text:
Wicker v. Hoppock/Opinion of the Court

It is said that the agreement between the parties 'was invalid because calculated to interfere with, and prevent the fairness and freedom of a judicial sale; and prevent competition, and therefore against public policy.'

The contract was, that the defendant in error should procure judgments against Chapin & Co. for the rent in arrear, levy upon the machinery and fixtures in the distillery, and expose them for sale, and that the plaintiff in error should bid for them the amount of the judgments.

The validity of such an arrangement depends upon the intention by which the parties are animated, and the object sought to be accomplished. If the object be fair-if there is no indirection-no purpose to prevent the competition of bidders, and such is not the necessary effect of the arrangement in a way contrary to public policy, the agreement is unobjectionable and will be sustained.

In one of the cases to which our attention has been called, there was an agreement between two persons, that one of them only should bid, and that after buying the property, he should sell a part of it to the other upon such terms as the witnesses to the agreement should decide to be just and reasonable.

In another it was agreed that a party should bid a certain amount for a steamboat, about to be sold under a chattel mortgage, and transfer to the mortgagor an undivided interest of one-third, upon his paying a corresponding amount of the purchase-money.

In a third case the agreement was between a senior and a junior mortgagee. The former agreed to bid the amount of his debt for a specific part of the mortgaged premises.

In each of these cases the arrangement was sustained upon full consideration by the highest judicial authority of the State.

In the case before us the agreement was, that Wicker should bid. There was no stipulation that Hoppock should not. There was nothing which forbade Hoppock to bid, if he thought proper to do so, and nothing which had any tendency to prevent bidding by others. The object of the contract obviously was to be secure-not to prevent bidding. The benefit and importance of the arrangement to the interests of the judgment debtors is made strikingly apparent when the subject is viewed in the light of the consequences which followed the breach of the agreement. Instead of the property selling for the amount of the judgments, Hoppock was the only bidder, and the property sold was struck off to him for a nominal sum.

There was no error in the ruling of the court upon this subject.

It is urged that the court erred in instructing the jury, that if the plaintiff was entitled to recover, the measure of damages was the amount of the judgments, with interest and the cost.

The general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed. It some instances he is made to bear a part of the loss, in others the amount to be recovered is allowed, as a punishment and example, to exceed the limits of a mere equivalent.

It has been held that, 'where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach thereof, at a trifling expense or with reasonable exertions, it is his duty to do it; and he can charge the delinquent party with such damages only, as with reasonable endeavors and expense, he could not prevent.'

If the contract in the case before us were one of indemnity, the argument of the counsel for the plaintiff in error would be conclusive. In that class of cases the obligee cannot recover until he has been actually damnified, and he can recover only to the extent of the injury he has sustained up to the time of the institution of the suit. But there is a well-settled distinction between an agreement to indemnify and an agreement to pay. In the latter case, a recovery may be had as soon as there is a breach of the contract, and the measure of the damages is the full amount agreed to be paid.

In a note of Sergeant Williams to Cutler and others v. Southern and others, it is said that in all cases of covenants to indemnify and save harmless, the proper plea is non damnificatus, and that if there is any injury, the plaintiff must reply it, but that this plea 'cannot be pleaded, when the condition is to discharge or acquit the plaintiff, from such bond or other particular thing, for the defendant must set forth affirmatively the special manner of performance.'

In Port v. Jackson, the assignee of a lease covenanted to fulfil all the covenants which the lessee was bound to perform. It was held that the agreement was substantially a covenant to pay the rent reserved, as it should accrue; that a plea of non damnificatus was bad, and that the assignor could recover the amount of the rent in arrear as soon as a default occurred, without showing any injury to himself by the delinquency of the assignee. The assignee was liable also to the lessor for the same rent by privity of estate. The judgment was unanimously affirmed by the Court of Errors.

In The Matter of Negus, the covenant was to pay certain partnership debts, and to indemnify the covenantee, a retiring partner, against them. It was held that the covenant to indemnify did not impair the effect of the covenant to pay, and the same principle was applied as in the case of Port v. Jackson. We might refer to numerous other authorities to the same effect, but it is deemed unnecessary.

In the case before us, as in the cases referred to, the defendant made a valid agreement, in effect, to pay certain specific liabilities. They consisted of the judgments of Hoppock against Chapin & Co. If Wicker had fulfilled, the judgments would have been extinguished. As soon as Hoppock performed, the promise of Wicker became absolute. No provision was made for the non-performance of Wicker, and the further pursuit by Hoppock of the judgment debtors. Indemnity was not named. That idea seems not to have been present to the minds of the parties. The purpose of Hoppock obviously was to get his money without the necessity of proceeding further against Chapin & Co. than his contract required. There is no ground upon which Wicker can properly claim absolution. He removed and keeps the property he was to have bought in. The consideration for his undertaking became complete, when it was exposed to sale. The amount recovered only puts the other party where he would have been if Wicker had fulfilled, instead of violating the agreement.

The rule of damages given to the jury was correct.

JUDGMENT AFFIRMED.

title: Wicker v. Hoppock/Opinion of the Court


text: Talk:Wicker v. Hoppock/Opinion of the Court

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


text:
United States v. Adams (73 U.S. 101)

THESE were three motions: the first two to dismiss appeals from the Court of Claims, one in the case of Adams, and one in the case of Johnson; the third, in the case of Clark, a motion for a certiorari designed to require that court to make a more extended statement of the evidence on which they had made a particular finding. The motion in the first two cases resting on more grounds than one; in the third, on one ground only.

To understand the cases well, it is necessary to refer to the statutes and rules which regulate appeals from the Court of Claims. An act of March 3, 1863, provides that 'either party may appea to this court, &c., where the amount in controversy exceeds $3000, under such regulations as the said Supreme Court may direct: Provided, That such appeal shall be taken within ninety days after the rendition of such judgment or decree.'At the December Term, 1865, the Supreme Court prescribed certain regulations by which appeals might be taken.

The first rule prescribes that the Court of Claims shall make a finding of the ultimate facts or propositions which the evidence shall establish, in the nature of a special verdict, and not the evidence on which these ultimate facts are founded, and also conclusions of law, which findings of fact and conclusions of law shall be certified to the Supreme Court as part of the record.

The third rule prescribes that 'in all cases an order of allowance of appeal by the Court of Claims, or the chief justice thereof, in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.'

The forty-eighth rule of the Court of Claims provides that 'whenever such application for an appeal is made in vacation, the same shall be filed with the clerk of this court, and such filing shall be deemed the date of the application for an appeal.'

The act of March 3, 1863, provides 'that the said Court of Claims shall hold one annual session, commencing on the first Monday in October in each year, and continuing as long as may be necessary for the prompt disposition of the business of the court;' and an act of March 17, 1866, 'that the regular session of the Court of Claims shall hereafter commence on the first Monday of December, in each year.'

In this state of statutes and rules, judgment was rendered by the Court of Claims in the case of Adams in his favor on the 19th March, and in the case of Johnson, on the 25th. The court adjourned on the 20th of May to the 25th of June. On the 10th of June the solicitor of the United States for the Court of Claims, Mr. Norton, filed in the office of the clerk, a paper, in the case of Adams, of which the following is a copy: Theodore Adams v. The United States.

1886.

The United States, by E. P. Norton, its solicitor, makes application to the Honorable Court of Claims for an appeal of the case of Theodore Adams v. The United States, to the Supreme Court of the United States.

E. P. NORTON,

Solicitor for the United States.

A similar paper was filed in the case of Johnson, at the same time. On the first day that the court was in actual session, to wit, on the 25th day of June, the solicitor moved for an allowance of these appeals, and on the next day the court made an order allowing them. The order was thus made more than ninety days after the judgments were rendered.

In these two cases, therefore, grounds of motion to dismiss were:

1. Because the appeal must be taken within ninety days after the rendition of the decree, and in this case the said period has elapsed.

2. Because the taking of an appeal in cases decreed by the Court of Claims consists of two things: 1st. Of an application for an appeal, which may be made to the court in term time, or by filing an application in the method prescribed by the rules when made in vacation. 2d. Of an allowance of the appeal so applied for by the court, and that both the application for and the allowance of the appeal must be made within the said term of ninety days from the rendition of the decree.

3. Because the application made for an appeal in this case, and filed in the clerk's office June 10, 1867, is irregular and void, having been made in term time, and not in vacation, as contemplated by the rules of court.

And in all three of the cases an additional ground was assigned, viz.:

That the record had not been made up and settled, as the first rule of the Supreme Court, made at December Term, 1865, required.

As to this part of the matter it appeared—

1. In the Adams case, that the findings were put under twenty different numbered paragraphs; that under one of them a joint resolution of Congress was set out in full; and under others, parts of acts of Congress. Withal, the finding made a sequent, orderly and intelligible statement, and was comprised within less than six pages 8vo, chiefly of small pica type.

2. In the case of Johnson, the form of finding was different. Somewhat less than two pages were occupied with narrative and clear account of a settlement by him upon valuable and unoccupied public lands in Washington Territory, where he erected buildings, which the government of the United States, operating against hostile Indians, had taken to its own use. But the rest of the finding consisted of nine pages of Government Correspondence from the Land Office, Department of the Interior, Register's Office at Vancouver, with various affidavits from settlers and others, a joint resolution of Congress, and many other documents, about twenty in all, set out in extenso, signatures, &c., with very little in the nature of a finding of ultimate facts. It ended with a succinct statement of the court's conclusions of law, on what was called 'findings of fact.'

3. In the case of Clark,-where the motion was for a certiorari to require the Court of Claims to make a more extended statement of the evidence on which they found,-no documents or evidence were set out. On the contrary, the petition having set forth that the petitioner having agreed by correspondence, with its authorized agents, to furnish to the government a certain quantity of potatoes, in a certain manner, the government agents had afterwards prepared formal articles of agreement, which he signed without advice of counsel, and not knowing at the time but that they truly and fairly stated the actual agreement of the parties, and that the contract was not truly stated in the articles, but by mistake or fraud was misstated,-the finding on this head ran thus:

'That the allegations of fraud or mistake in the concoction of the written agreement is not sustained by the evidence in the case.'Messrs. Carlisle, Corwine, and Wills, in support of the motion to dismiss the appeals of Adams and Johnson:

I. As to the regularity of those appeals. The statute gives an appeal under such regulations as this court may prescribe. The regulations when prescribed are as if part of the statute. By the terms of the statute, the appeal must be taken within ninety days. No regulation can alter this. The time is peremptory. In this case on appeal was 'taken,' 'allowed,' or even prayed for, till the ninety days had expired. All the party did was to pray an appeal generally, and of this jurisdiction cannot be taken.

There was no 'vacation' between the 20th May and the 25th June. By the act of March 3d, 1863, and that of 17th March, 1866, the term is limited, but its duration is without limit. The 'vacation,' therefore, referred to in the rule under consideration, had not occurred when this application was filed with the clerk: on the contrary, the court was in session.

A vacation is defined by Bouvier to be the period of time between the end of one term and the beginning of another.

A vacation is a different thing from a continuance, the result of an ordinary adjournment. Adjournment, in the English practice, is a day so called from its being a further day appointed by the judges at the regular sittings to try causes at nisi prius. Adjournment day in Error, in English courts, is a day appointed some days before the end of the term, at which matters left undone on the affirmance are finished. But the whole term is considered as but one day. So, no vacation having occurred, the application should have been made to the court, the only tribunal or authority at that time authorized to receive and hear it.

II. As to the forms of the findings in all three cases, and of the motion for certiorari in the third. The bject of the rule laid down by the Supreme Court was to get a clean, clear narrative of ultimate facts, a case like a case stated, or agreed on or found by special verdict, so that the court could give an opinion, in a form perfectly abstract, upon that case, and without any arguing of what the case was, or summoning up or back of facts. In the case of Adams, and especially in that of Johnson, the first and second cases, we have evidence of facts; leaving this court to settle the facts, a matter which it was the purpose of the rule to relieve it of. In the case of Clark, the finding is objectionable in the other way; that is to say, from its curtness. A certiorari to bring up a fuller case is necessary.

Mr. Norton, Solicitor of the Court of Claims, contra:

I. As to the appeals of Adams and Johnson. The appeal is taken when the application is made; for what else can the applicant for an appeal do? He has no bond to give, no additional act to perform; no control over any subsequent proceeding. The order of allowance may be made at any time.

The rule of the Supreme Court does not prescribe how the application shall be made, whether in open court orally, or by the filing of an application with the clerk, but that the making of the application, whether in the one mode or the other, shall be all that is required from the appellant.

The statute allowing ninety days would be nugatory, if the appellant had not been permitted to file his application with the clerk. If the court be not in session or the chief justice is absent, there is no other made of taking an appeal.

It is contended that there can be no vacation until after the final adjournment sine die. But the act of March 17th, 1866, in providing that the regular session of the Court of Claims should be on the first Monday of December in each year, contemplated that there might be irregular sessions.

In the early period of the history of English courts, vacations of courts had no regularity, and the word was sometimes applied to the interval of a portion of a day. The words interval, recess, and vacation, are synonymes.

II. The objections to the finding seem to be too technical. As to the cases of Adams and Johnson, if requiring to be rectified, the findings can be rectified by a remand, and without dismissing the cases. As to the case of Clark, where a certiorari is asked to enlarge the finding, the finding seems in precise right form.

Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Adams (73 U.S. 101)


text: Talk:United States v. Adams (73 U.S. 101)


text:
United States v. Adams (73 U.S. 101)/Opinion of the Court

Motions are made in the case of United States v. Adams, and of the Same v. Johnson, to dismiss the appeals, upon the ground that they were not taken within the ninety days to which the act of Congress limits the right of appealing from the judgments and decrees of that court.

The fifth section of the act of March 3, 1863, under which the proceedings in appeal were had, enacts that 'either party may appeal to the Supreme Court of the United States from any final judgment or decree which may hereafter be rendered in any case by said court, wherein the amount in controversy exceeds three thousand dollars, under such regulations as said Supreme Court may direct: Provided, that such appeal shall be taken within ninety days after the rendition of such judgment.'

This language implies that taking an appeal is a matter of right, and is something which the party as distinguished from court may do. When the court has rendered its judgment 'either party may appeal.' That is, has the right to appeal, and may exercise that right by his own volition. The court cannot prevent it, nor is the right dependent upon any judicial discretion.

So also the language of the proviso is to the same purport. The appeal is to be taken within ninety days, not granted, or allowed, or permitted, but taken-a word which implies action on the part of the appellant alone. So that, whatever the proceeding may be which constitutes appeal ng, or taking an appeal, it must be something which the party can do; and it would seem that no regulation of the Supreme Court, nor any judicial discretion of the Court of Claims, can deprive him of the right, though the former may frame appropriate rules in accordance with which the right must be exercised.

We consider the paper filed by the solicitor in the office of the clerk of the court as sufficient in form to indicate the intention to exercise this right. It is addressed to the court, refers properly to the case, claims an appeal, and calls upon the court to take the action which the rules prescribed by the Supreme Court require of it.

But it is claimed that the rule so prescribed has not been complied with, and therefore the appeal is not taken within time. The third rule, the one here referred to, is this: 'In all cases an order of allowance of appeal by the Court of Claims, or by the chief justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.'

The language of the rule would have been more technically accurate if the word 'taking' had been used instead of 'granting,' but the latter word is used in the rule to express the idea conveyed by the former in the statute.

To understand why the Supreme Court required an allowance of the appeal by the Court of Claims it is necessary to consider the two rules which precede this. A statute passed a year or two after the one we have been considering gave the right of appeal in cases where judgments had been rendered long previous to its passage. In framing rules upon this subject the Supreme Court determined that these rules should be so drawn that only questions of law could be brought here for review. The first rule provided that the party desiring to appeal, in cases decided before the rules were made, should present his petition to the Court of Claims, setting forth the questions of law decided against him which he desired to have reviewed; and that court was required to certify what had been its rulings on those questions. By the second rule the court was required, in all appealable cases thereafter decided, to make a finding of facts, and of their conclusions of law thereon, and make it a part of the record.

It is obvious that in both of these classes of cases it was proper that the attention of the court should be called to the taking of an appeal, and that it should not be treated as perfected until that court had prepared the statement of facts, or the statement of its rulings on questions of law which these rules prescribed. If something of this kind had not been required, the appeal might have been taken and the record filed in this court before the rule had been complied with.

But that the delay in doing this might not prejudice the party desiring to appeal, the rule expressly provides that the statute of limitations shall cease to run from the time the application is made. In other words, the framers of the rule, treating the appeal as taken within the meaning of the statute when the application is made for its allowance, provide that the delay in making out a proper statement of facts and judicial rulings, and then allowing the appeal (which C. J. Taney says, in Hudgins v. Kemp, 'is merely an authority to the clerk to transmit the record'), shall not operate to defeat the appeal.

Much minute criticism has been expended on the question whether the adjournment of the court from May to June was a vacation within the meaning of the rule, and whether the application should have been made to the court or to the chief justice. The rule says, the allowance may be made by the court, or, if there is a vacation, by the chief justice, but it does not prescribe the form of the application, or how or to whom it shall be made. We think that whether done in vacat on or in session, or during a temporary recess, the rule adopted by that court of requiring the application to be made by filing it with the clerk, is a very proper one.

We are therefore of opinion that the filing of this paper was taking the appeal, and that the delay in the subsequent proceeding to render it effectual do not touch its validity.

Another ground for the motion to dismiss these cases is, that the statement of facts found by the court, and their conclusions of law thereon, are not a sufficient compliance with the rule of the Supreme Court on that subject. It is said that the statement of facts is a mere recital of the evidence, and not the results of evidence as found by the court.

Conceding for the present that these records are fairly liable to the objection made, does it follow that for this reason the appeals should be dismissed?

In discussing the first ground on which the dismissal of these cases is claimed, we have seen that an appeal is a right given to the party by the statute, of which the Court of Claims cannot deprive him. It would be a violation of this principle if this court should refuse to consider his appeal, because the Court of Claims has erred in its attempt to comply with a rule of this court prescribing the character of the record to be sent here.

If the Court of Claims had made no attempt to comply with this part of the rule, we do not perceive how that would deprive this court of its jurisdiction of the case, or the appellant of his right to be heard. In such case, there is undoubtedly in this court, as in all appellate courts, a means of enforcing compliance with the rule, without permitting its jurisdiction, or the rights of appellant, to be defeated. But there is no such case here. The Court of Claims has made a finding of facts, and conclusions of law, and has shown its intention to comply in good faith with the rule of this court. Whether it be a sufficient compliance or not, is a question which does not affect the jurisdiction of this court, and is no ground for dismissal of the cases. The motions to dismiss are therefore overruled.

The rule above referred to, however, was made for the protection of this court, as well as to secure a finding of facts, by a tribunal which must of necessity inquire into them fully, and which, having ample time, and being otherwise every way competent, may be relied on to find them truly. In consequence of the suggestions of counsel in these cases, and in several others, said to be in the same category, we have examined into the statement of facts certified to us, to see if the rule is complied with. In all that we have examined, except the two named at the head of this case, the statement is free from objection. In the case of United States v. Adams, the propositions of fact are stated more in extenso than is either necessary or desirable, and are subdivided into a greater number of distinct propositions than are useful or conducive to clearness.

There are also certain acts and joint resolutions of Congress found as facts, of which this court must take judicial notice, which are, therefore, in no sense, facts to be found.

But after all, there is within a reasonable compass, and fairly stated, the main ultimate propositions of fact, on which this court can determine the principles of law, which must control the case.

But in the case of United States v. Johnson, it is different. We have first a detailed history of Johnson's transactions in settling on certain land, which is the foundation of his claim, with no attempt to deduct from this recital any ultimate fact, to which a proposition of law can be applied. This is followed by from fifteen to twenty affidavits and letters, given in full, from various officers in the department of the public lands, and other persons. What facts these letters and affidavits are intended to establish, we have not stopped to inquire, because it was the object of the rule to impose upon the Court of Claim the duty of drawing the inferences and conclusions which such documents are supposed to establish, or to decide that they do not establish them. The statement in this case is, in this respect, a reproduction of the finding which we rejected in the case of Burr v. The Des Moines Navigation Co., to which this court refers in the rules as containing a judicial exposition of the principles on which they are founded.

No doubt it is often difficult to draw the line between a mere recital of the evidence produced in the case, and a finding of the facts which that evidence establishes; and where the statement certified by the Court of Claims is reasonably sufficient, we hope we shall not be found captious. But in the case we have mentioned, there is such a wide departure from the principle which lies at the foundation of the rule, that while we shall retain jurisdiction of the case, the record will be remanded to the Court of Claims, with directions to return a finding of the facts, in accordance with the rule.

These principles also dispose of the motion for certiorari in the case of Clark et al. v. United States. The motion there is designed to require the Court of Claims to make a more extended statement of the evidence on which they find, 'that the allegation of fraud or mistake in the concoction of the written agreement is not sustained by the evidence in the case.'

This is precisely the character of finding which the rule of this court was intended to produce. The existence of the fraud or mistake set up in the pleading is one of the ultimate facts to which the law of the case must be applied, in rendering a judgment, and this court does not purpose to go behind the finding of the Court of Claims on that subject. To do so would require an examination of evidence, and a comparison of the weight to be attached to each separate piece of testimony, and the drawing of inferences from the whole, which is the peculiar province of a jury, and which, by our rule, we intended to exclude from the consideration of this court, by making such finding by the Court of Claims conclusive. The motion in that case is, therefore, overruled.

MOTIONS OVERRULED in all the cases, but in the second case the record remanded with directions to make a new finding of facts in accordance with the rules of court on the subject.


text: Talk:United States v. Adams (73 U.S. 101)/Opinion of the Court


text:
League v. Atchison

ERROR to the District Court for the Eastern District of Texas.

The statute of limitations of Texas, after making ten years a protection to one two enters without title, and five years a protection when the party has entered with claim under a deed on record, and has paid the taxes and made cultivation during that term, enacts by its fifteenth section as follows:

'That every suit to be instituted to recover real estate, as against him, her or them in possession, under title or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards. By the term title, as used in this section, is meant a regular chain of transfer from or under the sovereignty of the soil; and color of title is constituted by a consecutive chain of such transfer down to him, her or them in possession, without being regular; as if one or more of the memorials or muniments be not registered, or not duty registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty; or when the party in possession shall hold the same by a certificate of head-right, warrant, or land-scrip, with a chain of transfer down to him, her or them in possession; and provided this section shall not bar the right of the government.'

With this act in force Atchison brought suit against League to recover a lot of ground in Galveston.

On the trial, it appeared that both parties claimed title under the Directors of the Galveston ity Company, from whom the title was deraigned, to one Hasbrook. The plaintiff asserted himself to be the owner of Hasbrook's title through a deed from him to one Curtis. The defendant denied the validity of this deed to Curtis, alleging it to be a forgery, and claimed under a levy and sale of the property under a judgment against Hasbrook posterior to the alleged sale of Hasbrook to Curtis. The validity of this deed was one of the issues to be tried, one however not involved in the case as here presented. The defendants pleaded the statute whose fifteenth section as to limitation of three years is above quoted. On this point the plaintiff's counsel requested the court to instruct the jury as follows:

'That, if the jury, under the instructions of the court, find a conveyance from Hasbrook and wife to Curtis to be valid, then the sheriff had no authority to make the levy, under the execution against Hasbrook, on the lot in question, or to make the deed to Atchison, and there is no such transfer of title from Hasbrook to Atchison as will sustain the plea of limitation.'

The court refused the instruction, and whether it had done so rightly or not was the point for review here.

The case was fully argued in behalf of the plaintiff in error by Messrs. C. Robinson and W. G. Hale, who relied on the fifteenth section above quoted, as clear of itself; citing in addition, however, by way of illustration, the statutes of Kentucky, Pennsylvania, and other States, and decisions upon them, to show what possession was adverse.

Messrs. Green Adams, and W. P. Balinger, contra.

Mr. Justice GRIER delivered the opinion of the court.

title: League v. Atchison


text: Talk:League v. Atchison

title: Talk:League v. Atchison


text:
League v. Atchison/Opinion of the Court

The only question involved in this case arises on the construction to be given to the 15th section of the statute of limitations of the State of Texas. It is somewhat peculiar in its terms, and is well suited to the policy of a new State desirous to encourage emigration, and the settlement of its vacant lands.

For this purpose the usual limitation of twenty years, which alone would protect one who had entered without title, was held insufficient. Hence the legislation of Texas reduced the term to ten years. This term was also reduced to five years when the disseizor entered with a claim of title under a recorded deed, and had paid the taxes and cultivated the land for that length of time.

The limitation of three years now under consideration was intended to protect settlers under junior grants emanating from the State of Texas against older titles under the former Mexican sovereignty, as well as a fraudulent issue of head-right certificates or land scrip under the Republic. This policy is clearly exhibited in this peculiar term and the provisions of this section.

As respects the instruction requested by the plaintiff's counsel, we are of the opinion that the court erred in refusing it.

There was no dispute that the defendant purchased with full notice of the previous deed to Curtis. The only question was, whether this deed from the sheriff gave him such a title or color of title as is required by the statute.

Unnecessary labor and learning has been expended by counsel, as to the construction of similar statutes in other States, and as to whether the possession of defendant was adverse or not. This section of the statute is its own interpreter. It was not made to protect mere adverse possession; it carefully defines the construction of the words used. By the term title, as used in this section, is meant 'a regular chain of transfer from, or under the sovereignty of the soil; and color of title is constituted by a consecutive chain of such transfer down to him or her or them in possession, without being regular, as if one or more of the memorials or instruments be not registered, or not duly registered, or be only in writing, or such like defect,' &c., &c.

Now, this case shows no such 'chain of title or transfer from the sovereignty,' as to constitute either title or color of title. As defined by the act, a link in the chain is absent, which is necessary to make the whole one chain. It is not merely a defect or flaw in some link in the chain which may make it weak at that point, but there is no chain at all. A sale of the sheriff on a judgment against 'A,' confers neither title nor color of title to the property of 'B.' In Thompson v. Cragg, the court say: 'Nor can there be color of title where there is a complete hiatus in the chain. Color of titles differs from titles only in externals. The substance of both is the same, were this not so. If color of title were something intrinsically and substantially less or weaker than title, then the wisdom of the legislature could not be vindicated,' &c. This construction of the statute as thus settled by the courts of Texas is conclusive, even if we doubted its correctness, which we do not.

JUDGMENT REVERSED, AND A VENIRE DE NOVO AWARDED.

[See infra, next case, Ostermann v. Baldwin, in regard to this same section 15 of the Texas statute of limitations.-REP.]

title: League v. Atchison/Opinion of the Court


text: Talk:League v. Atchison/Opinion of the Court


text:
Osterman v. Baldwin

APPEAL (submitted) from the District Court for the Eastern District of Texas.

In 1839, prior to the admission of Texas into our Union, and that country being then an independent republic, Baldwin, a citizen of New York, and an alien, of course, to Texas, purchased and paid for three lots in Galveston, from the Galveston City Company, a corporation created by law, with power to sell real estate, and which owned the lots sold. As the company was not at the moment ready to execute deeds, he received certificates of the purchase. These described the purchased lots, acknowledged the receipt of the purchase-money, and added that Baldwin was entitled to receive a conveyance, so soon as the company was prepared to execute deeds in proper form. These certificates were made out in Baldwin's own name. The constitution of Texas, however, prohibiting aliens from holding lands there, he transferred them to James S. Holman, a Texan; the purpose having been 'to place the lots in the hands of a citizen to watch over and protect them, for the payment of taxes and otherwise.' No consideration moved from Holman, and the transfer was on an express agreement (made only by parol, however), that Holman was to hold the lots, and take a conveyance of them from the company, as Baldwin's trustee. The certificates were placed in an envelope, on which was indorsed a memorandum, thus:

'No. 113.

'JAMES S. HOLMAN.

'Lots No. 5 and 11, in block 617, &c. &c.,

'In trust.'

This envelope, with the certificates inclosed, was subsequently found in the office of the company, having, as was said by the one side, been left there for safe keeping at the time, and by the other, having been brought there in order that a deed might issue to Holman, and surrendered and filed on the issue of a deed accordingly. The letters and figures, 'No. 113,' indicated the number of the deed to be issued for these lots.

In September, 1846, the lots were levied on by the sheriff of Galveston County, upon a judgment obtained by one McKinney against Holman. Notice was given to McKinney of Baldwin's ownership of the lots, and that Holman had never had any interest in them, except as trustee for Baldwin.

At the sale, October 6th, 1846, full notice was read aloud by Baldwin's agent, to the persons assembled, of Baldwin's claim to the lots, and of the exact state of his title. The sale was then proceeded with, and one lot was struck off to Osterman, others to other persons. The purchasers took possession.

In May, 1850, that is to say, more than three years after the sale, Baldwin filed a bill in the District Court for the District of Texas, making the Galveston City Company, Holman, Osterman, McKinney, and others, defendants; and praying that the Galveston City Company might be directed to execute a conveyance in fee simple to him, that the sale and proceedings under the judgment and execution against Holman might be declared void, and the defendants enjoined from setting up title under the same, and be ordered to deliver up possession of the lots held by them respectively.

The defences set up were:

1. Baldwin's alienage and consequent incapacity to hold; that even if the lands were meant to be held by Holman in trust for him, the trust was void; that on this part of the defence it mattered not whether there was a deed or certificate, Holman's estate, if but equitable, being liable to levy and sale; that however a deed was made.

2. That if these defences failed, the suit was barred by the statute of limitations of Texas.

As to the fact whether any deed had been made to Holman, the testimony was not quite consistent. On the one hand, the secretary of the company, the complainant's witness, testified thus:

'Whenever the holder of a certificate wished a deed, he produced his certificate to the company and delivered up the same, and the company issued a deed to him. The certificate was then filed away in the records of the company. Books were kept showing the issue of deeds upon the certificates, by memorandum entered against the number of the lot. All the certificates in this case were filed away in the records of the company, in the same place and manner, with the certificates upon which deeds had been issued. The books and records of the company bear the same evidence of a deed to Holman on these certificates, that they do of the issue of any deed whatever. If the records of the company are true, a deed issued to Holman. The memorandum No. 113, in the envelope, indicates that that was the number of the deed issued on the certificates.'

On the other hand, Holman himself remembered no deed: and one Edmunds, the agent of McKinney, who seemed to manage the whole matter of the execution under a bargain for a large contingent share of its proceeds, twice examined the books of the City Company, once by himself and once ('thinking it an important matter') with another person, an attorney-at-law,-and found that the books 'showed that no deed had then been issued,' and that 'the title still appeared to be by certificates in the name of Holman.'

As respected a bar by the statute of limitations, the second defence set up, it appeared that the Texas act in its fifteenth section ran thus:

'Every suit to be instituted to recover real estate as against him, her or them in possession under title or color of title, shall be instituted within three years next after the cause of action shall have accrued, and not afterwards. By the term title as used in this section, is meant a regular chain of transfer from or under the sovereignty of the soil; and color of title is constituted by a consecutive chain of such transfer down to him, her or them in possession, without being regular; as if one or more of the memorials or muniments be not registered or not duly registered, or be only in writing, or such like defect as may not extend to or include the want of intrinsic fairness and honesty; or when the party in possession shall hold the same by a certificate of head-right, land warrant or land scrip, with a chain of transfer down to him, her or them in possession.'

The District Court decreed in favor of the complainant. The purchasers appealed; Holman and the company not denying Baldwin's equities, and acquiescing.

Messrs. Adams, Coombs, and Ballinger, for the appellants:

1. The evidence of the deed's having issued, greatly preponderates over that of its having not issued. The possession by the company among its papers, of the certificates, the only evidence of individual ownership, an the testimony of the secretary of the company, offered a strong presumption that there was a deed. The purpose of conveying to Holman was that a deed should issue to him. It matters not, however, as respects this branch of the defence, whether Holman's title were legal or equitable, if he had the real title-of any kind. Equities can be levied on in Texas as well as legal estates.

2. He had such title. It having been illegal for the complainant to hold lands in Texas at the date of these assignments, the law did not imply, create or allow any trust whatever in his favor, nor create one in favor of the government of Texas; but Holman took and held the property free and clear of any trust or right whatever for or on the part of Baldwin or the government.

Nor did the admission of Texas into the Union help the matter. The law not having previously raised or recognized any trust in behalf of Baldwin, nor of the government as the sovereign, by escheat or other paramount right, no trust or right of any kind in his favor was created by that political act.

At best, the only evidence of any trust in favor of Baldwin was parol; a dangerous sort of proof on which to rest the title to real estate; and a sort which the British statute of frauds would not allow to be given in such a case.

3. If Holman was thus the sole owner-either legal or equitable-Baldwin had no title, and the various notices were of no value. They were notices of nullities.

Waiving all these points, however, we have above and independent of the other defence—4. The Statute of Limitations. If the Galveston City Company made a deed to Holman, then the appellants had a 'regular chain of transfer' with the single exception from its regularity that the deed to Holman was not recorded, a circumstance which confessedly would not affect it. We have referred to the evidence of the existnece of the deed. 'A regular chain of transfer' relates to the deeds, the muniments, the paper evidences of right. If on their face, they constitute a title, the actual nature of that title, arising from extrinsic facts, from the existence of a superior or better title, either in the first link by a previous grant from the government, or in any subsequent link by a previous better conveyance, is unimportant. If possession be held three years under a chain of deeds from the sovereignty of the soil, by the 15th section the character of the actual title at any point of the chain is unimportant. 'Intrinsic fairness and honesty' is not a question where a regular chain of transfer is shown. They apply to color of title where the transfers are not regular. But the meaning is, not that the consecutive chain of transfer, or any link of it, must be fair and honest in relation to the adverse, better title, but simply that if one or more of the links, instead of being a regular deed-for instance, from A. or B.-is such a transfer of the right of A. or B., whatever that right is, as amounts fairly and honestly to a conveyance of it, then it constitutes color of title. In short, 'title' is legal; 'color of title' is equitable.

Messrs. Sherwood and Goddard, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Osterman v. Baldwin


text: Talk:Osterman v. Baldwin

title: Talk:Osterman v. Baldwin


text:
Osterman v. Baldwin/Opinion of the Court

It is true, as the defendants insist, that when the purchases were made by Baldwin, Texas was a foreign country, with a constitution forbidding aliens to hold real estate. But the defendants cannot object on that ground. Until office found, Baldwin was competent to hold land against third persons. No one has any right to complain in a collateral proceeding, if the sovereign does not enforce his prerogative. This court, in Cross v. De Valle, say: 'That an alien may take by deed, or devise, and hold against any one but the sovereign, until office found, is a familiar principle of law, which it requires no citation of authorities to establish.' Even if the defendants could have made this objection while the Republic of Texas existed, they cannot make it now, because, when Texas was admitted into the Union, the alienage of Baldwin was determined. His present status is that of a person naturalized, and that naturalization has a retroactive effect, so as to be deemed a waiver of all liability to forfeiture, and a confirmation of his former title.

It is insisted the legal title to the lots in controversy, is in Holman, by deed from the Galveston City Company, and if so, that the execution against Holman was properly levied on them, and they were rightfully sold.

There is evidence tending to show a deed to Holman, but it falls short of proving it. It is almost certain a deed was never made, and quite certain, if made, it was never delivered. Holman, who ought to know, has no recollection about it, and he is fortified by Edmunds (the active agent in hunting up property to levy on), who swears, the books of the company were examined, and did not show the making of the deed-a matter deemed of importance by him and his attorney. The deed is not produced; is not recorded; the directors who must have executed it, are not called; and its existence is but a matter of conjecture.

Even if made and delivered, it cannot help the title of the defendants, for the sheriff sold with express notice of Baldwin's rights, and his intention to enforce them, and no one who bought can be considered an innocent purchaser for value. If Holman had the bare, naked, legal title, without any beneficial interest in the property sold, and no possession, nothing passed by the sale. A purchaser, at a sheriff's sale, buys precisely the interest which the debtor has in the property sold, and takes subject to all outstanding equities.

But no deed was, in fact, made, and the legal title is still in the Galveston City Company. If, in equity Baldwin is entitled to have that title conveyed to him, the defence in this case must fail, unless the plea of the statute of limitations can be successfully maintained.

It is proven, beyond dispute, that Baldwin purchased the lots and paid the money for them, and that Holman had no interest in them.

It is in equal proof, that Holman agreed to hold them in trust for Baldwin-the object being to place them in the hands of a citizen of Texas, who could pay taxes and protect them. The trust, thus created, is an express trust-not one resulting by implication of law-proved, it is true, by parol, but equally efficacious for the purposes of this suit, as if in writing. The declaration of an express trust, under the statute of frauds of 29 Charles II, was required to be in writing, and could not be proved by oral testimony. But the courts in Texas hold, that trusts are not embraced in their statute of frauds, and that a trust may be proven as at common law, by parol evidence. The equitable title is, therefore, in Baldwin, and there is no reason why he should not have the legal title also, unless his rights are cut off by the statute of limitations.

The defendants claim that they have possessed the land peaceably for more than three years, under title, or color of title, derived from the sovereign authority, thus claiming the benefit of the fiteenth section of the act of limitations of Texas. But this claim is unavailing, because one link in 'the chain of transfer,' from the government down to the defendants, is broken. There is no conveyance from the Galveston City Company to Holman. A 'consecutive chain of transfer' is required by the statute, and the writing possessed by Holman is not, in any legal sense, a link in that chain. It does not purport to convey title. It is nothing more than a declaration by the company of the purchase of the lots, the payment of the money, and the intention to make deeds, when prepared to do so. If this writing, upon its face, professed to pass title, but failed to do it, either because the city company had o title, or for want of proper execution, it could be used as color of title. But an agreement to convey title at some future period, is not color of title, within the meaning of the law.

The Supreme Court of Texas has decided the precise question here presented. That learned court, in discussing this subject, in Thompson v. Cragg, say: 'Nor can there be color of title, as defined by the statute, where there is a complete hiatus in the chain. Color of title differs from title only in externals. The substance of both is the same. Were this not so, if color of title were something intrinsically and substantially less, or weaker than title, then the wisdom of the legislature could not be vindicated in applying the same period of limitation to a possession supported by the one as is applied to a possession supported by the other.'

DECREE AFFIRMED.

[See supra, preceding case, League v. Atchison, in regard to this same statute of limitations in Texas.-REP.]


text: Talk:Osterman v. Baldwin/Opinion of the Court


text:
Walker v. Villavaso

ERROR to the Supreme Court of Louisiana.

This was a motion by Mr. Janin to dismiss the writ of error. The suit,-a suit instituted by Villavaso against Walker, in the District Court of the parish of St. Bernard, Louisiana,-was one of the ordinary sort for foreclosure and sale under a mortgage according to the practice prevailing in Louisiana. Between the 25th January and the 17th August, 1861, Louisiana had passed an 'ordinance of secession' from the Union, adopted the constitution of the Rebel States, required all office-holders to swear allegiance to it, and had been proclaimed in a state of insurrection by the President of the United States. During this term, to wit, on the 18th October, 1861, an order of sale of the mortgaged premises was made. It was made by the same judges who had sat before the secession; and who remained in office apparently until May, 1865, when loyal judges were appointed under act of Congress. The Supreme Court of the State having, in 1867, affirmed the decree of foreclosure made in the parish court, the affirmance was brought here as within the 25th section of the Judiciary Act, which declares that where a controversy in a State court draws in question an authority exercised under the United States, and the decision is against its validity, the matter may be reviewed here; but declares also that no other cause shall be regarded as ground of reversal, than 'such as appears on the face of the record.' No question apparently about the legality of the court had been raised on the trial or decided by the parish court.

Mr. Durant, against the motion:

The case presented to the Supreme Court of Louisiana, by the appeal, was one where a judge had exercised an authority under an insurgent organization, assuming to be an independent state and part of a confederacy unacknowledged and at war with the United States, and such authority was repugnant to the Constitution and laws of the United States. Such exercise of authority was null, and it was the duty of the Supreme Court of Louisiana so to declare it. For a court of error will take judicial notice of the nature and extent of the jurisdiction of the inferior court, whose judgment it revises.

Where the judge is incompetent ratione materiae-still more so where he is a mere usurper-the want of jurisdiction may be shown at any stage of the cause. And the judge is bound to notice such defect ex officio.

The fact that the inhabitants of Louisiana were, in October, 1861, in insurrection, was one which the Supreme Court of Louisiana w s bound to notice, and so noticing it to declare that no judicial authority could be recognized under it as valid by a court sitting under the Constitution.

They did not do this. On the contrary, in confirming the judgment of the so-called court of the parish of St. Bernard, they did thereby sustain and decide in favor of an authority exercised under a State in insurrection, and a constitution and laws drawn in question as repugnant to the Constitution of the United States. The insurrectionary court must have been decided by the Supreme Court of Louisiana to be a valid authority, in order to have induced the judgment affirming its decision. And in such a case it is not necessary that it should appear on the face of the record that the question was raised or the decision made in so many words.

Mr. Janin, in reply:

Vattel, Grotius, Puffendorf, and other writers on public law, declare that a civilized nation, after having conquered another, will not add to the sufferings inseparable from war the unspeakable misery which would result from a destruction of all private dealings which took place previous to the conquest. This most civilized one has throughout the late troubles acted in the same spirit. When General Butler took possession of New Orleans, in May, 1862, he issued a proclamation, announcing that 'all the rights of property, of whatever kind, will be held inviolate, subject only to the laws of the United States,' and that 'civil causes between party and party will be referred to the ordinary tribunals.' This court, in commenting on it in The Venice, say:

'As far as possible, the people of such parts of the insurgent States as came under national occupation and control, were treated as if their relations to the National government had never been interrupted.'

In Louisiana three volumes of reports, vols. 16, 17, and 18, of the Annual Reports of the Decisions of the Supreme Court, have been printed since the commencement of the political troubles. Neither of them has in the syllabus the word 'rebellion.' Vol. 16 contains the decisions rendered from January, 1861, to February, 1862, the judges being the same which held office before secession. The reports do not contain the slightest allusion to the political circumstances under which it was produced. The new court, organized in 1865, took cognizance of cases decided by the district courts before the restoration of Federal authority in Louisiana, without ever questioning their validity, between private individuals. In White v. Cannon, a judgment had been rendered by the Supreme Court of January 31, 1861, five days after the secession of Louisiana. In 1865 the party cast made a motion in the new court to reinstate the case for reargument, because 'the judgment of the Supreme Court, having been rendered after the ordinance of secession, has become absolutely null and void.' The court said:

'The only question before us is whether the judgment in question is absolutely null and void or not. We are clearly of opinion that it is not tainted with absolute unllity. As to the ordinance of secession, it was an absolute unllity, and produced no legal effect. The Supreme Court was not affected or changed by its passage.'

But the case is not within the twenty-fifth section at all. No authority of the United States was set up in the parish court at all; and if it had been, it does not appear 'on the face of the record.' This ends the matter.

Mr. Justice NELSON delivered the opinion of the court.

title: Walker v. Villavaso


text: Talk:Walker v. Villavaso

title: Talk:Walker v. Villavaso


text:
Walker v. Villavaso/Opinion of the Court

The suit in the District Court for the parish of St. Bernard was an ordinary one for seizure and sale under a mortgage according to the practice prevailing in the courts of Louisiana. Indeed, this is hardly denied by the learned counsel for the plaintiff in error, but he relies on some infirmity in the jurisdiction of the court to hear and determin the case; and refers in support of it to certain insurgent proceedings in the State of Louisiana, against the then existing government, and to acts of Congress on the subject. But this question as to the competency of the court was not made on the trial, nor did the court below consider or determine any such question.

In order to give this court jurisdiction under the twenty-fifth section, it must appear on the record itself to be one of the cases enumerated in that section, and nothing out of the record certified to the court can be taken into consideration; and when the proceeding is according to the law of Lousiana, the case within the section must appear by the statement of facts and decision, as usually made in such cases by the court. No such case or question appears on the present record.

WRIT DISMISSED.


text: Talk:Walker v. Villavaso/Opinion of the Court


text:
Insurance Company v. Webster

ERROR to the Circuit Court of the United States for the Eastern District of Michigan; the case having been thus:

One Webber, on the 25th of September, 1860, was, and for a long time had been, the agent of the AEtna Insurance Company, at East Saginaw, in Michigan, and was duly authorized to make insurances, by policies of the company countersigned by himself, against loss by the perils of inland navigation.

To facilitate the making of such insurances with promptitude, the agent was furnished with blank policies duly signed by the president and secretary of the company, and requiring nothing to make them obligatory contracts except to be filled up and countersigned by him.

These things being so, a certain Webster applied, on the 25th of September, 1860, to Webber for insurance on the schooner Ottoca for the residue of the current season of navigation. And thereupon Webber filled up, countersigned, and delivered to Webster a policy of insurance duly executed by the president and secretary of the company, by which seventeen hundred and thirty-three dollars were insured upon the Ottoca from that day (September 25th, 1860) to the 30th of November, 1860. Webster, on his part, paid the premium by an indorsed note in the usual mode.

The same schooner had previously, in 1858, been insured in like manner on the application of Webster in the same company through the same agent.

On the 25th of October, 1860, the schooner was wrecked, and became a total loss from perils covered by the policy, and notice of the wreck and loss was duly given to the insurance company.

Such was the substance of the proof on the part of the plaintiff below.

On the part of the defendant it was proved that immediately after the delivery of the policy by Webber to Webster, a paper, partly written and partly printed, and called an application, was signed by the latter at the request of the former. This paper contained a general statement of the substance of the transaction, and was also signed by Webber. Following the signatures appeared this printed memorandum:

'The insurance on this application is to take effect when approved by E. P. Dorr, general agent of the AEtna Insurance Company, at Buffalo, New York.'

This paper was immediately transmitted by Webber to Dorr, was received on the 29th of September, but the application did not receive his approval, and was sent back to Webber with a letter directing him to return to Webster the premium note received, and to cancel the policy. This letter was received by Webber on the 2d of October.

It also appeared from the evidence that Webber, apparently dissatisfied, wrote to Bennett, another general agent at Cincinnati, on the subject, and seems to have expressed in his letter some apprehension that the course directed by Dorr would 'earn for the company the reputation of backing out from contracts regularly made.' No attempt was made to cancel the policy, nor was the premium returned, nor was any notice given to Webster of the action of the general agent until after the loss, when Webster called to give notice of it to the company.

Then, for the first time, Webber informed him that his application for insurance had been rejected, and offered to return the premium note; which Webster declined to receive, and insisted on his contract. The company declining to pay, Webster brought suit against them; and under instructions given by the court and excepted to by the company, verdict and judgment were given for the plaintiff. The Insurance Company then sued out this writ of error.

Mr. Hibbard, for the plaintiff in error:

The approval was the condition on which the contract became operative. Without that approval there was no contract. Had the original risk been binding until disapproved by the company, and a contract once shown in existence, as was the case in Perkins v. The Washington Insurance Company, it perhaps might have been the duty of the company to give notice of its disapproval. But the insurance company chose to make no contract but the one in this case, and as there could be no contract until the approval of the application by the company, then the event did not happen upon which alone the contract could exist. Suppose that no policy had been handed by the agent to Webster, and that the rights of the parties depended on the application alone, could there be a pretence that there was a contract actually made? It would be like any other application made to an underwriter for insurance, which the insurer did not assent to.

Mr. Wells, contra:

The case of Perkins v. The Washington Insurance Co., cited on the other side, concludes this. There an insurance company of New York empowered R., a surveyor in Savannah, to make an insurance to take effect from the time when the premium should be paid, and should be received at New York, provided the office should recognize the rate of premium, and be otherwise satisfied with the risk. R. advertised at Savannah the terms, and P. paid the usual premium on certain goods on the 5th of January, 1820, to R., who gave him a receipt for the money. Before, however, the premium was received at New York, the goods were consumed by fire, and P. afterwards tendered the premium to the company, and demanded that they should indemnify him, or execute the contract of insurance. It was held that the company was bound. Lightbody v. The North American Insurance Co. is even a stronger case.

The CHIEF JUSTICE delivered the opinion of the court.

title: Insurance Company v. Webster


text: Talk:Insurance Company v. Webster

title: Talk:Insurance Company v. Webster


text:
Insurance Company v. Webster/Opinion of the Court

We are of opinion upon the case presented, that the liability of the insurance company attached, subject to revocation, on the making and delivery of the policy of insurance, and the receipt of the premium by its agent.

The facts in the case are much stronger against the company than in that of Perkins v. The Washington Insurance Company.

In that case the agent had no power to make insurance, but only to receive proposals and determine rates, with an understanding, sanctioned by the company, that if the rates and proposals should prove satisfactory, the company would issue a policy accordingly, and that in the meantime the risk should be binding on it. The court held that the right of the company to refuse a risk upon such proposals was not arbitrary; but that the conditional arrangement of the agent would bind it absolutely in the absence of fraud or misconduct on his park, known to the applicant for insurance.

In the case before us the agent was fully authorized to make insurance, and had, in fact, on a previous occasion, insured the same vessel for the same applicant, and in the instance under consideration, actually delivered to Webster, on receipt of the premium note, a policy duly executed by the officers of the company, filled up and countersigned by himself under his general authority, and having every element of a perfect and valid contract.

The only limitation of this general authority kno n to Webster was that expressed in the memorandum appended to the formal application signed by him.

In respect to this it is to be observed that Webster was not asked to sign this formal application until after the execution and delivery of the policy; and that it is by no means certain that the appended memorandum even attracted his notice, and, in strictness, it might be well held that validity and effect of the policy was not affected at all by the subsequent acts of the parties.

It is urged, however, that the memorandum is so connected with the formal application, and the application with the contract, that both must be regarded as making part of the entire transaction; and we will consider the case under that point of view.

What, then, is the true effect of the memorandum? In strictness, and taken apart from the transaction, its terms make the validity of the policy depend upon the approval of the general agent. 'The insurance on this application to take effect when approved by E. P. Dorr, general agent, at Buffalo.' But it is clear that such was not the understanding of the parties, nor of the general agent himself. The policy issued was perfect in form and substance; the premium note was in the usual form, and for the proper sum; the delivery of the policy and the receipt of the note were significant acts. If the general agent had never acted upon the application at all, and the term of insurance had expired without loss, it will hardly be maintained that the insured could set up his omission or neglect in this respect as a defence to an action upon the premium note. The transaction, then, was not a nullity until approved. It must be regarded, we think, as an insurance of the same character as that passed upon in the case from Cowen's Reports. The memorandum, considered in connection with other parts of the transaction, must be treated as, at most, the reservation of a right, not however to be arbitrarily exercised by the general agent, to disapprove the insurance, and annul the contract on notice to the insured and on return of the premium note. The evidence shows that it was in this light substantially that both the agents regarded the transaction until after the loss. The general agent at Buffalo sent back the application, directing the agent at Saginaw to return to the party insured his premium note, and cancel the policy. The agent at Saginaw, not satisfied with this direction, as is shown by his correspondence with another general agent at Cincinnati, neither returned the note nor cancelled the policy.

It is a necessary consequence of these views that, in the absence of all notice of disapproval until after the loss, the policy must be regarded as valid and effectual.

What has been said covers substantially the several instructions given to the jury by the Circuit Court, and disposes of the exceptions to them.

JUDGMENT AFFIRMED.


text: Talk:Insurance Company v. Webster/Opinion of the Court


text:
Thompson v. Railroad Companies

APPEAL from the Circuit Court for the Southern District of Ohio.

The case was this: The code of civil procedure of Ohio provides that every action must be prosecuted 'in the name of the real party in interest,' &c.; and 'that the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and in their place there shall be, hereafter, but one form of action, which shall be called a civil action.'

With this provision of the code in force, the Central Ohio and another railroad company agreed to transport over their road, for one Thompson, a quantity of horses and mules, stipulating for payment in a certain mode, to which Thompson assented. In conformity with this agreement (the service having been performed), drafts were drawn on Thompson, which he neglected or refused to pay. These drafts, for convenience of collection, were drawn payable to the order of a certain D. Robinson, cashier; Robinson having, however, no interest in the proceeds. To e force the collection, what is termed as above mentioned, by the code in Ohio, a civil action, was instituted in one of the courts of the State, against Thompson, in the name of the railroad companies. The petition (used in lieu of a declaration), stated the original indebtedness from Thompson for freight, the giving of the drafts, their protest for non-acceptance or non-payment, and after averring that the plaintiffs were compelled to take them up, asked for judgment against the defendant for principal and interest. Thompson being a citizen of Kentucky removed the cause to the Federal court. When it reached there, by leave of the court, a bill in equity (setting up the same cause of action) was substituted for the petition originally filed in the State court, and the suit went on as a cause in chancery. The Circuit Court rendered a decree in favor of the complainants for the amount of the drafts, with interest. From this decree the defendants appealed, assigning as the chief ground of error that the complainants had a plain and adequate remedy at law, which they had in fact pursued in the State court, and which they ought to have followed out in the Federal court.

Messrs. Carlisle and McPherson, for the appellants, and in support of that view.

Mr. H. H. Hunter, contra, for the Railroad Companies, appellees:

1. Where a case is supposed to be not cognizable in a court of equity, the objection should be interposed in the first instance. After the suit has been regularly heard below upon its merits, the objection comes too late.

2. But had the complainant adequate and plain remedy at law? The case was commenced in the State court, and from a legal necessity, in the names of the complainants as plaintiffs. They were 'the real parties in interest' in the drafts, and they were exclusively interested in them. Being thus, necessarily, the plaintiffs in the case in the State court, they also, from legal necessity, remained plaintiffs in the Circuit Court after the removal of the case.

It is incontrovertible that the legal title of the drafts was in the payee, Robinson, and equally certain that the complainants were the equitable owners of them. Hence no action at law could be sustained on them in the names of the complainants, but only in the name of Robinson. By the practice of courts in general, the complainants, being the equitable owners, had the right to sue, at law, in the name of Robinson. But, by the Ohio code such mode of suit is expressly forbidden.

The cause of action on which the relief is prayed are the drafts specifically. To enforce the collection of them, the suit or civil action was originally brought. The suit is not on the contract, which, though referred to, is referred to only as an inducement and to disclose the equity of the complainants to the drafts.

Mr. Justice DAVIS delivered the opinion of the court.

title: Thompson v. Railroad Companies


text: Talk:Thompson v. Railroad Companies

title: Talk:Thompson v. Railroad Companies


text:
Thompson v. Railroad Companies/Opinion of the Court

Has a court of equity jurisdiction over such a case as is presented by this record? If it has not, the decree of the court below must be reversed, the bill dismissed, and the parties remitted to the court below to litigate their controversies in court of law. Usually, where a case is not cognizable in a court of equity, the objection is interposed in the first instance, but if a plain defect of jurisdiction appears at the hearing, or on appeal, a court of equity will not make a decree.

The Constitution of the United States and the acts of Congress, recognize and establish the distinction between law and equity. The remedies in the courts of the United States are, at common law or in equity, not according to the practice of State courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles. 'And although the forms of proceedings and practice in the State courts shall have been adopted in the Circuit Courts of the United States, yet the adoption o the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.'

This case does not present a single element for equitable jurisdiction and relief.

The suit brought in the State court was nothing but an ordinary action at law. When it was removed to the Federal court a bill in equity (alleging the same cause of complaint) was substituted, by leave of the court, for the petition originally filed in the State court, and the suit progressed as a cause in chancery. Thus, an action at law, which sought solely to recover damages for a breach of contract, was transmuted into a suit in equity, and the defendant deprived of the constitutional privilege of trial by jury. The absence of a plain and adequate remedy at law, is the only test of equity jurisdiction, and it is manifest that a resort to a court or chancery was not necessary, in order to enable the railroad companies to collect their debt.

Whether their proper course was to sue upon the contract, or upon the drafts, or upon both together, the remedy at law was complete.

If the remedy at law was adequate in the State court, why the necessity of going into a court of equity, when the jurisdiction was transferred to a Federal tribunal? The reason given is, because in Ohio the real parties in interest must bring the suit, and as the nominal legal title in the drafts was in the payee, Robinson, the railroad companies (after the transfer) could not proceed at law, and continue plaintiffs on the record, and were, therefore, obliged to change the case from an action at law into a suit in equity. If this position were sound, it would allow a Federal court of equity to entertain a purely legal action, transferred from the State court, on the mere ground, if it were not done, the plaintiff would have to commence a new proceeding. It surely does not need argument or authority to show, that the jurisdiction of a Federal court is not to be determined by any such consideration.

But there was no necessity for a change from law to equity after the suit was transferred.

The railroad companies mistook the course of proceeding in courts of the United States in actions at law, in suits brought up from State courts. In this case, as the action was a purely legal one, if they could have maintained it in their names in the State court, they had an equal right to maintain it in their names when it arrived in the Federal court.

In actions at law the courts of the United States may proceed according to the forms of practice in the State courts, and in such actions they administer the rules of evidence as they find them administered in the State courts. There was, therefore, no difficulty whatever in the plaintiffs in the State court remaining plaintiffs on the record, and prosecuting their suit in the same manner they were authorized to prosecute it by the laws of the State. If, in Ohio, the drafts could have been received in evidence in a State court, in a suir brought by the railroad companies against Thompson, then, on the transfer of the suit to the Federal court, and trial had there, they would have been equally receivable in evidence. The law of Ohio directs that all suits be brought in the name of the real party in interest. This constitutes a title to sue, when the suit is brought in the State court, in conformity with it; and in all cases transferred from the State to the Federal court, under the 12th section of the Judiciary Act, this title will be recognized and preserved; and when a declaration is required by the rules of the Circuit Court, it may be filed in the name of the party who was the plaintiff in the State court.

DECREE REVERSED and the cause remanded, with directions to dismiss the bill without prejudice, and to proceed in conformity with this opinion.

Mr. Justice SWAYNE did not sit in this case, being a tockholder in one of the corporations.


text: Talk:Thompson v. Railroad Companies/Opinion of the Court


text:
West v. Aurora City

ERROR to the Circuit Court for Indiana.

The twelfth section of the Judiciary Act provides:

'That if a suit be commenced in any State court against an alien, or by a citizen of the State in which the suit is brought, against a citizen of another State,. . . and the defendant shall, at the time of entering his appearance, file his petition for the removal of the cause for trial in the next Circuit Court,. . . and offer good and sufficient surety for his entering appearance in such State court, on the first day of its session, and file copies of said process against him,. . . it shall be the duty of the State court to accept the surety and proceed no further in the cause,. . . and such copies being entered as aforesaid in such court of the United States, the cause shall proceed there in the same manner as if it had been brought by original process.'

The code of Indiana also provides that in suits brought in that State—

'The defendant may set forth in his answer as many grounds of defence, counter-claim, and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered, and clearly refer to the cause of action intended to be answered.'

With these statutory provisions in existence, West and Torrance, citizens of Ohio, brought suit in one of the State courts of Indiana against the City of Aurora, Indiana. The nature of their action did not clearly appear from the record, but it seemed to have been a suit, by petition, under the State code, against the city just named, for the recovery of the amount of the matured interest coupons of certain bonds.

To this suit the defendants seemed to have made defences by answer under the code, and subsequently to have filed, by leave of the court, as an additional answer, three paragraphs setting up new defensive matter, in each of which the defendant prayed an injunction to restrain the plaintiffs from further proceeding in any suit on the coupons or bonds, and from transferring them to any third parties, and for a decree that the bonds be delivered up to be cancelled.

Upon the filing of these additional paragraphs the plaintiffs entered a discontinuance of their suit, and, assuming that under the code the new paragraphs of the answer would remain, in substance, a new suit against them for the cause and object set forth in them, filed their petition for the removal of the cause into the Circuit Court of the United States. The petition was allowed by the State court, and the new paragraphs, without any other portion of the record of the suit in that court, except enough to show its title and the entry of discontinuance, were sent into the Circuit Court. By that court they were remanded to the State court as not constituting a suit that could be removed under the twelfth section of the Judicial Act.

To this action of the Circuit Court, West and Torrance took exceptions, and the case was now here on error; the question being whether the action of the Circuit Court was right.

Mr. T. G. Mitchell, for the plaintiff in error, argued that the 'additional paragraphs' constituted under the Indiana code a counter claim; and that notwithstanding the discontinuance of West and Torrance of their action, and the consequent withdrawal of the issues tendered by them, they could not discontinue the 'counter-claim' presented in the additional paragraphs by the other side. These made a cross-action by the defendants against the plaintiffs; one but incidental to the original action, so long as that original action was in course of existence and progress, but independent of it, as soon as it was withdrawn, and so destroyed. Hence the removal to the Federal court was proper and the remand error.

Mr. T. D. Lincoln, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: West v. Aurora City


text: Talk:West v. Aurora City

title: Talk:West v. Aurora City


text:
West v. Aurora City/Opinion of the Court

We think that the Circuit Cou t was clearly right in its action. The filing of the additional paragraphs did not made a new suit within the meaning of the Judicial Act. They were in the nature of defensive pleas, coupled with a prayer for injunction and general relief. This, if allowed by the code of Indiana, might give them, in some sense, the character of an original suit, but not such as could be removed from the jurisdiction of the State court. The right of removal is given only to a defendant who has not submitted himself to that jurisdiction; not to an original plaintiff in a State court who, by resorting to that jurisdiction, has become liable under the State laws to a cross-action.

And it is given only to a defendant who promptly avails himself of the right at the time of appearance, by declining to plead and filing his petition for removal.

In the case before us, West and Torrance, citizens of Ohio, voluntarily resorted, as plaintiffs, to the State court of Indiana. They were bound to Know of what rights the defendants to their suit might avail themselves under the code. Submitting themselves to the jurisdiction they submitted themselves to it in its whole extent. The filing of the new paragraphs, therefore, could not make them defendants to a suit, removable on their application to the Circuit Court of the United States.

It is equally fatal to the supposed right of removal that the record presents only a fragment of a cause, unintelligible except by reference to other matters not sent up from the State court and through explanations of counsel.

A suit removable from a State court must be a suit regularly commenced by a citizen of the State in which the suit is brought, by process served upon a defendant who is a citizen of another State, and who, if he does not elect to remove, is bound to submit to the jurisdiction of the State court.

This is not such a suit, and the order of the Circuit Court remanding the cause to the State court must therefore be

AFFIRMED.


text: Talk:West v. Aurora City/Opinion of the Court


text:
Rector v. Ashley

ERROR to the Supreme Court of Arkansas; the question in the court below being the validity of a title set up by Ashley's executors on bill to a piece of land in that State, south of the Arkansas River, near Little Rock, as against a title set up on the other hand by Rector on cross-bill, each party seeking to have his title quieted as against the other.

The title of the respective parties was thus:

Ashley claimed under a certain act of Congress of June 23d, 1836, granting to the State of Arkansas, for the purpose of completing the public buildings at Little Rock, a quantity of land, not exceeding five sections, to be located under the authority of the General Assembly of that State, on any of the unappropriated lands of the United in Arkansas. Such proceedings were had under this act, that on the 8th day of June, 1838, the legal title to the land in controversy became vested in Ashley, unless it had been previously appropriated by virtue of the proceedings under a certain act of Congress of February 17th, 1815, through which Rector set up a prior equitable ownership of the same land. This last-mentioned act provided that any person owning lands in the county of New Madrid, in Missouri (then recently visited by earthquakes), and whose lands had been materially injured by them, should be authorized to locate the like quantity of land on any of the public lands of the said territory, the sale of which was authorized by law, not exceeding six hundred and forty acres.

The material facts relating to the title of Rector thus set up, as far as they were disclosed by the record, were these: On the 30th November, 1815, there was issued to Henry Cockerham, by Frederick Bates, recorder of land titles at St. Louis, a certificate of the loss of six hundred and forty acres of land by the earthquake, entitling him to locate the same quantity on any of the public lands of the Territory of Missour, the sale of which was authorized by law. Next in order was a paper signed by William O'Hara, directed to the surveyor of the lands of the United States for the States of Illinois and Missouri, and the Territory of Arkansas, referring to this certificate, and stating that the said O'Hara, as the legal representative of Cockerham, located the said six hundred and forty acres on the south side of the Arkansas River, near Little Rock; describing the location so as to enable the surveyor to identify it, and praying an order of survey. This paper was dated St. Louis, October 30th, 1820, but no evidence was given that it was ever filed in the surveyor's office, nor any to show from whence it was produced; though for the purpose of the opinion given by it, this court considered that it might be conceded that it was regularly filed in the surveyor's office at the time it bore date, and that O'Hara had authority to act as the representative of Cockerham in the matter.

Then followed in the record, a survey purporting to be made under Cockerham's certificate, dated May 30th, 1838, and this was certified on the 16th day of June, 1838, to be then on file in his office, by F. R. Conway, recorder of land titles at St. Louis; and he further certified that by virtue thereof, the said Cockerham, or his legal representative, was entitled to a patent for the tract so surveyed, amounting to six hundred and forty acres of land. This appeared to be a transcript from the records of the General Land Office. There was also, in another part of the record, a survey dated May 2d, 1839, purporting to be made under the same certificate, apparently not identical with the former survey, and which was certified to be copy from the records of the surveyor of public lands for the district of Arkansas. There was nothing to show whether this survey was ever filed in the office of the recorder of land titles or not. It was understood that the description in the order of O'Hara to the surveyor, and the first of these surveys, and probably the second also, covered the land in dispute.

It was this title thus set up under the act of 1815 which Rector sought to have quieted and confirmed by his cross-bill. In the pleadings the titles were rested on the two acts of Congress respectively; though in the original bill in support of Ashley's title, filed by his executrix and one Beebe, it was averred, after a full statement of the title derived under the act of 1836-which title alone was set forth as the substantive ground of Ashley's bill-that Rector had 'never had anything more than temporary actual possession or occupation' of any part of the said lands 'alleged to have been located by virtue of the said pretended New Madrid location, except,' &c.; while it was stated on the other hand that Ashley and his representatives 'have continuously had actual and constructive possession of the same.' Beyond this the pleadings showed no reference to possession and lapse of time as an element of title.

The Supreme Court of Arkansas decided the case in favor of Ashley, giving a learned opinion (which was now in print before this court, but forming no part of the record sent up), to the effect that the land had not been 'appropriated' until after Ashley's title was fixed, and going also into an argument to show that under the statute of limitations of the State of Arkansas, Rector was barred by lapse of time. By a statute of Arkansas the opinions of the court are required to be filed among the papers of the case. Judgment was accordingly given in favor of Ashley's executors, and the case was now here under the twenty-fifth section of the Judiciary Act, which declares that a final decree of the highest court of a State, where is drawn in question the construction of any statute of the United States, and the decision is against the title, right or privilege so set up, may be reviewed here.

The two questions here were, 1st, jurisdiction; 2d, the validity of the claim of Rector.

Messrs. Martin, Rose, and Wal ins, for Ashley's heirs, the defendants in error, contended—

1. That this court could not entertain the case under the 25th section, and that it ought in fact be dismissed for want of jurisdiction, since it was plain that the question of title under the statute of limitations was passed on by the court below, whose opinion the statutes of Arkansas required to be filed among the papers of the case, and which was so made, the counsel argued, part of the record; and was in fact, also, presented sufficiently even by the record proper, in which reliance was had on continuous 'actual and constructive possession;' and that this court, therefore, was not competent under the section named to review a decision on the State statute, which decision was to be taken as certainly correct.

2. As regarded the claim of Rector, that on the facts of the case, it appeared that the land had been appropriated to Ashley on the 8th June, 1838, before any pretence of title appeared in Roctor; which at earliest was 16th of the same month. Among other cases, Lessieur v. Price in this court was in point. There the court held that a return of the survey to the office of the recorder was necessary to make an appropriation, and to give the title.

Messrs. Reverdy Johnson, Bradley, Sr., and A. H. Garland, for Rector, plaintiff in error, contra, argued—

1. That the court could look to the record alone, where no title was set up by limitations, and where, notwithstanding a few words in the bill by Ashley's executors about possession, it could not be said that such a defence was even adumbrated.

2. That in Lessieur v. Price, cited on the other side, the title spoken of by the court was the legal title, not the equitable one; that here Rector had obtained an equitable title which the United States could not devest; that Congressional surveys had been extended over the land when it was claimed by O'Hara, and so further survey was necessary.

Mr. Justice MILLER delivered the opinion of the court.

title: Rector v. Ashley


text: Talk:Rector v. Ashley

title: Talk:Rector v. Ashley