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United States v. Dawson (101 U.S. 569)/Opinion of the Court

This was an action on the bond of a collector of internal revenue. After the suit was brought, amicable continuances were granted, and then several statements of account were made by the auditing officer of the government. The last of these stated a balance against the collector of $2,115.25, which was paid by his executors before final trial. The only question raised in the court below and sought to be presented here is the date from which interest should be awarded on that sum.

The counsel for the government cite section 3624 of the Revised Statutes, which provides that where any person accountable for public money neglects or refuses to pay the sum or balance found due to the United States upon adjustment by the proper officer, he shall forfeit his commissions and pay interest at six per cent per annum from the time of receiving the money.

There is no question here of the construction of the statute, but whether the balance finally found due the government was for money received by him or for something else. The case was submitted to the court without a jury, and the finding of facts by the court is part of the record.

From this it appears that about the time the collector went out of the office he paid a large sum of money, which he supposed to be all that he owed the government. But he stood charged on the books of the department with a large sum for uncollected taxes. It was the adjustment of this account which occupied the three years in which the suit was pending.

The court finds that the final balance of $2,115.25 was made up of these uncollected taxes, for which he was still responsible, and was not for any money actually received by the collector.

Counsel for the government argue against this conclusion. But whether sound or not, it was a question of fact on which the finding of that court cannot be reversed here; and its judgment is accordingly

Affirmed.


text: Talk:United States v. Dawson (101 U.S. 569)/Opinion of the Court

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


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Butterfield v. Smith

APPEAL from the Circuit Court of the United States for the District of Kansas.

This suit was brought, Oct. 26, 1877, by Mary A. Smith, administratrix de bonis non, with the will annexed, of the estate of Julius C. Wright, deceased, to foreclose a mortgage made by Daniel M. Adams and wife to secure a note for $5,000 to said Wright. The latter died in 1874. His will, by which he appointed George B. Wright his executor, was admitted to probate, and the executor qualified. In an inventory of the estate this note was included as part of the assets. In April, 1875, the executor made application to the court for a final settlement. In his accounts he charged himself with the full amount of the inventory, and after the allowance of the proper credits, a balance was found in his hands which was ordered to be distributed in a specified manner, according to the terms of the will, but a balance of $6,840.25, one share, was left in his hands with directions 'to invest for Charles Wright, or pay the money pursuant to the will.' The executor died in 1877. The complainant, shortly after her appointment as such administratrix, commenced this suit, to which Adams and wife, and Oscar H. and Andrew J. Butterfield, with others, were made defendants. Adams and wife did not answer, but as to them the bill was taken as confessed. The Butterfields answered that they were the owners of the mortgaged property, and then, by way of defence to the mortgage, set up-1, that they were informed and believed that the note and mortgage sued on were not the property of the esta e of Julius C. Wright, but that the same were the property of Adams, the mortgagor, and were executed by him for the purpose of cheating and defrauding his creditors, and especially the appellants; and, 2, that the note sued on had been paid to George P. Wright, executor, 'as appears by the inventory and his final settlement, copies of which are hereto attached, marked exhibits A and B.' A decree was passed in favor of the complainant. The Butterfields then appealed to this court.

Mr. Alfred Ennis and Mr. C. A. Sperry for the appellants.

The settlement of the executor has the force and effect of a judgment. The only duty of the appellee was to see that the money was properly distributed pursuant to the order entered by the court when the settlement was made. The assets, including the note and mortgage in controversy, had been previously and fully administered. Brown v. Brown, 53 Barb. (N. Y.) 217; Campbell v. Thacher, 54 id. 382; State v. Stephenson, 12 Mo. 182; Picot v. Biddle, 35 id. 29; Williams, Adm'r, v. Petticrew, 62 id. 461; Sheets et al. v. Kirtley, id. 417; Tate v. Norton, 94 U.S. 746; Musick v. Beebe, 17 Kan. 47; Singleton v. Garrett, 23 Miss. 196; Lambeth v. Elder, 44 id. 81.

Mr. G. C. Clemens, contra.

MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.

title: Butterfield v. Smith


text: Talk:Butterfield v. Smith

title: Talk:Butterfield v. Smith


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Butterfield v. Smith/Opinion of the Court

No proof was put in on either side. The first defence, therefore, was clearly not sustained. Adams, the mortgagor, by not answering the bill, admitted the validity of the note, and the executor of the mortgagee, by charging himself with the note as part of the assets and settling his accounts on that basis, showed that he supposed the debt to be a valid one in the hands of the testator.

As to the second defence, it is claimed that the probate records attached as exhibits to the answer, showing the inventory and distribution, are conclusive evidence that the debt has been paid. Undoubtedly, final settlements of administrators and executors, when adjudicated, have the force and effect of judgments as between the parties to such settlements; but neither Adams nor these appellants were parties to this settlement, which concluded the executor and distributees, but no one else. Nothing is more common than for an executor or an administrator to charge himself with debts due the estate before they are collected, and thus expedite a final settlement. It would be dangerous to hold that, as between the executor or administrator and the debtor, such a settlement was conclusive evidence of the actual payment of the debt and the discharge of the debtor. The question presented by the answer is not whether the estate now owns the note secured by the mortgage, if it be still unpaid, but whether it has been paid.

Decree affirmed.


text: Talk:Butterfield v. Smith/Opinion of the Court


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Cowdrey v. Vandenburgh

APPEAL from the Supreme Court of the District of Columbia.

This was a bill in equity, filed by J. W. V. Vandenburgh, H. L. Crawford, and L. S. Filbert, trading as J. W. V. Vandenburgh & Co., against Rudolph Blumenburgh, to compel the surrender of a certain certificate, of which the following is a copy:--'No. 4441.]

OFFICE OF AUDITOR, BOARD OF PUBLIC WORKS,

'WASHINGTON, D. C., Dec. 6, 1873.

'I hereby certify that I have this day audited and allowed the account of J. V. W. Vandenburgh & Co., for work on Columbia Street, amounting to eight thousand four hundred and fifty-one dollars and eighty-eight cents.

'$8,451.88.

'J. C. LAY, Auditor.'

N. A. Cowdrey was subsequently made a party. A decree was rendered against him, from which he appealed to this court.

The remaining facts are stated in the opinion of the court.

Mr. Joseph H. Bradley for the appellant.

Mr. James G. Payne, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Cowdrey v. Vandenburgh


text: Talk:Cowdrey v. Vandenburgh

title: Talk:Cowdrey v. Vandenburgh


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Cowdrey v. Vandenburgh/Opinion of the Court

The complainants, composing the fi m of Vandenburgh & Co., of the District of Columbia, had, previously to Dec. 6, 1863, entered into contracts with the Board of Public Works of the District for grading, paving, and improving certain streets in the city of Washington. On that day, their account, amounting to $8,451.88, for work on one of the streets, was audited and allowed, and a certificate of the auditor to that effect was issued to them. On the 17th of February following the complainants borrowed of the defendant Blumenburgh the sum of $3,160 for six months, and deposited with him as collateral security the certificate, to be returned upon the payment of the money. The certificate was at this time indorsed by them in blank. When the money became due they called with the amount and accrued interest at the former place of business of Blumenburgh to pay the debt and take up their certificate; but he had disappeared, and no one there knew when he had left or whither he had gone. The complainants could not find him, nor any one representing or acting for him; and, what was of more consequence, they could not find their certificate either. He had clandestinely departed from the city; and they charge in their bill, in substance, that he always intended to cheat and defraud them; and that without their knowledge he has disposed of the certificate to some one, who in conjunction with him is attempting to wrongfully use it, and thus deprive them of their property.

By the legislation of Congress relating to the District of Columbia, certificates of allowed and audited accounts, like that in question, could be surrendered to a board of audit, and certificates of indebtedness against the District received for them; and these latter certificates could be exchanged for interest-bearing bonds of the District. The complainants, informed that the certificate belonging to them had been presented to the board of audit by agents of Blumenburgh, or of persons to whom it had been passed, for the purpose either of obtaining money therefor or bonds of the District, filed the present bill to arrest the further use of the certificate, and compel its restitution to them. Learning afterwards that the appellant, N. A. Cowdrey, of New York, claimed to be owner of the certificate, and was seeking to obtain for it from the board of audit a certificate of the indebtedness of the District, for which an interest-bearing bond could be issued, they amended their bill, and brought him in as a defendant.

In his answer he admits the possession of the certificate, and avers, in substance, that he purchased it in the ordinary course of business of a broker in Washington for value with other certificates of a similar character, but does not state what amount he paid for it; that he was at the time ignorant of the transaction between complainants and Blumenburgh stated in the bill, and that the certificate had the blank indorsement of the complainants, which justified him in concluding that they had parted with their interest; and he insists that he is therefore entitled to protection as a bona fide holder for value without notice. To the answer a replication was filed, and its affirmative allegations are unsupported by any proofs. The answer cannot, therefore, be taken as evidence on his behalf. He must, therefore, be treated as one standing in the place of Blumenburg, and holding the certificate subject to the claim and equities of the original holder. The certificate was not a negotiable instrument which could pass by indorsement and delivery. It was not a promise to pay any sum, nor was it an order upon any one or upon any fund for the payment of money, or for the delivery of any thing of value. It was simply a statement that the account of the complainants for work done by them upon one of the streets of Washington had been audited and allowed by an officer of the city, whose duty it was to ascertain and certify as to the amount and price of the work done by a contractor. Whoever takes such a certificate, whether with or without notice, takes it § bject to all the rights and equities of the actual owner, as much so as if it were tangible property in the streets.

The cases where by law certificates of a similar character are made negotiable can have no application. It is not pretended that any law of Congress has made the certificates of the auditors of the District of Columbia negotiable, or given to them any special character beyond that which they purport on their face to possess. Nor can any weight be given to the suggestion that, by custom, these instruments are considered and treated as negotiable paper in the District. There was no evidence offered of the existence of any such custom, even had such evidence been admissible to contravene an established rule of law.

That the purchasers of non-negotiable demands, like the certificate here, from others than the original owner of them, can take only such rights as he has parted with, except when by his acts he is estopped from asserting his original claim, is established by all the authorities. He must in such case, as Lord Thurlow said, abide by the case of the person from whom he buys. Cutts v. Guild, 57 N. Y. 229; Ingraham et al. v. Disborough, 47 id. 421; Bush v. Lathrop, 22 id. 535.

If the pledgee, Blumenburgh, had written over the blank indorsement of the complainants a formal assignment to himself of the claim, and in that form had sold the certificate to Cowdrey for value, it is possible that the latter might have successfully insisted that the complainants were estopped from asserting, as against him, ownership of the claim. The principle is well settled that when the owner of property in any form clothes another with the apparent title or power of disposition, and third parties are thereby induced to deal with him, they shall be protected. The case of McNeil v. The Tenth National Bank, in the Court of Appeals of New York, contains a clear statement of the law on this head. There, it is true, a certificate of stock was pledged with a blank assignment and power of attorney indorsed, which the pledgee afterwards filled up, and then disposed of the stock. It was evident that the owner contemplated that the blanks in the assignment and power should be filled up, if it should ever become necessary. 46 N. Y. 325.

But the principle stated by the court is as applicable where no such intention is manifested. The rights of innocent third parties, as the court there observes, 'do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance.' Here the complainants could have expressed in their indorsement the purpose of the deposit of the certificate with Blumenburgh,-that it was as security for a specified sum of money,-and thus imparted notice to all subsequent purchasers or assignees that the pledgee held only a qualified interest in the claim. But having indorsed their name in blank, they virtually authorized the holder to transfer or dispose of the certificate by writing an absolute assignment over their signature. Had it, therefore, appeared in this case that Cowdrey paid any money for the certificate, and took it with the assignment which he himself afterwards wrote over the signature of the complainants, we are inclined to think that his defence would have been sustainable. But as he has not shown that he parted with any value for the claim, and no assignment was at the time indorsed over the blank signature, he must be treated as standing in the shoes of his alleged vendor, Blumenburgh.

Decree affirmed.

MR. JUSTICE SWAYNE dissented.


text: Talk:Cowdrey v. Vandenburgh/Opinion of the Court


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Walden v. Skinner

APPEAL from the Circuit Court of the United States for the Southern District of Georgia.

The facts are stated in th opinion of the court.

Mr. Benjamin H. Hill for the appellant.

Mr. A. R. Lawton, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Walden v. Skinner


text: Talk:Walden v. Skinner

title: Talk:Walden v. Skinner


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Walden v. Skinner/Opinion of the Court

Trusts are either express or implied, the former being such as are raised or created by the act of the parties, and the latter being such as are raised or created by presumption or construction of law. Cook v. Fountain, 3 Swanst. 585, 592.

Implied trusts may also be divided into two general classes: First, those that rest upon the presumed intention of the parties. Secondly, those which are independent of any such express intentions, and are forced upon the conscience of the party by operation of law. 2 Story, Eq. Jur., sect. 1195.

Sufficient appears to show that Sarah S. Walden, the complainant, on the sixth day of May, 1874, filed her bill of complaint in the court below against the respondents, to wit, Darius S. Skinner and John N. Lewis and Charles S. Hardee, executors of Charles S. Henry, deceased, who in his lifetime was the trustee of Penelope W. Tefft and her three children. Preliminary to the charging part of her complaint she alleges and states that on the 28th of October, 1847, she intermarried with William P. Tefft, who on the 9th of August, five years later, departed this life intestate and without children, leaving the complainant as his sole heir and legal representative; that on the 4th of June, six years subsequent to the death of her first husband, she intermarried with Charles C. Walden, who, on the eighth day of December of the next year, departed this life testate, leaving no children by the complainant, and that he by his will bequeathed to her all the property and rights owned and possessed by her at the date of their marriage; and that the father of her first husband died intestate on the 30th of June, 1862, but that no administration was ever had upon his estate, and that his widow, the mother of her first husband, departed this life testate on the 11th of September eleven years later; that her first husband had two brothers at the date of her marriage neither of whom ever married and both of whom died without children, that at the death of the elder of the two he had a life policy of insurance for $5,000, which his administrator collected and paid to his two living brothers.

Allegations then follow in the bill of complaint which relate more immediately to the subject-matter of the controversy, from which it appears that Elias Fort, June 28, 1831, conveyed a certain tract of land to Charles S. Henry and Stephen C. Greene, as trustees and in trust for Penelope W. Tefft and her three sons, William P. Tefft, Henry D. Tefft, and Charles E. Tefft, and it is therein declared that the said property is for the use of the mother during her lifetime and the three sons, and that after the death of the mother it shall be for the use of the three sons alone as tenants in common, and that in case of sale 'the proceeds to be reinvested upon the same uses and trusts as aforesaid, and if not sold, then the property, after the death of the mother, was to be distributed by said trustees to each of the said sons as shall survive and attain the age of twenty-one years.'

Greene, one of the trustees, subsequently died, leaving Charles S. Henry the sole surviving trustee under the trust-deed, and she charges that on the 19th of July, 1848, the mayor and aldermen of the city of Savannah conveyed to him as such trustee a certain lot of land numbered five, Monterey Ward, in said city, the lot being then subject to certain annual groundrents, as specified in the conveyance, and the complainant avers that the conveyance is informal and incomplete, inasmuch as the trustee never signed it, as it was intended, and that it fails to set forth and express the trust interests of the three children as it should do. Wherefore she alleges that it should be reformed and be made to conform to the purposes of the trust as created and set forth in the original trust-deed.

Persuasive and convincing reasons in support of that request are alleged which will hereafter be reproduced when the merits of the controversy are considered.

Relief specific and general is prayed, as is more fully set forth in the transcript. Process was served and the respondents appeared, and after certain interlocutory proceedings filed separate answers.

All of the defences to the merits are set up in the answer of the first named respondent, who admits all of the preliminary matters alleged in the bill of complaint. He also admits that there was in existence at the time of the first marriage of the complainant the trust estate held by the surviving trustee arising under the conveyance from Elias Fort to the said two trustees, which, as he alleges, was held for the sole and separate use of the mother during her life, and remainder at her death to her three sons as tenants in common.

Prior to that transaction there is no controversy between the parties as to the facts, and he also admits that the authorities of the city conveyed the lot called Monterey Ward to the surviving trustee, but he alleges that by the terms of the conveyance the legal title to the lot vested in the trustee in trust for the sole and separate use of the mother, the trust being executory only so long and for such time as the cestui que trust should remain a feme covert; and he denies that the conveyance is informal and incomplete in any particular, or that it was ever expected or intended by any one that the trustee should sign the same, and he avers that it was accepted by the trustee for the purposes therein set forth.

Attempt is also made to enforce that view by a specific denial of most of the reasons assigned in the bill of complaint in support of the request that the conveyance to the trustee of the lot called Monterey Ward may be reformed so as to conform to the trusts created and expressed in the antecedent trustdeed.

Both of the other respondents allege that they are citizens of the State where the suit is brought, and deny that the Circuit Court had any jurisdiction to make or execute any order, judgment, or decree against them in the premises.

Proofs were taken, the parties heard, and the Circuit Court entered a decree in favor of the respondents, dismissing the bill of complaint. Prompt appeal was taken by the complainant to this court, and since the appeal was brought up she has filed the assignment of errors set forth in the brief of her counsel. They are ten in number, all of which will be sufficiently considered in the course of the opinion, without giving each a separate examination.

Before examining the questions presented in respect to the second deed, it becomes necessary to ascertain the true construction and meaning of the original trust-deed so far as respects the second trust therein created and defined. Eight hundred dollars constituted the consideration of the conveyance, and it was made upon the trust that if, during the lifetime of the mother of the three sons, it should be deemed advisable by her to sell and convey the premises, then upon this further trust that the trustees as aforesaid, or the survivor of them, upon her application and with her consent, signified by her being a party to the conveyance, will sell and convey the lot and improvements for the best price which can be obtained for the same, to any person or persons whatsoever, without applying to a court of law or equity for that purpose to authorize the same, and the proceeds thereof upon the same trusts as aforesaid to invest in such other property or manner as the mother of the sons shall direct and request for the same use, benefit, and behalf.

Explicit and unambiguous as that provision is, it requires no discussion to ascertain its meaning; nor is it necessary to enter into any examination of the third trust specified in the conveyance, as it is conceded that the trust property was sold by the surviving trustee for reinvestment during the lifetime of the mother at her request, she joining in the conveyance as required by the t rms of the instrument creating the trust.

Twenty-four hundred dollars were received for the conveyance of the trust property, and all of that sum, except $600 turned over to the mother, was invested in buildings then being erected upon lot numbered five, called the Monterey Ward. Purchase of that lot had previously been made by the surviving trustee named in the original trust-deed, and it appears that the parties understood that it was to be upon the same uses and trusts as were contained in the trust-deed by which the title to the lot sold was acquired.

Proof that the new lot numbered five, called Monterey Ward, was purchased by the father and the three sons during the lifetime of the father seems to be entirely satisfactory, and it is equally well established that each contributed one-fourth part of the sum of $240 paid for the purchase-money of the lot. Satisfactory proof is also exhibited that Henry D. Tefft, one of the three brothers, died Aug. 13, 1849, unmarried and intestate, and that he had a valid subsisting insurance upon his life in the sum of $5,000, which his administrator collected and paid to his surviving brothers.

Eighteen hundred dollars of the proceeds arising from the sale of the property acquired by virtue of the first trust-deed were appropriated towards erecting buildings on the new lot purchased by the father and the three sons while in full life, and when the one whose life was insured deceased, the two survivors appropriated each his proportion of the money received to the same purpose, with the understanding that the property was subject to the same uses and trusts as the property previously acquired and sold.

Competent proofs of a convincing character are also exhibited in the transcript that the first husband of the complainant contributed other sums towards completing the buildings, leaving no doubt that he paid his full proportion for the improvements as well as for the lot purchased of the city authorities.

Enough appears to show that the buildings were completed more than two years before the first husband of the complainant died intestate and without children, when it is obvious that she became the sole heir to all the interest he possessed in the said estate, whatever it might be. Two years elapsed after the buildings were completed before the father of the three sons died, and the proofs show that during that period the complainant resided with the parents of her husband, and that her rights as his heir-at-law were uniformly recognized by the family; that she continued to reside there with her mother-in-law after the death of the senior Tefft, until the decease of his widow, and that throughout that period she paid one-half of all repairs, taxes, insurance, and other expenses of the property as if she were equally interested in the same with her mother-in-law, and was liable to bear an equal proportion of all such expenses.

Opposed to that is the proof that the mother-in-law, one year before her death, when in a low and depressed frame of mind, bequeathed the whole of the lot in question to the first-named respondent, who is her nephew, and on the same day executed a deed to him of the entire property, to take effect in possession after her death. Sole title to the premises in fee-simple is claimed by the respondent under those instruments, and he brought ejectment against the complainant to dispossess her of the premises, and it appears that she was at great disadvantage in attempting to defend the suit, because the trustee had omitted to see that the title was conveyed in trust for the benefit of the cestuis que trust as in the prior trust deed, as he should have done, to carry into effect the understanding of all the parties to the sale of the prior trust premises and the purchase of the lot in question. What she alleges is that the purchase of the new lot was made for the same cestuis que trust as those described in the deed of the old lot, and that the understanding of all was that the deed of the new lot should contain and declare the same uses and trusts in favor of the same persons, and the proofs to that effect are full and entirely satisfactory.

Support to that view is also derived from the fact that the surviving trustee in the old deed is the grantee in the new deed, and that he is therein more than once described as trustee, and in the introductory part of the instrument is denominated trustee of Mrs. Penelope W. Tefft, wife of Israel K. Tefft, of the city and State previously mentioned in the same instrument.

Ten years before the suit was instituted the trustee in the new deed departed this life, and the other two respondents were appointed and qualified as his executors. Unable to obtain complete redress at law, the complainant prays that the deed of conveyance from the city of the lot and improvements in question may be reformed and be made to conform to the true intent and purpose for which the lot was purchased, and to that end that it may be made to include the same uses and trusts raised, created, and declared in the prior deed from Elias Fort, according to the understanding and agreement of all the parties.

Besides that she also prays that her equities in and to the property, including the improvements, may be set forth, decreed, and allowed by the court, including such as are in her favor from the payment of taxes, insurance, and repairs upon the property during the lifetime and since the death of her mother-in-law, and that the first-named respondent may be enjoined from further proceeding in his ejectment suit to recover possession of the premises.

Courts of equity afford relief in case of mistake of facts, and allow parol evidence to vary and reform written contracts and instruments, when the defect or error arises from accident or misconception, as properly forming an exception to the general rule which excludes parol testimony offered to vary or contradict written instruments. Where the mistake is admitted by the other party, relief, as all agree, will be granted, and if it be fully proved by other evidence, Judge Story says, the reasons for granting relief seem to be equally satisfactory. 1 Story, Eq. Jur., sect. 156.

Decisions of undoubted authority hold that where an instrument is drawn and executed that professes or is intended to carry into execution an agreement, which is in writing or by parol, previously made between the parties, but which by mistake of the draftsman, either as to fact or law, does not fulfil or which violates the manifest intention of the parties to the agreement, equity will correct the mistake so as to produce a conformity of the instrument to the agreement, the reason of the rule being that the execution of agreements fairly and legally made is one of the peculiar branches of equity jurisdiction, and if the instrument intended to execute the agreement be from any cause insufficient for that purpose, the agreement remains as much unexecuted as if the party had refused altogether to comply with his engagement, and a court of equity will, in the exercise of its acknowledged jurisdiction, afford relief in the one case as well as in the other, by compelling the delinquent party to perform his undertaking according to the terms of it and the manifest intention of the parties. Hunt v. Rousmaniere's Adm'rs, 1 Pet. 1 Pet. 1, 13; Same v. Same, 8 Wheat. 174, 211.

Even a judgment when confessed, if the agreement was made under a clear mistake, will be set aside if application be made, and the mistake shown while the judgment is within the power of the court. Such an agreement, even when made a rule of court, will not be enforced if made under a mistake, if seasonable application be made to set it aside, and if the judgment be no longer in the power of the court, relief, says Mr. Chief Justice Marshall, may be obtained in a court of chancery. The Hiram, 1 Wheat. 440, 444.

Equitable rules of the kind are applicable to sealed instruments, as well as to ordinary written agreements, the rule being that if by mistake a deed be dra n plainly different from the agreement of the parties, a court of equity will grant relief by considering the deed as if it had conformed to the antecedent agreement. So if a deed be ambiguously expressed in such a manner that it is difficult to give it a construction, the agreement may be referred to as an aid in expounding such an ambiguity; but if the deed is so expressed that a reasonable construction may be given to it, and when so given it does not plainly appear to be at variance with the agreement, then the latter is not to be regarded in the construction of the former. Hogan v. Insurance Co., 1 Wash. 419, 422.

Rules of decision in suits for specific performance are necessarily affected by considerations peculiar to the nature of the right sought to be enforced and the remedy employed to accomplish the object. Where no question of fraud or mistake is involved, the rule with respect to the admission of parol evidence to vary a written contract is the same in courts of equity as in those of common law, the rule in both being that when an agreement is reduced to writing by the act and consent of the parties, the intent and meaning of the same must be sought in the instrument which they have chosen as the repository and evidence of their purpose, and not in extrinsic facts and allegations. Proof of fraud or mistake, however, may be admitted in equity to show that the terms of the instrument employed in the preparation of the same were varied or made different by addition or subtraction from what they were intended and believed to be when the same was executed.

Evidence of fraud or mistake is seldom found in the instrument itself, from which it follows that unless parol evidence may be admitted for that purpose the aggrieved party would have as little hope of redress in a court of equity as in a court of law. Even at law, all that pertains to the execution of a written instrument or to the proof that the instrument was adopted or ratified by the parties as their act or contract, is necessarily left to extrinsic evidence, and witnesses may consequently be called for the purpose of impeaching the execution of a deed or other writing under seal, and showing that its sealing or delivery was procured by fraudulently substituting one instrument for another, or by any other species of fraud by which the complaining party was misled and induced to put his name to that which was substantially different from the actual agreement. Thoroughgood's Case, 4 Coke, 4.

When the deed or other written instrument is duly executed and delivered, the courts of law hold that it contains the true agreement of the parties, and that the writing furnishes better evidence of the sense of the parties than any that can be supplied by parol; but courts of equity, says Chancellor Kent, have a broader jurisdiction and will open the written contract to let in an equity arising from facts perfectly distinct from the sense and construction of the instrument itself. Pursuant to that rule, he held it to be established that relief can be had against any deed or contract in writing founded on mistake or fraud, and that mistake may be shown by parol proof and the relief granted to the injured party whether he sets up the mistake affirmatively by bill or as a defence. Gillespie v. Moon, 2 Johns. (N. Y.) Ch. 585, 596.

Parol proof, said the same learned magistrate, is admissible in equity to correct a mistake in a written contract in favor of the complainant seeking a specific performance, especially where the contract in the first instance is imperfect without referring to extrinsic facts. Keisselbrack v. Livingston, 4 id. 144; Cathcart v. Robinson, 5 Pet. 264.

Many cases support that proposition without qualification, and all or nearly all agree that it is correct where it is invoked as defence to a suit to enforce specific performance. Little or no disagreement is found in the adjudged cases to that extent, but there are many others where it is held that the rule is unsou d when applied in behalf of a complainant seeking to enforce a specific performance of a contract with variations from the written instrument. Difficulty, it must be admitted, would arise in any attempt to reconcile the decided cases in that regard, but it is not necessary to enter that field of contest and conflict in the case before the court for several reasons: 1. Because by comparing the original trust deed with the deed of the lot in question, in view of the attendant circumstances, the inference is very cogent that the second was designed and intended as a complete substitute for the first. 2. Because the proof shows to a demonstration that the consideration for the purchase of the second lot was paid in equal proportions by the father and each of the three sons. 3. Because it appears that the expensive improvements made upon the lot in question were made from the moneys of each of the three sons, advanced at the request of the father. 4. Because it appears that the family and every member of it understood from the first and throughout that the trustee held the property in trust for the mother and the three sons. 5. Because the father, from the date of the deed to the time of his death, recognized the premises as acquired and held for the benefit of his wife and their three sons. 6. Because the mother of the three sons, after the decease of the first husband of complainant, recognized her as interested in the property, and continued to do so at all times throughout her life until about the time she conveyed the lot in question to the respondent.

Both the deed and her will bear date Sept. 28, 1872, and the proofs show that she was at the time in a low, depressed state of mind, and that she departed this life within one year subsequent to the execution of those instruments. Prior to that, and throughout the whole period subsequent to the death of her husband, the proofs show that she uniformly recognized the complainant as the owner of a moiety of the lot and the improvements, and always required her to pay one-half of all repairs, taxes, insurance, and other expenses of the property.

By the terms of the original deed the property was conveyed to the trustees, subject to the payment of taxes, assessments, and ground-rent, to and for the sole and separate use, benefit, and behoof of the mother and her three sons during her lifetime, and after her death to the three sons as tenants in common in equal parts, with the provision that if the mother during her lifetime should deem it advisable she might sell and convey the premises, and that in that event the further trust was raised and created that the trustees or the survivor of them, upon her application and with her consent signifed by becoming a party to the conveyance, might sell and convey the lot and improvements for the best price which could be obtained for the same, without any application to a court of law or equity for that purpose, and to invest the proceeds thereof upon the same trusts in such other property or manner as the mother should direct, and for the same use, benefit, and behalf.

Provision was also made that if no such sale and re-investment was made during the lifetime of the mother, then the trustees were to sell the same for the sole use and benefit of the three sons or the survivor or survivors of them, share and share alike, until the youngest should arrive at the age of twenty-one years, when the trustees might sell and convey the same at the request of such survivor or survivors, and divide the proceeds to the survivor or survivors, share and share alike.

Taken as a whole the proofs show to the entire satisfaction of the court that the lot in question was purchased and conveyed to the surviving trustee upon the same trusts as those raised and created in the first deed, and that the trustee, through mistake, failed to have those trusts properly declared in the deed of trust to him as he should have done, and that the prayer of the bill of complainant, that the deed of the lot and improvements in question ought to be reformed and the rights of the complainant be ascertained and adjudged as if the deed in question contained the same trusts as those raised and created in the original trust deed is reasonable and proper and should be granted.

Courts of equity, beyond all doubt, possess the power to grant such relief, and the proofs, in the judgment of the court, are such as to entitled the complainant to such a decree, unless the remaining defence set up by the respondent must prevail. Cooper v. Phibbs, Law Rep. 2 Ch. Ap. 149, 186; Cochrane v. Willis, 34 Beav. 359, 366. Such a decree, of course, cannot now be made against the trustee, as he is not living; but the executors, as contended by the complainant, are competent to perform that duty, and she prays that the decree may be adapted to the present state of the parties.

Suppose all that is true, still it is contended by the principal respondent that the decree below is correct, because the claim is barred. Much discussion of that defence will not be necessary, beyond what is required to ascertain the facts.

When the father died, the complainant was living on the premises, and she continued to reside there most or all the time during the widowhood of the mother of her first husband, except while she lived with her second husband, and when he died she returned to live with her mother-in-law. During all that time the proofs show that she was constantly recognized as the lawful heir to the estate of her deceased husband, until about a year before the decease of the mother, who also resided on the premises. Prior to that, the rights of the complainant were unmistakably recognized, and nothing of consequence had occurred to indicate any intent to call her just right in question. Soon after that, however, the respondent commenced an action of ejectment against her to recover possession of the entire lot and improvements, she still being in possession, and doubtless hoping and expecting that her rights would yet be acknowledged without the necessity of expensive litigation. Expectations of the kind not being realized, she filed the present bill of complaint. Laches are imputed to her; but the court, in view of the circumstances and of the embarrassments growing out of the obvious defects in the conveyance intended to secure her rights, is of the opinion that the evidence of laches is not sufficient to bar her right to recover in the present suit. Without more, these remarks are sufficient to show that the defence cannot be sustained, and it is accordingly overruled.

Two or three remarks will be sufficient to show that the objection that the Circuit Court has no jurisdiction to enter the required decree against the executors of the deceased trustee cannot be sustained. Jurisdiction as between the complainant and respondent is unquestionable; and, if so, it is clear that the fact that the trustee if living was a citizen of the same State with the complainant would not defeat the jurisdiction in a case where he is a mere nominal party, and is merely joined to per form the ministerial act of conveying the title if adjudged to the complainant. Where that is so, the executor, in case of the decease of the trustee, if authorized by the law of the State to execute such a conveyance, may also be joined in the suit under like circumstances merely to accomplish the like purpose. Where the real and only controversy is between citizens of different States, or an alien and a citizen, and the plaintiff is by some positive rule of law compelled to use the name of another to perform merely a ministerial act, who has not nor ever had any interest in or control over it, the courts of the United States will not consider any others as parties to the suit than the persons between whom the litigation before then exists. McNutt v. Bland, 2 How. 9, 15; Browne v. Strode, 5 Cranch, 303; Coal Company v. Blatchford, 11 Wall. 172, 177.

Cases arise in the Federal courts in which nominal or even immaterial parties are joined, on the one side or the other, with those who have the requisite citizenship to give the court jurisdiction in the case; and where that is so, the rule is settled that the mere fact that one or more of such parties reside in the same State with one of the actual parties to the controversy will not defeat the jurisdiction of the court. Decisive authority for that proposition is found in a recent ruling of Mr. Justice Miller, in which he states to the effect that mere formal parties do not oust the jurisdiction of the court, even if they are without the requisite citizenship, where it appears that the real controversy is between citizens of different States. Arapahoe County v. Kansas Pacific Railway Co., 4 Dill. 277, 283.

Nothing is claimed of the executors in this case except that they shall perform the ministerial act of conveying the title, in case the power to do so is vested in them by the law of the State, and the court shall enter a decree against the principal respondent to that effect. From all which it follows that the complainant is entitled as between herself and the principal respondent to the relief prayed in the bill of complaint; but the court, in view of all the circumstances, will not proceed to determine either the proportion of the trust property which belongs to the complainant or the amount she is entitled to recover of the said respondent. Instead of that, those matters are left to be ascertained and determined by the Circuit Court, with authority, if need be, to refer the cause to a master to report the facts, with his opinion thereon, subject to the confirmation of the Circuit Court.

Executors of the trustee, in such a case as the complainant alleges, are under the law of the State the successors of the deceased trustee, and that as such they may execute whatever remains executory in the trust at the time of his decease; from which it would follow, if that be so, that it will be the duty of the executors of the deceased trustee in this case, when the rights of the complainant are fully ascertained, to make the necessary conveyance to perfect her title to the same extent as the trustee might do if in full life. Express authority is reserved to the Circuit Court to ascertain the rights of the complainant as if the trust-deed was reformed, and to make the necessary decree to perfect her title in such mode and form as the law of the State and the practice of the State courts authorize and provide. Crafton v. Beal, 1 Ga. 322; Brown v. Tucker, 47 id. 485.

Costs in this court will be taxed to the principal respondent in favor of the complainant, but no costs will be allowed against the other two respondents.

Decree will be reversed and the cause remanded for further proceedings in conformity with the opinion of the court.

So ordered.

title: Walden v. Skinner/Opinion of the Court


text: Talk:Walden v. Skinner/Opinion of the Court


text:
Hollingsworth v. Flint

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

This was an action of trespass to try the title to certain lands in Texas, brought by Thomas J. Hollingsworth against John T. Flint and D. T. Chamberlain. Flint filed a disclaimer of title. Chamberlain also filed a disclaimer as to several tracts embraced in the eleven leagues sued for, and as to the remainder pleaded not guilty and the Statute of Limitations. The jury found a verdict for the defendants, and judgment having been rendered thereon, Hollingsworth sued out this writ of error.

The remaining facts are stated in the opinion of the court.

Mr. Philip Phillips, Mr. Bethel Coopwood, and Mr. W. Hallett Phillips for the plaintiff in error.

Mr. A. W. Terrell, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Hollingsworth v. Flint


text: Talk:Hollingsworth v. Flint

title: Talk:Hollingsworth v. Flint


text:
Hollingsworth v. Flint/Opinion of the Court

This is an action in trespass to try the title to eleven leagues of land situated in the counties of Bell, Milam, and Williamson, State of Texas, on what was once called San Andres River, now known as Little River, a tributary of the Brazos.

In support of his clai the plaintiff read in evidence, without objection, certified copies from the general land-office in Texas, of numerous papers, constituting, together, a grant of the land in controversy to Miguel Davila, a native and resident of Leona Vacario, the capital of the department of Coahuila and Texas, as constituted in the year 1830. These papers, including the official survey made by the surveyor-general, show that the land embraced in that grant was 'located on the right or south bank of San Andres River, at the point where the creeks-Buffalo Creek and Donahoe's Creek-empty into said river.' The limits, boundaries, and corners of the land thus granted are given in detail.

The plaintiff then offered in evidence an original deed, in the Spanish language, purporting to have been executed by the grantee, Davila, to James Hewetson, at the city of Saltillo, on the 7th of May, 1839, before its acting mayor, and by which Davila sold and conveyed to Hewetson, for the consideration of $200, 'eleven leagues of land, obtained from the public domain by virtue of a permit issued for them to him by the executive of the State of Coahuila and Texas, by order of July 13, 1830, which leagues are situated ten on the waters of the creek called Chocktaw of the Red River, and the eleventh between Sulphur Fork Creek of Red River, and the south fork of said creek, distant about twenty miles west of the road leading from Nacogdoches to Kiamichi, of the same Red River, the survey of which is embodied in the patent issued at Angelina, jurisdiction of Nacogdoches, on the 30th of January, 1836, by Don Vicente Aldrete, commissioner appointed for that purpose by the aforesaid executive.' That patent the officer before whom the deed was executed certified he had seen, read, and then passed and delivered to Hewetson.

In connection with the offer to read that deed the court, by request of the defendants, and without objection upon the part of the plaintiff, considered certain other papers, also certified from the general land-office in Texas, which, together, constituted the title or grant to Davila of eleven leagues of land in the Red River region, the locality and boundaries of which, as set forth in those papers, corresponds exactly with the foregoing description of the eleven leagues embraced in the deed to Hewetson.

The defendants then objected to the introduction of the Hewetson deed upon the ground that it did not convey, or purport to convey, the land in controversy, and was, therefore, irrelevant and inadmissible. The objection was sustained, and the deed excluded, to which action of the court the plaintiff excepted.

1. This ruling of the court below is the subject of the first assignment of error. We are of opinion that the deed was properly excluded. The plaintiff's petition alleged title in himself to eleven leagues of land, granted to Miguel Davila, described as eleven leagues of land 'situate on the right or south bank of the San Andres River, at the place where Buffalo Creek and Donahoe's Creek empty into said river.' The papers read in evidence by plaintiff, and constituting the final title, as shown upon the records of the general land-office, to the eleven leagues thus described, show that the survey of that body of land was made by Surveyor-General Johnson, and that the patent, based upon that survey, was issued Oct. 18, 1833, by L. Lessassier, mayor of the city of San Felipe de Austin. We have seen that the deed from Davila to Hewetson describes eleven leagues of land situated in a different part of the State, distant, as the court may judicially know, about two hundred miles from the land described in the petition and in the papers previously read in evidence as constituting the grant to Davila of the land in dispute. This is rendered absolutely certain by an examination of the several papers constituting the grant to Davila of the eleven leagues of land on the waters of Red River.

From those papers it appears,--

That on the 10th of July, 1830 Davila made application for a grant by sale to him of eleven leagues of land of the public domain of the department of Coahuila and Texas;

That this application was granted on the 13th of July, 1830, with an order to the alcalde of the municipality to put Davila in possession after the land was located;

That on the 17th of May, 1834, Davila executed to James Hewetson an irrevocable power of attorney, authorizing him to select out of the public domain of the State the eleven leagues of land conceded to Davila in the year 1830;

That on the 5th of June, 1834, Hewetson executed to M. B. Menard, of Nacogdoches, a power of substitution, which on the 24th of May, 1835, was revoked, and the authority which Hewetson had received from Davila was conferred upon one John Cameron; That on the 27th of July, 1835, George Aldrich, surveyor, under an order from the special commissioner appointed by the governor of the State, of date July 2, 1835, surveyed one of the eleven leagues 'between Sulphur Fork of Red River and the south branch of said creek, about twenty miles west of the road leading from Nacogdoches to Kiamichi, of the Red River;' and on the 3d of November, 1835, he surveyed the remaining ten leagues 'on the waters of the creek called Choctaw Bayou of Red River;'

That these surveys were transmitted to the special commissioner, who, by order of Jan. 30, 1836, directed title to issue; and it was so issued on that day, the final paper describing the land exactly as set forth in the deed to Hewetson, and referring, by way of identification, to the field-notes of the surveyor, Aldrich.

While the origin of the title of the eleven leagues on the San Andres River, as well as of the eleven leagues on the Red River, may have been an application of Davila on the thirtieth day of July, 1830, it is perfectly clear that there were, in fact, surveys of two distinct bodies of land, widely separated resulting in grants to Davila of two different tracts of eleven leagues each. This is shown, partly, by the fact that the final document in the title for the eleven leagues on the San Andres River was executed by Lessassier on the 18th of October, 1833, at San Felipe de Austin, while that for the eleven leagues on Red River was executed by Special Commissioner Vicente Aldrete, at Angelina, and not until Jan. 30, 1836. The formen body of land was embraced in one survey, made by Surveyor-General Johnson, while the latter was surveyed by Aldrich, and was embraced in two surveys, one of which called for ten leagues, and the other for one league.

It thus appears that the plaintiff, in support of his title to eleven leagues of land on the San Andres River, offered to read a deed which upon its face clearly and, in connection with the papers relating to the Red River lands, incontestably showed that the land it purported to convey was not the land described in the petition, and the title to which was in dispute.

The contention of the plaintiff is that it was for the jury to say whether the land described in the Hewetson deed was the same land which in the title papers read in evidence was described as situated on San Andres River. No such conclusion could, however, have been fairly reached by the jury consistently with the evidence. The deed was unambiguous in its terms; and whether interpreted by its own language, or in the light of the papers constituting the grant to the Red River lands, there was no ground whatever to infer that Davila, by the conveyance of lands on Red River, intended to convey the title to lands on San Andres River.

Whether the grant to Davila of the lands on Red River was void by reason of the prohibition against uniting more than eleven leagues in the same lands, or because of the declaration in the Texas Constitution of 1836, to the effect 'that all surveys and locations made since the act of the late consultation closing the land-offices and all titles made since that time are null and void,' it is not necessary to inquire. For, if that proposition be c nceded, it is nevertheless manifest that the papers constituting the grant to the Red River lands, read without objection, were evidence in illustration or explanation of the excluded deed; and they utterly negative the idea that the grantor, by a conveyance of eleven leagues, situated on the Choctaw and Sulphur Creeks of the Red River (quoting from the deed), 'the survey of which is embodied in the patent issued at Angelina, jurisdiction of Nacogdoches, on the thirtieth day of January, 1836, before Don Vicente Aldrete, commissioner,' &c., intended to pass the title to eleven leagues of land on San Andres River, the final title to which passed by patent issued Oct. 18, 1833, at the city of San Felipe de Austin, by L. Lessassier, mayor of said city and its municipality.

It is scarcely necessary to cite the authority of text-writers, or of adjudged cases in the Supreme Court of Texas or elsewhere, to prove that the deed was inadmissible as evidence in support of plaintiff's title to the land described in the petitions and in the papers read in evidence by him as constituting the original grant to Davila of eleven leagues on San Andres River. The deed conveys lands that were surveyed and located in the Red River region. It was, therefore, inadmissible for the plaintiff in this action, in any view which may be properly taken of the case.

2. The plaintiff then offered in evidence a deed from Inez (the legitimate daughter and only heir-at-law of Miguel Davila) and her husband, dated Sept. 28, 1869. It was acknowledged by the wife on the 12th of September, 1876, upon privy examination before the consul of the United States for Saltillo and its dependencies, and by the husband a few days thereafter. That deed recited that Miguel Davila had many years before sold to James Hewetson his concession of eleven leagues of land on the San Andres River, and had on May 7, 1869, by public act conveyed the same to said Hewetson, 'describing said land by mistake as being situated in another part of Texas instead of where it was in fact situated.' The deed ratifies and confirms the sale to Hewetson, and releases and conveys to him all the right, title, and interest of the grantors.

That deed, upon the objection of defendants, was also excluded, which ruling constitutes the next error assigned by the plaintiff.

No error was committed in rejecting that deed as evidence in support of plaintiff's claim. This action was commenced in 1874. At that time the deed had not been acknowledged so as to pass the title, if any, which the female grantee had in the premises in controversy. Her interest in the land, if any she had, was her separate estate, of which she could not, under the laws of Texas, be divested, except by the conveyance of herself and husband, and after her privy examination before the proper officer. Such examination had not taken place when this action was commenced. The plaintiff could not avail himself in this action of a title acquired, or which did not subsist in him until, after he commenced suit. The title at the beginning of the action was the question to be tried.

3. The plaintiff finally offered to read in evidence a deed purporting to have been executed in 1873 by the heirs of James Hewetson to the plaintiff and another. This deed was very properly excluded upon the ground that the plaintiff had failed to connect himself with the sovereignty of the soil, and declined to state that he expected to show any other title than that previously offered.

The court thereupon instructed the jury, as was its duty to do, to find for the defendants.

Judgment affirmed.


text: Talk:Hollingsworth v. Flint/Opinion of the Court


text:
Bechtel v. United States

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

The facts are stated in the opinion of the court.

Mr. Edward Salomon for the plaintiffs in error.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE SWAYNE delivered the opinion of he court.

title: Bechtel v. United States


text: Talk:Bechtel v. United States

title: Talk:Bechtel v. United States


text:
Bechtel v. United States/Opinion of the Court

On the 25th of November, 1871, the defendants executed to the United States a bond in the penal sum of $20,000, conditioned that Bock, Schneider, & Co., manufacturers of matches, should account and pay for certain internal revenue stamps therein mentioned to be used in their business. The declaration (which is upon this bond) avers that thereafter the United States delivered to Bock, Schneider, & Co. such stamps of the value of $5,500, and that they had refused and neglected to pay for a portion of them of the value of $4,400.

The defendants pleaded non est factum, performance, and the non-delivery of the stamps.

The case was tried by a jury, and a verdict and judgment were rendered for the United States.

Upon the trial, the United States offered in evidence a certified copy of the bond and certified copies of the receipts of Bock. Schneider, & Co. for the stamps, both from the Treasury Department, and a treasury transcript of the account of Bock, Schneider, & Co., showing a balance of $4,400 against them. The defendants objected to this evidence being received, and asked the court to instruct the jury to find in their favor. The court admitted the evidence, and refused the instruction. The defendants excepted as to both points.

'The defendants then asked the court to charge the jury and direct that the defendants were entitled to have deducted from the balance shown to be due by the treasury accounts ten per cent commission on the same, as allowed by the act of Congress of June 30, 1864, amended in 1870, and incorporated in the Revised Statutes under sect. 3425, page 677.

'The court, after argument, denied the motion, and the defendants excepted.

'The court thereupon directed the jury to find a verdict for the plaintiffs for the sum of $4,400, principal, with interest from October, 1872, to the date of said trial, at seven per cent per annum, being the sum of $1,052.30, making a total of $5,452.30; to which direction the defendants excepted.

'The jury rendered a verdict as directed.'

The brief of the counsel for the plaintiffs in error is confined to two points:--

1. The admission of the documentary evidence from the Treasury Department; and,

2. The refusal of the court to instruct the jury to allow the deduction of ten per cent claimed by the defendants.

Our remarks will be confined to these subjects. We shall consider them in the order in which we have named them.

The suit was commenced and put at issue by the pleadings, and the copies and transcript from the treasury bear date more than two years before the Revised Statutes were enacted, but their enactment was prior to the trial. They were approved by the President on the 22d of January, 1874, and then took effect.

The repealing section, 5596, included the act of March 3, 1797, c. 20 (1 Stat. 512); but sect. 5597 saved all rights which had accrued under any of the acts thus abrogated. It declared that all such rights 'shall continue and be enforced in the same manner as if said repeal had not been made.' Sect. 886 of the Revised Statutes, relied upon by the counsel for the plaintiffs in error, is not, therefore, the statutory provision by which the rights of the parties as to the point here in question are to be determined. They are governed by the second section of the act of 1797, before mentioned, upon which sect. 886 of the later enactment is founded. They are materially different, and the latter is narrower than the former.

The act of 1797 was the first regulation upon the subject made by Congress. The second section declares that 'in every case of delinquency where a suit has been or shall be instituted, a transcript from the books and proceedings of the treasury, certified,' &c., 'shall be admitted in evidence, and the court trying the cause shall be thereupon authorized to grant judgment and award execution accordingly; and all copies of bonds,' &c., 'relating to or connected with the settlement of any account between the United States and an individual, when certified,' &c., 'may be annexed to such transcripts, and shall have equal validity and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court.'

This section clearly comprehends the case before us.

The first section directs suit to be brought against 'any revenue officer or other person accountable for public money' who shall become a defaulter. If it be said that the second section is limited by the first to the classes of persons named in the first, there are several answers.

It will be observed that the language of the second section contained no such restriction. It is general. Its terms are 'in every case of delinquency,' and again, 'the settlement of an account between the United States and an individual.' The act contains seven sections. The fourth, fifth, sixth, and seventh apply indisputably to all debtors of the United States, without discrimination.

The third section, fairly considered, must be regarded as no less comprehensive.

The second section, being remedial in its character and relating to the law of procedure, is to be liberally construed with reference to the purpose of its enactment. Sedgwick, Statutory and Constitutional Law, pp. 311, 315, and notes.

This precise question came before the Circuit Court in United States v. Lent, 1 Paine, 417. Mr. Justice Thompson there said:--

'The construction contended for on the part of the plaintiffs in error, that this provision, as to the admission of authenticated copies, is restricted to certain cases, where suits are commenced under authority given by the first section of the act, cannot be sustained, although it is not perceived why the present is not such a case. But the provision is general, and applies to all cases where the evidence is required, and is founded upon a proper precaution to guard against the loss of the original.'

See also United States v. Lee, 2 Cranch, C. C. 462.

As the act of 1797 has been repealed, we forbear to pursue the subject further.

A few words will be sufficient to dispose of the other point.

It arises under the act of June 30, 1864, c. 173, sect. 161. 13 Stat. 294; Rev. Stat., sect. 3425. The deduction claimed of ten per cent is allowed by the statute to a purchaser 'who furnishes his own die,' &c. The defendants declined to give any evidence to the jury, and it certainly does not appear by the record that any was adduced on this point. But it is said it was treated by the government at the trial as a conceded fact. There is no such admission here by the counsel of the United States.

We cannot look beyond the record, and that is silent upon the subject.

It is said, further, that the transcript shows that deduction from a charge for stamps of $1,100, not here in controversy. It would be a long stride in dialectics, and one we are not prepared to take, from this fact to the inference, that the purchaser also furnished the die when the stamps is question were bought. The conclusion claimed from such premises would be a palpable non sequitur.

It is rather to be inferred that the allowance was made in one case because the die was furnished, and refused in the other because it was not.

Error must be affirmatively shown. It is not to be presumed.

Judgment affirmed.


text: Talk:Bechtel v. United States/Opinion of the Court


text:
Crampton v. Zabriskie

APPEAL from the Circuit Court of the United States for the District of New Jersey.

'The Board of Chosen Freeholders of the County of Hudson,' in the State of New Jersey, adopted, Dec. 14, 1876, a resolution for the purchase of certain lots in Jersey City, on which to erect a court-house and offices for the county, at the price of $2,000 for each twenty-five hundred square feet. In payment therefor the county was to issue to the owner of them bonds 'payable out of the amount appropriated and limited for the expense of the next fiscal year; said bonds to run one year from the date thereof, and bearing interest at the rate of seven per cent per annum.'

Crampton, the owner, in accordance with the terms of the resolution, accepted the proposition of purchase, and delivered, Dec. 22, 1876, to the board a duly executed deed for the lots, bearing date the 18th of that month. The board accepted it, caused it to be duly recorded in the register's office of the county, and delivered to Crampton three several bonds for the purchase-money, amounting to $225,720.

One of the bonds is as follows:--

'$75,000. 'STATE OF NEW JERSEY, COUNTY OF HUDSON.

'No. 1.

'TEMPORARY LOAN BOARD.

'Know all men by these presents, that the Board of Chosen Freeholders of the county of Hudson acknowledge themselves indebted. for value received, to Mahlon B. Crampton, in the sum of seventy-five thousand dollars, lawful money of the United States of America, to be paid to the said Mahlon B. Crampton, at the county collector's office in the county of Hudson, on the eighteenth day of December, one thousand eight hundred and seventy-seven, with interest thereon from the date of these presents, at the rate of seven per cent per annum, payable annually.

'This bond being executed and issued in pursuance of a resolution of the said board passed the fourteenth day of December, A.D. 1876, and approved by the director at large Dec. 16, 1876, authorizing the county collector to issue the same for the use of the county in payment for land purchased by said board in pursuance of said resolution.

'In witness whereof, the Board of Chosen Freeholders of the County of Hudson have hereunto affixed their corporate seal and caused these presents to be signed by their director at large this twenty-second day of December, eighteen hundred and seventy-six.

[L. S.] 'E. W. KINGSLAND,

'County Collector of the County of Hudson.

'D. C. HALSTED, at large,

'Director of the Board of Chosen Freeholders of the County of     Hudson.

(On the margin:) 'Board of Chosen Freeholders Hudson County.'

The other bonds are of the same purport, except that one of them is for $75,720. Crampton assigned the latter to one Harrison, who, in consideration thereof, released the lots from a mortgage in his favor to which they were subject.

Crampton, March 13, 1878, brought suit against the board on the other bonds in the court below. Zabriskie and two other resident tax-payers of the county thereupon filed their bill of complaint on the equity side of that court, praying that the bonds be declared void and be delivered up, that the board be ordered to reconvey the property to Crampton, and that he be enjoined from prosecuting an action on or parting with the bonds in any other way than by surrendering them to the board. The bill alleges that Siedler and other tax-payers of the county applied to the Supreme Court of the State by writ of certiorari for relief against said resolution and purchase, and that the court, by its final judgment rendered Nov. 22, 1877, declared that said resolution was illegal and void. It further alleges that the lots should have been then conveyed to Crampton and the bonds surrendered to the board, 'but that nothing had been done by either in the matter.'

Crampton sets up that the transaction between him and the board was in all respects lawful, that he was not a party to the proceedings before the Supreme Court, that it was not his duty to surrender the bonds, and that if the latter are void, the defence is available at law.

The court below, Oct. 1, 1879, rendered a decree in accordance with the prayer of the bill, and also restrained Crampton from suing for the value of the lots. He thereupon appealed.

The boards of chosen freeholders are created by the act of April 16, 1846, bodies corporate and politic, and invested with certain powers, among which is that of purchasing, receiving, and holding lands in trust to and for the use of the respective counties.

Under the fourth section, it is the duty of the board at its stated annual meeting, or at any other eeting held for the purpose, to vote, grant, and raise such sums of money as it deems necessary and proper for the building of jails and court-houses, and doing, fulfilling, and executing all the legal purposes, objects, and business of the county; and, after it has passed an order or grant for the raising of any sum of money, it is required by the twelfth section to direct, in writing, the assessors of the several townships to assess the said sum or sums on the inhabitants and their estates, agreeably to the law for the time being, for the raising of money by taxation for the use of the State.

Whenever the needs of the county require it, the thirteenth section authorizes the board to assess and collect money by taxation, for the use of the county, at a different time from the assessment for the State tax.

An act approved Feb. 26, 1874, designates the 1st of December as the commencement of the fiscal year of the board for the county of Hudson; and its fifth section provides 'that the expenditures of the board of chosen freeholders in any fiscal year shall not exceed the amount raised by tax for said year, unless by the spread of an epidemic or contagious disease a greater expenditure shall be required for the protection of the public health, and the board may fix the amount to be raised by tax for county purposes at any meeting of said board held prior to July (15th) fifteenth in any year.'

The following act of the legislature was approved Feb. 7, 1876:--

'A Supplement to an act entitled 'An Act for the punishment of crimes,' approved March twenty-seventh, eighteen hundred and seventy-four.

'1. Be it enacted by the Senate and General Assembly of the State of New Jersey, that if any board of chosen freeholders, or any township committee, or any board of aldermen or common councilmen, or any board of education, or any board of commissioners of any county, township, city, town, or borough in this State, or any committee or member of any such board or commission, shall disburse, order or vote for the disbursement of public moneys, in excess of the appropriation respectively, to any such board or committee, or shall incur obligations in excess of the appropriation and limit of expenditure provided by law for the purposes respectively of any such board or committee, the members thereof, and each member thereof, thus disbursing, ordering or voting for the disbursement and expenditure of public moneys, or thus incurring obligations in excess of the amount appropriated and limit of expenditure as now or hereafter appropriated and limited by law, shall be severally deemed guilty of malfeasance in office, and on being thereof convicted shall be punished by fine not exceeding one thousand dollars or imprisonment at hard labor for any term not exceeding three years, or both, at the discretion of the court.

'2. And be it enacted, that this act shall take effect immediately.'

The members of the Board of Chosen Freeholders are elected at the spring charter and township elections, and hold their offices for one year commencing in May and until their successors are chosen and legally qualified.

It does not appear that the board at any meeting prior to July 15, 1877, included in the amount to be raised by taxation the purchase-money for the lots in question.

Mr. Frederick T. Frelinghuysen and Mr. Joseph D. Bedle for the appellant.

The bonds are valid; and if they are not, Crampton should not have been enjoined from prosecuting an action for the recovery of the purchase-money for the lots.

He was not a party to the proceedings on certiorari, and is therefore not bound by the judgment rendered in them. The Supreme Court of New Jersey expressly held that its decision was 'not upon the validity of his claim.' He may, therefore, insist upon it here, notwithstanding that court was of opinion that the resolution was in violation of statutes that are merely directory, but which the board could not plead in avoidance of his rights under an exec ted contract. An order setting aside the resolution after it had been carried into effect cannot cancel the obligation of the bonds, or impair the title which passed by his conveyance.

It must be conceded that by the original act creating the county of Hudson, its board of freeholders had all the rights, power, and authority vested in any other board, and that no limitation other than the public needs, of which it was the exclusive judge, was imposed upon its power to purchase land whereon to erect buildings for the use of the courts and public officers, or for any other authorized purpose.

The only objection made below to the bonds is grounded upon the assumption that the statutes of 1874 and 1876 prohibit a contract by which the board gains a credit beyond the fiscal year in which such a purchase is made.

The act of 1874 only requires that the expenditures of the fiscal year shall not exceed the amount raised by taxation for that year. It will not be questioned that under its general powers the board had the right to purchase land and erect a court-house thereon. The current of authority is that a municipal corporation may borrow money for any appropriate purpose within the scope of its charter. Bank v. Chillicothe, 7 Ohio, Part II. 31; State v. Madison, 7 Wis. 688; Clark v. Janesville, 10 id. 136; Mills v. Gleason, 11 id. 470. The properly constituted authorities of a municipality may bind the corporation whenever they have power to act in the premises. Cincinnati City v. Morgan, 3 Wall. 275. Authority to build a court-house carries with it the right to borrow money to build it, Lynde v. The County (16 id. 6); and bonds or notes may be given for any authorized work or purchase. The Mayor v. Ray, 19 id. 468. But although there may be some conflict in the decisions as to the power of a municipality to borrow money, there is none as to its power to contract for work or property on credit. There is a wide and manifest difference between incurring a debt in the prosecution of a purpose expressly sanctioned by statute and borrowing money with a view to such prosecution.

The learned district judge who decided this case below says, 'The contract for the purchase was consummated on the 22d of December, 1876, and if the board at any regular meeting, or special meeting, called for the purpose prior to the 15th of July following, had included the consideration money to be paid in the amount to be raised by tax for the fiscal year, it is difficult to perceive any illegality in the transaction.'

The board had, in his opinion, the right to give the bonds in question. The illegality then consists in the alleged failure to provide in the proper fiscal year the money to pay them. Crampton is in no wise responsible for that failure, and neither the board nor the tax-payers can set up its wrong to bar his claim for the stipulated price of the property. His reasoning substantially amounts to this,-the bonds were valid when given; but inasmuch as the board neglected to levy a tax to pay them at maturity, the defence of ultra vires must be sustained.

It does not, however, appear that when the bonds were due there was not money enough in the treasury to pay them. There is no evidence whatever in the record of the amount raised or then unexpended, and the burden of proof of any fact in discharge of the liability rests upon the board and not upon Crampton.

The act of 1876 must receive a strict construction. The object was not to impair obligations incurred, but to reach offending individual members of the board. Its terms do not justify the assumption that it was the legislative intent to render absolutely void a contract in contravention of them. It contemplates certain things accomplished,-the disbursement as a fact, and the obligation incurred as an existing liability. Its policy was not to punish a third party who contracts with the board, and delivers to it his property.

But if the bonds are void, they are mere evidences of debt, and can be severed from the consideration of the debt. The right of recovery on the consideration still subsists and may be enforced. Hitchcock v. Galveston, 96 U.S. 341.

Mr. J. H. Lippincott and Mr. Peter Bentley for the appellees.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Crampton v. Zabriskie


text: Talk:Crampton v. Zabriskie

title: Talk:Crampton v. Zabriskie


text:
Crampton v. Zabriskie/Opinion of the Court

On the 14th of December, 1876, the Board of Chosen Freeholders of the County of Hudson, in New Jersey, passed a resolution to purchase of the defendant, Crampton, certain real property in Jersey City, upon which to erect a court-house and other buildings for the county, at the price of $2,000 for every 2,500 square feet, the price at which he had previously offered to sell the same, and to issue to him in payment thereof bonds of the county, payable out of the amount appropriated and limited for the expenses of the next fiscal year, the bonds to run for one year and to draw interest at the rate of seven per cent per annum. The bonds were to be signed by the director at large and the collector of the county, and to be issued under its seal. On the 18th of December, Crampton executed and delivered to the board a conveyance of the property, which was accepted and recorded in the office of the register of deeds; and thereupon three bonds were executed and delivered to him, two of which were for the sum of $75,000, and one was for $75,720. No provision was made by the board for the payment of the bonds beyond the general declaration that they should be paid out of the amount appropriated and limited for the next fiscal year. By the law then in force the fiscal year commenced on the first day of December of each year, and the expenditures of the board were restricted to the amount raised by tax for that year, unless by the spread of an epidemic or a contagious disease a greater expenditure should be required; and the amount to be raised was to be determined at a meeting of the board to be held prior to July 15 of each year. Some of the resident tax-payers were dissatisfied with this issue of bonds without making definite provision for their payment by taxation, and accordingly obtained from the Supreme Court of the State a writ of certiorari to review the proceedings of the board. The court adjudged the proceedings invalid, and set the same aside.

It does not appear that any attention was paid either by the board or Crampton to this judgment. The board did not reconvey or offer to reconvey the land to Crampton; nor did the latter return or offer to return to the board the bonds received by him. But, on the contrary, Crampton commenced an action in the Circuit Court of the United States to enforce their payment. The present suit, therefore, is brought by other tax-payers of the county to compel the board to reconvey the land and Crampton to return the bonds, and to enjoin the prosecution of the action to enforce their payment.

The facts here stated are not contradicted; they are substantially admitted; and upon them the court below very properly rendered a decree for the complainants. Indeed, upon the simple statement of the case, it would seem that there ought to be no question as to the invalidity of the proceedings of the board. The object of the statute of New Jersey defining and limiting its powers would be defeated if a debt could be contracted without present provision for its payment in advance of a tax levy, upon a simple declaration that out of the amount to be raised in a future fiscal year it should be paid. The law, in terms, limits the expenditures of the board, with a single exception, to the amount to be raised by taxation actually levied, not by promised taxation in the future. And, as if this limitation was not sufficient, it makes it a misdemeanor in any member of the board to incur obligations in excess of the amount thus provided. It would be difficult to express in a more emphatic way the will of the legislature that the board should not incur for the county any obligations beyond its income previously provided by axation; in other words, that the expenses of the county should be based upon and never exceed moneys in its treasury, or taxes already levied and payable there.

Of the right of resident tax-payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property-holders of the county may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the State courts in numerous cases; and from the nature of the powers exercised by municipal corporations, the great danger of their abuse and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the application of the tax-payers of a county to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property-holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the State or county, there would seem to be no substantial reason why a bill by or on behalf of individual tax-payers should not be entertained to prevent the misuse of corporate powers. The courts may be safely trusted to prevent the abuse of their process in such cases. Those who desire to consult the leading authorities on this subject will find them stated or referred to in Mr. Dillon's excellent treatise on the Law of Municipal Corporations.

Decree affirmed.


text: Talk:Crampton v. Zabriskie/Opinion of the Court


text:
Bible Society v. Grove

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

The facts are stated in the opinion of the court.

Mr. George P. Strong for the plaintiff in error.

Mr. L. Danford, contra.

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

title: Bible Society v. Grove


text: Talk:Bible Society v. Grove

title: Talk:Bible Society v. Grove


text:
Bible Society v. Grove/Opinion of the Court

This was a suit begun on the 6th of March, 1868, in a State court, by a part of the heirs-at-law of Jacob E. Grove, to set aside his will. The defendants were the executors of the will, the legatees or devisees, and some of the heirs. The case was tried four times in the State court, and the venue was changed twice. At three of the trials the jury disagreed. At the other a verdict was given for the plaintiffs, which the court set aside. The last trial commenced April 14, 1875, at the January adjourned term of the Circuit Court of Macon County, Missouri, and resulted in a disagreement of the jury. At the next term, beginning on the third Monday in May, the cause was continued.

On the 21st of September, 1875, the American Bible Society, one of the defendants in the suit, a New York corporation, and a legatee under the will, filed its petition for the removal of the cause to the Circuit Court of the United States. The ground of removal is thus stated in the petition:--

'That said John A. Grove and others, plaintiffs as aforesaid, are residents and citizens of the State of Ohio, and other States other than the State of New York; that none of said plaintiffs reside in or are citizens of the State of New York; that said controversy is wholly between citizens of different States, and can be fully determined as between them; that petitioner is actually interested in said controversy (being the only party whose interests plaintiffs profess to desire to affect in said controversy); that the amount involved in said controversy exceeds $5,000. Petitioner further states that it has reason to believe, and does believe, that from prejudice and local influence it will not be able to obtain justice in said Circuit Court of Macon County aforesaid.' Accompanying the petition was the necessary bond, and an affidavit of the attorney of the petitioner, stating his belief of the facts set forth, and that from local influence and prejudice the petitioner would not be able to obtain justice in the State court. It nowhere appears from the petition or the ecord that either of the plaintiffs was a citizen of Missouri.

A copy of the record in the suit was duly filed in the Circuit Court of the United States, and the cause docketed there. At the first term the plaintiffs appeared and moved that the cause be set down for hearing; but the court adjourned without disposing of the motion. On the 6th of March, 1876, and during the vacation, the plaintiffs filed in the office of the clerk another motion to remand the cause, on the grounds, among others, 1, that the petition for removal was not filed before or at the term in which the cause could be first tried; and, 2, that it did not appear that the plaintiffs, or either of them, were citizens of Missouri. At the next term this motion was granted. To reverse that order the case has been brought here.

We think the decision below was right. The courts of the United States are not required to take any suit until in some form their jurisdiction is made to appear of record. This rule applies to suits coming to them by removal as well as to those in which they issue the original process.

Suits cannot be removed from the State courts on account of 'prejudice or local influence,' unless the party opposed to him who petitions for the removal is a citizen of the State in which the suit is brought. The express provision of the statute is, that 'when a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be so removed, on the petition of the latter.' Rev. Stat., sect. 639, sub-sect. 3. The act of March 3, 1875 (18 Stat. 470), has not changed this provision of the Revised Statutes. Removals for this cause still depend on that section, which is a reproduction of the act of 1867. 14 id. 558. As the plaintiffs are not shown to have been citizens of Missouri, it is clear that the defendants were not entitled to take the case to the courts of the United States on this ground.

To effect a removal under the act of March 3, 1875, the petition must be filed in the State court 'before or at the term at which said cause could be first tried and before the trial thereof.' Sect. 3. This has been held to mean, in respect to suits pending when the act was passed, that the petition must be filed at the first term of the court thereafter at which the cause could be tried. Removal Cases, 100 U.S. 457. The act took effect from the time of its approval, March 3. The case was actually tried once in the State court, on the 14th of April following. The jury disagreeing, it was continued at that term and also at the May term. The petition for removal was not filed until September afterwards. Clearly this was too late.

It is unnecessary to consider any of the other objections to the jurisdiction of the Circuit Court which have been raised.

Judgment affirmed.


text: Talk:Bible Society v. Grove/Opinion of the Court


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/366

 310 Great Britain, and supposed to be of Scandinavian origin. The time for it in this country was New Year's Eve, according to the ordinary calendar, but in the Isle of Man it has always been Hollantide Eve, according to the Old Style, and this is the night when boys now go about continuing the custom of the old mummers. There is no hesitation in this case between Hollantide Eve and New Year's Eve. But with the prognostications for the year it is different, and the following practices have been usual. I may, however, premise that as a rule I have abstained from inquiring too closely whether they still go on, but here and there I have had the information volunteered that they do.

1. I may mention first a salt prognostication, which was described to me by a farmer in the North, whose wife practises it once a year regularly. She carefully fills a thimble with salt in the evening and upsets it in a neat little heap on a plate: she does that for every member of the family, and every guest, too, if there happen to be any. The plate is then left undisturbed till the morning, when she examines the heaps of salt to see if any of them have fallen; for whoever is found represented by a fallen heap will die during the year. She does not herself, I am assured, believe in it, but she likes to continue a custom which she has learned from her mother.

2. Next may be mentioned the ashes being carefully swept to the open hearth, and nicely flattened down by the women just before going to bed. In the morning they look for footmarks on the hearth, and if they find such footmarks directed towards the door, it means, in the course of the year, a death in the family, and if the reverse, they expect an addition to it by marriage.


text:
Gates v. Goodloe

ERROR to the Supreme Court of the State of Tennessee.

The facts are stated in the opinion of the court.

Mr. Luke W. Finlay for the plaintiffs in error.

Mr. Joseph B. Heiskell, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Gates v. Goodloe


text: Talk:Gates v. Goodloe

title: Talk:Gates v. Goodloe