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Burbank v. Conrad/Dissent Clifford

MR. JUSTICE CLIFFORD dissenting.

Power was conferred upon the President, and it was made his duty by the fifth section of the act to suppress insurrection, to cause the seizure of all estate and property of the persons designated in that section, and to apply and use the same and the proceeds thereof for the support of the army. Proceedings in rem were authorized for the condemnation of such estates and property, the provision being that the proceedings should conform as nearly as may be to proceedings in admiralty or revenue cases, and that if the property is found to belong to a person engaged in rebellion, or who has given aid and comfort thereto, the same shall be condemned as enemies' property, and shall become the property of the United States. 12 Stat. 589.

Pursuant to that act, an information in proper form was filed against the several properties in controversy in these cases; and the record shows that the same were formally condemned as forfeited to the United States, as appears by the decree of the District Court, fully set forth in the transcript. Due condemnation of the several properties having been adjudged, the writ of venditioni exponas was issued; and the same were sold, the defendant in the first suit and the plaintiff in the second being the purchasers of the parcels, the respective titles of which are in controversy in these suits. Formal conveyances were made to the respective purchasers, they respectively being the highest bidders for the several parcels described in their respective deeds of conveyance.

Certain parcels of the property sold as aforesaid are embraced in Conrad v. Waples, which was commenced in the Circuit Court by the present plaintiff against the purchaser under the marshal's sale, and certain other parcels of the property are embraced in the second suit, which was commenced in the State court by the grantee of those parcels under the marshal's deed, against the defendant in error in that case.

Service was made in that case; and the defendant appeared and set up the seizure of the several parcels as the property of Charles M. Conrad, and the condemnation and sale of the same as previously explained, and the conveyance of the said parcels to him, the defendant, by the marshal as the property of the United States. Interlocutory proceedings of various kinds followed, which it is not important to notice. All such matters having been adjusted, the parties went to trial, and the verdict and judgment were in favor of the defendant. Exceptions were taken by the plaintiff; and he sued out a writ of error, and removed the cause into this court.

Fee-simple title to the premises is claimed by the plaintiff by virtue of a conveyance from his father, Charles M. Conrad, to himself and his brother, called in the jurisprudence of that State an act of sale, which was executed on the 6th of May, 1862, during the rebellion, before Joseph L. Nettles, recorder in and for the parish of St. Helena, which at the time was within the Confederate lines, the estate and property conveyed being situated in New Orleans, which at the time was in the possession of the army of the United States.

During the trial, the plaintiff offered that act of sale in evidence, in support of his title to the premises in controversy; and the defendant objected to the introduction of the same, upon six grounds: 1. That the act was not a sale, but a mere giving in payment, and that no delivery of the property was or could be made, inasmuch as the same was situated within the Federal lines, and that the act was executed within the military lines of the Confederate States, where the parties thereto were sojourning. 2. That it being admitted that the vendor and vendees had been before and were, at the date of the act and afterwards, engaged in rebellion against the United States, and so continued until the end of the war, and that the act was passed within the Confederate lines, the property being situated within the Federal lines, the act of transfer was inoperative and void. 3. That such evidence would tend to contradict the decree of condemnation previously entered in the District Court, and set up by the defendant in his answer. 4. That it being admitted that the grantor and grantees were enemies of the United States at the time the act was passed, the grantor was incompetent to complete the transfer of the property, the same being within Federal military lines. 5. That the copy of the act offered in evidence was not, by the statute of the State, admissible in evidence against any right set up by a third person, without being accompanied with proof that the same had been duly and legally registered in the proper office where the properties were situated. 6. That a state of war then existing, a deed executed in the parish of St. Helena, within the Confederate lines, could not be legally recorded in the parish of Orleans, which at that date was within Federal military lines.

These several objections to the evidence offered were sustained by the court, and the plaintiff excepted, which presents the principal question in the case.

Primarily, Burbank v. Conrad was a petition in the Fifth District Court of the city for partition, the present plaintiff, as petitioner, claiming one undivided half part of the premises under the aforesaid confiscation proceedings and sale. Process was served; and the defendants appeared and pleaded that the sale under those proceedings was void, the supposed owner of the premises having had, at the filing of the information, no right, title, or interest in the property. Instead of that, that they were the true and sole owners of the same, by virtue of a notarial act of sale executed by their father, June 3, 1862, before J. G. Parkinson, recorder of the parish of St. Mary, which presents the same question as that involved in the other case, it appearing that the place where the act of sale was executed was within the Confederate lines.

Hearing was had, and the court rendered judgment in favor of the petitioner. Prompt appeal was taken by the defendants to the Supreme Court of the State, where the parties were again heard, and the Supreme Court reversed the decree of the Fifth District Court, and rendered judgment in favor of the defendants, that they have a valid title to the property described in the petition. Judgment having been entered in favor of the defendants, the plaintiff sued out a writ of error, and removed the cause into this court.

Errors assigned by the plaintiff are, that the Supreme Court of the State erred in reversing the decree of the Fifth District Court, and in entering a decree in favor of the defendants that they had a valid title, and that they be put in possession of the premises.

Sufficient appears to show that the parties in each case claim title to a certain portion of the estate and property condemned as forfeited to the United States under the before-described confiscation proceedings. Two of the claimants, to wit, the defendant in the first suit and the plaintiff in the second, set up title as purchasers under the respective deeds of the marshal given to them respectively as purchasers at the confiscation sale. On the other hand, the plaintiff in the first suit and the defendants in the second claim title as grantees of their father, the respective conveyances bearing date during the rebellion, but before the passage of the confiscation act under which the several properties were condemned as forfeited to the United States for the treasonable acts of the father.

Conveyances of the kind appear in the record, the one to the plaintiff in the first suit having been executed May 6, 1862, in the parish of St. Helena, before the recorder of that parish, within the Confederate lines, the plaintiff alleging that the same was duly recorded May 31, 1862, and the defendant denying the allegation in his answer; and the other having been executed to the defendants in the second suit, June 3, 1862, in the parish of St. Mary's, before the recorder of that parish, which was also within the Confederate lines; nor was the conveyance ever recorded until the 8th of December, 1870, in the parish of Orleans, where the property is situated.

Argument to show that the proceedings to confiscate the properties in controversy were correct in form is scarcely necessary, as no attempt is made to impeach their formality. Seizure of the properties in controversy was duly made under the act of Congress referred to; and the information charged that the owner of the properties seized, subsequently to the passage of the act, did act as a member of the Confederate Congress, and that he was engaged in armed rebellion against the United States, and that by reason of the premises the properties described in the information, and all the right, title, interest, and estate of the owner, became and were forfeited to the United States, and ought to be condemned to their use.

Due monition issued and was served, which is notice to all the world; and no appearance having been entered, the information or libel was taken as confessed. Proofs were taken which fully established the charges; and the court entered a final decree to that effect, and that the several properties be, and the same are, hereby condemned as forfeited to the United States.

Sales were subsequently made under a venditioni exponas issued in due form; and the defendant in the first case and the plaintiff in the second case became the purchasers of the respective properties in controversy in these two suits.

Beyond all doubt, the title of the defendant in the first and the plaintiff in the second is perfect and must prevail, unless the claim set up by the plaintiff in the first suit and that set up by the defendants in the second can be sustained, both of which depend substantially upon the same state of facts.

Legal seizure of the property condemned was made on the 29th of July, 1863, and the record shows that the information was filed on the 7th of August following. Judgment was rendered Fed. 3, 1865, and the sale followed under the writ of venditioni exponas in the regular course of proceedings in such a prosecution.

Jurists of all schools and courts of all nations agree that the title to real estate is governed by the law of the place where it is situated. Differences of opinion upon the subject existed at one time; but the confusion which arose from the application of inconsistent systems of law to such titles ultimately led courts and jurists to narrow the law in all suits concerning immovable property to that of the forum rei sitoe. Whart. Confl. Laws, sect. 273; United States v. Crosby, 7 Cranch, 115.

No estate of freehold in land can be conveyed in Massachusetts, unless it be by a deed or conveyance under the hand and seal of the party; and, to perfect the title as against strangers, it is further requisite that the deed should be acknowledged before a proper magistrate, and be recorded in the registry of deeds for the county where the land lies. Clark v. Graham, 6 Wheat. 577; Kerr v. Moon, 9 id. 565.

Authorities to that effect are too numerous for citation; nor is it necessary to extend the list, as the principle is now universally acknowledged. Suffice it to say, in the language of Judge Story, that the title to real property can only be acquired, passed, or lost, according to the lex rei sitoe; for which proposition he refers to the expressive language of Sir William Grant, that the validity of every disposition of real estate must depend upon the law of the country in which that real estate is situated. Curtis v. Hutton, 14 Ves. 541; Story, Confl. Laws (6th ed.), sect. 424.

Courts and jurists everywhere also agree that all trading in time of war with a public enemy, unless by permission of the sovereign, is interdicted when war is declared or duly recognized by the belligerent parties. The Hoop, 1 C. Rob. 196; Exposito v. Bowden, 7 Ell. & Bl. 779; Griswold v. Waddington, 15 Johns. (N. Y.) 57; 3 Phill. Int. Law, 108; White v. Burnley, 20 How. 235.

As soon as war is commenced, all trading, negotiation, communication, or intercourse between the citizens of the belligerent countries must cease, without direct permission of the sovereign power. 1 Chitty, Comm. Law, 379; 1 Duer, Ins. 419; United States v. Grossmayer, 9 Wall. 72.

Six classes of persons are included in the fifth section of the act, which makes it the duty of the President to cause the seizure of all their estate and property, and to apply and use the same, and the proceeds thereof, for the support of the army.

Due seizure is admitted; but the better opinion is, that it was not intended that the mere act of seizure should vest the property so seized in the United States, as the seventh section provides that, to secure the condemnation and sale of any such property after the same is seized, proceedings in rem shall be instituted in the District Court; and that if it shall be found that the property belonged to a person engaged in rebellion, or who had given aid or comfort thereto, the same shall be condemned as enemies' property, and become the property of the United States, and may be disposed of as the court shall decree. Bigelow v. Forrest, 9 Wall. 350.

Cases arise, undoubtedly, where the property in such a case is divested out of the owner, and vested in the sovereign, immediately on the commission of the offence; as, where the words of the statute are, that if a certain offence be committed the forfeiture shall take place; or that if the described offence is committed the property shall be forfeited. United States v. 1960 Bags of Coffee, 8 Cranch, 398; United States v. The Brigantine Mars, 8 id. 416; The Annandale, Law Rep. 2 P. & D. 218; The Reindeer, 2 Cliff. 68; Robert v. Witherhead, 12 Mod. 92; Wilkins v. Despard, 5 T. R. 112; Certain Logs of Mahogany, 2 Sumn. 589; Henderson's Distilled Spirits, 14 Wall. 44.

Unless the words of the statute are absolute, no such consequences follow until the property is condemned; as, where the sovereign may by the terms of the same proceed against the property or the person who committed the wrongful act, it is held that the title does not vest in the sovereign until the property is condemned. United States v. Grundy, 3 Cranch, 338.

Judgment was rendered Feb. 3, 1865, in the confiscation proceedings; and from that time it must be admitted that the title to the several properties was vested in the United States, unless the title set up by the plaintiff in the first case and by the defendants in the second can be sustained.

Sect. 5 of the act of July 13, 1861, provided that the President, whenever the contingencies therein specified should occur in any State or States, or parts thereof, might, by proclamation, declare that the inhabitants of such State, section, or part thereof are in a state of insurrection, and that thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, shall cease and be unlawful, so long as such condition of hostility shall continue. 12 Stat. 257.

Conformably to that authority, the President, on the 16th of August in the same year, issued his proclamation, in which he declared that the inhabitants of certain States, including the State of Louisiana, were in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with certain exceptions not material to be noticed in this investigation, and the citizens of other States and other parts of the United States, is unlawful, and will remain unlawful until such insurrection shall cease or has been suppressed. Id. 1262.

Provision was also made by the fifth section of the said act of Congress that all goods and chattels, wares and merchandise, coming, after such proclamation, from such State or section into the other parts of the United States, and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or section, be forfeited. The Reform, 3 Wall. 617.

Public war, duly declared or recognized as such by the warmaking power, imports a prohibition by the sovereign to the subjects or citizens, of all commercial intercourse and correspondence with citizens or persons domiciled in the enemy country. Jecker et al. v. Montgomery, 18 How. 110; The Rapid, 8 Cranch, 155; Potts v. Bell, 8 T. R. 548; Maclachlan, Shipp. 473; Wheaton, Int. Law, by Lawrence, 547; The William Bagaley, 5 Wall. 377.

Attempt was made, in argument, to distinguish the first case from the second, upon the ground that the supposed notarial act of sale of the 6th of May, under which the plaintiff in the first suit claims title, was, on the 31st of that month, registered in the parish of Orleans, where the land is situated; but it will be seen, by reference to the record, that the act of sale was made subsequent to the secession of the State, and during the period when the parish where the property is situated was temporarily within the Confederate lines.

Enemy parties conveying or accepting conveyances of real properties, under such circumstances, must be understood to do so with the knowledge that the rightful sovereign, if he is successful in regaining the sovereignty of the State or district, may refuse to recognize the validity of such a transfer, in a case where it appears that the grantor, before the act of transfer was executed, had been guilty of treasonable acts against his rightful sovereign, and that both grantor and grantees were at the time engaged in war against the rightful government. United States v. Huckabee, 16 Wall. 414.

Proof of a decisive character is exhibited in the record, that the rule of the Confederate States over the parish where the property is situated ceased on the 2d of May, 1862, when the national army landed there and took possession of the parish. The Venice, 2 Wall. 258; The Ouachita Cotton, 6 id. 521.

Military possession by the Confederates followed secession; and the insurgents continued to hold the city from the date of secession to the time when our army landed there, or a few days before, when the mayor of the city declared that the city was undefended, and at the mercy of the victors.

Both the vendor and vendees were engagad in open rebellion against the United States at the time the notarial act of sale was passed within the insurgent lines, the property at the time being situated within the Federal lines; from which it follows that the vendor was legally incompetent to make sale and delivery of the property to the vendees, and that the vendees were legally incompetent to accept sale and delivery from the rebel vendor. Actual delivery of the property could not lawfully be made, nor could the supposed act of sale be lawfully registered in the parish where the land is situated; the proclamation of the President providing that all commercial intercourse between the insurrectionary State and the inhabitants thereof with the citizens of other States and other parts of the United States is unlawful, and will remain unlawful until such insurrection shall cease, or has been suppressed. 12 Stat. 257, 1262.

Courts of justice, even with the consent of the opposite party, will not enforce a right or contract in violation of a statute, although not expressly declared void by the enactment. Powell, Contr. 166; Comyns, Contr. 59; Bank v. Owens, 2 Pet. 527; Coppel v. Hall, 7 Wall. 542.

In war, says Chancellor Kent, every individual of the one nation must acknowledge every individual of the other nation as his own enemy, because the enemy of his country. It reaches to intercourse, transfer or removal of property, to all negotiation and contracts, to all communication, to all locomotive intercourse, to a state of utter occlusion to any intercourse but one of open hostility, and to any meeting but in actual combat. Griswold v. Waddington, 16 Johns. (N. Y.) 438; The Rapid, 8 Cranch, 155.

All intercourse, says Story, between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the exercise of the rights of humanity. The Julia, 8 Cranch, 181.

If a plaintiff cannot open his case without showing that he has broken the law, courts of justice will not assist him to recover, whatever the equities of his case may be. Fowler v. Scully, 72 Pa. St. 456.

Support to the opposite theory, it is supposed, may be derived from the case of Kershaw v. Kelsey (100 Mass. 561); but it is difficult to see what foundation there is for the supposition, if the decision is confined, as it should be, to the matters involved in the controversy. Take the facts as reported, and they are as follows: That the defendant, a citizen of Massachusetts, being in Mississippi in February, 1864, took a lease for one year from the plaintiff, a citizen of Mississippi, of a cotton plantation situated in the latter State, for a rent of $10,000, half in cash and half to be paid out of the cotton crop; the lessor agreeing to deliver, and the lessee to receive and pay for, the value of the corn then on the plantation.

It did not appear whether the defendant went into that State before the war or after it began; nor was there any evidence of any intent on the part of either party to violate or evade the laws, or to oppose or injure the United States. Every presumption of that sort is negatived; but it appeared that the defendant paid the first instalment of rent, took possession of the premises, used the corn there, provided the plantation with supplies to the amount of $5,000, planted and sowed it, and, in the early spring, was driven away by rebel soldiers, and never but once afterwards returned to the plantation.

How long the defendant had resided there prior to the contract of lease did not appear; but the report states that the plaintiff continued to reside on the plantation, raised a crop of cotton there, and delivered it to the son of the defendant, by whom, in the autumn of the same year, it was forwarded to the defendant, who sold it and retained the profits, amounting to nearly $10,000.

Speaking of the facts, the court say, in effect, that the lease was made within the rebel territory, where both parties were at the time, and that it seems to contemplate that the lessee should continue to reside there throughout the term; that the rent was in part paid on the spot, and that the residue was to be paid out of the produce of the land; that the corn the value of which is sought to be recovered in the action was delivered and used on the plantation; that no agreement was made that the cotton crop should be transported, or the rent sent back, across the line between the belligerents; that no contract or communication appears to have been made across that line relating to the lease, to the delivery of possession of the premises, or of the corn, or the payment of the rent of the one or the value of the other.

These limitations, with one other which follows, should be carefully observed, as they furnish the key to what the court subsequently decided. None of the facts as reported are of a character to require any modification of the laws of war as expounded by the great jurists, to whose decisions reference has already been made; and the court in that case very justly remarked, that the fact that the cotton was subsequently forwarded by the son to the defendant, though it may have been unlawful, cannot affect the validity of the lease, as the lease does not contain any such stipulation.

Based upon the reported case, as thus very clearly explained, the court decided that the facts did not contravene the law of nations or the public acts of the government, even if the plantation was within the enemies' lines, and that the plaintiff upon the case reported is entitled to recover the unpaid rent and the value of the corn. Many other matters are doubtless the subject of remark in the opinion, but the propositions as stated embody every thing which the justices of the court decided in the case.

Their decision is plain, and they make two admissions,-one direct, and the other necessarily implied,-which are equally plain: 1. That the act of forwarding the cotton to the defendant was unlawful. 2. That if the lease had contained any agreement that the cotton crop should be transported or the rent sent back across the line between the belligerents, or if any contract or communication had been made across that line relating to the lease, the delivery of possession of the premises or of the corn, or the payment of the rent of the one or the value of the other, the agreement or contract would have been void, as contravening the law of nations and the public acts of the United States.

Viewed in the light of these suggestions and the authorities referred to, it is clear that the registration of the act of sale of the 6th of May was unlawful, and that the title in the first case cannot be distinguished from the title in the second case, where no registration was made in the parish where the land is situated, until Dec. 8, 1870, nearly six years subsequent to the date of the decree of condemnation. Nor does the registration in the first case give any more effect in law to the title in that case than belongs to the title in the second, as it purports to have been made May 31, 1862, nearly a month subsequent to the time when the army of the United States landed in the city of New Orleans, and put an end for ever to the temporary and unlawful occupation of that city by the military forces of the Confederate States.

Suppose that such a registry, if it had been made during the Confederate occupation, would have been valid as a transaction between Confederates within the Confederate lines, still it is clear that a notarial act of sale, executed before a Confederate notary within the Confederate lines, could not be lawfully recorded in the parish of New Orleans at any time after the army of the United States landed there and took permanent possession of the parish. Beyond all question, such a registration was unlawful and a nullity, as neither the grantor nor grantees could use the Federal mails to send the document there for registration, nor could they travel there for that purpose in person, or send an agent there to forward the same for registration. Dean v. Nelson, 10 Wall. 158; Lasere v. Rochereau, 17 id. 437; Montgomery v. United States, 15 id. 395.

One of the immediate and important consequences of the declaration of war is the absolute interruption and interdiction of all commercial correspondence, intercourse, and dealing between the subjects of the two countries. 1 Kent, Com. (12th ed.) 66. Nothing is better settled in legal decisions than the doctrine that war puts an end at once to all dealing and all communication of the citizens of one belligerent country with those of the other belligerent country, and that it places every individual of the respective governments, as well as the governments themselves, in a state of hostility. 1 Kent, Com. (12th ed.) 67; Potts v. Bell, 8 T. R. 548; Woods v. Wilder, 43 N. Y. 168.

Judicial decisions to that effect are very numerous; and the Supreme Court of Massachusetts admit that the law of nations, as judicially declared, prohibits all intercourse between citizens of the two belligerents inconsistent with the state of war, and that the rule in that regard prohibits every act of voluntary submission to the enemy, and every act or contract which tends to increase his resources, and every kind of trading or commercial intercourse, whether by transmission of money or goods, or orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships. Lawrence's Wheat. 557.

Neither delivery of the subject-matter nor registry of the act of sale could lawfully be made; and whatever was unlawfully done was a nullity, leaving the title of the property as if the unlawful act had not been done.

Provision is made by law for the appointment of a register of conveyances in that parish, and it is made his duty to register all acts of transfer of immovable property passed in that city and parish, in the order in which the acts shall be delivered to him for that purpose; and it is provided that acts, whether they are passed before a notary-public or otherwise, shall have no effect against third persons but from the day of being registered. Rev. Stat. La. (1870), p. 613, sect. 3159.

Conveyances of the kind must be registered in the public registry of the parish or district where the premises are situated. Sess. Acts La. (1827), p. 136; Rev. Stat. La. (1870), p. 613; Dooley v. Delaney, 6 La. Ann. 67; Code 1824, arts. 2242, 2250, 2417; Code 1870, arts. 2246 to 2266.

Sales of immovable property made under private signature do not have effect against the creditors of the parties nor against third persons in general only from the day such sale was registered according to law, and the actual delivery of the thing sold took place. Art. 2442.

Registration of such a conveyance in another and different district is not notice to third persons, subsequent purchasers, or attaching creditors. Pierse v. Blunt, 14 La. Ann. 345; Carraby v. Desmarre, 7 Mart. N. S. (La.) 661; Wells v. Baldwin, 5 id. 146; Smith v. His Creditors, 21 La. Ann. 241. State authorities to that effect are numerous; but, inasmuch as the question is one of decisive importance, it is deemed advisable to refer to all the leading cases. Lee v. Darramon, 3 Rob. (La.) 161; Gradenigo v. Wallett, 9 id. 14; Crear v. Sowles, 2 La. Ann. 598; Tulane v. Levinson, id. 787; Tear v. Williams, id. 869; Sess. Laws La. (1855), p. 345.

Third persons, with respect to a contract or judgment, are defined by the Code of 1824 to include all persons who are not parties to a judgment or contract; and the same definition is given to the same phrase by the Code of 1870, which is more immediately applicable to these cases. Code 1824, art. 3522, n. 32, p. 1110; Code 1870, art. 3556, n. 32, p. 428.

Persons having no pecuniary interest in an appeal, and not aggrieved by the decree, are properly denominated third persons in respect to the appeal. Morrison v. Trudeau, 1 Mart. N. S. (La.) 384; Williams v. Trepagnier, 4 id. 342; Lafitte v. Duncan, id. 622; Succession of Henderson v. Cross, 2 Rob. (La.) 391.

Those not parties to a written agreement or instrument by which their interest in the thing conveyed is sought to be affected are properly designated as third persons in the jurisprudence of that State. Brosnaham v. Turner, 16 La. 433; Wade v. Marshall and James, 5 La. Ann. 157; Williams v. Hagan, 2 La. 125; Code 1824, art. 3522, n. 32; McManus v. Jewett, 6 La. 537; Kittridge v. Landry, 2 Rob. (La.) 72.

When the act of sale of the 6th of May was first offered in evidence, it was not accompanied by the certificate of registry, and was excluded, upon the grounds heretofore sufficiently explained. All that need be added in support of that ruling is to say that it is fully sustained by the statute law of the State, and by many decisions of the highest court of the State, to which reference has already been made. Ruled out, as it was, on that occasion, the plaintiff offered it again, with the certificate of registry annexed; and it was again excluded, upon the further ground that the registration was null and void, and inadmissible in evidence, because the vendees at the time, and before and afterwards, were sojourning in the parish of St. Helena, and were enemies of the United States, and, therefore, that the registration of the act of sale could not legally be made.

Sufficient has already been remarked to show that that ruling is correct, unless it be denied that the statute law of the State, and the repeated decisions of the highest court of the State for nearly seventy years, furnish the rule of decision. Since the 24th of March, 1810, it has been law in that State that 'no notarial act concerning immovable property shall have any effect against third persons until the same shall have been recorded in the office of the judge of the parish where such immovable property is situated.' 3 Martin's Digest, 140, sect. 7; Rev. Stat. La. (1856) 453; Rev. Stat. La. (1870) 617.

Any discussion of the facts is unnecessary, as it is conceded that the vendor and the vendees were, at the date of the supposed act of sale, resident within the Confederate lines, and that they were enemies of the United States; that the grantor was a member of the Confederate Congress; and that the grantees were officers in the Confederate army, and were engaged in rebellion against the lawful government, from which it follows that a lawful registry of the property could not be made in the parish where it is situated, without which the express statute law of the State is that the supposed act of sale shall not have any effect against third persons.

Nor is there any difficulty in supporting the decision of the court upon the other ground assumed in the ruling; to wit, that the supposed act was but the giving in payment, as understood in the jurisprudence of that State, which is never effectual to pass the title of property in that State, whether movable or immovable, without delivery. It is of the very essence of the dation en paiement, say the Supreme Court of the State, that delivery should actually be made. Neither a sale nor a dation en paiement can avail against an attaching creditor when there has been no delivery. Schultz v. Morgan, 27 La. Ann. 616.

Pothier says that a gift in payment is an act by which a debtor gives a thing to his creditor, who is willing to receive it in the place and in payment of a sum of money or of some other thing which is due to him. Pothier, by Cushing, sect. 601, p. 365; 7 Merlin, R epertoire, verba dation en paiement, p. 55.

Giving in payment, as defined in the jurisprudence of Louisiana, is an act by which a debtor gives a thing to the creditor who is willing to receive it in payment of a sum which is due; and the decision is that it differs from the ordinary contract of sale in this, that the latter is perfect by the mere consent of the parties, even before the delivery, while the giving in payment is made only by delivery. Code 1824, arts. 2625, 2626. And the Code of 1870 employs the same exact words. Arts. 2655, 2656; Durnford v. Brooks, 3 Mart. (La.) 222; s. c. id. 269.

Separate examination of the second case in this behalf is quite unnecessary, as it is not pretended that the act of sale from the father to the sons was registered in the parish where the property is situated until nearly six years subsequent to the pretended sale, so that if the universal rule of law is to prevail, that the transfer of immovable property depends upon the law of the place where it is situated, then it is clear that the supposed vendees acquired no title to the premises. Watkins v. Holman, 16 Pet. 57; Corbett v. Nutt, 10 Wall. 464; McGoon v. Scales, 9 id. 23; Lawrence's Wheat. 164, 165.

Wheaton says that the law of the place where real property is situated governs exclusively as to the tenure, the title, and the descent of real property, and the notes of the editor fully confirm the proposition.

War, in our jurisprudence, is not an absolute confiscation of the property of the enemy, but simply confers the right of confiscation. Hence it was early determined that British property found in the United States, on land, at the commencement of hostilities with Great Britain, could not be condemned as enemy property, without a legislative act authorizing its confiscation. Brown v. United States, 8 Cranch, 110; Lawrence's Wheat. 530.

Discussion of that subject, however, is wholly unnecessary, as the property in question in the cases before the court was confiscated under an act of Congress, which, it is admitted, gave unquestioned jurisdiction to the District Court which entered the decree of condemnation.

From the passage of the act of Congress, it became the duty of the President to cause the seizure to be made; and it is not questioned that the power conferred was properly exercised, nor is it denied in argument that all the proceedings were correct, the only defence in the one case and ground of claim in the other being that the person named in the information as the guilty party was not the lawful owner of the property at the time of the seizure. Most of the grounds of that claim and defence have already been sufficiently examined, and, it is believed, have been fully refuted. Only one more remains for examination, and that is, that the United States are not a third party, within the meaning of the State law, and therefore that an act of sale never registered in the parish where the property is situated is sufficient to defeat the title of a purchaser derived under the confiscation proceedings and the decree of condemnation.

Such a theory finds no support in the words of the act of Congress, nor is there any authority to sustain it other than what is found in the opinion of the State court in the case now here for re-examination. Burbank v. C. A. & L. L. Conrad, 27 La. Ann. 152. Cases of the kind are never regarded as authority, for the reason that they are, by the express words of the act of Congress providing for their review, subject to be modified or reversed; nor can it be admitted that there is any foundation for such a rule, as it would render the Confiscation Act a public snare and a delusion.

Subsequent purchasers and attaching creditors, it is admitted, would find protection in such a case; but the argument is, that enemies of the United States engaged in war against the lawful government, and resident in the enemy territory, may defeat the right of the government to punish treason by secret transfers of enemy property situated within the lines of the Federal army, without its being possible for the officers of the United States to ascertain to whom any such transfer was made.

Unlawful registration is no better than none at all, for the reason that, being void, it does not operate as notice to any third party, and, if so, then it follows that neither the United States nor the grantees of the United States had any knowledge that the title of the guilty party had been previously transferred under the laws of the rebel States. Fraud is not imputed to the United States, and it is as certain as truth that the purchasers of the properties were as innocent of fraud as their grantors.

Congress intended by the Confiscation Act, when it was duly executed, to deprive the guilty owner of the means by which he could aid the enemy, and it left in him no estate which he could convey for that or any other purpose. Wallach et al. v. Van Riswick, 92 U.S. 202.

Where a party, domiciled at the beginning of the war in New Orleans, subsequently went within the rebel lines, and there engaged actively in business, and while so engaged purchased cotton which, when our army at a later period reoccupied the city, was seized and sold, and the proceeds paid into the treasury, it was held, by the unanimous decision of this court, that the purchase of the cotton was illegal and void, and that it gave the purchaser no title whatever. Mitchel v. United States, 21 Wall. 350; Desmare v. United States, 93 U.S. 605. Whatever interest he had in the property had been seized as forfeited to the United States, and placed, pending the suit, beyond his reach or that of his creditor. All subsequently acquired rights were subject to the prior claim of the United States, if perfected by a decree of condemnation. Pike v. Wassell, 94 id. 711.

Human ingenuity, however great, cannot distinguish the principle ruled in those cases from the case before the court; and still it is insisted in argument that the grantees in the deed from the guilty owner acquired a good title against the United States, without delivery of the property and without legal registration in the parish where the property is situated. Immovable property, says Woolsey, in his treatise on International Law, follows the lex rei sitae, or place where it lies; and he adopts the rule promulgated by foreign writers, that he who wishes to gain, have, or exercise a right to such property betakes himself for that purpose to its place, and subjects himself voluntarily to the local law which rules where the property is situated. Woolsey, Int. Law, § 71.

Foreign codes, jurists, and the decided cases, says Westlake, agree with the common law in maintaining the exclusive claims of the situs to the jurisdiction concerning immovables. Differences of opinion, it is said by Burge, exist among jurists as to the rule of decision where the contract affects the person as well as things; but he says there is no difference among them in adopting the lex loci rei sitae in all questions regarding the modification or creation of estates or interests in immovable property. 2 Burge, Com. on Col. & For. Laws, c. 9, p. 841.

Obligations to convey, if they be perfected secundum legem domicilii, may be binding; but the conveyances themselves of immovable property will not be effectual, unless executed according to the requirements of the local law. In the conveyance of immovable property, or of any right affecting the same, the grantor must follow the solemnities of the law of the place in which the property lies, and from which it is impossible to remove it; for, though he be subject with respect to his person to the lex domicilii, that law can have no authority over property which has its fixed seat in another political jurisdiction, and which cannot be tried but before the courts and according to the laws where it is situated.

Two fatal defects, therefore, exist in the supposed title of the sons to the properties in controversy, as shown by the most conclusive evidence: 1. That the subject-matter of the respective sales was never delivered to the supposed grantees, as required by the lex loci rei sitae. 2. That neither of the supposed acts of sale was ever lawfully registered in the parish where the property is situated, from which it follows, in case either of the alleged defects is shown, that the decree of condemnation vested the title to the same in the United States.

Apply those rules to the the before the court, and it is clear that the judgment in the first case should be affirmed, and that the judgment in the second case should be reversed.

title: Burbank v. Conrad/Dissent Clifford


text: Talk:Burbank v. Conrad/Dissent Clifford

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

title: Talk:Burbank v. Conrad/Dissent Clifford


text:
San Antonio v. Mehaffy

ERROR to the Circuit Court of the United States for the Western District of Texas.

The facts are stated in the opinion of the court.

Mr. Thomas J. Durant for the plaintiff in error.

Mr. T. A. Lambert, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: San Antonio v. Mehaffy


text: Talk:San Antonio v. Mehaffy

title: Talk:San Antonio v. Mehaffy


text:
San Antonio v. Mehaffy/Opinion of the Court

The cause of action in this case is certain 'bonds,' as they are termed, and coupons, issued by the city of San Antonio in payment for stock of the San Antonio and Mexican Gulf Railroad Company, subscribed for by the city.

The action is one of a class that has been very numerous in this court for several years past. Almost every question that can arise in such litigation has been settled in this forum by repeated adjudications. In the present case, our remarks will be confined to the points to which our attention has been called by the counsel for the city. No fulness of discussion is necessary.

The twelfth section of the act approved Sept. 5, 1850, entitled 'An Act to incorporate the San Antonio Railroad Company,' authorized the city to take the stock 'and issue bonds bearing interest, or otherwise to pledge the faith of said city,. . . to pay for the same.'

It was made a condition of the subscription that two-thirds of the qualified electors of the city should vote in favor of it.

The eighteenth section of the act declared that if the work was not commenced within one year from the 1st of November, 1850, and if at least twenty miles of the road were not in running order within three years from its commencement, the charter should be void. An act, approved Feb. 14, 1852, extended the time for commencing the work to two years from the date of the act, and required ten miles to be finished within three years. Subsequent acts bearing upon this subject were passed, but it is not deemed necessary particularly to advert to them.

An election was held pursuant to the first-named act. All the votes cast but three were in favor of the subscription. It was thereupon made, and the securities were delivered to the company in payment. Each of the bonds, so called, had on its face the following recital: 'This debt is authorized by a vote of the electors of the city of San Antonio, taken in accordance with the provisions of an act to incorporate the San Antonio and Mexican Gulf Railroad Company, approved Sept. 5, 1850. Entered and recorded in the office of the city treasurer, and is transferable on delivery. City Hall, City of Antonio, March 1, 1852.' The road was not built, and the enterprise has been abandoned.

The grant of the power given to the city was consistent with the Constitution of the State. San Antonio v. Gould, 34 Tex. 49; Same v. Jones, 28 id. 19.

The holder of commercial paper, in the absence of proof to the contrary, is presumed to have taken it underdue for a valuable consideration, and without notice of any objection to which it was liable. 2 Pars. Bills and Notes, 9; Pinkerton v. Bailey, 8 Wend. (N. Y.) 600.

There is certainly nothing in the record which shows that such is not the position of the defendant in error.

This shuts the door, as matter of law, to all inquiry touching the regularity of the proceedings of the officers charged with the duty of subscribing and making payment in the way prescribed. The rule in such cases is, that if the municipality could have had power under any circumstances to issue the securities, the bona fide holder has a right to presume they were issued under the circumstances which give the authority, and they are no more liable to be impeached in his hands for any infirmity than any other commercial paper. Supervisors v. Schenck, 5 Wall. 772; San Antonio v. Lane, 32 Tex. 405.

We have, however, looked carefully into the record for light as to the facts, and find that all the proceedings were in substantial conformity to the requirements of the law, and the proof is clear that every thing was honestly done.

The city is estopped by the recital on the face of the securities to deny its verity. A bona fide purchaser had a right to regard it as true, and was not bound to look further. Commissioners, &c. v. Aspinwall, 21 How. 539; Mercer County v. Hackett, 1 Wall. 83; Grand Chute v. Winegar, 15 id. 355; San Antonio v. Gould, supra.

The principal securities delivered to the company were not bonds, because they were unsealed; but this is immaterial. The twelfth section, under which they were issued, expressly declared that those charged with the duty of subscribing 'may issue bonds bearing interest, or otherwise pledge the faith of the city.'

The securities issued were within the latter category. If that clause were wanting, we should have no difficulty in holding that the city was, under the circumstances, estopped from denying their validity. The doctrine of ultra vires, whether invoked for or against a corporation, is not favored in the law. It should never be applied where it will defeat the ends of justice, if such a result can be avoided. Whitney Arms Co. v. Barlow et al., 63 N. Y. 62.

The Constitution of Texas of 1845 provided that 'every law enacted by the legislature shall contain but one object, and that shall be expressed in the title.'

It is insisted that the twelfth section of the act of 1850 is in conflict with this requirement, and is, therefore, void. This identical question arose in San Antonio v. Lane, supra. It was there unanimously held by the court that 'when an act of the legislature expresses in its title the object of the act, the title embraces and expresses any lawful means to achieve the object, thus fulfilling the constitutional injunction that every law shall embrace but one object, and that shall be expressed in its title.' The objection was overruled.

In the City of San Antonio v. Gould (supra), and in Gittings v. San Antonio (47 id. 548), the same court, consisting of judges other than those who sat in the first case, came to a different conclusion. The question may, therefore, be fairly considered as still unsettled in the jurisprudence of the State. Under these circumstances, this court has always felt at liberty to follow the guidance of its own judgment.

We think the ruling in the case first mentioned has on its side the greater weight of reason and authority. We, therefore, hold the section not to be obnoxious to the requirement of the Constitution, and that it is, therefore, valid.

The refusal of the court below to grant a new trial involved only the exercise of its discretion, and cannot be made the subject of review by this court.

Judgment affirmed.

NOTE.-In San Antonio v. Barnes, error to the Circuit Court of the United States for the Western District of Texas, which was argued by Mr. Thomas J. Durant for the plaintiff in error, and by Mr. Robert Sewell for the defendant in error, MR. JUSTICE SWAYNE, in delivering the opinion of the court, remarked: This case is in all respects substantially the same with that of San Antonio v. Mehaffy, just decided. The opinion in that case is decisive of this.

Judgment affirmed.


text: Talk:San Antonio v. Mehaffy/Opinion of the Court


text:
McGarrahan v. Mining Company

ERROR to the Supreme Court of the State of California.

This was ejectment by William McGarrahan in the District Court of the Twentieth Judicial District of California in and for Santa Clara County, against the New Idria Mining Company, to recover possession of certain lands in that State known as the Rancho Panoche Grande. He claimed them under a patent therefor which he alleged had been issued by the United States to Vicente P. Gomez, his grantor, under the act of Congress to ascertain and settle the private land claims in the State of California, approved March 3, 1851. 9 Stat. 631. The patent was not produced upon the trial; but the plaintiff put in evidence a certified copy of an instrument, as the same was recorded in a volume kept at the General Land-Office at Washington for the recording of patents of the United States for confirmed Mexican land grants in California, being volume 4 of such records, upon pages 312-321 inclusive. The concluding portion of that copy is as follows:--

'In testimony whereof, I, Abraham Lincoln, President of the United States, have caused these letters to be made patent, and the seal of the General Land-Office to be hereunto affixed.

'Given under my hand at the city of Washington, this fourteenth day of March, in the year of our Lord one thousand eight hundred and sixty-three, and of the independence of the United States the eighty-seventh.

[L. S.] 'By the President: ABRAHAM LINCOLN.

By W. O. STODDARD,

'Secretary.

'Acting Recorder of the General Land-Office.'

As the only question decided by this court is, whether the exemplification admitted on the trial of the cause shows upon its face the execution of a patent sufficient in law to pass the title of the United States, no reference is made to the other points which arose in the court below and were elaborately discussed by counsel here.

The District Court rendered judgment for the defendant, which was affirmed by the Supreme Court. McGarrahan then sued out this writ of error.

''Mr. Montgomery Blair, Mr. Matt. H. Carpenter, and Mr. Charles P. Shaw'', for the plaintiff in error.

The recording of a document which the law authorizes to be recorded is evidence of the pre-existence of all that is necessary to authorize the recording. Farrar v. Fessenden, 39 N. H. 268; McCauley et al. v. State, 21 Md. 556; Warner v. Hardy, 6 id. 525; Barton v. Murrain, 27 Mo. 235; Patterson v. Winn, 5 Pet. 239.

The requirement that patents for lands shall be countersigned by the recorder of the General Land-Office is merely directory. and the countersigning of such an instrument is not essential to its validity. Sedgwick, Stat. and Const. Law, 368-374; Rex v. Inhabitants of Birmingham, 9 Barn. & Cress. 925; Cole v. Green, 6 Man. & G. 872; Gale v. Mead, 2 Den. (N. Y.) 160; Marchant v. Langworthy, 3 id. 526; People v. Livingston, 8 Barb. (N. Y.) 253; Juliand v. Rathbone, 39 id. 101; Ayres v. Stewart, 1 Overt. (Tenn.) 221; Hickman v. Boffman, Hard. (Ky.) 348; Spencer v. Lapsley, 20 How. 264; United States v. Sutler, 21 id. 170; Williams v. Sheldon, 10 Wend. (N. Y.) 654; Hedden v. Overton, 4 Bibb (Ky.), 406; Exum v. Brister, 35 Miss. 391; Blount v. Benbury, 2 Hayw. (N. C.) 542; Philips v. Erwin, 1 Overt. (Tenn.) 235; Reid's Lessee v. Dodson, id. 313; Lessee of Stephens v. Bear, 3 Binn. (Pa.) 31; Lessees of Walter v. Beecher, 3 Wash. 375.

If the name of the recorder be omitted in the record, the first section of the act of March 3, 1843 (5 Stat. 627), cures the defect, by making the mere record of the patent conclusive of its due execution, and copies of such record of the same validity in 'evidence as if the names of the officers signing and countersigning the same had been fully inserted in said record.'

Mr. Jeremiah S. Black, contra.

Patents for private land claims are not valid unless countersigned and sealed by the recorder of the General Land-Office. 2 Stat. 716, sect. 8; 5 id. 111, sect. 6; id. 416, sects. 1, 2; United States v. The Commissioner, 5 Wall. 563; The Secretary v. McGarrahan, 9 id. 248; 3 Op. Att'y-Gen. 140, 167, 630.

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

title: McGarrahan v. Mining Company


text: Talk:McGarrahan v. Mining Company

title: Talk:McGarrahan v. Mining Company


text:
McGarrahan v. Mining Company/Opinion of the Court

The Federal question in this case is, whether the record in the volume kept at the General Land-Office at Washington for the recording of patents of the United States issued upon California confirmed Mexican grants, relied upon by McGarrahan as evidence of his title, proves a conveyance by the United States of the land in controversy to Vicente P. Gomez, his grantor. In his behalf, it is contended that the record is itself the grant; or, if not, that it proves the issue to Gomez of a patent which does grant the legal title to the property described.

That the record is not itself the grant of title is evident. The thirteenth section of the act 'to ascertain and settle the private land claims in the State of California' (9 Stat. 631) provides, that, 'for all claims finally confirmed,. . . a patent shall issue to the claimant upon his presenting to the General Land-Office an authentic copy of such confirmation and a plat of the survey,' &c. By sect. 8 of the 'act for the establishment of a general land-office in the Department of the Treasury' (2 id. 717), it is enacted, that 'all patents issuing from the said office shall be issued in the name of the United States and under the seal of said office, and be signed by the President of the United States, and countersigned by the commissioner of said office, and shall be recorded in said office in books to be kept for the purpose.' Thus the patent executed in the prescribed form which issues from the General Land-Office is made the instrument of passing title out of the United States. The record of this patent is evidence of the grant, but not the grant itself. It is evidence of equal dignity with the patent, because, like the patent, it shows that a patent containing the grant has been issued.

The record called for by the act of Congress is made by copying the patent to be issued into the book kept for that purpose. The effect of the record, therefore, is to show that an instrument such as is there copied has actually been prepared for issue from the General Land-Office. If the instrument as recorded is sufficient on its face to pass the title, it is to be presumed that the grant has actually been made; but if it is not sufficient, no such presumption arises. In short, the record, for the purposes of evidence, stands in the same position and has the same effect as the instrument of which it purports to be a copy. The same defences can be made against the record as could be made against the instrument recorded. The public records of the executive departments of the government are not, like those kept pursuant to ordinary registration laws, intended for notice, but for preservation of the evidence of the transactions of the department.

This brings us to inquire whether this record shows upon its face the execution of a patent sufficient in law to transfer the title of the premises in controversy from the United States. And here it may not be improper to note, that although the case shows that in July, 1870, before this suit was commenced, the commissioner of the General Land-Office and the recorder caused to be entered upon the face of the record, over their official signatures, a statement to the effect that the instrument in question was never in fact executed or delivered, McGarrahan rests his whole case upon the record and the evidence it furnishes. This he has the undoubted right to do; but, if he does, he must stand or fall by what it proves. It is his own fault, if, having a valid patent in his possession, he fails to produce it.

By the first section of the 'Act to reorganize the General Land-Office' (5 Stat. 107), it was provided that the executive duties relating 'to private claims of land, and the issuing of patents for all grants of land under the authority of the government of the United States, shall be subject to the supervision and control of the commissioner of the General Land-Office, under the direction of the President of the United States;' and by the fourth section, 'that there shall be appointed by the President, by and with the consent of the Senate, a recorder of the General Land-Office, whose duty it shall be, in pursuance of instructions from the commissioner, to certify and affix the seal of the General Land-Office to all patents for public lands, and he shall attend to the correct engrossing and recording and transmission of such patents. He shall prepare alphabetical indexes of the names of patentees, and of persons entitled to patents. . . .' By the sixth section, it was further provided that 'it shall be lawful for the President of the United States, by and with the advice and consent of the Senate, to appoint a secretary,. . . whose duty it shall be, under the direction of the President, to sign, in his name and for him, all patents for lands sold or granted under the authority of the United States.' By the second section of the act of March 3, 1841 (id. 416), the duty of countersigning patents was transferred from the commissioner of the General Land-Office to the recorder. Thus it appears that a patent for lands must be signed in the name of the President, either by himself or by his duly appointed secretary, sealed with the seal of the General Land-Office, and countersigned by the recorder. Until all these things have been done, the United States has not executed a patent for a grant of lands. Each and every one of the integral parts of the execution is essential to the perfection of the patent. They are of equal importance under the law, and one cannot be dispensed with more than another. Neither is directory, but all are mandatory. The question is not what, in the absence of statutory regulations, would constitute a valid grant, but what the statute requires. Not what other statutes may prescribe, but what this does. Neither the signing nor the sealing nor the countersigning can be omitted, any more than the signing or the sealing or the acknowledgment by a grantor, or the attestation by witnesses, when by statute such forms are prescribed for the due execution of deeds by private parties for the conveyance of lands. It has never been doubted that in such cases the omission of any of the statutory requirements invalidates the deed. The legal title to lands cannot be conveyed except in the form provided by law.

But if either of the requisites to the due execution of a patent may be considered as directory, the countersigning by the recorder should not be permitted to occupy that position. The President may sign by his secretary, but the recorder must sign himself. He countersigns, that is to say, signs opposite to and after the President, by way of authentication. Being specially charged with the duty of attending to the issue of patents, it is peculiarly appropriate that his attestation should be the last act to be performed in the perfection of the instrument, and that he should do it personally.

The record in this case shows an instrument in the form of a patent, signed in the name of the President, and sealed. The place for the signature of the acting recorder is left blank. The name of the President is signed by his secretary. The claim which is made, that Stoddard, the secretary, also countersigned as acting recorder, is not sustained by the evidence. His signature appears only as secretary, and there is nothing whatever to indicate that he attempted to act as recorder. Besides, the law provides (5 Stat. 111, sect. 8), 'that whenever the office of recorder shall become vacant, or in case of the sickness or absence of the recorder, the duties of his office shall be performed ad interim by the principal clerk on private land claims.' It certainly is not to be presumed that the same person will hold at the same time the offices of secretary to the President for signing patents, and of principal clerk on private land claims. And if it were, his signature as secretary will not be treated as his signature as recorder ad interim or acting recorder. He must sign both as secretary and as recorder.

The case is, therefore, one in which the record shows upon its face an instrument prepared for a patent but not countersigned by the recorder. If a patent thus defectively executed had itself been introduced in evidence, it would not have shown a grant actually perfected. But it is said that the record of the paper is evidence of the fact that the recorder recognized its completeness, and is equivalent to its countersignature. The law is not satisfied with the simple recognition of the validity of a patent by an officer of the government. To be valid, a patent must be actually executed. Before it can operate as a grant, the last formalities of the law prescribed for its execution must be complied with. No provision is made for an equivalent of these formalities. Even an actual delivery of the patent by the recorder in person would not supply the place of his countersignature, any more than the delivery of a paper by a private person without being signed would make it his deed. But the record of a patent would not be necessarily as much a recognition of its validity as a personal delivery by the recorder, because he only attends to the recording, and is not required to do it in person. The only way in which he can lawfully and effectually recognize the validity of a patent is by personally countersigning it.

Again, it is said that the act of March 3, 1843 (5 Stat. 627), remedies the defect, because it provides 'that literal exemplifications of any such records which may have been or may be granted in virtue of the provisions of the seventh section of the act,. . . entitled 'An Act to reorganize the General Land-Office,' shall be deemed and held to be of the same validity in all proceedings, whether at law or in equity, wherein such exemplifications are adduced in evidence, as if the names of the officers signing and countersigning the same had been fully inserted in such record.' This act does not, however, dispense with the signing and countersigning. The record, to prove a valid patent, must still show that these provisions of the law were complied with. The names need not be fully inserted in the record, but it must appear in some form that the names were actually signed to the patent when it issued. If they are partially inserted in the record, it will be presumed that they fully appeared in the patent; but no such presumption will be raised if no signature is shown by the record. Here no signature does appear, and consequently none will be presumed.

The failure to record the patent does not defeat the grant. It only takes from the party one of the means of making his proof. If he can produce the patent itself, and that is executed with all the formalities required by the law, he can still maintain his rights under it. He is not, therefore, necessarily deprived of his title because of a defective record. He is in no worse condition with the signatures omitted than he would have been if the description of his land had been erroneously copied, or other mistakes had been made which rendered the record useless for the purposes of evidence. A perfect record of a perfect patent proves the grant; but a perfect record of an imperfect patent, or an imperfect record of a perfect patent, has no such effect. In such a case, if a perfect patent has in fact issued, it must be proved in some other way than by the record. It is undoubtedly true, that, when a right to a patent is complete and the last formalities of the law in respect to its execution and issue have been complied with by the officers of the government charged with that duty, the record will be treated as presumptive evidence of its delivery to and acceptance by the grantee. But until the patent is complete, it cannot properly be recorded, and consequently an incomplete record raises no such presumption.

Again, it is said that the record of an instrument which the law requires to be recorded is prima facie evidence of the validity of the instrument. That is undoubtedly true, if the instrument recorded is apparently valid. The presumption arising from the record is, that whatever appears to have been done, actually was done. If the record shows a perfect instrument, the presumption is in favor of its validity; but if it shows an imperfect instrument, a corresponding presumption follows. Here the instrument recorded appears to have been incomplete, and consequently it must be presumed to be invalid. This presumption will continue until overcome by proof that the instrument as executed and delivered was valid.

We are of the opinion that, because this record does not show a patent countersigned by the recorder, it is not sufficient to prove title in the party under whom McGarrahan claims. This makes it unnecessary to consider any of the other questions which have been argued; and the judgment is

Affirmed.

MR. JUSTICE FIELD and MR. JUSTICE HARLAN took no part in the decision of this cause.


text: Talk:McGarrahan v. Mining Company/Opinion of the Court


text:
Ames v. Quimby (96 U.S. 324)

ERROR to the Circuit Court of the United States for the Western District of Michigan.

Quimby brought an action against Ames & Sons, upon the following contract, viz.:--

'N. EASTON, Jan. 2, 1865.

'Mr. Ichabod L. Quimby agrees to furnish us, and we to take from him, fifteen thousand dozen long shovel-handles, to be of the best quality of timber and workmanship, for the present year, the price to be ($1.25) one dollar and twenty-five cents per dozen, basing the price on the present price of gold, $2.25.

'If the price of gold goes up or down, then the price of handles shall be advanced or reduced accordingly. But it is understood that no advance or reduction of the price of gold of twenty-five per cent shall change the price of handles, unless it shall remain at the advanced or reduced rate sufficiently long to affect the general price of merchandise.

'I. L. QUIMBY.

'OLIVER AMES & SONS.'Quimby, in the months of May and July, 1865, furnished the full complement of shovel-handles, and four hundred and forty-eight dozen in excess of the requirements of the contract. There were delivered nine thousand eight hundred and twelve dozen, May 20, 22, and 23, when gold was worth $1.31; one thousand one hundred and eighty-eight dozen, May 25, when gold was worth $1.36; and four thousand four hundred and forty-eight dozen, July 29, when gold was worth $1.45.

The price of gold having been reduced more than twenty-five per cent below $2.25, Ames & Sons claimed a corresponding reduction in their price of the handles; which would bring those delivered from May 20 to 23, inclusive, down to seventy-two and a half cents; those delivered May 25, down to seventy-five and a half cents; and those delivered July 29, down to eighty and a half cents, per dozen: but the court held that, to entitle them to any reduction, there must be proof that the decline in gold had at those dates affected the general price of merchandise; and, there being no such proof, judgment was given accordingly. Ames & Sons thereupon sued out this writ of error.

Mr. J. Smiley for the plaintiffs in error.

Mr. L. D. Norris, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Ames v. Quimby (96 U.S. 324)


text: Talk:Ames v. Quimby (96 U.S. 324)

title: Talk:Ames v. Quimby (96 U.S. 324)


text:
Ames v. Quimby (96 U.S. 324)/Opinion of the Court

The contract of the parties is, in several particulars, susceptible of different constructions. Thus, the price of the articles to be delivered is fixed at $1.25 per dozen, to be regulated, however, by the price of gold. 'If the price of gold goes up or down, the price of the handles shall be advanced or reduced accordingly.' If gold goes up in price, does the price of the goods go up, or do they go down? Gold is here made the standard of value, although it was not, at the time this contract was made, the ordinary medium of circulation in this country.

Instead of saying that gold, the standard, goes up or down, it would be more accurate to say that the depreciation of the paper in circulation is greater or less.

The court below held that if gold should go up in price, the price of the goods should be increased; if it should go down in price, that of the goods should be diminished. In this we agree; and, as the important question does not here arise, we dismiss this branch of the case.

The contract has this further provision: 'No advance or reduction of the price of gold of twenty-five per cent shall change the price of handles, unless it shall remain at the advanced or reduced rate sufficiently long to affect the general price of merchandise.'

The price of gold having fallen, between the date of the contract and the delivery of the goods, more than twenty-five per cent, did that fact of itself entitle the defendants to a corresponding reduction in the price of the goods; or were the defendants also bound to show that the general price of merchandise had been thereby affected? In other words, was the qualification that the changed rate should continue so long as to affect the price of general merchandise applicable where the advance or reduction in the price of gold had been twenty-five per cent only, or where it was twenty-five per cent or more?

The court below held that it was applicable to the present case, where the change in the price of gold had greatly exceeded twenty-five per cent.

In considering this contract, we are to place ourselves, as far as may be, in the position of the parties, with the knowledge possessed by them of former and present affairs. They were practical business men. They had seen, during the previous four years, an enormous advance-extravagant and fictitious-in the price of every thing, and understood it to be dependent upon the character of the currency.

They intended to provide for the effect of an appreciation or depreciation of the currency in circulation, called the price of gold; and we think their evident knowledge of the principles governing the subject bears strongly upon the precise point decided by the court below.

While it cannot be denied that the language of the contract will bear the construction put upon it by the court below, we are all of the opinion that such construction is not in accordance with the intention of the parties.

It will letter bear another interpretation, which is this: Gold being at the price of $2.25, and having reference to that fact as giving their value, the one party agrees to deliver, and the other to receive, the goods at $1.25 per dozen. This price named should not, however, be fixed and absolute. If the price of gold shall change, the price of the goods shall also change. But they do not propose to embarrass themselves about trifles, and the gold regulation shall be modified by the extent of the change in its price. If it varies more than twenty-five per cent, we agree that that shall be deemed an important change, and shall of itself work a change in the price of the goods.

If the variation does not exceed twenty-five per cent, it will not necessarily be important, and we agree that it shall not affect the price of the goods, unless it continues so long as to affect the general price of merchandise. If it does so continue, and does so affect general prices, then that variation shall also regulate this contract.

The parties saw and knew that great changes in the value of gold had taken place in former times, and in their times, by which the purchasing power of the currency in circulation was greatly affected. They knew also that a slight change produced but little effect. To make them say, then, that a change of one hundred or one thousand per cent should not of itself change the price of the goods to be delivered, but that a change of twenty-five per cent only should have that effect, is contrary to all reason. On the other hand, to allow them to say that the large change in gold should of itself change the price of the goods, but that a change of twenty-five per cent, or under, should not affect the price of the goods, unless it was so long continued as to affect the general price of merchandise, is in harmony with the whole transaction.

It is not necessary to pursue the illustrations which have been or may be given of the effect of the different readings of the contract. We are satisfied that there was error in its construction by the Circuit Court, and that the case must be remanded for a new trial; and it is

So ordered.


text: Talk:Ames v. Quimby (96 U.S. 324)/Opinion of the Court


text:
Pullman v. Upton

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

This was assumpsit by Clark W. Upton, assignee in bankruptcy of the Great Western Insurance Company, against Albert B. Pullman, a stockholder in said company, to recover the balance remaining unpaid upon his stock.

The capital stock of the company was originally $100,000, and it was, Aug. 22, 1870, by the alleged consent and action of the stockholders, increased to $5,000,000. The company sustained heavy losses by the fire at Chicago, on the 8th and 9th of October, 1871; and it was duly adjudicated a bankrupt Feb. 6, 1872, and Upton was appointed its assignee. The court in which the proceedings in bankruptcy were pending, ordered, July 7, 1872, that the entire amount unpaid on the capital stock of the company be paid to the assignee, on or before the 15th of August then next ensuing; and that, in default of payment, the assignee proceed to collect the same. Conformably to the directions of the court, notice of this order was given to the stockholders.

One Myers owned twenty-five shares of the stock, of $100 each, whereon twenty per cent had been paid; and, being indebted to Pullman, assigned them to him, in the summer of 1871, as collateral security. Pullman, on the 7th of the following October, caused them to be transferred to him on the books of the company; and he then surrendered the old certificate, and took a new one for the same number of shares.

On the trial, Upton offered, and the court admitted in evidence, certain papers; to the admission of which Pullman objected, on the ground that each of them was immaterial. The court having admitted said order directing the payment of the balance due upon the stock, Pullman offered to prove that a less assessment would have sufficed to cover the losses of the company. To the rejection of said offer, and to the overruling his objection to each paper so admitted, he in due time excepted. Judgment having been rendered against him by the District Court, which was affirmed in the Circuit Court, he sued out this writ, and assigns for error the rulings of the District Court, upon his objection to the offered evidence, as follows:--

The District Court erred in admitting in evidence (1) the pamphlet copy of the charter of said company; (2) the certified copy of the proceedings for increase of the capital stock of said company; (3) the certified copy of the amended charter of said company, and the certified copy of the report of said company, dated December, 1870, and the license of said company to do business, and the auditor's report of the examination of the affairs of said company; (4) the order of said District Court, in bankruptcy, making an assessment on the stock of said company; (5) the notice to Pullman of said assessment.

Mr. H. S. Monroe for the plaintiff in error.

Mr. L. H. Boutell, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Pullman v. Upton


text: Talk:Pullman v. Upton

title: Talk:Pullman v. Upton


text:
Pullman v. Upton/Opinion of the Court

The evidence to which the defendant below objected, and to the admission of which he took exception, was quite unimportant. Its object was to prove the existence of the corporation and the increase of the corporate stock. But the existence of the corporation was admitted by the defendant's plea of non assumpsit; and whether the corporate stock had been properly increased was a question the State only could raise. It is well settled, that, in a suit by a corporation, a plea of the general issue admits the competency of the plaintiff to sue as such. The Society for the Propagation of the Gospel, &c. v. The Town of Pawlet, 4 Pet. 480. The first three assignments of error may, therefore, be dismissed without further consideration.

That the fourth and fifth assignments are without merit plainly appears in the report of Sanger v. Upton (91 U.S. 56), where a similar order and notice to the stockholders was held not merely sufficient, but conclusive as to the right of the assignee to bring suit to enforce the payment of unpaid balances due for the corporate stock.

The only question remaining is, whether an assignee of corporate stock, who has caused it to be transferred to himself on the books of the company, and holds it as collateral security for a debt due from his assignor, is liable for unpaid balances thereon to the company, or to the creditors of the company, after it has become bankrupt.

That the original holders and the transferees of the stock are thus liable we held in Upton v. Trebilcock (91 id. 45), Sanger v. Upton (id. 56), and Webster v. Upton (id. 65); and the reasons that controlled our judgment in those cases are of equal force in the present. The creditors of the bankrupt company are entitled to the whole capital of the bankrupt, as a fund for the payment of the debts due them. This they cannot have, if the transferee of the shares is not responsible for whatever remains unpaid upon his shares; for by the transfer on the books of the corporation the former owner is discharged. It makes no difference that the legal owner-that is, the one in whose name the stock stands on the books of the corporation-is in fact only, as between himself and his debtor, a holder for security of the debt, or even that he has no beneficial interest therein. This was ruled in ''The Newry, &c. Railway Co. v. Moss'', 14 Beav. 64. In that case, it was said that only those persons who appear to be shareholders on the register of the company are liable to pay calls. In Re Phoenix Life Insurance Co., Hoare's Case (2 John. & H. 229), it appeared that certain shares had been settled upon Hoare and others, as trustees in a marriage settlement. The trustees had no beneficial interest, but they were registered as shareholders, and the word 'trustees' added in the margin of the register, and they receipted for dividends as trustees. It was held by Vice-Chancellor Wood that they were liable as contributories to the full extent, and not merely to the extent of the trust estate. It was said, 'A person who is a shareholder is absolutely liable, although he may be bound to apply the proceeds of the shares upon a trust.' In The Empire City Bank (8 Abb. (N. Y.) Pr. 192, reported also in 18 N. Y. 200), the Court of Appeals held persons responsible as stockholders in respect to the stock standing in their names on the books of the bank, though they held the stock only by way of hypothecation as collateral security for money loaned, and they were held liable for an amount equal to their stock for the unsatisfied debts of the bank. In Adderly v. Storm (6 Hill (N. Y.), 624), it appeared that one Bush, in 1837, being indebted to the defendants, transferred to them, on the books of a company, certain shares of stock, and delivered to them the usual certificates. On receiving the certificates, the defendants gave Bush a receipt, stating they had received the stock, which they were to dispose of at any time for $200 per share, applying the proceeds to the payment of the notes which Bush owed them, or, if not sold when the notes should be paid, to return the scrip to Bush, or account for it. The last of the notes was paid in September, 1838, and the defendants returned the scrip to Bush, giving also a power of attorney for the transfer of the stock. The retransfer was not made, however, until March 2, 1840, and the defendants were held liable, as stockholders, for a debt of the company contracted in January, 1840; and this, it was said, would be the law, though the plaintiff may not have known, at the time he trusted the company, that the defendants could be reached. So, in Holyoke Bank v. Burnham (11 Cush. (Mass.) 183), it was decided that a transfer of stock on the books of the bank, intended merely to be held so collateral security, makes the holder liable for the bank debts. It was said, the creditor is to be considered the absolute owner, and that his arrangement with his debtor cannot change the character of the ownership. And in Wheelock v. Kost et al. (77 Ill. 296) the doctrine was asserted, that when shares of stock in a banking corporation have been hypothecated, and placed in the hands of the transferee, he will be subjected to all the liabilities of ordinary owners, for the reason that the property is in his name, and the legal ownership appears to be in him.

These decisions are sufficient to vindicate the judgment of the court below. The case of the plaintiff in error is a hard one, but he cannot be relieved consistently with due observance of well-established law.

Judgment affirmed.

title: Pullman v. Upton/Opinion of the Court


text: Talk:Pullman v. Upton/Opinion of the Court


text:
Peugh v. Davis (96 U.S. 332)

APPEAL from the Supreme Court of the District of Columbia.

This was a suit in equity, brought June 28, 1869, to redeem certain real property in Washington City. The defence consisted in an alleged release of the equity of redemption, to establish which, in addition to the testimony of the parties, the defendant relied principally upon the following papers:--

'Whereas the undersigned, Samuel A. Peugh, of the city of Washington, in the District of Columbia, having heretofore sold and conveyed to Henry S. Davis, of the said city, two certain squares of ground in said city, the same being squares numbered nine hundred and ten (910) and nine hundred and eleven (911) in the said city, the said sale and conveyance having been by the said Peugh made with full assurance and promise of a good and indefeasible title in fee-simple, though the said conveyance contains only a special warranty, the said conveyance to said Davis bearing date on the fourth day of March, A.D. 1857, and being recorded on the seventh day of September, A.D. 1857.

'And whereas the title to the said squares so conveyed as aforesaid to said Davis having been now questioned and disputed, the said Peugh doth now, for himself, his heirs, executors, and administrators, promise, covenant, and agree to and with the said Henry S. Davis, his heirs and assigns, in the manner following; that is, that he, the said Samuel A. Peugh, and his heirs shall and will warrant and for ever defend the said squares of ground and appurtenances as conveyed, as aforesaid, unto the said Henry S. Davis, his heirs and assigns, from and against the claims of all persons whomsoever.

'And, further, that the said Peugh, and his heirs, executors, and administrators, shall and will pay and refund to said Davis, his heirs or assigns, all and singular the loss, costs, damage, and expenses, including the consideration in said deed or conveyance, which or to which the said Davis, his heirs or assigns, shall lose, incur, pay, or be subject to, by reason of any claim or litigation against or on account of said squares of ground, or either of them.

'And for the full and faithful observance and performance of all the covenants and agreements aforesaid, and for the payment of all the sum or sums of money as therein provided, in the manner prescribed as aforesaid, the said Samuel A. Peugh doth hereby bind himself, his heirs, executors, and administrators, and each and every of them, firmly by these presents.

'In testimony whereof, the said Samuel A. Peugh doth hereto so set his hand and seal on this ninth day of February, in the year of our Lord 1858.

'S. A. PEUGH. [SEAL.]

'Signed, sealed, and delivered in the presence of

'FRANCIS MOHUN.

'WM. H. WARD.'

'WASHINGTON, D. C., Feb. 9, 1858.

'Received of Henry S. Davis $2,000, the same being in full for the purchase of squares Nos. 910 and 911 in the city of Washington.

'$2,000.

S. A. PEUGH.'

The other facts sufficiently appear in the opinion of the court.

The decree at special term dismissing the bill was at general term affirmed; and the complainant appealed to this court.

Mr. Richard T. Merrick and Mr. T. T. Crittenden for the appellant.

1. A deed which is in fact security for a loan is a mortgage, in contemplation of a court of equity, and whether a conveyance absolute on its face will take effect as a mortgage depends primarily, if not exclusively, on the nature of the consideration. Morris v. Nixon, 1 How. 118; Babcock v. Wyman, 19 id. 289; Price v. Robinson, 13 Cal. 116; Huntley v. Wheelwright, 29 Md. 341.

2. A court of equity will not allow the right of redemption to be defeated by any agreement making that which is really a mortgage a conditional sale, but, where the transaction is doubtful, will incline to give effect to the instrument as a mortgage. Russell v. Southard, 12 How. 139; Dougherty v. Colgan, 6 Gill & J. (Md.) 275; Artz v. Glover, 21 Md. 456; Baugh v. Merryman, 32 id. 185.

3. The burden of proof is on the mortgagee, who claims a release of the equity of redemption, to show that it was made fairly, deliberately, and for an adequate consideration. Unless the transaction be fair and unmixed with any advantage taken by him of the use of his incumbrance, or of the necessitous circumstances of the mortgagor, equity will hold the parties to their original relation of debtor and creditor. Dougherty v. Colgan, 6 Gill & J. (Md.) 275; Mills v. Mills, 26 Conn. 213; Hyndman v. Hyndman, 19 Vt. 9; Villa v. Rodriguez, 12 Wall. 323; Williams v. Owen, 5 Myl. & Cr. 303; Russell v. Southard, supra; 2 White & Tudor, Lead. Cas. in Eq. (4th Am. ed.), pp. 1983, 1984, 1995.

Mr. Walter D. Davidge for the appellee.

The mortgagee was under no disability to purchase the equity of redemption; and the validity of the purchase does not, to use the language of this court, 'depend upon his ability afterwards to show that he paid for the property all that any one would have been willing to give.' Russell v. Southard, 12 How. 139. See also Villa v. Rodriguez, 12 Wall. 323; 3 Sugden, V. & P. (10th ed.) 227, 228; Knight v. Majoribanks, 2 Mac. & G. 10; Webb v. York, 2 Sch. & Lef. 661; Conway's Ex. v. Alexander, 7 Cranch, 218; Hicks v. Hicks, 5 Gill & J. (Md.) 85; Trall v. Skinner, 17 Pick. (Mass.) 213; Wynkoop v. Cavring et al., 21 Ill 570. Such a transaction will not be set aside, except for manifest unfairness, or gross inadequacy of price; and neither of those grounds for relief is averred. The complainant testified in his own behalf, but was silent upon the subject of the value of the property.

More than eleven years elapsed between the date of the transaction now sought to be impeached and the filing of this bill, and no explanation of the delay is furnished. The laches of the complainant, and his long acquiescence in the assertion of adverse rights by the defendant, are a bar to this suit. Badger v. Badger, 2 Wall. 87; Marsh v. Whitmore, 21 id. 178.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Peugh v. Davis (96 U.S. 332)


text: Talk:Peugh v. Davis (96 U.S. 332)

title: Talk:Peugh v. Davis (96 U.S. 332)