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Doe Lessee of Poor v. Considine/Opinion of the Court

ERROR to the Circuit Court of the United States for the Southern District of Ohio.

The lessors of the plaintiff in error brought an action of ejectment in that court to recover certain real estate now here in controversy. The parties agreed upon the facts. Under the instructions given to the jury, they found for the defendants, and judgment was rendered accordingly.

The plaintiff excepted to the instructions, and this writ was prosecuted upon the ground that they were erroneous.

William Barr, Senior, died on the 15th of May, 1816, leaving a will duly admitted to probate in Hamilton County, Ohio. It was out of the will that the controversy arose.

The testator left three daughters: Mary, the wife of William Barr; Susan, the wife of John B. Enness; and Mary B., the wife of James Keys. He left also one son, John M. Barr, who, at the time of his father's death, had living, a wife, Maria Barr, and an infant daughter, Mary Jane Barr.

John M. Barr, the son of the testator, died on the 10th of August, 1820.

Mary Jane Barr, the daughter of John M. Barr, died on the 27th of November, 1821. Maria Barr, her mother, died on the 3d of August, 1860.

The sons-in-law and daughters of the testator were all dead, each one leaving children born in lawful wedlock.

The testator also left living at the time of his death four brothers and two sisters. They are all dead. Two of them left no lineal heirs.

The will contained among others the following provisions:

'I give and devise unto my sons-in-law, William Barr, James Keys, and John B. Enness, of Cincinnati aforesaid, and to their heirs, all and singular, that certain farm, tract or parcel of land, situate, lying, and being in the country of Hamilton, State of Ohio, which I purchased of John Cross, containing one hundred and sixty acres, to hold the same premises to them and their heirs in trust, (first) for the use of my son, John M. Barr, during his natural life; but, nevertheless, to permit and suffer my son, John M. Barr, to hold, use, occupy, possess, and enjoy the said farm, and to receive and take the rents and profits thereof, during his natural life. And in case my said son, John M. Barr, should die leaving a legitimate child, or children, then, also, in trust for Maria Barr, wife of the said John M. Barr, in case she survive him, during her natural life, for the purpose of maintaining hereself and the said child, or children, and educating the said children; but, nevertheless, to permit and suffer the said Maria Barr, wife of the said John M. Barr, to hold, use, occupy, possess, and enjoy the said farm, and to receive and take the rents and profits thereof, during her natural life. And upon the decease of the said Maria Barr, wife of the said John M. Barr, in case she survive him; if not, then upon the decease of the said John M. Barr, I do further give and devise the remainder of my estate in said farm unto the legitimate child, or children, of the said John M. Barr, and their heirs forever. If my said son leave but one child, as aforesaid, then I give and devise the said farm to him or her, or his or her heirs forever. But, if he leave two or more children, then I give and devise the said farm unto such children and their heirs, to be equally divided between them. But should my said son, John, M. Barr, die without leaving any issue of his body, then, and in that case, I do give and devise the remainder of my estate in the said farm unto my said sons-in-law, William Barr, James Keys, and John B. Enness, and their heirs forever.

*    *     *

'Also, I do further give, devise, and bequeath the remainder of my estate, both real and personal, to my sons-in-law, William Barr, James Keys, and John B. Enness.'

John M. Barr having died, leaving no issue but Mary Jane Barr, and she having died in infancy, unmarried, and the life estate of her moh er, Maria Barr, having terminated by the death of that person, the question was presented, In whom is vested the title to the premises in controversy?

The lessors of the plaintiffs claimed title under the three sons-in-law of the testator, or their wives, who were his daughters.

The defendants claimed through the heirs of the brothers and sisters of the testator, under the statute of descents of Ohio, of the 30th of December, 1815, which was as follows:

§ I. That when any person shall die intestate, having title to any real estate of inheritance lying and being in this State, which title shall have come to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass in parcenary to his or her kindred, in the following course:

1. To the children of such intestate or their legal representatives.

2. If there be no children, or their legal representatives, the estate shall pass to the brothers and sisters of the intestate, who may be of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or of the half blood of the intestate.

3. If there be no brothers and sisters of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the estate came by deed of gift from an ancestor who may be living, the estate shall ascend to such ancestor.

4. If there be neither brother nor sister of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the ancestor from whom the estate came be deceased, the estate shall pass to the brothers and sisters of the ancestor from whom the estate came, or their legal representatives; and for want of such brothers and sisters, or their legal representatives, to the brothers and sisters of the intestate of the half blood, or their legal representatives, though such brothers and sisters be not of the blood of the ancestor from whom the estate came.

5. If there be no brothers or sisters of the intestate, or their legal representatives, the estate shall pass to the next of kin to the intestate of the blood of the ancestor from whom the estate came.

The court instructed the jury—

1. That at the death of the said Mary Jane Barr, the granddaughter of the testator and daughter of said John M. Barr, she was seized of a vested remainder.

2. That at the death of the said Mary Jane Barr, her said estate in said farm descended to the brothers and sisters of the said testator then alive, and the legal representatives of such of them as were then deceased.

3. That the trust estate to the sons-in-law was only an estate par autre vie and terminated at the death of Maria Barr; but whether that trust estate continued or not after her death the result is the same, for if the estate so vested in Mary Jane Barr were only an equitable estate, no recovery could be had against the parties in possession under her title, in favor of the trustees or their heirs; and in no event, except the death of John M. Barr without issue, did the will give to the sons-in-law any interest in the property in controversy, other than the temporary trust estate.

The correctness of these instructions was the matter before the court.

Messrs. T. Ewing and H. H. Hunter, for the plaintiffs in error:

Two controlling questions are presented, the determination of either of which, in favor of the plaintiff, must result in a reversal, namely:

First. Whether the devise over, of the remainder in fee, to the sons-in-law, took effect on the death of Maria Barr, in favor of their heirs, they being dead, the issue of John M. Barr having failed by the death of his daughter Mary Jane, without issue, in the lifetime of the said Maria?

Second. Whether, assuming that the remainder in fee did not vest in the heirs of said sons-in-law, on the death of the said Maria, in virtue of the devise to them, the said her s-at-law, being also heirs-at-law of their deceased mothers-the daughters of the testator-did not inherit the said remainder under the statute of descents, from the said Mary Jane, as her next of kin, of the blood of the testator, the ancestor, from whom the estate came?

A legal estate in fee passed to the trustees, and continued in them during the life of John M. Barr, and during the life of his wife-each of them holding only an equitable use during their respective lives. During the life of the father-and after his death, during the life of the mother-no fee vested in the issue of the marriage. If the fee continued in the trustees till the death of the wife, the remainder to the issue, which was a fee also, could not vest till that time. Two distinct fees in the same tenements, cannot, under any circumstances, be made to coexist. The remainder given is a remainder in fee; it can, therefore, never vest until the fee given to the trustees ceases, and as the fee given to them must continue until both the parents die, the fee given to the child cannot vest until both parents are dead.

We need not inquire whether, up to the time of the termination of the life estate, under the circumstances, active duties might not have been devolved upon the trustees. There would have been, if the widow had been ousted by a wrongdoer. But be that as it may, the legal title was vested in them, in trust, and it cannot be pretended, that, so long as the life estate continued, they could have been required, by anybody interested, to convey to them the legal title.

What was the testator's intent in placing the legal title pending the estate for life, in the hands of his sons-in-law, his residuary legatees? Plainly that, if the issue of his son should fail in the meantime, the title should then be in the possession of those, in whose behalf was included in his will the alternative devise of the remainder.

Did the remainder devised to the child or children of John M. Barr, 'upon the decease of Maria Barr,' vest in Mary Jane and her heirs forty years before it was expressed to be devised to her?

The time of the remainder vesting could not be more distinctly and definitely fixed than it is in this will. The devisor does not say that the issue of John M. Barr shall come into possession on the decease of Maria Barr, but he says, upon the decease of Maria Barr, I give and devise the remainder.' The estate commences at the time of the happening of the event named in the devise-that is, upon the decease.' We use this term habitually in this sense. 'A. inherited upon the decease of his father.' A gift upon a day is not a gift forty years before the day; or a gift upon the happening of an event, a gift before the event happens.

Children and heirs, and issue in this devise, all mean the same thing. This is but in accordance with settled rule. Issue is the only term which will represent the will of the testator in every situation. Thus, in the trust to support and educate the children of John M. Barr charged on Maria Barr's life estate, grandchildren were doubtless also intended, and issue in its strict sense would embrace them.

Now, when is the failure of issue contemplated by the testator when he says, 'Should my said son John M. Barr die without leaving any issue of his body, then and in that case I do give and devise the remainder of my estate in the said farm to my said sons-in-law, &c., and their heirs forever'-to take place? Is it at the instant of the death of John M. Barr? Is it an indefinite failure of issue? Or is it a failure of issue at the falling in of the last life estate? The last would bs t conform to legal rules, and also much the best to the general intent of the testator. There can be no rational object in fixing it at any other time or the happening of any other event, and the court habitually moulds adverbs of time, and phrases implying time, to meet the intent of testators, and subserve the ends of justice. Such adverbs and such phrases generally relate to the taking effect in possession, not in estate, in case of a devise in remainder, so as to make it vested rather than contingent. But this adverbial rule is merely ancillary to the great rule of carrying out the intent, and where it does not aid and support that, it is not to be regarded. The words and phrases must be understood in their popularly accepted meaning wherever that meaning will best carry out the intent. It would be a monstrous perversion to accept and sustain a rule, no matter by whom devised, or by whom or how many adopted, the obvious effect of which would be to defeat the intention of the devisor. The rule, as it is called, that holds a remainder vested even by forcing the language, has its origin in a purpose to save, not to defeat, the intent of the grantor or devisor by saving the remainder from many of the accidents which destroy it if contingent. Yet, even in these cases, the early vesting of a remainder is not an end, but a means; and if it do not tend to carry out and effect the true end-the transfer of the estate in accordance with the will of the devisor-it is not to be respected as a rule. If it tend to defeat the paramount end-that end for the effecting of which all rules were adopted-it must be rejected as an error and a mischief.

This case is subject to none of the casualties attending remote remainders against which early vesting was intended to guard. It would not be subject to them in England, being protected against them by the attendant trust estate in the sons-in-law. But destroy the effect of the phrase 'upon the decease of Maria Barr,' and make the estate vest in the issue of John M. Barr one life or two lives sooner than the devisor intended, you defeat the general intent of the devisor; and the clause so construed passes the estate out of the issue of the devisor and out of his devisees, and vests it in collaterals. Olney v. Hull is in point. In that case the devise was of the testator's lands to his wife while she remained his widow; but, in case of her death or marriage, the land then to be divided among his surviving sons. It was held that the devise over was to such of his sons as should be survivors at the termination of the wife's estate for life, and that the remainder was contingent upon the uncertainty which of the sons should then be living. 'Until the death of the mother it was uncertain which of the sons would be alive to take?' The court treated the language used as it would be treated in the every-day business of life. It understood the devisor's plain language without resorting to cases and digests to find out what somebody else said or meant; and which, when found and applied to his devise, would have defeated the estate which he intended to create.

It will be argued that the intent of the devisor will be best carried out by making the remainder to the children of John M. Barr vest at once, so that the estate will pass to their heirs, inasmuch as they are the first objects of the testator's bounty, and he intended the estate for them. Certainly, he intended it for them, if living, and our construction takes nothing from the devise to the living issue of John M. Barr. But, when all were dead-a state of things contemplated and provided for who were the next objects of the testator's bounty, his own descendants or collateral relatives? The devise over to the sons-in-law answers the question. The testator provides for his daughters by m plication through them.

But, assuming that Mary Jane had, at the time of her death, a vested estate descendible through her under the devise from her ancestor, William Barr, to whom does that estate pass under the statute of descents?

The first, second and third classes provided for in that statute are in our case wanting; but the next of kin of the intestate of the blood of the ancestor from whom the estate came, living at the death of the intestate, were the three daughters of the said ancestor; and the plaintiff's lessors are their heirs-at-law, or claim under such heirs. They are clearly entitled to the inheritance under the fifth clause of the section, unless, upon a proper construction, the brothers and sisters of the ancestor from whom the estate came, are, by the first part of the fourth clause of the section, to be preferred to his children.

That construction is unnatural; and no other reason can be assigned in favor of it than that the fourth clause is inserted before the fifth, in successive order, in framing the section. This, however, is merely a mechanical arrangement. Now, although the mechanical structure of the different parts of the act is such that the successive priorities in favor of one class of legal representatives of an intestate over another, is generally indicated by the successive order observed in the structure of the act, yet that is not, upon any sound principle, such a circumstance as should have a controlling effect, or subvert a manifest intention otherwise apparent.

We would read the fourth clause before the fifth.

This arrangement will not in the least impair the effect of each of the clauses of the section in their proper application to facts as they may arise in cases. Full effect will be given to the fifth clause by applying it to the facts of this case; and this may be done without changing a word or a letter, and without any transposition or displacement of any of the clauses, or parts of the section; and without preventing the due application of the fourth clause to the facts of cases in which it is properly applicable.

Here, the general intent in regard to estates in lands of which an intestate died seized, the title to which came to him by devise, descent, or deed of gift, from an ancestor, is, that if the intestate leave no child, or brother or sister, or their legal representatives, the estate shall pass to such of the legal representatives of the intestate, according to the statutory canons of descent, as are of the blood of the ancestor from whom the estate came; and surely the general intent in regard to the order of succession amongst those who shall take by reason of their being of the blood of the ancestor, must be taken to be according to the same statutory canons of descent. No arbitrary departure from this obvious general intent can be recognized, unless required by very express and vigorous language.

Authorities show that a mechanical order may be departed from, to reach by construction a general intent.

In an Ohio case, the court in construing an act of the legislature so as to make it conform to the legislative intent, held that a clause which was included in the second section of the act, should be read as if included in the first section, and as qualifying the provisions of that section. Other cases indicate the same superior value of a general intent over mere mechanical structure.

If this argument be rejected, it will be only because of a supposed conflict between the fourth and fifth clauses. The facts of the case are fitted to the terms of the fifth clause, and by force of that clause, abstractly considered, carried the remainder in fe, on the death of Mary Jane, to her aunts, the daughters of the testator, as her heirs-at-law. Now if this result is in any way doubtful, it can only be because the first part of the fourth clause conflicts with the fifth clause, and seems to admit of being so applied as to sustain the claim asserted by the defendants, that the brothers and sisters of the testator, and not his daughters, were the heirs-at-law of said Mary Jane. Admitting (what we do not concede) that there is such conflict between the provisions, which shall give place to the other? The rule applicable to the construction of conflicting statutory provisions is, that the last in order of time, or in the order of their being set down in the enactment, must take effect; the same rule, both of reason and necessity, as in the familiar case of conflicting provisions in a will.

Messrs. Stanbery and H. H. Lincoln, contra, argued the case elaborately on principle and on authorities, contending—

1. That the devise to the trustees carried the legal estate after the death of John M. Barr, to the cestui que trusts; there having been no duty imposed on the trustees which required that estate to be longer in the trustees; a point, however, which the counsel did not consider important; equitable estates being subject as to devises and descents to the same rule as legal ones.

2. That the remainder to Maria Jane Barr was at no time a contingent remainder, she being in esse at the death of the testator.

3. That it was from the first a vested remainder, but during the life of the father was subject to be devested in the event of her not surviving her father and by force of the devise over to the sons-in-law on that event.

4. That at the death of the father this vested remainder became absolute-and fully vested in right, though postponed as to enjoyment until the death of the mother-but not defeasible, as before, on her death during the life of her mother.

5. That Maria Jane Barr having been vested with this remainder at the date of her death, and she dying intestate, the estate descended, under the statute of descents of 1815, and on the plain meaning of that statute if read in its declared order the only allowable order-to the brothers and sisters of the testator.

The counsel in support of their views submitted the opinions of eminent lawyers of Ohio, including those of Messrs. Timothy Walker, J. C. Wright, Tappan Wright, Nathan Wright, and J. A. Pugh, given many years ago, on this same title, to persons as was said about to purchase, and in accordance with the view assumed by the court below. They referred also to an act of the Ohio legislature, passed in 1835, changing the provisions of the act of 1815, which confessedly governed this case, to the extent, but no further, of carrying the estate to the children of the ancestor from whom the same came, and next after them to his brothers and sisters; that which the opposite counsel contended was already the rule under the act of 1815; but which if it had been as was now argued, would have rendered the act of 1835 useless.

Mr. Justice SWAYNE delivered the opinion of the court.

1. At the threshold of the subject before us, the inquiry arises as to the extent of the trust estate vested by the will in the three sons-in-law of the testator.

The determination of this point is not vital in the case; for whether they took the legal fee or not, and whether the estate of Mary Jane Barr was legal or equitable in its character, the result must be the same. The same rules of law apply to descents and devises of both classes of estates; and if in this case an equitable fe in remainder was vested in Mary Jane Barr at the time of her death, while the legal fee as dry trust was held by the sons-in-law, those holding the latter title could not recover in this action against parties clothed with the equitable estate, and entitled to the entire beneficial use of the property. But we entertain no doubt upon the subject.

The devise contains words of inheritance. It is to the trustees 'and to their heirs.' This language, if unqualified by anything else in the clause, would pass the fee. But when we look to the purposes of the trust, and the power and duties of the trustees, we find them limited to two objects:

1. The trustees were to permit John M. Barr to enjoy the premises and receive the rents, issues and profits during his life.

2. If John M. Barr should die, leaving issue, and his wife Maria should survive him, then they were to permit her, during her life, to enjoy the possession and profits of the property.

A drier trust could not have been created. The duties of the trustees were wholly passive. They were authorized to do no act. They were simply to hold the estate committed to them until one or both the events defining the boundary of its existence had occurred. It was to subsist in any event during the life of John M. Barr, and if he died, leaving issue, and his wife survived him, it was to subsist also during her life. The executors were directed, in any event, to make an expenditure upon the property, and to take the fund from the personal estate. This duty had no connection with the trust, and its bearing upon the case is in nowise affected by the fact that the executors and trustees happened to be the same persons. Whether John M. Barr died with or without issue, the entire object of the trust was fulfilled, and its functions were exhausted when the persons for whose benefit it was created ceased to live. 'The remainder of the estate in said farm,' in the language of the testator, thereupon passed according to the provisions of the will. It is neither expressed nor implied that the trust estate should exist any longer, and no imaginable purpose could be subserved by its longer continuance. When a trust has been created, it is to be held large enough to enable the trustee to accomplish the objects of its creation. If a fee simple estate be necessary, it will be held to exist though no words of limitation be found in the instrument by which the title was passed to the trustee, and the estate created. On the other hand, it is equally well settled that where no intention to the contrary appears, the language used in creating the estate will be limited and restrained to the purposes of its creation. And when they are satisfied, the estate of the trustee ceases to exist, and his title becomes extinct. The extent and duration of the estate are measured by the objects of its creation.

Jarman says: 'Trustees take exactly the estate which the purposes of the trust require; and the question is not whether the testator has used words of limitation, or expressions adequate to carry an estate of inheritance, but whether the exigencies of the trust demand the fee simple, or can be satisfied by any and what, less estate.'

Chancellor Kent says: 'The general rule is that a trust estate is not to continue beyond the period required by the purposes of the trust; and notwithstanding the devise to the trustees and their heirs, they take only a chattel interest where the trust does not require an estate of higher quality.'

This doctrine rests upon a solid foundation of reason and authority, irrespective of the presence or absence of the statute of uses. The consequences in this case of the absence of such a statute in Ohio, it is therefore not necessary to consider.

We are of opinion that the trust estate of the sons-in-law of the testator was only an estate par autre vie, and that it terminated at the death of Maria Barr.

II. This brings us to the consideration of the question, what was the estate, in quantity and quality, of Mary Jane Barr at the time of her decease?

The hinge upon which turns this part of the controversy is the following language of the will:

'And upon the decease of the said Maria Barr, wife of the said John M. Barr, in case she survive him; if not, then upon the decease of the said John M. Barr, I do further give and devise the remainder of my estate in said farm unto the legitimate child or children of the said John M. Barr, and their heirs forever. If my said son leave but one child, as aforesaid, then I give the said farm to him or her, ''or his or her heirs forever. But, if he leave two or more children, then I give and devise the said farm unto such children, and their heirs'', to be equally divided between them. But should my said son, John M. Barr, die without leaving any issue of his body, then, and in that case, I do give and devise the remainder of my estate in the said farm unto my said sons-in-law, William Barr, James Keys, and John B. Enness, and their heirs forever.'

The plaintiff in error claims that this clause is an executory devise, and that it gave to Mary Jane Barr a contingent estate, to take effect upon the event of her outliving both her parents, and not otherwise; and that as she died before her mother, no title or interest ever vested in her.

The defendants claim that upon the death of the testator, Mary Jane Barr took under the will a vested remainder, subject to open and let in after-born children, if any there were, and deferred as to the period of enjoyment until the death of the one parent who should survive the other, but liable to no other contingency, and limited by no other qualification.

This point of the will must be examined by its own light, and also in the light of the adjudications in like cases.

Considering it without the aid of authority, we have no difficulty in coming to a conclusion as to its proper construction.

1. A legal estate par autre vie, to three sons-in-law in trust.

2. An equitable life estate, with the usufruct of the property to John M. Barr.

3. In case he should die, leaving issue, and his wife Maria should survive him, then an equitable estate for life to her with the usufruct of the property, for the benefit of herself and the surviving child or children of John M. Barr.

4. A vested remainder in fee simple to the child of John M. Barr, living at the time of the death of the testator, subject to open and let in the participation of after-born children, and liable to be devested by their dying before their father, but not liable to be defeated by any other event.

5. The devise over to the three sons-in-law was an alternate or collateral contingent remainder; and if John M. Barr had died leaving no children surviving him, that remainder would thereupon at once have vested and been converted into an absolute fee simple estate.

In no event, except the death of John M. Barr without issue, did the will give them any interest in the property other than the temporary trust estate.

By the vesting of the remainder in Mary Jane Barr, at the death of the testator and the death of her father, this provision in behalf of the sons-in-law became as if it were not. It was utterly annulled, and could not thereafter tak effect either as a contingent remainder or as an executory devise. We are satisfied the testator did not extend his vision or seek to control this property beyond the period of the death of his son, John M. Barr. With a view to that event he made two provisions equally absolute, emphatic, and final in their terms. In that respect there is no difference. The result, whether the one or the other should take effect, was to depend upon the single fact whether John M. Barr died with or without surviving children.

The language used carried the entire estate of the testator in the premises alike in both cases, and we can no more hold the word 'heirs' to be the synonym of 'issue,' or otherwise qualify the estate intended to be given in the one case than in the other.

The theory of the counsel for the plaintiff derives no support from the principle of human nature, which not unfrequently impels a testator to transmit his property, as far as possible, in the line of his descendants. Here Barr, Keys and Enness were not of the blood of the testator. He could not but be aware that if they took the property it might pass from them, by descent or purchase, to those who were strangers to his blood, and in nowise connected with his family.

Having disposed of the property absolutely at the death of his son, he left the future, beyond that boundary, with its undeveloped phases, whatever they might be, to take care of itself.

III. We will now examine the case in the light of principle and authority.

A vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in futuro. There must be a particular estate to support it. The remainder must pass out of the grantor at the creation of the particular estate. It must vest in the grantee during the continuance of the estate, or eo instanti that it determines.

A contingent remainder is where the estate in remainder is limited either to a dubious and uncertain person, or upon the happening of a dubious and uncertain event.

A contingent remainder, if it amount to a freehold, cannot be limited on an estate for years, nor any estate less than freehold. A contingent remainder may be defeated by the determination or destruction of the particular estate before the contingency happens. Hence, trustees are appointed to preserve such remainders.

An executory devise is such a disposition of real property by will that no estate vests thereby at the death of the devisor, but only on a future contingency. It differs from a remainder in three material points:

1. It needs no particular estate to support it.

2. A fee simple or other less estate may be limited by it after a fee simple.

3. A remainder may be limited, of a chattel interest, after a particular estate for life in the same property.

The law will not construe a limitation in a will into an executory devise when it can take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested.

It is a rule of law that estates shall be held to vest at the earliest possible period, unless there be a clear manifestation of the intention of the testator to the contrary.

Adverbs of time-as where, there, after, from, &c.-in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of the vesting in interest.

Where there is a devise to a class of persons to take effect in enjoyment at a future period, the estate vests in the persons as they come in esse, subject to open and let in others as they are born afterward.

An estate once vested will not be devested unless the intent to devest clearly appears.

The law does not favor the abeyance of estates, and never allows it to arise by construction or implication.

'When a remainder is limited to a person in ess and ascertained, to take effect by express limitation, on the termination of the preceding particular estate, the remainder is unquestionably vested.'

This rule is thus stated with more fulness by the Supreme Court of Massachusetts. 'Where a remainder is limited to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event that must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainder-man is in esse and ascertained, provided nothing but his own death before the determination of the particular estate, will prevent such remainder from vesting in possession; yet, if the estate is limited over to another in the event of the death of the remainder-man before the determination of the particular estate, his vested estate will be subject to be devested by that event, and the interest of the substituted remainder-man which was before either an executory devise or a contingent remainder, will, if he is in esse and ascertained, be immediately converted into a vested remainder.'

In 4th Kent's Commentaries, 282, it is said: 'This has now become the settled technical construction of the language and the established English rule of construction.' It is added: 'It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present capacity of taking effect in possession-if the possession were to become vacant-distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues.'

It is further said in the same volume: 'A. devises to B. for life, remainder to his children, but if he dies without leaving children remainder over, both the remainders are contingent, but if B. afterward marries and has a child, the remainder becomes vested in that child, subject to open and let in unborn children, and the remainders over are gone forever. The remainder becomes a vested remainder in fee in the child as soon as the child is born, and does not wait for the parent's death, and if the child dies in the lifetime of the parent, the vested estate in remainder descends to his heirs.'

We have quoted this ln guage because of its appositeness to the case under consideration. The propositions stated are fully sustained by the authorities referred to. Other authorities, too numerous to be named, to the same effect, might be cited. We content ourselves with referring to a part of those to which our attention has been called in the briefs in this case.

This doctrine received the sanction of the Supreme Court of Ohio in Jeefers v. Lampson, where it was adopted and applied. The leading authorities relied upon by the counsel for defendants in error in this case were cited by the court and control the result. We are bound by this decision as a local rule of property.

The same doctrine has been sanctioned by this court.

According to the theory of the plaintiff's counsel, if Mary Jane Barr had married and had died before her mother, leaving children, they would have been cut off from the estate. Surely the testator could not have intended such a result.

In three of the cases, substantially like this as to the point under consideration, brought to our attention by the counsel for the defendants in error, this consequence of such a construction was adverted to by the court.

In Carver v. Jackson, the court say: 'It is also the manifest intention of the settlement, that if there is any issue, or the issue of any issue, such issue shall take the estate, which can only be by construing the prior limitation in the manner in which it is construed by this court.'

In Goodtitle v. Whitby, Lord Mansfield said: 'Here, upon the reason of the thing, the infant is the object of the testator's bounty, and the testator does not mean to deprive him of it in any event. Now, suppose that the object of the testator's bounty marries and dies before his age of twenty-one, leaving children, could the testator intend in such an event to disinherit them? Certainly he could not.'

In Doe v. Perryn, Buller, Justice, said: 'But if this were held not to vest till the death of the parents, this inconvenience would follow, that it would not go to grandchildren; for if a child were born who died in the lifetime of his parents, leaving issue, such grandchild could not take; which could not be supposed to be the intention of the devisor.'

Mary Jane Barr was, at the death of the testator, within every particular of the category, which, according to the authorities referred to, creates a vested remainder.

1. The person to take was in esse.

2. She was ascertained and certain.

3. The estate was limited, to take effect in her absolutely, upon the death of her father.

4. That was an event which must unavoidably happen by the efflux of time.

5. Nothing but her death, before the death of her father, would defeat the remainder limited to her.

6. She had a fixed right of property on the death of the devisor. The period of enjoyment only was deferred and uncertain.

7. The time of enjoyment in possession depended upon the death of her mother. The right was in nowise dependent on that event.

8. Upon th death of her father, she surviving him, her estate, before defeasible, became indefeasible and absolute.

We are thus brought to the conclusion, upon technical as well as untechnical grounds, that Mary Jane Barr had, at the time of her death, an indefeasible estate of remainder in fee in the premises in controversy.

In the view we have taken of this case, the doctrine of shifting uses can have no application; we therefore forbear to advert to the rules of law relating to that subject.

IV. Mary Jane Barr having died unmarried and intestate, it remains to inquire to whom her estate passed.

The descent cast was governed by the statute of December 30th, 1815.

The first section only applies to the subject.

The first part of the fourth clause of that section is as follows:

'4. If there be neither brother nor sister of the intestate of the blood of the ancestor from whom the estate came, or their legal representatives, and if the ancestor from whom the estate came be deceased, the estate shall pass to the brothers and sisters of the ancestor from whom the estate came, or their legal representatives.' This gave the property 'to the brothers and sisters' of the testator, 'or their legal representatives.'

The language of this clause is plain and unambiguous. There is nothing in the context, rightly considered, which qualifies or affects it. There is, we think, no room for construction. We concur entirely in the views of the eminent counsel, whose professional opinions, long since written, have been submitted to us. We think the point hardly admits of discussion. If there could be any doubt on the subject, it is removed by the act of 1835, which substitutes for the rule of descent here under consideration, the one which we are asked to apply. Were we to adopt the construction claimed by the plaintiff's counsel, instead of adjudicating we should legislate. That we have no power to do. Our function is to execute the law, not to make it.

The instructions given by the court to the jury were in accordance with the views we have expressed. We find no error in the record, and the judgment is

AFFIRMED.


text: Talk:Doe Lessee of Poor v. Considine/Opinion of the Court

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


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Walkley v. City of Muscatine

APPEAL from a decree of the Circuit Court of the United States for Iowa.

A bill had been filed in that court to compel the authorities of the city of Muscatine to levy a tax upon the property of the inhabitants, for the purpose of paying the interest on certain bonds, to the amount of $130,000, that had been issued for the benefit of the Mississippi and Missouri Railroad Company. It appeared that a judgment had been recovered in the same court against the city for $7666, interest due on the bonds held by the plaintiff; that execution had been issued and returned unsatisfied, no property being found liable to execution; that the mayor and aldermen had been requested to levy a tax to pay the judgment, but had refused; that the city authorities possessed the power under their charter to impose a tax of one per cent. on the valuation of the property of the city, and had made a levy annually, but had appropriated the proceeds to other purposes, and wholly neglected to pay the interest on the bounds before the judgment, or to pay the judgment since it was rendered. The bill prayed that the mayor and aldermen might be decreed to levy a tax, and appropriate so much of the proceeds as might be sufficient to pay the judgment, interest, and costs. An answer was put in, and replication and proofs taken. On the hearing the court dismissed the bill. The creditor appealed.

Mr. J. Grant, for the appellant:

In The Board of Commissioners of Knox County v. Aspinwall, where the application was for a mandamus to compel the levy of a tax, this court, in answer to an argument that the creditor could have relief in equity alone, say:

'A court of equity is sometimes resorted to as ancillary to a court of law in obtaining satisfaction of its judgment. It is no objection to the writ of mandamus that the party might possibly obtain another remedy by new litigation in a new tribunal.'

The court holds, apparently, that a writ of mandamus is a cumulative remedy, and does not oust the court of equity of its jurisdiction.

Mr. W. F. Brannan, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: Walkley v. City of Muscatine


text: Talk:Walkley v. City of Muscatine

title: Talk:Walkley v. City of Muscatine


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Walkley v. City of Muscatine/Opinion of the Court

We are of opinion the complainant has mistaken the appropriate remedy in the case, which was by writ of mandamus from the Circuit Court in which the judgment was rendered against the defendants. The writ affords a full and adequate remedy at law. There are numerous recent cases in this court on the subject.

We have been furnished with no authority for the substitution of a bill in equity and injunction for the writ of mandamus. An injunction is generally a preventive, not an affirmative remedy. It is sometimes used in the latter character, but this is in cases where it is used by the court to carry into effect its own decrees as in putting the purchaser under a decree of foreclosure of a mortgage into the possession of the premises. Even the exercise of power to this extent was doubted till the case of Kershaw v. Thompson, in which the learned chancellor, after an examination of the cases in England on the subject, came to the conclusion he possessed it; not, however, by the writ of injunction, but by the writ of assistance. Chancellor Sanford, who adopted the practice in Ludlow v. Lansing, observed that it was not usual before the case of Kershaw v. Thompson, but that he had examined all the cases cited, and that the English cases seemed to warrant the decision. He further observed that if the decision of the late chancellor was in any respect new, the innovation was, in his opinion, jui cious and fit.

The counsel for the complainant has referred to some expressions by the learned judge in the opinion delivered in the case of The Board of Commissioners of Knox County v. Aspinwall, as giving countenance to the remedy by bill in equity; but this is a clear misapprehension. It is there observed, 'that a court of equity is sometimes resorted to as auxiliary to a court of law in obtaining satisfaction of judgments. But no court,' he observes, 'having proper jurisdiction and process to compel the satisfaction of its own judgments, can be justified in turning its suitors over to another tribunal to obtain justice.' We add, that a court of equity is invoked as auxiliary to a court of law in the enforcement of its judgments in cases only where the latter is inadequate to afford the proper remedy. The principle has no application in the present case.

DECREE AFFIRMED.


text: Talk:Walkley v. City of Muscatine/Opinion of the Court


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United States v. Eckford

APPEAL from the Court of Claims, the case being thus:

An act of Congress of the 3d of March, 1797, § 3, provides that where a suit is instituted against any person indebted to the United States, the court shall, on motion, grant judgment at the return term, unless the defendant shall, in open court, make oath or affirmation that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the treasury and rejected, specifying each particular claim so rejected in the affidavit. The same act provides, § 4, that in such suits no claim for a credit shall be admitted upon trial but such as shall appear to have been submitted to the accounting officers of the treasury for their examination and by them been disallowed, unless it shall appear that the defendant, at the time of trial, is in possession of vouchers, not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the treasury by absence from the United States, or some unavoidable accident.

With this act in force, the United States sued the executors of Eckford, who had been collector of New York, on his official bond, in the District Court for Southern New York. Among other pleas was that of set-off. The jury sustained the plea, and certified that there was due from the United States to the defendants, $20,545. On this verdict a judgment was entered, 'that the United States take nothing by their bill, and that the defendants go thereof without day; and that the said executors are entitled to be paid the said balance so certified,' &c.

The claim not being paid, the executors brought suit against the United States in the Court of Claims, and offered the record of the Circuit Court in evidence. It was objected to by the counsel of the United States; but the objection was overruled and the record read, and judgment accordingly. The United States appealed; and, divested of its special form below, the question now here was, whether, when the United States sued a person indebted to it, and a set-off to a greater amount than the claim was pleaded and proved, a judgment could be given against the United States for the excess.

By statutes of New York, in case of such pleas, 'if there be found a balance due from the plaintiff in the action to the defendant, judgment shall be rendered to the defendant for the amount.'

Mr. E. P. Norton, for the United States, appellant, relied, as concluding all argument, on De Groot v. United States, where this court says:

'When the United States is plaintiff in one of the Federal courts, and the defendant has pleaded a set-off, which the acts of Congress have authorized him to rely on, no judgment can be rendered against the government, although it may be judicially ascertained tha on striking a balance of just demands the government is indebted to the defendant in an ascertained amount.'

Reeside v. Walker, was cited to a similar effect.

Mr. S. E. Lyon, contra, argued that the ruling below was supported by United States v. Wilkins, where Story, J., for the court, in construing the act under which the set-off was offered and proved, says:

title: United States v. Eckford


text: Talk:United States v. Eckford

title: Talk:United States v. Eckford


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

'There being no limitation as to the nature and origin of the CLAIM for a credit which may be set up in a suit, we think it a reasonable construction of the act that it intended to allow the defendant the full benefit at the trial of any credits which may be set up in the suit. . . . The object of the act seems to be to liquidate and adjust all accounts between the parties.'

How does the defendant here have 'the full benefit of any credit he may have,' or how can 'all the accounts between the parties be liquidated and adjusted by the trial,' if the executors may not have judgment for the excess; the law of the State where the cause is tried, permitting it?

The word of the statute-'credits'-is as comprehensive as any that could be used. Any view opposite to this might work great injustice. To a claim on the part of the United States the defendant would be compelled to interpose the whole amount of his credits, and if they exceeded the plaintiff's charges, by a general verdict for the defendant, there would be no means of determining the amount allowed by the jury in reduction, and he thereby destroys his claim upon the government for the balance. Again, suppose the set-off to consist of a single claim or item, incapable of separation or division in its proof or allowance, and it exceeds the plaintiff's demand. To prove any part is to prove the whole. To decide in favor of a portion, must carry with it a determination in favor of the entire claim. Or, suppose the credits to consist of several matters or items, no one of which is equal to the plaintiff's debt, and yet any two are beyond that amount. How, in either of these cases, is the defendant's cause of action to be divided and distinguished?

In United States v. Bank of the Metropolis, the jury certified a balance due the defendants from the United States, and the judgment upon the certificate was affirmed by the Supreme Court.

Mr. Justice CLIFFORD delivered the opinion of the court.

Statement of facts shows that the United States, in June, 1839, brought an action of debt in the Circuit Court on the official bond of the collector of the port of New York, against the executors of Henry Eckford, who was one of the sureties in that bond. Purpose of the suit was to recover moneys which the collector had received as such, without having ever accounted for the same as required by law. Defendants interposed various pleas, and among others pleaded that the moneys retained by the collector were received after he was reappointed, and at a time when the testator of the defendants was not a surety. They also pleaded a set-off, claiming that a large sum was due to their testator from the plaintiffs on several accounts, and especially for the occupation of real estate. Verdict of the jury was for the defendants, and the jury certified, as stated in the record, that there was due from the United States to the defendants the sum of twenty thousand five hundred and forty-five dollars and fifty cents. Judgment was accordingly rendered in the Circuit Court that the defendants do go thereof without day, and that the surviving executors were entitled to be paid the balance so certified by the jurors.

Upon these facts the Court of Claims decided: (1) That the Circuit Court had jurisdiction of the subject-matter of the suit, and the set-off pleaded. (2) That the finding of the jury and the determination of the court constituted, in substance and effect, a valid and binding judgment against the United States for the sum cr tified by the jury. (3) That such judgment, as it remains unsatisfied and unrecovered, cannot be impeached in a collateral suit. (4) That the finding of the jury, under the circumstances stated, is conclusive, and is not subject to re-examination in any Federal court by virtue of the seventh amendment to the Constitution. Dissatisfied with the judgment of the court, the United States appealed.

1. Settled rule of law, as universally understood, is that the Judiciary Act does not authorize a suit against the United States in any of the Federal courts. Where a party contracting with the United States is dissatisfied with the course pursued towards him by the officers of the government charged with the fulfilment of the contract, his only remedy, except in the limited class of cases cognizable in the Court of Claims, is by petition to Congress.

The Supreme Court was created by the Constitution, but the Circuit Courts were created by an act of Congress, and they are not authorized to exercise jurisdiction in any case except where the jurisdiction was conferred by an act of Congress.

Jurisdiction cannot be exercised by a Circuit Court in a suit against the United States, or against any other party, unless the plaintiff can bring his case within some act of Congress.

Right of set-off, properly so called, did not exist at common law, but is founded on the statute of 2 Geo. II, c. 24, s. 4, which in substance and effect enacted that where there were mutual debts between the plaintiff and the defendant,. . . one debt may be set against the other, and such matter may be given in evidence under the general issue, or be pleaded in bar, so that notice shall be given of the sum or debt intended to be offered in evidence. Such being the general rule of law, it is quite clear that the right of the claimant must depend upon the regulations prescribed by Congress for the government of the Federal courts in suits between the United States and individuals.

Where a suit is instituted against any person indebted to the United States, the act of the 3d of March, 1797, provides in its third section that the court shall, on motion, grant judgment at the return term, unless the defendant shall, in open court, make oath or affirmation that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the consideration of the accounting officers of the treasury and rejected, specifying each particular claim so rejected in the affidavit. Section four of the same act also provides that in suits between the United States and individuals no claim for a credit shall be admitted upon trial, but such as shall appear to have been submitted to the accounting officers of the treasury for their examination, and by them been disallowed, unless it shall appear that the defendant, at the time of trial, is in possession of vouchers, not before in his power to procure, and that he was prevented from exhibiting a claim for such credit at the treasury by absence from the United States, or some unavoidable accident. Same rules are prescribed in respect to set-offs in suits against postmasters, except that the party claiming the credit is required to present the claim to the auditor of the Post-office Department.

Extent of the authority conferred by that section is as plain as any grant of power can well be which is conferred in clear an unambiguous language. Claims for credit in suits against persons indebted to the United States, if it appears that the claim had previously been presented to the accounting officers of the treasury for their examination, and had been by them disallowed, in whole or in part, may be admitted upon the trial of the suit, but it can only be admitted as a claim for a credit, and not as a demand for judgment. Such a claim for a credit shall be admitted, and if proved should be allowed in reduction of the alleged indebtedness of the defendant, even to the discharge of the entire claim of the plaintiffs, but there is not a word in the provision conferring any jurisdiction upon the court to determine that the United States is indebted to the defendant for any balance, or to render judgment in his favor for the excess of the set-off over his indebtedness as proved in the trial.

Equitable claims for credit, though never presented and disallowed, may be admitted upon the trial if brought within the conditions prescribed in the latter clause of the section, but if admitted they also are to be adjudicated as claims for credit, and not as demands for judgment against the United States.

Perhaps the best exposition of the law upon the subject is given in the opinion of the court in the case of Reeside v. Walker, which was before the court on a writ of error to the Circuit Court of this district. Express ruling of the court in that case was that no action of any kind could be sustained against the government for any supposed debt, unless by its own consent; and that to permit a demand in set-off to become the foundation of a judgment would be the same thing as sustaining the prosecution of a suit. Such a proceeding, the court held, could not be upheld against the government except by a mere evasion, which would be as useless in the end 'as it would be derogatory to judicial fairness.' All the court appear to have concurred in that judgment, and in our opinion it is decisive of the present controversy.

Attempt is not made to sustain the jurisdiction of the Circuit Court in such a case by virtue of any provisions of any act of Congress regulating judicial proceedings, but the argument is that the ruling of the court below may be supported because the law of the State may be regarded as the rule of decision in the Circuit Court, and that by the law of the State judgment in such a case may be rendered for the defendant for the balance found due from the plaintiff.

Rules of decision undoubtedly are derived, in certain cases in suits at common law, from the laws of the several States, but the thirty-fourth section of the Judiciary Act does not apply to the process or practice of the Federal courts, unless adopted by an act of Congress, or some rule of court not inconsistent with the laws of the United States.

Extended argument upon the subject, however, is unnecessary, as the point has been directly determined in this court, and ought not any longer to be regarded as an open question. Speaking to the precise point, the court said, in United States v. Robeson: 'This is a question which arises exclusively under the acts of Congress, and no local law or usage can have any influence upon it. The rule as to set-off in such cases must be uniform in the different States, for it constitutes the law of the courts of the United States in a matter which relates to the Federal government;' and in that view of the subject we entirely concur.

The rule is, as there stated, that where a defendant has in his own right an equitable claim against the United States for services rendered or otherwise, and has presented it to the proper accounting officers of the treasury, who have refused to allow it, he may set up the claim as a credit on a writ brought against him for any balance of money claimed to be due b the government. Same rule is adopted by Mr. Conklin in his valuable treatise, and we have no doubt it is correct.

Without extending the argument, we adopt the views expressed by this court in the case of De Groot v. United States, decided at the last term, that when the United States is plaintiff and the defendant has pleaded a set-off, which the acts of Congress have authorized him to do, no judgment can be rendered against the government, although it may be judicially ascertained that, on striking a balance of just demands, the government is indebted to the defendant in an ascertained amount.

Comment upon the other authorities presented by the claimant is unnecessary, as we are fully satisfied that those to which we have referred give the correct rule of law upon the subject.

JUDGMENT REVERSED.


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


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Foley v. Smith

ERROR to the Circuit Court for the Eastern District of Louisiana.

Mrs. Smith, the appellee, having sold to McHatton a plantation in the parish of East Baton Rouge, received from him notes for $70,000 of the purchase-money, secured by a mortgage on the property sold. One of these notes for the sum of $15,000 was placed by Mrs. Smith before due in the Bank of Kentucky for collection, and that bank forwarded it for the same purpose to the Citizens' Bank of New Orleans. The note was indorsed in blank by Mrs. Smith and by the Bank of Kentucky. Not being paid at maturity, it was duly protested, and in this condition remained in the Citizens' Bank for over seven months, when one McKnight, who had been acting as the agent of the Bank of Kentucky at New Orleans, took the note from the Citizens' Bank, and sold and delivered it for full value to Foley & Co. McKnight was supposed to have acted under a power of attorney from the Bank of Kentucky, which was not produced. He transferred the note by a public notarial act in writing, by which he professed to assign the note to Foley & Co., with all rights, remedies and mortgages to which the said Bank of Kentucky was or might be entitled as holder of the note, but without warranty on the part of said bank, except as to the existence of the debt represented by the notes.

When the other notes, falling due after the one above mentioned, had matured and were unpaid, Mrs. Smith instituted proceedings under the law of Louisiana to foreclose her mortgage; and under these proceedings the land was sold, and she became the purchaser. The sale did not bring enough to satisfy the remaining notes in her hands.

Foley & Co. intervened in these proceedings, and asked that the amount of the note which they held might first be paid to them out of the proceeds of the property sold. The court below dismissed their claim.

Mr. Miles Taylor, for Foley & Co., plaintiffs in error:

Mrs. Smith, by her own act, authorized and enabled the Bank of Kentucky to act as the owner of the note, without disclosing the fact that it was an agent; and in point of fact F. & Co. dealt with the bank in the character of a principal, and without having any reason whatever to suppose that it was not so in reality. Mrs. Smith is therefore liable, upon the principle, that of two innocent parties, the one shall suffer who, by his agent, causes the injury, and will in all such cases receive the least harm.

Mr. Durant, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Foley v. Smith


text: Talk:Foley v. Smith

title: Talk:Foley v. Smith


text:
Foley v. Smith/Opinion of the Court

We cannot see how the Circuit Court could have rendered any other decree than that which it did, namely, to dismiss the appellant's claim.

The rule of law that he who takes a note overdue and dishonored, takes it encumbered with all the equities between the prior parties to it, is the law of Louisiana as well as of those States which have adopted the common law. This isw ell established by the numerous decisions cited in the brief of counsel for appellee filed in the Circuit Court.

Under this rule the purchaser from the Bank of Kentucky could get no better title than the bank had when it sold. It is conceded that it had no title whatever. The appellants purchased of McKnight, as agent of the Bank of Kentucky, and as the note was not the property of McKnight, or of the bank which he represented, appellants must show some authority for the sale from the real owner, or the sale is invalid. Such authority is claimed in argument to resultfrom the possession of the note by McKnight. But if mere possession by the person who professes to transfer a note were sufficient authority, there would be no difference, as regards its negotiability, in a note before its maturity and after its protest.

The appellants in this case relied upon the public act of transfer by McKnight, and if this was without authority, their purchase was void.

The principle is invoked by appellants, that in case of a loss of this kind, in which one of two innocent persons must suffer, that one should sustain the loss who has most trusted the party through whom the loss came. It is a sound principle, and its application to this case does not favor the appellants. If Mrs. Smith trusted the Bank of Kentucky with her note, it was for a purpose which was ended when the note was protested. By indorsing the note she did trust the bank with full power to dispose of it before due, although that was not intended, and she trusted the bank for the return of the money to her if the money had been paid. This trust the law implied. But her trust ceased, except as to the mere possession of the note as a bailment, after the note was protested. It was the appellants, who, with notice of the dishonor of the note, purchased it, who trusted the bank for the title, which it professed to sell.

It is to be remembered that the intervention of appellants did not claim a personal judgment against McHatton or Mrs. Smith on the note, but an appropriation of the proceeds of the sale to the payment of the note held by them.

As Mrs. Smith is the real owner of the debt due from McHatton, evidenced by the note in the possession of plaintiffs, there can be no equity in making her substantially pay the note out of the proceeds of the sale, or in postponing her just claim, to that of appellants, who are not innocent holders without notice.

DECREE AFFIRMED.

title: Foley v. Smith/Opinion of the Court


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


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City of Washington v. Dennison

ERROR to the Supreme Court of the District of Columbia.

This was a motion for a supersedeas of an execution against the City of Washington, plaintiffs in error, founded upon a writ of error, bond and citation, in compliance with the twenty-second and twenty-third sections of the Judiciary Act.

The twenty-second section referred to, enacts that this court may examine judgments in Circuit Courts upon writ of error, to which shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors and prayer for reversal, with a citation to the adverse party, signed, &c., and the adverse party having at least thirty days' notice.

The twenty-third section enacts, that this writ of error

'Shall be a supersedeas and stay of execution in cases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment complained of.'

In the present case the judgment was rendered on the 23d of November, 1867. The writ of error, though made out before and placed in the clerk's office, was not sealed till the 6th of December, which was eleven days after the judgment was rendered.

The term of the court for 1867 began on the 2d of December. The citation was served on the 6th of that month.

Mr. J. H. Bradley, for the plaintiff in er or; Messrs. Davidge and Fendall, contra.

Mr. Justice NELSON delivered the opinion of the court.

title: City of Washington v. Dennison


text: Talk:City of Washington v. Dennison

title: Talk:City of Washington v. Dennison


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City of Washington v. Dennison/Opinion of the Court

The act gave to the city ten days, exclusive of Sundays, to sue out the writ of error, and take the other necessary steps which are required to operate as a supersedeas. The ten days expired on the 5th of December.

According to the settled practice, if the writ of error is sued out before the first day of the term, it must be made returnable on the first day of the next term, and so as to the citation; and, if sued out after, it must be made returnable the first day of the succeeding term.

The cases cited also show, that both the writ and citation must be served before the return day-the writ by filing it in the clerk's office, and the citation by serving it on the party, or his attorney, or counsel.

In the present case it is, perhaps, sufficiently shown that the writ was placed in the clerk's office before the return day, but it was not sealed till the 5th of December, and until then it was a nullity. Writs of error from this court to the Supreme Court of the District of Columbia are sued out under the same regulations as in cases of judgments in the Circuit Courts of the United States.

The writ, therefore, not being sealed till the 5th day of December, eleven days after the judgment, it was too late to operate as a supersedeas, and it cannot be amended in this respect, as was held in Hodge et al. v. Williams.

But if this objection could have been avoided, the omission to serve the citation before the return day of the writ is fatal. * It was not served till 6th of December.

MOTION DENIED.


text: Talk:City of Washington v. Dennison/Opinion of the Court


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Ex parte De Groot

THIS was an application for a mandamus to the judges of the Supreme Court of the District of Columbia.

The petition was presented to that court praying for the award of a mandamus to the defendant, the Secretary of the Treasury, commanding him to pay to the relator the sum of $114,000, which had been awarded to him by the Secretary of War in pursuance of a joint resolution of Congress. The petition set out at large the grounds of the indebtedness of the government to the relator, the joint resolution, and the award of the Secretary of War for the amount above stated. The court below denied the prayer for a mandamus, and the papers were now presented to this court for a mandamus to the court below, for the purpose of reversing its decision, and commanding it to issue the mandamus.

Mr. Brent, for the petitioner.

Mr. Justice NELSON delivered the opinion of the court.

title: Ex parte De Groot


text: Talk:Ex parte De Groot

title: Talk:Ex parte De Groot


text:
Ex parte De Groot/Opinion of the Court

The party has mistaken his remedy, if he has any, which is by writ of error to the court below to reverse the judgment there rendered in the case. The authorities are uniform on the question.

title: Ex parte De Groot/Opinion of the Court


text: Talk:Ex parte De Groot/Opinion of the Court


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The Battle

APPEAL from the District Court of the United States for the Southern District of Florida.

The libel set forth a seizure of the steamer Battle and cargo on the 18th July, 1863, on the high seas, as prize of war, which were brought into the port and harbor of Key West. She was captured about fifty miles south-southeast from Mobile Point by the United States steamer De Soto, Walker commanding. No claim of ownership for vessel or cargo was presented to the court. The vessel had just run, or was in the act of running, the blockade of Mobile when she was captured. The vessel and cargo were sold pending the suit. The proceeds of thes ale of the vessel were $23,000, and of the cargo, $240,895.62. The vessel and cargo were condemned for breach of blockade, and also as enemy property.

There were two claims set up against the steamer in the court below, one by James Brooks, of New Albany, State of Indiana, for supplies furnished at that port in May, 1860, to the amount of $3408.32, and another by Daniel Hipple and others for materials furnished, and for work and labor in building a cabin on said boat, in January, 1860, to the amount of $7230.92, at the port of New Albany aforesaid; that after deducting all payments a balance remains due of $3615.45. These claims were dismissed by the court below.

The appellant was not represented by counsel; Mr. N. Wilson, for the captors, and Mr. Ashton, special counsel, for the United States.

Mr. Justice NELSON delivered the opinion of the court.

title: The Battle


text: Talk:The Battle

title: Talk:The Battle


text:
The Battle/Opinion of the Court

The principle is too well settled that capture as prize of war, jure belli, overrides all previous liens, to require examination.

DECREE AFFIRMED.

title: The Battle/Opinion of the Court


text: Talk:The Battle/Opinion of the Court

title: Talk:The Battle/Opinion of the Court


text:
Gardner v. The Collector

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

The Constitution of the United States says, under the legislative head, as follows:

'Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States; if he approve he shall sign it, but if not, he shall return it, with his objections, to that House in which it shall have originated. . . . If any bill shall not be returned by the President within ten days (Sunday excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it.'

And an act of September 15th, 1789, creating the Department of State, provides that whenever a bill, order, resolution or vote of the Senate and House of Representatives, having been approved and signed by the President of the United States, or not having been returned by him with his objections, shall become a law, or take effect, it shall forthwith thereafter be received by the said Secretary from the President, and he shall carefully preserve the originals, and cause them to the recorded in books provided for that purpose. An act of July 7th, 1838, dispenses with this recording in a book.

With these provisions in force, Congress passed through both houses, in December, 1861, a bill which declared 'that from and after the date of the passage of the act,' the duties on tea should be twenty cents per pound. A previous statute had fixed the duty at fifteen cents. The roll of the engrossed bill was taken to the President, and by him thus signed, no year being indicated:

'APPROVED December 24.

ABRAHAM LINCOLN.'

The record kept in the office of the Secretary of State showed, however, that this enrolled statute, with the President's approval on it, was filed in that office December 26th, 1861, and the journal of the House of Representatives, in Congress, showed that a message was received from the President January 6th, 1862, stating that on the 24th day of the preceding month he had approved this bill.

In the volume of the statutes of the United States, published by authority in 1863, the act was presented with an approval thus indicated:

'APPROVED December 24 [1861].'

In this state of things, Gardner, in 1864, entered at the custom-house in New York certain packages of tea, on which the collector of the customs there, assuming that there was a statute laying that duty, required him to pay twenty cents per pound. Gardner declined to pay twenty cents per pound on the ground that there was no statute fixing that duty, but offered to pay fifteen cents, the duty fixed by what he asserted to be the only act in the case. Being compelled to pay the twenty cents, and having paid it under protest, he brought suit in the court below to recovert he excess. The court below gave judgment against him, and on error here the question was, whether the bill fixing the twenty cents had passed, or, in other words, whether it was a law on the 28th April, 1864, when the teas in question were entered.

Mr. George Ticknor Curtis, for the plaintiff in error:

The President's certificate on the roll is a record of the strictest character. It cannot be explained, controlled or aided by any other evidence whatever. This follows from the requirement of the Constitution, that if he approve the bill he shall sign it. That the roll is in all cases the record or 'original' of a statute, is shown by the acts of Congress of September 15th, 1789, and of July 7th, 1838.

Now, whatever methods may be adopted of proving copies of the roll itself, no proof can be admitted to supply what the record does not contain. A law may be construed, judicially, if the means of ascertaining the legislative intention exist in the law itself. But if there is a positive omission in a law of what is essential to its operation, the omission cannot be supplied. A record imports absolute verity. It is of so high a nature, says Lord Coke, that it can be tried only by itself. And that this principle extends by the common law to the records of statutes, is evident from the rule that a statute cannot be proved from a journal of Parliament, but must be proved from the roll, which is the record; and from the further rule, that if it purports to be a general statute, the judges will take notice from the record whether it be a statute or not, and thus the plea of nul tiel record, or denial that there is such a record, cannot be interposed. These principles appear to have been adopted into our legislation, which makes the bill signed by the President, and deposited in the Department of State, the 'original,' or record of the statute.

If, then, there be in the Department of State a record which purports to contain a general statute, the judges will take notice of that record, and on it will proceed to determine whether it be a statute or not.

The date of the executive approval of a bill is an essential part of this record, and it is, under our Constitution, and in the modern English practice, necessarily the date of the passage of the law. In England, prior to 1792-3, all acts took date from the first day of the session. Great mischiefs followed from the enforcement of this rule. They culminated in Latless v. Holmes, where an act by its terms was to take effect from and after its passage. It was held that the time of its actual passage could not be shown; and that there could be no relief against its retrospective operation, great as the hardship manifestly was. This led to the act, 33 Geo. III, chap. 13, which directed that the day, month and year of the royal assent be indorsed on the roll, and that such indorsement be taken as a part of the act, and as the date of its commencement when no other commencement is therein provided.

As our Constitution does not permit any bill to become a law before it has been presented to the President, and requires him, if he approves it, to sign it, those who fixed our first precedents, which have never been departed from, established by them the rule that the President must record the date of his approval, and this must be the date of the passage of the law. Matthews v. Zane fully recognizes this rule.

Now, a law which is to operate from the date of its passage, and which has yet no date, can have no operation, especially if its provisions would supersede some former law. The former law remains in force, and in order to make a date, the year, as well as the day of the month, must appear. How is it to be known, judicially, in what year occurred that 24th day of December on which the President signed this roll?

Parol evidence is out of the question. That would break in upon the rule that a record must prove itself, and would oblige the citizen, when seeking the date of the President's approval, to inquire whether there are living witnesses who can prove that date.

Other records, such as the journals of the two Houses, would require an inference to be drawn, that is to say, they supply defects in one record by arguments from another, and so break down the rule that a record must prove itself.

A resort to the calendar would afford no aid here, because the 24th day of December occurs in every year, and consequently the calendar of any year since the passage of the former law, which made the duties fifteen cents per pound, would determine nothing as to the year in which the President signed a law making the duties twenty cents.

Our conclusion is,

1. That the President alone can make the record which is to show the date of his approval.

2. That if the President's record is defective in respect to the year when it was made, no resort can be had to extrinsic evidence to supply that defect.

Mr. Ashton, contra:

1. The Constitution says that if the president approves, he shall SIGN. It requires nothing but his signature. The word approved is surplusage. And for the same reason, and to the same extent, in a legal sense, is the date of approval. In a practical sense it may be, and is important. The best evidence of that time is, of course, the contemporaneous memorandum of the signer himself: and usage has accepted that memorandum, not as a record, perhaps, but as the best proof that the nature of the case admits. But what is the rule when the usual and conclusive evidence of the time of signing is absent? That the bill has been approved is certain. If so, it has become a law. Shall this be made null-declared not to have been at all-the approval, the signing, the going into offect, contrary to the truth of the case, because we cannot admit unquestionable evidence of the day when the final act was done? The question seems to carry its own answer.

2. But conceding that the time of the approval can only be proved by the record, what is the 'record?' It consists of the recorded proceedings connected with, and leading to, and following after, the law-the journals of Congress, the records and files of the office of the Secretary of State,-and all these may be resorted to for the purpose of determining the time when the approval of the President occurred.

In the Matter of Welman, the court say:

'It may be necessary and admissible in some instances, particularly when an act becomes a law by not being either signed or returned with objections, to carry back the inquiry to the legislative journals. But it would be unsafe, as it would be unfit, to allow the commencement of a public law, whenever the question may arise, to depend on the uncertainty of parol proof, or upon anything extrinsic to the law and the authenticated recorded proceedings in passing it.'

So cases settle that the court may inspect those journals to correct clerical mistakes, or carelessness. Even to correct an erroneous entry of the date of approval; or to ascertain whether an act was passed by ayes and nays. The court may inquire whether an act, coming within the twothird clause of the Constitution, have passed by the requisite number of votes. Parol evidence will be received, too, to show that an actual signing of the bill, as approved, was done by mistake.

In Pennsylvania, the constitution does not require a bill to be signed by the speakers of the two houses of the legislature; and it was there held, that the signatures, though proper, were not essential to the validity of the law. The fact of its passage and approval was held to be provable by the certificate of the Secretary of State that the bill was duly enrolled in his office.

Mr. Justice MILLER delivered the opinion of the court.

title: Gardner v. The Collector


text: Talk:Gardner v. The Collector

title: Talk:Gardner v. The Collector


text:
Gardner v. The Collector/Opinion of the Court

The date of the President's approval of the bill is undoubtedly the date at which it became a law, if it ever did. In the volume of the statutes now before us, published in 1863, the approval is dated December 24th [1861], but the figures 1861 are in brackets, by which it is understood that no such figures are found in the original enrolled act on file in the Department of State. And it is conceded that on inspection, the roll shows on the face of the bill no other date for the approval of the President than the day of the month already stated.

It is not denied that the President's signature to the bill is genuine, and that he did approve it. The volume of the United States Statutes at Large, which contains this act, was published by authority the year before the entry was made of his tea by the plaintiff. The record kept in the office of the Secretary of State shows that this enrolled statute, with the President's approval on it, was filed in that office, December 26th, 1861. The journal of the House of Representatives in Congress shows that a message was received from the President, January 6th, 1862, stating that on the 24th day of the preceding month he had approved this bill. So that, if we can look to any of these sources of information, the court can have no doubt that the bill was in force as a statute at the time the duties on plaintiff's tea became chargeable.

The whole of the very able and ingenious argument of counsel for plaintiff rests on these two propositions, as stated in his own language: 'That the President alone can make the record which is to show the date of his approval; and that if the President's record is defective in respect to the year when it was made, no resort can be had to extrinsic evidence to supply that defect.'

The first of these propositions assumes that no act of Congress can become a valid statute, unless some official written statement is found in it of the precise date when the President approved it, and that it is a part of the duty of the President to make this statement; a duty so important that unless made by him, and by no one else, all the previous proceedings of the two Houses of Congress, and the approval of the President, and his signature attesting that approval, are all vain and nugatory.

We should reasonably expect to find a duty so very important as this, the neglect of which is followed by such serious consequences, prescribed by some positive and express provision of the Constitution, or, at least, by some act of Congress.

The only duty required of the President by the Constitution in regard to a bill which he approves is, that he shall sign it. Nothing more. The simple signing his name at the appropriate place is the one act which the Constitution requires of him as the evidence of his approval, and upon his performance of this act the bill becomes a law.

'Every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States; if he approve, he shall sign it, but if not, he shall return it, with his objections, to that House in which it shall have originated.' 'If any bill shall not be returned by the President within ten days (Sunday excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it' Here are two courses of action by the President in reference to a bill presented to him, each of which results in the bill becoming a law. One of them is by signing the bill within ten days, and the other is by keeping it ten days, and refusing to sign it. Even in the event of his approving the bill, it is not required that he shall write on the bill the word approved, nor that he shall date it.

If a date by the President is essential to the validity of the statute, it must be as essential when he retains the bill and fails to sign it as when he signs it. It is his action in retaining the bill for ten days which makes it a law as much as it is in signing it. Yet, in the latter case, no evidence is required of the President, either by the Constitution or in actual practice, to show that he had ever received or considered the bill.

It is not possible, therefore, to hold that the Constitution, either expressly or by just implication, imposes upon the President the duty of affixing a date to his signature to a bill.

Nor does any act of Congress require him to do this. The statutes of September 15th, 1789, and of July 7th, 1838, so far from requiring the President to affix a date to his act of signing bills, provide another means of ascertaining when a statute takes effect, namely, by finding it on file in the office of the Secretary of State; for by this statute all such bills, orders, resolutions or votes of Congress as shall become laws, or shall take effect, are to be received from the President and filed in that office. The duty, then, of making such memorandums as shall show when they were received by this Department, in which the rolls are to remain permanently, and where alone they can be inspected, is much clearer than any such duty on the part of the President. As the only valuable purpose of having a date is to determine when the statute takes effect, it is reasonable that this should be made by the officer who receives it from the President forthwith, and who is to be the future custodian of the statute-who alone can give certified copies of it, and from whose office the legally authorized publisher receives the copy from which it is printed.

If neither the Constitution nor the statutes impose this duty upon the President, we are equally unable to find anything in the practice of the English Parliament to sustain this view. The custom there anciently was for the enrolled bill, on receiving the assent of the King, generally given by commission in Parliament, to be delivered, with the statement of this fact indorsed on it, to the clerk of Parliament. From thence transcripts were sent to the sheriffs of the counties, who were ordered to proclaim them in their county courts, where the transcripts were filed for reference. Since the art of printing, this latter custom has been abandoned. But an act of 33 George III, chap. 15, requires the clerk of Parliament to indorse the date of the King's approval upon the roll of each statute, which is to be the date from which it shall take effect. The enactment of such a statute shows that no rule had previously existed, that the date was affixed by the King or by the commissioners who, in his name, gave his assent to the bill.

The second proposition, that 'if the President's record is defective in respect to the year when it was made, no resort can be had to extrinsic evidence to supply that defect,' is still more at variance with both principle and authority than the one we have just considered.

The statute under consideration is a public statute, as distinguished from a private statute. It is one of which the courts take judicial notice, without proof, and, therefore, the use of the words 'extrinsic evidence' are inappropriate. Such statutes are not proved as issues of fact as private statutes are. But if we suppose the phrase to have been used to express the sources of information to which the court may resort, the proposition is still inadmissible.

In point of morl force in producing conviction in the mind that a bill was signed on a given day, there may be often found stronger evidence than the date accompanying the signature. It is general experience that mistakes are often made in such dates. So well is this understood that the general rule of law that parol evidence cannot be received to contradict a written contract, does not apply to the date, which, though forming a part of the written instrument, may be contradicted whenever it is material to the issue to do so. So also written contracts, or other instruments having no date on their face, may have the time of their execution proved by parol or other competent testimony. It is believed that this principle would be applicable to any instrument in writing offered to a jury on an issue of fact even if it were a private statute, always requiring, however, the best evidence of the date that exists. But the argument we are considering imposes upon the judges who are to take judicial notice of a statute, a more limited range of search for information than that which is open to a jury, when the rule of judicial notice, as we shall show hereafter, was adopted for the purpose of enlarging it.

The record of the Secretary of State of the time of filing such a paper, the journals of the two Houses of Congress, the message of the President, and other circumstantial facts, may produce stronger conviction of the day and of the year in which the bill was signed, than the date affixed by the President. There is no reason, then, on sound principle, why the court should confine itself to the date made by the President, or, if he has made none, should reject all other sources of knowledge. The judicial notice of the court must extend, not only to the existence of the statute, but to the time at which it takes effect, and to its true construction.

This view of the subject is well supported by authority.

In the learned work of Mr. Dwarris on Statutes we are told that the principal reason of the rule that the courts should take judicial notice of public statutes, and should not permit them to be put in issue as private statutes are, was that many ancient statutes were no longer to be found, which yet were within the time of legal memory, and could not, therefore, be treated as common law. In order to prevent their existence being brought to the test of proof by record, the principle was adopted that the court should take notice of them; and that the judges are to inform themselves in the best way they can.

This is confirmed by Sir Matthew Hale in his History of the Common Law. Alluding to these statutes, of which there are many that are no longer to be found among the rolls, he says: 'An act of Parliament, made within the time of memory, loses not its being so, because not extant of record, especially if it be a general act of Parliament. For of general acts of Parliament the courts of common law are to take notice without pleading them. And such acts shall never be put to be tried by the record upon an issue of nul tiel record, but it shall be tried by the court, who, if there be any difficulty or uncertainty touching it, or the right of pleading it, are to use for their information ancient copies, transcripts, books, pleadings, and memorials, to inform themselves, but not to admit the same to be put in issue by a plea of nul tiel record. For, as shall be shown hereafter, there are many old statutes which are admitted, and obtain as such, though there be no record at this day extant thereof; nor yet any other written evidence of the same but which is in a manner only traditional, as namely, ancient and modern books of pleadings, and the common received opinion and reputation and approbation of the judges learned in the law.'

Lord Coke, giving an account of the manner in which the statutes were formerly published in the county courts, in regard to h ich he had made diligent search, observes that 'although proclamation be not made in the county, every one is bound to take notice of that which is done in Parliament, for as soon as Parliament hath concluded anything, the law intends that every person hath notice thereof, for the Parliament represents the body of the whole realm, and therefore it is not requisite that any proclamation be made, seeing the statute took effect before.' If this proposition be sound, of which there seems to be no reason to doubt, how can it be held that the judges, upon whom is imposed the burden of deciding what the legislative body has done, when it is in dispute, are debarred from resorting to the written record which that body makes of its proceedings in regard to any particular statute?

The courts of last resort in several of the States have expressly decided that this may be done.

In the Prince's case, the rule on this subject is laid down by the court in the following language: 'As to the fourth point it was resolved, that against a general act of Parliament, or such whereof the judges ex afficio ought to take notice, the other party cannot plead nul tiel record, for of such acts the judges ought to take notice. But if it be misrecited the party ought to demur in law upon it. And in that case the law is grounded upon great reason, for God forbid, if the record of such acts should be lost, or consumed by fire or other means, that it should be to the general prejudice of the commonwealth, but rather, although it be lost or consumed, the judges either by the printed copy, or by the record in which it was pleaded, or by other means, may inform themselves of it.'

In this case the Lord Chancellor was assisted by a judge from each of the common law courts, of whom Coke was one, and the decision as reported by him, and the reason on which it was founded, are entitled to the highest consideration.

We are of opinion, therefore, on principle as well as authority, that whenever a question arises in a court of law of the existence of a statute, or of the time when a statute took effect, or of the precise terms of a statute, the judges who are called upon to decide it, have a right to resort to any source of information which in its nature is capable of conveying to the judicial mind a clear and satisfactory answer to such question; always seeking first for that which in its nature is most appropriate, unless the positive law has enacted a different rule.

JUDGMENT AFFIRMED.


text: Talk:Gardner v. The Collector/Opinion of the Court


text: Prentice v. Pickersgill

title: Prentice v. Pickersgill


text: Talk:Prentice v. Pickersgill

title: Talk:Prentice v. Pickersgill