text:
Slaughter v. Glenn/Opinion of the Court

There is a considerable mass of testimony in the record, but the facts are few, and we think there is nothing material about which there is any room for doubt.

In the year 1863, and for some years previous, the appellant, Mrs. Slaughter, had owned in her own right the premises in controversy in this case. She was a widow when she married Slaughter, and then possessed the property. It is situated in Marion County, in the State of Taxas. The land was poor and the place very unhealthy. In the spring of that year, Dunn & Co. were desirous to put up a packing establishment, and were looking for property to buy with that view. Her agent offered the premises in question. At his request Dunn called upon her. She asked $8,400. Dunn & Co. agreed to give it, and paid her in Confederate money. On the 21st of July, 1863, the payment was completed, and she executed a deed to the purchasers. She was the sole grantor, and the certificate of acknowledgment was silent as to any separate and privy examination. The certificate is as if she were a feme sole. Gray, the officer who took the acknowledgment, testified as follows:--

'I witnessed and attested said deed at the request of Mrs. E. J. Slaughter, the maker thereof. I took her acknowledgment to said deed. I asked her if she acknowledged it to be her act and deed, for the uses, purposes, and considerations as therein stated and expressed; she answered that she did. I cannot remember positively what other questions were propounded to her or what answers were made, but I think I asked all the questions usually asked by county clerks in taking acknowledgments, as required by the statute. She signed the deed, after an explanation of its contents made by me to her. Her husband, M. T. Slaughter, was at that time absent in the army. After the examination and explanation of the contents to her by me, she signed the deed, and acknowledged it to be her act and deed. She acknowledged it, so far as I could tell, freely and willingly.

'At the time of the making the deed, M. T. Slaughter was absent. He had been absent about four months, not less than four months. He was a soldier in the Confederate army. He was absent for more than twelve months; I cannot remember positively how long.' About the time the transaction was closed she bought another tract of land situate in the neighborhood, and paid for it out of the money she had received from Dunn & Co. A deed to her was duly executed on the 3d of August following. The tract is fully described in the bill, and a copy of the deed is in evidence. The property was known as the Culbertson farm. Before selling and buying, she consulted with her friends, and they earnestly advised both a highly advantageous.

The firm of Dunn & Co. consisted by Dunn and Price. Price sold and conveyed to Dunn his share of the premises in controversy, and Dunn sold and conveyed the entire premises to Joseph Glenn, since deceased.

On the 26th of May, 1863, the appellant, M. T. Slaughter, left his home, and entered into the Confederate military service in the State of Louisiana. He lost an arm by a casualty of the war, and thereupon returned home and remained there. He was absent about a year. He had no means. His wife had considerable property. During his absence she managed and controlled every thing as if she had been a feme sole. His ever returning depended upon the chances of the war. Upon getting back, he expressed himself as highly gratified by the sale and purchase she had made. She had constantly done the same thing. On the 3d of June, 1868, Slaughter and wife conveyed an undivided half of the premises in controversy to one of their counsel in the court below, with a special covenant against all persons claiming under them. By the same instrument it was provided that the learned gentleman should prosecute a suit for the recovery of the premises without any other compensation, and that in the event of defeat he should pay all costs and damages and save his clients harmless. An action of trespass to try title was instituted in the proper State court, in the name of Slaughter and wife. Glen thereupon filed this bill to quiet his title. Upon his application, both cases were removed to the Circuit Court of the United States. That court decreed a perpetual injunction in the action at law, and the equity case has been brought here for review.

The controversy between the parties is to be decided according to the jurisprudence of Texas. We must administer the law of the case in all respects as if we were a court sitting there, and reviewing the decree of an inferior court in that locality. Olcott v. Bynum, 17 Wall. 44.

The case on the part of the appellants wears the appearance of a conspiracy to defraud, which, to say the least, does not commend it to the favorable consideration of a chancellor.

A court of equity must find itself hard pressed in the other direction to refuse the relief sought by the bill upon the facts disclosed in the record. We do not find ourselves embarrassed by any such considerations.

The only objections taken by the appellants to the title of the appellees' testator are that Slaughter was not a party to the deed of his wife to Dunn & Co., and that the certificate of her acknowledgment does not conform to the requirements of the statute of the State touching deeds by married women of their own property.

Before considering that subject, it is proper to advert to two other points which arise upon the record.

All the maans, legal and equitable, which Dunn had of protecting his title passed by assignment under his deed to Glenn. Kellogg v. Wood, 4 Paige (N. Y.), 578.

Mrs. Slaughter paid for the Culbertson farm entirely out of the proceeds of the property which she conveyed to Dunn & Co., and there was an overplus left in her hands. If we were constrained to hold that she is entitled to recover back those premises, it would then have to be considered whether she should not be regarded as a trustee ex maleficio, and required to convey to the appellees, as representing Glenn, the Culbertson farm, in which the money of Dunn & Co. was invested. Oliver et al. v. Piatt, 3 How. 333; May v. Le Claire, 11 Wall. 217.

Again, it is the settled law of Texas that if an infant convey, and after coming of age choose to rescind, he must, as a general rule, restore what he has received, before he will be permitted to recover; and the same rule is applied to married women under like circumstances. Womack v. Womack, 8 Tex. 397.

But it is necessary to pursue these views, because we find the propositions of the appellants touching the execution of the deed to Dunn & Co. wholly untenable.

The common-law rights and powers of feme coverts have been considerably modified in Texas. There, real estate belonging to her, whether acquired by descent or purchase in the usual way, is termed, though not technically so, her 'separate property,' and she has in equity all the power to dispose of it which could be given to her by the amplest deed of settlement. The statute regulating conveyances to pass the legal title is not unlike those of most of the other States. It provides that the 'husband and wife having signed and sealed any deed or other writing purporting to be a conveyance of any estate or interest in any land, slaves, or other effects, the separate property of the wife,. . . if the wife appear before any judge,' &c., 'and being privily examined by such officer apart from her husband, shall declare that she did freely and willingly sign and seal the said writing, to be then shown and explained to her, and wishes not to retract it, and shall acknowledge the said deed or writing so again shown to her to be her act, thereupon such judge or notary shall certify such privy examination, acknowledgment, and declaration, under his hand and seal, by a certificate annexed to said writing, to the following effect or substance, viz.,' &c. The form is then given. 1 Laws of Texas (4th ed.), p. 261, art. 1003.

In the administration of this statute by the courts of the State a singular anomaly has grown up. The following adjudications will show the changes in the common law and the anomaly to which we have referred.

In Womack v. Womack (supra), a husband and wife conveyed a slave belonging to her, and warranted the title. There was no certificate of acknowledgment. The court said the statute which prescribed the mode of conveying did not declare void any other mode, and that it seemed, 'from its terms, to have but one object in view, and that was to secure the freedom of will and action on the part of the married woman. If she was free to act, and so declared it, and that she did not retract, all the circumstances concurred which were made necessary to pass the title to the property.' The deed was held to be valid.

In Wright v. Hays (10 Tex. 130), the husband was from home, at a distance, for nearly six years. During his absence his wife visited him. At the end of that time he returned home and remained there. In the mean time, the wife bought land, took the title in her own name, and conveyed a part of it to her son by a former husband. After her death, suit was brought to defeat the conveyance. The same objections were made to the deed as here. The court said: 'The joining of the husband in the wife's conveyance, her privy examination and declaration that she acts freely, all presupposes that a husband is present and may be exercising undue influence over her. But can these formalities be requisite in cases where the rights of the wife (and they are acknowledged by law) depend upon the supposition that de facto she has no husband?' The deed was sustained, and judgment was given for the defendant.

In Dalton v. Rust (22 id. 133), the vendors had given a titlebond to the vendee for a tract of land described by metes and bounds. The vendee died before making full payment. The vendors filed a petition in the county court for the sale of the premises and the payment of the balance due. A sale was accordingly made, and the amount due paid out of the proceeds. The purchaser sued to recover possession, according to the metes and bounds set forth in the bond. One of the vendors set up as a defence that she was, when she executed the bond, and had continued to be, a married woman, and that she did not acknowledge the bond according to the requirements of the statute. It was held that she was estopped by the proceedings in the county court and the receipt of the purchase-money from denying the validity of the bond, or the right of the purchaser to all the lands within the metes and bounds set forth in the original contract which she had executed. She was treated in all respects as if she had been a feme sole from the outset.

In Clayton's Adm'rs and Others v. Frazier (33 id. 91), the plaintiff sued the heirs of a married woman for the title to land which had been her property, and for the conveyance of which, of the payment of the purchase-money, she and her husband had given a bond. There had been no examination of the wife as to her voluntary execution of the bond. It was held that the case was a proper one for specific performance. Womack v. Womack and Dalton v. Rust were cited and approved. This is the latest authoritative adjudication in that State upon the subject to which our attention has been called.

These authorities require no comment. The propositions which they establish are decisive of the case before us.

Decree affirmed.

title: Slaughter v. Glenn/Opinion of the Court


text: Talk:Slaughter v. Glenn/Opinion of the Court

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


text:
Gifford v. Helms

APPEAL from the Circuit Court of the United States for the Middle District of Tennessee.

The facts are stated in the opinion of the court.

Mr. Montgomery Blair for the appellants.

Mr. C. W. Hornor, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Gifford v. Helms


text: Talk:Gifford v. Helms

title: Talk:Gifford v. Helms


text:
Gifford v. Helms/Opinion of the Court

District courts, though constituted courts of bankruptcy, do not possess the power under the twenty-fifth section of the Bankrupt Act to order, in a aummary way, the sale of an estate, real or personal, although the same is claimed by the assignee, even though the title to the same is in dispute, if it also appears that the estate in question is in the actual possession of a third person, holding the same as owner, and claiming absolute title to and dominion over the same as his own property, whether derived from the debtor before he was adjudged bankrupt, or from some former owner. Knight v. Cheney, 5 Nat. Bank. Reg. 305.

Courts of bankruptcy may exercise many of the powers conferred by the first section of the Bankrupt Act in a summary way, as well in vacation as in term time, first giving notice to the party opposed in interest to the prayer of the petition, as in a rule to show cause in an action at law or in a suit in equity without service of process, the rule being that in such a proceeding neither party is entitled to a trial by jury, and that the only remedy for error is to seek a review under the first clause of the second section of the same act. Smith v. Mason, 14 Wall. 431.

Power to revise cases and questions which arise in the district courts in such proceedings is conferred upon the circuit courts by that clause of sect. 2, but it is settled law that the power so conferred does not extend to any case where special provision for the revision of the case is otherewise made. Morgan v. Thornhill, 11 id. 74.

Two trust-deeds were executed by the debtor of the complainant in his lifetime,-one to each of the two trustees named in the bill of complaint; the first embracing several tracts of land which were conveyed to secure his creditors, and the second consisting of an interest in a tract of two hundred acres, arising from a verbal contract to purchase the same, and an advance of $7,000 in part payment of the stipulated consideration, in respect to which the party who agreed to purchase the same, not being able to pay the balance, determined to abandon the contract and assert a lien upon the tract for the amount paid.

Twenty-nine hundred dollars of the amount paid for the tract by the debtor was the money of his wife, which she derived from the estate of her father, and which, by agreement between her and her husband, made while the money was still in the hands of the executor, he was allowed to apply towards paying for the land, the stipulation between them being that in taking title to the land such an interest in the same should be conveyed to her in her own separate right as would be proportionate to the amount of her money applied to the payment of the consideration.

Abundant evidence to substantiate those facts is found in the record; and it also appears that the debtor of the complainant, on the 10th of June, 1867, conveyed to his son all of his equitable interest in the several properties previously transferred to the before-mentioned parties, together with whatever interest he owned in the turnpike therein described, which was not included in either of said trust-deeds. Proof of that conveyance is placed beyond doubt; but it is equally clear that the chief object of the same was to secure the repayment to his mother of the money belonging to her which the father used and applied towards paying for the prior-described tract of land, the son becoming bound to her for that amount under the agreement.

Eight months and a half later, to wit, on the 28th of February, 1868, the said debtor of the complainant filed his petition in bankruptcy, and in the month of February of the succeeding year received his discharge. On the 6th of May next, after the petition in bankruptcy was filed, the assignee of the estate was appointed, and due conveyance of all the assets of the bankrupt was made to him, as required by law. Schedules of the bankrupt's liabilities were duly filed, but they did not mention the name of the original complainant as a creditor.

Allegations to the effect that the complainant proved debts to the amount of $4,500 are contained in the bill of complaint, which was filed Aug. 31, 1871, and the record shows that his own deposition given in the cause affirms the allegation; but the answer of the respondents denies the fact alleged, and the deposition of the bankrupt fully supports the averment of the answer.

Service was made; and the respondents appeared and demurred to the bill of complaint, and they subsequently filed an answer setting up several defences, including most or all of the causes shown in support of the demurrer. Hearing was had; and the court the district judge presiding-overruled the demurrer to the bill of complaint. Proofs were subsequently taken; and the parties having been again heard, the court-the circuit justice presiding-entered the final decree as to the merits in favor of the complainant, from which the respondents appealed.

Since the suit was commenced new parties have been made, in consequence of the death of the complainant and the principal respondent, but the questions to be decided are unaffiected by that circumstance.

Three of the errors assigned were fully discussed at the bar. They are as follows: 1. That the court erred in holding that the conveyances made by the assignee to the complainant included any of the property sued for in the bill of complaint. 2. That the court erred in holding that the said conveyance was of any validity, even if it did include the property for which the suit is brought. 3. That the court erred in overruling the defence that the suit is barred by the Statute of Limitations.

These several assignments of error were discussed at the bar in the order herein stated; but it will be more convenient to consider the question of limitation first, for the reason that, if that is sustained, the other assignments of error will become immaterial, as sufficiently appears from the prayers of the bill of complaint, of which the following are the most material: 1. That the conveyance from the bankrupt to his son may be decreed to be fraudulent, null, and void. 2. That the equities and personal property therein described may be decreed to the complainant. 3. That if the court should be of the opinion that he, the complainant, is not entitled to all of the equities described, then that his pro rata in the same may be decreed to him, and that the $4,000 paid by the son, if found to have been paid out of his own money, may be decreed to have been paid in fraud and with notice that he is not entitled to recover the amount. 4. That all debts included in the deed of trust may be decreed to be invalid as a lien on the estate of the bankrupt, and that all claims against the bankrupt which are unproven, whether secured or not, may be decreed invalid as to the estate of the bankrupt, and not entitled to be paid out of the same in whole or in part. 5. That the cloud caused upon the titles by the conveyance to the son may be removed, and that the titles to the tracts may be decreed to the complainant free from the liens created by the conveyance.

Actions at law or suits in equity may, in a proper case, be brought by the assignee against any person to recover interests of the bankrupt held adversely, or by any person against such assignee touching any property vested in such assignee; but the same section of the Bankrupt Act provides that no suit at law or in equity shall in any case be maintained by or against such assignee, or by or against such person in any court whatsoever, unless the same shall be brought within two years from the time the cause of action accrued for or against such assignee. 14 Stat. 518; Rev. Stat., sect. 5057.

Deeds of trust, as before explained, were executed to certain trustees, and on the 10th of June, 1867, the equities in controversy were conveyed by the debtor to the son. On the 28th of February of the next year the debtor filed his petition in bankruptcy. Due proceedings followed, and on the 6th of May, 1868, more than two years before the bill was filed, the assignee was appointed, and conveyance was duly made to him of all the assets of the bankrupt.

Speedy administration as well as equal distribution of the assets among the creditors is the policy of the Bankrupt Act, and the former is almost as necessary as the latter to accomplish the beneficent ends for which the law was passed. Impressed with that view, Congress enacted the limitations contained in the second section of the Bankrupt Act, which, like other statutes of limitation, must receive a reasonable construction. Beyond doubt, it applies to all judicial contests between the assignee and other persons touching the property or right of property of the bankrupt, transferable to or vested in the assignee, where the interests are adverse, and have so existed for more than two years from the time when the cause of action accrued for or aginst the assignee. Bailey v. Glover, 21 Wall. 346.

Absolute title to the equities in controversy was claimed by the respondent from the moment the deed to him of the same was executed by the bankrupt; and if that conveyance was made in fraud of creditors, as alleged by the complainant, it is clear that the equities were transferred to and vested in the assignee when he was appointed, and of course his right of action to recover the same commenced at the time the instrument of assignment was executed and delivered. Whatever remedy for the supposed fraud the assignee had, it is evident he might have pursued and enforced at any time after he acquired title to the bankrupt's estate. Ex parte Currie, 7 Law Times, N. S. 486; Cleveland v. Boerum et al., 24 N. Y. 615.

Ignorance of the state of the title is not alleged, nor is there any pretence of concealment. Instead of that, the proof is clear that the assignee knew all the facts, and that he came to the conclusion that the title of the respondent was valid, and that the assignee had no just claim to the equities. Terry v. Anderson, 95 U.S. 632; Clark v. Hackett, 1 Cliff. 280.

Nor is there any thing to benefit the complainant in the suggestion that he does not sue as assignee or creditor, as the record clearly shows that he claims as purchaser from and under the assignee.

Pending the proceedings in bankruptcy, the assignee pertitioned the court for authority to make sale of the notes, judgments, and accounts of the bankrupt, for the reasons set forth in the petition, not including the equities which the bankrupt had previously conveyed to his son. Enough appears to show that the reason he did not include those equities in the petition was, that he had reported to the court the day previous that the conveyance to the son was without fraud, and valid. Reasonable doubt upon that subject cannot be entertained; but the order entered by the court upon the petition is broader than the prayer of the petition, and includes the interest of the bankrupt in the property conveyed to 'the son, and all other property belonging to the estate.' Pursuant to that order, dated May 17, 1871, the assignee, on the 13th of June following, sold all the assets of the bankrupt for the sum of $225 to the complainant, he being the highest bidder for the same at the public sale.

Nothing can be plainer in legal decision than the proposition that the complainant did not acquire, by the conveyance made to him under that sale, any greater rights than those possessed by the grantor. Whatever rights the assignee possessed, if any, were acquired May 6, 1868, when he was appointed and qualified as the assignee of the estate of the bankrupt. Throughout the whole period intervening between that date and the date of the purchase by the complainant, the respondent held the equities in controversy adversely to the supposed right of the assignee.

Viewed in the light of these suggestions, it is clear that the right, if any, of the assignee was barred by the Statute of Limitations before purchase of the same by the complainant.

The decree must be reversed with costs, and the cause remanded with directions to dismiss the bill of complaint; and it is

So ordered.

title: Gifford v. Helms/Opinion of the Court


text: Talk:Gifford v. Helms/Opinion of the Court


text:
Bowen v. Chase

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

The facts are stated in the opinion of the court.

Mr. Chauncey Shaffer and Mr. Merritt E. Sawyer for the plaintiff in error.

Mr. James C. Carter, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Bowen v. Chase


text: Talk:Bowen v. Chase

title: Talk:Bowen v. Chase


text:
Bowen v. Chase/Opinion of the Court

This case was before us in an equity suit at the October Term, 1876, upon the same general state of facts which is embodied in the present record. Bowen v. Chase, 94 U.S. 812. The bill in that case was filed after the commencement of this, for the purpose of enjoining this and all other suits brought by the plaintiff in error for the property involved in the controversy. The Circuit Court had decreed a perpetual injunction in reference to the whole property. We sustained that decree as to all the property in New York City except a tract of sixty-five acres on Harlem Heights, as to which it did not seem to us that an injunction was proper. Consequently, the present suit, which was on our docket at the time, on writ of error, was continued for argument.

The case was tried by jury in the Circuit Court, in October Term, 1872, and certain errors are alleged as to the admission and rejection of testimony, and as to the charge of the court. In order to understand their bearing, it is necessary to take a general view of the facts of the case, as they are spread upon the record in the bill of exceptions.

The action is ejectment brought to recover possession of various parcels of real estate in the city of New York; viz., first, a certain tract of ninety-four acres, situated on Harlem Heights, divided into lots numbered 6, 7, 9, 10, 11, 12, 13, 14, and 15, according to a map of the estate of Leonard Parkinson, made by Charles Loss in 1810; second, a lot of thirty-two acres at Harlem Heights, known as the homestead, being part of lot numbered 8 on said map; third, two houses and lots on Seventh Avenue and 41st Street, the claim to which was abandoned by the plaintiff on the trial; and, fourth, two lots at the corner of Broadway and Liberty Streets.

This property was all in possession of one Eliza B. Jumel, known as Madame Jumel, widow of Stephen Jumel, at the time of her decease in July, 1865; and has ever since been in the possession of the defendants, Nelson Chase, and his children by his wife Mary Jumel Bownes (or, as she was called, Mary Jumel), an adopted daughter of Mr. and Madame Jumel, who died in 1843. Their claim to the property is based on a family settlement made in 1828, whereby a life-estate was secured to Madame Jumel, with a remainder to Stephen Jumel for life, remainder in fee to the said Mary Jumel Bownes, their adopted daughter. In 1867, the present suit was brought for the recovery of the property by George W. Bowen, the plaintiff in error, who claims to be an illegitimate son of Madame Jumel, born in Providence in 1794, and as such her heir-at-law under a statute of the State of New York passed in 1855, by which illegitimate children, in default of lawful issue, are made capable of inheriting from their mother. He contends that Madame Jumel died seised of a descendible estate in the property, and that he, as lawful heir, is entitled to the possession of it. The defendants, on the trial, contested both allegations; viz., that the plaintiff was the son of Madame Jumel, and that she died seised of a descendible estate. Other issues were raised by the defence, which it is unnecessary now to notice.

Much of the evidence taken at the trial related to the question of the plaintiff's alleged relationship to Madame Jumel, and most of the errors assigned relate to rulings on the admission and rejection of testimony on that subject. As this branch of the case becomes immaterial, if it be shown (as found by the jury) that Madame Jumel had no descendible estate in the property, we will consider the latter question first.

The marriage of Stephen and Madame Jumel took place in New York in April, 1804; and the adoption of Mary Jumel Bownes, who was a niece of Madame Jumel, took place soon after, when the said Mary was a mere child. Mr. Jumel was a French wine-merchant of considerable wealth, residing in New York, and after his marriage with Madame Jumel they lived in much style for that day in the lower part of the city.

It is conceded that the property in question all belonged to Stephen Jumel. It is so stated in the briefs of both parties, and the conveyances by which Stephen Jumel acquired the different parcels were exhibited in proof on the trial. The tract called the homestead was occupied as a country seat. The tract of sixty-five acres, which is the only one now in question, was an out-lot in the vicinity, partly covered with wood, and was part of the ninety-four acre tract at Harlem Heights first described in the complaint. This tract of sixty-five acres, with another of thirty-nine acres, was conveyed to Stephen Jumel by one Leonard B. Parkinson, by deed bearing date March 9, 1810, a certified copy of which was put in evidence without objection.

It is not pretended that Stephen Jumel parted with the title to any of the property until about the year 1825 or 1827. At or about the latter period arrangements were made by him, or under his authority, out of which arises the controversy respecting the extent of Madame Jumel's interest, and which formed the subject of examination, and the ground of decision in the equity suit. The defendants insist that they are equally decisive in this.

It appears from the evidence that in 1815 the family, consisting of Mr. Jumel and his wife and their adopted daughter, went to France. Madame Jumel returned in the spring of 1817; but her husband and adopted daughter remained for some period longer, the latter being placed at school. The daughter returned after three or four years, and in 1821 she and Madame Jumel again went to France, and remained there for several years. The documents in the case show that Madame Jumel was still in Paris as late as the spring of 1826, residing with her husband in the Place Vendome. She returned to this country in that or the following year. When in this country she usually resided at the family mansion or homestead on Harlem Heights. Stephen Jumel returned in the summer of 1828, and resided with his family at the mansion-house until his death on the 22d of May, 1832.

The history of the property in question during this period, so far as the documentary evidence shows, is substantially as follows:--

In January, 1815, before the family left for France, Mr. Jumel conveyed the homestead on Harlem Heights, then consisting of thirty-six acres, to a trustee for the life of Madame Jumel, to hold the same in trust for himself during his own life, and after his death for the benefit of Madame Jumel during her life, and then to convey the property back to Mr. Jumel and his heirs. Nothing further seems to have been done in this direction until Madame Jumel's last vist to France. Whilst she was there, a second settlement was made of the homestead, by a deed dated in January, 1825, whereby it was conveyed to new trustees, for the separate use and benefit of Madame Jumel in fee. About a year later, in January, 1826, Mr. Jumel conveyed the Liberty Street property to a trustee, for the benefit of his wife during her life, subject to a mortgage of $6,000. On the 15th of May, 1826, probably about the time of her leaving for this country, he gave her a general power of attorney, under and by virtue of which several conveyances were subsequently made in his name. By this power he made his wife his attorney to transact and manage his affairs at New York, or at any place in the State of New York, and in his name and for his use and behalf to sell and convey all or any part of his real estate, and to receive the moneys arising from such sales, and give acquittances for the same.

By virtue of this power, various conveyances were made by Madame Jumel in 1827, by which all the property before referred to, except the sixty-five acres now in question, was conveyed in fee-simple absolute to Mary Jumel Bownes, the adopted daughter of Mr. and Madame Jumel. These conveyances purport to be sales for valuable consideration expressed therein. Two of them are dated on the thirtieth day of July, 1827, one for the twenty-nine acre lot, No. 6, part of the ninety-four acre lot, and the other for the thirty-nine acre lot, No. 5; and a third conveyance was executed for the Liberty Street property on the 24th of November, 1827. A fourth conveyance, of the homestead, thirty-six acres, was made on the 1st of January, 1828. Where the property had been conveyed to trustees, they joined in the conveyances.

After the first three conveyances had been made to her, Mary Jumel Bownes, in December, 1827, conveyed the property therein named to one Michael Werckmeister, in trust; and in May, 1828, she conveyed to him the homestead, also in trust. The trust declared in each case was to the effect, first, that the trustee should, during the lifetime of Madame Jumel, receive the rents and profits and pay them over to her, or at her option permit her to use, occupy, and enjoy the property and receive the rents and profits thereof; secondly, that he should lease, sell, convey, and dispose of the property as Madame Jumel should by writing, executed in the presence of two credible witnesses, order, direct, limit, or appoint, and in case of an absolute sale, to pay to her the purchase-money, or invest it as she should order and direct; thirdly, upon her decease, to convey to her heirs-at-law such of the property as should not have been previously conveyed, and with respect to which no appointment should have been made by Madame Jumel in her lifetime.

The above conveyances to Mary Jumel Bownes, and the deeds of trust made by her to Werckmeister, were all executed before Mr. Jumel's return to this country. On the 21st of November, 1828, after his return, Madame Jumel executed the power of appointment given to her in the trust-deeds. By this instrument, after reciting the trusts, she directed as follows:--

'Now I, the said Eliza Brown Jumel, do hereby order, direct, limit, and appoint, that immediately after my decease the said Michael Werckmeister, or his heirs, convey all and singular the said above-described premises to such person or persons and to such uses and purposes as I, the said Eliza Brown Jumel, shall, by my last will and testament, under my hand and executed in the presence of two or more witnesses, designate and appoint, and for want thereof, then that he convey the same to my husband, Stephen Jumel, in case he be living, for and during his natural life, subject to an annuity to be charged thereon, during his said natural life, of $600, payable to Mary Jumel Bownes, and after the death of my said husband, or in case he shall not survive me, then, immediately after my own death, to her, the said Mary Jumel Bownes, and her heirs in fee.'

Thus the matter stood until after Mr. Jumel's death, and after the marriage of Madame Jumel to Aaron Burr, when in 1834, and again in 1842, she made ineffectual attempts (in the equity case we held them to be ineffectual) to defeat the appointment she had made in favor of Mary Jumel Bownes (then the wife of Mr. Chase), and to settle the property absolutely upon herself.

The effect of the different conveyances, including the appointment by Madame Jumel, as determined by us in the equity case, and as we still hold, was to create an estate to the use of Madame Jumel for life, with a power of appointment by deed or will; and with remainder on failure of such appointment to the use of Stephen Jumel for life, with a final remainder to Mary Jumel Bownes in fee. We further held, that whilst, by the terms and legal effect of this settlement, Madame Jumel had power to revoke her appointment in favor of Mary Jumel Bownes for the purpose of making a bona fide sale of the property, she could not revoke it for the purpose of substituting another voluntary appointment.

It is evident that the arrangement as finally settled had the approbation of Mr. Jumel. The deeds executed in 1827 may have caused him some anxiety, and may have hastened his return to New York; but the appointment made by Mrs. Jumel after his return evidently had his sanction and approbation. He seems, from the testimony, to have had a sincere attachment to his adopted daughter. The terms on which the family lived during the latter years of his life, as well as after that time, are shown in the testimony of the defendant, Nelson Chase. He says: 'I knew Stephen Jumel; was living at his house, and was one of his family when he died. He left no child or relation, to my knowledge, in this country. He was a Frenchman. I married one of his family. I married Mary Jumel Bownes, who was a niece of Madame's; was married on the 15th of January, 1832, at Judge Crippen's residence, in Worcester, Otsego County. My first knowledge of Madame Jumel was while I was studying law with Judge Crippen, in July, 1831. Madame came to Worcester, where I was, to see Judge Crippen, bringing with her a young lady, whom she introduced as her niece. My acquaintance with the young lady continued some time, and until Madame Jumel said to me, I perceive there is a friendship between you and my niece Miss Mary; she added, if I and Mary could agree, she would be happy to have me for a son-in-law; that if we got married she would expect us to come and live with herself and her husband on their place; she said that Mary was her adopted daughter, and was to be her heir. Mr. Jumel died May 22, 1832. This lady whom I married died May 5, 1843. Two children of the marriage are living: one daughter, Mrs. Eliza Jumel Perry, was born at the mansion March 25, 1836; one son, William Inglis Chase, was born Aug. 17, 1840. I and my family, and my daughter and her family, and my son and his family, all live in the Jumel mansion, and we have all lived there ever since Madame Jumel's death. My wife returned to the mansion in February next after our marriage, and I followed in the next month, and from that time until the death of Mr. and Madame Jumel I and mine substantially lived with them as one family.'

We have been thus explicit in setting forth the history of the Jumel family, and of the property in dispute, as exhibited by the evidence in the case, because of its bearing upon certain evidence about to be noticed, and upon the final disposition of the cause by the court and jury.

On the trial, the defendants contended that, although no deeds or conveyances for that purpose could be found, yet that, in fact, the sixty-five acre tract had passed through the same course of settlement as the rest of the property had done. To show this, they offered to prove by one John Caryl, who had lived in service with the family for several years, a certain statement and declaration made by Stephen Jumel to the witness in the fall or winter of 1828, whilst Madame Jumel and her daughter were on a visit to the South. They put to the witness this question:--

'At that time, did Mr. Jumel make any statement to you as to the ownership of the property whilst he was thus residing on the premises and you were there working on them under him?'

The question was objected to by the plaintiff's counsel, but the objection was overruled and an exception taken.

The witness testified as follows:--

'After Madame Jumel and Mary went south, and while I was living on the place with Mr. Jumel, he stated to me that he had given Madame a power of attorney, not for the purpose that she should dispossess him or disinherit him, but in order that she should do business for him. He said that she sold all the property out of his hands under the power of attorney, and he had nothing left he could call his own; but he said that they had had a compromise or settlement, by which the estate owed him a support as long as he lived, and in the end, at his decease and Madame's, it was to go to Mary, and with that he was satisfied. In the first place, when he said the property had been sold from under him, I said, 'Mr. Jumel, I knew that fact. It was done in 1827, last year.' He then made other remarks, which I have stated. On another occasion, either Christmas-day, 1828, or New Year's, 1829, he stated to my father in my hearing that the property was sold out of his hands, but that Madame had made a settlement, or something to that effect, whereby they were to enjoy the property while they lived, and that in the end it was to go to Mary, and with that he was satisfied.'

One of the errors assigned by the plaintiff is, the admission of this testimony. As it has an important bearing upon what followed in the disposition of the cause, it is necessary to examine the question raised by this exception. The plaintiff contends that the declarations of Stephen Jumel at that time were not competent evidence in the cause: that they were not against his interest; that he was not in possession of the property; that they were not contemporaneous with the acts to which they refer; and, if otherwise admissible, they could only be used as evidence against himself, or his privies in blood or estate. But what were the clear facts of the case as they then stood upon the evidence? The entire property in question had originally belonged to Stephen Jumel. By himself, or by his family, his servants in charge, or his tenants, he had the undisputed possession of the whole of it, at least down to 1825. Their possession was his possession. They had no pretence of possession except through or under him. The homestead had been conveyed by him in 1815 to trustees, for the benefit of himself for life, and after his death for the benefit of his wife for life. Her interest in it was subordinate to his. In 1825, he made another conveyance of the homestead to trustees, for the separate use of his wife in fee. She never had any possession, even of this parcel, except through and under him by a voluntary conveyance on his part. In 1826, he conveyed the Liberty Street property to trustees, for the separate use of his wife for life, remainder to himself and his heirs in fee. All the rest of the property remained in his actual or constructive possession until the conveyances made by virtue of his power of attorney in 1827. These conveyances were all voluntary on his part; and whatever he may have thought or believed, he retained the power of defeating them at any time by a sale to a bona fide purchaser. He returned home in 1828, and resided with his family on the property which he had thus voluntarily subjected to their use. One tract, the sixty-five acre lot now in question, so far as any evidence had yet appeared in the cause, still remained absolutely in him. It stood as it had always stood, in his possession, seisin, and control. Surely as to this tract, if not as to the others, he was in a position in which his declarations were admissible. It is unnecessary to refer to authorities on this subject. They are discussed in 1 Greenl. Evid., sect. 109, and in 2 Taylor, Evid., sect. 617. Declarations contrary to the tenor of the deeds or documents which he had executed or authorized would not be admissible, it is true; but declarations in entire harmony therewith, and against his interest in reference to property not conveyed, or not shown to have been conveyed, were clearly admissible. The statement testified to by Caryl was of this sort; and according to this statement, the entire property had been settled so as to go to his adopted daughter in the end. There was no conflict of evidence on this subject. On the contrary, the conveyances which Madame Jumel procured to be made, after Mr. Jumel's death, to Hamilton and Philleppon, for the purpose of defeating her own appointment made in 1828, recited the fact that the sixty-five acre tract, as well as the others, had been conveyed by Mary Jumel Bownes to Werckmeister upon the same trusts as those were. The plaintiff put these deeds in evidence, and they corroborate Mr. Jumel's statement. The recitals in those deeds cannot be used against the defendants, it is true; but, as far as they go, they are corroborations, on the plaintiff's part, of the statement referred to.

We think the evidence was admissible, and that there was no error in receiving it.

This evidence serves to explain what took place at the close of the trial in giving the case to the jury.

After the evidence was closed, the bill of exceptions proceeds to state what occurred, as follows: 'The plaintiff made no claim for the lands on Seventh Avenue, mentioned in the declaration. As to all the other lands mentioned in the declaration, the defendant's counsel insisted that, on the undisputed facts in evidence, the defendant, as a matter of law, was entitled to a verdict, even if the jury should believe that the plaintiff was the heir-at-law of Eliza B. Jumel. The counsel on both sides agreed that, on this branch of the defence, there was no conflict of evidence, and that it was a matter for the court to determine.'

The presiding judge then proceeded to charge the said jury, and after giving them directions as to the other issues in the cause, on the subject in question he directed them to find specially 'that Eliza B. Jumel, at the time of her death, had no estate or interest in the lands claimed, which was descendible to her heirs.' To this charge the plaintiff excepted, and it is assigned for error here.

Now if we lay out of view the declarations of Mr. Jumel, above referred to, there was not a particle of evidence in the case to show, as against the defendants, that the sixty-five acre lot had ever been conveyed by Mr. Jumel, or that Madame Jumel had ever acquired any interest therein, except her estate in dower as his widow. There is no evidence of any adverse possession by her under any other claim of title than that which she asserted to the rest of the property. If, therefore, the declarations of Mr. Jumel are to be laid out of view entirely, the charge of the judge was clearly right.

The evidence, however, was admitted, and went to the court and the jury together with the other evidence in the case respecting Madame Jumel's title to the land in question; and both parties agreed that, on this branch of the defence, there was no conflict of evidence, and that it was a matter for the court to determine. Now they either meant to leave it to the judge, on the whole evidence in the case, including the declarations of Mr. Jumel, as well as the conveyances which were produced, to determine the matter as a question of fact, whether Madame Jumel, at the time of her death, had or had not any descendible interest in the property, or they meant to leave it to him as a question of law, whether upon the whole evidence as it stood (in which they admitted there was no conflict) she had any such descendible interest. If they meant the former, the judge did determine the question in the only manner in which, by the New York practice, he could do so,-by directing the jury to find that she had not such interest. In this view of the case, the decision of the judge, though given by way of a peremptory direction to the jury, was in the nature of a finding of fact made at the request of the parties, which we cannot review, any more than we could review the finding of a jury on a question of fact fairly submitted to them.

But if the parties meant to leave the question to the determination of the judge as matter of law, assuming that the declarations of Mr. Jumel were to be received as true (which must have been what they intended when they agreed that there was no conflict in the evidence on that branch of the defence), then we are still of opinion that the decision was right. If it was true, as stated by Jumel, that, under the power of attorney made by him, his wife had sold all the property, but that they had had a compromise or settlement, by which the estate owed him a support as long as he lived, and in the end, at his decease and Madame's, it was to go to Mary,-if that statement was true, how could the judge have decided otherwise than he did? That language in a will, or any other document, could never be construed to give Madame Jumel a descendible interest. It is in exact conformity with the known facts of the case as evinced by the documents themselves, so far as the documents go.

But there is another aspect of the case as to what the parties meant in their conference with the court, which leads to the same conclusion. It is to be remembered that at the trial of the cause the entire property was in controversy, and as to most of the parcels there was no question as to the deeds and conveyances which had passed. The parties undoubtedly desired the opinion of the court upon the legal effect of these conveyances, and it is quite apparent (though not expressly so stated) that when both sides made the concession or agreement referred to, and requested the court to determine the question, they assumed, or intended to assume, that all the property had been limited upon the like trusts and appointment. If this was so, the decision called for from the judge was really as to the effect of the trust-deed executed to Werckmeister, and of the several appointments made thereunder by Madame Jumel. As in this view of the matter the decision was in conformity with the views of this court in the former case, we hold it to be correct.

In every aspect, therefore, in which this branch of the case may be viewed, we think that no error was committed by the court below.

The disposal of this question determines the cause. The other errors assigned become entirely immaterial, if Madame Jumel had no descendible interest in the property for the plaintiff to inherit.

Judgment affirmed.

title: Bowen v. Chase/Opinion of the Court


text: Talk:Bowen v. Chase/Opinion of the Court


text:
Beckwith v. Bean

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

The case was argued by The Attorney-General and The Solicitor-General for the plaintiffs in error, and by Mr. E. J. Phelps for the defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Beckwith v. Bean


text: Talk:Beckwith v. Bean

title: Talk:Beckwith v. Bean


text:
Beckwith v. Bean/Opinion of the Court

This is an action by Andrew J. Bean against Beckwith and Henry, plaintiffs in error, for assault and battery and false imprisonment. It was commenced in the year 1865, in the County Court of Orange County, Vermont, and was thence removed for trial into the Circuit Court of the United States for that district. The defendants pleaded not guilty, and also filed several special pleas. At a former term, the case was brought to this court upon a certificate of division in opinion between the circuit and the district judge as to the sufficiency of some of those special pleas. We adjudged them to be defective. 18 Wall. 515. Upon a return of the case to the court below, a trial under the plea of not guilty resulted in a verdict in Bean's favor for $15,000. Judgment having been rendered thereon against the defendants, this writ of error is prosecuted.

Before entering upon the discussion of the legal propositions presented for our determination, it is necessary to state the leading facts out of which this litigation arose, and which the evidence before the jury tended to establish.

Bean, the defendant in error, was, in June, 1864, a resident of Coaticoke, in the Dominion of Canada. His ordinary business was that of a harness-maker, but during the period hereinafter referred to he was, to some extent, engaged in the business of substitute brokerage, or in furnishing substitutes for our army. Henry and Beckwith, plaintiffs in error, were officers of the Union army, the former being provost-marshal and the latter assistant provost-marshal of the second congressional district of Vermont. They were appointed, commissioned, and sworn, as required by the statute popularly known as the Conscription Act of Congress, and were subordinates of General Pitcher, who was acting assistant provost-marshal-general for Vermont until October, 1864, when he was succeeded by Major William Austine. All of said officers and subordinates were subject to the authority of Major-General Dix, commanding, by appointment of President Lincoln, the department of the East, which embraced the State of Vermont.

On the 14th of June, 1864, Bean, accompanied by one Jewell and one Buckland, came from Canada to the headquarters of Captains Henry and Beckwith at Woodstock, Vt. They were accompanied by Eldon Brown and John Guptil. Before leaving Canada, Bean had a contract with Brown that the latter should come to the United States and enlist in our army as a substitute for persons drafted under the Conscription Act. In that contract Buckland had an interest, by stipulation with Bean. While at Woodstock, these five persons occupied the same room. Bean, Buckland, and Jewell proposed to, or through, one J. C. Stevens to enlist Brown and Guptil as substitutes; and thereupon an agreement was made, whereby Stevens was to pay Bean and his associates $600 for Brown and Guptil each, the proposed substitutes to receive out of that sum $200 each. Brown and Guptil, upon examination, were accepted and clothed in the uniform of soldiers, receiving $200 each from Stevens, while Bean, Jewell, and Buckland received $800 between them, and returned the same day to Canada. For the purpose, doubtless, of guarding against immediate desertion, Brown and Guptil were required by the provost-marshal to deposit their bounty with a clerk in the office, as security for their departure, on the following evening, to the recruiting rendezvous at New Haven, Conn. During the next day, each obtained five dollars of their bounty-money, and the same day deserted. On the 23d of June, 1864, all the facts and circumstances connected with the enlistment and desertion of Brown and Guptil were verbally communicated by Captain Henry in person to General Pitcher, who directed that transportation to the northern border of Vermont be furnished to Captain Beckwith, with instructions to arrest the deserters, as well as Bean, Jewell, and Buckland, and bring them to headquarters. Transportation being furnished to Beckwith in pursuance of that order, he endeavored, under written instructions from Captain Henry, to effect the arrest of the parties; but his efforts in that direction were fruitless, until Nov. 11, 1864, when, meeting Bean upon the cars, he arrested him, using no more force than necessary. He informed him at the time that he had no warrant, but was acting under military order, and that the charge against him was that of aiding and abetting Brown and Guptil to desert. Upon the succeeding day, Bean was taken to Captain Henry's headquarters, and by his order was placed in the State prison at Windsor,-that being the usual place for confinement of persons charged with offences against military law,-and he remained there in custody until April, 1865, when he was discharged, under the circumstances hereafter detailed.

The testimony of Bean tended to show that his confinement was prolonged unnecessarily, not only under circumstances of humiliation and severity, but against his protestation of innocence and frequent demands to be tried, by the civil courts, for the offence imputed to him. It further tended to show that such confinement without trial was procured or caused by the plaintiffs in error, and that among the results of such imprisonment was the destruction of his business in Canada, the loss of property, and the expenditure of large sums of money.

Upon the part of the plaintiffs in error, the evidence tended to show that, from the circumstances and such information as they were able to obtain, they each believed, before and at the time of Bean's arrest, that the enlistment and desertion of Brown and Guptil were in pursuance of a previous plan for that purpose formed between the deserters and Bean, Jewell, and Buckland, and that Bean and his associates aided and abetted in such desertion and escape; that, on 20th November, 1864, Captain Henry embodied in his regular tri-monthly report to the provost-marshal-general at Washington a general statement of Bean's arrest upon the charge of 'taking part of the money paid for two substitutes,' and then 'being privy to their desertion,' and that he was held for the return of the $800; that, on the 8th of December, Bean wrote to Major Austine, inquiring whether report of his case had been made to him, which letter was referred to Captain Henry for 'report on the case;' that, on the 13th of December, Captain Henry made such report, and had delayed a report until that date by the request of Bean; that, on December 16, Captain Henry, by direction of Major Austine, furnished Bean a written statement of the charges against him, and saying, 'And it is claimed that you shall pay for the use of the government the $800, with the expense of your arrest;' that, on 20th December, he communicated to Major Austine other facts in the case; that, on 21st December, he again, by written communication, called the attention of Major Austine to the case, expressing the opinion that the evidence then in his possession was insufficient to convict Bean in the civil courts under the Enrolment Act, and suggesting that he be turned over to General Dix or the military authority, rather than to the district attorney; that, on 3d January, 1865, Major Austine was officially advised, from department headquarters, that the case of Bean and his confederates was one of gross fraud upon the government, and authorizing him to collect from them, either individually or collectively, the amount received by them; to take all necessary steps for the arrest of the parties then at large, and keep them in custody until the money and expenses of their arrest were paid, and to discharge them when the money was paid over,-of which order Bean was advised on 6th January, 1865; that, on 21st January, Bean addressed, through Major Austine, a communication to General Dix, protesting his innocence, complaining of Major Austine, and demanding trial before the civil courts; that, on 24th January, an answer came from department headquarters, reiterating the condition of Bean's discharge as set forth in the order of January 3, and directing Major Austine 'to cause Bean to be distinctly informed that he was arrested by orders from these headquarters;' that, on 24th February, Major Austine sent all his papers to department headquarters, and they were transmitted to the adjutant-general of the army at Washington, with an indorsement by General Dix, that 'Bean was held by mine (his) orders for complicity in a gross fraud against the United States;' that the papers were returned to Major Austine in April, after passing through the offices of Secretary of War, adjutant-general, judge-advocate-general, provost-marshal, and inspector-general, with directions that Bean be turned over to the civil authorities for trial; that, upon receiving the order last mentioned, Captain Henry called the attention of the district attorney to its provisions, and invited his attention to the case; that, on 26th April, 1865, Bean was taken before a justice of the peace, who discharged him upon bond for his appearance before a United States commissioner when called upon; that, on 11th May, 1865, an examining trial was held, and Bean required to give bail for his appearance to answer any indictment before the grand jury, but that tribunal, upon investigation, failed to find an indictment against him.

It is stated in the bill of exceptions that the plaintiffs in error gave no other or further evidence, either oral or written, of any orders from the President of the United States, or their superior officers, than those just described; that the defendants and General Pitcher were examined as witnesses, and did not claim that said orders had been issued, known to, or approved by the President.

The evidence of plaintiffs in error tended to show that, while imprisoned, Bean was treated humanely; that Beckwith, in all he did, in regard in the arrest and confinement of Bean, acted in good faith and under the command of his superior officer, Captain Henry; that the latter, in all he did, acted in good faith and in obedience to the orders of his superior officers, as hereinbefore detailed; and that from time to time he promptly communicated to Bean the orders he received from his superior officers.

During the trial, the plaintiffs in error offered in evidence the depositions of George W. Kinney and of said Jewell and Brown, to the reading of which the defendant in error objected. The objection was sustained, and plaintiffs in error excepted.

Kinney, in his deposition, details the substance of a conversation held by him with Bean after the latter's discharge. He says: 'I was talking with him in regard to this matter, asking if he didn't think it rather rough to be taking those fellows over the other side to get shot, or words to that effect. He replied, he didn't calculate to have them shot; if they were smart, he should have them back in a few days.' Witness says that there were a good many persons in Canada, during the war, who were generally known as deserters from the Federal army, and he understood from Bean that his dealings, to some extent, were with that class, and that some persons enlisted by him 'had been out already two or three times.'

The deposition of Brown shows that in July, 1863, he enlisted in the State of Maine in the Federal army, and within a short time thereafter deserted, and went to Canada; that Bean and others, who, as he thought, knew him to be a deserter, suggested that he should return to the United States and enlist; that, in consequence of the hard times, he concluded to adopt the suggestion; that, after advising with Jewell upon the subject, the latter told him to go on, and he would overtake him upon the road; that he learned at the same time from Jewell that one Isaac Thomas would be sent along with him; that en route to Vermont to enlist, Buckland overtook them, and claimed him (Brown) 'as his man;' that farther along in the journey Bean joined the party, and held a conversation with Jewell and Buckland apart from the witness; that there was conversation in the crowd about Thomas and himself enlisting under assumed names; that he concluded not to change his, but Thomas assumed the name of John Guptil; that it was first determined to enlist at Lebanon, and for that purpose Bean, Jewell, and Buckland went to the provost-marshal's office at that place, but failing to enlist there, they all proceeded to Woodstock, where they did enlist.

The deposition of Jewell shows that he was himself a deserter. He details the circumstances under which Bean, Buckland, and himself formed the purpose to place Brown and Guptil as substitutes in the army. It appears in his deposition that some dispute arose between Buckland and Bean about Brown. Bean insisted that Brown 'belonged' to him. Their differences were compromised by an agreement 'to divide the profits if they put him in.' He explains why Brown and Guptil were not enlisted at Lebanon. He says, 'We all went from White River Junction to Lebanon, where the provost-marshal's office was, to see what we could get for the men. Not succeeding to our satisfaction there, we concluded to go elsewhere. The reason was they were shipping their men daily direct to Concord. Brown did not want to go to the front so soon, but wanted longer time to get away, he not designing to go to the front at all; went back to White River Junction; took dinner there. We fell in with a man by the name of Stevens. This man was buying men, and said he would give so much for them there, or something more to take them to Woodstock and put them in. We concluded the best way was to take them to Woodstock. We procured a team at the junction. . . . When we came to Woodstock, Bean, Buckland, and myself went to the provost-marshal's office first, and afterwards all went there, but did not enlist the men, for the reason that the men could not get their bounty till they got to camp, and they would not enlist. We drove back to White River Junction; saw Stevens again; I think he gave them some money, can't tell how much, to go back to Woodstock and enlist. After they (Brown and Thomas) has received the money, they started to Woodstock the second time with Stevens. I remained at the junction. My being subject to the service, Bean and Buckland advised me to remain there, and they would do the business of enlisting the men at Woodstock. Next day they came bank, and we all-Bean, Buckland, and myself-took the train for Canada. I had received nothing out of the bounty before that from Thomas. They said they would fix me all right when we got home. After we got home, I said something to them about it. They said they had nothing for me, that I was lucky to get back myself. . . . I knew from both Brown and Thomas, before we left Canada, they were deserters. It was distinctly understood by us all, including Brown and Buckland, that both Brown and Thomas were deserters, and that was the reason why we were selecting other names by which they were to be enlisted. At least that was the way I understood it, and supposed all understood it so.'

Upon the conclusion of the evidence, the court overruled a motion of plaintiffs in error to dismiss the action, refused to instruct the jury as asked by them, and gave an elaborate charge upon the evidence and the law of the case.

The action of the court below in excluding the depositions of Kinney, Brown, and Jewell presents the first question for our consideration. Counsel for defendant in error contends that the facts stated in those depositions are not admissible for any purpose, not even in mitigation of damages.

There can be no rational doubt that the facts detailed by those witnesses, in connection with the evidence before the jury, conduced to show that Brown and Guptil were, at the time of their enlistment as substitutes, known to Bean, Jewell, and Buckland to be deserters from the Federal army, and that Bean, in conjunction with his associates, enlisted them in pursuance of an understanding had before leaving Canada, that they would desert as soon as they received their bounty, and that in such desertion they would receive all the aid which Bean and his associates could render. We express no opinion as to the degree of credit to which these witnesses were entitled. Nor do we say that the jury should have reached the conclusion which their evidence conduced to establish, viz., that Bean was, in fact, guilty of the offence for which he was arrested by Beckwith, under the written and verbal orders of his superior officers,-an offence punishable, upon conviction, by a fine not exceeding $500, and imprisonment not exceeding two years nor less than six months. 12 Stat. 735. Was the excluded evidence competent for any purpose in this case? We are of opinion that it was competent in mitigation of damages. It tended to show the state of case which plaintiffs in error testify under oath they believed in good faith existed at the time of the arrest. It conduced to show that plaintiffs in error did not act from mere personal ill-will or from corrupt motives, and were not guilty of a wanton, reckless exercise of power for the mere purpose of humiliating and oppressing one who had not become obnoxious to the laws of the land. It tended to rebut the presumption of malice which might arise from the simple arrest and imprisonment, unaccompanied by any explanation of the reasons therefor. In connection with evidence which was admitted without objection, it seems to present a case which, under the law, did not call for or admit of vindictive or punitory damages against the plaintiffs in error. In determining whether the case demanded such damages, the jury had the right to consider all the attendant facts and circumstances out of which the arrest and imprisonment arose. They could not well ignore the important fact that the arrest occurred at a period in the country's history when the intensest public anxiety for the fate of the Union pervaded all classes. The necessities of the government and the condition of the army had compelled the adoption of the most stringent and, in some respects, harassing regulations for an increase of the national forces. The enforcement of those regulations, in some localities, was made the occasion of tumultuous assemblages which threatened to disturb the peace of the country, at a time when the utmost energy and unity of action were required for the preservation of the government against armed insurrection. Citizens drafted were required to enter the military service, or furnish acceptable substitutes. The plaintiffs in error were charged with delicate and important duties in connection with the enlistment and enrolment of substitutes for that service. It is to be presumed that, independent of the desire to discharge the obligations of their official oaths, they shared the prevailing anxiety for the safety of the government, and recognized the fact that its safety depended upon speedy additions to the army then engaged in defending it. Neither evidence nor argument is needed to prove that the efforts of the government to strengthen the national forces by draft would have been seriously retarded, and perhaps altogether thwarted, if substitute brokers could, with impunity, and for purposes of private gain, impose fraudulent enlistments upon recruiting officers, and then connive at or aid and abet the desertion of the substitutes as soon as they had received their bounty-money. Whether such considerations influenced, or to what extent they should have influenced, the course of plaintiffs in error was for the jury, when determining whether punishment by exemplary damages should be inflicted. Further, if Captain Henry in good faith believed that Bean was guilty of such misconduct in the enlistment of the two deserters, it was his duty to communicate the facts and circumstances to his superior officer. If the order to Beckwith to arrest Bean was given by him in good faith, believing it to be his duty to obey the command of his superior officer, General Pitcher; if Beckwith executed the order under a like belief, and in like good faith; if the arrest was made and the imprisonment ordered from an honest purpose to guard the public interests and protect the army from the evil consequences of sham enlistments and frequent desertions,-they were entitled, by every consideration of justice, to stand before the jury in a more favorable light upon the question of damages than they would or should have stood had they been actuated by ill-will or sought to oppress one whose conduct had not justified the conclusion that he had violated any law. Every fact, therefore, which served to illustrate the motives which governed the plaintiffs in error in committing the trespasses complained of, and every fact which fairly conduced to prove the existence or non-existence of just grounds for imputing to Bean the fraudulent and illegal acts charged against him, and which were assigned as the cause of his arrest, were competent evidence, not in justification, but in mitigation of damages. It is the settled doctrine that 'damages are graduated by the intent of the party committing the wrong.' Sedgwick, Damages, 455. It is equally well settled that in the absence of gross fraud, malice, or oppression, in cases of trespass to person or estate, the jury should restrict damages to compensation or satisfaction for the actual injuries sustained. Sedgwick, Damages, 39; Day v. Woodworth et al., 13 How. 361. They may, when legal justification is not shown, consider the direct expenses incurred by the injured party, his loss of time, his bodily sufferings, under some circumstances his mental agony, his loss of reputation, the degree of indignity involved in the wrong done, and the consequent public disgrace attending the injury. These and similar elements of injury may be made the basis of compensation, and such compensation cannot be diminished by reason of good motives upon the part of the wrong-doer. But when the injured party seeks, as here, to show a case of 'great aggravation, cruelty, and injustice,' and upon that ground asks for exemplary or vindictive damages, by way of punishment, it was competent, in reduction of such vindictive damages, and for the purpose of restricting the jury to compensatory damages, to give in evidence such facts and circumstances connected with the injury complained of as might show the truth of the whole case, as it existed at the time of arrest. In Day v. Woodworth (supra), this court said that the question of smart-money 'has always been left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend upon the peculiar circumstances of each case;' that is, 'upon the degree of malice, wantonness, oppression, or outrage of the defendant's conduct.' Hence it has been held that, where the injury complained of was an arrest without warrant, the defendant could show, in mitigation of damages, and as explaining the arrest, that the plaintiff was justly suspected of felony. 2 Greenl. Evid., sect. 267; 3 Phillips, Evid. 518. The text in Greenleaf seems to rest partly upon the authority of Chinn v. Morris, 1 Ry. & M. 424, and Simpson v. McCaffrey, 13 Ohio, 508. The first case was trespass for an assault and false imprisonment. The defendant had given the plaintiff in charge to a constable for felony, and he was taken by the officer to a magistrate, who dismissed the charge. The defendant admitted, on the trial, that he had not sufficient evidence to sustain the charge of felony, but proposed to show that there was reasonable ground of suspicion. Best, C. J., held the evidence admissible in reduction of damages. That case was cited, with approval, in Linford v. Lake, 3 H. & N. 276. The case in 13 Ohio was trespass for illegally entering and searching plaintiff's house, tearing up porch, ransacking house, and breaking open desk, without legal authority. Centain evidence was offered in justification as well as in mitigation of damages. The court said: 'The evidence ruled out by the justice of the peace, as shown by the bill of exceptions, in no sense constituted a justification of the trespass complained of. But it was competent in mitigation of damages. The principle of permitting damages, in certain cases, to go beyond naked compensation, is for example, and the punishment of the guilty party for the wicked, corrupt, and malignant motive and design which prompted him to the wrongful act. A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end. But the law tolerates no such abuse of power, nor excuses such act; yet, in morals and the eye of the law, there is a vast difference between the criminality of a person acting mistakenly from a worthy motive, and one committing the same act from a wanton and malignant spirit, and with a corrupt and wicked design. Hence, when a jury are called upon to give smart-money or damages, beyond compensation, to punish the party guilty of the wrongful act, any evidence which would show this difference, or rather all the facts and circumstances which tend to explain or disclose the motives and design of the party committing the wrongful act, are evidence which should go to the jury for their due consideration.'

To the same effect is Roth v. Smith, 54 Ill. 432. That was an action to recover damages for having advised and procured, upon affidavit, the arrest and imprisonment of the plaintiff, by a Federal officer, upon the charge of discouraging enlistments. Evidence was admitted, against the objection of the plaintiff, that he had in fact discouraged enlistments; and upon appeal to the Supreme Court of Illinois that evidence was held to be competent in reduction of damages, upon the ground that it explained the circumstances of the alleged arrest, and tended to show that the defendant was not actuated by malice. That court, speaking through Chief Justice Lawrence, said: 'Admitting that on proof of these facts the plaintiff would have been entitled to a verdict for some amount, he certainly would not have been entitled to nearly as large a sum in the way of damages, if the affidavit was true, as he should have received if it had not been true. If the affidavit was not true, and if the arrest was by procurement of defendant, the jury should presume malice, and award heavy vindictive damages. If the affidavit in fact was true, and the jury could see that the defendant, in making it, even though he voluntarily furnished it to the marshal and advised the arrest of the plaintiff, was acting without malice and in the belief that the public good required the arrest of the plaintiff, and that he could be legally arrested, and that, in causing his arrest, so far as the defendant could be said to cause it, he believed himself to be in the performance of his duty as a citizen, it would clearly, in such a case, be the duty of the jury to give only compensatory and not vindictive damages.'

In McCall v. McDowell (1 Deady, 233), which was an action for false imprisonment brought by McCall against General McDowell, it appeared in evidence that the plaintiff had, in gross and incendiary language, expressed exultation at the assassination of President Lincoln, for which conduct he was arrested and imprisoned under the orders of General McDowell. While this conduct did not, in the opinion of the learned judge trying the case, furnish legal justification for the arrest and imprisonment, it was competent evidence, in mitigation of damages, to go to the jury to show that the arrest was without bad motive, and with the purpose of discharging what the defendant, in the execution of high and responsible public functions, conceived, in good faith, to be his duty at a critical period in the country's history.

A case in point is Botts v. Williams, 17 B. Mon. (Ky.) 687. That was an action for trespass and false imprisonment. It appeared that the defendants, without warrant, and in violation of the laws of Kentucky regulating the apprehension and detention of fugitives from other States, arrested the plaintiff in that State and took him to Ohio, from which State it was alleged he was a fugitive from justice, having committed a felony there. The defendants, under the plea of not guilty, offered to prove the declarations of the plaintiff that he had committed a felony in Ohio, and that a reward had been offered for his apprehension. It was held that while such declarations did not establish justification for the apprehension and transportation of the plaintiff beyond the State, they were 'admissible in mitigation of damages, as conducing to show that the defendants, in making the arrest, were prompted by honest motives and no ill-will to the plaintiff.'

The same general doctrine is announced in Mr. Mayne's Treatise on the Law of Damages. That author says: 'Of course, in all cases where motive may be a ground of aggravation, evidence on this score will also be admissible in reduction of damages. Hence, in an action for false imprisonment, evidence may be given of a reasonable suspicion that the plaintiff had been guilty of a felony, without any attempt at setting up a justification.' Says the same author: 'And if the plaintiff was given in custody for an offence not justifying an arrest, evidence may be given of the offence. It is in the nature of an apology for the defendant's conduct.' Mayne, Damages, pp. 74, 75.

Further citation of authority seems to be unnecessary. The rules announced in the authorities cited meet our approval, and we are not referred to any elementary treatise or adjudged case which states the law differently. It results that the court below erred in sustaining objections to the reading of the depositions of Kinney, Brown, and Jewell. The reasons assigned for their exclusion were insufficient. The court, in excluding them, said that it did so 'upon the ground that the guilt or innocence of said Bean was not a question for the determination of the jury, but that all the facts and circumstances which were known to the defendants, or with which they in any way became acquainted prior to the imprisonment, could be admitted for the purpose of rebutting malice and showing that they acted in good faith; but that they could not give in evidence circumstances of which they had never heard until after the commencement of this suit.' It is true that the guilt or innocence of Bean was not for the determination of the jury, for the purpose of inflicting punishment for the offence imputed to him. But, as already shown, it was the right of the plaintiffs in error to prove, in mitigation of damages, that they were governed, in their whole conduct, by a sense of public duty, and not by a malignant purpose to oppress and humiliate the defendant in error. It was their right to show that the truth of the case, as it actually existed at the time of arrest, sustained the belief under which they acted.

Such a right would, however, be valueless, and such proof impossible, if the jury were not allowed to inquire whether there were, in fact, just grounds to charge upon Bean the fraudulent and illegal acts which were assigned as the reason for his arrest. The existence or non-existence of such grounds might materially influence the mind of the jury in determining whether the plaintiffs in error acted from a sense of duty, or from malice and sheer wantonness. If evidence of an honest belief, upon the part of plaintiffs in error, that Bean was privy to the desertion of the substitutes was competent in mitigation of vindictive damages, proof that he was, in fact, guilty of that offence would serve to show that such belief was not recklessly or inconsiderately formed, and that 'the charge was not a pure invention.' Linford v. Lake, supra. The fact of Bean's complicity in the desertion of Brown and Guptil was believed, in good faith, by Henry and Beckwith to exist when the arrest and imprisonment occurred. So they testify under oath. Should they be precluded from establishing such complicity by the admission of Bean himself to the witness Kinney, simply because such admission was not made until after Bean's release from custody? We think not. Had the admission been in writing, its competency could not well be doubted. That it was verbal is an objection, not to its admissibility, but to its value as evidence upon which to find a verdict. Verbal confessions or admissions, made in the presence of the witness alone, constitute, it is true, very unsatisfactory evidence, partly because of the facility with which they may be fabricated. It is, therefore, to be received with great caution; but 'where the admission is deliberately made and precisely identified, the evidence it affords is often of the most satisfactory nature.' 1 Greenl. Evid., sect. 200; Botts v. Williams, supra; Higgs v. Wilson, 3 Met. (Ky.) 337. 'The caution,' says the Court of Appeals of Kentucky, 'should be applied to the proof of the statement, and not to the statement when proved.' The same considerations apply to the evidence of Brown and Jewell. Most, if not all, of the substantial facts to which they deposed were known to defendants in error at and before the arrest. The excluded evidence was in support and corroboration of that which was known and believed at the time of the arrest to exist. It was cumulative evidence of the same general character as that which was admitted without objection. It introduced no new issue. That plaintiffs in error may not have been advised, until after Bean's discharge, that those facts could be established by the testimony of Brown and Jewell more fully or more clearly than other witnesses could, or in corroboration of what other witnesses would state, constituted no reason for the exclusion of that evidence. Nor is the determination of this question affected by the fact that the defendant in error, upon the trial, complained more of his long confinement in prison than of the original arrest. We should regard all the circumstances attending the imprisonment, and not merely the period during which the imprisonment was continued. Read v. Sowerby, 2 M. & S. 78; 3 Starkie, Evid. 1452, 1453. One of the issues before the jury, as shown by the charge of the court, was as to the responsibility of the plaintiffs in error for the prolongation of the imprisonment, and the denial to Bean of a speedy trial in the civil courts. While it is true that good faith in the original arrest and imprisonment might have been succeeded by bad faith in unnecessarily continuing the imprisonment, and in preventing a trial of Bean in the civil courts, which alone had cognizance of the specific offence charged, it was for the jury, upon all the legitimate evidence which either side could produce, to determine whether such was the fact. If the excluded evidence was competent upon the issue of good faith in the arrest and the original imprisonment,-and we have held that it was,-the plaintiffs in error were entitled to have it before the jury in their consideration of the whole case, since any failure or deficiency in their proof, in that respect, might have justified the jury in believing that from the very outset they were actuated by improper motives.

A less liberal rule in the admission of evidence than that indicated in this opinion would often work the grossest injustice in cases where, as here, vindictive damages are sought against mere subordinates, whose testimony, if credited by the jury, would show that they acted in good faith, from a sense of public duty, and in obedience to the orders of their superior officers, who promptly assumed, and upon whom justly rested, the responsibility, not only for the prolongation of the imprisonment complained of, but for the denial of a speedy trial in the civil courts.

Upon this branch of this case it is proper to make one further remark. When the depositions of Kinney, Brown, and Jewell were offered, the objection was that, in their substance, they were not competent evidence, but that if any part of either of them was admissible, 'it was so intermingled with inadmissible statements that the whole became inadmissible.' The objection was made at the moment they were offered, without calling the attention of the court to the particular portions of the depositions which were claimed to be inadmissible under any view of the case. They were not excluded upon any such ground. They were excluded upon the broad ground that the facts and circumstances detailed by those witnesses were not heard of by the plaintiffs in error until after the commencement of this action. In this condition of the record it would be improper for this court, in view of what has been said, to sustain the ruling of the court below, simply because, in those depositions, there may be, here and there, isolated statements not affecting the substance of what the witnesses testified, and which, upon specific objections, could have been excluded as incompetent under the general rules governing the admission of testimony.

Upon the conclusion of the evidence before the jury, the plaintiffs in error moved, in writing, that the case be dismissed, upon the ground that 'all the facts proved establish that the acts done by them, for which the plaintiff claims to recover, were done by them as military officers acting under the authority of orders of the President of the United States, during the existence of the late rebellion against the United States.' This motion was properly denied, for the reason, if for no other, that there were many disputed facts in the case, disconnected from any question of authority derivable from the general orders of the President. It was the province of the jury to consider those facts in connection with such propositions of law as the court should announce for their guidance. For like reasons, the court properly refused to charge the jury as requested by plaintiffs in error. That request altogether ignored the evidence introduced by the defendant in error, who testified, substantially, that the plaintiffs in error, under circumstances of oppression and wantonness, and by improper and fraudulent representations, procured their superior officers to continue the imprisonment longer than necessary, and prevented them from having a speedy trial in the proper court for the offence charged. It was the province of the jury to consider that evidence, and if they believed it to be true, and had discredited the opposing evidence, the defendant in error would have been entitled to a verdict by reason of any oppressive or corrupt abuse of authority on the part of the plaintiffs in error in making the arrest and ordering and continuing the imprisonment.

In the argument of the case before us a good deal was said in reference to that portion of the elaborate charge to the jury which discussed the right of the plaintiffs in error to take shelter under the act of March 2, 1863, entitled 'An Act relating to habeas corpus and regulating judicial proceedings in certain cases,' and the act of March 2, 1867, entitled 'An Act to declare valid and conclusive certain proclamations of the President, and acts done in pursuance thereof, or of his orders, in the suppression of the late rebellion against the United States,'-the former act, it will be remembered, authorizing defence to be made by special plea, or under the general issue. They are known as the Indemnity Acts, passed by Congress for the protection of military officers, and others who, between certain dates, made arrests, or were connected with the imprisonment and trial, under the authority of the orders and proclamations of the President, of persons charged with participation in the late rebellion, or with disloyal practices in aid thereof. Upon the part of the plaintiffs in error it is insisted that the charge was so inflammatory as to prevent a dispassionate and impartial consideration of the defence relied upon. It is further insisted that the court erred in what it said as to the right of the plaintiffs in error to justify under the provisions of the two statutes referred to. It is still further insisted that Beck with and Henry having acted in good faith under the directions of their superior officers, both in ordering and making the arrest, and in holding Bean in custody after such arrest, they could not, in any event, be liable for vindictive damages, however illegal their acts may have been. Touching these objections to the charge of the court, it is sufficient to say that they are not presented by the bill of exceptions in such form that we should consider them. The only exceptions to the charge are in these words: 'To the omission of the court to charge as requested, and to the charge of the court placing a construction upon said acts of Congress, and to so much of the charge as relates to the attempted justification of the defendants under said act, and the evidence hereinbefore detailed, the defendants excepted.'

We have already commented upon the refusal of the court to charge as requested by the plaintiffs in error. The exceptions to the charge as given are too vague and indefinite to raise the questions which were claimed in argument to arise under the acts of 1863 and 1867. Lincoln v. Claflin, 7 Wall. 132; McNitt v. Turner, 16 id. 362; Beaver v. Taylor et al., 93 U.S. 46. The exception is scarcely more definite than a general exception to the whole charge would have been. We cannot tell what specific portion of the elaborate charge construing the acts of Congress, or what specific portions of the charge concerning the evidence relied upon for justification under those acts, were intended to be covered by this general exception. The exception was to a series of propositions in gross, relating to the construction and to the validity, in certain aspects, of these acts of Congress, and to a mass of evidence introduced for the purpose of establishing the defence allowed by those acts. Some of those propositions seem to be sound in any view of the case; but since the exception did not call the attention of the court below to the specific propositions which were objected to, it cannot be regarded here. For the same reasons, we cannot consider the alleged error of the court in its charge to the jury upon the question of vindictive damages. While some portion of the amount found by the jury may be attributed to the charge of the court upon the subject of vindictive damages, it is sufficient to say that no exception was taken upon that point. We forbear, therefore, any expression of opinion as to whether the evidence before the jury authorized vindictive damages, or brings this case within the provisions of the statutes of 1863 and 1867. We express no opinion as to the construction of those statutes, or as to the questions of constitutional law which may arise thereunder. We feel obliged to adopt this course, because counsel for defendant in error, assuming that our decision in 18 Wallace as to the sufficiency of certain special pleas settled all the questions under the acts of 1863 and 1867, which could arise upon the evidence in this case under the general issue, did not, in his oral or printed argument, discuss the grave questions of statutory and constitutional law which, perhaps, the general exceptions to the charge were designed to present for our determination. We therefore restrict our decision to the single point properly presented for our determination; viz., that the court erred in excluding from the jury the depositions of Kinney, Brown, and Jewell, and upon that ground the judgment is reversed, with directions for such further proceedings as may be consistent with this opinion.

Upon the whole case, we are of opinion that justice will be promoted by another trial of the case; and it is

So ordered.

MR. JUSTICE MILLER did not hear the argument in this case or take part in its decision.

MR. JUSTICE FIELD, with whom concurred MR. JUSTICE CLIFFORD, dissenting.

title: Beckwith v. Bean/Opinion of the Court


text: Talk:Beckwith v. Bean/Opinion of the Court