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King v. Ackerman/Opinion of the Court

Mr. Cutler, of New York, and Mr. Black, of Pennsylvania, for the plaintiff in error, argued that the will, properly construed, according to the law of New York, as it stood in 1822, gave Benjamin Benson no more than a life estate in the Homestead place; that the fee simple remained undisposed of, and descended to the testator's heirs-at-law, of whom the plaintiff was one, and that she had a right, after the life estate terminated, by the death of Benjamin, to recover her share in it.

It is undeniable that a devise of real property, to do and dispose of it as the devisee may think proper, creates an estate in fee. It is equally clear that, by the common law, a devise of land without words which in any way denote the quantity of a donation of the estate, passes nothing but an estate for life. Benjamin, therefore, took a fee in the Williams' place, and by the words of the will, giving him the Homestead, he could have only a life estate in that.

It is also admitted, that where a testator gives land without words of limitation, as in this devise of the Homestead, and therefore, by the words of the devise, gives a life estate only, such life estate will be enlarged to a fee if the same will imposes upon the devisee a personal charge with respect to the estate devised. This rule is founded on the natural presumption, that no testator would expose his devisee to the possible danger of becoming a loser by his bounty. The testator, in such a case, must have meant to give a fee; because, if it were a life estate, the devisee would, by accepting it, render himself personally liable for the sum charged on him, and he might die before the profits would be equal to the charge.

But there is no case in the books like this. Here were two devises, to the same person, of two different pieces of land, both of them greatly exceeding in value the amount of the personal charge upon the devisee. One is in fee, and the other for life. The devisee could take what was given by the words of the will; he could assume the charge, and he could not possibly be a loser, though he should die the next instant. To avoid the danger of a loss, it was not necessary to presume that a fee should be given in both places. The testator had provided against that danger by simply giving his son a fee in one of them.

But it is suggested that the farm in which a fee was given might possibly not be equal in value to the charge, and if that be the case, then a loss might possibly ensue to the devisee, by his death, before he could make the deficiency out of the life estate in the other. Surely the principle of no decided case, nor no logic that is sound, can justify this argument. Where a testator gives land without saying for what estate, the Courts must ascertain his actual intent as well as they can. From the naked devise the inference is, that he meant a life estate only; but if a personal charge in respect of it be imposed, you infer fairly and naturally that he meant a fee, because nothing less than a fee can make the devisee absolutely safe. You reason here, as in other cases, from a fact that is known to another fact which is not known. But if you infer the testator's intent from the supposed inadequacy of the fee simple, you reason to one unknown fact from another fact equally unknown. To justify a Court in saying that the testator meant to give a fee without saying so, it is necessary that the possibility of loss should be clearly and plainly established as an undisputed fact. It is not to be assumed and imagined, and then made the basis of presumption for another fact.

That the possibility of loss to the devisee is established here as a known fact, will hardly be contended; nor can we suppose that the Court will consider it even probable in the face of the plaintiff's rejected offer to prove the contrary.

The presumption that a testator meant a fee, because the devise is coupled with a charge, is not a presumption of law, but of fact; not legal and conclusive, but natural and open to be repelled by counter proof. It was, therefore, erroneous to reject the plaintiff's evidence.

But the plaintiff did not need the evidence. It was for the defendant to show that the Williams' place was worth less than the charge. The error of the Circuit Court consisted in assuming the possibility of loss to the devisee when that fact was not proved, and upon evidence which shewed it to be at least as probably false as true.

Again, it will be agreed that if the testator's intent to give no more than a life estate is apparent on the face of the will, it will not be enlarged to a fee by implication from a personal charge. In this case it is clear that he could have intended no more than a life estate. He gave one place with words of perpetuity and followed it with a gift of another omitting those words, and omitting all words of equivalent import. I give Benjamin the Homestead to dispose of as he thinks proper, and I give him the Williams' place. Is not this as clear as if he had said I give him the Homestead and the Williams' place, and as to the former he may do with that as he pleases? Is not the omission of the enlarging words in the latter devise as plain an indication of the testator's intention to make it a life estate as if he had expressed it in words?

Mr. O'Conor, for New York, for Defendant in Error.

This case does not differ in principle from other cases in which the Courts have held it to be settled law that a devise of an estate in land without words of perpetuity is enlarged to a fee by charging the person of the devisee with the payment of money. The fact that other property was given in fee by the same will to the same person may furnish the ground for an argument, but not for a sound distinction.

It was not the intention of the testator that Benjamin should take the property in question with the power of alienating it; but as it had come to him from his father, he meant that it should pass from his son to his heirs. The words connected with the other devise, 'to do and dispose of,' &c., were intended to give the power of alienation, not to increase the estate. To give was, in his mind, to give absolutely and forever, and 'to do and dispose of as he might think proper,' could add nothing to the duration of the estate bestowed in the Williams' place, and the absence of those words in the devise of the Homestead would not make the estate in that any less. The supposed necessity for the use of those words arose out of the testator's opinion that in the case of a family estate the right to alienate did not legally exist as an incident of ownership, but must be created by superadded words expressly giving the power.

It is not denied that where property is given in a will without words of limitation, the donee can by force of the words alone take nothing but an estate for life. The testator has not expressed the idea of giving him any more, and the Courts cannot see any method of giving him any less. Consequently it is a necessary implication that he should take for life.

This rule is too old and too well settled to be questioned or shaken. But there is another rule equally well established-as old as the days of Coke-which insures our safety. Where, on a gift of lands without limitation, there is a charge on the person of the devisee, which the devisee will incur as a binding personal obligation, if he accepts the devise, he becomes a purchaser. And as a purchaser under a will and not a deed, purchasing without words of limitation or qualification, he, by reasonable inference and construction buys the thing absolutely. As in all other like cases of purchase, the Courts will supply any words of limitation or any assurances that may be deemed necessary to make the title absolute and perfect.

Such being the principle upon which the rule is founded its application to this case is clear as to any other. What difference can be made in the right of the devisee to take the Homestead absolutely as a purchaser by the fact that another estate is expressly given him in full property? Having acquired them both for a consideration and having paid or bound himself to pay the price he is certainly not compelled to take one as a mere life tenant because the testator declared that he should have the other in fee. If the testator had been totally silent concerning the quantity of estate-had omitted to couple either devise with words of limitation, the law would have given both in fee. But the testator as to one devise expresses the legal conclusion. Does that destroy the devisee's right to have a legal conclusion drawn from the other?

This old rule which presumes that a testator meant to give land, only for life when he uses no words to express the quantity of the estate, defeats the actual intent in most cases. Experience has shown it to be mischievous. The justice and good sense of the world has abolished it. It has ceased to exist in England and in nearly (perhaps all) the States of this Union. The Courts were always more anxious to find exceptions to the rule than to enforce the rule itself. If, therefore, it be doubtful whether this case is within it or not, the Court will give the benefit of that doubt to the devisee.

It was proposed to show upon the trial that, at the time the decedent made his will, and at the time of his death, this Williams' lot was worth enough in the market to have paid the $1,500.

The title to land should not be permitted to turn on questions of that character. If it should be thought proper to look at the question of value, you would perceive that the testator could not have had any knowledge what would be the value of the land, in which it is said a fee simple was unmistakably given, at the point of time when his son might be coerced to pay this sum of money; and consequently the value of that land, as a distinct subject from which to obtain the means of paying this legacy of $1,500 could not have entered into his contemplation, consequently the gift of these two pieces of land, placed as it is in one section, must be taken as an entirety; and the sum specified in the second clause of the will must be regarded as a condition imposed upon the devisee in respect to the whole property mentioned in that section.

There is one view of the case in reference to the words of limitation which deserves attention concerning the Williams' lot, the devisee was to do and dispose of it as he might think proper. This certainly meant that he was to have it free of all charges and incumbrances whatever. If he was bound to raise $1,500 out of it he would not have power to dispose of it, as he might think proper. On the contrary the residue only would be delivered over to his absolute disposition. The Homestead is not declared to be unfettered and the intent of the testator must therefore have been to impose the charge with respect to that alone. This seems a conclusive answer to that part of the argument on the other side which asserts that the charge was imposed only with respect to the Williams' place.

Mr. Justice GRIER.

It has been an established rule, in the construction of wills, that a devise of lands, without words of limitation, confers on the devisee an estate for life only. This rule was founded rather on policy than on reason; for while it favored the heir-at-law, it generally defeated the intention of the testator. This is acknowledged by Lord Mansfield in Loveacre vs. Blight, (Cowper); and the interference of modern legislation, to abolish the rule and establish a contrary one, is evidence of the correctness of his remark. This change has been effected by statute in England and most if not all of the States of this Union.

The will now presented for our consideration was made before this obnoxious rule was repealed in New York, and we are compelled to examine its provisions fettered by this technical, artificial, and now nearly obsolete rule of construction. Courts have always been astute in searching for some equivalent, popular phrase, or some provision of the will incompatible with such imputed intention, to rescue it from the effect of this rule. Thus, when a testator devises land without legal words of limitation, but adds that the devisee 'may sell or do therewith as he pleases,' he is presumed to have intended to give a fee, because such a power would be incompatible with a less estate. It is a long settled rule also, that where a devisee, whose estate is undefined, is directed to pay the testator's debts or legacies, or a specific sum in gross, he takes an estate in fee. The reason on which this rule is founded is, that if the devisee took a less estate he might be damnified by the determination of his interest before reimbursement of his expenditure. This rule, though founded on inference or implication, is nevertheless as technical and rigid in its application as that to which it is an exception; for the Court will not inquire into the relative value of the land and the charge; or, if the charge be contingent, will not weigh probabilities as to whether the devisee will ever be called on to pay it. The intention of the testator as to the limitations of an estate devised can be judged and decided only from his own language as contained within the 'four corners' of his will. Parol evidence cannot be received to show that such inference was not founded on probability, or that this rule of construction ought not to apply under certain circumstances. This would in effect be delivering the power and duty of construing the will to a jury.

The will of Lawrence Benson is very brief and is as follows:

'In the first place, I give and bequeath unto my son, Benjamin L. Benson, all that estate now occupied by George Williams, to do and dispose of as he may think proper.

I also give and bequeath unto my son, Benjamin L. Benson, the Homestead where I now live, situated on Harlem River.

Secondly. My will and intention is, that my son, Benjamin L. Benson, do give unto my grandchildren, after the decease of my wife, the sum of $1,500.

Thirdly. The income of these legacies, and also of my estate, real and personal, I give unto my loving wife, Maria Benson, during her widowhood, to do and dispose of as she may think proper.'

It is plain that this instrument has been written by a person 'inops concilii,' and wholly ignorant of proper legal phraseology.

He uses the term 'bequeath' instead of devise in the gift of his real estate.

By the first clause he gives his two pieces of real estate to his son Benjamin, who appears to be the chief object of his bounty.

By the second, he charges the sum of $1,500 on Benjamin to be paid to the grandchildren of testator.

By the third, he gives to his wife a life estate on all of his estate, real and personal, to be forfeited if she marry again.

Now, we must observe,

1st. That the son has clearly but an estate in remainder in the lands devised to him.

2d. That it is a vested remainder.

3d. That this testator not only postpones the possession and enjoyment of the land devised to his son for an indefinite time, but charges him with the payment of a gross sum of money, which he will be personally liable to pay, for land which he may never personally possess or enjoy.

If the charge is sufficient in law to give the devisee an estate in fee by implication or presumption, how much stronger is this presumption when his enjoyment of it is indefinitely postponed.

But it is contended, that, because the testator has used the phrase 'to do and dispose of as he may think proper,' as regards the Williams' farm, and in the devise of the Homestead has omitted it, such omission as to the latter is equivalent to an express limitation of it to the life of the devisee; and that the Court ought to presume that the sum to be paid was intended as a consideration for the first only; and if they will not presume it for want of evidence of its sufficiency, that parol evidence ought to be admitted to show the value of the Williams' property to have been more than sufficient to pay the sum plainly charged on both.

Now there is no established rule of construction, that if a testator having devised two messuages to his son and charged the devisee with the payment of legacies that if he add this informal power as to one, it is equivalent to an expressed limitation as to the other. Nor is it a necessary inference or logical conclusion, arising from the omission to use certain informal words, which have been construed to show an intention to give a fee as to one, that the testator did not intend to give a fee in the other of the messuages charged. Besides, it is clear that Benjamin could not repudiate his obligation to pay the legacies by refusing to accept the gift of the Williams' farm, while he retained that of the Homestead. To conclude, therefore, from this fact that the testator did not intend to give a fee in both, would be mere conjecture, and that, with no sufficient reason to support it.

The face of this will shows that the testator did not suppose these informal words, giving a power to sell as to one, were necessary to enlarge the estate to a fee, much less that their omission would limit the devise of the other to a life estate, for he adds the same power to the life estate given to his wife.

If we were to indulge in conjecture, why this phrase was coupled with one of the estates devised and not with the other, it would be, that the testator intended to confine the charge of the legacies to the 'Homestead' and not the Williams' farm, or that he wished the one to remain in the family and name, while the son should be at full liberty to dispose of the other as he might think proper.

The rule of law which gives a fee, where the devisee is charged with a sum of money, is a technical dominant rule, and intended to defeat the effect of the former rule which itself so often defeated the intention of the testator.

Courts have always been astute, as we have said, to find reasons for rescuing a will from the artificial rule established in favor of the heir-at-law, and will not even be acute in searching for reasons to restore its force, where the statute has not abolished it. We are not compelled to make this inference or implication through submission to any established rule of construction; on the contrary, we are required to make an exception to one on mere conjecture, and to introduce parol testimony as to value to justify a departure from it. A Court may look beyond the face of the will where there is an ambiguity as to the person or property to which it is applicable, but no case can be found where such testimony has been introduced to enlarge or dininish the estate devised.

We are of opinion, therefore, that Benjamin L. Benson took an estate in fee in both the messuages described in the will.

The judgment of the Circuit Court is therefore affirmed with costs.

title: King v. Ackerman/Opinion of the Court


text: Page:Cournot Theory of Wealth (1838).djvu/20

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text: Talk:King v. Ackerman/Opinion of the Court


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Chicago City v. Robbins

This was a writ of error to the Circuit Court of the United States for the Northern District of Illinois.

Mr. Anthony, of Illinois, for Plaintiff in Error.

Mr. Fuller, of Illinois, Contra.

Mr. Justice DAVIS.

title: Chicago City v. Robbins


text: Talk:Chicago City v. Robbins

title: Talk:Chicago City v. Robbins


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Chicago City v. Robbins/Opinion of the Court

This is an action on the case brought by the City of Chicago against Robbins. The suit was originally commenced in the Cook County Court of Common Pleas, one of the State Courts of Illinois. In was transfered, in pursuance of the act of Congress, on the petition of Robbins that he was a citizen of New York, to the Circuit Court of the United States for the Northern District of Illinois, where there was a trial by jury on the 10th day of April, 1860, on the plea of not guilty, and the issue found for Robbins. There was a motion for a new trial, which was overruled by the Court, and on the 28th day of May, 1860, judgment was entered on the verdict of the jury. The decision of Circuit Courts on motion for new trials is not subject to review, and this case is here on exceptions taken to the charge of the Judge to the jury.

The declaration alleges: That the plaintiff is a corporation by the laws of Illinois, having exclusive control over the public streets, and bound to protect them from incroachment and injury. That Robbins was the owner of a lot on one of the public streets, and wrongfully excavated in the sidewalk next to and adjoining his lot, an area of great length, width, and depth, and wrongfully suffered the same to remain uncovered and unguarded, so that one William H. Woodbury, on the night of the 28th of December, 1856, while exercising reasonable care and prudence in passing along the street, fell into it and was greatly injured. That Woodbury brought suit against the City, in said Cook County Court of Common Pleas, and at the June Term, 1857, of the said Court recovered a judgment for $15,000 and costs, which the City has been forced to pay, and that although the City is primarily liable, yet Robbins is responsible over to it for the amount of judgment, interest and costs so recovered. The case as shown by the bill of exceptions in this: Robbins, owning a lot in Chicago, on the southeast corner of Wells and South Water streets, on the 20th of February, 1856, contracted in writing with Peter Button to erect a building thereon, which included an excavation of the sidewalk next to and adjoining it, so as to furnish light and air to the basement. The contract contained a stipulation that Button was to be liable for any violation of City ordinances in obstructing streets and sidewalks, or accidents resulting from the same. Possession of the ground in order to erect the building, was given to Button, by the terms of the contract, on the 1st day of April, 1856. The area was dug early in the spring and covered up temporarily with joists, which often got displaced, and during the summer and fall it was frequently uncovered and dangerous. The flagging was laid some time in the fall and the iron gratings afterwards, with which Button had nothing to do.

There were seven different contractors on the building, in all, on different parts of the work. Letts had the contract for the iron gratings, and Cook & Co. for the flagging. Robbins was in Chicago, and occasionally at the building during the summer, and was there while excavations were going on, and was spoken to frequently by the City Superintendent upon the dangerous condition of the area. At one time after the flagging was laid, and ice was or had been on the flagging, he called Robbins' attention to the condition of the area, and suggested the mode in which it should be covered up, 'telling him that if it was sleety and people were passing rapidly they might slip in, and that somebody's neck would be broken, if the covering was not attended to,' and he replied 'that he would see to it, but that the matter was in the hands of his contractor, and he would speak to him about it.' Before this, the head clerk in the office of the City Superintendent wrote Robbins a note and put it in the post-office, notifying him of the danger of the whole front of the sidewalk. The area was usually entirely open after flagging was laid, until after the grating was all done, and was open until after the accident. There were lamps at bridges, and a lamp at alley, sixty-four feet from the building. The width of sidewalk including area, was sixteen feet. The area was four feet ten inches wide. The grade of Wells street was changed by the corporation; the sidewalk was raised eight inches higher than it was, to accommodate it to the grade of the street; it was raised in July or August 1856, and Robbins directed Van Osdell, his architect, to raise the sidewalk to the grade. Van Osdell superintended the erection of the building for Robbins, who paid him; his duty as superintendent was to see that the work was done according to contract; to see 'that the work and material were according to specification, and make estimates.' Button was told of the dangerous condition of the area, and spoke several times to his foreman about it. Button was to furnish his work under the contract by the 1st of September, but did not in fact complete it until February, 1857. On the night of the 26th of December, 1856, the area was not sufficiently covered, and Woodbury fell into it and was injured, and sued the City and recovered in manner as stated in the declaration. Marsh was City attorney in 1856, and when the suit was begun, he made preparations for its defence, and ascertaining that Robbins owned the building applied to him to assist him in procuring testimony. Robbins told him of a witness who knew something of the suit, and promised to write to him, and afterwards informed Marsh that he had done so. The evening before the trial he casually met Robbins and told him that the suit would be tried the next day; he did not go expressly to notify him to defend the suit, and never notified him that the City would look to him for indemnity. Evidence was given tending to show that the City authorities knew of the excavation of this area, and of other areas similar to this at different times, and interposed no objection, though no express permission to make this one was given.

The defendant introduced in evidence the following provision of the Ordinances of the City of Chicago, viz.:

'ARTICLE II-OBSTRUCTIONS.C.HAPTER LIII., SECTION 1.

'Be it ordained by the Common Council of the City of Chicago, That no porch, galley, stoop, steps, cellar door, stair railing, or platform, erected or to be erected within the city, shall be allowed to extend into or upon any sidewalk where the street is less than seventy feet in width, more than four feet; nor more than five feet, where the street is seventy feet and upwards in width. Any violation hereof shall subject the offender to a penalty of twenty-five dollars, and to the like penalty for every day such violation shall continue, after notice from the Marshal or Street Commissioner of the proper Division to remove the same.'

It also appeared in evidence, that the original ordinance from which the foregoing provision is taken, was passed May 3d, 1855, but, as then passed, did not allow of more than four feet encroachment upon the sidewalk in any case. On the 7th of February, 1856, the ordinance was amended by the City Council to read as above.

Is Robbins, under the law and evidence, answerable over to the city for the judgment recovered by Woodbury?

It is well settled that a municipal corporation having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; and if this plain duty is neglected, and any one is injured, it is liable for the damages sustained. The corporation has, however, a remedy over against the party that is in fault, and has so used the streets as to produce the injury, unless it was also a wrong doer. If it was through the fault of Robbins that Woodbury was injured, he is concluded by the judgment recovered, if he knew that the suit was pending and could have defended it.

An express notice to him to defend the suit was not necessary in order to charge his liability. Barney vs. Dewey, (13 John., p. 226); Warner vs. McGany, (4 Vt., 500); Beers vs. Pinney, (12 Wend., 309).

He knew that the case was in Court; was told of the day of trial; was applied to to assist in procuring testimony; and wrote to a witness, and is as much chargeable with notice as if he had been directly told that he could contest Woodbury's right to recover, and that the city would look to him for indemnity.

Robbins is not, however, estopped from showing that he was under no obligation to keep the street in a safe condition, and that it was not through his fault the accident happened. It is insisted, that inasmuch as Robbins had no express permission from the City to encroach on the street, that he was engaged in an unlawful work, and the digging of the area was in itself a nuisance. So far as the City impliedly could give authority to make this area, it was given; the corporation undoubtedly knew that this area was in process of construction, and that many similar ones had been built since the grade of the City was raised, and yet no objection was ever interposed. Areas, like the one in controversy, are convenient to the owners of adjoining buildings, and useful in affording light and air, and if during their construction they are properly guarded and protected, they are no essential hindrance to the public in their right of transit over the streets. The public have a right to the free passage of the streets, and yet that right cannot always be enjoyed. Improvements could not be made in a large City; houses could not be built, or repaired even, without the streets being at some time obstructed. In Commonwealth vs. Passmore, (1 Serg. & Rawle., 217,) the Supreme Court of Pennsylvania say: 'It is true that necessity justifies actions which would otherwise be nuisances. It is true also that this necessity need not be absolute, it is enough if it be reasonable. No man has a right to throw wood or stones into the street at pleasure. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, brick, lime, sand, and other materials may be placed in the street, provided it be done in the most convenient manner.' 'But these encroachments on a street must be reasonable, not continued longer than is necessary, and must be properly guarded and protected so as to secure the public against danger, and if these things do not concur, then they become nuisances and can be abated.' Clark vs. Fry, (8 Ohio State Reports, 359).

Was the building of this area a necessary encroachment on the street; and if so, were the proper steps taken to secure it so as to protect the public from injury? The fact that an improvement may become dangerous, and involve great hazard, is no argument against the propriety of making it. If by great care, and more than ordinary diligence, it can be made, and the public saved from harm, and it is also necessary, then the right to make it is solved. The grade of the City was doubtless raised to secure light and air to basements, to get good cellars, and for purposes of drainage. The value of property in a City is much enhanced by the erection of solid and durable buildings, and every proper facility to perfect them should be given to builders. If it is necessary, in order to make a better building to occupy the sidewalk and dig an area, and it can be occupied, and the area dug and secured without danger to the public, then the encroachment made on the street is reasonable, and the work lawful. But in every improvement like the one we are considering, it is essential that every possible precaution should be used against danger. No precaution whatever was used in this case. The area was left uncovered, without guards and lights to warn those who passed by, and a serious accident was the result. If an area is left open it is dangerous, and is a nuisance, and can be abated. Dygett vs. Schenck, (23 Wend., 446); Congreve vs. Morgan & Smith, (18 N. Y., 84); Storrs vs. City of Utica, (17 N. Y., 108); Coupland vs. Hardingham, (3 Campbell, 398).

The City must be reimbursed unless it has been itself in fault. The rule of law is, that one of two joint wrong doers cannot have contribution from the other. It is difficult in this case to see how the City was to blame, and least of all how Robbins can impute blame to it. Robbins desired to erect a large storehouse, and to add to its convenience, wished to excavate the earth in the sidewalk in front of his lot. Without express permission from the city, but under an implied license, he makes the area. No license can be presumed from the City to leave the area open and unguarded even for a single night. The privilege extended to Robbins was for his benefit alone, and the city derived no advantage from it, except incidentally. Robbins impliedly agreed with the City, that if he was permitted to dig the area, for his own benefit, that he would do it in such a manner as to save the public from danger, and the City from harm. And he cannot now say that true it is you gave me permission to make the area, but you neglected your duty in not directing me how to make it, and in not protecting it when in a dangerous condition. If this should be the law, there would be an end to all liability over to municipal corporations, and their rights would have to be determined by a different rule of decision from the rights of private persons. Because the City is liable primarily to a sufferer by the insecure state of the streets, offers no reason why the person who permits or continues a nuisance at or near his premises should not pay the City for his wrongful act. The City gave no permission to Robbins to create a nuisance. It gave him permission to do a lawful and necessary work for his own convenience and benefit, and if, in the progress of the work, its original character was lost, and it became unlawful, the City is not in fault. We can see no justice or propriety in the rule, that would hold the City under obligation to supervise the building of an area such as this.

But the defendant maintains 'that the owner of a lot who employs a competent and skilful contractor (exercising an independent employment) to erect a building on his lot, is not liable to third persons for injuries happening to them by reason of the negligence of such contractor in the prosecution of the work,' and that this area was not such a nuisance as rendered him liable. How far owners of real estate, or personal property, are answerable for injuries which arise in carrying into execution that which they have employed others to do, has been a subject much discussed in England and this country since the case of Bush vs. Steinman, 1 Bos. & Pul., 404. All the cases recognize fully the liability of the principal where the relation of master and servant, or principal and agent exists; but there is a conflict of authority in fixing the proper degree of responsibility where an independent contractor intervenes. We are not disposed to question the correctness of the rule contended for by the defendant as an abstract proposition. The rule itself has, however, limitations and exceptions, and we cannot see that it is applicable to this case.

'If the owner of real estate suffer a nuisance to be created, or continued, by another on or adjacent to his premises, in a prosecution of a business for his benefit, when he has the power to prevent or abate the nuisance, he is liable for an injury resulting therefrom the third persons.' Clark vs. Fry, (8 Ohio State Rep., 359); Ellis vs. Sheffield Gas Consumers' Co., (2 Ellis & Black, 75 Eng. C. L., p. 767).

This area when it was begun was a lawful work, and if properly cared for, it would always have been lawful; but it was suffered to remain uncovered, and thereby became a nuisance, and the owner of the lot, for whose benefit it is made, is responsible. He cannot escape liability by letting work out like this to a contractor, and shift responsibility on to him if an accident occurs. He cannot even refrain from directing his contractor in the execution of the work so as to avoid making the nuisance. A hole cannot be dug in the sidewalk of a large City and left without guards and lights at night, without great danger to life and limb, and he who orders it dug, and makes no provision for its safety, is chargeable, if injury is suffered.

It is said that Robbins did not reserve control over the mode and manner of doing the work, and is not therefore liable; but the digging this area necessarily resulted in a nuisance-was the result of the work itself-unless due care was taken to make the area safe.

This is a clear case of 'doing unlawfully what might be done lawfully; digging earth in a street without taking proper steps for protecting from injury.' Newton vs. Ellis, (85 Ellis & Black, 58 Eng. C. L., 123).

'If the owner of real estate builds an area in front of his store, he must at his peril see that the street is as safe as if the area had not been built.' Congreve vs. Morgan & Smith, (18 N. Y., 84).

The privilege of making the area was a special favor conceded to Robbins alone, as the owner of the lot, and 'it is a familiar principle that when one enjoys a privilege in consideration that he alone can enjoy the benefit, he is required to use extraordinary care in the exercise of that privilege.' Nelson vs. Godfrey, (12 Illinois, 20).

Robbins, in the exercise of his privilege, did not use even ordinary care. There is no provision in his contract with Button, nor with the men who laid the flagging, or put on the iron grating, that they should provide proper lights and guards. What Button failed to do, by which he is chargeable with negligence, does not appear in the evidence. And Robbins, although repeatedly warned, and having daily supervision over the work by his architect and superintendent, suffers this nuisance to be continued. A case of grosser negligence could hardly be imagined. In the heart of a large City, the owner of a valuable lot, being desirous of adding to the value of a large iron building that he is about to erect by the license (to be inferred, not expressed,) of the corporation, digs an area; leaves it open, without guards or lights; fails to provide with his contractor for the very matter which, if left undone, would make it a nuisance; is told of the dangerous condition of the area; has a direct supervision over it by his superintendent, and yet, when an injury is suffered by the very nuisance which he has created for his own benefit, and continued, insists that he is not in fault; that if blame attaches anywhere, it is to his contractor. If the owner of fixed property is not responsible in such a case as this, it would be difficult ever to charge him with responsibility.

In the cases which were cited by the defendant's counsel, and relied on, was the case of Hilliard vs. Richardson, (3 Gray, 349), and the case of Scammon et al. vs. The City of Chicago, (25th Ills., 424).

Hilliard vs. Richardson was a most elaborate and able discussion of the respondent superior, and the authorities in this country and England were fully reviewed, and we see no reason to question the conclusion at which the Court arrived. But that case and the one at bar were not at all alike. That was a case where the owner of a building contracted with a carpenter at an agreed sum to repair it, and a teamster, who was employed by the carpenter to haul boards, left them in the street in front of the lot and an accident happened. The teamster, when he placed boards in the street, was engaged in a work collateral to that which the owner contracted for-the repair of the building-and in no sense can the injury be said to happen from the doing of that defectively which the owner directed to be done. The owner was correctly not held liable, and one of the grounds on which that Court place their decision was, 'that it was not a nuisance erected by the owner of the land, or by his license, to the injury of another.'

The case of Scammon vs. The City of Chicago, is similar in many of its facts to this case, and is decided differently. That Court held, as we do, that if the 'nuisance necessarily occurs in the ordinary mode of doing the work, the occupant or owner is liable; but if it is from the negligence of the contractor or his servants, then he should alone be responsible.' But the Court also held that 'the omission to cover the opening in the area did not necessarily occur as an incident to the prosecution of the work,' a rule to which we cannot assent, and which we think is opposed by reason and authority.

It was urged at the bar that this Court, in such cases, follows the decision of the local Courts.

Where rules of property in a State are fully settled by a series of adjudications, this Court adopts the decisions of the State Courts.

But where private rights are to be determined by the application of common law rules alone, this Court, although entertaining for State tribunals the highest respect, does not feel bound by their decisions.

Testing the question of the correctness of the charge of the Judge of the Circuit Court to the jury, by the rules and principles we have discussed and established, was there or not error in it?

The following language was used by the Judge in his charge, and was excepted to by the City: 'If, then, the contractors were in possession and control of the premises, with their servants and agents, and were, in their employment, independent of the defendant at the time of the accident, and the defendant was not concerned personally in the negligence which caused it, it follows, from what has been said, that he could not be held responsible for it.' This instruction, in a case where the facts warranted, might have been properly given. But it did not arise out of the facts of this case; was inapplicable to them; was calculated to confuse and mislead the jury on the question of Robbins' liability; and must have misled them, and should not have been given.

A broad rule was laid down, when the very case itself furnished an exception.

Robbins' duty was absolute to see that the area, dug under his direction and for his benefit, should be safely and securely guarded, and failing to do so, his liability attached, and the jury should have been told so.

The city also excepted to so much of the said charge of the Court, as leaves the question of joint negligence on the part of the plaintiff and defendant to the jury.

The City was not in fault, and this exception was properly taken.

The judgment below is reversed, with instructions to award a venire de novo.


text: Talk:Chicago City v. Robbins/Opinion of the Court


text: Devonshire Characters and Strange Events/John Dunning, First Lord Ashburton


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Ward. v. Chamberlain.

This case came up on a certificate of division in opinion between the Judges of the Circuit Court of the United States for the Northern District of Ohio.

The complainants, on the 12th day of November, A. D. 1856, upon appeal from the District Court, obtained a decree in the Circuit Court of the United States for the Southern District of Ohio, against the defendants, Philo Chamberlain and John H. Crawford, in a proceeding by libel for damages sustained by the libellants by a collision on the waters of Lake Erie, between the steamer Atlantic, belonging to the libellants, and the propeller Ogdensburg, belonging to said Chamberlain and Crawford, whereby the steamer was sunk and lost:

The case was taken by appeal to the Supreme Court of the United States, and the decree of the Circuit Court there affirmed.

On the 7th day of July, 1859, a joint decree was entered in said Circuit Court, upon the mandate of the Supreme Court, and by the agreement of the parties, against Chamberlain and Crawford, and also against the defendants, I. L. Hewitt, John H. Chamberlain and George W. McNeil, their sureties in the appeal to the Supreme Court of the United States. It was stipulated and agreed between the libellants and the defendants in the last-named decree, that Philo Chamberlain and John H. Crawford, the original defendants in the libel should make certain payments periodically on account of the last-named decree, that if such payments should be punctually made, no execution should issue; but that in default of any such payment being made as required by the agreement, the complainants might thereupon proceed to collect the amount due and unpaid, as they should see fit. Two payments were made and two defaults afterwards occurred: complainants caused execution to issue upon the decree, against the goods and chattels, lands and tenements of the defendants therein; the Marshal found no goods or chattels whereon to levy, and for want of such goods and chattels he levied upon the lands of the defendants, situated in the Northern District of Ohio, and described in the bill. The other defendants claimed rights and interests in, and liens upon said lands. The defendants had no goods or chattels liable to execution, and no lands or tenements in the State of Ohio, other than those levied upon and described in the bill. The prayer of the bill was, for discovery, that the rights of the parties and the dates and validity of their several liens in respect of said lands might be ascertained, that the lands might be sold and the proceeds applied, so far as could of right be done, to the payment of the amount due, and for general relief.

To this bill the defendants filed a general demurrer.

A hearing was had on the questions raised by the demurrer in the Circuit Court at the July Term, 1860, and the opinions of the Judges being opposed, the questions were certified to this Court for decision.

The points of law upon which the Circuit Court divided are distinctly set forth by Mr. Justice Clifford in the opinion of this Court.

Mr. Newberry, of Ohio, for Complainants.

Mr. Spalding, of Ohio, for Defendants.

Mr. Justice CLIFFORD.

title: Ward. v. Chamberlain.


text: Talk:Ward. v. Chamberlain.

title: Talk:Ward. v. Chamberlain.


text:
Ward. v. Chamberlain./Opinion of the Court

This is a bill in equity, and the case comes before the Court on a certificate of division in opinion between the Judges of the Circuit Court of the United States for the Northern District of Ohio. According to the transcript the bill of complaint sets forth that the complainants, on the 12th day of November, 1856, upon appeal from the District Court of the United States, obtained a decree in the Circuit Court for the Southern District of Ohio for the sum of $36,000 against the two respondents first named, in a proceeding by libel, filed in the District Court on the 27th day of October, 1852, for damages sustained, as alleged in the libel, by means of a collision on the waters of Lake Erie, between the steamer Atlantic, belonging to the libellants, and the propeller Ogdensburg, belonging to the aforesaid respondents, whereby the steamer was sunk and lost. Complainants also allege that the case was taken by appeal to this Court, and that the decree of the Circuit Court was here affirmed; that on the 7th day of July, 1859, when the mandate of this Court was received and filed in the Circuit Court, a joint decree, by the agreement of the parties, was entered there against the original respondents and their sureties on the appeal to this Court; that the parties to the last named decree stipulated and agreed between themselves that the original respondents should make certain payments at stated times on account of the decree, and that if such payments were regularly and punctually made, no execution should issue on the decree, but that they also stipulated and agreed that in default of any such payment as required by the agreement, the complainants might thereupon proceed to collect the amount due and unpaid as they should see fit.

They also allege that two payments of $1,000 each were duly made under the stipulation and agreement, but that the aforesaid respondents subsequently made default, and when a second default had occurred, the complainants caused execution to issue upon the last named decree against the goods and chattels, lands and tenements of the respondents in that decree, and delivered the same to the Marshal, and that the Marshal, finding no goods or chattels of the execution debtors, and for want of such, levied the execution upon certain parcels of land belonging to them, situated in the Northern District of Ohio, and which are particularly described in the bill of complaint. Rights and interests in, and liens upon the lands are claimed by the other respondents, as the complainants allege, in regard to which they, the complainants, are not particularly advised; and they also allege that the respondents owned the lands levied upon and described in the bill of complaint at and before the time of the rendition of the first named decree, and have so owned the same ever since that time, and that they have no other lands or tenements in the State, and have no goods or chattels liable to execution.

Prayer of the bill of complaint is for discovery, and that the rights of the parties and the dates and validity of their several liens in respect of the lands may be ascertained, and that the lands may be sold and the proceeds applied so far as can of right be done, to the payment of the amount due upon the decrees and for general relief. To the bill of complaint the respondents in the decrees demurred and the complainants joined in demurrer, thereupon the following questions of law occurred before the Court, in regard to which the opinions of the Judges of the Court were opposed.

1. Whether either of the decrees was a lien upon the real estate of the respondents therein who owned such real estate as aforesaid.

2. Whether an execution can be issued upon a decree in admiralty in Ohio against the lands of the respondents, they having no goods and chattels liable to execution to satisfy the same.

3. Whether the issuing and levying of the execution in this case, as aforesaid, were not nullities, and whether the levy of the execution in anywise bound the lands upon which the same was levied.

4. Whether real estate can be reached by proceedings in chancery to satisfy a decree in admiralty in Ohio, where the respondent has no goods or chattels liable to execution.

I. Provision is made by the Act of the 29th of April, 1802, that whenever any question shall occur before a Circuit Court, upon which the opinions of the Judges shall be opposed, the point upon which the disagreement may happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the Judges, and certified under the seal of the Court, to the Supreme Court at their next session to be held thereafter, and shall by the said Court be finally decided. 2 Stat. at Large, 156. Such certificate, as has repeatedly been held by this Court, brings nothing before this Court for its consideration but the points or questions certified, as required by the 6th section of the act. Defective certificates are sometimes sent up, but in such case the Court uniformly refuses to certify any opinion, and remands the cause for further proceedings, holding, under all circumstances, that nothing can come before this Court, under that provision, except such single definite questions as shall actually arise and become the subject of disagreement in the Court below, and be duly certified here for decision. Ogle vs. Lee, (2 Cran., 33); Perkins vs. Hart's Exr., (11 Whea., 237); Kennedy et al. vs. Georgia State Bank, (8 How., p. 611.) All suggestions, therefore, respecting any supposed informality in the decree, or irregularities in the proceedings of the suit, are obviously premature and out of place, and may well be dismissed without further remark; because no such inquiries are involved in the points certified, and by all the decisions of this Court matters not so certified are not before the Court for its consideration, but remain in the Court below to be determined by the Circuit Judges. Wayman vs. Southard, (10 Whea., 21); Saunders vs. Gould, (4 Pet., 392.) Such other matters, undoubtedly, may be brought here for revision by another certificate of division in an opinion like the present, or by an appeal after final judgment, but nothing of the kind is here now for the consideration of the Court.

II. Recurring to the questions certified in the transcript, it is obvious that the first three involve the same general considerations, and present the important inquiries-1. Whether a decree in admiralty for the payment of money, rendered in a Federal Court, in a suit in personam under the circumstances stated, is a lien upon the lands of the respondents in the decree, and, if so, then-2. Whether an execution issued on the same may, for the want of goods and chattels of the execution debtor, be lawfully levied on his real estate. Libellants, under the 21st rule in admiralty, adopted at the last session of this Court, may have a writ of execution in the nature of a fieri facias in all cases of a final decree for the payment of money, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate of the defendant or stipulator. Execution, however, was issued upon the decree described in the bill of complaint in 1860, before the present rule was adopted, and while the old rule adopted in 1845 was in operation. By that rule it was provided that the libellant might, at his election, have an attachment to compel the defendant to perform the decree or a writ of execution in the nature of a capias, and of a fieri facias, commanding the Marshal or his deputy to levy the amount thereof of the goods and chattels of the defendant, and for want thereof to arrest his body to answer the exigency of the execution. Authority was given to the Courts of the United States, by the 17th section of the Judiciary Act, to make and establish all necessary rules for the orderly conducting of business in the said Courts, provided such rules were not repugnant to the laws of the United States; and by the 7th section of the Act of the 2d of March, 1793, additional authority was conferred upon the several Courts of the United States to make rules and orders for their respective Courts directing certain prescribed proceedings, and other matters in the vacation, and otherwise in a manner not repugnant to the laws of the United States, and to regulate the practice of said Courts respectively for the advancement of justice, and to prevent delays in the proceedings. 1 Stat. at Large, pp. 83, 335.

Full power and authority were also given to this Court by the 6th section of the Act of the 23d of August, 1842, to prescribe, regulate, and alter the forms of writs and other process to be used and issued in the District and Circuit Courts, and the forms and modes of framing and filing libels, bills, answers, and other pleadings and proceedings in suits at common law, or in admiralty and in equity, pending in those Courts, and also the forms and modes of taking and obtaining evidence, and of obtaining discovery, and of proceeding to obtain relief, and of proceeding before trustees appointed by the Court, and generally to regulate the whole practice of the said Courts so as to prevent delays and promote the other objects specified in the section. 5 Stat. at Large, 518. None of those provisions, however, authorize this Court to adopt rules making judgments or decrees for the payment of money a lien on land where no such charge is created by law, or to displace any such right where the same is conferred or recognized by an Act of Congress. Remarks are to be found in the opinion of the Court in Beers et al. vs. Haughton, 9 (Pet., 360), which give some countenance to that theory, but the remarks were not necessary to the adjudication of the matter in controversy, and evidently should be understood as referring to the examples previously mentioned in the opinion of the Court, where process had been modified to make it conform to State laws adopted by rule of Court. Congress, say the Court, may adopt such State laws directly or by substantive enactment, or they may confide the authority to adopt them to the Courts of the United States; and the Judge who delivered the opinion, in enforcing the preposition, went on to say that the Courts may by their rules not only alter the forms, but the effect and operation of process, both means and final, so that it may reach property not before liable, or may exempt property previously subject to such process.

Explained as above, the remarks are perhaps without objection, but it cannot for a moment be admitted that any rule adopted by this Court, merely as such, can enlarge, diminish, or vary the operation and effect of mesne or final process upon the property of the debtor in respect to the matter under consideration. Although a lien on land constitutes no property or right in the land itself, still it confers a right to levy on the same to the exclusion of other adverse interests acquired subsequently to the judgment, and when the levy is actually made on the land affected by the lien, the title of the creditor generally relates back to the time of the judgment, so as to cut out intermediate incumbrances. Conrad vs. ''The Atlantic Ins. Co., (1 Pet., 443); Massingill vs. Downs'', (11 How., 767.) Different regulations, however, prevail upon the subject in different jurisdictions, and in some of the States neither judgments nor decrees for the payment of money, except in cases of attachment on mense process, create any preference in favor of the creditor until the execution issuing on the same has been duly levied on the land. Reference is made to these various regulations as confirming the proposition that rules of Court can have no effect to create such a right, or to displace it where it has been conferred by the Legislature.

III. Two errors, as was supposed, existed in the old rule, and it was on that account that it was abolished and the new one was substituted in its place. Arrest of the body of the debtor was improperly allowed, and the remedy of the creditor against the property of the debtor was improperly restricted. 5 Stat. at Large, pp. 321, 410; 4 Stat. at Large, 281. Repeal of the old rule corrected one of the supposed errors and the new rule was adopted to correct the other, so that the practice of the Admiralty Courts upon both subjects might conform to the existing provisions of law. Such were the views of the Court at the time the alteration was made in the rule, but it is insisted by the respondents that decrees in admiralty, although rendered in suits in personam and for the payment of money, are not in any case a lien on land under the laws of Congress. They do not deny that judgments and decrees in equity, for the payment of money, are a lien on land in the State of Ohio; nor that, by the laws of Congress, such judgments and decrees in the Federal Courts follow in that respect the laws of the State in which the same were rendered or pronounced.

Argument in support of the first proposition is certainly unnecessary, because it is the subject of express legislation. Code, sec. 421; Swan's Stat., 675. Laws to that effect were passed at a very early period in the history of the State, and they appear to have been continued to the present time. Repeated decisions of this Court also have established the doctrine, that the lien of judgments and decrees in the Federal Courts arises out of the adoption of the State laws upon that subject, and that the lien may be considered as a rule of property under the thirty-fourth section of the Judiciary Act. Clements vs. Berry, (11 How., 411); United States vs. Morrison, (4 Pet., 124); Ralston vs. Bell, (2 Dall, 158). To the same effect, also, is the decision of Mr. Justice Grier, in Lombard vs. Bayard, (1 Wall, Jr., 96), wherein he held: '1. That the lien of judgments in the Courts of the United States does not result from any direct legislation of Congress on that subject. 2. That under the Judiciary Act, which ordains that the laws of the several States shall be the rules of decision at common law, the Courts of the United States' have uniformly adopted the principles of State policy and jurisprudence on the subject of the lien of judgments, so far as the same were applicable, treating them as rules affecting real property, and its transmission, whether by descent or purchase. Regarding those propositions in the form first stated as settled and undeniable, nothing remains for consideration on this branch of the case except to inquire and ascertain whether or not decrees in admiralty for the payment of money stand upon the same footing as decrees in equity; for if they stand upon the same, then it is clear that the first three questions must be answered in the affirmative, and if not, then they must be answered in the negative.

4. Expressions are to be found in one or more of the cases referred to which countenance the idea that the State laws in respect to the lien of judgments and decrees were adopted by the Courts of the United States, but upon a closer examination of the subject it will appear, we think, that those laws are recognized and substantially adopted by the Acts of Congress regulating process in the Courts of the United States. Authority was given to all the Courts of the United States by the 14th Section of the Judiciary Act to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. Provision was also made by the 2d Section of the Act of the 29th of September, 1789, that the forms of writs and executions, except their style and modes of process, should be the same in each State, respectively, as were then used or allowed in the Supreme Court of the same; but it was provided that the forms and modes of proceedings in causes of equity and admiralty and maritime jurisdiction should be according to the course of the civil law. Power to issue process, mesne and final, was conferred upon all the Courts of the United States by the first provision, but the forms of process in suits at common law and the forms and modes of proceedings in equity and admiralty and maritime causes were prescribed by the second. Discrimination was made between suits at common law and suits in equity and admiralty, but the forms and modes of proceedings in the two latter were referred to the civil law. Expiring, as the last named Act did, at the end of the next session after which it was passed, further legislation became necessary, and Congress accordingly passed the Act of the 8th of May, 1792, confirming the forms of writs, executions, and other process then used in the Courts of the United States in suits at common law, but declaring, in effect, that the forms and modes of proceeding in suits of equity, and in those of admiralty and maritime jurisdiction, should be according to the principles, rules, and usages which belong to Courts of Equity and to Courts of Admiralty, respectively, as contradistinguished from Courts of common law. Certain exceptions are specified in the same section, and the whole provision is made subject to such regulations as the Supreme Court of the United States shall think proper, from time to time, by rule, to prescribe to any Circuit or District Court concerning the same. (1 Stat. at Large, 276).

Two cases at least came before this Court involving the construction of that provision and its validity. Those cases among other things affirm: 1. That the States have no authority to control or regulate the proceedings in the Courts of the United States, except so far as the State Process Acts are adopted by Congress, or by the Courts of the United States under the authority of Congress. 2. That the foregoing provision adopted the forms of writs, executions, and other process of the States as existing in 1789, subject to such alterations as the Courts of the United States might make, but not subject to alterations since made in the State laws. 3. That the laws of the United States authorize the Courts of the Union so to alter the form of the process of execution then used in the State Courts as to subject to execution lands and other property not then subject to execution by the State laws in force at that time. Wayman vs. Southard (10 Whea., 41, 43); Bank of U.S. vs. Halstead, (10 Wheat., 63). In enforcing the third proposition, Mr. Justice Thompson in the last case said it is understood that it has been the general, if not the universal, practice of the Courts of the United States so to alter their executions as to authorize a levy upon whatever property is made subject to the like process from the State Courts, and under such alterations many sales of land have no doubt been made which might be disturbed if a contrary construction should be adopted. Both of those cases were decided in 1825, and at the same term this Court held, in the case of Manro vs. Almedia, (10 Whea., 490,) that the proceedings in cases of admiralty and maritime jurisdiction, under the beforementioned Process Act, were to be according to the modified admiralty practice of our own country, and that it was not a sufficient objection to the issuing of the process of attachment that it had fallen into disuse in the parent country. Such was the state of the decisions of this Court when the Act of the 19th of May, 1828, was passed. 4 Stat. at Large, 278. Regulation of mesne process is the subject of the first section, commencing with the forms of mesne process in suits at common law in the Courts of the United States held in those States admitted into the Union since the date of the first process act. Forms of mesne process in those Courts are required to be the same in each of the said States respectively 'as are now used in the highest Court of original and general jurisdiction of the same.' Separate provision is also made in the same section in respect to the forms of mesne process in proceedings in equity and in those of admiralty and maritime jurisdiction. Repetition of those regulations is unnecessary, as they are substantially the same as those of the former act, except that the regulations relate solely to mesne process. Right of imparlance also is made, by the second section of the act, to depend in certain cases upon State laws. Where judgments are a lien upon the property of the defendant, and where, by the laws of the State, defendants are entitled in the Courts thereof to an imparlance of one term or more, the provision is that the defendants in actions in the Courts of the United States, holden in such State, shall be entitled to an imparlance of one term. showing that it was the intention of Congress to prevent a creditor suing in the Federal Courts from obtaining an advantage over another creditor suing in the State Courts. Bearing in mind that the first section of the act under consideration has respect solely to the forms of mesne process in the several Courts of the United States, and that the provision specifies and prescribes the source from which the forms of such process shall be derived in suits of admiralty and maritime jurisdiction, as well as in suits at common law and in equity, we come to the examination of the third section of the same act, which provides that writs of execution and other final process issued on judgments and decrees rendered in any of the Courts of the United States, and the proceeding thereupon shall be the same, except their style, in each State respectively, as are now used in the Courts of such State, saving to the Courts of the United States in those States in which there are not Courts of Equity, with the ordinary equity jurisdiction, the power of prescribing the mode of executing their decrees in equity by rules of Court.

Courts of justice may construe a legislative provision but they cannot repeal what is expressly enacted. When Congress, in plain and unambiguous terms declares that writs of execution on decrees rendered in any of the Courts of the United States, and the proceedings thereupon, shall be the same as are now used in the Courts of such State, it is not possible for this Court to hold that the decrees of one of the Courts of the United States are not embraced in that provision; especially not, as the very Court whose decrees it is said are excluded from the provision is specifically mentioned in the first section of the same act as one of the Courts of the United States, and its proceedings there made the subject of special and material regulation. Exclusive original jurisdiction in admiralty and maritime cases is conferred upon the District Courts of the United States, but the Circuit Courts hear such cases on appeal, and, as matter of daily practice, render decrees thereon for the payment of money; and it is not to be doubted, we think, that such decrees are as much within the provision under consideration as decrees in equity; and if so, no reason is perceived why the same rule should not be applied to decrees of a like character rendered in the District Courts. Undoubtedly Congress intended by that provision to adopt the State laws in respect to the proceedings on final process as they existed at the date of the act, and the effect of the enactment, or one of its effects, was to render judgments and decrees for the payment of money rendered in the Federal Courts a lien on the land of the debtor in all cases and under like circumstances as when rendered in the State Courts. Under the earlier process acts this Court twice decided that the laws of the States furnished the rule of decision in respect to the lien of judgments and decrees rendered in the Federal Courts upon the land of the debtor, and since the passage of the act under consideration it has been twice affirmed by this Court as a matter of history that the act was passed to confirm the view expressed in those decisions. Beers et al. vs. Haughton, (9 Pet., 361); Ross et al. vs. Duval, (13 Pet., 64).

Perfect coincidence of opinion upon the subject appears to have prevailed throughout between Congress and the Court, and on all sides apparently the endeavor has been to assimilate the proceedings in the Federal Courts for the levying of executions issued on judgments and decrees for the payment of money to those prevailing in the Courts of the States. Strong confirmation as to the views of Congress upon the subject in derived from the 4th section of the Act of the 4th of July, 1840. 5 Stat. at Large, 393. By the fourth section of that act it is provided, that judgments and decrees hereafter rendered in the Circuit and District Courts within any State, shall cease to be liens on real estate or chattles real in the same manner and at like periods as judgments and decrees of the Courts of such State now cease by law to be liens thereon. District Courts, as is well known, exercise no jurisdiction in equity; so that the inference is a very strong and indeed a conclusive one, that the reference to decrees, so far as that Court is concerned, is solely to decrees in admiralty for the payment of money.

Imprisonment for debt also and the computation of interest upon judgments in all civil cases, both in the Circuit and District Courts, are by Acts of Congress expressly referred to the laws of the State for the rule of decision and the ascertainment of the rights of the parties. 5 Stat. at Large, pp. 320, 410, 515. Usage, however, it is said, is opposed to such a construction of the provisions under consideration, and reference is made to authorities to show that it England an execution issued on a decree in the admiralty never runs against the land of the debtor, which may well be admitted, but the reason for the restriction must not be overlooked, which is, that Courts of Admiralty in that country are not regarded as Courts of Record. Under the Constitution, the judicial power of the United States is vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Such judicial power extends to all cases of admiralty and maritime jurisdiction, as well as to the cases of law and equity described in the Constitution.

When the judicial system of the United States was organized, exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction was conferred upon the District Courts. Appeals in certain cases were allowed to the Circuit Court, but neither an admiralty or an equity cause could be brought here from the Circuit Court in any other mode than by writ of error. 1 Stat. at Large, 83. Later regulations allow appeals, but they place causes in equity, and admiralty and maritime jurisdiction, upon the same footing. 2 Stat. at Large, 244.

Circuit Courts, as well as District Courts, were created by the Act of Congress establishing the judicial system of the United States, and the latter as well as the former are Courts of Record. No one ever doubted the fact, and consequently it is not necessary to enter into any argument to prove it. These considerations lead necessarily to the conclusion that the answer to the first three questions must be in the affirmative.

5. Before proceeding to answer the fourth question submitted, it becomes necessary to advert very briefly to the state of facts bearing upon the point as exhibited in the transcript. Execution was issued on the decree in favor of the complainants, and the marshal duly levied the same upon the several parcels of land described in the bill of complaint. They are, therefore, interested in the title to the subject-matter in controversy, and inasmuch as the statement of the case shows that rights and interests in and liens upon the lands of a conflicting character are claimed by the other parties, they, the complainants, were entitled to the discovery and to so much of the relief prayed for as has respect to the ascertainment and determination of the rights and interests of the parties and the dates and validity of their liens upon the said lands. Equity will not allow a title to real estate, otherwise clear, to be clouded by a claim which cannot be enforced either at law or in equity, and consequently will interfere in behalf of the holder of the legal title to remove a cloud on the same, or an impediment or difficulty in the way of an effectual assertion of his rights in a Court of law. Such interference cannot be sustained unless the complainant shows some title or interest in the land; but it makes no difference whether such title or interest was acquired by the levy of an execution issued on a judgment at law, or on a decree in equity or admiralty for the payment of money. Complainants' rights and remedies are precisely the same as they would have been if the execution levied on the land had been issued on a judgment at law or a decree in equity for the payment of money. Jurisdiction in equity to remove a cloud from the title of the complainant is fully maintained by the modern decisions of the Courts, and so generally is the principle acknowledged, that all doubt upon the subject may be considered as put at rest. 1 Story Eq. (8th ed.) secs. 700, 705; Hamilton vs. Cummings, (1 John. Ch. R., 522); Pettit vs. Shepherd, (5 Paige Ch. R. 501).

Where the respondents claimed an unfounded lien on certain real estate of the complainant, and it appeared that such claim prevented purchasers of the estate from making payment of the stipulated price, it was held in Chipman vs. Hartford, (21 Conn., 488), that the complainant was entitled to a discovery and to have the cloud removed from his title; and, in enforcing that conclusion, the Court say that where an instrument is outstanding against a party which is void, or an unfounded claim is set up, which he has reason to fear may at some time be used injuriously to his rights, thereby throwing a cloud over his title, it is a well recognized principle that equity will interfere and grant the appropriate relief. Downing vs. Wherin, (19 N. H., 91); Tanner vs. Wise, (3 P. Wms., 296); Overman vs. Parker, (1 Hemp., 692); Clark, et al., vs. Smith, (13 Pet, 203); Lounsbury vs. Purdy, (18 N. Y., 515). Applying these principles to the present case it is clear that the complainants were entitled to a discovery and to have the cloud removed from their title, but equity will not interfere under the circumstances stated, to decree that the lands shall he sold and the proceeds applied as prayed in the bill of complaint. Affirmative answers must be certified to the first three questions, and to the fourth, that the complainants, under the demurrer, are entitled to so much of the relief prayed for as has respect to the removal of the cloud upon their title to the land described in the bill of complaint, but that the real estate mentioned cannot be reached by proceedings in chancery to satisfy the aforesaid decree.


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Trustees of the Wabash and Erie Canal Company v. Beers

Appeal from the Circuit Court of the United States for the District of Indiana.

Mr. Usher, of Indiana, for Appellants.

Mr. Gillet, of Washington City, for Appellees.

Mr. Justice MILLER.


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Trustees of the Wabash and Erie Canal Company v. Beers/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the District of Indiana.

The Government of the United States having granted to the State of Indiana certain lands to aid in the construction of a canal, designed to unite the waters of Lake Erie with those of the Wabash river, that State caused the route to be surveyed and located, and an estimate to be made of the cost of construction, which was calculated at the sum of $1,081,970.

On the 7th day of January, 1832, an act was passed, which approved and adopted this survey and estimate, established a Board of Canal Commissioners, and authorized them to borrow the sum of $200,000, to be used in making said canal. The fifth section of this act is as follows: 'That for the payment of the interest, and redemption of the principal of the sums of money which may be borrowed under the authority of the General Assembly, for the construction of said canal, to the extent of the estimated cost thereof, in the first section of this act stated, there shall be and are hereby irrevocably pledged and appropriated, all the moneys in any manner arising from the lands, donated by the United States to this State, for the construction of said section of said canal, the canal itself, with the said portion of land thereto appertaining, or as much thereof as will realize by sale the sum borrowed, and all privileges thereby created, and the rents and profits thereof belonging to the State, and the net proceeds of tolls collected on said canal, or any part thereof, as finished; the sufficiency of which for the purposes aforesaid, as above allowed and provided for, the State of Indiana doth hereby irrevocably guarantee.'

Under this act there were issued two hundred bonds for one thousand dollars each, two of which are held by complainant in this suit; and the decree which was rendered in his favor, was for the interest due and unpaid on them.

In 1834, the Legislature authorized another loan of $400,000, for the benefit of the canal, for which the act again pledged the canal and the lands granted by the Federal Government, and the State guaranteed the sufficiency of the security.

In 1835, by another act, the Legislature contracted a third loan of $227,000, for the benefit of the canal. But for this it did not pledge the canal, but only the faith of the State.

In 1836, a law was passed providing for a general system of internal improvement, which authorized the State to borrow ten millions of dollars, for which sum, in gross, she pledged her canals, railroads, turnpikes, and the tolls and water rents arising from them; and by the tenth section of that Act an additional loan of $500,000 was authorized for the benefit of the canal, for which the canal, its lands and resources, were again pledged as security.

Of some one of these later loans, probably the ten million loan, as they are called internal improvement bonds, the plaintiff became the owner of thirteen bonds, of $1,000 each.

Under the pressure of the large debt contracted by this last act, and of the general financial distress which followed shortly after it was created, the State found herself unable to pay the interest on her bonds, her credit seriously impaired, and her citizens weighed down with heavy taxation. In this state of her affairs, she came forward in 1846 with a propostion to her creditors, which is to be found embodied in the Act of January 19th, 1846, and the Supplementary Act of January 27th, 1847.

The principal features of these acts, so far as they concern our present purpose, are, that the bonded debt of the State, except its bank stock bonds, should be equally divided between the State and the Wabash and Erie Canal; that the bonds then out should be surrendered, and in place of them the holders should receive one-half in State stock certificates, bearing five per cent. interest; and for the other half, Wabash and Erie Canal stock certificates, bearing the like rate of interest. For the security of the payment of the latter, the act provided that the entire canal, its lands, revenues, and property of every description, should be conveyed to trustees, whose powers and duties were therein prescribed. As a means of completing the canal and rendering it productive, the parties who surrendered their bonds and received stock certificates in lieu thereof, were required to pay ten per cent. on the amount of the new certificates for that purpose. For this the Act also gave them a lien on the canal and its revenues in the hands of the trustees. These statutes were not to take effect until $4,000,000, which was about half of the bonds of the State, were surrendered; and the canal was not to be transferred to the trustees until $800,000 had been subscribed by holders of certificates for its completion. The creditors of the State generally accepted this arrangement. The necessary amount of bonds was surrendered to give effect to the act, and the necessary sum was subscribed to authorize the transfer of the canal to the trustees. The plaintiff surrendered his thirteen bonds of the issue of the Act of 1836, and paid his subscription of ten per cent., but he did not surrender his two bonds issued under the Act of 1832, nor does it appear that any bonds of that issue were surrendered.

It is claimed by counsel for appellant, that $981,970 of bonds of the same class of the two retained by plaintiff were surrendered. This is founded on the idea, that of the bonds issued under the Acts of 1834, 1835, and the 10th section of the Act of 1836, so many are to be considered as entitled to the security provided by the Act of 1832 as will make up with the $200,000 first issued, the estimated cost of the work mentioned in the latter act. It is difficult to see how this can be maintained, if it be in any way material to the determination of the case. The bonds which were issued under these acts seem very clearly to depend on the respective acts under which they were issued, for any lien they may have had, on the canal, its lands and revenues, and not on the Act of 1832; and the Act of 1835 gave no lien at all on the canal or anything appertaining to it, but in place thereof pledged the faith of the State for the payment of the debt and interest. The purchasers of these bonds understood it so no doubt, for it appears from the record, that while all of the bonds issued under acts subsequent to 1832 were delivered up, and stock certificates received for them, none of the $200,000 of that issue was so surrendered. But one reason can be imagined for this, namely, that the security for those first issued was sufficient, and the holders of them did not believe they could improve their condition by an exchange for stock certificates, while the holders of the latter bonds believed that with the $200,000 lien prior to theirs, they would improve their condition by taking the State for one-half the debt and the canal stock certificates for the other half. We think their conclusions were sound, and that these several loans were liens of which the first was paramount, and the others entitled to preference in the order of their date.

If then these bonds were a lien on the canal, its lands and revenues, paramount to all others, the Legislature of Indiana, (whatever it may have designed to do,) could not divest that lien or postpone it to others, because it was the result of contract, and was protected by the provision of the Constitution of the United States against impairing the obligation of contracts. This is not controverted, but it is said that plaintiff, by his own act, has done that which the Legislature could not do; in delivering up his thirteen bonds, which were either no lien or at most a secondary one, and receiving the canal stock certificates for half of them and State stock certificates for the other half, and by payment of the ten per cent. on them required by the law. This idea is strongly urged by counsel for appellant. It is the only ground going to the merits on which plaintiff's right to a decree is resisted, and we have given it our full consideration. It presents itself in two aspects, each of which is entitled to a separate examination. It is said first, that by the acts above mentioned, the plaintiff established a relation between himself and other parties who had made a like surrender of bonds and a like advance of money, which makes it an act of bad faith in him to assert in this suit, his right to priority of payment for these bonds, when the result will probably be to deprive those who took the canal certificates of all hope of payment, either for the certificates, or for the money advanced to complete the canal.

If the parties had stood in all respects in the same attitude towards the fund, which was their common security at the time of these transactions, and the plaintiff were now seeking to appropriate that fund to the payment of his debt exclusively, there would be great force in the argument. But such was not the case.

The plaintiff held a double relation to that fund. He had, in common with certain persons, a debt, which was a first and paramount lien on it, and he had, in common with certain other persons, a debt which was no lien, or if a lien, only secondary, and of little value. In common with all those who held the prior lien, he refused to surrender it. In common with those who held the other debts he surrendered his, and united with them in such arrangements as were supposed to be for their mutual benefit. There was no concealment of his interest in the debt which had the prior lien, nor of the existence of that lien. The number and character of the bonds which were liens on the canal were matters of public record, accessible to every body, and all prudent men must have acted in these matters in reference to their existence. It could make no difference to the parties who took the certificates of stock for these bonds, in whose hands the prior lien was found. Its amount and its validity were the same, whether in the hands of one who had surrendered other bonds, or of those who had surrendered nothing. We do not attach any importance to the idea that other persons may have been influenced by his example to surrender their bonds, so long as there is no evidence that he used undue persuasion, or made improper representations.

If we were at liberty to inquire into the motives which induced parties to surrender their bonds, and pay their ten per cent., they would probably be found quite consistent with a recognition of plaintiff's right under his prior bonds. The security which they had was manifestly of little value. The canal was incomplete. It paid no interest, and as matters then stood would probably never pay any of the interest or principal. By surrendering these bonds they received State stock for half the amount, for which the State pledged her integrity to provide by taxation, payment of both interest and principal. By advancing $800,000 it was believed that the canal would be completed, and rendered productive property, and if so, it was expected to pay off all the bonds of the issue of 1832, and then remain ample security for the $800,000 advanced, and for principal and interest of the canal stock certificates. These calculations seemed likely to be justified by the result, until the wonderful multiplication of railroads ruined the canal by competition. It was a common effort on the part of those who had the inferior class of bonds, to make a security which was not satisfactory, yield as much as possible; and the fact that one of those had a paramount security on the same fund known to the parties, cannot certainly be called an act of bad faith in him, since he risked his last investment as they did; nor can we perceive that the failure of the scheme, by events not foreseen by any one, should deprive him now of the rights which he then reserved.

But, in the second place, it is maintained that the effect of the Acts of 1846, and 1847, when so far complied with as was necesnessary to put them in force, was to destroy all liens on the canal which were not protected by them, and that no protection was afforded in any case, unless the bonds were surrendered and the new security taken. And while it is conceded that if plaintiff had remained entirely aloof, the act could not have had that effect as to him, it is insisted that his surrender of thirteen bonds, and acceptance of the stock certificate for them, must be held to imply his assent to all the provisions of these acts, including those which destroy his priority of lien for his two bonds of 1832.

If any such implication arises from the transaction, it must be one of law, and not of fact; for it would be absurd to suppose that while he consented to the destruction of his security for those two bonds, he failed to surrender them, and get the faith of the State for one-half, and a lien on the canal for the other. Such a presumption must be one of those necessary legal presumptions which the law will not allow to be disproved by any evidence whatever.

So far as he surrendered bonds and received certificate of stock for them, it is beyond doubt that he accepted all the provisions which related to those bonds; but any presumption that he consented to waive other rights, must be based on the ground that the acceptance of those certificates was incompatible with the assertion of his rights in reference to the bonds which he did not surrender. Those statutes did not require that all persons who held bonds should surrender them, nor that all who did so should surrender all they had. They provided that those who chose to do so might deliver up their bonds and accept the certificates of stock, but nothing was obligatory on the State or the creditors until $4,000,000 of bonds were surrendered. When that event occurred, the arrangement was binding. But to what extent? We can see no reason for saying it was binding beyond the extent of the bond so exchanged, as between the State and the parties to the transaction. In regard to the State, as to his associates in the matter of the subscriptions, the plaintiff held a two-fold relation; and the fact that he agreed to accept for his thirteen bonds a certain compromise, can scarcely be said to afford an implication, incapable of refutation, that he abandoned his claim under the two other bonds. Nor do we perceive that his surrender of thirteen bonds, and payment of $1,300 toward the completion of the canal, was inconsistent with his retaining and insisting on his lien for the other two bonds of a different class.

It is unnecessary, however, to pursue this branch of the inquiry further, because we are satisfied that neither the Act of 1846, nor the supplementary Act of 1847, were in anywise intended to destroy the priority of lien which belonged to the Wabash and Erie Canal bonds, so called. This phrase is applied in the Act of 1847, to the bonds issued under the Acts of 1832, 1834, 1835, and the $500,000 issued under the 10th section of the Act of 1836. In all of those Acts, except that of 1835, the canal was pledged as security for the bonds, and the State guaranteed the sufficiency of the security. In section eight of the Act of 1846, in which the power is given to the Governor to convey the canal to the trustees, and which also goes on to provide in five distinct sub-sections, for the order of payment out of the canal fund, there is this very clear and explicit declaration: After describing the manner of conveyance, and what is to be conveyed, including the canal and all its resources, these words are added: 'Subject, nevertheless, to all existing rights and equities against the State on account of the same, or any part thereof, or liabilities of the State growing out of or in relation thereto.'

In the supplemental Act of 1847, section 10, the order of distribution of the funds arising from the canal resources is somewhat changed, but after the ninth and last paragraph on that subject there is this language:

'And it is hereby declared, that such sums shall from time to time be paid and applied as soon as conveniently may be after the receipt thereof, saving the just rights of the holders of bonds now outstanding, known as the Wabash and Erie Canal bonds as provided in the eighth section of this Act.'

We cannot resist the conviction that these provisions were intended to preserve the lien which the bond-holders of this class had, notwithstanding the transfer of the canal to other hands, for other purposes. The bonds for which the State had guaranteed that the canal was a sufficient security, certainly constituted an 'existing right and equity against the State,' on account of the canal, and a 'liability of the State growing out of it.' And no where more appropriately than in an Act transferring the canal to other hands, for other purposes, could the State recognize distinctly the lien which it had created, and the sufficiency of which it had guaranteed. What were the just rights of holders of bonds outstanding and known as the Wabash and Erie Canal bonds in January, 1847? Certainly, speaking in reference to the canal fund, of which that Act was making a disposition, their right was to have it appropriated to the payment of the accruing interest on these bonds, and the bonds themselves when due, according to their priority of lien. A very ingenious argument is made by the learned counsel for the appellant, to show that these provisions were not intended to apply to this lien, and we are referred to the case of the State vs Board of Trustees, (4 Ind. R., 495), to support that view. But that case, as we understand it, decides nothing more, than that the holder of one of these bouds who had surrendered it for a canal stock certificate, had a right to have his interest paid out of the funds arising from that part of the canal east of Tippecanoe river, before it was appropriated to the completion of the canal to Evansville, under the provision of the Act of 1846.

Our construction of these acts is supported by the facts that the State could not destroy the lien if it had designed to do so, that it was reasonable and just that she should protect a lien, the sufficiency of which she had guaranteed, and that the plain and natural import of the language used, justifies this interpretation of the legislative intent.

We are, therefore, of opinion, that the bonds on which plaintiff brought his suit, were a paramount lien on the canal, its lands and revenues, from the mouth of Tippecanoe river to the east line of the State, and that said lien has not been impaired by any Act of his, or of the State, and that the decree in his favor was right on the merits.

It is made a point in the case, that the bill should be dismissed for want of proper parties.

The plaintiff brings his suit in behalf of himself, and all others interested in the same issue of bonds. As we have already said, there seems to be no other bonds, which are liens, outstanding, but those of the issue of 1832, all the holders of which are made plaintiffs.

The various creditors of the fund, who have become so since the transfer of the canal property to the trustees, and the holders of the canal stock certificates, whose interest remains unpaid, are fairly and fully represented by those trustees. They come within that class of persons who have an interest in the object of the litigation, but need not be made parties because they are so represented. See Story Eq. Pl., section 141, 142, 143. Mitford's Eq. Pl., 174. Calvert on Parties to Suits in Equity, top page 17, side page 25. Van Vechten vs. Terry, (3 John. Chy. R., 197).

But plaintiff has brought his suit in behalf of himself and other bond-holders of the same class. The record affords strong reason to believe that the other one hundred and ninety-eight bonds of the same issue, are outstanding, with arrears of interest unpaid to the same extent as plaintiffs, yet the decree makes no provision for them. This we think is error.

The bill in this case must be treated as in the nature of a creditor's bill, although not strictly of that class. The decree should declare the equality of lien of all these bond-holders with plaintiff, and should provide for them the same relief which it gives to him. And the case should be referred to a master to ascertain who these bond-holders are, about which we presume there will be little difficulty, and to notify them to come in and share in the fruits of the decree, on paying their proportion of its expense.

For this purpose the case is remanded to the Circuit Court, with instructions to proceed in accordance with this opinion.


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