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Providence New York Steam-Ship Company v. Hill Manufacturing Company/Opinion of the Court

The writ of error in this case brings up for consideration a judgment of the supreme judicial court of Massachusetts rendered in an action brought by The Hill Manufacturing Company against the Providence & New York Steamship Company as common carriers, to recover damages for the loss of certain goods delivered by the plaintiffs to the defendants at Providence, Rhode Island, to be transported to the city of New York; which goods, it is alleged, were, by the negligence of the defendants, burned and injured by fire. The loss is stated to have occurred in May, 1868; the action was commenced in September, 1870. The defendants first put in an answer denying the allegations of the declaration; but averring that if the goods were delivered to them for the purpose stated, they were delivered to and received by them to be transported to the city of New York over Long Island sound, (not being river or inland navigation,) and were safely transported to New York in their steamship Oceanus, and that the damage, if any, was caused by fire happening to said steamship at her dock in New York, and said fire was not caused by the neglect or design of the defendants, who were the owners of said steamship, but occurred without their privity or knowledge; and they pleaded the first and third sections of the act of congress, approved March 3, 1851, entitled 'An act to limit the liability of ship-owners, and for other purposes;' the first section of which provided as follows, to-wit:

'That no owner or owners of any ship or vessel shall be     subject or liable to answer for or make good to any one or      more person or persons any loss or damage which may happen to      any goods or merchandise whatsoever, which shall be shipped,      taken in, or put on board any such ship or vessel, by reason      or by means of any fire happening to or on  oard the said      ship or vessel, unless such fire is caused by the design or      neglect of such owner or owners.'

And the third section of said act provided as follows, to-wit:

'That the liability of the owner or owners of any ship or     vessel for any embezzlement, loss, or destruction by the      master, officers, mariners, passengers, or any other person      or persons, of any property, goods, or merchandise shipped or      put on board such ship or vessel, or for any loss, damage, or      injury by collision, or for any act, matter or thing, loss,      damage or forfeiture done, occasioned, or incurred without      the privity or knowledge of such owner or owners, shall in no      case exceed the amount or value of the interest of such owner      or owners respectively in such ship or vessel and her freight      then pending.'

The defendants subsequently amended their answer by adding a particular statement of the manner in which the loss occurred, namely, by a fire at New York, which commenced in a building on the wharf or pier at which the steamship lay after her arrival, and was rapidly communicated to the vessel, which was burnt to the water's edge, together with most of her cargo, including not only the goods of the plaintiffs, but a large quantity of goods of other persons, greatly exceeding in amount the value of the defendants' interest in the vessel and her freight then pending. The amended answer further stated, that the defendants having been sued in the present case and in other cases in New York city and elsewhere, for injuries to said cargo by said fire, and desiring as well to contest their liability, and the liability of the steamer, for the loss and damage occasioned by the fire, as also to claim the benefit of the limitation of liability provided for in the third and fourth sections of said act of congress, on May 14, 1875, filed in the proper district court of the United States having jurisdiction thereof, to wit, the district court for the southern district of New York, pursuant to said act and the rules of the supreme court of the United States in that behalf, their libel and petition, setting forth the facts and circumstances on and by reason of which such exemption from and limitation of liability were claimed, and offering to pay into said district court the amount of the defendants' interest in said vessel and freight, or to give a stipulation with sureties for the payment thereof into said court whenever the same should be ordered, praying relief in that behalf, and further praying that said district court would cause due appraisement to be had of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and would either order the same to be paid into said district court, or a stipulation to be given by the defendants with sureties for the payment thereof into said district court whenever ordered, and that said district court would issue a monition against all persons claiming damages for the loss, destruction, damage, and injury occasioned by said fire on board of said vessel, citing them to appear before said district court and make due proof of their respective claims at a time to be therein named, and also praying that said district court would designate a commissioner, before whom such claims should be presented, in pursuance of said monition; and that if upon the coming in of the report of said commissioner and confirmation thereof it should appear that said defendants were not liable for such loss, damage, destruction, and injury, it might be so finally decreed by said district court; otherwise, that the moneys paid or secured to be paid into said district court as aforesaid (after payment of the costs and expenses) should and might be divided pro rata among the several claimants in proportion to the amount of their respective claims, and praying that in the mean time, and until the final judgment should be rendered, said district court would make an order restraining the further prosecution of all and any sui or suits against said defendants in respect to any such claim or claims; that upon said libel said district court caused due appraisement to be had and made of the amount or value of the interest of said defendants in said steamer and her freight for said voyage, and duly made an order for the giving by the defendants of a stipulation with sureties for payment thereof into court whenever the same should be ordered.

The answer further stated that the defendants, pursuant to the order of said district court, entered into a stipulation, with two sureties, to pay the value of said interest and freight as so appraised into said district court whenever ordered, which stipulation was approved, and said order having been complied with, a monition was thereupon issued by said district court against all persons claiming damages for the loss, destruction, damage, and injury occasioned by said fire on board said steamer, citing them to appear before said district court and make due proof of their respective claims at or before a certain time named in said monition, to-wit, at or before the fifteenth day of October, A. D. 1872, which time was at least three months from the issuing of said monition; and designating George F. Betts, Esq., a commissioner of said district court, as the commissioner before whom such claims should be presented, in pursuance of said monition, and ordering public and other notice of said monition as therein set forth, and that said notice had been served on the said Hill Manufacturing Company, as well as on all other claimants, pursuant to said monition; and said district court duly made an order restraining the further prosecution of all and any suit or suits against the defendants in respect of any such claim or claims. The answer then referred to a certified copy of the libel and the proceedings thereon, annexed to and made part of the answer, and also made profert of said libel and proceedings, and concluded as follows:

'And these defendants further say that said fire, and the     injury thereby caused or occasioned, was without the privity or      knowledge of these defendants. And these defendants, further     answering, say that if the plaintiffs have any claim by      reason of any injury to said cotton cloth, it cannot be      enforced in this action, but can only be enforced in said      suit in said district court, and then and there only under      and pursuant to said act of congress. And these defendants,     further answering, say that said steamer Oceanus was not a      canal-boat, barge, or lighter, and was not used in rivers or      inland navigation, and that said voyage from Providence to      said city of New York was not in rivers or inland navigation;      and that an injunction has been issued by said district court      against said Hill Manufacturing Company, restraining and      enjoining them from the further prosecution of this suit, and      that said injunction has been duly served on said Hill      Manufacturing Company; and further that said Hill      Manufacturing Company sued in this court the Boston & Lowell      Railroad Company for the alleged loss and injury complained      of in the declaration in this cause to the cotton cloth      therein mentioned, and recovered therein a judgment against      said Boston & Lowell Railroad Company for said alleged loss      and injury, which judgment was settled, paid, and satisfied.'

Upon the filing of this answer the case was opened to a jury, but before any verdict was taken the case was reserved, upon the report of the judge who presided at the trial, for the consideration of the full court. In September term, 1875, it was ordered by the supreme judicial court that the case do stand for trial. Whereupon the defendants filed the following objections, viz.:

'And now, with the view of having this action taken to the     supreme court of the United States upon a writ of error, if      the final judgment therein in this honorable court shall be      against the defendants, and for the purpose of saving the      rights of the defendants, and so that their going to trial      shall not be construed a waiv r of their rights or of the      objections herein, said defendants come and object to and      protest against the ruling and decision of this honorable      court ordering and directing said action to stand for trial,      and also the ruling of this honorable court that if the loss      complained of by the plaintiff was occasioned by the neglect of defendants it must have been with their privity or      knowledge, and was not within the act of congress limiting      the liability of ship-owners; also, the ruling that the      proceedings in the district court of the United States did      not affect the jurisdiction of this honorable court.'

In April term, 1876, the cause came on for trial, and the defendants, by leave of the court, further amended their answer by setting forth, among other things, the final decree of the district court of the United States for the southern district of New York, made on the sixteenth of October, 1872, by which it was adjudged and decreed that the Hill Manufacturing Company, (the plaintiffs in the present suit,) among other parties, be forever debarred from prosecuting any claims for damages for any loss, damage, or injury occasioned by the fire on board the steamer Oceanus on the twenty-fourth of May, 1868. Thereupon the trial proceeded, and the evidence showed that the plaintiffs' goods were delivered to the defendants at Providence to be transported to New York, and were thus transported in the steamer Oceanus upon Long Island sound, and that the vessel safely arrived at New York with the goods on board, and was moored in a slip or dock on the North river side on a Sunday morning; and while lying there on that day, ready to be discharged, the fire occurred which caused the loss in question, commencing in a building on the wharf, or pier, which was used by the defendants in their transportation business. The plaintiffs adduced evidence tending to show that this building was not properly constructed and managed to avoid the risk of fire, and that the defendants were guilty of negligence in that behalf; and they contended that if the jury believed that the defendants were guilty of such negligence, they could not claim the benefit of the act of congress, but were liable to respond for the loss of the goods. The defendants adduced counter proofs, tending to show that they were not guilty of any negligence; and also put in evidence the record of proceedings upon their libel and petition in the district court of the United States for the southern district of New York, corresponding to the statements of their answer; and it was admitted that process and the restraining order issued in said suit had been duly served upon the plaintiffs. The record of proceedings in said suit is set forth in the transcript, but it is unnecessary to describe them in detail. They appear to be in conformity to the act of 1851, and to the orders made by this court relating to proceedings under said act for securing the benefit of limited liability provided for therein. They were instituted in the proper court, namely, the district court of the United States for the southern district of New York, in which district the steamer was found, or so much as remained of her after the fire. The libel and petition set forth the proper facts and made the proper allegations as well to show that neither the libelants nor the steamer were liable for the injury caused by the fire, as to show that, if there was any liability, the libelants were only liable to the extent of their interest in the vessel and freight; and upon this libel and petition, the proper proceedings were had, and the proper monition and process were issued, published and served, to ascertain the amount of the libelants' interest in the steamer and freight, and to bring all parties before the court who had any claims arising from the injury caused by the fire; and the said district court, on the thirteenth day of May, 1872, made an order restraining the further prosecution of the suits which had been commenced against the libelant in New York, which was duly served upon the respective parties concerned; and after the amount of the libelants' interest in the vessel and freight had been duly appraised, on the eighth of July, 1872, a further order was made that a monition issue against all persons claiming damages for the loss and injury occasioned by the fire on board of said steamer, citing them to appear before said district court and make due proof of their respective claims at or before the fifteenth day of October, 1872; and that the monition be published, and personally served on the attorneys, proctors, or solicitors of the plaintiffs or libelants in each of the suits brought and pending in any court in the United States against the libelants, or against the said steamer Oceanus, to recover for any such damages. A monition was duly issued in pursuance of this order, and was served * on the attorney of the plaintiffs in this suit, on the thirtieth day of July, 1872. On the second day of September, 1872, the district court made a further order against the different plaintiffs and libelants by name who had brought suits for damages, etc., and, among others, against the plaintiffs in this case, ordering them to refrain from the further prosecution of their respective suits, or any suit whatever, against the libelants (the defendants in this suit) to recover for any loss of cargo by the aforesaid fire on the steamship Oceanus; and that any further prosecution of such suits be and the same was by said order restrained. A certified copy of this order was served on the plaintiffs' attorney in this suit at Boston, on the seventh day of October, 1872, and upon their treasurer at the same place, on the ninth of the same month. On the sixteenth of October, 1872, default was taken against the plaintiffs in this case, and divers other persons, for failing to appear and present their claims before the district court, according to the monition in that behalf, and a decree was made forever debarring them from presenting, filing, or prosecuting any claims for damages for any loss or injury occasioned by said fire. After the evidence was closed, the defendants asked the court to rule that upon the whole evidence in the case the plaintiff could not maintain its action, and that the jury must find for the defendant; but the court refused so to rule. The defendants then asked the court to instruct the jury, among other things, as follows:

'(1) That under the proper construction of the act of     congress entited 'An act to limit the liability of      ship-owners and for other purpose,' (St. 1851, c. 43,) the      libel and petition of the defendant filed in the district      court of the United States for the southern district of New      York, and the proceedings had thereon, the record of which      has been put in evidence, are a bar to the plaintiff's      action.

'(2) That under the proper construction of said act of     congress the plaintiff is precluded from maintaining its      action by said proceedings in said district court.

'(3) That by the decree of said district court, made upon     said libel and petition, and the subsequent proceedings      thereon, it has been adjudged as between the parties to the present suit that      the fire which caused the damage, for which the plaintiff      seeks to recover, was not caused by the design or neglect of      the defendant within the meaning of said act of congress.'

The court refused to give these instructions; but left it to the jury to find for the plaintiffs if they were satisfied from the evidence that the fire was caused by the negligence of the defendants, either in respect to the construction and equipment of the vessel, or in respect to the construction and management of the pier or buildings thereon. To all the rulings of the court the defendant excepted; and the jury having found a verdict for the plaintiffs, the exceptions were argued before the supreme judicial court and were overruled, and judgment was entered for the plaintiffs. To that judgment this writ of error is brought. (The case, as decided by the supreme judicial court of Massachusetts, is reported in 113 Mass. 495, and 125 Mass. 292.)

The principal question in this case is whether the institution of proceedings in the district court of the United States, under the act of 1851, for procuring a decree of limited liability of the owners of the Oceanus (the defendants in the present action) for the losses and injuries to goods on board of the vessel, superseded the prosecution of claims for the same losses and injuries in other courts. It seems to us that this must be the necessary effect of such proceedings, and that this results as well from the language of the law as from its object and purpose. The first section of the act exempts shipowners from liability for losses on board of their ship by fire 'unless such fire is caused by the design or neglect of such owner or owners.' The second section relates to the shipping of precious metals and other valuables without giving notice of their character and value, and exempts the master and owners of the vessel, in such case, from liability as carriers. The third section declares that the liability of ship-owners for embezzlement, loss, or destruction of goods on board of their ship by the master, crew, passengers, or others, or for loss or damage by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending. The fourth section of the law declares:

'That if any such embezzlement, loss, or destruction shall be     suffered by several freighters or owners of goods, wares, or      merchandise, or any property whatever, on the same voyage,      and the whole value of the ship or vessel and her freight for      the voyage shall not be sufficient to make compensation to      each of them, they shall receive compensation from the owner      or owners of the ship or vessel in proportion to their      respective losses; and for that purpose the said freighters      and owners of the property, and the owner or owners of the      ship or vessel, or any of them, may take the appropriate      proceedings in any court for the purpose of apportioning the      sum for which the owner or owners of the ship or vessel may      be liable among the parties entitled thereto. And it shall be     deemed a sufficient compliance with the requirements of this      act, on the part of such owner or owners, if he or they shall      transfer his or their interest in such vessel and freight,      for the benefit of such claimants, to a trustee, to be      appointed by any court of competent jurisdiction, to act as      such trustee for the person or persons who may prove to be      legally entitled thereto, from and after which transfer all      claims and proceedings against the owner or owners shall      cease.' 9 St. 635, 636.

By the last section of the act it is declared that it shall not apply to the owner or owners of any canal-boat, barge, or lighter, or to any vessel of any description whatever, used in rivers or inland navigation.

In these provisions of the statute we have, sketched in outline, a scheme of laws and regulations for the benefit of the shipping inter est, the value and importance of which to our maritime commerce can hardly be estimated. Nevertheless, the practical value of the law will largely depend on the manner in which it is administered. If the courts having the execution of it administer it in a spirit of fairness, with the view of giving to ship-owners the full benefit of the immunities intended to be secured by it, the encouragement it will afford to commercial operations (as before stated) will be of the last importance; but if it is administered with a tight and grudging hand, construing every clause most unfavorably against the ship-owner, and allowing as little as possible to operate in his favor, the law will hardly be worth the trouble of its enactment. Its value and efficiency will also be greatly diminished, if not entirely destroyed, by allowing its administration to be hampered and interfered with by various and conflicting jurisdictions.

As the present case raises a question of great importance to the practical and successful working of the law, the decision of which, indeed, will determine whether it is to be of any real value, it will be proper to examine a little the grounds on which, as well the law itself as the proceedings adopted for carrying it into execution, rest for their support. We have no doubt that congress had power to pass the law. It is not only a maritime regulation in its character, but it is clearly within the scope of the power given to congress 'to regulate commerce.' In the case of The Lottawana, 21 Wall. 558, speaking of the power to make changes in the maritime law of the country, we said:

'Congress undoubtedly has authority under the commercial     power, if no other, to introduce such changes as are likely      to be needed. The scope of the maritime law and that of     commercial regulation are not coterminous, it is true; but      the latter embraces much the largest portion of ground      covered by the former. Under it congress has regulated the     registry, enrollment, license, and nationality of ships and      vessels; the method of recording bills of sale and mortgages      thereon; the rights and duties of seamen; the limitations of      the responsibility of ship-owners for the negligence and      misconduct of their captains and crews; and many other things      of a character truly maritime. * *  * On this subject the      remarks of Mr. Justice NELSON, in delivering the opinion of      the court in White's Bank v. Smith, 7 Wall. 655, (which     established the validity and effect of the act respecting the      recording of mortgages on vessels in the custom-house,) are      pertinent. He says: 'Ships or vessels of the United States     are creatures of the legislation of congress. None can be     denominated such, or be entitled to the benefits or      privileges thereof, except those registered or enrolled      according to the act of September 1, 1789; and those which,      after the last day of March, 1793, shall be registered or      enrolled in pursuance of the act of thirty-first December,      1792, and must be wholly owned by a citizen or citizens of      the United States, and to be commanded by a citizen of the      same. * *  * Congress having created, as it were, this species      of property, and conferred upon it its chief value, under the      power given in the constitution to regulate commerce, we      perceive no reason for entertaining any serious doubt but      that this power may be extended to the securing and      protection of the rights and title of all persons dealing      therein."

It need not be added that if congress had power to pass the act of 1851, it is binding on all courts and jurisdictions throughout the United States. We have said that, by the provisions of the act, the scheme was sketched in outline. A reference to its provisions shows that it was only in outline; and that the regulation of details as to the form and modes of proceeding was left to be prescribed by judicial authority. The law was evidently drawn in view of similar laws adopted and in operation in England and in some of the states. It laid down a few general principles and propositions, and left it to the courts to enforce them and carry them into practical effect. Although the act was passed in 1851, it stood on the statute-book for 20 years before a careful scrutiny of its provisions was demanded of this court. In the case of ''Norwich Transp. co. v. Wright'', decided in December term, 1871, and reported in 13 Wall. 104, we were called upon to interpert the act, and to adopt some general rules for the better carrying of it into effect. On that occasion a history of similar acts, both in England and this country, an examination of the general maritime law on the same subject, and the circumstances under which the act of 1851 was passed, were reviewed, and the general effect and c nstruction of the act were examined and discussed. The consideration given to the whole subject in the opinion delivered in that case, and in subsequent opinions of this court when the matter has been brought up for examination, notably in the cases of The Benefactor, 103 U.S. 239, and The North Star, 106 U.S. 17, [1 SUP. CT. REP. 41], supersedes the necessity of any minute examination of the law at this time. We will make one extract from the opinion in the case first referred to. It is there said:

'The proper course of proceeding for obtaining the benefit of     the act would seem to be this: When a libel for damages is      filed, either against the ship in rem or the owners in      personam, the latter (whether with or without an answer to      the merits) should file a proper petition for an      apportionment of the damages according to the statute, and      should pay into court (if the vessel or its proceeds is not      already there) or give due stipulation for such sum as the      court may, by proper inquiry, find to be the amount of the      limited liability, or else surrender the ship and freight by      assigning them to a trustee in the manner pointed out in the      fourth section. Having done this, the ship-owner will be     entitled to a monition against all persons to appear and      intervene pro interesse suo, and to an order restraining the      prosecution of other suits. If an action should be brought in     a state court, the ship-owners should file a libel in      admiralty, with a like surrender or deposit of the fund, and      either plead the fact in bar in the state court, or procure      an order from the district court to restrain the further      prosecution of the suit. The court having jurisdiction of the     case, under and by virtue of the act of congress, would have      the right to enforce its jurisdiction, and to ascertain and      determine the rights of the parties. For aiding parties in     this behalf, and facilitating proceedings in the district      courts, we have prepared some rules which will be announced      at an early day.'

These rules were announced at a subsequent day of the same term, and will be found at the commencement of 13 Wall. xii., xiii.

The substance of these rules, so far as relates to the purpose in hand, was as follows: That ship-owners desiring to claim the benefit of limitation of liability provided for in the third and fourth sections of the act, may file a libel or petition in the proper district court of the United States, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying relief in that behalf; and thereupon the court, having caused due appraisement to be had of the amount or value of the interest of said owners respectively in the ship or vessel, and her freight for the voyage, shall make an order for the payment of the same into court, or for the giving of a stipulation with sureties for payment thereof into court whenever the same shall be ordered; or, if the owners shall so elect, the court shall, without such appraisement, make an order for the transfer by them of their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of the act, and upon compliance with such order the court shall issue a monition against all persons claiming damages for loss or injury to goods, (respecting which the limited liability is sought,) citing them to appear before the court and make due proof of their respective claims, at or before a certain time not less than three months from issuing the same; and public notice of the monition shall be given as in other cases, and such further notice served through the post-office, or otherwise, as the court in its discretion may direct; and the court shall also, on the application of the owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owners in respect of any such claims. Provision is then made for proof of all claims before a commissioner to be appointed by the court; for a repo t thereon; and for a pro rata distribution of the money paid into court or the proceeds of the ship and freight among the several claimants. The rules further provide that the shipowners, making suitable allegations for the purpose, shall be at liberty to contest their liability, or the liability of the vessel, to pay any demages, as well as to show that if liable they are entitled to a limitation of liability under the act; and that any parties claiming damages may contest the right of the ship-owners to exemption from liability, or to the benefit of a limited liability. Finally, the fules provide that the libel or petition shall be filed and the said proceedings had in any district court of the United States in which the ship or vessel may be libeled to answer for any such loss or damage; or, if the vessel be not libeled, then in the district court of any district in which the owners may be sued; and if the ship have already been libeled and sold, the proceeds shall represent it.

The court had no doubt then, and has no doubt now, of its power to make these rules under the acts of congress which authorized it to prescribe the forms of proceeding in equity and admiralty causes. The process acts of 1792 and 1828 had declared that the forms of writs and other process, and the forms and modes of proceeding in suits in equity and in those of admiralty and maritime jurisdiction, should be according to the principles, rules, and usages which belong to courts of equity and admiralty respectively, as contradistinguished from courts of common law, except as modified by the judiciary act of 1789; but subject to such alterations and additions as the respective courts should in their discretion deem expedient, or to such regulations as the supreme court of the United States should think proper from time to time by rule to prescribe to any circuit or district court concerning the same. 1 St. 276; 4 St. 280. And the process act of 1842 gave the supreme court full power and authority to prescribe and regulate the forms of process in the district and circuit courts, and the forms and modes of framing and filing libels, bills, answers, and other proceedings and pleadings, in suits at law, in admiralty, or in equity in said courts, and the forms and modes of taking evidence, and generally the forms and modes of proceeding to obtain relief, and of drawing up and enrolling decrees, and of proceeding before trustees appointed by the court, and generally to regulate the whole practice of said courts. 5 St. 518. We are clearly of opinion that the authority thus vested in this court was adequate and sufficient to enable it to make the rules before referred to. The subject is one preeminently of admiralty jurisdiction. The rule of limited liability prescribed by the act of 1851 is nothing more than the old maritime rule administered in courts of admiralty in all countries except England from time immemorial; and, if this were not so, the subject-matter itself is one that belongs to the department of maritime law. The adoption of forms and modes of proceeding requisite and proper for giving due effect to the maritime rule thus adopted by congress, and for securing to ship-owners its benefits, was therefore strictly within the powers conferred upon this court; and, where the general regulations adopted by this court do not cover the entire ground, it is undoubtedly within the power of the district and circuit courts, as courts of admiralty, to supplement them by additional rules of their own.

We have deemed it proper to examine thus fully the foundation on which the rules adopted in December term, 1871, were based, because, if those rules are valid and binding, (as we deem them to be,) it is hardly possible to read them in connection with the act of 1851 without perceiving that, after proceedings have been commenced in the proper district court in pursuance thereof, the prosecution pari passu of distinct suits in different courts, or even in the same court, by separate claimants against the ship-owners, is, and must necessarily be, utterly repugnant to such proceedings, and subversive of their object and purpose. In promulgating the rules referred to, this court expressed its deliberate judgment as to the proper mode of proceeding on the part of ship-owners for the purpose of having their rights under the act declared and settled by the definitive decree of a competent court, which should be binding on all parties interested, and protect the ship-owners from being harassed by litigation in other tribunals. Unless some proceeding of this kind were adopted which should bring all the parties interested into one litigation, and all the claimants into concourse for a pro rata distribution of the common fund, it is manifest that in most cases the benefits of the act could never be realized. Cases might occur, it is true, in which the ship-owners could avail themselves of those benefits, by way of defense alone, as where both ship and freight are totally lost, so that the owners are relieved from all liability whatever. But even in that case, in the absence of a remedy by which they could obtain a decree of exemption as to all claimants, they would be liable to a diversity of suits brought, perhaps, in different states, after long periods of time, when the witnesses have been dispersed, and issuing in contrary results before different tribunals; while in the ordinary cases, where a limited liability to some extent exists, but to an amount less than the aggregate claims for damages, so as to require a concourse of claimants and a pro rata distribution, the prosecution of separate suits, if allowed to proceed, would result in a subversion of the whole object and scheme of the statute. The questions to be settled by the statutory proceedings being-First, whether the ship or its owners are liable at all, (if that point is contested and has not been decided;) and, secondly, if liable, whether the owners are entitled to a limitation of liability,-must necessarily be decided by the district court having jurisdiction of the case; and to render its decision conclusive, it must have entire control of the subject to the exclusion of other courts and jurisdictions. If another court may investigate the same questions at the same time, it may come to a conclusion contrary to that of the district court; and if it does, (as happened in this case,) the proceedings in the district court will be thwarted and rendered ineffective to secure to the ship-owners the benefit of the statute.

The case is very different from that of two concurrent actions for a debt or other demand proceeding at the same time in different courts; though even that, in the English law, was matter for plea in abatement in the action last instituted. Still, as both actions in such case are prosecuted for the same end,-the satisfaction of the debt,-and as only one satisfaction can be had, no essential conflict arises between the two. But the very object of proceedings for limited liability is to inquire and determine whether the parties ought to be sued at all in any other tribunal after giving up, or submitting to pay the value of, all their interest in the ship and freight. Besides, it is obvious on the face of the thing that proceedings for limited liability cannot be participated in by two jurisdictions without interference and conflict between them, and cannot have any useful effect if a different court may inquire into and decide the same question, and execute a separate judgment independent of and perhaps contrary to that of the court to which the inquiry properly belongs. Such a state of things would utterly defeat the purpose of the law. The judgment in one court would annul or render nugatory that of the other.

The inconveniences that may arise from preventing or arresting the prosecution of separate suits by the claimants are no greater in this case than in the case where proceedings at law are arrested for the pur ose of having an investigation in a court of equity, or where distinct and separate suits are restrained for the purpose of settling a common controversy in a single proceeding, as in the case of bills for preventing a multiplicity of suits, and in cases of bankruptcy. By the bankrupt act of 1867 it was enacted that no creditor whose debt was provable under the act should be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor's discharge should have been determined; although, if the amount due the creditor was in dispute, the suit, by leave of the court in bankruptcy, might proceed to judgment for the purpose of ascertaining the amount, but execution should be stayed. See Hill v. Harding, 107 U.S. 631; [2 SUP. CT. REP. 404.] None of the cases here referred to more imperatively require a cessation of proceedings in other suits for the same cause than that of the proceeding for a limitation of liability under the statute in question. Nor is the inconvenience any greater than that which occurs when a case is removed from the state to a federal court. In that case, on the presentation of a petition for removal, duly verified and showing the proper grounds for removal, and accompanied with the bond required by the statute on that subject, the law declares 'it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit.' In the case before us, as well as in the cases of bankruptcy and of removal, the parties have a right to have their causes heard and determined by a court of the United States invested with appropriate jurisdiction, and capable of affording a proper mode of relief.

In England, where the forms and modes of proceeding in the courts of admiralty are (or formerly were) greatly hampered and restricted, ship-owners seeking a decree of limited liability under the law of that country were forced to resort to the court of chancery for redress, and to call before that court the various parties interested. Here they were subjected to some onerous conditions before the court would exercise jurisdiction in their behalf, one of which was that they must confess liability for the damages which they sought to have limited in accordance with the act of parliament. But when this was done, and the amount of the confessed liability was paid into court, they were entitled to an injunction against all other suits and proceedings, wherever instituted or pending; and the cause then proceeded in due course, by reference to a master to take the proof of claims and make a report of the facts, and by a final decree of distribution. Under recent English statutes, the high court of admiralty, as well as the court of chancery, is empowered to administer the law, when it has possession of the ship or its proceeds. In the eleventh edition of Abb. Shipp., published in 1867, it is stated as follows:

'In cases where several claims are made or apportioned     against an owner for loss of life, personal injury, or loss      or damage to ships, boats, of goods, the court of chancery      and the high court of admiralty, whenever any ship or      proceeds thereof are under its arrest, in England and      Ireland, and the court of session in Scotland, and any      competent court in a British possession, are empowered to      entertain proceedings at the suit of such owner for the      purpose of determining the amount of his liability, and for      the distribution ratably of such amount, and to stop all      actions and suits pending in any other court in relation to      the same subject-matter.'

It is believed that in all other countries except England the courts of admirality, or tribunals of commerce having cognizance of maritime causes, exclusively exercise this jurisdiction; and no other courts can really exercise it so conveniently and satisfactorily as those courts can. And the general course of proceeding, in whatever courts it is exercised, shows the necessity, everywhere acknowledged, that the court exercising the jurisdiction in any case should have exclusive control of the case. In view of these considerations, and having no doubt of the jurisdiction of the district court over the matter, as courts of admiralty, in the rules adopted in December term, 1871, the district court of the district in which the vessel is libeled or found, or in which the owners are sued, was designated as the proper court in which to institute the proceedings for obtaining a decree of limited liability. When cases arise in which the vessel and freight have been totally lost, and no district court has, or can have, possession of any fund to distribute, resort may probably be had with propriety to the district court of the district in which the owners reside, or where the vessel perished. It will be time enough, however, to consider what is proper in such exceptional cases when they arise. In Ex parte Slayton, 105 U.S. 451, we held that jurisdiction accrued to the district court of the district comprising the port to which the vessel was bound, although she had been sunk in the lake and only a few fragments were washed ashore, the proceeds of which, however, amounting to a trifling sum, were deposited in the court. On this branch of the subject the following remarks were made in the opinion pronounced in the case of ''Norwich Transp. Co. v. Wright, supra:''

'The act does not state what court shall be resorted to, nor     what proceedings shall be taken; but that the parties, or any      of them, may take 'the appropriate proceedings in any court,      for the purpose of apportioning the sum for which,' etc. Now,      no court is better adapted than a court of admiralty to      administer precisely such relief. It happens every day that     the proceeds of a vessel, or other fund, is brought into that      court to be distributed among those whom it may concern. Claimants are called in by monition to present and     substantiate their respective claims; and the fund is divided      and distributed according to the respective liens and rights      of all the parties. Congress might have invested the circuit     courts of the United States with jurisdiction of such cases      by bill in equity, but it did not. It is also evident that     the state courts have not the requisite jurisdiction. Unless,     therefore, the district courts themselves can administer the law, we are      reduced to the dilemma of inferring that the legislature has      framed a law which is incapable of execution. This is never     to be done if it can be avoided. We have no doubt that the     district courts, as courts of admiralty and maritime      jurisdiction, have jurisdiction of the matter; and this court      undoubtedly has the power to make all needful rules and      regulations for facilitating the course of proceeding.' 13      Wall. 123.

We see no reason to modify these views, and, in our judgment, the proper district court, designated by the rules, or otherwise indicated by circumstances, has full jurisdiction and plenary power, as a court of admiralty, to entertain and carry on all proper proceedings for the due execution of the law, in all its parts; and its decrees, in cases subject to its jurisdiction, are valid and binding in all courts and places. In the present case, the proper court undoubtedly was the district court of the United States for the southern district of New York, where the remains of the vessel were situated, and where suits were brought against the owners. Proceedings under the act having been duly instituted in this court, it acquired full jurisdiction of the subject-matter; and having taken such jurisdiction, and procured control of the vessel and freight, (or their value,) constituting the fund to be distributed, and issued its monition to all parties to appear and present their claims, it became the duty of all courts before which any of such claims were prosecuted, upon being properly certified of the proceedings, to suspend further action upon said claims. But the power of the district courts to issue an injunction to stay proceedings n a state court is questioned, since, by the judiciary act of 1793 (1 St. at Large, 335,) it was declared that no writ of injunction shall be granted [by the United States courts] 'to stay proceedings in any court of a state.' But the act of 1851 was a subsequeut statute, and, by the fourth section of this act, after providing for proceedings to be had under it for the benefit of ship-owners, and after declaring that it shall be deemed a sufficient compliance with its requirements on their part if they shall transfer their interest in ship and freight for the benefit of the claimants to a trustee to be appointed by the court, it is expressly declared, that 'from and after [such] transfer, all claims and proceedings against the owners shall cease.' Surely, this injunction applies as well to 'claims and proceedings' in state courts as to those in the federal courts; and while the district court having jurisdiction of the case, for the purpose of enforcing the act of congress and the rules adopted by this court in pursuance thereof, can only direct an injunction against the parties, and not against the courts in which such 'claims and proceedings' are prosecuted, yet any further proceedings on the part of said courts, after being judicially informed by plea or suggestion duly made in the cause of the action and proceedings in the district court, would be against the express words of the act, and clearly erroneous. The operation of the act, in this behalf, cannot be regarded as confined to cases of actual 'TRANSFER,' (WHICH IS MERELY ALLOWED As a sufficient compliance with the law,) but must be regarded, when we consider its reason and equity and the whole scope of its provisions, as extending to cases in which what is required and done is tantamount to such transfer; as where the value of the owners' interest is paid into court, or secured by stipulation, and placed under its control for the benefit of the parties interested.

This view of the statutory injunction, and of its effect upon separate actions and proceedings, renders it unnecessary to determine the question as to the legality of the writ of injunction issued by the district court. Although we have little doubt of its legality, the question can only be properly raised on an application for an attachment for disobeying it. As the writ was issued prior to the adoption of the Revised Statutes, the power to issue it was not affected by any supposed change of the law introduced into the Revision by the 720th section, of which the prohibition of the act of 1793, in regard to injunctions against proceedings in state courts, has this exception appended to it: 'Except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.' Under the rule of expressio unius, this express exception may be urged as having the effect of excluding any other exception, though it is observable that the injunction clause in the act of 1851 is preserved without change in section 4285 of the Revised Statutes, and will probably be construed as having its original effect due to its chronological relation to the act of 1793. But, as before indicated, the legality of the writ of injunction is not involved in this case. In our opinion the state court, in overruling the plea of the defendants, which set up the proceedings pending in the district court, and in ordering the cause to stand for trial, and again, on the trial, in overruling as a defense the proceedings and decree of the district court as set up in the amended answer, disregarded the due effect, as well as the express provisions, of the act of 1851, and therein committed error. It was the duty of the court, as well when the proceedings pending in the district court were pleaded and verified by profert of the record as when the decree of said court was pleaded and proved, to have obeyed the injunction of the act of congress, which declared that 'all claims and proceedings shall cease.' When the plea only showed that proceeding for limited liability were pending and undetermined in the district court, probably a stay of proceedings was all that the defendants could require; but when they set up and produced the final decree of that court, forever debarring the plaintiffs from prosecuting any claim for damages, they were entitled either to a verdict and judgment in their favor or to a dismissal of the proceedings.

We have assumed in the foregoing discussion that the case of loss and damage by fire on board of a ship is within the provisions of the third and fourth sections of the act of 1851. This, however, is disputed, and it is necessary to examine the question. The language of the third section (which governs also the fourth) is certainly broad enough to embrace cases of loss by fire. It declares that the liability of the owner or owners of any ship or vessel 'for any act, matter or thing, loss, damage, or forfeiture, occasioned or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending.' Why should liability for loss by fire be excepted from the relief here prescribed? It is just as much within the reason of the law as any other liability; and it is within its terms. If it is excepted, it must be by virtue of some implication arising from other parts of the law. Such an implication is sought in the first section, which declares that no owner or owners of a ship or vessel shall be liable to answer for any loss or damage which may happen to any goods on board of such ship or vessel by reason or means of any fire happening to or on board of said ship or vessel, 'unless such fire is caused by the design or neglect of such owner or owners.' It is contended that this section covers the whole ground so far as liability for losses by fire is concerned; and therefore such liability must be impliedly excepted from the relief provided by section three. But we fail to see why this should necessarily follow. Fire, except when produced by lightning, not being regarded in the commercial law as the act of God, ship-owners, as common carriers, were held liable for any loss or damage caused thereby. The first section of the act of 1851 was no doubt intended to change this rule. It was copied (all except the last clause) from the second section of 26 Geo. III. c. 86, passed in 1786. The last clause of the section, excepting from its operation cases in which the fire is caused 'by the design or neglect' of the owners, was probably implied in the English statute without being expressed, as in ours. In all cases of loss by fire, not falling within the exception, the exemption from liability is total. But there is no inconsistency or repugnancy in allowing a partial exemption in cases falling within the third section; that is, cases of loss by fire happening without the privity or knowledge of the owners. They may not be able, under the first section, to show that it happened without any neglect on their part, or, what a jury may hold to be neglect; while they may be very confident of showing, under the third section, that it happened without their privity or knowledge. The conditions of proof, in order to avoid a total or a partial liability under the respective sections, are very different. It is true the owners of a ship may desire to contest all liability whatever, as well as to establish a limited liability, if they fail in the first defense; and this they may do, as well in cases of loss by fire as in other cases, in one and the same proceeding. And we see no repugnancy between the two defenses. One is a more perfect defense than the other, and requires a different class or degree of proofs. That is all. In our judgment the case of loss or damage by fire is comprised within the terms and relief of the third and fourth sections of the act.

The judgment of the supreme judicial court of Massachusett is reversed and the cause remanded, with directions to take such further proceedings as may be in accordance with this opinion.


text: Talk:Providence New York Steam-Ship Company v. Hill Manufacturing Company/Opinion of the Court

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


text:
Robertson v. Pickrell

J. G. Bigelow, for plaintiffs in error.

''Saml. B. Paul and F. W. Jones'', for defendants in error.

FIELD, J.

title: Robertson v. Pickrell


text: Talk:Robertson v. Pickrell

title: Talk:Robertson v. Pickrell


text:
Robertson v. Pickrell/Opinion of the Court

This was an action of ejectment for a parcel of land in the city of Washington, District of Columbia. On the trial the plaintiffs gave in evidence a conveyance of the premises from the United States to one Robert Moore, executed in June, 1800; and then endeavored to trace title from the grantee through a devise in his last will and testament, bearing date in July, 1803. For this purpose they produced and offered a transcript of proceedings in the hustings court of Petersburg, in the state of Virginia, containing a copy of the will, and of its probate in that court in December, 1804. By the law of Virginia then in force that court was authorized to take the probate of wills, as well of real as of personal estate; and when a will was exhibited to be proved, it could proceed immediately to receive proofs, and to grant a certificate of its probate. Within seven years afterwards its validity was open to contestation in chancery by any person interested; but, if not contested w thin that period, the probate was to be deemed conclusive, except as to parties laboring at the time under certain disabilities, who were to have a like period to contest its validity after the removal of their disabilities. The transcript was offered, not merely as an exemplified copy of the record of the last will and testament of Robert Moore, and of its probate in the hustings court, but also as conclusive proof of the validity of the will, and of all matters involved in its probate. Upon objection of the defendants' counsel, it was excluded, and an exception was taken to the exclusion. This ruling of the court constitutes the principal error assigned for a reversal of the judgment. We think the ruling was correct. Looking at the transcript presented, we find that it shows only that a paper purporting to be the last will and testament of the deceased was admitted to record upon proof that the instrument and the signature to it were in his handwriting. No witnesses to its execution were called, no proof was offered of the genuineness of the signatures of the parties whose names are attached to it as witnesses, and no notice was given to parties interested of the proceedings in the hustings court. As a record it furnishes no proof of an instrument executed as a last will and testament in a form to pass real estate in the District of Columbia. The execution of such a will must be attested by at least three witnesses. It matters not how effective the instrument may be to pass real property in Virginia, it must be executed in the manner prescribed by the law in force in the district to pass real property situated there, and its validity must be established in the manner required by that law. It is familiar doctrine that the law of the place governs as to the formalities necessary to the transfer of real property, whether testamentary or inter vivos. In most of the states of the Union a will of real property must be admitted to probate in some one of their courts before it can be received elsewhere as a conveyance of such property. But by the law of Maryland, which governs in the District of Columbia, wills, so far as real property is concerned, are not admitted to such probate. The common-law rule prevails on that subject. The orphans' court there may, it is true, take the probate of wills, though they affect lands, provided they affect chattels also; but the probate is evidence of the validity of the will only so far as the personal property is concerned.

As an instrument conveying real property the probate is not evidence of its execution. That must be shown by a production of the instrument itself, and proof by the subscribing witnesses; or, if they be not living, by proof of their handwriting.

So it matters not that the same effect is to be given in the courts of this district to the record of the hustings court, which, by the law of Virginia, can be given to it there; that is, that it is to be received as sufficient to pass the title to real property situated in that state.

The question still remains, is the instrument sufficient to pass title to real property in the District of Columbia? If so, it should have been produced and proved in the manner mentioned. If, as stated by counsel, it is on file in the hustings court, and by the law of Virginia cannot be removed, then it should have been proved under a commission, as other instruments out of the state are proved, when it is impossible to compel their production in court.

The act of congress declaring the effect to be given in any court within the United States to the records and judicial proceedings of the several states, does not require that they shall have any greater force and efficacy in other courts than in the courts of the states from which they are taken, but only such faith and credit as by law or usage they have there. Any other rule would be repugnant to all principle, and, as we said on a former occasion, would contravene the policy of the provi ions of the constitution and laws of the United States on that subject. Board of Public Works v. Columbia College, 17 Wall. 529.

It does not appear that the validity of the will of Moore, as probated in 1804 in the hustings court of Petersburg, was ever afterwards contested in a court of chancery in Virginia. Its probate must therefore be deemed conclusive, so far as that state is concerned, and the will held sufficient to pass all property which can be there transferred by a valid instrument of that kind. But no greater effect can be given out of Virginia to the proceedings in the hustings court. The probate establishes nothing beyond the validity of the will there. It does not take the place of provisions necessary to its validity as a will of real property in other states, if they are wanting. Its validity as such will, in other states, depends on its execution in conformity with their laws; and if probate there be also required, such probate must be had before it can be received as evidence.

Authority for these views is found in the cases of McCormick v. Sullivant and of Darby v. Mayer, both reported in 10 Wheat. 192, 465. In the first of them it appeared that by the law of Ohio, before a will devising real property can be considered as valid, it must be presented to the court of common pleas of the county where the land lies for probate, and be proved by at least two of the subscribing witnesses, unless it has been proved and recorded in another state according to its laws; in which case an authenticated copy can be offered for probate without proof by the witnesses. A will devising real property in that state was admitted to probate in the state of Pennsylvania, and this court held that such probate gave no validity to the will in respect to the real property in Ohio, as to which the deceased was to be considered as having died intestate. 10 Wheat. 202, 203. In the second case, which was an action of ejectment for land in Tennessee, the defendant endeavored to trace title to the premises through the will of one Kitts. For that purpose a copy and probate of the will devising the property were produced in evidence, certified from the orphans' court of Baltimore county, Maryland, and admitted against the objection of the plaintiff. This court held that record inadmissible, and in its opinion explained the common law doctrine as to what was legal evidence in an action of ejectment to establish a devise of real property. It stated that the ordinary's probate was no evidence of the execution of the will in ejectment; that where the will itself was in existence and could be produced, it was necessary to produce it; and that when the will was lost or could not be produced, secondary evidence was necessarily resorted to; but that, whatever the proof, it was required to be made before the court which tried the cause, the proof before the ordinary being ex parte, the heir at law having no opportunity to cross-examine the witnesses, and the same solemnities not being required to admit the will to probate, which are indispensable to give it validity as a devise of real property. And the court added that the law of Maryland, with regard to the evidence of a devise in ejectment, was the common law of England, and had been so recognized in decisions of the courts of that state. 10 Wheat. 468, 469.

The first of these cases shows that the probate of a will of real property in one state is of no force in establishing the validity of the will in another state. That must be determined by the laws of the state where the property is situated. The second case shows that the proof of a devise of land in ejectment in Maryland (and its law obtains in this district) must be made by the production of the will in court, and evidence of its execution by the subscribing witnesses; or, if the will be lost, or cannot be produced, the proof must be made by secondary evidence of its execution and contents.

The plaintiffs contend that they can use the record of the ustings court in Virginia as proof of the genuineness of the instrument, and then supplement that proof by parol evidence that the original was executed by three witnesses, and thus establish it as a will sufficient to pass real estate in the District of Columbia. But in this contention they overlook a material circumstance. It is not sufficient to give effect to an instrument as a will of real property that its genuineness merely be established. Its genuineness must be shown by the witnesses, if they are living, who attested its execution and heard the declaration of the testator as to its character; and, if dead, their handwriting must be proved, as already stated. No other proof will answer; certainly not the probate of the will on ex parte testimony by a tribunal of another state or country.

When the record of the will and probate were excluded, the plaintiffs offered parol evidence to show that the copy of the will in the record was a true copy of the original now on file in the hustings court. Upon objection, the evidence was excluded, and we think properly so. The proof of such copy would not have established the validity of the original instrument as a will to pass real property in the District of Columbia. The law of Maryland of 1785, upon which the plaintiff relies, assuming that it is still in force, which may be doubted, was not designed to change the formalities required by the local law for the validity of wills of real property executed in other states, but to give to authenticated copies of such instruments, when recorded or filed with the register there, the same force and efficacy which would attend the originals if produced.

Failing to secure the introduction of the record of the hustings court and the parol evidence mentioned, the plaintiffs insisted that the defendants were estopped from asserting an adverse title against them. To support their position they introduced a deed by one Robertson and his wife, Maria, executed in 1839, to one Samuel Redfern, conveying the premises for the life of the said Maria, and then showed conveyances in fee of the property from Redfern to one Fraser, and from Fraser to one John Pickrell, then a devise of the property by him to Anna Pickrell, and by her to the defendants; and that the plaintiffs are heirs of Robertson and wife, who are dead, Maria having died in 1873; and they contended that the conveyance by Robertson and wife of a life estate to the grantor of parties through whom the defendants trace their interest, precluded them from asserting any title against the right of the plaintiffs to the reversion as heirs of Robertson and wife. This position was assumed upon the notion that a party who receives a deed of a life estate, and all persons taking a subsequent conveyance in fee from him or his grantees, or deriving title by devise from such grantees, are estopped to deny that the reversion upon the termination of the life estate is vested in the grantor or his heirs.

There was here, of course, no estoppel by deed against Redfern, the grantee of the life estate, for he did not join in the execution of the instrument, nor is his seal annexed to it. If any estoppel was created against his acquisition of the reversion from other parties than his grantors, or persons claiming under them, it was one in pais; and that can arise as between grantor and grantee only where from the relation of the parties there is implied in the acceptance of possession under the deed an obligation to restore the possession on the happening of certain events, or to hold the property for the grantor's benefit or persons designated by him, such as exists from the relation of landlord and tenant, of mortgagor and mortgagee, or the creator of a trust and trustee. Gardner v. Greene, 5 R. I. 110.

The doctrine that a lessee entering into possession under a lease is estopped, while retaining possession, to deny his landlord's title, is familiar. That arises from the nature of the contract of lease, which is for the possession and use, for a prescribed period, of the lessor's property, upon considerations to him by way of rent or otherwise. It implies an obligation to surrender the premises to the lessor on the termination of the lease; that is, at the expiration of the time during which the owner has stipulated that the lessee may have the use and possession of his property. As said by this court in Blight's Lessee v. Rochester:

'The title of the lessee is in fact the title of the lessor. He comes in by virtue of it, holds by virtue of it, and rests     upon it to maintain and justify his position. He professes to     have no independent right in himself, and it is a part of the      very essence of the contract under which he claims that the      paramount ownership of the lessor shall be acknowledged      during the continuance of the lease, and that possession shall be surrendered at its expiration. He cannot     be allowed to controvert the title of the lessor without      disparaging his own, and he cannot set up the title of      another without violating that contract by which he obtained      and holds possession, and breaking that faith which he has      pledged, and the obligation of which is still continuing and      in full operation.'

And in speaking, in the same case, of the relation between vendee and vendor, the court added:

'The vendee acquires the property for himself, and his faith     is not pledged to maintain the title of the vendor. The     rights of the vendor are intended to be extinguished by the      sale, and he has no continuing interest in the maintenance of      his title, unless he should be called upon in consequence of      some covenant or warranty in his deed. The property having     become by the sale the property of the vendee, he has a right      to fortify that title by the purchase of any other which may      protect him in the quiet enjoyment of the premises. No     principle of morality restrains him from doing this, nor is      either the letter or the spirit of the contract violated by      it.' 7 Wheat. 547, 548.

See, also, Willison v. Watkins, 3 Pet. 43; Watkins v. Holman, 16 Pet. 54; and Tayl. Landl. & Ten. § 14.

To this general statement of the law there is this qualification: that a grantee cannot dispute his grantor's title at the time of conveyance so as to avoid payment of the purchase price of the property; nor can the grantee in a contest with another, while relying solely upon the title conveyed to him, question its validity when set up by the latter. In other words, he cannot assert that the title obtained from his grantor, or through him, is sufficient for his protection, and not available to his contestant. Where both parties assert title from a common grantor, and no other source, neither can deny that such grantor had a valid title when he executed his conveyance. Ives v. Sawyer, 4 Dev. & B. 51, and Gilliam v. Bird, 8 Ired. Law, 280. The case of Board v. Board, to which counsel refer, was decided upon similar grounds; there the defendant in ejectment, claiming as grantee under the devisee of a life estate under a will, was held to be estopped from denying the validity of the will in an action by the grantees of the remainder-man. L. R. 9 Q. B. 48. With exceptions or limitations of this character it will be found, on examination of the authorities, particularly those of a modern date, that the doctrine of estoppel in pais, however it may have been applied formerly, cannot now be asserted to preclude the grantee from denying his grantor's title and acquiring a superior one, unless there exist such a relation of the parties to each other as would render the proceeding a breach of good faith and common honesty. No such relation exists between grantor and grantee in an absolute conveyance, without recital or covenant, whether it be of the fee or of an estate for life. The grantee does not recognize, by the acceptance of such a conveyance of an estate for the life of another, the possession of any greater estate in the gran or, or any obligation to hold the premises for him after the termination of the estate. So far as he is informed, by such a conveyance he takes the entire interest of the grantor in the property. He does him, therefore, no wrong by purchasing any adverse claims which may strengthen his own title, or which may give him a title after the termination of the life estate. Covenants in the instrument intended for him, such as to restore and surrender the premises on the termination of the life estate, or recitals declaring the reversion to be in the grantor or others, would of course change the relations of the parties. Obligations from such covenants or recitals might arise which would control the action of the grantee. Atlantic Dock Co. v. Leavitt, 54 N. Y. 39. Here, as already stated, there is nothing of the kind. The conveyance is for the life of Maria, and no longer, and without covenants or recitals as to any further interest of the grantors or of others. By taking a deed poll of this character, no obligation to the grantors could arise, and, consequently, no estoppel precluding the grantee, and those claiming under him, from accepting conveyances from other sources to strengthen their existing interests or to acquire the reversion, and thus securing to themselves the absolute fee. In Osterhout v. Shoemaker, 3 Hill, 518, the supreme court of New York held a similar doctrine as to the relation between grantor and grantee in fee. Speaking by Judge BRONSON, it said:

'There is no estoppel where the occupant is not under an     obligation, express or implied, that he will at some time, or      in some event, surrender the possession. The grantee in fee     is under no such obligation. He does not receive the     possession under any contract, express or implied, that he      will ever give it up. He takes the land to hold for himself,     and to dispose of it at pleasure. He owes no faith or     allegiance to the grantor, and he does him no wrong when he      treats him as an utter stranger to the title.'

This language was subsequently cited with approval by the court of appeals of the state in the case of Sparrow v. Kingman, 1 N. Y. 254, and there is no reason why it should not apply with equal force to a grantee of an estate for life as to a grantee in fee. There is nothing in the nature of the estate which necessarily implies that the grantor is the owner of the reversion. The absence in the deed here of any reference to a reversionary interest would rather seem to negative such ownership. Be that as it may, there was no implied obligation from any relation of the parties to each other which could estop the grantee of the life estate, or persons claiming under him, from denying the title of his grantors to any greater estate than the one conveyed, or from acquiring title to the reversion from other sources.

We have considered in this opinion that Redfern took possession of the premises in controversy under the deed to him of the life estate, because, on the argument, that fact was assumed as established; but there is no direct evidence on the point in the record. Judgment affirmed.


text: Talk:Robertson v. Pickrell/Opinion of the Court


text:
Sweeney v. United States

[Syllabus from page 618 intentionally omitted]

[Statement of Case from pages 618-620 intentionally omitted]

T. W. Bartley and M. I. Southard, for appellant.

Asst. Atty. Gen. Maury, for appellee.

WAITE, C. J.

title: Sweeney v. United States


text: Talk:Sweeney v. United States

title: Talk:Sweeney v. United States


text:
Sweeney v. United States/Opinion of the Court

This judgment is affirmed on the authority of Kihlberg v. U.S. 97 U.S. 398. It was provided in the contract that payment for the wall was not to be made until some officer of the army, civil engineer, or other agent, to be designated by the United States, had certified, after inspection, 'that it was in all respects as contracted for.' The officer of the army designated under this authority expressly refused to give the necessary certificate, on the ground that neither the material nor the workmanship were such as the contract required. The court below found that there was neither fraud nor such gross mistake as would necessarily imply bad faith, nor any failure to exercise an honest judgment on the part of the officer in making his inspections. The appellant was notified of the defective character of the material and that it would not be accepted before he put it into the wall, and after he had completed his work the wall which he constructed was taken down by order of the quartermastergeneral, and a new one made of other material built in its place.

Judgment affirmed.


text: Talk:Sweeney v. United States/Opinion of the Court


text:
Board County Comissioners of the County of Cherokee v. Wilson

Wallace Pratt, for plaintiff in error.

''Jas. S. Botsford and Jos. Shippen'', for defendant in error.

WAITE, C. J.


text: Talk:Board County Comissioners of the County of Cherokee v. Wilson


text:
Board County Comissioners of the County of Cherokee v. Wilson/Opinion of the Court

On the eleventh of June, 1881, William C. Wilson, the defendant in error, recovered a judgment in the circuit court of the United States for the district of Kansas, against the township of Salamanca, Cherokee county, for $48,920.31. At that time the office of trustee of the township was vacant, and it has not been filled since. On the twenty-fourth of July, 1882, Wilson sued out of the same court an alternative writ of mandamus, returnable on the ninth of October, 1882, requiring the board of county commissioners of the county 'to forthwith levy upon the taxable property * *  * in said township *  *  * a tax sufficient in amount for the payment of the judgment *  *  * and cause the same to be certified to the county clerk of said county,' and requiring the clerk of the county 'to extend said tax forth with on the tax books of said county and deliver the same with said tax so levied and extended thereon to the county treasurer of said county;' and the county treasurer forthwith, after the tax books shall have been delivered to him by the clerk, 'to proceed to collect said taxes and pay the same, when so collected, to said William C. Wilson, in payment of said judgment, interest, and costs,' or show cause why they had not so done. This writ was served on the individual members of the board of county commissioners, and on the clerk and treasurer of the county, on the twenty-sixth of July. On the twenty-seventh of November, 1882, the respondents filed a motion to quash the writ, and on this motion raised two questions, to-wit: (1) Whether the writ was not sued out prematurely; and, (2) whether, under the statutes of Kansas, the county commissioners could legally do that which the writ sought to coerce them into doing. Before this motion was disposed of, the individual members of the board of county commissioners filed an answer, and, after the testimony was closed, Wilson moved for a peremptory writ. Upon the hearing of this motion and the motion to quash, the judges holding the court were divided in opinion on the following questions: (1) Whether said motions respectively should be sustained or overruled; (2) whether it is the legal duty of the board of county commissioners of Cherokee, under the statutes of the state of Kansas, to levy the tax as commanded by the alternative writ of mandamus herein, for the payment of the judgment of the relator against Salamanca township, in said county, based upon interest coupons detached from bonds issued by said township to pay shares of capital stock in a railroad company, which bonds were voted under the act of the general assembly of the state of Kansas, entitled 'An act to enable municipal townships to subscribe for stock in any railroad and to provide payment of the same,' approved February 25, 1870, and issued September 1, 1872, under the act of said general assembly, entitled 'An act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water-powers, or other works of internal improvement, and providing for the registration of such bonds, and the repeal of all laws in conflict therewith,' approved March 2, 1872.

The circuit judge was of opinion that the motion to quash should be overruled, and that for the peremptory writ granted. A judgment awarding the writ was thereupon entered, and the questions as to which the difference of opinion arose were duly certified. The case is now here on a writ of error for an answer to these questions.

The act of February 25, 1870, authorized the township to subscribe to the capital stock of the Memphis, Carthage & Northwestern Railroad Company, and to issue bonds to pay the subscription. That was settled by the judgment against the township, on account of which the mandamus is asked.

Every township in Kansas is a body corporated and politic. Section 1, (5965,) Dassler's Comp. Laws, 977. The trustee is the principal officer of the township, and his duty is, among other things,-section 22, (5988,) Dassler's Comp. Laws, 980,-to 'superintend all the pecuniary concerns of his township,' and, at the July session of the board of county commissioners, annually, with the advice and consent of the board, to levy a tax on the property of the citizens of the township, for township, road, and other purposes, and report the same to the county clerk for entry on the tax roll, 'but, in a failure of such trustee and commissioners to concur, then the board of county commissioners shall levy such township, road, and other taxes.' The board of county commissioners are required by law to meet in regular session on the first Monday in July of each year. Section 13, (1397,) Dassler's Comp. Laws, 274. They must also meet on the first Monday day in August in each year, to estimate and determine the amount of money to be raised by tax for all county purposes, and all other taxes which they shall be required by law to levy. Section 83, (5886,) Dassler's Comp. Laws, 956. The county clerk must make up the taxlist immediately after the first Monday in August, and deliver it to the treasurer for collection on or before the first Monday in November. Section 84, Dassler's Comp. Laws.

Section 6 of the act of February 25, 1870, under which the bonds involved in this proceeding were issued, is as follows:

'Sec. 6. Whenever any bonds shall be issued in pursuance of     the foregoing provision, it shall be the duty of the board of      county commissioners annually to proceed to levy and collect      a tax on all the taxable property in such township sufficient      to pay the interest on such bonds as the same becomes due,      and to create a sinking fund sufficient to pay said bonds at      maturity; and such tax shall be collected in cash or the      couponse of such bonds which may be due; and such tax shall      be collected as county and township taxes are collected, and      paid out by the treasurer, on presentation of the coupons or      bonds, when due; and the county clerk, treasurer, and other      officers who may be required to do any act under the      foregoing provisions, shall be entitled to the same fees as      are allowed by law for similar services, and liable to the      same fines and penalties for non-compliance.'

The act of March 2, 1872, referred to in the second question certified, was repealed, so far as it affects this case, by the act of March 9, 1874, (Sess. Laws 1874, p. 41,) sections 7 and 13 of which are as follows:

'Sec. 7. It shall be the duty of the proper officers of any     county, city, or township, in which bonds have been      heretofore voted for any of the purposes mentioned in the act      to which this act is amendatory, annually, at the time when      other taxes are levied, to levy and cause to be collected a      sufficient tax to pay the interest on all such bonds as the      same shall become due, and also for the purpose of creating a      sinking fund for the final redemption of such bonds. * *  *

'Sec. 13. It will be the duty of the board of county     commissioners of any county in which railroad bonds shall be      issued under the provisions of this act, annually, at the      time when other taxcs are levied, to levy and cause to be      collected, as other taxes are levied and collected, a      sufficient tax to pay the interest on all bonds issued for      railroad purposes by such county, or any township therein, as the same falls due, and also for the purpose      of creating a sinking fund for the final redemption of such      bonds.'

These statutes were in force when the alternative writ of mandamus was sued out in this case. The judgment against the township was rendered on the eleventh of June, 1881. It therefore became the duty of the proper officers to levy the tax at the time fixed by law for that purpose in the year 1881. No such levy was made, and, consequently, all officers whose duty it was to make the levy were in default when the alternative writ was sued out in 1882. If follows that the writ was not prematurely issued if it was the duty of the board of county commissioners to make the levy when there was no trustee of the township. The fact that the board may not have had actual notice of the rendition of the judgment until November, 1881, does not affect their legal obligation to make the levy. It may be accepted as an excuse for not performing that duty, but it does not relieve them from the consequences of their legal default.

The township trustee is in law the principal officer of the township. It is his duty to superintend all the pecuniary concerns of the township, and, with the advice and concurrence of the board of county commissioners, to levy all taxes required to meet the liabilities of the township not otherwise provided for by law; but, if he fails in this duty, the board must, as we think, make the necessary levies for him. To that extent the board is charged with the duty of caring for the interests of the township. Such is the fair meaning of section 22, (5988.) Under that section the township trustee is required to attend the meeting of the board in July of each year and lay before them his recommendations for taxes to be levied. As his levy can only be made with the concurrence of the board, there must necessarily be an inquiry by the board into the pecuniary concerns of the township, so as to determine whether what is recommended by the trustee is enough or more than enough to meet its liabilities for the current year. If the trustee has omitted a tax for any prupose, which the law requires to be levied, it is the clear duty of the board to make the levy themselves if the trustee will not. The trustee and the commissioners are made in law a tribunal to meet in July in each year to estimate and determine what taxes are required in the township for the year. If both the trustee and commissioners are present at the meeting and agree as to what should be done, the trustee reports the tax to the county clerk; but if the trustee is not present, or being present does not agree with the commissioners, the opinion of the commissioners prevails, and they may proceed without him. This is the evident purpose of the provision that, 'in failure of such trustee and commissioners to concur,' the board shall make the levy. The tax to pay the judgment in this case was one of the taxes to be levied on the property of the township to pay a township debt. It is true that this section of the law was enacted in substance years before the bonds involved in this suit were issued, but unless it has been in some was superseded by reason of the special acts connected with the particular obligation of these bonds, it governs this case. So far as we are advised, if the tribunal, consisting of the trustee and county commissioners, are relieved from their general supervision of the needs of the township in the way of taxation for these bonds, it is only to put that duty on the board alone. If on the board, it was clearly their duty to levy the tax without the trustee at the meeting in August, 1881, because the legal liability of the township had then been judicially established. If, however, it was a matter in respect to which the trustee should act conjointly with them, both they and the trustee were in default in July, 1881. In any view of the case, the obligation to levy the tax had been imposed on the county commissioners when the alternative writ was sued out, and they have shown no good cause why the levy was not made.

The board of county commissioners have alone brought this writ of error. So far as appears, the clerk and treasurer are satisfied with what has been done in reference to them. The board are in no condition to complain for the other officers, because, under the law, they must levy the tax before the others can act, and, if the levy is made, the duties of the clerk and treasurer are purely ministerial. The whole proceeding depends on the duty of the board to levy the tax. We conclude, therefore, that the motion to quash should have been overruled, and the motion for judgment sustained. The first question is answered accordingly. The second question is answered in the affirmative.

As the judgment was in accordance with these answers it is affirmed.


text: Talk:Board County Comissioners of the County of Cherokee v. Wilson/Opinion of the Court


text:
Salamanca Township v. Wilson

Wallace Pratt, for plaintiff in error.

''Jas. S. Botsford, and Jos. Shippen'', for defendant in error.

WAITE, C. J.

title: Salamanca Township v. Wilson


text: Talk:Salamanca Township v. Wilson

title: Talk:Salamanca Township v. Wilson


text:
Salamanca Township v. Wilson/Opinion of the Court

In this case the judges holding the circuit court have certified a difference of opinion between them upon the hearing of a motion to set aside the service of summons on the plaintiff in error, being the defendant below. The return of service is in these words:

'Received the within writ, September the 12th, 1882. I served     the within summons on said township of Salamanca, Cherokee      county, state of Kansas, by delivering a true and certified      copy thereof to Joseph A. Jones, the last elected and      qualified treasurer of said Salamanca township, in the county      of Cherokee, state and district of Kansas; and I made      diligent search and inquiry for, but could not find, in the township of Salamanca, or county      of Cherokee, state and district of Kansas, the last elected      and qualified trustee or clerk of said within defendant,      township of Salamanca.

'All done this eighteenth day of September, A. B. 1882.

'B. F. SIMPSON,

'U.S. M., Dist. of Kansas.

'By J. H. SMITH, Deputy.'

The controlling question certified is as follows:

'(2) Whether service of said summons upon Joseph A. Jones,     the last elected and qualified treasurer of said township,      after said Jones had removed out of said township and across      the line into the adjoining township of Crawford, in said      county of Cherokee, was good and sufficient service of said      summons.'

It is not denied that the service was good if Jones was, in law, the treasurer of the township when served. By the constitution of Kansas, art. 9, § 4, township officers, except justices of the peace, hold their offices one year from the Monday next succeeding their election, and until their successors are qualified. Jones was therefore presumptively in office when served, unless his removal across the line into Crawford township of itself created a vacancy. Borton v. Buck, 8 Kan. 302; Rheinhart v. State, 14 Kan. 318; Hubbard v. Crawford, 19 Kan. 570.

There is nothing in the constitution or laws of Kansas which requires a township treasurer to be a resident of or voter in the township when elected or qualified; neither is there anything which vacates the office if the officer removes from the township during the term for which he was elected. Justices of the peace are township officers, and as to them it is expressly provided that they 'shall reside and hold their office in the township for which they shall have been elected.' Section 4, (5970,) Dass. Comp. Laws, (1879,) 978. As no similar provision is made in respect to any other township officer, the implication necessarily is that actual residence in the township is not required of them. Expressio unius est exclusio alterius. That residence, as a qualification for office, was in the minds of the framers of the constitution and of the legislature is apparent, for article 3, § 11, of the constitution, provides that all judicial officers 'shall reside in their respective townships, counties, and districts during their respective terms of office;' article 2, § 4, that 'no person shall be a member of the legislature who is not at the time of his election a qualified voter of and resident in the county or district for which he is elected;' and section 218 (1643) of the General Statutes, (Dass. Comp. Laws, 311,) that 'ceasing to be an inhabitant of the county for which he was elected or appointed' vacates the office of a county officer. Undoubtedly the removal of a township treasurer from a township may, under some circumstances, vacate his office and authorize the county commissioners to fill the place,-section 12, (1978,) Dass. Comp. Laws, 978;-but we think it does not necessarily vacate the office under all circumstances. In the present case the question is whether moving 'across the line' into an adjoining township of itself has that effect. In our opinion it does not, and consequently we answer the second question certified in the affirmative.

The motion to set aside the service was therefore properly overruled, and the judgment is affirmed.


text: Talk:Salamanca Township v. Wilson/Opinion of the Court


text:
Petition of Boyer and Another for a Writ of Prohibition

Robert Rae, for petitioners.

C. E. Kremer, for respondents.

BLATCHFORD, J.


text: Talk:Petition of Boyer and Another for a Writ of Prohibition