text:
Jones v. Clifton/Opinion of the Court

This is a suit by Stephen E. Jones, assignee in bankruptcy of Charles H. Clifton, to set aside two deeds executed by the latter to his wife, and to compel a transfer of the property embraced in them to the complainant. Clifton married in 1870, and was possessed at the time of a large estate. Previously to his marriage he had taken out three policies of insurance on his life, each for $10,000. Soon after his marriage he took out two additional policies on his life, each for the same amount as the previous ones. In October, 1872, by his deed-poll he canveyed to his wife, in consideration of the love and affection he bore her, to hold as her separate estate, free from his control, use, and benefit, a small parcel of land in the city of Lousiville, in the State of Kentucky, and by the same instrument, upon the like consideration, and to be held for the same separate use of his wife, he assigned to her the five policies of insurance on his life. The deed contained a clause reserving to himself the power to revoke the grant and assignment, in whole or in part, and to transfer the property to any uses he might appoint, and to such person or persons as he might designate, and to cause such uses to spring or shift as he might declare.

In April, 1873, by another deed-poll he conveyed to his wife, upon like consideration of love and affection, to hold as her separate estate, free from his control, use, or benefit, two other parcels of land; one consisting of a lot in the city of Louisville, Kentucky, and the other his country place in the county of Jefferson, in that State, comprising thirty-eight acres. The instrument contained a reservation of a power of revocation and appointment to other uses similar to that of the first deed, the power of appointment, however, being somewhat fuller, in providing for its execution either by deed or writing, to take effect as a devise under the Statute of Wills in Kentucky.

These deeds were properly acknowledged and recorded in the counties where the real property was situated. At the time of their execution, the grantor was not in any business, and did not intend engaging in any; was worth about $250,000, and owed only a few inconsiderable debts, which were soon afterwards paid. The deeds were made at the urgent solicitation of his wife, who perceived that his habits were those of an indiscreet young man, somewhat inclined to dissipation, and she was naturally desirous of providing against a possible waste of his property.

In 1873, a general financial panic passed over the country; the values of all kinds of property greatly depreciated in the market, and land in the country could scarcely be disposed of at any price. By the shrinkage in values and losses in the subsequent years of 1874 and 1875, by his being surety for others, and by bad management, his estate was wasted, and he became hopelessly insolvent. In December, 1875, upon his petition, he was adjudged a bankrupt by the District Court of Kentucky. The complainant was subsequently appointed assignee of his effects, and received an assignment of his property. The proved debts against him amounted to $13,000, and his estate in the hands of the assignee was of little value.

The assignee seeks to set aside the deeds upon various grounds, which, however, may be embraced in the following: 1st, That they are void, because made directly to his wife, without the intervention of a trustee, and so passed no interest to her; 2d, That, by the reservation to the grantor of a power of revocation and appointment to other uses, they were designed to hinder and defraud his future creditors, whilst he retained the control and enjoyment of the property; and, 3d, That the power of revocation and appointment were assets which passed to the assignee in bankruptcy, and can be executed by him for the benefit of creditors.

The questions thus presented, though interesting, are not difficult of solution. The right of a husband to settle a portion of his property upon his wife, and thus provide against the vicissitudes of fortune, when this can be done without impairing existing claims of creditors, is indisputable. Its exercise is upheld by the courts, as tending not only to the future comfort and support of the wife, but also, through her, to the support and education of any children of the marriage. It arises, as said by Chief Justice Marshall in Sexton v. Wheaton, as a consequence of that absolute power which a man possesses over his own property, by which he can make any disposition of it which does not interfere with the existing rights of others. In that case the husband had purchased a house and lot within the District of Columbia, and taken the conveyance in the name of his wife, and afterwards made improvements upon the property. Subsequently he became involved in debt, and his creditors, having obtained a judgment against him, filed a bill to subject this property to its payment, contending that the conveyance to the wife was fraudulent and void as to them, and praying that if the conveyance were upheld the wife might be compelled to account for the value of the improvements. But the court held, after an extended consideration of the authorities, that as the husband was at the time free from debt, the conveyance was to be deemed a voluntary settlement upon her; and as it was not made with any fraudulent intent, it was valid against subsequent creditors; and that the improvements upon the property stood upon the same footing as the conveyance, it appearing that they had been made before the debts were contracted. 8 Wheat. 229. That case does not differ in principle from the one before us. The husband in this, as in that one, was free from debt when he made the deeds, which were voluntary settlements upon his wife. It cannot make any substantial difference that in the case cited the money of the husband was expended in the purchase of the property, and the conveyance was taken in the name of the wife; and that in the present case the property was owned at the time by the husband, and was transferred directly by him to her. The transaction, in its essential features, would have been the same as now, if the husband had sold his lands and invested the proceeds in other property and taken a conveyance in her name. The circuity of the proceeding would not have altered its character nor affected its validity. In all cases where a husband makes a voluntary settlement of any portion of his property for the benefit of others who stand in such a relation to him as to create an obligation, legal or moral, to provide for them, as in the case of a wife, or children, or parents, the only question that can properly be asked is, Does such a disposition of the property deprive others of any existing claim to it? If it does not, no one can complain if the transfer be made matter of public record, and not be designed as a scheme to defraud future creditors. And it cannot make any difference through what channels the property passes to the party to be benefited, or to his or her trustee, whether it be by direct conveyance from the husband, or through the intervention of others. The technical reasons of the common law arising from the unity of husband and wife, which would prevent a direct conveyance of the property from him to her for a valuable consideration, as upon a contract or purchase, have long since ceased to operate in the case of a voluntary transfer of property as a settlement upon her. The intervention of trustees, in order that the property conveyed may be held as her separate estate beyond the control or interference of her husband, though formerly held to be indispensable, is no longer required. This has been established in courts of equity, says Story, for more than a century, so 'that whenever real or personal property is given or devised or settled upon a married woman, either before or after marriage, for her separate and exclusive use, without the intervention of trustees, the intention of the parties shall be effectuated in equity, and the wife's interest protected against the marital rights and claims of her husband, and of his creditors also.' Eq. Jur., sect. 1380. And he adds to this observation, that 'it will make no difference whether the separate estate be derived from her husband himself or a mere stranger; for, as to such separate estate, when obtained in either way, her husband will be treated as a mere trustee, and prohibited from disposing of it to her prejudice.' There is nothing in the circumstances attending the execution of the deeds in this case which should prevent the full application of the doctrine stated for the protection of the wife's interest against the claim of the assignee for the benefit of the creditors of the husband. Lloyd v. Fulton, 91 U.S. 485.

The powers of revocation and appointment to other uses reserved to the husband in the deeds in question do not impair their validity or their efficiency in transferring the estate to the wife, to be held by her until such revocation or appointment be made. Indeed, such reservations are usual in family settlements, and are intended 'to meet the ever-varying interests of family connections.' Riggs v. Murray, 2 Johns. (N. Y.) Ch. 565. So frequent is the necessity of a change in the uses of property thus settled, arising from the altered condition of the family, the addition or death of members, new occupations or positions in life, and a variety of other causes which will readily occur to every one, that the absence of a power of revocation and of appointment to other uses in a deed of family settlement has often been considered a badge of fraud, and, except when made solely to guard against the extravagance and imprudence of the settler, such settlements have in many instances been annulled on that ground. Several of them are cited in the very able and learned opinion of the district judge who presided in the Circuit Court when this case was there heard. The law in England, by which property can be kept in the same families for many years, has, perhaps, caused greater importance to be given in that country than in this to the insertion in deeds of settlement of a power of revocation and appointment to other uses. Here the absence of the reservation is only a fact to be explained, and is to have more or less weight, according to the circumstances of each case. In the case before us the husband does not appear to have had his attention drawn to the reservation. He desired to have the property settled upon his wife, and he intrusted the preparation of the deed to his counsel. There was clearly no fraudulent intent on his part; no proof of any such intent was produced or stated to be in existence. The only fraud asserted in argument to exist is constructive fraud arising from the reservation in question. But its presence in the deed, as is clear from all the authorities, does not tend to create an imputation upon his good faith and honesty in the transaction. Huguenin v. Baseley, 14 Ves. 273; Coutts v. Acworth, Law Rep. 8 Eq. 558; Wollaston v. Tribe, 9 id. 44; Everitt v. Everitt, 10 id. 405; Hall v. Hall, 14 id. 365; Phillips v. Mullings, Law Rep. 7 Ch. 244; Hall v. Hall, 8 id. 430; Toker v. Toker, 3 De G., J. & S. 486.

As is very justly observed in the opinion of the court below, the insertion of the power of revocation and new appointment, so far from proving that the grantor contemplated a fraud upon his future creditors, tends to show the contrary. Should he revoke the settlements, the property would revert to him, and, of course, be liable for his debts; and should he exercise the power of appointment for the benefit of others, the estate appointed would be liable in equity for his debts.

The title to the land and policies passed by the deeds; a power only was reserved. That power is not an interest in the property which can be transferred to another, or sold on execution, or devised by will. The grantor could, indeed, exercise the power either by deed or will, but he could not vest the power in any other person to be thus executed. Nor is the power a chose in action. It did not, therefore, in our judgment, constitute assets of the bankrupt which passed to his assignee.

Decree affirmed.

title: Jones v. Clifton/Opinion of the Court


text: Talk:Jones v. Clifton/Opinion of the Court

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


text:
May v. Sloan

APPEAL from the Circuit Court of the United States for the Northern District of Florida.

The facts are stated in the opinion of the court.

Mr. Samuel Field Phillips for the appellant.

Mr. Charles N. West for the appellee.

Mr. JUSTICE BRADLEY delivered the opinion of the court.

title: May v. Sloan


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/361

 Rh has escaped both my memory and note-book. It has been attempted to explain the name as meaning the Hill of the Watch by Day, in reference to the old institution of Watch and Ward on conspicuous places in the island; but that explanation is inadmissible as doing violence to the phonetics of the words in question. I am rather inclined to think that the name everywhere refers to an eminence to which the surrounding inhabitants resorted for a religious purpose on a particular day in the year. I should suggest that it was to do homage to the Sun on May morning, but this conjecture is offered only to await a better explanation.

The next great day in the pagan calendar of the Celts is called in Manx Laa Lhunys, in Irish Lugnassad, which was associated with the name of the god Lug. This should correspond to Lammas, but, reckoned as it is, according to the Old Style, it falls on the twelfth of August, which used to be a great day for business fairs in the Isle of Man as in Wales. But for holiday-making the twelfth only suited when it happened to be a Sunday; when that was not the case, the first Sunday after the twelfth was fixed upon. It is known, accordingly, as the First Sunday of Harvest, and it used to be celebrated by crowds of people visiting the tops of the mountains. The kind of interference to which I have alluded with regard to an ancient holiday, is one of the regular results of the transition from Roman Catholicism to a Protestant system


text: Talk:May v. Sloan

title: Talk:May v. Sloan


text:
May v. Sloan/Opinion of the Court

This was a bill in equity filed in the Circuit Court for the Second Judicial Circuit of Florida, by Andrew M. Sloan, against Asa May, to compel the latter to convey to the complainant a certain tract of land situated in Jefferson County, Florida, known as the Alvin May place, containing about eleven hundred acres; and for an injunction against his attempting to obtain possession of the land pending the suit. The case was removed into the Circuit Court of the United States for the Northern District of Florida, and the appeal is from the decree of that court, rendered in favor of Sloan.

A preliminary point is made as to the jurisdiction of this court, on the ground that it does not appear that the matter in dispute exceeds the value of $5,000. This objection is untenable. It does appear from the record that the appellee, who raises the objection, purchased the land for the price of $21,000; and it is by virtue of that purchase that he claims it in this suit. Then again, the petition of appeal to this court, which is verified by the affidavit of the appellant, distinctly avers that the matter in dispute is a large body of land worth more than $5,000 in value. No attempt is made to controvert this allegation, and we think that it sufficiently appears that the case is within our jurisdiction.

The facts as set forth in the bill and answer, and developed by the proofs, are substantially as follows:--

In 1868, Asa May, the appellant, sold and conveyed to his relative and friend, Alvin May, a plantation in Jefferson County, Florida, called the Asa May place, consisting of about twelve hundred acres of land, for the sum of $14,848 in gold; and received in payment eight sealed notes, payable at intervals of one year, with interest, seven of which were for $2,000 each, and the eighth for the balance. To secure the payment of these notes, Alvin gave to Asa May a mortgage on the property sold, and on two other plantations adjoining, one called the Picolata place, containing six hundred and fifty acres, and the other called the Alvin May place (being the property in question), containing about eleven hundred acres. Various payments were made on this debt, amounting, as Alvin May testified, to from $9,000 to $11,000.

Alvin May, besides the above property, became the ostensible owner of several other plantations in the vicinity, and became indebted to A. M. Sloan & Co., commission merchants in Savannah, for money lent and advanced and supplies furnished, to an amount exceeding $50,000. To secure this indebtedness, in January, 1872, he gave to Sloan & Co. three notes, one for $16,831.28, one for $18,777.14, and one for $20,696.78, payable respectively on the first days of January, 1873, 1874, and 1875; and executed to Sloan & Co. a mortgage on the same property previously mortgaged to Asa May, and on several other tracts of land, namely, one called the Elbow tract, containing six hundred and sixty acres, one called the Arendell tract, containing over a thousand acres, one called the McCain place, containing about eleven hundred acres; and a small tract of one hundred and fifty acres, called the S. F. May place. Both mortgages embraced all the personal property on the lands mortgaged, or that might thereafter be thereon.

Alvin May being unable to pay this indebtedness, in May, 1873, Asa May and Andrew M. Sloan (who succeeded to the rights of A. M. Sloan & Co.) severally brought suits against him, and recovered simultaneous judgments, upon which executions were duly issued. Asa May's judgment was for $5,782.15; but the whole balance due to him for principal and interest on his mortgage, including the amount of said judgment, was upwards of $13,000. Sloan's judgment was for $13,811.66, being only upon the note given to his firm which had first matured,-the other two notes not being due. Subsequent judgments were obtained by other parties, and executions sued out thereon.

To obviate the necessity of an actual levy on his property, and to save the expense of advertising, Alvin May, in October, 1873, agreed with the sheriff that no part of the property should be removed, that the sale might take place on the first Monday of December, 1873, and that the proceeds should be distributed according to the rights of the creditors. The sale was afterwards postponed to the first Monday of January, 1874. It was understood that the property to be sold would be the three plantations included in Asa May's mortgage and all the personal property, including mules, farming utensils, and crops. It seems that Sloan had a lien for advances on the crop, independent of his execution and mortgage. The reason why the several tracts covered by Sloan's mortgage, and not covered by Asa May's, were not proposed to be sold at the same time does not clearly appear, except that the title to the McCain place had failed, and the Arendell place, as will be seen, was allowed to be retained by Alvin May free of Sloan's mortgage. The other two tracts, namely, the Elbow tract, and the S. F. May place, may have been reserved for the remaining notes held by Sloan which were not yet due.

On the 13th of December, 1873, Alvin May, the debtor, and Andrew M. Sloan, made the following written agreement:--

'State of Florida, County of Jefferson: Memorandum made and entered into this thirteenth day of December, A.D. 1873, by and between Alvin May and Andrew M. Sloan, relative to the sale of the lands and personal property hereinafter specified.

'The said May, in consideration of one dollar, in hand paid, of twenty-one thousand dollars to be paid by the said Solan, bargains and sells to the said Sloan the lands owned by him in said county, known as the Lang place, the Gamble eighth, the Harvey forty, and twenty acres belonging to the Gorman eighth, and the Murray land, comprising eleven hundred acres, more or less; also, six mules, one thousand bushels of corn, one four-horse and one two-horse wagon, the said lands comprising the home settlement, the house formerly occupied by the said Alvin May, and the other tenements and improvements thereon. The said May is to give a good title to the same, and the same is to sell in such way as to make the title perfect at sheriff's sale, if necessary, to satisfy the judgments now upon record, or mortgages now existing, and the payments are to be made upon the claims existing against the said May, and in favor of the said Sloan. The said Sloan is to have possession immediately, and the said May is to vacate the houses by the first day of January, or sooner, if possible.

'Witness our hands and seals, this 13th of December, A.D. 1873.

'A. M. SLOAN. [SEAL.]

'ALVIN MAY. [SEAL.]

'Signed, sealed, and delivered in our presence:

'A. DENHAM.

'M. PALMER.'

It is conceded that the lands which form the subject of this agreement constituted the Alvin May place, now the subject of controversy, and were included in Asa May's mortgage.

The evidence establishes, we think, that, in pursuance of this agreement, Sloan did take possession of portions of the property on the 1st of January, 1874, and has ever since continued to occupy the same.

On the 5th of January, the day before the sale was to take place, Asa May, Alvin May, and Andrew M. Sloan had a meeting at the office of Mr. Pasco, an attorney at Waukenah, in the neighborhood of the property, and entered into the following agreement:--

'Memorandum of Propositions to Alvin May by Asa May and A. M. Sloan, relative to Settlement of Indebtedness.

'The property subject to the mortgages and execution of the said May and Sloan is to be sold on the first Monday in January, 1874, under the executions against Alvin May. Unless there are other purchasers ready to bid the amount of Asa May's claim, he is to buy in the property for his own use.

'If Asa May buys the property, he agrees that if Alvin May and wife will relinquish all right and title, including her right of dower, to the property sold, that the Arendell plantation shall be given up to Alvin May; that Asa May will pay up or guarantee the payment of the balance due to Arendell's creditors on the Arendell place, the said amount not to exceed $3,000 at the present time; and that the said Asa May and Sloan will make no further claim to the said place, and will permit the title to rest in Alvin May or his wife.

'Asa May and Sloan bind themselves to make no further personal claim upon Alvin May on account of the mortgage and judgment debts of theirs against him; Asa May agrees to let Alvin May have _____ mules of those bought in, and _____ bushels of corn, and _____ pounds of fodder, to enable him to work the Arendell place, the value of the mules to be deducted from the $3,000. Alvin May is to give peaceable possession of the property as soon as possible, so as to enable Asa May to proceed at once to make his arrangements for the coming year.

'Alvin May is to bring up a memorandum of all the property subject to the mortgage and executions against him, early on the morning of the sale, and is to get in as many as possible of the mules sold by him and not paid for, or paid for only in part. The amount of $3,000 embraces the entire amount to be paid by Asa May, whether it is paid on the land, in mules, or in any other manner. Asa May agrees not to interfere with any bona fide trades made by Alvin May, so far as any of the mortgaged property is concerned, provided the trades have been carried out in good faith, and completed.

'Witness our hands and seals, this fifth day of January, A.D. 1874.

'ASA MAY. [SEAL.]

'A. M. SLOAN. [SEAL.]

'ALVIN MAY. [SEAL.]

'Executed in our presence:

'A. DENHAM.

'S. PASCO.'

The last clause of this agreement constitutes one of the principal grounds of the present controversy.

On the 6th of January, 1874, sale took place under the executions. Asa May bid off the three tracts of land covered by his mortgage at fifty cents per acre; namely, the Asa May place, the Picolata place, and the Alvin May place; also nine mules, one pony, one mare, three two-horse wagons, one six-horse wagon, one log-cart, a sugar-mill, and a buggy and harness. Sloan bid off the fodder, a four-horse wagon, a cotton-gin, and two sugar-kettles. One Whitfield bid off fifteen hundred bushels of corn, which he afterwards surrendered to Sloan under the latter's plantation lien.

The proceeds of the sale of the lands, mules, plantation implements, &c., amounting to about $3,000, were applied to Asa May's mortgage; and the proceeds of the sale of the corn and fodder, amounting to about $1,260, were applied to Sloan's plantation lien for advances. It does not appear that any money passed; the application of the proceeds of sale was made by simply crediting the amounts. Sloan received the articles which had been sold to him by Alvin May by the agreement of Dec. 13, 1873, though the mules and one of the wagons were bid off by Asa May, who afterwards purchased the mules and the corn and fodder from Sloan. The sheriff executed a deed to Asa May for the real estate in accordance with the sale.

The object of this suit is to compel Asa May to convey to Sloan, the complainant, the Alvin May place according to what he alleges was the agreement and understanding between the parties, and the intent and meaning of the last clause in the agreement of Jan. 5, 1874.

If the case depended upon the parol agreement set up by the complainant, whereby he claims that Asa May bound himself to convey the land to him, no relief could be granted on this bill. The Statute of Frauds would be a complete bar. The defendant in his answer denies that any such agreement was made. Such a denial is as effective for letting in the defence as if the Statute of Frauds had been pleaded. Sugden, Vendors and Purchasers, 150, c. 4, sect. 6, par. 5.

This renders it unnecessary to examine minutely the testimony on the question thus put in issue by the parties. Had the complainant succeeded in proving such an agreement, it could not have availed him. But the fact is, that he did not succeed in making such proof. The evidence is conflicting on the subject. The fact being denied in the answer, it would have required evidence tantamount to the testimony of two witnesses to establish it; whilst we have only that of the complainant himself, in which he is contradicted by the defendant and by Alvin May and Pasco, the attorney.

The question must stand, then, on the construction to be given to the written agreement of Jan. 5, 1874, in view of the surrounding circumstances and the acts of the parties. Does the last clause of that agreement by its terms embrace the transaction contained in the contract made by Alvin May and Sloan on the 13th of December, 1873? Was that transaction a 'trade' made by Alvin May relating to the mortgaged property, within the meaning of the terms? Was it a 'trade' carried out in good faith and completed?

The word 'trade,' in its broadest signification, includes not only the business of exchanging commodities by barter, but the business of buying and selling for money, or commerce and traffic generally. There is nothing in the manner in which it is used in the clause in question to limit its meaning. Asa May was to buy in the property for his own use. This was the general purport of the agreement. But it was added that 'Asa May agrees not to interfere with any bona fide trades made by Alvin May, so far as any of the mortgaged property is concerned, provided the trades have been carried out in good faith and completed.' Now certainly the agreement of December 13, between Alvin May and Sloan, was a trade, within the broad meaning of the term. It was a trade relating to a portion of the mortgaged property. It appears to have been made for full consideration and in good faith. Asa May, when put on the stand, although he denied that by the clause in question he intended to confirm or to agree to carry out the agreement of December 13, yet he could not deny that he knew of its existence; and Pasco, the common attorney of the parties, knew all about it, and had it in his possession when the agreement of January 5 was made in his office. It cannot be said, therefore, that it was a secret agreement, withheld from the knowledge of Asa May, or that any fraud or bad faith was practised upon him in relation to it. It was also a completed agreement, so far as it could be completed without the execution sale itself, which was contemplated as part of the means of carrying it out. The title was to be made good in that way if necessary, and it cannot be disputed that it was necessary. The weight of evidence also is, that the sale had been carried into effect by delivery of possession by Alvin May to Sloan. It is true that as to a portion of the place there is conflicting testimony on this point. Asa May, after the sale, worked a portion of it; though it is not disputed that Sloan was in possession of the residue. In this connection the conduct of the parties in relation to the mules and other personal property included in the agreement of December 13 cannot be overlookd. Although bid off by Asa May, by whose mortgage it was covered, yet Sloan's claim to it was respected, and Asa May soon afterwards actually purchased the mules from Sloan.

If we look to the surrounding circumstances existing at the time, it will be difficult to resist the conclusion that the sale by Alvin May to Sloan of the property in question was one of the trades to be respected by Asa May. At the time of the sheriff's sale he had already received some $10,000 from Alvin May on the principal and interest of the purchase-money for the place he had sold him, and there was about $14,000 still due. By the sheriff's sale and the agreement of Jan. 5, 1874, he not only got back the original Asa May place, which was all the property he had ever parted with, but the Picolata place adjoining, containing over six hundred and fifty acres, which is stated in the bill, and is not denied, to be a valuable tract of land. It is true that he agreed to give Alvin May an additional $3,000; but it must be recollected that he also got a considerable personal property, the full amount of which does not appear, and a release of dower from Alvin's wife. This was Asa May's situation, and the result of the agreement as it affected him, if construed as we have suggested.

Now, what were the circumstances of Sloan's case? His debt was between $50,000 and $60,000. Besides the lands covered by Asa May's mortgage, he had a mortgage on the McCain place of eleven hundred acres, on the Arendell place of a thousand acres, on the Elbow tract containing six hundred and sixty acres, and on the S. F. May place containing one hundred and fifty acres. He also had a lien on the crop. The McCain place failed in the matter of the title; and in the agreement of Jan. 5, 1874, he agreed to give up to Alvin May all claim on the Arendell tract, to release him from all personal obligation, and to allow $21,000 (its full value) for the Alvin May place; leaving still due to him between $30,000 and $40,000, with only the Elbow tract and S. F. May place as security. Now, why should be have given up the Arendell tract, and all personal claim against Alvin May? And why should this be stipulated for in an agreement between him and Alvin May and Asa May?-an agreement which is entitled 'Memorandum of propositions to Alvin May by Asa May and A. M. Sloan, relative to settlement of indebtedness.' What did he get? What came to him in the transaction? Nothing,-absolutely nothing, unless the clause in question, at the end of the paper, is to be construed as embracing the agreement of December 13, by which he was to have the Alvin May place at $21,000, on account of his claim.

In the light of all these circumstances, it is hard to resist the conclusion that the word 'trade' in the agreement of Jan. 5, 1874, was used by the parties in its broadest signification, so as to include any bargain or sale. As such a meaning of the term is admissible, we think that the circumstances and acts of the parties show that it must have been intended. This being conceded, it plainly became the duty of Asa May, after having purchased the property, to convey the land in question to the appellee.

Decree affirmed.

title: May v. Sloan/Opinion of the Court


text: Talk:May v. Sloan/Opinion of the Court

title: Talk:May v. Sloan/Opinion of the Court


text:
Bank of America v. Banks

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

The facts are stated in the opinion of the court.

Mr. W. B. Pittman for the plaintiff in error.

Mr. James R. Chalmers, contra.

Mr. JUSTICE CLIFFORD delivered the opinion of the court.

title: Bank of America v. Banks


text: Talk:Bank of America v. Banks

title: Talk:Bank of America v. Banks


text:
Bank of America v. Banks/Opinion of the Court

Married women, as the code of the State provides, may rent their lands or make any contract for the use of the same, and may loan their money and take securities for its payment, and employ it in trade or business; and the express enactment is that all contracts made by the husband and wife, or by either of them, to obtain supplies for the plantation of the wife, may be enforced and satisfaction secured out of her separate estate. Provision is also made that when a married woman engages in trade or business as a feme sole she shall be bound by her contracts made in the course of such trade or business, in the same manner as if she was unmarried. Code (Miss. 1871), sect. 1780.

Sufficient appears to show that Virginia Banks, one of the defendants, is a married woman, and that A. D. Banks, the other defendant, is her husband; that they executed three promissory notes, each for the sum of $2,000, payable to their own order, and that they indorsed the same in blank; and that the Bank of America, the plaintiff, is the lawful holder of the several notes. Payment being refused, the plaintiff instituted the present suit, and prays judgment for the amount against her separate property.

Process having been served, the defendants appeared and pleaded three pleas in answer to the declaration: 1. That they never promised in manner and form as alleged. 2. That they had fully paid and satisfied the notes before the suit was instituted. 3. That said Virginia, when the notes were made and indorsed, was a married woman, and that the same were made and indorsed by her as the surety and accommodation indorser of her husband, for the purpose of enabling him to obtain money to carry on a plantation cultivated by him and not by his wife, and that the notes were not made and indorsed in payment of money and supplies furnished to the wife to enable her to cultivate a plantation belonging to her as her separate property, in accordance with a contract made to that effect with the plaintiff, and that the notes and indorsements as to her are without legal consideration, and that she is not liable to pay the same.

Prepayment was denied by the bank. In its replication to the third plea of the defendants, it avers that the notes described in the declaration were not made and indorsed by the wife as an accommodation surety for the husband, as alleged in the third plea. Instead of that, it alleges that the notes were made and indorsed by her in payment of necessary plantation supplies to enable her to cultivate her separate plantation; that the same were furnished and delivered to her by certain commission merchants; and that the notes were given for the payment of such plantation and family supplies and necessaries for family use as a married woman is allowed by law to purchase on credit and to bind her separate estate therefor.

Leave to amend the declaration and replications was subsequently granted to the plaintiff, and it appears that amended counts were filed in pursuance of the authority granted; but it is not necessary to reproduce the new pleadings, as they do not vary the material issues between the parties. Continuance followed, when the parties entered into a stipulation to waive a jury, and that the matters of fact, as well as of law, should be tried by the court. Hearing was had, and the findings of the Circuit Court are as follows: 1. That the husband was discharged before the commencement of the suit from all liability upon the notes, as alleged in his plea. 2. That said Virginia was a married woman at the time she executed the notes, and the wife of the other defendant, as averred in defence. 3. That the notes were executed not to secure any existing indebtedness, but as a security for such advances in money and supplies as the parties to whom the notes were delivered might thereafter make upon the order of the husband, for plantation purposes. 4. That the parties to whom the notes were delivered did thereafter make large advances to the husband, in money and supplies, that remain unpaid, of which an amount as large in value as the aggregate of the three notes was forwarded to the parties and used in the cultivation of two plantations owned by the wife and her two children by a former marriage; that the husband was cultivating those two plantations during the year in question, on his own account and in his own name, under a verbal contract of lease made by him with his wife for a stipulated money rent. 5. No proof was exhibited that the parties to whom the notes were delivered or the plaintiff knew whether the wife was or was not interested in such plantation enterprise; but the court finds that they did know of her interest in the property of the plantations, and that the whole of the account was kept in the name of one of the plantations, and that it contained many items for supplies furnished for another plantation in the cultivation of which the husband was interested, and other items having no relation to plantation matters. 6. That a deed of trust of one of the plantations was executed by the husband and wife contemporaneously with the making of the notes to secure the payment of the same, in which it is recited that it is made to secure the indebtedness of the wife. Based on these findings, the Circuit Court rendered judgment for the defendants; and the plaintiff excepted, and sued out the present writ of error. All the facts are found by the court, and the only error assigned is that the court misapplied the law to the facts.

Marriage, by the rules of the common law, gave the husband a freehold tenure in the estates of inheritance in land of the wife, and the right to the rents and profits during their joint lives. During coverture the husband must sue in his own name for any injury to the profits of the land, but for an injury to the inheritance it was required that the wife must join in the action. 2 Kent, Com. (12th ed.) 131.

Money, goods, and personal chattels in possession vested absolutely in the husband, and became his property as completely as property purchased with his own money; and such property never went back to the wife unless given to her by the husband in his lifetime or by his will, and in case of his death it vested in his executors. Choses in action did not vest absolutely in the husband, but he acquired the power to sue for and recover or release or assign the same, and when recovered and reduced to possession, and not otherwise, the money in most cases became absolutely his own.

Husband and wife during coverture were regarded as one person at common law in most respects, from which it followed as a general rule that the wife could neither sue nor be sued without joining her husband. Great changes in the rules of the common law in that regard were made, even before the colonies separated from the parent country. Deeds of indenture in transferring the real property of the wife, with the consent of the husband, were substituted in the place of fine and recovery; and when it became settled that the wife might hold a separate estate, many other exceptions to the rule that she could neither sue nor be sued without joining the husband were sanctioned by judicial authority.

Exceptions almost without number have been admitted by the courts, and many more have been added to the catalogue by legislation, until in some jurisdictions it is difficult to say that there is any thing left of the ancient rule. Questions of the kind in the State of Mississippi depend almost entirely upon statute regulations and the decisions of the State courts in construing those provisions.

Contracts made by the wife at the period mentioned in the declaration, or by the husband with her consent, for family supplies or necessaries, including wearing-apparel of herself and of her children, or for their education, or for buildings on her land or premises and the materials therefor, or for work and labor done for the use, benefit, or improvement of her separate estate, were by statute declared to be binding on her, and that satisfaction might be had for the same out of her separate property. Code 1857, sect. 25, p. 336.

Supplies for the comfort, convenience, and maintenance of the family and the education of her children must be contracted for by the wife, and, if not purchased directly by her but by the husband, they imposed no liability on her separate property, unless the husband had her consent to act. Unlike that, the rule is that supplies for her plantation, or for the repairs or improvement of her separate estate, or for work, labor, and services in cultivating the same, the contracts may be made by husband and wife, or either of them. Clopton v. Matheny, 48 Miss. 286, 295.

Orders for supplies to her plantation, if filled, bind the separate property of the wife, whether bought by herself or her husband with or without her consent, the rule being in that State that the husband is for that purpose the agent of the wife in invitum, and that he is made so by legislative enactment. Code 1871, sect. 1780; id. 1857, 336. Her separate estate is bound for such supplies, even when purchased by the husband without her direction. Cook v. Ligon, 54 Miss. 368, 373.

Nothing, say the court in that case, will discharge her estate save an express contract that it shall be released, or something equivalent to it. Neither the acceptance of the note of the husband nor the recovery of the judgment on such note will have that effect. Plantation supplies may include money advanced for the purpose of purchasing the same,-farming utensils, working stock, or other things necessary for the cultivation of a farm or plantation, which latter designation must depend upon the usage and custom of agricultural pursuits. Herman & Co. v. Perkins, 52 id. 813.

Express statutory provision exists in the State that a married woman may rent her lands or make any contract for the use thereof, and may loan money in her own name, take securities therefor, and employ it in trade or business; and it is equally clear that she may rent her separate estate to her husband as well as to strangers. Robinson & Stevens v. Powell, Sup. Court Miss., not reported.

Beyond doubt, the two plantations belonged to the wife and her two children by a former marriage, but it is equally certain that the husband cultivated the same, during the year in question, on his own account and in his own name, under a verbal contract of lease made by him with his wife for a stipulated money rent. Supplies for the plantation of the wife, whether purchased by her or by the husband, bind her separate estate; and if she had cultivated these two plantations during the year referred to, the plaintiff would be correct, but the finding of the Circuit Court shows conclusively that she did not cultivate either of them during that year. Her authority to lease the premises is not denied, and the finding of the court establishes the fact that she did not cultivate either plantation during the period when these supplies were furnished.

Leased premises cultivated by the husband in his own name and for his own benefit are not plantations of the wife, within the meaning of the section of the statute which enacts that all contracts made by the husband and wife, or by either of them, may be enforced and satisfaction had out of her separate estate. Code 1871, sect. 1780; Code 1857, p. 336.

Nor is the contract in this case one made by the husband with the consent of the wife, which may also be satisfied out of her separate property. Nothing of the kind is pretended; and if it were, it could not be supported for a moment, as the findings of the court do not contain any thing to give such a proposition the least countenance whatever.

Suppose the plantations were leased to the husband and were cultivated by him that season in his own name and for his own benefit, still it is suggested by the plaintiff that neither the party to whom the notes were delivered nor themselves had any knowledge of the lease, or that the husband purchased the supplies without the consent of the wife or authority of law. Even if that be conceded, it will not benefit the plaintiff, as it only shows that it acted improvidently and without due caution, the settled decision of the courts of the State being that the provision that makes the husband the agent of the wife to purchase plantation supplies for her plantation applies only to those plantations which are cultivated for the wife's account and benefit, and not to those she has leased and which are in the possession and under the control of the tenant. Grubbs v. Collins, 54 Miss. 485, 489.

Enough appears in the findings of the court to show that the plantations were in the exclusive control of the husband, and that the supplies were procured for the use of his employees, and that they were not plantation supplies for account or benefit of the wife. Neither the words of the statute nor the decisions of the State courts permit such a contract to be enforced against the separate property of the married woman. In order that the contract may bind the separate property of the wife, she must be the beneficiary of the cultivation, and the supplies must in fact have been purchased for her account and benefit. Her plantation, says Simrall, C. J., is the predicate of her power to make the contract, and, he adds, that a false representation that she has such property will not estop her from averring that the fact is otherwise.

Nor does the statute oblige her to pay for property purchased on credit, the rule being that such an obligation cannot be enforced. Contracts made in the purchase of supplies for the cultivation of her own plantation, where the cultivation is on her own account and for her own benefit, may be enforced against her separate property. Previously, says the Chief Justice, the word was used by the law-maker to include all those things required and used by the planter in the production and preparation of the crops for consumption and sale.

If it be said that the family must be supported, and that the term ought to embrace food and raiment for them, the answer to the suggestion is furnished by a subsequent part of the same section, which provides that supplies, necessaries, and conveniences for the family are not necessarily chargeable on the wife's property. She is not liable for such expenses, unless she bargains to be, or unless the husband, with her consent, buys them on her account. Wright v. Walton, Sup. Court, Miss., not yet reported. Verbal contracts of lease, not exceeding the term of one year, are valid by the laws of the State. Code 1871, sect. 2892.

Much discussion of the question of estoppel is unnecessary, as it is clear that a married woman cannot, by her own act, enlarge her capacity to convey or bind her separate estate. Palmer v. Cross, 1 Smed. & M. (Miss.) 46.

Facts recited in an instrument may be controverted by the other party in an action not founded on the same instrument, but wholly collateral to it. Recitals of the kind may be evidence for the party instituting the suit, but they are not conclusive. Carpenter v. Buller, 8 Mee. & W. 209, 213; Herman, Estoppel, sect. 238; Lowell v. Daniels, 2 Gray (Mass.), 161, 169; Champlain v. Valentine, 19 Barb. (N. Y.) 485, 488.

In order to work an estoppel, the parties to a deed must be sui juris competent to make it effectual as a contract. Hence a married woman is not estopped by her covenants. Plainly the wife was not competent to purchase supplies for the plantation of the husband, and therefore cannot be estopped by these recitals. Bigelow, Estoppel, 276; Jackson v. Vanderheyden, 17 Johns. (N. Y.) 167.

Viewed in the light of these suggestions, it is clear that there is no error in the record. Tyler, Inf. and Cov. 726.

Judgment affirmed.


text: Talk:Bank of America v. Banks/Opinion of the Court


text:
Watt v. Starke

APPEAL from the Circuit Court of the United States for the Eastern District of Virginia.

The facts are stated in the opinion of the court.

Mr. John A. Meredith for the appellant.

Mr. Robert Ould for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Watt v. Starke


text: Talk:Watt v. Starke

title: Talk:Watt v. Starke


text:
Watt v. Starke/Opinion of the Court

This case arises on a bill in equity filed in the court below, setting forth three certain letters-patent granted to the complainant (the appellant here) for improvements in the construction of plows. The principal controversy in the case arose upon the ninth claim of the third patent set out in the bill, which was dated Nov. 26, 1867, and reissued on the seventeenth day of August, 1869. The defendant filed an answer, in which, among other things, he denied that he had infringed the claim in question, and set up certain patents granted to himself in 1860 and 1868, under which he alleged his manufacture of plows had been carried on. Afterwards, by leave of the court, he filed an amended and supplemental answer, in which, among other things, he alleged that the complainant was not the original and first inventor of the improvements specified in the claim relied on; that it was for a particular kind of mould-board, which he alleged had been in public use and on sale in the United States for more than two years before Watt's application for his patent, specifying the names and residence of persons who had so made and used the same; and that others had known and used it before Watt's pretended invention thereof, naming various persons, and stating their residences. The defendant also, in due time, served a notice upon the complainant that he would introduce several witnesses, whose names and residences were stated, for the purpose of proving prior knowledge and use of the improvements named in the patents more than two years before the complainant's application therefor, and of proving that he was not the original and first inventor or discoverer of said improvements. The defendant also filed in the clerk's office of the Circuit Court, long anterior to the trial, several notices naming other persons whom he intended to examine as witnesses, and specifying certain letters-patent which he intended to introduce in evidence to show that the complainant was not the original and first inventor of the improvement claimed by him, but that the same had been patented or described in a printed publication prior to his supposed invention or discovery thereof.

After the taking of some depositions on the part of the complainant, the court, on the 7th of April, 1876, made an order for the trial of the following issues before a jury at the bar of the court (other issues being also framed, but subsequently abandoned by the complainant):--

First, Whether the complainant, Watt, was the original and first inventor or discoverer of the improvement claimed in said specification nine, or of any material and substantial part thereof.

Secondly, Whether the improvement therein claimed had been in public use or on sale in the United States for more than two years before the said Watt's application for his patent.

Thirdly, Whether said improvement had been patented, or described in some printed publication prior to said Watt's supposed invention or discovery thereof.

The trial of these issues came on in October, 1876, and the jury rendered a verdict in favor of the defendant on each issue. The complainant thereupon moved for a new trial, but the motion was overruled. Thereupon the court, upon the pleadings, proofs, and verdict of the jury, rendered a decree dismissing the bill. From this decree the complainant has appealed; and in support of his appeal produces two bills of exceptions taken by him at the trial before the jury:--

First, To the admission in evidence, on the part of the defendant, of certain patents, without any notice having been served on the complainant or his attorney of an intention to produce the same; such notice only having been filed with the clerk.

Secondly, To certain instructions given to the jury by the court at the request of the defendant.

Although it appears by these bills that the defendant introduced proof tending to show that plows and mould-boards, substantially the same in principle and mode of operation with the mould-board of the plaintiff, had been in common use more than two years before the date of the application of the plaintiff for his original patent, and that the complainant introduced rebutting testimony on the subject, none of this evidence is contained in the record. The only evidence which the record discloses is the depositions taken by the complainant before the trial of the issues.

We lately held, in the case of Johnson v. Harmon (94 U.S. 371), that a bill of exceptions cannot be taken on the trial of a feigned issue directed by a court of equity, or, if taken, can only be used on a motion for a new trial. We are still of that opinion, for the reasons then stated. The court below may have been abundantly satisfied from the evidence taken at the trial that the complainant had no case. The complainant, on his motion for a new trial, might have had the evidence, or the substance of it, stated and made part of the record, and then we could have seen whether the court below had before it sufficient grounds for being satisfied with the conclusions of the jury. This is the proper course in such cases. See 2 Smith, Ch. Pract. c. 9, and especially pp. 84-88. The fact that by virtue of the recent statute, passed Feb. 16, 1875 (18 Stat., part 3, 315, sect. 2), the trial of a feigned issue may be had, in patent cases, at the bar of the court, makes no difference; for it is expressly declared that the verdict of the jury in such cases 'shall be treated and proceeded upon in the same manner and with the same effect as in the case of issues sent from chancery to a court of law and returned with such findings.' Where a court of chancery suspends proceedings in a cause in order to allow the parties to bring an action at law to try the legal right, it does not assume to interfere with the course of proceedings in the court of law, and a motion for new trial must be made to that court; but when it directs an issue to be tried at law, a motion for a new trial must be made to the Court of Chancery; and for that purpose the party applying for a new trial must procure notes of the proceedings and of the evidence given at the trial for the use of the Chancellor. This is done either by having the proceedings and evidence reported with the verdict, or by moving the Chancellor to send to the judge who tried the issue, for his notes of trial; or procuring a statement of the same in some other proper way. The Chancellor then has before him the evidence given to the jury, and the proceedings at the trial, and may be satisfied, by an examination thereof, that the verdict ought not to be disturbed. The evidence and proceedings then become a part of the record, and go up to the court of appeal if an appeal is taken. See Graham, New Trials, by Waterman, vol. iii. p. 1551. In Bootle v. Blundell, 19 Ves. 500, Lord Eldon said: 'If this court thinks proper to consider the case upon the record as fit to be governed by the result of a trial, the review or propriety of which belongs to a court of law, the opinion of the court of law is sought in such a form, that it is regarded as conclusive, whether the judgment is obtained upon a verdict, or in any other shape; but upon an issue directed, this court reserves to itself the review of all that passes at law; and one principle, on which the motion for a new trial is made here and not to the court of law, is, that this court regards the judge's report with a view to determine whether the information collected before the jury, together with that which appears upon the record of this court, is sufficient to enable it to proceed satisfactorily, to which it did not consider itself competent previously.' And in another case before the same judge, Barker v. Ray (2 Russ. 75), he said: 'In considering whether, in such a case as this, the verdict ought to be disturbed by a new trial, allow me to say that this court, in granting or refusing new trials, proceeds upon very different principles from those of a court of law. Issues are directed to satisfy the judge, which judge is supposed, after he is in possession of all that passed upon the trial, to know all that passed there; and looking at the depositions in the cause, and the proceedings both here and at law, he is to see whether, on the whole, they do or do not satisfy him. It has been ruled over and over again, that if, on the trial of an issue, a judge reject evidence which ought to have been received, or receive evidence which ought to have been refused, though in that case a court of law would grant a new trial, yet if this court is satisfied, that if the evidence improperly received had been rejected, or the evidence improperly rejected had been received, the verdict ought not to have been different, it will not grant a new trial merely upon such grounds.'

It is difficult to see how the matter could be made more clear than it is here put by Lord Eldon, whose familiarity with equity practice and pleadings has probably never been surpassed. The remarks above quoted have a direct application to this case. The evidence before the jury, on the question of prior use, may have been so overwhelming as to satisfy the court below that no new trial ought to be granted, but that the verdict should stand, whatever might be said as to the technical points raised by the bills of exceptions. That evidence is not before us. It was before the court below, because the trial was had at the bar of that court. It might have been here so as to be considered by us also, had the party who was dissatisfied with the verdict (in this case, the complainant) seen fit to have procured a statement of the evidence from the judge's notes, or in some other proper way. This was for him to do, if he desired to question the verdict or the decree rendered by the court.

The reason of the practice is obvious: the verdict of a jury upon an issue out of chancery is only advisory, and never conclusive upon the court. It is intended to inform the conscience of the Chancellor. It may be disregarded, and a decree rendered contrary to it. See, in addition to the cases cited, Basey v. Gallagher, 20 Wall. 670. If the verdict were conclusive, erroneous rulings at the time, if material, would vitiate it, of course, and render a new trial necessary. But not being conclusive, the Chancellor may be satisfied with the verdict notwithstanding such rulings; or he may think a new trial desirable even if no erroneous rulings be made. But in all cases where the verdict is brought in question, it is necessary that he be made acquainted with what passed at the trial, including as well the evidence given as the rulings of the court, in order that he may exercise his own judgment in the matter. Exceptions to rulings are proper to be taken and noted; for upon a view of the whole case, the mind of the Chancellor may be affected by them; just as it is proper to take and note objections to evidence taken by deposition: but a bill of exceptions, as such, has no proper place in the proceeding. The verdict can only be set aside on a motion for a new trial, based, not on mere errors of the judge, but upon review of the whole case as submitted to the jury.

What took place on the motion for new trial in this case we are not informed by the record. But as the trial was had at the bar of the court, even though no statement of the proceeding was made up, the court had the benefit of its own notes of the trial, and therefore was cognizant of all that occurred. Had we the same means of knowledge before us, we could then judge whether the court decided properly or not. But we have not these means. We have only bills of exceptions, which are taken, not for use before the court that tries the cause, but for the use of a court of error or appeal; and are generally taken, as they were here, upon the specific rulings of the court of trial, and not upon the entire proceeding. To decide the case upon these bills, therefore, would be to decide it upon different case from that upon which it was decided by the court below.

Brockett v. Brockett (3 How. 691) was an appeal from a decree of the Circuit Court of the District of Columbia. There had been an issue directed, which was tried on the law side of that court. Exceptions were taken at that trial; and it was sought to procure a reversal of the decree upon these exceptions. But this court decided that this could not be done. The court, speaking by Justice McLean, say: 'The bills of exceptions are copied into the record, but they do not properly constitute a part of it, as they were not brought to the notice and decision of the court in chancery.' This case is directly to the point, that a bill of exceptions is not the proper mode of reviewing the trial of an issue out of chancery.

Had the case been fully presented to us, as the court below had it before it on the motion for a new trial, we do not mean to say that the objections relied on by the appellant might not have been good ground of reversal of the decree. But without that, we cannot say that they are; for, even though they had been well taken, they would not necessarily have been good ground for a new trial. The usual grounds for directing a new trial of an issue, as stated in Smith's Chancery Practice (Phila. ed.), vol. ii. p. 84 (citing Tatham v. Wright, 2 Russ. & M. 1), are, '1st, the alleged improper summing up of the judge; 2dly, because the weight of evidence is against the verdict; and, 3dly, because of an informality in the evidence.' But, as we have before shown, notwithstanding erroneous rulings may have been made, the whole case as presented at the trial may have been such as to show to the Chancellor's satisfaction that no new trial was necessary. In the case cited by Smith (Tatham v. Wright), the Master of the Rolls, on the motion for new trial, said: 'I have carefully read every word of the report of the learned judge, but have purposely abstained from reading the short-hand writer's notes of the summing up, in order that my judgment might be formed upon the evidence alone. . . . I am clearly of opinion that the weight of evidence is in favor of the competence of the testator, and that the jury have come to a sound conclusion on the subject. As this opinion is formed without any reference to the summing up of the learned judge, and as I should have considered it may duty to direct a new trial upon the evidence alone, whatever the summing up had been, if the jury had come to a different conclusion, it is not necessary to take any notice of the observations which have been made in that respect.' On appeal to the Lord Chancellor, Chief Justice Tindall and Chief Baron Lyndhurst, sitting for the Chancellor (who had been counsel in the cause), took no notice of the instructions given by the judge to the jury; but carefully examined the evidence which had been laid before the jury at the trial, and sustained the verdict, as the Master of the Rolls had done.

We have examined the authorities referred to by the learned counsel of the appellant, but find nothing therein which militates against the views which we have expressed.

The case of Salter v. Hite (7 Bro. P. C. 189), which is most relied on, only confirms these views. There, notes of the evidence were had, on a motion for a new trial, and the decision, both of the Lord Chancellor and the House of Lords, was based upon a consideration of the whole matter. Cleeve v. Gascoine (Amb. 323) came before the Chancellor on a motion for a new trial, no bill of exceptions having been taken. A new trial was granted on two grounds: first, because postponement had been refused by the judge, notwithstanding the absence of a material witness for the defendant by means of sudden illness. The materiality of the witness's testimony was shown by a statement of what it had been on a previous trial, in which a contrary verdict had been given. The other ground was a clear misdirection of the judge to the jury. Under these circumstances, the Lord Chancellor deemed the verdict unsatisfactory, and directed a new trial to be had. Misdirection of the judge is, undoubtedly, a strong circumstance to be taken into consideration, when the Chancellor has the whole case before him, and the evidence is not so preponderating as to sustain the verdict notwithstanding the instructions. Here the Chancellor had before him sufficient to show that the verdict was taken, not only under a misdirection, but in the absence of very important evidence which ought to have been before the jury. We see nothing here in conflict with what we have said above. The exclusion of material testimony which might have changed the verdict is quite as important to a just conclusion to be formed by the Chancellor, as the preponderance of testimony actually given can be to sustain a verdict open to technical objections. In both cases the question is, whether, in view of all the evidence given, as well as of what has been improperly excluded, the conscience of the Chancellor ought to be satisfied.

In the case of Watkins v. Carlton (10 Leigh (Va.), 560), the Court of Appeals of Virginia held, as we do, that the whole proceedings in the court of law, upon an issue directed out of chancery for the purpose of ascertaining a particular fact, are part and parcel of the chancery cause; and that the court, if required, must certify any instructions given to they jury; inasmuch as the Chancellor has a right to see the whole proceedings. In that case a bill of exceptions was taken, it is true; but the case was considered as upon a motion for a new trial. One of the issues, whether or not the defendant was a mulatto, had, under the instructions of the judge, been ignored or evaded, and evidence upon it had been excluded. All this was made to appear to the Court of Appeals; and that court very properly reversed the decree. As intimated by us in Johnson v. Harmon, though a bill of exceptions cannot properly be taken on the trial of a feigned issue out of chancery, yet, if taken, it may be employed as one of the means of bringing before the court, on a motion for a new trial, the proceedings which took place at the trial. This is all that was done in Watkins v. Carlton.

Brockenbrough v. Spindle (17 Gratt. (Va.) 22) was a bill filed to set aside a deed of trust on account of usury in the loan intended to be secured thereby, and the proceedings were regulated by statute, which required that the question of usury should be tried by jury at the bar of the court. Apparently, the verdict of the jury was to be conclusive. In this case a bill of exceptions was taken in which all the evidence given on the trial was set forth; and the Court of Appeals went into a full consideration both of the evidence and of the rulings of the court, and reversed the decree and ordered a new trial, with instructions that if the evidence on the new trial should be substantially the same as on the former trial, the court should instruct the jury, if they believed the evidence, that they ought to find the transaction not to be usurious. In view of the effect given to the verdict by statute in this case, we see nothing in the action of the Court of Appeals in conflict with what has been laid down in this opinion; and we find nothing material to the question in the other cases that have been cited.

Decree affirmed.

title: Watt v. Starke/Opinion of the Court


text: Talk:Watt v. Starke/Opinion of the Court


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/362

 306 with only one fixed holiday, namely, Sunday. The same shifting has partly happened in Wales, where Lammas is Gwyl Awst, or the festival of Augustus, since the birthday of Augustus, auspiciously for him and the celebrity of his day, fell in with the great day of the god Lug in the Celtic world. Now the day for going up the Van Vach mountain in Brecknock was Lammas, but under a Protestant church it became the first Sunday in August, and even modified in that way it could not long survive under a vigorous Protestant régime either in Wales or Man. As to the latter in particular, I have heard it related by persons who were present, how the crowds on the top of South Barrule on the first Sunday in Harvest were denounced as pagans, by a preacher called William Gick, some seventy years ago; and how another man called Paric Beg, or Little Patrick, preaching to the crowds on Snæfell, in milder terms, used to wind up the service with a collection, which appears to have proved a speedier method of reducing the dimensions of these meetings on the mountain-tops. Be that as it may, they seem to have dwindled since then to comparative insignificance.

If you ask the reason for this custom now, for it is not yet quite extinct, you are told, first, that it is merely to gather ling berries; but now and then a quasi-religious reason is given, namely, that it is the day on which Jephthah's Daughter and her companions went forth on the mountains to bewail her virginity: somehow, some Manx people make believe that they are doing likewise. That is not all, for people who have never themselves thought of going up the mountains on the first Sunday of Harvest or any other, will be found devoutly reading at home about Jephthah's Daughter on that day. I was told this first in the South by a clergyman's wife, who, finding a woman in the parish reading the chapter in question on that day, asked the reason for her fixing on that particular portion of the Bible. She then had the Manx view of the matter fully explained to her, and she has since found


text:
Leggett v. Avery

APPEAL from the Circuit Court of the United States for the District of Kentucky.

The facts are sufficiently stated in the opinion of the court.

Mr. M. D. Leggett for the appellants.

Mr. John E. Hatch, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Leggett v. Avery


text: Talk:Leggett v. Avery

title: Talk:Leggett v. Avery


text:
Leggett v. Avery/Opinion of the Court

This was a bill in equity filed by the appellants against the appellees for an injunction to restrain the latter from infringing certain letters-patent for an improvement in plows, and for an account of profits and an assessment of damages. The letters-patent were original granted to one Matthew G. Slemmons on the ninth day of October, 1860, surrendered and reissued on the twenty-second day of June, 1869, extended for seven years from the ninth day of October, 1874, and again surrendered and reissued on the tenth day of November, 1874. One of the defences made by the defendants was, that the last reissue embraced certain claims for alleged inventions, which had been expressly disclaimed by the patentee as a condition of getting the letters extended, and which are the specific claims which the defendants are charged with infringing. The fact on which the defence is based seems to be well founded. In the original letters, granted in 1860, the only thing claimed was, 'the arrangement of the two curved shoulder-beams, A, A, a clevis, B, transverse bar, D, m, slotted adjustable handles, E, E, b, and notched and mortised shovels, C, C, e, in the manner and for the purpose described.' The specification commences by saying, 'My invention consists in the particular arrangement of the several parts in the manner and for the purpose hereinafter described.' Of course this was a claim for a combination of a number of particulars, and was a very narrow patent, for no one would infringe it who did not use all the parts in the combination as described. It is not pretended that the defendants have done so.

But in 1869 the patentee surrendered these letters and obtained a reissue, embracing six different claims, which were as follows:--

'1. The two converging beams A A, each one of which has a shovel-standard, A', formed by bending its rear end, substantially as described.

'2. The converging beams A A, connected together and constructed with curved shovel-standards A' A' upon them, substantially as described.

'3. The union of the front ends of plow-beams, which have their rear ends bent to form shovel-standards, by means of a clevis or device by which the team is hitched to the implement, substantially as described.

'4. The converging plow-beams A A, having shovel-standards A' A' formed on them, in combination with handles F F and handle-supporting braces E E, substantially as described.

'5. In combination with the foregoing, the manner, substantially as described, of adjusting the handles F F, and securing them to the beams at any desired angle.

'6. Constructing of one piece of metal a plow-beam, A, and a curved shovel-standard A', with a shoulder d formed on the latter, substantially as described.'

The defendants allege that most of these claims were for devices that had long been in public use, and that the patentee never attempted to vindicate his title to them by instituting any suits against those who had used them; and evidence on the subject was introduced which it would be necessary for us to examine, if the case depended on this issue. But early in 1874 the patentee, on behalf of the present complainants and appellants who had purchased the patent, applied for an extension for another seven years. This was opposed by those who were interested in the subject-matter, and the acting commissioner of patents refused to grant the extension unless the patentee would abandon all the claims in the reissued patent of 1869, except the fifth. Thereupon a disclaimer was filed accordingly, and the patent was extended for the fifth claim only, which the defendants have not infringed. This disclaimer was filed on the 5th of October, 1874; and the extension was granted on the ninth of the same month. On the same day, another reissue was applied for, including substantially the claims which had been rejected and disclaimed. The examiner refused to pass the application; but it was persisted in, and finally, on the 10th of November, 1874, the reissue was granted on which the present suit was brought. This reissue contains the following claims:--

'1. Two diverging beams, A A, that have their rear ends bent to form shovel-standards, the said beams being fastened rigidly together, substantially as described, at and springing from the point of attachment for the draft.

'2. Two diverging beams, A A, that have their rear ends bent to form shovel-standards, and their front ends fastened rigidly together and merged into a device, substantially as described, whereby the plow may be attached to the draft.

'3. The combination, substantially as described, with the two plow-beams A A, of the handles F F, and adjustable handle-supporting braces E E.' It is obvious, on inspection, that the first and second of these claims are for substantially the same inventions which were disclaimed before the extension, and are for different inventions from that which was included in and secured by the letters-patent as extended. The court below deemed this, amongst other things, a fatal objection to the validity of the reissued letters-patent. We agree with the Circuit Court. We think it was a manifest error of the commissioner, in the reissue, to allow to the patentee a claim for an invention different from that which was described in the surrendered letters, and which he had thus expressly disclaimed. The pretence that an 'error had arisen by inadvertence, accident, or mistake,' within the meaning of the patent law, was too bald for consideration. The very question of the validity of these claims had just been considered and decided with the acquiescence and the express disclaimer of the patentee. If, in any case, where an applicant for letters-patent, in order to obtain the issue thereof, disclaims a particular invention, or acquiesces in the rejection of a claim thereto, a reissue containing such claim is valid (which we greatly doubt), it certainly cannot be sustained in this case. The allowance of claims once formally abandoned by the applicant, in order to get his letters-patent through, is the occasion of immense frauds against the public. It not unfrequently happens that, after an application has been carefully examined and compared with previous inventions, and after the claims which such an examination renders admissible have been settled with the acquiescence of the applicant, he, or his assignee, when the investigation is forgotten and perhaps new officers have been appointed, comes back to the Patent Office, and, under the pretence of inadvertence and mistake in the first specification, gets inserted into reissued letters all that had been previously rejected. In this manner, without an appeal, he gets the first decision of the office reversed, steals a march on the public, and on those who before opposed his pretensions (if, indeed, the latter have not been silenced by purchase), and procures a valuable monopoly to which he has not the slightest title. We have more than once expressed our disapprobation of this practice. As before remarked, we consider it extremely doubtful whether reissued letters can be sustained in any case where they contain claims that have once been formally disclaimed by the patentee, or rejected with his acquiescence, and he has consented to such rejection in order to obtain his letters-patent. Under such circumstances, the rejection of the claim can in no just sense be regarded as a matter of inadvertence or mistake. Even though it was such, the applicant should seem to be estopped from setting it up on an application for a reissue.

Decree affirmed.

MR. JUSTICE HARLAN did not sit in this case.

title: Leggett v. Avery/Opinion of the Court


text: Talk:Leggett v. Avery/Opinion of the Court


text:
Simmons v. Wagner

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

The facts are stated in the opinion of the court.

Mr. A. L. Knapp for the plaintiff in error.

Mr. Charles P. Wise for the defendant in error.

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

title: Simmons v. Wagner


text: Talk:Simmons v. Wagner

title: Talk:Simmons v. Wagner


text:
Simmons v. Wagner/Opinion of the Court

This was an action of ejectment brought by Simmons, the plaintiff in error, against Wagner, the defendant, to recover the possession of the N. E. fr. 1/4 sec. 19, T. 4, N. R. 9 W. of the third principal meridian, Illinois. Simmons claimed title under a patent from the United States, dated April 25, 1871, granting him the lands as the assignee of one Mecke, who entered them at the land-office Jan. 25, 1871. Wagner claimed through a purchase made under the old credit system, April 17, 1816, by one John Lewis, and a paper bearing date July 8, 1829, which purported to be a certificate of full payment of the purchase-money in favor of William Russell.

A trial was had to the court without a jury, and resulted in a judgment for the defendant. There was no special finding of facts, but the evidence is set out in full in a bill of exceptions, which concludes as follows: 'The court found the issue joined for the defendant on the ground that the premises in controversy, on the issue of the final certificate to William Russell, ceased to be a part of the public domain, and were not thereafter subject to entry by individuals or sale by the United States, and to which finding the plaintiff then and there excepted.'

To justify this conclusion, the court must have found as a fact that the final certificate in question was a genuine document, and issued by the proper officer in the regular course of his official duty. This finding is conclusive on us, for we have many times decided that a bill of exceptions cannot be used to bring up the evidence for a review of the findings of fact. The Abbotsford, 98 U.S. 440, and the cases there cited. We have to consider, then, upon this branch of the case, only the question whether one in possession under such a certificate, without a patent, can successfully defend against an action of ejectment to recover the possession by the holder of a patent issued upon a subsequent purchase of the land as part of the public domain.

It is well settled that when lands have once been sold by the United States and the purchase-money paid, the lands sold are segregated from the public domain, and are no longer subject to entry. A subsequent sale and grant of the same lands to another person would be absolutely null and void so long as the first sale continued in force. Wirth v. Branson, 98 id. 118; Frisbie v. Whitney, 9 Wall. 187; Lyttle v. The State of Arkansas, 9 How. 314. Where the right to a patent has once become vested in a purchaser of public lands, it is equivalent, so far as the government is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it has become complete are the mere ministerial acts of the officers charged with that duty. Barney v. Dolph, 97 U.S. 652; Stark v. Starrs, 6 Wall. 402.

This leads us to the inquiry whether Lewis and his assigns had, under the facts as found, acquired a vested right in the lands when the entry was made by means of which Simmons got his patent. By the statute under which Lewis made his entry in 1816, it was provided that purchases of public lands might be made on credit, and that when payment of the purchase-money was completed the register of the land-office should give 'a certificate of the same to the party, and, on producing to the Secretary of the Treasury the same final certificate, the President of the United States is hereby authorized to grant a patent of the lands to the said purchaser, his heirs or assigns.' 2 Stat. 76, sect. 7. It follows, then, that if the final certificate in this case was genuine and valid, as, in effect, it has been found to be, Russell, the assignee of Lewis, had the legal right to demand from the President a patent for the lands described. This, certainly, was a complete segregation of the lands in controversy at that date. The sale to Mecke and patent thereon to Simmons, more than thirty years afterwards, were null and void, and conveyed no title as against Russell and his assigns. It is of no consequence whether the assignees of Russell could get a patent in their own names or not. After the certificate issued the lands were no longer in law a part of the public domain, and the authority of the officers of the government to grant them otherwise than to him, or some person holding his rights, was gone. The question is not whether Wagner, if he was out of possession, could recover in ejectment upon the certificate, but whether Simmons can recover as against him. He is in a situation to avail himself of the weakness of the title of his adversary, and need not assert his own. We think it clear, therefore, that the court below was right in giving judgment for defendant on the facts found.

Several exceptions were taken, during the progress of the trial, to rulings on the admissibility of evidence. While errors have been formally assigned on all these exceptions, only a few have been insisted on in the argument. Some have been already disposed of, as the objections were made entirely upon the assumption that nothing short of a superior legal title could defeat the patent which Simmons held. There was some evidence to prove the signatures of the register to the final certificate. That was one of the facts in the case, and the general finding in favor of the validity of the certificate is equivalent to a finding that its due execution had been proved. The question here is not whether the deeds from Lewis to Russell, without the clerk's certificate as to the official character of the officer before whom the acknowledgment was made, would be sufficient to justify the registered of the land-office in issuing his final certificate; but whether, in this action, they were admissible without such certificate to prove the fact that an assignment had been actually made. For aught we know, they were properly certified when presented to the register. Copies from the county records were offered in evidence below, and the records were made in 1816, long before any action was had by the register. It is not claimed that any certificate was necessary to authenticate them for record or to make them admissible as evidence in the cause.

On the whole, we see no error in the record.

Judgment affirmed.

title: Simmons v. Wagner/Opinion of the Court


text: Talk:Simmons v. Wagner/Opinion of the Court


text:
West v. Smith (101 U.S. 263)

ERROR to the Circuit Court of the United States for the District of Connecticut.

The facts are stated in the opinion of the court.

Mr. C. E. Perkins for the plaintiff in error.

Mr. A. P. Hyde, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: West v. Smith (101 U.S. 263)


text: Talk:West v. Smith (101 U.S. 263)

title: Talk:West v. Smith (101 U.S. 263)


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/363

 Rh more information about it, and so have I. This is a very curious instance of a pagan practice profoundly modified to procure a new lease of life; but it is needless for me to say that I do not quite understand how Jephthah's Daughter came to be introduced, and that I should be glad to have light shed on the question.

I notice, with regard to most of the mountains climbed on the first Sunday of Harvest, that they seem to have near their summits wells of some celebrity; and these wells appear to be the goal of the visitors' peregrinations. This is the case with South Barrule, the spring near the top of which cannot, it is said, be found when sought a second time; also with Snæfell and Maughold Head, which boasts one of the most famous springs in the island. When I visited it last summer, in company with Mr. Kermode, we found it to contain a considerable number of pins, some of which were bent, and many buttons. Some of the pins were not of a kind usually carried by men, and most of the buttons decidedly belonged to the dress of the other sex. Several people who had resorted many years ago to St. Maughold's Well told me that the water is good for sore eyes, and that after using it on the spot, or filling a bottle with it to take home, one was wont to drop a pin, or bead, or button, into the well. But it had its full virtue only when visited on the first Sunday of Harvest, and that only during the hour the books were open at church, which, shifted back to Roman Catholic times, means doubtless the hour when the priest is engaged saying Mass. This restriction, however, is not peculiar to St. Maughold's Well, as I have heard of it in connection with other wells, such as Chibbyr Lansh in Lezayre parish, and with a well on Slieau Maggyl, in which some Kirk Michael people have a great belief. But even sea-water was believed to have considerable virtues if you washed in it while the books were open at church, as I was told by a woman who had many years ago repeatedly taken her own sister to divers wells and to the sea during the service on