating in the case is, the certainty that Bacon could not secure his unjust acquisition by a suit in the name of Williams. His recent deed to the Minnesota Mining Company evinces pretty clearly what the course of the latter would have been, on being informed of the true character of the transaction. He would have arrogated equitable powers, and done justice to the parties.

10. If the deed from Williams to Cooper was void for champerty, then we have a perfect title, (even though we are overruled on other points,) by reason of the deed from Williams and wife to the company, of June 26, 1856, and it is submitted that the testimony offered should have been admitted, and the judgment below should be reversed for its exclusion.

The counsel for the defendant avoided a reargument of the points decided in 18 Howard, but upon the new matter made the following points:

Taking these facts in detail, the first question presented is, whether the deed from Williams to the Minnesota Mining Company was properly rejected.

This deed from Williams bears date since his deed to Cooper, and since the decision of this court affirming the validity of Cooper's title. The record also shows that Williams was a naked trustee of the legal title, and conveyed to Cooper, at the request of Bacon, who was in equity the owner of the land.

The subsequent conveyance, therefore, of Williams, without authority from Bacon, to the Minnesota Mining Company, who well knew the fact of the prior conveyance to Cooper, and the relation Williams sustained to the title, was in law a fraudulent act of both grantor and grantee, and could pass no title if his former deed was valid, and had conveyed the land to Cooper. (City of New Orleans v. De Armas, 9 Pet., 236; United States v. Arredondo, 6 Pet., 738.)

A grant is an extinguishment of the right of the grantor, and therefore he and all claiming under him are always estopped by the grant. (Fletcher v. Peck, 6 Cranch, 87; Terrett v. Taylor, 9 Cranch, 43; Pollard's Lessee v. Hogan, 3 How., 212.)2. The next fact offered in proof in connection with said deed from Williams to the Minnesota Mining Company was, that said company when Cooper purchased was in possession of the land, claiming title to it, and that he before and at the time of the purchase knew of such claim and occupancy.

It is not necessary to consider whether at common law a deed would be void for maintenance which conveyed land in the adverse possession of another, since the statute law of Michigan expressly recognises the validity of such conveyance.

The following provisions having a bearing on that subject will be found in the laws of Michigan:

'Conveyances of land or any estate or interest therein may be made by deed signed and sealed by the person from whom the estate or interest is intended to pass, being of lawful age, or by his lawful agent or attorney, and acknowledged or proved, and recorded, as directed in this chapter, without any other act or ceremony whatever.' (Revised Code of 1846, p. 262.)

'No grant or conveyance of lands or interest therein shall be void, for the reason that at the time of the execution thereof such lands shall be in the actual possession of another claiming adversely.' (Page 263.) And at page 490, title Ejectment, is the following provision:

'It shall not be necessary for the plaintiff to prove an actual entry under title, nor actual receipt of any profits of the premises demanded, but it shall be sufficient for him to show a right to the possession of such premises at the time of the commencement of the suit, as heir, devisee, purchaser, or otherwise.'

From these enactments it is plain that the possession of the Minnesota Mining Company, under claim of title and Cooper's knowledge of it when he purchased, cannot affect the validity of Williams's conveyance to him.

A short time prior to their passage, and which no doubt gave rise to them, the courts of Michigan had decided that a conveyance of land held adversely was void. (Buckner's Lessee v. Lawrence, 1 Doug. Mich. Rep., 38; Godfrey v. Desbrow, Walk. Mich. Ch. Rep., 266; Root v. Chapin, same vol., 79; Hubbard v. Smith, 2 Mich. Rep., 212.)

3. The remaining fact offered in proof in this connection was, that Bacon, being the owner in equity of the land, sold it to Cooper in trust for the National Mining Company, and that Williams, his trustee, by his direction, conveyed it to Cooper in trust for said company; and that he, Bacon, was also the owner of the whole capital stock of said National Mining Company, six-tenths of which he sold and transferred to Cooper, retaining the other four-tenths; and that when he took the conveyance of the land, he intended to bring suit against the Minnesota Mining Company for the benefit of the National Mining Company; and before the conveyance was delivered to him by Williams, he, in conjunction with Bacon, applied to counsel to employ such counsel in such suit.

When the statute allowed a purchaser to take a conveyance of land in the adverse possession of another claiming title, it, as incident thereto and by necessary intendment, gave to the purchaser a right to use all lawful means to obtain possession. There are various lawful means of doing this, and by suit is one of them, which, in such case, is by far the most common. It would be going a great length to hold that he must not, at the time he makes the purchase, intend to use this means; that if he was such intention, the purchase will be void; that the intention to sue must be formed at some time subsequent to the conveyance. It is deemed a sufficient reply to this to say, that no such condition is found in the law which allows the conveyance to be made. Such condition would have rendered the statute almost a dead letter, and given rise to a contest about the intention of the purchaser in almost every case.

The Legislature must have well known that in most cases where land was in the possession of another claiming title, the occupant would contest his right by law; and, as a general thing, that the purchaser would be obliged to establish his claim in that way. It is therefore reasonable to presume, that if the Legislature intended to impose such restriction on the conveyance, it would have been expressed in plain language.

But it may be said, in reply, that it was not the intention of the Legislature to license champorty.

Champerty is a species of maintenance; and if it be understood to embrace a conveyance of land held adversely by another claiming title, then the answer is, that to that extent it has been rendered lawful in Michigan; but if it be understood in its original and primitive sense, as being 'a bargain with a plaintiff or defendant to divide the land or other matter sued for between them if they prevail at law, the champertor to carry on the party's suit at his own expense,' it will be admitted that it was not the intention of the Legislature to license it.

This presents the question, do the facts which the plaintiff in error offered to prove, amount to such a bargain?

Was it agreed that Cooper should divide the land, in case the suit prevailed? and if so, with whom? This is the first essential ingredient in champerty.

That he was not to divide it with Williams, the grantor, is certain, nor with Bacon, who was the equitable owner and real vendor, because the conveyance transferred the whole interest in the land, both legal and equitable, to Cooper, in trust for the corporation called the National Mining Company. There was no agreement or promise that, in case the suit prevailed, or in any other event, either Cooper or the corporation should convey or give back to Bacon any part of the land.

Suppose Cooper, by direction of the National Mining Company, had, instead of bringing suit, immediately after the conveyance to him, sold and transferred the land to a stranger, would any promise to or agreement with Bacon have been violated? and if so, what promise?

Was there any agreement that, if the land was recovered, there should be a division of it between Cooper and the corporation for which he held it in trust? There was no proof of the kind offered. He held the naked legal title, and the corporation held the whole beneficiary interest in the land. In case of recovery, the whole beneficiary interest would belong to the corporation, and it could at any time compel him to convey and legal title to the company. In a word, he sues just as every other trustee sues, for the sole and exclusive benefit of the party owning the equitable estate.

There is then, in the proof offered, a total absence of a bargain that Cooper, or any one else, should divide the land sued for, or receive any part of the same as a consideration for carrying on the litigation, and that essential ingredient of champerty is therefore wanting.

Another essential ingredient to make a case of champerty is, that Cooper should have agreed to bring and carry on the suit, and that, too, at his own expense. (4 Black. Com., 135.)

He did not agree to do either of these things. The proof offered was, that he purchased the land in trust for the National Mining Company, and took the conveyance with the intention of prosecuting the title for the benefit of that corporation, and not for his own benefit. Was that intention obligatory upon him? Was he not at liberty to carry it out or not, at his pleasure? Did the proof offered show that he bargained to prosecute the suit at his own expense? Not at all.

Every trustee has a right, and it is oftentimes his duty, to sue in behalf of his beneficiary. In such case, unless there is proof to the contrary, the presumption is, the expense is borne by the beneficiary; and in this case the presumption as well as the fact is, that the expense is paid by the corporation.

Does the fact that Cooper owned a part of the stock in the corporation make the case on that account, so far as this question is concerned, any way different from what it would be if he held the title in trust for the corporation, and owned none of its stock?The individual members or stockholders of a corporation are entirely distinct from the artificial body endowed with corporate powers. They may contract with each other, sue or be sued, as individuals; and for these purposes the members and the corporation are regarded by law as strangers to each other. In a word, they are wholly distinct beings. The one is a natural person, the other an artificial invisible being, which (with its faculties and capacities) is created by law. (Dodge v. Woolsey, 18 How., 344, note; Curran v. State of Arkansas, 15 How., 308; Waring v. Catawba Company, 2 Bay., 109; Pierce v. Partridge, 3 Met. Mass., 144; Hill v. Manchester Water Works, 5 Adol. and Ell., 866; Dunstone v. Imperial Gas Company, 3 Bac. and Adol., 125; Geer v. School District, 6 Vermont, 187, 18 Vermont, 405; Marine Bank of Baltimore v. Beays, 4 H. and Johns., 388; Angell and Ames on Corp., secs. 193, 390; 5 Ohio, 205.)

It follows, as a necessary consequence from these principles, that the fact that both Cooper and Bacon held stock in the National Mining Company, for whose benefit the conveyance of the land was made to Cooper, had no more influence, either in law or equity, upon the operation and legal effect of the grant, than if that stock had been held by a total stranger to the sale of the land.

If a party who carries on a suit has any interest, legal or equitable, or possibility of interest in the land which is the subject of the suit, there is no In other words, where In other words, were there is a privity of estate, direct or indirect, present or remote, maintenance is justifiable. (Wickham v. Conklin, 8 John., 227; Wallis v. Pactland, 3 Ves., 503; 2 Ralls. Abr., 115; Bacon's Abr., title Maintenance, letter B.)

It is not deemed necessary to make further comment on the subject of champerty.

Mr. Justice GRIER delivered the opinion of the court.

Cooper, the plaintiff below, brought this action of ejectment to recover a part of section No. 16, in township 50 north, range 39 west, lying within the mineral district sould of Lake Superior, in the State of Michigan. He claimed under the State of Michigan, and the defendant for the Minnesota Mining Company, under a right of pre-emption from the United States. The case was tried in the Circuit Court, and a verdict and judgment rendered for the defendants. On a writ of error to this court, the judgment of the court below was reversed, and the record remitted for further proceedings, in pursuance of the judgment of this court. The report of the case in 18 Howard 173, exhibits a full statement of the facts, and of the questions of law arising thereon, as decided by the court, which it is unnecessary to recapitulate. On the last trial, the Circuit Court was requested to give instructions to the jury contrary to the principles established by this court on the first trial, and nearly all the exceptions now urged against the charge are founded on such refusal. But we cannot be compelled on a second writ of error in the same case to review our own decision on the first. It has been settled by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first, would lead to endless litigation. In chancery, a bill of review is sometimes allowed on petition to the court; but there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes in its members. (See Sizer v. Many, 16 How., 173; Corning v. Troy Iron Company, 15 How., 466; Himely v. Rose, 5 Cranch, 515; Canter v. The Ocean Insurance Company, 1 Pet., 511; The Santa Maria, 10 Wheaton, 431; Martin v. Hunter, 1 Wheaton; and Sibbald et al. v. United States, 12 Pet., 488.)

We can now notice, therefore, only such errors as are alleged to have occurred in the decisions of questions which were peculiar to the second trial.

I. The first of these is an exception to the refusal of the court to permit the deposition of John Wilson to be read to the jury. This exception, though not waived, has not been much pressed, and cannot be supported. The deposition refers to no facts relevant to the issue. It tended to show that some of the officers of the land office and the Attorney General had expressed opinions on the questions of law arising in this case, different from those expressed in the opinion of this court. The practice of the land office and the opinions of the Attorney General may form very persuasive arguments to the court, but cannot be read as evidence to the jury of what the law is, or ought to be. It is the province of the court to instruct the jury as to the principles of law affecting the case, and counsel cannot appeal to a jury to decide legal questions by reading cases to them, or giving in evidence the opinions of public officers.

II. The only other exception to be noticed is founded on an offer of testimony overruled by the court, and an instruction refused, involving the same question. The evidence offered and overruled is as follows:

'The defendant then produced, and offered to prove, a deed of release from Alfred Williams and wife to the Minnesota Mining Company, dated June 20th, 1856, covering the lands in controversy; and further offered to prove, in connection therewith, that at the time when the said Cooper obtained the deed of the premises in controversy from Alfred Williams, the Minnesota Mining Company was in actual and open possession of the same, claiming title under their patent from the United States, and that the said Cooper knew of such claim and occupancy before and at the time of his purchase, and of said conveyance; that he obtained said title from Alfred Williams, he being the naked trustee of John Bacon, and that all the negotiations for the said purchase, and the purchase itself, were had between said Cooper and Bacon, the said Williams acting under the directions and for the benefit of said Bacon, and having or claiming no personal interest in said lands; that said purchase and conveyance were made for the following purpose, namely: that said Cooper should hold the same in trust for a corporation known as the National Mining Company, all of whose stock was held by said John Bacon; and by the conditions of said sale, the said Cooper was to receive, and did receive, with said conveyance, six-tenths of the stock aforesaid, and the said Bacon was to retain, and did retain, four-tenths of said stock. That the said Cooper purchased said stock and took said conveyance with a full knowledge of the claims and occupancy of the Minnesota Mining Company, and with the intention of prosecuting the title purchased by him, by legal proceedings in this court against the Minnesota Mining Company, for the benefit of the National Mining Company; and that before said conveyance was delivered to him by said Williams, the said Cooper, in conjunction with the said Bacon, applied to counsel in the city of Detroit to employ such counsel in the litigation aforesaid, which was to be had with the Minnesota Mining Company.'

The deed to the Minnesota Mining Company was for portions of the land not demanded in this suit, and by itself was not relevant. The purpose and object for which this testimony was offered is not stated; but it could have no relevancy, unless to show the title to the plaintiff below to be void, because purchased and obtained with full knowledge of an adverse possession, and support the following instruction, which was refused by the court: 'The defendant further requested the court to charge the jury, that if, when said Williams conveyed to said Cooper the premises in question, the said Minnesota Mining Company was in actual and open possession of said lands, claiming title thereto under their patent, the said conveyance was void in law against the said company and all claiming under them; which instructions the court refused to give, and to this ruling the defendant excepted.'

As the court had excluded the testimony offered to support this point of defence, the defendant could not expect that it would be submitted to the jury without evidence. We have therefore to inquire whether the testimony offered and overruled by the court ought to have been received to establish the defence of maintenance or champerty.

In this country, where lands are an article of commerce, passing from one to another with such rapidity, the ancient doctrine of maintenance, which makes void a conveyance for lands held adversely, is in many States entirely rejected. In some it has been treated as obsolete by the courts; in others it has been abolished by statute; while with some it appears to have found more favor.

The ancient policy, which prohibited the sale of pretended titles, and held the conveyance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in this country. The repeated statutes which were passed in the reigns of Edw. I and Edw. III against champerty and maintenance, arose from the embarrassments which attended the administration of justice in those turbulent times, from the dangerous influence and oppression of men in power. (See 4 Kent Com., 477.)

The earlier decisions of the courts of Michigan seem to have adopted this antiquated doctrine as a part of the common law in that State. But so far as concerns its application to sales by one out of possession, the Legislature have annulled it. The Revised Code of 1846 (page 262) enacts that 'no grant or conveyance of lands, or interest therein, shall be void for the reason that at the time of the execution thereof such lands shall be in the actual possession of another claiming adversely.'

From this enactment it is plain that the possession of the Minnesota Mining Company, under claim of title, and Cooper's knowledge of it when he purchased, cannot affect the validity of the deed of Williams to him. Although the testimony, which is the subject of this exception, was evidently offered with a view only to raise the question as above stated, the counsel for the plaintiff in error have endeavored to maintain in this court that the court below erred in rejecting it, because if received it would have shown the contract between Cooper and Bacon, and the deed from Wilson, to be void for champerty. This offence seems to have been originated by the statutes passed in the time of Edw. I and Edw. III. (See 15 Viner's Abr., 149, tit. Maintenance.) It is defined (Hawkins's Pl., 84) as the 'unlawful maintenance of a suit, in consideration of an agreement to have a part of the thing in dispute, or some profit out of it;' and by Chitty as 'a bargain to divide the land (campum partire) or thing in dispute, on condition of his carrying it on at his own expense.' In some States these statutes are held to be obsolete. But it seems that the case of Backus v. Byron (4 Mich. Rep., 535) has declared that they still retain their force in Michigan. That was an action by an attorney against his client on a contract, by which the attorney agreed to carry on a suit for a share of the land in case of success, and in case of failure to have nothing.

But in this case there was no offer to prove that Cooper had agreed to carry on the suit in consideration of receiving a share of the land in case of success; on the contrary, the offer was to show that he 'purchased stock' in a mining corporation; that the legal title to the land was conveyed to him in trust for himself and the other stockholders; and as a consequence of the legal title being vested in him, the suit was necessarily brought in his name. It needs no argument to show that such a transaction has none of the characteristics of champerty, and that the court below was right in rejecting testimony which would not, if admitted, tend to show a valid defence, and was therefore wholly irrelevant.

The judgment of the Circuit Court is therefore affirmed, with costs.

Whilst I concur entirely in the conclusion just declared by the court, that the case now decided is in its features essentially the same with that of Cooper v. Roberts, formerly before us, and reported in the 18th of Howard, p. 173, I am unwilling to place my own opinion upon the fact of the identity of the two cases, irrespective of the reasons or principles on which the former of those cases was determined. That case was elaborately discussed by counsel; was, as the opinion of the court evinces, deliberately considered; the theory and objects of the system adopted by the Government for the distribution of public lands carefully examined, correctly expounded, and properly sustained by the decision. In the reasoning of the court, the cherished objects aimed to be secured by that theory, viz: the advancement of 'religion, morality, and knowledge,' as indispensable for the existence of good government, and for the happiness of mankind; the obligation for the maintenance of schools and the means of education as necessary for the ends proposed, as declared in the third article of the ordinance of 1787, are prominently and correctly set forth as guides in the interpretation and application of the policy and system of the Government in disposing of the public domain. It seems scarely to admit of rational doubt, that it was in pursuance of this policy, and as deemed best calculated for its successful accomplishment, that in the surveys made or to be made of the public lands, the sixteenth section of every township, being central, (and therefore more than any other section could be,) connected with the several interests of the township, was appropriated for the use of schools. Admitting these to be the policy and theory of the Government, designed as it has been declared to lay the foundation of social and political good, it would seem to follow that nothing short of the highest and most overpowering public considerations, or an absolute inability or want of power, should be permitted to defeat or in any degree to control them. Surely speculations for private emolument, and still less such as might be attempted through the exercise of irregular or doubtful authority, should not be permitted to affect them.

The power vested in the President to reserve from sale such portions of land as he should deem necessary for public uses, may be classed as one of those paramount considerations, constituting a public or national necessity, reaching even to the defence of the country by fortifications or arsenals. In the same category may be placed the sanctimony of the rights of property and possession existing and vested in territories anterior to their acquisition by the United States; rights guarantied by treaty stipulations. In the same light may be viewed the withholding temporarily from sale lands in which were minerals and salt springs. All these restrictions or reservations are exceptions merely, and should be carried no farther than their terms expressly or necessarily require. They can with no propriety be regarded as forming in themselves a system; much less as overturning a system designed to be as far as practicable general and uniform, and proclaimed from its origin to be founded in wisdom and in a solemn sense of public good, and as such to be fostered and sustained. Every new State has come and will come into the Union relying on the faith of this pledge; and even upon the concession of a power in the Government to violate that pledge, such a violation could be referred to no principle of justice, and should therefore never be imputed but upon proofs the most positive and unequivocal. The sixteenth section of each township could not, it is true, be specifically designated and possessed anterior to a survey of the public lands; but the right to that section and its appropriation existed in contract or pledge by virtue of the ordinance and the laws of the United States, and the right of possession and enjoyment was matured by the execution of the surveys. It cannot be supposed that this right, so important, was destroyed or impaired by an agreement for temporary occupancy, made without reference to any survey or division of the lands, made, too, without legitimate authority; nor can such right be affected by any ordinary allowance of pre-emption, because the pledge of the Government is pre-existing, is express, and therefore paramount.

The State of Michigan was admitted into the Union under the pledge given her by the general land system of the United States; her right to the sixteenth section of each township was under that pledge fully recognised. It could not therefore, consistently with good faith, be displaced by an arrangement irregular in its origin, and temporary in its character, in its tendencies and operation conflicting with a preceding, general, and beneficial system of policy. No effectual adversary rights could grow out of such an arrangement. Upon the views herein expressed, I am in favor of an affirmance of the judgment in this cause, not merely on the ground that this cause is essentially the same with that already decided between these parties, as reported in the 18th of Howard, p. 173, but also because the opinion of this court upon the law and the facts of the last-mentioned cause commands my entire approbation.


text: Talk:Roberts v. Cooper (61 U.S. 467)/Opinion of the Court