text:
The Thames

APPEAL from the Circuit Court for the Southern District of New York; the case being this:

In January, 1868, Alfred Bennett, James Van Pelt, and Gilbert Van Pelt, were merchants doing a commission business in New York under the name of Bennett, Van Pelt & Co. The partner, Gilbert, resided in Savannah, where he was in the habit of purchasing cotton and consigning it to his firm in New York. In the course of this dealing he bought, on the 28th of January, 1868, one hundred and eleven bales of Brady & Moses, commission merchants in Savannah, for this firm in New York, and on the same day shipped the cotton to New York by the steamship Thames, one of the vessels of a line known as the Black Star Line. Three bills of lading, of the same tenor and date, were issued, each stating that the cotton was shipped by Gilbert Van Pelt, and that it was to be delivered 'unto order or to his or their assigns.' 'And it is expressly understood,' the bill of lading went on to say, 'that the articles named in this bill of lading shall be at the risk of the owner, shipper, or consignee thereof, as soon as delivered from the tackles of the steamer, at her port of destination, and they shall be received by the consignee thereof, package by package, as so delivered; and if not taken away the same day by him, they may (at the option of the steamer's agents) be sent to store, or permitted to lay where landed, at the expense and risk of the aforesaid owner, shipper, or consignee.' Two of the bills were delivered to said Gilbert Van Pelt; the other being retained as the ship's bill of lading. On the same day, in order to procure money wherewith to pay for the cotton, and in compliance with the terms and conditions of the purchase, he drew his draft on his firm in New York for $8300, payable fifteen days after sight, to the order of 'Billopp Seaman, cashier,' and delivered the draft and the two bills of lading which he had to the said Brady & Moses, who held moneys of the Atlanta National Bank of Atlanta, Georgia, for the purpose of investment in bills drawn on New York, and the draft was discounted for the account of that bank, and the proceeds were applied toward the payment of the cotton. The bill or invoice for the cotton was receipted as if it had been paid for in cash, and the Atlanta Bank was charged with the advances. The two bills of lading were indorsed,

'Deliver B. Seaman, Cashier, or order.

'G. S. VAN PELT.'The point of contest in the case was for what exact purpose the two bills of lading had been delivered to Brady & Moses, that is to say, whether to stand as security until the draft of Gilbert Van Pelt should be accepted, or whether to stand until it should be paid. Gilbert Van Pelt himself swore it was given but for the former purpose, and that this was perfectly understood on both sides. Brady & Moses, on the other hand, each swore that it was given no stand as security until the draft should be paid; and in this they were confirmed by the clerk of their house, one Bruen. The draft and the bills of lading were forwarded to Billopp Seaman, under general instructions from the Atlanta National Bank, to hold and collect for the credit of the account of the said Atlanta National Bank.

The Thames arrived in New York late on Sunday afternoon, February 2d, 1868. Before arrival, the purser had made out bills for freight, and made out those for freight on this cotton, to Bennett, Van Pelt & Co. There was a memorandum, in writing, at the foot of the ship's bill of lading, 'for Bennett, Van Pelt & Co.;' by whom put there was not at all explained, further than that it was not in the handwriting of any of the ship's agents at Savannah who signed the bill of lading and made the contract for carriage. The ships of the Black Star Line, of which, as already mentioned, the Thames was one, had brought cotton regularly for Bennett, Van Pelt & Co. On Monday morning, February 3d, the steamer commenced delivering cargo. The one hundred and eleven bales were delivered on the pier. Bennett, Van Pelt & Co. sent their carts and took the cotton, paid freight for it, receipted for it on the ship's bill of lading, and sold the bulk of it for cash on delivery the day that they got it.

As appeared on the one hand, nothing was done by the Fourth National Bank in reference to the cotton, or its delivery, from the time of the acceptance of the draft, February 1st, 1868, until after its maturity, February 19th, 1868. On that day, and on that draft, Bennett, Van Pelt & Co. failed, and the draft was protested for non-payment. On the other hand it did not appear, except by the testimony of James Van Pelt, which was contradicted by Billopp Seaman, that he, Seaman, knew of the arrival of the vessel before the cotton was delivered and sold. On the 19th, after the draft was dishonored, Seaman, by direction of the President of the Fourth National Bank, sent a clerk to the office of the agents of the ship, where he saw the ship's bill of lading, and heard that the cotton had been delivered some days before to Bennett, Van Pelt & Co. He made no demand. Afterwards, on March 16th, 1868, the bank made a formal demand for it.

Until the inquiries made on February 19th, 1868, the agents of the Thames had no notice, beyond that which the bill of lading itself gave, of any claim to or interest in the cotton in question by any other parties than Bennett, Van Pelt & Co.

It was undisputed that Seaman had no real interest in the cotton, and that it belonged to the Atlanta National Bank, whose sole agent in New York was the Fourth National Bank.

In this state of things Seaman filed his libel in the District Court of New York against the Thames, March 19th, 1868, claiming damages in the sum of $8300 for non-delivery to him, at New York, of the cotton, the bill of lading for which had, as he set forth, and as was not denied, been assigned to him for a valuable consideration. The owners of the Thames answered the libel and put in issue its material allegations, averring that the cotton was shipped by the Thames for and to be delivered to Bennett, Van Pelt & Co., of New York, and was so delivered in due course and without notice of the claim of the libellant, and that no claim for it was ever made by the libellant until long after such delivery; that the alleged assignment of the bill of lading to the libellant was by way of security for personal obligations of Bennett, Van Pelt & Co., who were solvent merchants, and to whom the libellant looked for payment of such obligations; and that he gave no notice and did no act as assignee of the bill of lading on the arrival of the vessel or upon the delivery of the cotton, nor until after Bennett, Van Pelt & Co. had become insolvent, and that by his delay and laches he waived and lost all claim against the vessel and her owners.

The District Court, considering that Seaman had a sufficient interest to sue, and holding, upon the evidence, that the delivery of the bills of lading for the cotton was intended to, and did, transfer it to the libellant as a security for the payment of the draft for $8300, decreed in favor of the libellant, and the Circuit Court affirming that decree, the owners of the vessel brought the case here.

Messrs. Barney, Butler, and Parsons, for the appellant:

The witnesses do not, indeed, agree as to the purpose for which the bills of lading were transferred, but the facts show that it was as security for the acceptance, and not for the payment of the draft. Thus—

1. The draft was a time draft, having fifteen days to run, and was taken at the rate of such paper. Van Pelt would have had no motive to buy cotton on credit if his house was not to have the benefit of the purchase till the credit expired.

2. No instructions were given to the Fourth National Bank to deal with the cotton in the interval of fifteen days during which the draft would be running to maturity. The bank actually did nothing to show any interest in the property.

Even if the transfer of the bills of lading was intended to secure the payment of the draft, Seaman was not entitled to hold the vessel and owners for the non-delivery of the goods, inasmuch as by his own laches he suffered the cotton to go into the possession of Bennett, Van Pelt & Co., and to remain in their possession until after their insolvency. The cotton was shipped in the regular course of business on a vessel which formed one of a line of steam packets between New York and Savannah, and which had been engaged in carrying cotton for account of the same shipper and consignees. The vessel knew no other party in interest. Before arriving at New York, the purser made out the freight bill to Bennett, Van Pelt & Co., assuming in good faith that the cotton was for them. A memorandum at the foot of the bill of lading, 'For Bennett, Van Pelt & Co.,' confirmed him in this assumption. The bill of lading, by its terms, required the consignee to take away goods on the day of the arrival of the vessel at her port of destination, or in default of his so doing the goods were, at the option of the steamer's agents, to be sent to store or left on the steamer's wharf. The vessel arrived on Sunday, and on Monday morning early, notice was given to Bennett, Van Pelt & Co., the only consignees of whom the ship had knowledge, and who came in the usual course of business and took it from the pier, receipting for it. The firm being solvent, and being regular consignees, and giving their receipt, the non-production of the outstanding bill of lading was not a circumstance to excite suspicion. Notwithstanding that the bill of lading showed a shipment on a steamer of a regular line at Savannah, January 28th, 1868, which in due course would have brought the goods to the pier in New York about 3d February following, the Fourth National Bank did absolutely nothing until February 19th, and even then made no demand, and took no further action till March 16th. Bennett, Van Pelt & Co. did not fail until February 19th, 1868.

On this state of facts Seaman took the risk of the continued solvency of Bennett, Van Pelt & Co., and of the possession of the cotton by them. Although he may have been legally entitled, in the first instance, to the possession, yet it was competent for him by his acts to waive actual possession, and permit the goods to go into the hands of Bennett, Van Pelt & Co., consignees and owners, subject to Seaman's rights. Had he intended to avail himself of the rights of a consignee of the cotton under the bill of lading, he should have looked after the property and asserted such right. A consignee, by refusing or failing to accept the consignment, and look after the property, disclaims and loses the position of consignee. By failing to assert his rights as consignee until after the insolvency of Bennett, Van Pelt & Co. had intervened, Seaman lost all recourse, except as against them. They were liable to him in trover for the value of the goods if they took them from the ship without right. The ship's agent having acted in good faith, and Seaman having clearly been guilty of laches, the ship should not be visited with the consequences of his neglect.

3. Seaman was not entitled to maintain this action. He was not the real party in interest, nor had he such title to or interest in the case as to entitle him to sue in admiralty. The Fourth National Bank, the real agent and representative of the Atlanta National Bank, and not the cashier, was the only party entitled to bring the suit.

The indorsement of commercial paper to and by a bank cashier is the act of his bank and not his individual act, and the libellant having no individual property or interest did not stand in any such relation to the transaction as to enable him to proceed.

Mr. B. F. Lee, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: The Thames


text: Talk:The Thames

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

title: Talk:The Thames


text:
The Thames/Opinion of the Court

The engagement of the ship with the shipper was to deliver the cotton in New York to order. In regard to this there is no doubt. Such was the express stipulation of the bills of lading, which were given on the 28th of January, 1868, when the cotton was received on shipboard. On that day Gilbert Van Pelt purchased the cotton in Savannah from Brady & Moses, and settled for it by giving in payment his draft upon the firm of Bennett, Van Pelt & Co., in New York, of which firm he was a member. The draft was drawn at fifteen days' sight in favor of the libellant, Billopp Seaman, cashier, or order, and it was discounted by Brady & Moses with money of the Atlanta National Bank, which they had in hand for the purpose of purchasing bills on New York on the bank's account. The price of the cotton was thus, in substance, paid by money which Van Pelt obtained from the bank, as the proceeds of his draft. At the time when he drew the draft he also indorsed upon the bills of lading which the ship had given for the cotton, an order directing its delivery to Billopp Seaman, cashier, in whose favor the draft was drawn, and delivered them with the draft to Brady & Moses. They were made out in triplicate, as is usual, and, by them all, the ship undertook to deliver the cotton shipped to order. Two of them had been delivered to Van Pelt, the shipper, and the third was retained by the ship. That retained by the ship, it is true, when produced at the trial in the court below, was found to have, at its foot, the memorandum, 'for Bennett, Van Pelt & Co.,' which is not upon those delivered to the shipper. How that memorandum came there is not explained. No witness has testified in whose handwriting it is, but it is proved not to have been in that of any of the ship's agents at Savannah who signed the bills of lading and who made the contract for carriage. This, however, is of little importance. The contract between the ship and the shipper is that which is contained in the bills of lading delivered. The ship's bill was designed only for its information and convenience; not for evidence, as between the parties, of what their agreement was. If it differs from the others, they must be considered as the true and only evidence of the contract.

The proofs in the case leave no reasonable doubt that the bills of lading were indorsed to the libellant in order to transfer to him the cotton as a security for the payment of the draft at its maturity. Gilbert Van Pelt alone asserts the contrary. His testimony, it must be admitted, tends to show that they were indorsed and received as security for the acceptance only of the draft. But he is directly contradicted by Moses, by Brady, and by Bruen, neither of whom has any interest in this controversy, and all of whom state that the bills of lading were indorsed to secure to Seaman the payment of the draft and not merely its acceptance. Besides, their testimony is in harmony with all the probabilities of the case. It is absurd to talk of security for the acceptance of the draft. No such security was needed. It might have been accepted before it was discounted. Gilbert Van Pelt was a member of the firm upon which it was drawn, and he was at hand when it was discounted. He might then have accepted it. In addition to this it is significant that the invoice of the sale from Brady & Moses to Van Pelt was made out and receipted as if paid in cash (the draft having been turned into cash by a deduction of discount and exchange), and the advances made upon the draft were at once charged to the Atlanta National Bank. In view of all this it is incredible that the bills of lading were indorsed to Seaman merely to secure what the maker of the draft could have given on the instant. Nor ought the position of Gilbert Van Pelt to be overlooked. If the bills of lading were indorsed as security for payment of this draft, his firm has obtained from the ship delivery of the cotton through a fraudulent representation that they were the consignees, or entitled to the delivery of possession, and they sold it for cash on the day when it was thus wrongfully obtained. He is not, therefore, an unbiased witness. His testimony was given while he was under the influence of a temptation, not unnatural, to vindicate his firm from the guilt of fraudulently abstracting a large amount of property from its rightful owner. Standing as he does, in such a position, his statements are not to be credited when in conflict with the positive testimony of Brady, of Moses, and of Bruen, and when inconsistent with the strong probabilities of the case.

It must be considered, then, that by the indorsement of the bills of lading the libellant became the owner of the cotton, and that by force of the contract with the ship it was deliverable at New York only to him, or to his order. Reference to authorities to show that the effect of the indorsement was to vest such ownership in Seaman is quite unnecessary. We may, however, refer to a few.

The ship arrived with the cotton at the port of New York on Sunday, the 2d day of February, 1868, late in the afternoon, and on the morning of the 3d delivered it to Bennett, Van Pelt & Co. on their demand, without the production of either of the bills of lading which had been given to the shipper, and without any order from Billopp Seaman, who was the indorsee of the bills, and to whom alone, or to whose order, it could rightfully be delivered. It does not appear that any notice of the ship's arrival was given to Seaman, or that the ship made any inquiry to ascertain to whom the cotton was deliverable. It would seem that assuming the mysterious memorandum on the bill of lading retained by the ship was equivalent to an order to deliver to Bennett, Van Pelt & Co., no demand was made for the presentation of such an order, and no further inquiry for the consignee was set on foot. The consequence was that Bennett, Van Pelt & Co., having obtained the property without any right to it, sold it for cash on the day it was delivered to them, and failed within a few days afterwards.

No argument is needed to show, what is most manifest, that the delivery which was thus made was a breach of the ship's contract. By issuing bills of lading for the cotton, stipulating for a delivery to order, the ship became bound to deliver it to no one who had not the order of the shipper, and this obligation was disregarded instantly on the arrival of the ship. And it is no excuse for a delivery to the wrong persons that the indorsee of the bills of lading was unknown, if indeed he was, and that notice of the arrival of the cotton could not be given. Diligent inquiry for the consignee, at least, was a duty, and no inquiry was made. Want of notice is excused when a consignee is unknown, or is absent, or cannot be found after diligent search. And if, after inquiry, the consignee or the indorsees of a bill of lading for delivery to order cannot be found, the duty of the carrier is to retain the goods until they are claimed, or to store them prudently for and on account of their owner. He may thus relieve himself from a carrier's responsibility. He has no right under any circumstances to deliver to a stranger.

It is said, however, that the libellant delayed presenting the bills of lading which had been indorsed to him, and delayed making any demand for the cotton until after the 19th of February, when the draft had fallen due, and when it had been dishonored. But that delay cannot justify the ship's delivery of the cotton, on the day after its arrival, to persons who had no bill of lading and no authority whatever to receive it. Had the delay been instrumental in causing such a wrongful delivery, had it been active interposition to mislead the ship, a different case might possibly have been presented. But at most the laches of the libellant was mere inaction, and the wrong delivery was in no degree due to it. The delivery was, as we have stated, made on the morning after the ship's arrival in port, and the ship's order for delivery to Bennett, Van Pelt & Co. was issued before the libellant could have known of its arrival. We say this, notwithstanding the testimony of James Van Pelt, which is plainly in conflict with the proved and conceded facts of the case. And as the cotton was sold for cash on the 3d of February, the very day of its delivery, the failure of the libellant to claim it until some weeks afterwards, wrought no injury or loss to the carrier, so far as it appears. We are, therefore, of opinion that the ship is clearly liable for the cotton to the libellant.

And we think that the libel was rightly filed in the name of Billopp Seaman. By the indorsement of the bills of lading the legal ownership of the cotton passed to him, as well as the right to control its delivery. It is a matter of no importance that the beneficial interest may have been in the bank of which he was cashier. The holder of a legal right may always assert it by suit, though he may be accountable to another for what he may recover. A judgment in his favor may always be pleaded in bar against a suit by the beneficial owner. Besides, it is settled that the agent of absent owners may libel in admiralty, either in his own name or in that of his principals.

DECREE AFFIRMED.

title: The Thames/Opinion of the Court


text: Talk:The Thames/Opinion of the Court

title: Talk:The Thames/Opinion of the Court


text:
Mahan v. United States (81 U.S. 109)

THIS was a motion in a suit which had come here on appeal from the Court of Claims; the case being thus:

Some years ago, by act of Congress, appeals were allowed from the Court of Claims to this court; and this court, in conformity with authority given in the act, prescribed certain rules under which the appeals might be heard. They were thus:

RULE I.

In all cases hereafter decided in the Court of Claims, in which, by the act of Congress, such appeals are allowable, they shall be heard in the Supreme Court upon the following record, and none other:

1. A transcript of the pleadings in the case, of the final judgment or decree of the court, and of such interlocutory orders, rulings, judgments, and decrees, as may be necessary to a proper review of the case.

2. A finding of the facts in the case by said Court of Claims, and the conclusions of law on said facts on which the court founds its judgment or decree.

The finding of the facts and the conclusions of law to be stated separately and certified to this court as part of the record.

The facts so found are to be the ultimate facts or propositions which the evidence shall establish, in the nature of a special verdict, and not the evidence on which those ultimate facts are founded.

RULE II.

In all cases in which judgments or decrees have heretofore been rendered, where either party is by law entitled to an appeal, the party desiring it shall make application to the Court of Claims by petition for the allowance of such appeal. Said petition shall contain a distinct specification of the errors alleged to have been committed by said court in its rulings, judgment, or decree in the case. The court shall, if the specification of alleged error be correctly and accurately stated, certify the same, or may certify such alterations and modifications of the points decided and alleged for error as, in the judgment of said court, shall distinctly, fully, and fairly present the points decided by the court. This, with the transcript mentioned in Rule 1 (except the statement of facts and law therein mentioned), shall constitute the record on which those cases shall be heard in the Supreme Court.

RULE III.

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.

These rules not being found quite sufficient, this court at a later date (December Term, 1869) adopted two additional rules, thus:

RULE IV.

In all cases in which either party is entitled to appeal to the Supreme Court, the Court of Claims shall make and file their finding of facts, and their conclusions of law therein, in open court, before or at the time they enter their judgment in the case.

RULE V.

In all such cases either party, on or before the hearing of the cause, may submit to the court a written request to find specifically as to the matter of fact which such party may deem material to the judgment in the case, and if the court fails or refuses to find in accordance with such prayer, then such prayer and refusal shall be made a part of the record, certified on the appeal, to this court.

In this state of the rules, Mrs. E. Mahan claiming certain property in the treasury of the United States, and having made a claim and produced her evidence in the Court of Claims, filed a written request to the court, before its decree was rendered, that it would find, as a matter of fact, that the title and ownership of the property in question was in her, and that she was entitled to recover the proceeds thereof. The court refused to do this, but found, to the contrary, that she was not the owner of the captured property, and was not entitled to the proceeds of it in the treasury.

Having set forth these facts in this court, where the case had now been brought by her on appeal, her counsel, Mr. R. M. Corwine, now moved to remand the case for further findings, maintaining that, under Rule 5, above quoted, regulating appeals from the Court of Claims, she was entitled to have all the evidence which was before the Court of Claims brought here, and have this court decide the question which she propounded to that court.

And it was argued by him that these rules, especially the 4th and 5th rules, were adopted in order and to the end that disputed questions of fact might be brought here for review.

Mr. B. H. Bristow, Solicitor-General, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Mahan v. United States (81 U.S. 109)


text: Talk:Mahan v. United States (81 U.S. 109)


text:
Mahan v. United States (81 U.S. 109)/Opinion of the Court

The view taken by the appellant's counsel of the rules regulating appeals from the Court of Claims, is a total misconception of their spirit if not of their letter. It is not possible to look at the three first rules adopted when the appellate jurisdiction of this court was first exercised, without seeing that the purpose was to bring nothing here for review but questions of law, leaving the Court of Claims to exercise the functions of a jury in finding facts, equivalent to a special verdict, and with like effect.

In practice it was found that the Court of Claims did not, in many cases, make the necessary finding of facts until after they had rendered their decree, and complaints were made here that the findings were often insufficient to present the law points on which parties relied, and of which they desired a review in this court.

To remedy these evils the 4th and 5th rules were adopted at the December Term, A.D. 1869.

The fourth requires the Court of Claims to make and file their finding of facts in all cases where an appeal can be taken, in open court, at or before the time of entering their judgment. The fifth rule enables a party to obtain a finding of that court on any question of fact arising in the case and deemed by him essential to its decision. He has only to file a written request that, as to that point, the court will make a finding. But it was never supposed that the party would ask or the court must find the fact to be as the party claimed it, and if they did not, that he could, for that reason, bring the whole testimony here to show that he was right. To do this would be to render useless all the rules adopted by this court, and to reverse the system on which we have proceeded from the first.

The rule does say that if the Court of Claims refuses to find as prayed, the prayer and refusal must be made part of the record. The remedial purpose of this rule is that when a party has, in writing, indicated a specific question of fact on which he desires the Court of Claims to make a finding, and the court has neglected or refused to do so, this court may be able to determine whether the question is one so necessary to the decision of the case that it will send it back for such finding.

In the present case the Court of Claims did make a very explicit finding on the question of fact presented by the request of plaintiff, and this is all the rule required, though the finding is contrary to her averment.

MOTION OVERRULED.


text: Talk:Mahan v. United States (81 U.S. 109)/Opinion of the Court


text:
Foulke v. Zimmerman

ERROR to the Circuit Court for the District of Louisiana.

These were two suits in the court below, in the nature of actions of ejectment to recover certain lots in New Orleans, and also rents and profits. That court gave judgment in both cases for the defendants, and to these judgments the present writs of error were taken.

The case was submitted on briefs, by Mr. W. W. Handlin, for the plaintiff in error, and Mr. E. C. Billings, contra.

Mr. Justice MILLER stated the case and delivered the opinion of the court.

title: Foulke v. Zimmerman


text: Talk:Foulke v. Zimmerman

title: Talk:Foulke v. Zimmerman


text:
Foulke v. Zimmerman/Opinion of the Court

The plaintiffs claim, as heirs-at-law of Elizabeth Clew, who died in New York in the year 1859, and there seems to be no question that they are her next of kin, or purchasers from them, and that she died seized of the property.

The defendant claim as purchasers from John F. Clew, husband of said Elizabeth, under a will of said Elizabeth, probated in the proper court of New Orleans in January, 1861, which will declared him to be her sole heir and universal legatee.

This will was admitted to probate in Louisiana on the strength of an order of the surrogate of New York admitting it there, as her last will and testament, and the record of the Surrogate Court of New York, on which the will was probated in New Orleans, showed that an appeal had been taken from the order establishing the will. This appeal was prosecuted to success, so that in February, 1861, very soon after the probate in New Orleans, the Supreme Court of New York reversed the order of the surrogate and made up certain issues of fact to be tried by a jury. The case in New York seems to have remained in this condition until November, 1866, when the trial was had and verdict and judgment rendered that the supposed will had been revoked and that Elizabeth Clew died intestate.

In the meantime John F. Clew had administered upon the estate in Louisiana, and in August, 1864, filed his final account, and on the 29th March, 1866, received from the Probate Court an order of final discharge, placing him in possession of the property as universal legatee of Elizabeth Clew. On that day, and on the 11th day of April, 1866, just after this order, John F. Clew sold at public auction the lots now claimed, by two separate sales, to Phelps and to Laymond, under whom defendants claim, and the deeds were duly recorded in the proper office, one on the 11th and the other on the 13th day of April. All this was before the verdict and judgment declaring the will void in New York.

It also appears that in the year 1864, three years after the issues of fact had been ordered by the Supreme Court of New York, and two years before those issues were tried, the plaintiffs, or the heirs of Elizabeth Clew, under whom they claim, made a compromise with John F. Clew, and for the consideration of $30,000 he made them a quit-claim deed of all his interest in the estate of Elizabeth Clew, of which compromise and deed the New Orleans purchasers had no notice, and which was not recorded in Louisiana until after their purchase and after their deeds had been recorded. Nor does it appear that they were parties or had notice of the proceedings in New York by which the will of Mrs. Clew was held void.

These facts are all found by the court as the foundation of its judgment, with others which we do not deem material. For instance, it is found that proceedings were taken by the heirs to have the probate of Elizabeth Clew's will in New Orleans set aside, but as this was after the purchase under which the defendants claim, and without notice to them, we think they cannot be bound by it.

Nor do we think that the collusive trial in New York between John F. Clew and the heirs of Mrs. Clew can have any effect on the rights of the defendants derived under the probate of the will in New Orleans.

The facts found by the court show beyond doubt that this trial was had two years after Clew had sold out the subject of litigation to the other parties to the suit, and eight months after the defendants had, in ignorance of this sale, bought of him, as the rightful owner, so established by the New Orleans court. There can be but little doubt that Clew defrauded both parties, and that the defendants were innocent purchasers from him, and that plaintiffs might have protected both themselves and the defendants by recording their quit-claim deed, which they had withheld from record for two years, and that their failure to do this enabled him to commit the fraud. Finding that they had thus lost the lots in controversy, so far as any claim through that deed was concerned, they revive the suit in New York which had slumbered for five years on the issues ordered for a jury, and now having both sides of the litigation in their own hands they procure a verdict setting aside the will, to enable them to claim the land as heirs of Elizabeth Clew, instead of purchasers under John F. Clew.

We think that this cannot prevail, though supported by an ex parte proceeding in the New Orleans court by which the former orders probating Mrs. Clew's will and recognizing John F. Clew as sold heir and legatee were set aside. The defendants were innocent purchasers without notice of anything wrong, being justified by the judgment of the Probate Court in the assumption that they purchased the legal title; and if, by making them parties to a proper proceeding, this probate and sale could, under any circumstances, be set aside, we are of opinion that the proceedings in New York, on which the Louisiana court revoked its former action, were collusive and fraudulent as against the defendants, who, under the facts found by the court, are entitled to be protected in their possession.

As this was the conclusion of the Circuit Court, its judgment is

AFFIRMED IN BOTH CASES.


text: Talk:Foulke v. Zimmerman/Opinion of the Court


text:
The Bridgeport

APPEAL from the Circuit Court for the Eastern District of New York.

On a September night of 1865, the ship Margaret Evans, having a night watchman on board, but no light on deck, lay at a wharf at Corlaer's Hook, on the East River side of New York. She was not lying at the front of the wharf in the open stream, but at the end or return thereof, in a rectangular recess, as if she were inside of a pier, the wharf projecting some thirty or forty feet beyond her into the river, and a large sloop of war lying outside of that. She was thus more than two hundred feet outside of the open channel, and three hundred or four hundred feet from the ordinary track of steamers passing along the East River in their usual course.

The river, which is about a mile broad here, makes nearly a right angle. Vessels from Long Island Sound come down on a southerly course to this point, and having rounded the Hook they then pursue a westerly and southwesterly course to gain the lower part of the city.

On the night referred to the steamer Bridgeport was coming down the Sound, on her regular trip from Bridgeport, Connecticut, to the city of New York, bound for her berth at Peck slip, which is about three-quarters of a mile below Corlaer's Hook. She arrived off the Houston Street ferry, in the East River, half a mile above Corlaer's Hook, about three o'clock in the morning. The night was sufficiently clear for the persons in charge of the steamer to see their location and to maintain their usual speed up to this point. But here they struck a fog bank, which, as they entered it, shut out the view of the shore. They could discern the nearest lights and hear the bells at the ferry slips. The steam was shut down and the vessel proceeded slowly on her course. The tide being flood, and pretty strong, she had to work against it; but this gave her sufficient steerageway without necessitating much absolute speed. The vessel was making three or four miles an hour. When she passed the Grand Street ferry, only three or four hundred feet above Corlaer's Hook, the ferry lights on the New York side were observed, and the bell was distinctly heard. Neither lights nor the bells on the Williamsburg (or Long Island) side were noticed. The vessel was thus shown to be nearer to the New York than to the other shore; and must of course have been hugging the New York shore closely for so dark a night, in so crowded a place. When they saw the lights of the Grand Street ferry, the wheelsman commenced turning for the purpose of rounding the point. 'We judged ourselves,' he testified, 'well enough off to make our way; pretty close in, but far enough to clear her.' Unfortunately, they shaved the point a little too closely. In less than two minutes after passing the ferry lights, and about a minute and a half after the wheelsman began to hold up for a change of course, the bow of the steamer struck the Margaret Evans on her starboard side, just abaft the forerigging, severely injuring her. Her owners accordingly libelled the Bridgeport for damages. The District Court held that there was negligence on the part of the master,

1. In not knowing the proper time and place when and where to round the point.

2. In commencing to turn when opposite Grand Street ferry, which he should not have done until she had passed some two hundred and sixty feet below the ferry, and

3. In drawing in too close to the New York shore.

The decree in the District Court was accordingly for the libellants; a decree which the Circuit Court affirmed. The case was now here for review.

Mr. E. H. Owen, for the appellants:

The court below decided the case on facts and circumstances as they appeared in the light of the event, whereas they should have decided it upon the facts and circumstances as they existed, and as they appeared to the master at the time and place of the accident. The master's judgment as to the proper mode of navigating the boat had to be formed at night, in a thick fog suddenly coming upon him, when he could not see, and when the officers of the boat supposed that they were far enough off from shore and far enough advanced to change their course for rounding the Hook. No witness pretends to say that the judgment was unwisely or improperly formed.

The Margaret Evans was lying in harm's way, having no light on her deck. This should be regarded as a fault on her part. Even if it were not a fault, it is a circumstance to be taken into consideration in deciding whether there was any fault or negligence on the part of the steamboat.

Mr. D. D. Lord, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: The Bridgeport


text: Talk:The Bridgeport

title: Talk:The Bridgeport


text:
The Bridgeport/Opinion of the Court

The point where the Margaret Evans was struck by the steamer was over two hundred feet outside of the open channel or passage-way for vessels, and three or four hundred feet from the track which the steamer ought to have pursued. The latter had got that much out of her way in one and a half or two minutes, whilst running not more than five or six hundred feet. It seems almost impossible that she could have gone so far astray in so short a time, with points of observation so near at hand, without great want of skill, or great inattention to the compass and other indicia of course and position. When off the Grand Street ferry her officers must have known nearly her precise position in the river. Her deviation from the channel seems utterly inexcusable. The only excuse which her officers proffer is, that it was so dark they could not see, and they supposed they were far enough off from shore, and far enough advanced, to change their course for rounding the Hook.

An attempt is made, indeed, to throw the blame on the Margaret Evans herself, because she did not have a light, and because she had no anchor watch. The fact is, she had a night watchman on board, and as to a light, we think it is hardly necessary for a vessel lying at a wharf, more than two hundred feet outside of the channel, to anticipate the visit of stray steamboats in the night-time and to make provision for such an exigency. In Culbertson v. Shaw, Mr. Justice McLean states the law to be: 'When a boat is anchored in the path of vessels, a light is indispensable; but it is not required where the boat is fastened to the shore, especially at a place set apart for such boats.' If it were shown that the local harbor regulations required it, the case might be different. But there is no proof that the harbor regulations of New York required vessels moored at a wharf, out of the track of other vessels, to carry a light; and without an express regulation to that effect the law does not make it incumbent on them to do so. In the case of The Granite State, it was shown that the harbor regulations of New York did not make it obligatory on barges moored at a wharf to have either a light or a watch; and the colliding steamer in that case was held liable, though it was so dark that the barge could not be seen till close to her, and though at the time the steamer was seeking to avoid contract with other vessels coming out of their docks. Where the question of fault in a collision lies between a vessel at anchor, or at a wharf, out of the track of other vessels, and not derelict in duty, and a steamer navigating a channel of sufficient width for her to move and stop at pleasure-there being no unusual stress of weather or superior force to drive the latter out of her course-it was held in the case just cited that the fault, under almost any circumstances, would be held to be with the steamer. In this case we see no fault at all in the Margaret Evans. She had a competent night watchman on board, and was entitled to be considered as safe from any collision from vessels navigating the East River.

DECREE AFFIRMED WITH INTEREST AND COSTS.

title: The Bridgeport/Opinion of the Court


text: Talk:The Bridgeport/Opinion of the Court


text: Armstrong v. Morrill

title: Armstrong v. Morrill


text: Talk:Armstrong v. Morrill

title: Talk:Armstrong v. Morrill


text:
Armstrong v. Morrill/Opinion of the Court

ERROR to the District Court of the United States for West Virginia; the case having been thus:

Lot M. Morrill brought ejectment, on the 15th of April, 1857, in the District Court for the Western District of Virginia (now the court below), both having circuit court jurisdiction, against Armstrong and others, to recover 1500 acres of land. In one count Morrill alleged that he was possessed of it when the defendants wrongfully entered; in another, that James Dundas and Benjamin Kugler were so possessed. An amended declaration alleged, in its first court, the possession to have been jointly in Morrill, Dundas, and Kugler; and in its second, to have been in Morrill alone. In a new count still, the possession was alleged to have been in William M. Tilghman.

The plaintiff's title rested on a survey to Albert Gallatin, dated June 12th, 1770, for a large tract (of which that in controversy was said to be part), followed by a patent dated February 10th, 1786, for the tract described in the survey. In 1794 Gallatin conveyed to Robert Morris, of Philadelphia, who, in 1795, made a deed of the tract to Thomas Willing, John Nixon, and John Barclay, and the survivors and survivor in fee, in trust for a land association, called the North American Land Company. Messrs. Nixon and Barclay accepted the trust. Mr. Willing's action appeared before the court no otherwise than by a paper which the plaintiffs offered in evidence, thus:

'I Thomas Willing, of the city of Philadelphia, do hereby declare and make known unto all whom it doth or may concern, that immediately on my receiving notice that Robert Morris had conveyed certain estates of land to John Nixon, John Barclay, and myself, in trust for the North American Land Company, I did positively refuse to accept or to act under the trust so intended to be created, and that I have at no time since accepted the said trust, or acted in any wise as trustee in relation thereto.

'Witness my hand, this 19th day of December, 1806.

'THOMAS WILLING.'

The death of Mr. Willing, who was president of the first Bank of the United States, and otherwise, in his day, one of the best known characters in Philadelphia, and the genuineness of his signature, were sworn to ex parte, by one of his sons and by two other witnesses, and the signature was certified by the examiner of the Supreme Court of Pennsylvania, in 1844, to have been 'proved' before him in due form of law. The instrument had also, along with the affidavits and the examiner's certificate of probate, been admitted to record by the clerk of Cabell County, Virginia, where apparently some of the lands lay.

The title being in this state, the legislature of Virginia, on the 27th of February, 1835, passed an act, by whose second section it was enacted that all lands not then in the actual possession of the owner, by himself or his tenant in possession, and which had not been entered for taxation on the books of the commissioners of the revenue, on which the taxes had not been paid, shall become 'forfeited to the Commonwealth,' after July 1st, 1836.

'That all right, title, and interest which may hereafter be vested in the Commonwealth by virtue of the provisions of the section of this act next preceding herein, shall be transferred and vested in any and every person or persons (other than those for whose default the same have been forfeited and their heirs or devisees), who are now in possession of said lands, or any part or parcel of them, for so much thereof as they have just title or claim to, legal or equitable, bon a fide claim held or derived under grants from the Commonwealth dated prior to April 1st, 1831, who shall have discharged all taxes duly assessed and charged against her, him, or them upon such lands, and all taxes that ought to have been assessed and charged thereon, from the time when he, she, or they acquired his, her, or their title thereto, whether legal or equitable.'

Under this act, the land conveyed by Mr. Morris became forfeited.

In 1844 the legislature passed 'An act for the relief of James Dundas and Benjamin Kugler,' who had apparently become large shareholders of the North American Land Company, and who by sundry conveyances were then vested with whatever estate Nixon had been vested with by the deed of 1795, of Mr. Morris to Messrs. Willing, Nixon, and Barclay. By this act of 1844, Dundas and Kugler were authorized to redeem the lands forfeited under the already-quoted act of 1835; on which redemption by them the title vested by the forfeiture was released by the terms of the act to them for the benefit of the land company.

The act contained, however, in its second section, this proviso:

'Provided, however, that nothing herein contained shall be construed to deprive any persons having a legal or equitable title to these lands, by virtue of a subsequent grant from the Commonwealth, or otherwise, of his, her, or their right, title, or interest, but the rights of such claimants shall remain the same as if this act had never been passed.'

Dundas and Kugler having, in May, 1845, redeemed the land, now put in evidence the certificate of the Auditor of Public Accounts of Virginia, to show that the taxes had been paid in pursuance of the act of 1844, and in 1845 the heirs of Barclay, who had survived Nixon, conveyed all his estate in the lands to Dundas and Kugler, as trustees of the North American Land Company. These two conveyed to Morrill, the plaintiff.

So far as to the plaintiff's title; as to which it will be observed that if any title passed to Mr. Willing by the deed of Mr. Morris to him, Nixon, and Barclay, and had not passed from him by his disclaimer of 1806, then his estate, whatever it was, had not been conveyed to any one.

Now as to the defendant's title. Surveys having been made in different parts of the State, subsequent to the treaty of 1783, which included within their exterior boundaries smaller tracts of prior claimants, and these being reserved to such claimants in the certificates granted by the surveyors, doubts arose as to the authority of the governor to grant patents in such cases. The legislature of Virginia accordingly passed, June 2d, 1788, an act to authorize the governor to issue them. This act made a recital and enactment thus:

'Whereas sundry surveys have been made in different parts of the Commonwealth, which include in the general courses thereof, sundry smaller tracts of prior claimants, and which, in the certificates granted by the surveyors of the respective counties, are reserved to such claimants; and the governor or chief magistrate is not authorized by law to issue grants upon such certificates of surveys.'

SECTION 1. 'That it shall and may be lawful for the governor to issue grants with reservation of claims to lands included within such surveys, anything in any law to the contrary notwithstanding.'

With this statute in force, one Samuel M. Hopkins obtained a survey and patent from the State of Virginia, dated July 1st, 1796.

The survey was for 200,000 acres, and gave boundaries including a much larger area, closing with this statement, to wit:

'An allowance of 227,460 acres is made in the calculation of area of this plat for prior claims included within boundary thereof.'

The patent followed the boundaries of the survey in its grant of the 200,000 acres, and concluded as follows:'But it is always to be understood that the survey upon which this grant is founded includes 227,460 acres, exclusive of the above quantity of 200,000 acres, all of which having a preference by law to the warrants and rights upon which this grant is founded, liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants; and this grant shall be no bar in either law or equity to the confirmation of the title or titles to the same as before mentioned and reserved, with its appurtenances; to have and to hold the said tract or parcel of land, with its appurtenances, to the said Samuel M. Hopkins (except as before excepted) and his heirs forever.'

This title of Hopkins became afterwards vested in one Watson.

Evidence was given tending to show that the patent to Hopkins embraced within its exterior boundaries the entire tract claimed by the plaintiffs, and that the defendants and those under whom they claimed had paid the taxes and assessments thereon, from the month of September, 1834, to the year 1840.

In addition to this paper-title the defendants set up also one founded on adverse possession. They had taken actual bon a fide possession of the land in 1827, and had kept possession up to November 1st, 1836, when the premises in controversy were forfeited to the State, any they continued to occupy them throughout the term that the title was vested by the forfeiture in the State, and so also after May, 1845 (when by the redemption the tract was revested in its original owners), to the time when the suit was instituted, April 15th, 1857. Such possession before the forfeiture was, however, it will be observed, not for the term of fourteen years, the time then required by law in Virginia to bar a recovery, nor did such possession subsequent to the date of the revestiture, and before the bringing of this suit continue long enough to bar a recovery. The term before the forfeiture and the term after the revestiture tacked together constituted, however, an adverse possession of fourteen years, and would maintain the defence.

The defendants below-who had objected to the reception in evidence of what was called the disclaimer of Mr. Willing (the paper printed supra, pp. 121-2), and had excepted to its admission maintained:

I. As related to the construction of the patent to Hopkins.

1. That by its terms it covered all lands lying within its exterior boundaries, except such as came within the reservation contained therein; and that the burden was on the plaintiff to show himself within the reservation, which he had not done.

2. That only lands held by inchoate equitable title, not carried into grant when Hopkins's entry and survey were made, come within the reservation.

3. That lands lying within the exterior boundaries of the Hopkins grant, which had been patented prior to Hopkins's entry, survey, and grant, would, upon becoming forfeited to the State of Virginia, by virtue of the act of 27th February, 1835, inure to and vest in those holding under the Hopkins patent, provided such owner had complied with the other conditions mentioned in said act.

II. As related to their second ground of defence, namely, adverse possession, the defendants contended:

1. That the continuity of adverse possession as against the prior owners was not broken by the forfeiture and vesting in the State, November 1st, 1836, and continuance till redeemed by Dundas and Kugler in 1845.

2. That if it was broken, it was restored upon the principle of remitter or relation upon the redemption by Dundas and Kugler. And if neither—

3. That it was competent for the defendants to tack the adverse possession prior to the forfeiture to that subsequent to the redemption, in order to make out the fourteen years required by the statute to bar the action.

The defendants accordingly asked the court to charge:

'First. That the reservation in the patent to Hopkins, was of lands the titles to which were inchoate, and not of lands which had been granted by patent previous to the date of Hopkins's survey and entry.

'Second. That the patent covered all lands lying within the exterior boundary of the survey, for which patents had issued previous to Hopkins's entry, survey, and patent, and became a junior grant to that issued to Gallatin.

'Third. That if Watson was the owner of the land described in the patent to Hopkins at the time the land in controversy became forfeited to the Commonwealth; and if he was, on the 27th of February, 1835, and up to the time of the forfeiture, in the actual bon a fide possession, by himself or tenant, of the land in controversy, or any part thereof, under the patent to Hopkins; and if he, Watson, had, at the date of the forfeiture, discharged all taxes upon the land, then that the Gallatin title inured to and vested in Watson, and that the plaintiffs could not recover.

'Fourth. That if the jury are satisfied, from the evidence, that adversary possession commenced before 1st of November, 1836, and the same possession continued during the time of the forfeiture, as well as from the 8th of May, 1845 (the time of redemption), up to the time of the institution of this suit, and by adding the time of adversary possession before forfeiture to the adversary possession after redemption, makes a period of fourteen years, then they must find for the defendants, or such of the defendants as make out the fourteen years aforesaid.

'Fifth. That the act of 1844, which authorized Dundas and Kugler to redeem the lands therein specified, did not so operate as to relieve them from the effect of the statute of limitations, which had commenced running for the defendants before the forfeiture, for the time the land in controversy was so forfeited, if the jury believe the defendants continued their possession without interruption during the forfeiture and up to the time of redemption, and that the defendants continued the possession to the time of the institution of this suit.'

The court refused these instructions, and charged that:

'The grant to Hopkins, embracing within its exterior boundaries 227,460 acres of land, which is reserved and excepted to prior claimants, does not operate to divest them of their title, unless they fail to show themselves entitled to the land under said reservation; nor does the grant pass any legal title to the grantee of the lands so reserved and excepted by it, where the same have been previously appropriated and granted by the Commonwealth, inasmuch as it appears that the patentee gets all the lands he paid for, or for which he is chargeable with taxes.

'To secure to the defendants the benefit of the forfeiture of the Gallatin title, the jury must be satisfied that the Hopkins grant is the younger, covers and includes the land in controversy, and that Watson and those claiming under him were in the actual possession of the land, claiming the same in good faith, having discharged all the taxes due the State duly assessed and charged against said land, as well as all taxes that should have been assessed and charged against the same from the date of the deed from Hopkins to Watson; otherwise, the forfeiture of the Gallatin title would not, under the act of 1835, be transferred to Watson or to those claiming under him.

'To defeat a recovery in this cause, under the statute of limitations, the defendants must have held unbroken and uninterrupted adverse possession of the premises in controversy, for a period of fourteen years prior to the institution of this suit.'

[The nature of this possession was explained by the court to the jury.]

'If Watson or those claiming under him entered upon the land claimed by the plaintiffs in 1832, '33, '34, '35, or '36, and the same became forfeited by the failure of the owners to enter the same upon the books of the commissioner of the revenue of the proper county and pay the taxes properly chargeable thereon, the same became vested in the Commonwealth by operation of law on the first day of November, 1836, and the possession of the defendants upon the said first day of November, 1836, terminated, and the possession of the land passed into and remained in the Commonwealth until the same was transferred to Dundas and Kugler by the act of the 12th of February, 1844; and the adverse possession acquired by the said defendants before the first day of November, 1836, cannot be connected with the adverse possession acquired by the defendants after Dundas and Kugler became revested with the title of the Commonwealth, under the act passed for their relief on the 12th of February, 1844.'

The defendants excepted to the ruling of the court refusing to give the instructions asked by them and in giving the instructions given.

The jury found a verdict for Morrill; the verdict containing nothing about Dundas, Kugler, or Tilghman. And no motion in arrest of judgment being made, nor any objection to the finding for Morrill alone, judgment was entered on the verdict. The defendants brought the case here.

Messrs. B. H. Smith, W. M. Evarts, and S. A. Miller, for the plaintiffs in error:

1. There is error in the form of the verdict. The code of West Virginia requires that the jury shall find for or against all the parties to the record. The present verdict fails to find at all as to Dundas, Kugler, and Tilghman, who were co-plaintiffs with Morrill.

2. The writing purporting to be signed by Mr. Willing was made near eleven years after Mr. Morris's deed to him. It has no seal. It was thus not a deed; or as such operating to reconvey the estate previously vested in him. Neither was it testimony to prove that he did not become a trustee. In no view then is it of value. It had none of the forms and requisites of a deposition, competent to prove his renunciation of the trust prior to the estate's vesting, nor was it sufficient in law to divest him of the estate when it had once become vested.

3. The first three instructions asked by us have reference to the same legal question, and should be considered together. By the act of June, 1788, a person having a survey, including in its bounds prior claims of others, might have a patent according to the bounds of such survey, excepting in the patent all such prior claims. Such patents were numerous under that act, and became known to the country and the courts as 'inclusive surveys.' The patent of Hopkins shows the form of the reservation adopted by the executive of Virginia. That form is common to all inclusive grants. The exception necessarily excludes from its operation a patent which is older than the entry or survey on which the exclusive grant is founded.

The words 'prior claims,' in the statute, refer to entries and surveys which precede a patent, and constitute only equitable or inchoate titles, which would be defeated by the first patent, giving the elder legal title, without the exception. No such exception is necessary to protect an existing patent. But the elder legal title protects itself. The words 'prior claims,' used in the statute, had thus received, by prior use in Virginia legislation about lands, a distinct and definite application to equitable titles.

If the patent to Gallatin, dated in 1786 (nine years before the entry of the inclusive grant), is not within the exception, then Hopkins's patent secures to the patentee the same title to the land that a junior patent located on an elder patent would secure. It is a title well known and well understood in Virginia legislation. The whole of West Virginia was covered with large elder grants, and occupants under junior grants have been sedulously protected against such large unsettled surveys, on which elder grants have been issued. Where these elder grants have been forfeited for non-payment of taxes and non-entry, the law casts the forfeited title on the junior grant. As the land of Hopkins or Watson was not forfeited, the taxes paid and the land occupied, the forfeited Gallatin title, which is the land in controversy, inured to Watson and those holding under him at the junior grantee.

We therefore contend that the first, second, and third instructions ought to have been given.

4. As to the adverse possession: The court erred in not giving the fourth and fifth instructions asked for.

The fourth instruction asked to unite the adversary possession which occurred before forfeiture with the possession after redemption. This indeed falls short of the legal rights of the defendants, for when time commences to run there is no law that stops it. But suppose that it stops for the State, it does not follow that it stops for the defaulter. So far as it has run, it is valid. After the redemption, the time run is also valid. Is it not just then to unite them? By the instruction asked for by us the plaintiff gained the time of the forfeiture; but that gain, obtained by sheltering himself under the State, has no such merit as to avoid the valid time which preceded the forfeiture.

The fifth instruction should also have been given. If this was a suit with the State, or a purchaser from the State, the statute might not be a bar. But it is a suit between individuals, one of whom for a time had lost his estate by neglect of duty; yet, by the leniency of the government, he is allowed to be remitted to his former estate without prejudice to his rights by the State. He pays taxes and redeems. He does not hold under the State, but under his own title, which he had redeemed. He pays no consideration to the State. He pays the debt for which the State held a lien on the land. He cannot and ought not to be permitted to thrust the State between him and the defendants.

5. There is also error in the instructions actually given by the court, and excepted to by the defendants.

Mr. G. D. Camden, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

Absolute title and the right of possession are claimed by the plaintiff to the tract of land in controversy, and the actual possession of the same being in the four defendants named in the declaration, he brought an action of ejectment against them to recover possession of the tract. He alleges in the first count of the original declaration that on the day therein named he was possessed in fee simple of the tract; that on the eighth of October following the defendants entered into the premises, and that they unlawfully withhold from him the described tract. Quite unlike that, the second count alleges that the primary possession of the tract was in one James Dundas and one Benjamin Kugler, and that the defendants unlawfully withhold the possession from those parties. Process was served and the defendants appeared and demurred to the declaration, and the court sustained the demurrer as to the second count but overruled it as to the first. Leave to amend was granted, and an amended declaration was filed, containing three counts, of which the first is in the name of the plaintiff and the other two persons named in the second count of the original declaration. All three sue in that count as joint plaintiffs, but the second count corresponds in all respects with the first count in the original declaration, which renders it unnecessary to describe the third, except to say that the other two persons are alleged to have been the primary possessors of the tract, and that the claim to recover possession is made in their names as well as the claim for damages. Both parties acquiesced in the decision of the court overruling the demurrer to the first count and sustaining it as to the second of the original declaration, and the defendants pleaded to the merits that they were not guilty of withholding the premises as alleged in the new counts filed by leave of court. Issue was tendered and joined, but the plaintiffs, before trial, obtained leave to file a fourth count, in which it is alleged that one William M. Tilghman was the primary possessor of the tract, and the charge, in that count, is that the defendants unlawfully withhold from him the actual possession of the same described tract of land. Subsequently the parties went to trial and the verdict was for the plaintiff, as described in the first count of the original declaration, and also in the second count of the amended declaration.

By the verdict the jury found that the plaintiff, Lot, M. Morrill, had an estate in fee simple in the premises, except as to a small parcel therein described, and they also assessed nominal damages for the plaintiff. Judgment was duly rendered against the first three defendants, the death of the other having been suggested before the trial, and the survivors sued out a writ of error and removed the record into this court.

To sustain the issue on their part the plaintiffs gave in evidence: (1.) A copy of a survey made by the surveyor of the proper county of the State for Albert Gallatin, assignee of Stephen Lacoste, of fifteen hundred acres of land, part of a land-office warrant of five thousand acres, dated June 27th, 1770, bounded as therein described. (2.) Copy of the patent to Albert Gallatin, dated February 10th, 1786, for the tract of land described in the survey. (3.) Also copy of a deed from Albert Gallatin, dated May 7th, 1794, to Robert Morris, conveying the same land. (4.) Deed from Robert Morris and others to Thomas Willing, John Nixon, and John Barclay, dated March 5th, 1795, conveying the premises to them and the survivor and survivors of them, and the heirs of the survivor in trust, as more fully set forth in the deed exhibited in the record. (5.) Certificate of William F. Taylor, auditor of public accounts for the State, showing that James Dundas and Benjamin Kugler, trustees as aforesaid, on the eighth of May, 1845, redeemed the lands in question by the payment of the required sum into the treasury, in manner and form as more fully set forth in that certificate, and certain others also introduced by the plaintiff and exhibited in the bill of exceptions. (6.) Disclaimer of Thomas Willing, dated December 19th, 1806, in which he states that he did positively refuse to accept or act under the trust, and that he had not at any time since accepted the said trust, or acted in any wise as trustee, under that deed. (7.) Also deed dated June 17th, 1845, from John M. Barclay and others to James Dundas and Benjamin Kugler, conveying to them all the right, title, and interest of the two trustees who did accept the trust created by the preceding deed. (8.) Deed dated December 1st, 1854, from James Dundas and Benjamin Kugler, trustees of the North American Land Company, to the plaintiff in whose favor the judgment was rendered.

Evidence was also introduced by the plaintiffs showing that the land in controversy, on the 1st day of November, 1836, became forfeited to the State by virtue of the second section of the statute of the State passed on the 27th of February, 1835, as construed by the Supreme Court, or Court of Appeals, of that State. Forfeiture in such a case became absolute and complete by the failure to enter and pay the taxes on the land and the damages, in the manner therein prescribed, and no inquisition or judicial proceeding or inquest or finding of any kind was required to consummate such a forfeiture. Owners or proprietors of any tract of land lying west of the Alleghany Mountains, granted by the State before the first day of April, 1831, were required by the act of the twenty-seventh of February, 1835, to enter or cause to be entered, on or before the first day of July of the succeeding year, on the books of the Commissioners of the Revenue for the county wherein any such tract or parcel of land may lie, all such lands as he or they owned or claimed, through title derived, mediately or immediately, from the State, and have the same charged with all taxes and damages in arrear or properly chargeable thereon. They were also required to pay and satisfy all such taxes and damages which would not have been relinquished and exonerated by the second section of the act of the tenth of March, 1832, had they been returned for their delinquency prior to the passage of that act, and the provision was that if they failed to comply with those requirements 'all such lands or parcels thereof not then in the actual possession of such owner or proprietor, by himself or his tenant in possession, shall become forfeited to the Commonwealth after the first day of July, eighteen hundred and thirty-six, except only as hereinafter excepted.'

Provision is also made by the third section of the act that all right, title, and interest vested in the State by the preceding section of the act shall be transferred and absolutely vested in any and every person or persons, other than those for whose default the same have been forfeited, their heirs, or devisees, now in actual possession of said lands, or any part of parcel of the same, for so much thereof as such person or persons have just title or claim to, legal or equitable, bon a fide claimed, held, or derived from or under any grant of the State bearing date previous to the period of time mentioned in the preamble to the second section, who shall have discharged all taxes duly assessed and charged against him or them upon such lands, and all taxes that ought to have been assessed and charged thereon from the time he or they acquired title thereto, whether legal or equitable. Appended to that section, however, is a proviso that nothing therein contained shall be so construed as to impair the right or title of any person or persons who have obtained grants from the State for the same land and have regularly paid the taxes thereon.

Section four provides, among other things, that the proprietors of such lands, their attorney or agent, of the land returned delinquent for non-payment of taxes for the years eighteen hundred and thirty-two and the succeeding year, may pay the taxes and charges upon said lands for each of those years to the sheriff of the county where the lands lie, and take his receipt therefor and deliver the same, on or before the first day of November, 1836, to the clerk of the County Court of said county.

Beyond all doubt the lands described in the deed of Robert Morris and others to the grantors of the plaintiff, became forfeited to the State by reason of the failure to enter the same on the books of the Commissioners of the Revenue, as recited in the preamble to the act of the twelfth of February, 1844, in which it is also stated that the grantors of the plaintiff petitioned 'the General Assembly for permission to redeem the said lands upon the payment of all the taxes and damages due thereon.' By the first section of that act they were empowered 'to redeem the whole or any part of the aforesaid lands by having the same entered upon the books of the Commissioners of the Revenue of the county wherein the land may lie, and assessed with all taxes due thereon, to be ascertained in the same manner that the back taxes on omitted lands are now ascertained by the several commissioners of delinquent and forfeited lands, and paying into the treasury of the State, on or before the first day of June' of the succeeding year, 'the amount of the taxes so assessed, together with six per centum per annum damages thereon.' They complied with those conditions, and the second section of the act provided, 'that upon the payment of the taxes and damages aforesaid, all the right, title, and interest which may have vested in the president and directors of the Literary Fund, by the said forfeiture, to such part or parts of the said lands as may be redeemed as aforesaid, shall be and the same are hereby released unto the said James Dundas and Benjamin Kugler,. . . for the use and benefit of the shareholders of the said North American Land Company.' Annexed to that, however, is a proviso that nothing herein contained shall be construed to deprive any person or persons having a legal or equitable title to any of these lands by virtue of a subsequent grant from the State or otherwise, of his or their right, title, or interest, but the rights of such claimants shall remain the same as if this act had never been passed.

Documentary evidences of title were also introduced by the defendants, as follows: (1.) The plat and certificate of a survey made for Samuel M. Hopkins for two hundred thousand acres of land in the county of Kanawha, dated the tenth of December, 1795, as more fully set forth in the record, which contains the following certificate: 'Surveyed for Samuel M. Hopkins two hundred thousand acres of land in the county of Kanawha, by virtue of two land-office treasury warrants, each for one hundred thousand acres;' and then follows the boundaries, at the close of which is the following statement: 'An allowance of two hundred and twenty-seven thousand four hundred and sixty acres is made in the calculation of the area of this plat for prior claims contained in (the) boundary thereof.' (2.) The patent, dated July 1st, 1796, issued on that survey to Samuel M. Hopkins for two hundred thousand acres by the governor of the State. Founded, as the patent is, upon the certificate of survey, it contains the same boundaries and concludes as follows: 'But it is always to be understood that the survey upon which this grant is founded, includes two hundred and twenty-seven thousand four hundred and sixty acres,' exclusive of the above quantity of two hundred thousand acres, 'all of which having a preference by law to the warrants and rights upon which this grant is founded, liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants,' and this grant shall be no bar in either law or equity to the confirmation of the title of titles to the same, as before mentioned and reserved, with the appurtenances. (3.) Deed from Oliver Wolcott and others to James T. Watson, dated June 22d, 1808, conveying to him, among other things, the lands embraced in the patent to Samuel M. Hopkins. (4.) Evidence tending to show that the patent to Samuel M. Hopkins embraced within its exterior boundaries the entire tract claimed by the plaintiff, as shown by certain plats which were also introduced. (5.) Parol evidence was also introduced by the defendants tending to prove that James T. Watson, claiming under the patent to Samuel M. Hopkins and the deed to himself, took actual and bon a fide possession, in the year 1827, of the lands in controversy, as well as of the coterminous surveys of Savary and Gallatin, previously introduced in evidence, and that he, as early as the month of September, 1834, discharged all taxes and damages rendered against him upon said two hundred thousand acres of land, and all that ought to have been charged against him up to the year 1840, as the same became due. (6.) Other evidence was also introduced by the defendants, deraigning the title from the last-named grantee to them or one of them, which it is not important to notice, as it is not the subject of controversy.

First objection to the judgment has respect to the form of the verdict, because it does not find for or against all the parties mentioned in the different counts of the declaration, but the court is of the opinion that the objection is without merit, as the finding conforms to the first count in the original declaration and to the second count in the amended declaration. No motion in arrest of judgment was made, and as no such question was raised in the court below, and as the finding is fully justified by two of the counts and by the evidence reported, the objection is overruled.

Adopting the order of events at the trial, the next question arises from the exception of the defendants to the ruling of the court in admitting in evidence the paper-writing called the disclaimer of Thomas Willing, in which he states, under date of the nineteenth of December, 1806, to the effect that he positively refused to accept the trust intended to be created by the before-mentioned deed to John Nixon, John Barclay, and himself, and that he never did accept the same or in anywise act as trustee under that instrument. Before offering that paper the plaintiff introduced the deed to which it relates, and having proved the signature of the signer, the plaintiff offered the paper as tending to show that the signer never accepted the trust described in that deed. Two objections were made to the admissibility of the paper: (1.) That it was insufficient as a disclaimer as it was not under seal, but the paper was offered merely as evidence to show that the signer never accepted the trust, and not as an instrument releasing a vested right, which is all that need be said in reply to that objection. (2.) That it was not admissible as evidence that he never accepted the trust, because it was not under oath. Appended to that paper are the affidavits of three witnesses proving that the signature of the signer is genuine. Annexed to that is the certificate of an examiner of the Supreme Court of the State of Pennsylvania, dated the third of March, 1844, that the signature of the signer of the paper was proved before him in due form of law, and also the certificate of the clerk of Cabell County Court, Virginia, under date of the twenty-ninth of March, 1856, that the instrument, together with the certificates of proof, was admitted to record.

Authorities are hardly necessary to show that the mere making of a trust deed, like the one in question, without any acceptance, express or implied, by the trustee, is not sufficient to vest in the trustee the title to the land mentioned in the deed, and that parol proof is admissible in such a case to show that the trust was never accepted. On the other hand, it is equally clear that if the trust is accepted, though but for a moment, parol proof to show a release of the title to the trust estate cannot be admitted. Offered as the paper-writing was, not as the release of a vested right, but merely as evidence tending to prove that the signer never accepted the trust created by the deed, no doubt is entertained that the evidence was properly admitted, as it is well-settled law that every conveyance which depends upon the act of the parties is imperfect for vesting the title without the assent of the parties to the same, either express or implied. Two of the trustees accepted the trust and proceeded to execute it, but it does not appear that the signer of the certificate ever joined with them in any act, either in managing or disposing of the estate. Obviously the weight of the evidence was for the jury, nor does it appear that other testimony to the same point was not introduced, as only so much is reported in the bill of exceptions as was necessary to raise the question of law. Admitted as it was, as a verbal act tending to show that the trust was not accepted, no doubt is entertained that the ruling was correct.

Exceptions were also taken by the defendants to the refusal of the court to instruct the jury as requested, and also to the instructions given in respect to the merits of the controversy. Very great doubts are entertained whether the evidence introduced by the defendants was such that the court would have been warranted in giving the first, second, or third instructions as requested, but the judgment of the court will not be placed upon that ground, as it is clear that the instructions given, if correct, were in all respects sufficient to dispose of the controversy, and as the verdict was for the plaintiff the only material inquiry remaining is whether the law was correctly given to the jury in those instructions.

Two hundred and twenty-seven thousand four hundred and sixty acres of land were embraced in the patent to Samuel M. Hopkins which was reserved and excepted to prior claimants, and the court, in its fourth instruction, told the jury that the patent did not operate to divest such prior claimants of their title unless they failed to show themselves entitled to the land under the said reservation; that the patent did not pass any legal title to the patentee of said lands, so reserved and excepted by it, where the same had been previously appropriated and granted by the State, inasmuch as it appeared that the patentee got all the lands he paid for or for which he was charged with taxes. What the defendants claimed was that the title under the Gallatin patent was forfeited and merged in the Watson claim under the act of the twenty-seventh of February, 1835, but the jury were instructed that the defendants could not derive any benefit from the supposed forfeiture unless the jury were satisfied that the patent of Hopkins, which was the junior patent, covered and included the land in controversy, and that Watson and those claiming under him were in the actual possession of the said land, claiming the same in good faith, having discharged all the taxes due to the State, duly assessed and charged against the same, from the date of the deed from Hopkins to Watson.

Apart from the merits the defendants set up the statute of limitations, and insisted that the action could not be maintained because, as they alleged, they had 'held unbroken and uninterrupted adverse possession of the premises in controversy for a period of fourteen years prior to the institution of the suit.' Pursuant to that claim the jury were instructed, in the first place, that the defendants, to sustain that defence, 'must have held possession of the premises by residence, improvement, cultivation, or other open, notorious, and habitual acts of ownership, for fourteen years' before the commencement of the action; but if the jury find that the defendant, Armstrong, resided there and was the owner of a lot in the town of Ripley, and in the immediate vicinity thereof he owned a tract of woodland, part of the land in controversy, from which land, claiming it as his own, he, for the time mentioned, openly cut and hauled his necessary supply of fuel, and also the timber necessary for the construction of various houses on the lot, and also inclosed certain portions of the land, such acts and use are equivalent to adversary possession from the time such acts and use were commenced.

But the evidence showed that the land, on the first day of November, 1836, became forfeited to the State, as matter of law, by the failure of the owners to enter the same upon the books of the Commissioners of the Revenue of the proper county, and pay the taxes properly chargeable thereon, and the court upon that subject instructed the jury that if they so found from the evidence, and that the possession passed into and remained in the State until the title was transferred to the grantors of the plaintiff, the defence under the statute of limitations was not sustained, as the adverse possession acquired by the defendants before the first day of November, 1836, cannot be connected with the adverse possession acquired by them after the grantors of the plaintiff became vested with the title of the State, under the before-mentioned act of the Assembly passed for their relief.

Two principal errors are alleged in the instructions: (1.) That the court did not instruct the jury that the land, when it became forfeited for non-entry on the books of the Commissioners of the Revenue, and for non-payment of taxes and damages, was transferred to and became vested in the owners of the Hopkins patent, under the third section of the act declaring the forfeiture. (2.) That the court erred in the instruction to the jury that the statute of limitations ceased to run when the land became forfeited to the State, and that the period of adverse possession before the forfeiture took place could not be added to the period which elapsed before the suit was commenced, subsequent to the time the title under the act of the Assembly was conveyed to the plaintiff's grantors, to make the required term of fourteen years to bar the title.

Such a construction of the act of Assembly as the one first claimed, certainly could not have been adopted unless it can be held that the proviso embraced in the Hopkins patent does not afford any protection to the owners of lands included in that survey, where the patents had been previously issued, which is the construction assumed by the defendants. They contend that the proviso only excludes from the operation of the grant the 'lands within its exterior boundaries, the titles to which were inchoate, and not lands which had been granted by patents previous to the date of that survey and entry,' which is a construction not to be sustained if another consistent with the language employed can be adopted better calculated to promote justice and to carry into effect the plain intent of the lawgiver.

On the other hand the plaintiff contends that the reservation excludes from the operation of the patent all lands held by them at the date of the survey, within the exterior boundary of the patent, whether the title was only inchoate or had been perfected by grants, which seems to be the more reasonable construction, and not inconsistent with the language employed.

By the terms of the reservation it is stated that the survey includes two hundred and twenty-seven thousand four hundred and sixty acres beyond the quantity granted to the patentee, in respect to all of which 'liberty is reserved that the same shall be firm and valid, and may be carried into grant or grants,' which means that all shall be firm and valid, whether held by complete or incomplete titles, but that such parts as are held by incomplete titles may be carried into grant, and that the patent founded on that survey shall be no bar, in either law or equity, to the confirmation of the titles to the reserved lands included within the exterior bounds of that survey.

Surveys had been made in different parts of the State, subsequent to the treaty of peace, that included smaller tracts of prior claimants within their exterior boundaries, and which were reserved to such claimants in the certificates granted by the surveyors. Doubts arose as to the authority of the governor to grant patents in such cases, and to remove those doubts the General Assembly, June 2d, 1778, enacted that it shall and may be lawful for the governor to issue grants with reservation of claims to lands included in such surveys, anything in any law to the contrary notwithstanding. Prior to the passage of that law the authority to issue such grants was at least doubtful, even if the power existed at all, and it is clear that the Assembly never intended that any such grant should cover any prior title, whether complete or incomplete, within the exterior boundaries of the survey. Supported as the proposition is by repeated decisions of the State court it is adopted without hesitation, as any other rule would work very great injustice. Where the exterior boundaries of a survey under that law upon which a patent is founded includes tracts belonging to prior claimants, the patentee cannot in such a case recover in ejectment without showing that the tract claimed by the defendant is not within the bounds of the excluded claims, which is a direct authority that the reserved lands in a case like the present did not pass to the patentee. Even more decisive also is the case of Nichols et al. v. Covey, in which it is determined that where a patent is issued in pursuance of the act of the second of June, 1788, which includes in its general courses a prior claim, it does not pass to the patentee the title of the State to the lands covered by such prior claim. On the contrary, the title of the patentee in respect to such a tract is not only subject to the title of the prior claimant, but if that title is only a prior entry and it becomes vacated by neglect to procure a survey and return the plat, any one may lay a warrant on the same, as in other cases of vacant and unappropriated lands. Exactly the same rule is laid down by this court in the case of Scott et al. v. Ratliffe et al., in which the opinion was given by the Chief Justice. He said such patents have been always held valid, so far as respects the land not excluded, but to pass no legal title to the land excepted from the grant, as the lands are in this case in the habendum of the patent, and not a doubt is entertained that the rule there laid down is the correct rule upon the subject.

2. Sufficient evidence was introduced by the defendants to show that they or some of them took adversary possession of the premises in controversy prior to the forfeiture of the same to the State, and that they continued to occupy the same throughout the period that the title was vested in the State, and after the State conveyed the tract to the grantors of the plaintiff to the time when the suit was instituted, but it is conceded that such adversary possession before the forfeiture was not for the period of fourteen years, the time then required by law to bar a recovery, nor did such adversary possession subsequent to the date of the conveyance by the State to the grantors of the plaintiff and before the service of process, continue long enough to bar a recovery. Both combined would maintain the defence, and of course if the statute continued to run during the period the title was vested in the State by the forfeiture, the instruction given to the jury was erroneous and the judgment must be reversed. Adverse possession was the defence in the case of Stoughton v. Baker, where the question arose in respect to the right of the defendant to an ancient grant which was subject to an implied limitation, and it was contended that he had been so long possessed of the premises that the State had no right to interfere in any form of legal remedy. Possession and uninterrupted enjoyment for a very long period was proved in that case, but the court held that the limitation could not be extinguished by any inattention or neglect in compelling the owner to comply with it, for no laches is to be imputed to the government and against it no time runs so as to bar the public rights, which is not more nor less than another form of words for expressing the ancient rule of the common law, that time does not run against the State.

Argument to show that the statute of limitations ceased to run when the forfeiture attached and the title became vested in the State can hardly be necessary, as the rule that time does not run against the State has been settled for centuries, and is supported by all courts in all civilized countries. Suppose that is so, still it is insisted that the two periods, that is, the period of adverse possession before the forfeiture and the period subsequent to the conveyance by the State to the plaintiff or those under whom he claims, may be added together and considered as one entire period, for the purpose of maintaining the defence, and it is clear if that proposition is correct the instruction given was erroneous. But the proposition cannot be admitted, as it is well-settled law that the possession, in order that it may bar the recovery, must be continuous and uninterrupted as well as open, notorious, actual, exclusive, and adverse. Such a possession, it is conceded, 'if continued without interruption for the whole period which is prescribed by the statute for the enforcement of the right of entry, is evidence of a fee,' and bars the right of recovery. Independently of positive statute law such a possession affords a presumption that all the claimants to the land acquiesce in the claim so evidenced and enforced, or that they forbear for some substantial reason to controvert the claim of the possessor or to disturb him in the enjoyment of the premises. Secret possession will not do, as publicity and notoriety are necessary as evidence of notice and to put those claiming an adverse interest upon inquiry. Mere occupation is not sufficient, but the possession must be adverse, as seizin and possession are supposed to be coextensive with the right, and that the possession continues till the party is ousted thereof by an actual possession in another under a claim of right.

Continuity of possession is also one of the essential requisites to constitute such an adverse possession as will be of efficacy under the statute of limitations. Whenever a party quits the possession the seizin of the true owner is restored, and a subsequent wrongful entry by another constitutes a new disseizin, and it is equally well settled that if the continuity of possession is broken before the expiration of the period of time prescribed by the statute of limitations, an entry within that time destroys the efficacy of all prior possession, so that to gain a title under the statute, a new adverse possession for the time limited must be taken for that purpose.

Beyond all question the case of Hall v. Gittings, one of the cases just cited, presented the same question as that involved in the case before the court, and the decision was that the forfeiture to the State within the period necessary to give effect to the statute did have the effect to break the continuity of adverse possession, and prevented the operation of the statute bar.

Viewed in any light the court is of the opinion that there is no error in the record.

JUDGMENT AFFIRMED.

Mr. Justice STRONG, with whom concurred Justices DAVIS and BRADLEY, dissenting.


text: Talk:Armstrong v. Morrill/Opinion of the Court