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Smith v. Morse

ERROR to the Circuit Court for the Southern District of New York. The case being this:

Litigation had been subsisting between S. B. F. Morse and the executors of Alfred Vail, against F. O. I. Smith, arising out of certain agreements concerning Morse's telegraph; all suits and causes of action, however, between the parties, and also, all causes of action, of which it was alleged there were some, between Amos Kendall (who stood in certain relation to Morse and the executors) and this same F. O. I. Smith, had been amicably adjusted and settled, with two exceptions:

1st. A claim for stock and dividends in the Washington and New Orleans Telegraph Company, on the part of Smith against Morse, and the executors of Vail, and also, a like claim on the part of Morse and executors against Smith.

2d. A claim of Smith against Morse for moneys received for the invention of the telegraph from sources out of the United States.

The former of these, by an instrument under seal, containing covenants of settlement of various disputes, in which Kendall was personally interested, and reciting that Kendall was the agent of Morse and of the executors of Vail, and as such agent had made settlement between them of the other disputes, it was agreed should 'be referred to the final decision and arbitration of T. R. Walker and W. H. O. Alden, and an umpire, if needful, as provided in articles this day executed.' The covenant of submission was exclusively between Morse and the executors on one side, and Smith on the other, the parties to the suit, in which Kendall had no personal interest, and concluded thus, it being properly witnessed:

'In testimony of all which, said [parties] have hereunto signed their names and affixed their respective seals at the city of New York, on this 8th day of October, A.D. 1859, in duplicate.

'F. O. I. SMITH, [SEAL.]

'AMOS KENDALL, [SEAL.]

'For himself, and as agent for S. F. B. Morse, and the executors of Alfred Vail, deceased.'

On the back of the submission a memorandum was made about two months after the submission itself, thus:

'We, the within-named parties, hereby agree and bind ourselves to abide and perform the award of the within-named arbitrators, without exception to or appeal from their decision.

'F. O. I. SMITH,

'AMOS KENDALL,

'For himself, and as agent for S. F. B. Morse, and the executors of Alfred Vail.

'NEW YORK, December 13th, 1859.'

The case was heard before the arbitrators, who disagreed, and appointed one Mann as umpire. The case was again heard before him, all parties appearing with their proofs-Kendall appearing throughout, without objection from Smith, as agent of Morse and Vail's executors-and he made his award in favor of Morse and the executors, of certain amounts, payable in stock and in money. These Smith refused to pay. Thereupon Morse and the executors brought suit in the court below against Smith, for an alleged breach to perform the award. The declaration counted on the submission already set forth, but omitted the words above given in italics 'as provided in articles this day executed.' And on that submission being offered in evidence its introduction was objected to on the ground of variance. The articles were not produced at the trial, nor before the arbitrators or umpire, and, in truth, had no existence. The facts, as appeared from the proofs, were, that the parties through their friends had informally agreed on the terms of the submission which were incorporated in the formal submission under seal, and that the draftsman, who as shown by the way in which he had drawn his instrument, was not an accomplished clerk, had probably in his mind this informal previous arrangement in the reference made by him. Both parties, at all events, appeared before the arbitrators and umpire, and no notice was taken of this part of the submission, and no objection made on account of the non-production of the articles, all parties assuming that the submission under seal contained the whole of the terms agreed upon. The court below admitted the submission in evidence.

Another objection was that there was no authority to appoint an umpire. On this point some correspondence between one Cooper, and Kendall, and Smith, was offered in evidence, containing a proposition to submit a claim of Smith to arbitrators, in one letter of which, dated October 5th, referring to the submission, the words 'an umpire to be appointed if they do not agree,' did not appear; and also the memorandum of December 13th, 1859, indorsed on the policy. The court received the evidence under objection.

Another objection was that the submission was signed by Kendall individually, and that he was not made a party to the suit.

And a final one, that Kendall, who executed the submission as agent for Morse and the executors of Vail, had no power or authority as agent, nor was any shown, to do the act; and that the manner in which his authority, if he had any, was exercised, was defective in this, that he did not sign the name of his principal and then add by himself as agent.

The court overruled all the objections, and verdict and judgment having been given for the plaintiffs, Smith now brought the case here.

Mr. R. H. Huntley, for the plaintiff in error:

1. Greenleaf, in his work on Evidence, says:

'If a qualified covenant be set out in the declaration as a general covenant, omitting the exception or limitation, the variance between the allegation and the deed will be fatal.'That the covenant in the submission did not contain the final agreement of the parties as to arbitration, and was not intended to contain such final agreement, is clear from the fact that the parties deemed a further agreement necessary, and intended at once and on the same day to 'provide' and 'execute' 'articles of submission.' But this was not done. The parol proof received was a dangerous and improper sort of testimony.

2. The appointment of an umpire was unauthorized.

The Cooper letter of October 5th shows this. And on the 13th of December an indorsement is made on the submission, by which the parties agree to abide the award of the within-named arbitrators, the idea of an umpire being palpably excluded.

3. The submission was not signed by any authorized agent of the plaintiffs. There is no proof that Kendall was their agent, or that they authorized him to sign for them, or to affix their seal to this instrument.

The mode of signing here also claims attention. Kendall first binds himself; but, as he is not a party to the suit, that is immaterial at present; and then he adds, 'and as agent for S. F. B. Morse and the executors of Alfred Vail, deceased.' This does not bind Morse, even, much less 'the executors of Alfred Vail, deceased,' who are not even named.

4. Kendall should have been made a party to this action. This rule is as old as the time of Yelverton. In a case from that authoritative reporter we find the law thus laid down:

'In an action between A. and B. of one part, and C. of the other part, among other covenants there is one thus, viz.: It is agreed between the parties that C. shall enter into a bond to B., to pay him 100 at a day; in an action for nonperformance A. and B. must join.'

Mr. C. Tracey, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Smith v. Morse


text: Talk:Smith v. Morse

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

title: Talk:Smith v. Morse


text:
Smith v. Morse/Opinion of the Court

Several objections were taken, in the court below, to a recovery by the plaintiffs, the principal of which, and the only objections requiring notice, were substantially these: that there is a variance between the covenant to submit, stated in the declaration, and the covenant in the submission produced; that the submission contains no authority to the arbitrators to appoint an umpire, and no agreement to abide any award rendered by him; that Kendall was not authorized to sign the submission for the plaintiffs, and, if authorized, the manner in which his authority was exercised was defective; and that there is a defect of parties plaintiffs, Kendall having signed the submission and not having joined in the action.

1st. The supposed variance between the covenant stated in the declaration and the covenant contained in the submission, arises from the fact that the submission, after referring the claims mentioned to the decision of the arbitrators, and an umpire, if necessary, adds the words, 'as provided in articles of submission this day executed,' and the declaration makes no mention of any such articles. In truth, no such articles ever had any existence, and the insertion of the words relating to such supposed articles probably arose from the carelessness or unskilfulness of the draftsman who prepared the formal submission. Previous to its preparation, the parties had informally agreed upon the terms of the submission, which were incorporated into the instrument signed, and the draftsman no doubt had this informal arrangement in his mind in the reference made. Be this as it may, the articles named having no existence-and this fact was established by the proofs in the case-formed no part of the contract of submission, and ought not, therefore, to have been stated in the pleadings.

On the hearing before the arbitrators, and subsequently before the umpire, no allusion was made to any such articles, nor was any objection taken on account of their absence. The parties treated the instrument under which the submission was made, as embracing the whole of the terms stipulated between them.

2d. The agreement in the submission that the claims designated should 'be referred to the final decision and arbitration' of parties designated, 'and an umpire, if needful,' authorized the arbitrators, in case of their disagreement, to appoint an umpire. It will be presumed that the parties intended that the usual mode should be followed in the appointment, in the absence of any different designation; and the usual mode is by the act of the arbitrators themselves. So the agreement to submit the matter to arbitrators, and to an umpire, if needful, carried with it the further agreement to abide the award which they might render, or, in case of their disagreement, which he might render. The law implies an agreement to abide the result of an arbitration from the fact of submission.

3d. The objection from Smith that Kendall was not authorized to sign the submission for the plaintiffs comes too late. That instrument recites that Kendall was the agent of Morse and the executors of Vail, and as such agent he makes the settlement mentioned therein between them and Smith, and agrees to submit the disputed claims between them to arbitration. That instrument Smith signs, and thus becomes a party to the settlement and submission, and must have been satisfied of the sufficiency of the authority upon which Kendall acted. And this is not all: throughout all the proceedings before the arbitrators and the umpire, Kendall represented the plaintiffs, and Smith, who appeared in person on the other side, took no exception to his authority. But if the authority had been originally insufficient, the plaintiffs have adopted and ratified his acts by accepting the settlement made by him on their behalf, and by bringing the present action upon the covenant contained in the submission.

The manner in which Kendall executed his authority is not open to the criticism of counsel. Where an instrument shows on its face the names of the contracting parties, the agent may sign his own name first, and add to it, as in the present case, agent for his principal, or he may sign the name of his principal first, and add, by himself as agent. Either form may be followed; all that is required in such case is that the contract shall purport on its face to be the contract of the principal.

4th. There is no defect of parties plaintiffs. Kendall had no cause of action against Smith, or against any other party to the submission. He signed that instrument only for the purpose of settling various causes of action in which he was personally interested. The agreement of submission was exclusively between the parties to the present action. The award followed the submission, and neither adjudged anything to Kendall or against him.

In coming to the conclusion we have upon the objections of the defendants, we have not regarded the memorandum between the parties, made on the 13th of December, 1859, or the previous correspondence with Cooper, as affecting in any respect the terms or character of the submission. Those documents were admissible to show that no articles of submission were ever executed, as mentioned in the sealed instrument, that the defendant recognized the authority of Kendall, and that both Smith and Kendall treated the sealed instrument as containing the whole of the stipulations between the parties, and went to the hearing before the arbitrators and umpire with that understanding.

JUDGMENT AFFIRMED.

title: Smith v. Morse/Opinion of the Court


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


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United States v. Keehler

ON certificate of division of opinion between the judges of the Circuit Court of North Carolina; whence the matter came in the form of a case agreed on and stated.

The case was this: Keehler, the defendant, had been appointed postmaster at Salem, in the State just named, some years before the rebellion broke out. His official bond, with sureties, was in the ordinary form, and was conditioned well and truly to execute the office of postmaster, and among other things, to render accounts once in three months, and to pay all balances, and to keep safely, without lending, using, depositing in banks, or exchanging for other funds, than as allowed by law, all the public money at any time in his custody, till the same was ordered by the Postmaster-General to be transferred or paid out; and that when such orders for transfer or payment were received, that he should faithfully and promptly make the transfer or payment as directed.

Keehler was still postmaster when the rebellion broke out in the spring of 1861, and had in his hands $330 of post-office money belonging to the United States. On the other hand, the United States were indebted to one Clemmens, a mail contractor in that region, for postal service in a sum exceeding $300; and the sum due to Clemmens by the United States had never been paid.

In August, 1861, the Congress of the so-called Confederate States passed an act appropriating the balances which were at the date of the breaking out of the rebellion in the hands of the several postmasters of the United States, who resided within the limits of the States then in rebellion, to the pro rata payment of claims against the United States for postal service; and in pursuance of the said act, and in obedience to a regular official order from the Post-Office Department of the so-called Confederate States, directing him to pay to Clemmens the whole sum of money in his, the said Keehler's, hands, received for the United States previous to the 1st of June, 1861, the said Keehler, on the 10th of April, 1862, paid to Clemmens the $330, and Clemmens gave him a receipt for it in form.

It was an admitted part of the case that the post-office at Salem was, in 1861, a collection office, and that Clemmens was the mail contractor, named in his special instructions, to whom the postmaster at Salem was required to pay over the net proceeds of his office quarterly, upon the production, by Clemmens, from time to time, of the proper orders and receipts from the Post-Office Department of the United States; and an admitted fact, moreover, that throughout the year 1862, the so-called Confederate government had force sufficient at its command to enforce its orders, and did enforce the orders of said government, in that part of North Carolina in which Salem is situated, and that no protection was afforded to the citizens of that part of the State by the government of the United States during that term.

The rebellion being suppressed the United States brought suit against Keehler and his sureties, on their official bond, already mentioned. The pleas were conditions performed, conditions not broken, and especially that the balance claimed by the United States, to wit, the $330, had been paid over and delivered by Keehler to the said Clemmens, on the 10th day of April, 1862, under the circumstances above stated. Upon this case, so agreed on, the judges of the Circuit Court were divided in opinion on the question, whether the law was for the plaintiff or for the defendant.

''Mr. Hoar, Attorney-General, and Mr. Field, Assistant Attorney-General, for the United States, submitted the case. No opposing counsel''.

Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Keehler


text: Talk:United States v. Keehler

title: Talk:United States v. Keehler


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

The defence, which the facts of the statement seek to set up to this action, will be noticed under three heads.

1. He paid the amount to one Clemmens, who was a mail carrier on the route which embraced the post-office of Keehler, and to whom Keehler had been directed to pay the money he might have as postmaster upon the production by said Clemmens of proper orders from the Post-Office Department. It was admitted that the government, at the commencement of the rebellion, owned Clemmens more than this sum, but it is not claimed that he had any orders for the money from the Post-Office Department of the United States.

Can this voluntary payment to a creditor of the United States be pleaded to a suit on the bond?

It is hardly necessary to say that such a payment is no compliance with the condition of the bond. It is, therefore, not good under a plea of covenants or conditions performed. Nor can it be used as an equitable set-off, because it would produce endless confusion in the accounts of the department, and lead to double payments and serious embarrassments in its business, if every postmaster who had government money could select a creditor of the United States and pay what he might suppose the government owed him.

2. It is stated that the Confederate Congress passed an act appropriating balances of this kind to the payment of claims against the United States for postal service, where the parties resided within the limits of the States in rebellion, and that under this act an order was drawn by the post-office department of the Confederate States on Keehler, directing him to pay this money to Clemmens, and that on this order it was paid.

It certainly cannot be admitted for a moment that a statute of the Confederate States, or the order of its postmaster-general, could have any legal effect in making the payment to Clemmens valid. The whole Confederate power must be regarded by us as a usurpation of unlawful authority, incapable of passing any valid laws, and certainly incapable of divesting, by an act of its Congress or an order of one of its departments, any right or property of the United States. Whatever weight may be given under some circumstances to its acts of force, on the ground of irresistible power, or whatever effect may be allowed in proper cases to the legislation of the States while in insurrection-questions which we propose to decide only when they arise-the acts of the Confederate Congress can have no force, as law, in divesting or transferring rights, or as authority for any act opposed to the just authority of the Federal government. This statute of the Confederate Congress and this draft of its post-office department are not, therefore, a sufficient authority for the payment to Clemmens.

3. But it is further stated (this payment being made on the 10th April, 1862), that throughout the year 1862 the so-called Confederate government had force sufficient to enforce its orders, and did enforce them in that part of North Carolina where defendant resided, and that no protection was afforded to the citizens of that part of the State by the United States government during that period.

It will be observed that this statement falls far short of showing the application of any physical force to compel the defendant to pay the money to Clemmens. Nor is it in the least inconsistent with the fact that he might have been desirous and willing to make the payment. It shows no effort or endeavor to secure the funds in his hands to the government, to which he owed both the money and his allegiance. Nor does it prove that he would have suffered any inconvenience, or been punished by the Confederate authorities, if he had refused to pay the draft of the insurrectionary post-office department on him. We cannot see that it makes out any such loss of the money, by inevitable overpowering force, as could even on the mere principle of bailment discharge a bailee. We cannot concede that a man, who, as a citizen, owes allegiance to the United States, and as an officer of the government holds its money or property, is at liberty to turn over the latter to an insurrectionary government, which only demands it by ordinances and drafts drawn on the bailee, but which exercises no force or threat of personal violence to himself or property in the enforcement of its illegal orders.

But this court has decided more than once that in an action on the official bonds of such officers the right of the government does not rest on the implied contract of bailment, but on the express contract found in the bond, to pay over the funds. And on this principle it was held, in United States v. Prescott, that a plea which averred positively that the money was stolen from the officer, without any fault or negligence on his part, was no defence. It would be difficult to find a stronger case for relief from a contract to keep safely and pay over the public money than this. But the court held that the contract was one which the defendant had voluntarily undertaken, and which he must at his own peril perform. This ruling was repeated in United States v. Dashiel, also in United States v. Morgan. Such was the law as declared by this court long before the rebellion broke out, and however hard it may be in some of its aspects, the court has no option but to act on it.

But Congress seems not to have been inattentive to the injustice which the rule might work in some cases, and has, by the act of April 29th, 1864, provided for the relief of postmasters situated like defendant, who have manfully done their duty. That act provides that in all cases where loyal postmasters have been robbed by Confederate forces or rebel guerillas, without fault or neglect of such postmaster, the Postmaster-General may credit them in settlement with the amount lost by the robbery, and if the officer had settled and paid the amount before the law was passed, it should be paid back to him. And by the act of March 3d, 1865, the relief is extended to losses by any armed force whatever, either by robbery or burning. These statutes recognize the rule laid down by this court, and provide for such exceptions as can be brought within their terms. For other cases, which present peculiar claims for relief, as this may do if it shall be shown that the claim of Clemmens would be a just subsisting demand against the government but for this payment, the parties must resort to Congress. The court is not authorized to make other exceptions than those made by the statutes.

Our answer to the question certified to us by the Circuit Court is, that on the facts stated the

UNITED STATES IS ENTITLED TO A JUDGMENT.


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


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Railroad Company v. Fremont County

IN error to the Supreme Court of Iowa.

Fremont County, Iowa, filed a bill in one of the State courts of Iowa against the Burlington and Missouri River Railroad Company, to quiet the title to twelve thousand seven hundred and fifty-four acres of land, or thereabouts, situate in the said county, which the company claimed as belonging to it. Both parties set up title under grants by acts of Congress: Fremont County, under what is known as 'the swamp-land grant' to the State of Iowa, September 28th, 1850; the railroad company, under a grant to the State for aid in the construction of railroads, May 15th, 1856.

The title of Fremont County, the complainant, was as follows:

By the 1st section of the act of September, 1850, it is provided 'that to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby granted to said State.'

Section 2d provides 'that it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the governor of the State; and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent the fee simple to said land shall vest in the said State, subject to the disposal of the legislature thereof: provided, however, that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.

'Section 3d. That in making out a list and plats of the land aforesaid all legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character the whole of it shall be excluded therefrom.

'Section 4th. That the provisions of this act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated.'

Under this last section the State of Iowa became entitled to the benefit of this act. After its passage the only important steps to be taken to perfect the title in the State were the ascertainment and designation of the several subdivisions which fell within the description of swamp lands as defined in the third section. This duty was cast upon the Secretary of the Interior as the head of the land department.

On the 21st November, after the passage of the act, the commissioner of the land office issued instructions to the surveyor-general of the State to make a selection of these subdivisions, and report the same to the department; and also to transmit copies to the local land offices. This duty was performed in accordance with the instructions. The first list was returned and filed in the general land office September 20th, 1854, and in the local office October 23d, 1854. The second and remaining list was returned and filed in the general land office January 21st, 1857, and in the local office January 23d, 1857. These two lists contain the whole of the lands in controversy. On the filing of the lists in the local office the register was directed to make a note of the subdivisions in his tract-book, and to withdraw them from the market, which was done accordingly.

In this connection it may be proper to refer to the act of March 2d, 1855, which is 'An act for the relief of purchasers and locators of swamp and overflowed lands.' It provides, in substance, that patents shall be issued to purchasers or locators who had made entries of the public lands claimed as swamp lands prior to the issue of patents to the States under the second section of the swamp-land grant of 1850, and providing for an indemnity to the States. Conflicts had arisen between these purchasers and locators, on the one side, and the States claiming the land under the swamp-land grants. As these lands were not withdrawn from sale till the filing of the lists in the local and office, they were supposed to be open to entry or location, and a portion of them had been thus appropriated. On the other hand, the States claimed that the grant to them by the act of Congress was a grant in presenti and vested the title immediately. Such had been the opinion expressed by the land commissioner, and also by the Attorney-General.

The embarrassments of the land department growing out of this controversy between the States and the settlers were removed by this act of 1855, which confirmed the title of the settlers, and compensated the States for the land of which they were deprived.

The second section of the act provided that compensation should be allowed to the States only in respect to subdivisions taken up by the settlers, which were swamp lands within the true intent and meaning of the act of 1850; that is, where the greater part were 'wet and unfit for cultivation.' And the land department, therefore, allowed parties to contest the claim of the States, and to give evidence before the proper officers that subdivision was not of the character contemplated by the law. As a consequence, under this construction of the act, controversies increased between the settlers and the States, and, as stated by one of the commissioners of the land office, the contesting applications pending before the department involved, by estimate, three millions of acres, and, on investigations being ordered, papers came into the office by bushels. Pending these proceedings Congress intervened and passed the act of March 3d, 1857. This act is entitled 'An act to confirm to the several States the swamp and overflowed lands selected under the act of September 28th, 1850, and the act of March 2d, 1849.'

The act contains but one section, and it provides 'that the selection of swamp and overflowed lands granted to the several States by the act of Congress, approved September 28th, 1850, and the act of 2d March, 1849, heretofore made and reported to the commissioner of the general land office, so far as the same shall remain vacant and unappropriated, and not interfered with by an actual settlement under any existing laws of the United States, be, and the same are hereby confirmed, and shall be approved and patented to the several States, in conformity with the provisions of the act aforesaid, as soon as may be practicable,' with a proviso saving the act of March 2d, 1855, which is continued in force and extended to all entries and locations, claimed as swamp lands, made since its passage. As we have already stated, the selection of the swamp and overflowed lands by the State of Iowa, under instructions from the land department, involved in this suit, was made, and lists returned and filed in the department September 20th, 1854, and January 21st, 1857, which was before the passage of this act. And these are the selections referred to, confirmed, and approved, and for which patents were directed to be issued as soon as practicable, if the same were vacant and unappropriated, or not occupied by an actual settler under some law of Congress.

So far as respects the title of the complainant, Fremont County.

The title of the railroad company, which, as already stated, was under the act of May, 15th, 1856, was thus. That act provides 'that there be and is hereby granted to the State of Iowa, for the purpose of aiding in the construction of railroads from Burlington, on the Mississippi River, to a point on the Missouri River near the mouth of the Platte River' (naming also several other lines of railroads), 'every alternate section of land designated by odd numbers for six sections in width on each side of each of said roads,' and then provides that when the lines of the roads shall be 'definitely fixed,' if it shall appear that any of the lands within these six sections shall have been 'sold or otherwise appropriated,' alternate sections may be selected of equal quantity within fifteen miles of the road.

To this grant is the following proviso:

'That any and all lands heretofore reserved to the United States by any act of Congress, or in any manner by competent authority for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be and the same are hereby reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.'

The location of the railroad was not made on the ground and adopted by the company until March 24th, 1857.

The District Court rendered a decree declaring the right and title to be in the county, and the claim of the railroad company to be void. The railroad company appealed to the Supreme Court of the State, which, after hearing, affirmed the decree of the District Court. The railroad company now brought the case into this court for re-examination.

The case was submitted on the record, with briefs of Messrs. Rohrer and Strong for the plaintiff in error, and of Mr. Harvey, contra.

Mr. Justice NELSON, having stated the case in the way already given, delivered the opinion of the court.

title: Railroad Company v. Fremont County


text: Talk:Railroad Company v. Fremont County

title: Talk:Railroad Company v. Fremont County


text:
Railroad Company v. Fremont County/Opinion of the Court

It will be seen from an examination of the grant made to the railroad company by the act of May 15th, 1856, that the reservations annexed to it are very full and explicit. They are first found in the enacting clause itself, where provision is made for the selection of lands beyond the lines of the six sections on each side of the road, in case any of the sections have been previously sold or otherwise disposed of; and then again in the general proviso to the trant. These reservations clearly embrace the previous grant of the swamp and overflowed lands for the purpose of enabling the States to redeem them and fit them for cultivation by levees and drains. At the time of the passage of this act (May 15th, 1856), a moiety of the lands in controversy had been selected and reported to the land department; and the authorities of the State, under instructions from that department, were engaged in the selection of the remainder. The lands already selected and returned had been withdrawn from sale, and were not in the market at the time of the passage of the act; and as soon as the remaining lists were returned, which was January 21st, 1857, they were also withdrawn from the market. In the language of the railroad act, the whole of the lands in controversy were 'otherwise appropriated,' and were 'reserved' for the purpose of aiding the States in their objects of internal improvements.

But there is still, if possible, a more decisive answer to the title set up by the defendants. Until the line of the railroad was definitely fixed upon the ground, there could be no certainty as to the particular sections of lands falling within the grant; nor could the title to any particular section on the line of the road vest in the company. The grant was in the nature of a float until this line was permanently fixed. Now, the proofs show that the location of the road was not made on the ground and adopted by the company till the 24th March, 1857, which was after the confirmatory act of that year.

This, as we have seen, confirmed all the selections made at the time, and which included all in controversy in this suit, in the language of the section, 'so far as the same shall remain vacant, and unappropriated, and not interfered with by actual settlement.' As the railroad company at this time, for the reasons above stated, had not perfected their grant so as to have become invested with the title to any of the sections included in the lists or selections of the swamp lands on file in the land department, they can set up no appropriation of any of these lands under their grant, which leaves them subject to the confirming act of 1857, according to the very words of it.

DECREE AFFIRMED.

About a fortnight after the above reported case was adjudged, there was adjudged another from a different State, and which, as respected the position of parties, was a sort of converse to it; and in its nature somewhat supplementary. It is accordingly reported in immediate sequence. From its correlative character, as just described, the reader will readily understand that he must be possessed of the preceding case in order to understand this one. It was the case of


text: Talk:Railroad Company v. Fremont County/Opinion of the Court


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Railroad Company v. Smith

ERROR to the Supreme Court of the State of Missouri.

The Hannibal and St. Joseph Railroad Company brought ejectment against Smith, in one of the county courts of Mis souri, to recover possession of certain lands.

The title of the railroad company was deduced from an act of Congress, entitled, 'An act granting the right of way to the State of Missouri, and a portion of the public lands to aid in the construction of certain railroads in said State,' approved June 10th, 1852. This act granted to the State of Missouri, for the purpose of making the railroad, every alternate section of land designated by even numbers on each side of the road.

The legislature of Missouri, in September, 1852, accepted the grant, and by statute vested the land granted in the railroad company.

Such was the title of the plaintiff.

That of the defendant, Smith, was deduced from the same 'swamp-land grant,' the act of Congress, namely, which is set out in the statement of the last reported case, approved September 28th, 1850, by which Fremont County in that case held its lands. But in this case the railroad interest was the actor; not as in the last one a defending party merely, with a swamp-land grantee in the position of assailant.

On the trial below of the present cause the defendant introduced evidence against objection tending to prove that the lands in suit were wet and unfit for cultivation at the date of the swamp-land act of 1850; and this was his title. No evidence was introduced by him tending to show that the land in suit was ever certified as swamp land by the Secretary of the Interior, or that the same was ever patented as such to the State of Missouri. Nor was this pretended. In fact the correspondence of the land department of the United States showed that the secretary had no sufficient evidence to enable him to make such certificates.

The court in which the suit was brought gave judgment for Smith, the defendant, and the railroad company appealed to the Supreme Court of Missouri. That court affirmed the judgment of the court below, and the railroad company now brought the case here.

Messrs. James Carr and W. P. Hall, for the plaintiff in error; Mr. Drake, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Railroad Company v. Smith


text: Talk:Railroad Company v. Smith

title: Talk:Railroad Company v. Smith


text:
Railroad Company v. Smith/Opinion of the Court

The grants of lands by Congress to the States in aid of railroads have generally been made with reference to the lands through which the roads were to pass, and, as the line of the road had to be located after the grant was made, it has been usual in the acts making the grant, to describe them as alternate sections of odd numbers within a certain limit on each side of the road, when it should be located.

This, of course, left it to be determined by the location of the road what precise lands were granted. So far as this uncertainty in the grant was concerned, it was one which might remain for a considerable time, but which was capable of being made certain, and was made certain, by the location of the road. But as Congress could not know on what lands these grants might ultimately fall, and as the roads passed through regions where some of the lands had been sold, some had been granted for other purposes, and some had been reserved for special uses, though the title remained in the United States, these statutes all contained large exceptions from the grant, as measured by the limits on each side of the road and as determined by the odd numbers of the sections granted.

We have had before us two cases growing out of the construction to be given to the language of these exceptions in the grant of May 15th, 1856, to the State of Iowa. The first of these was the case of Wolcott v. The Des Moines Company. The other is the case of The Railroad Company v. Fremont County, decided at this term.

The case before us arises under a similar grant to the State of Missouri, with like reservations in the act, but it raises a question somewhat different from that presented by the other two cases.

In the last of those cases it was determined that a proviso which excluded from the grant 'all lands heretofore reserved by any act of Congress, or in any manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpuse whatever,' excluded the lands granted to the States by the act of September 28th, 1850, known as the swamp-land grant. In that case the county of Fremont, claiming under the swamp-land grant, was plaintiff, and the railroad company, claiming under the grant to the State for railroads, was defendant, and the main point in it related to the evidence which might be necessary to establish the fact that the lands claimed by plaintiff were swamp and overflowed within the meaning of the act of 1850.

In the present case the position of the parties is reversed, the plaintiff claiming under the act of June 10th, 1852, granting lands to the State of Missouri for railroad purposes, and the defendant claiming under the swamp-land grant.

In the former case it was necessary for the plaintiff, who must succeed on the strength of her own title, to show satisfactory evidence that the title of the United States had, under the swamp-land grant, become vested in Fremont County. The opinion of the court shows how this was successfully done in that case.

In the present action it was incumbent on the railroad company to show that the title of the United States had become vested in the company under the grant for railroad purposes.

It is admitted that this has been done, unless the land is of that class reserved from the grant as swamp land; for the act under which plaintiff claims has an exception in precisely the same terms with the act for the benefit of the Iowa railroads.

In the former case the plaintiff, claiming under the swamp-land grant, was bound to establish his title by such evidence as Congress may have determined to be necessary to make the title complete in the State, or the grantee of the State, to which the lands were supposed to be granted, otherwise the plaintiff established no legal title. In the present case it is not necessary to defeat the title under the railroad grant to show that all the steps prescribed by Congress to vest a complete title in defendant, under the swamp-land grant, have been taken. It is sufficient to show that this land which is now claimed under the railroad grant, was reserved out of that grant, and this is done whenever it is proved by appropriate testimony to have been swamp and overflowed land, as described in the act of 1850.

In order to determine the character of the testimony which will prove this, it may be useful to look at the statute which granted these swamp lands.

The first section of the act, after declaring the inducements to its passage, says that the whole of these swamp and over-flowed lands, made thereby unfit for cultivation, and unsold, are hereby granted to the States.

The third section, for further description, says that all legal subdivisions, the greater part of which is wet and unfit for cultivation, shall be included as swamp lands; but when the greater part is not of that character the whole of it shall be excluded.

Congress has here given a criterion, apparently not difficult of application, by which to determine what was granted, to wit, such legal subdivisions of the public lands, the greater part of which were so far swamp and overflowed as to be too wet for cultivation. Now, here is a present grant by Congress of certain lands to the State within which they lie, but it is by a description which requires something more than a mere reference to their townships, ranges, and sections, to identify them as coming within it. In this respect it is precisely loke the railroad grants, which only became certain by the location of the road. In fact, in this regard the swamp-land grant was the more specific, for all the lands of that description were granted, and they have remained so granted ever since, while no particular land was described by the railroad grant, which was a float, to be determined by the choice of the line of the road in future. No act of Congress has ever attempted to take back this grant of the swamp lands, or to forfeit it, or to give it to any other grantee, or modified the description by which they were given to the States. It was protected by positive reservation in the grant under which plaintiff claims. Now, when a party claiming under that grant sues to recover a particular piece of land which is excepted out of the grant by appropriate language, is is not competent to show by parol proof that it was of the class covered by the first grant and excepted from the second, namely, so swampy, overflowed, and wet, as that the major pary of the tract was unfit for cultivation?

By the second section of the act of 1850 it was made the duty of the Secretary of the Interior to ascertain this fact, and furnish the State with the evidence of it. Must the State lose the land, though clearly swamp land, because that officer has neglected to do this? The right of the State did not depend on his action, but on the act of Congress, and though the States might be embarrassed in the assertion of this right by the delay or failure of the Secretary to ascertain and make out lists of these lands, the right of the States to them could not be defeated by that delay. As that officer had no satisfactory evidence under his control to enable him to make out these lists, as is abundantly shown by the correspondence of the land department with the State officers, he must, if he had attempted it, rely, as he did in many cases, on witnesses whose personal knowledge enabled them to report as to the character of the tracts claimed to be swamp and overflowed. Why should not the same kind of testimony, subjected to cross-examination, be competent, when the issue is made in a court of justice, to show that they are swamp and overflowed, and so excluded from the grant under which plaintiff claims, a grant which was also a gratuity?

The matter to be shown is one of observation and examination, and whether arising before the secretary, whose duty it was primarily to decide it, or before the court, whose duty it became because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.

Any other rule results in this, that because the Secretary of the Interior has failed to discharge his duty in certifying these lands to the States, they, therefore, pass under a grant from which they are excepted beyond doubt; and this, when it can be proved by testimony capable of producing the fullest conviction, that they were of the class excluded from plaintiff's grant.

The decision of the case of the Railroad Company v. Fremont County disposes of all the errors alleged in this case but the admission of the verbal testimony, and as we are of opinion that the State court did not err in that, the JUDGMENT IS AFFIRMED.


text: Talk:Railroad Company v. Smith/Opinion of the Court


text:
Pelham v. Rose

ON certificate of division of opinion between the judges of the Circuit Court for the District of Indiana, the case being thus:

An act of Congress, approved July 17th, 1862, entitled 'An act to seize and confiscate the property of rebels,' thus enacts:

'Sec. 6. All the estate and property, moneys, stocks, and credits, of such person, shall be liable to seizure as aforesaid; and it shall be the duty of the President to seize and use them as aforesaid, or the proceeds thereof.'

'Sec. 7. That to secure the condemnation and sale of any such property, after the same shall have been seized, so that it may be made more available for the purposes aforesaid, proceedings in rem shall be instituted in the name of the United States, in any District Court thereof, or in any Territorial court, or in the United States District Court for the District of Columbia, within which the property above described, or any part thereof, may be found, or into which the same may be brought, which proceedings shall conform, as nearly as may be, to proceedings in 'admiralty and revenue cases;' and if said property shall be found to have belonged to a person in rebellion, the same shall be condemned as enemies' property.'

Under this statute the attorney of the United States for the district of Indiana filed his libel of information against certain 'credits and effects' of one Henry Pelhan (the plaintiff), 'that is to say, one promissory note for the sum of $7000, dated March 1st, 1862, and due four years after date, executed by Lewis Pelham to him the said Henry.'

A writ of monition was issued, directed to a certain Rose, the then marshal of the district, which, after referring to the libel, ordered him to attach the note and detain the same n his custody, and to cite all persons claiming the same, or having anything to say why it should not be condemned and sold, to appear on a day designated and interpose their claims.

Rose made this return:

'In obedience to the within warrant, I have arrested the property within mentioned, and have cited all persons having or pretending to have any right, title, or interest therein, as by the said warrant I am commanded to do.'

The District Court subsequently proceeded to try and determine the matters involved in the libel, and decreed,

1st. That for failing to appear, the default of all persons interested in the note should be entered.

2d. That the charges of the libel should be taken as confessed.

3d. That the note should be condemned as forfeited to the United States; and,

4th. That the clerk should issue a writ of venditioni exponas to the marshal to sell the note at public auction.

This latter writ was accordingly issued and delivered to the marshal, and was returned by him with a certificate that he had sold the note at auction to Lewis Pelham, who was its maker, for $3000.

Henry Pelham now brought the action below against Rose and his sureties for a false return to the writ of monition.

The declaration, after stating such of the facts abovementioned as were pertinent, set forth that the marshal did not, in obedience to the writ of monition, attach the note therein described, nor seize the same by himself or deputy; that the note was not even within sight of the marshal or of any of his deputies at any time between the delivery of the writ to him for execution and its return; nor was it, pending the proceedings by libel, within the State of Indiana; but that during this time, and for a period long after the entry of the decree of confiscation, was in the custody and possession of the plaintiff in the State of Kentucky. Wherefore (the declaration asserted) the return of the marshal was wholly false, and the decree of condemnation was founded upon a false return, and hence an action had accrued to the plaintiff on the bond of the marshal.

The defendants demurred, and upon the argument of the demurrer the following questions arose, upon which the judges of the court were opposed in opinion:

'1st. Whether, upon the facts stated in the declaration, it was material and necessary to the due and legal service of the writ of monition, therein set forth by the marshal, that he should have seized and taken into his custody and under his control, the promissory note mentioned.

'2d. Whether the return to the writ of monition, as set forth in the declaration, must be construed to mean that the marshal had actually taken into his custody and under his exclusive control, the promissory note; and,

'3d. Whether, on the hypothesis that all the matters, as set forth in the declaration, were true, the judgment and proceedings in the District Court, as therein stated, would estop the plaintiff to maintain an action on the promissory note against the maker.'

Mr. Coburn, for the plaintiff in error, a brief of Messrs. Mor rison, Dye & Harris being filed; Mr. Miles, contra.

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court as follows:

title: Pelham v. Rose


text: Talk:Pelham v. Rose

title: Talk:Pelham v. Rose


text:
Pelham v. Rose/Opinion of the Court

The act of July 17th, 1862, contemplates the seizure of the property, the forfeiture of which is sought by the proceedings taken under its provisions. It says so in express terms. In one section it makes it the duty of the President 'to cause the seizure' of the estate and property, money, stocks, and credits of the persons designated therein. In another section it declares that the like property of persons engaged in armed rebellion against the United States, or in aiding or abetting the rebellion, 'shall be liable to seizure,' and imposes a similar duty upon the President to seize and use it. And in a third section it provides, that to secure the condemnation and sale of the property, 'after the same shall have been seized,' proceedings shall be instituted, in the name of the United States, in any District Court thereof, or in any Territorial court, or in the District Court for the District of Columbia, within which the property, or any part thereof, may be found, or, if movable, may first be brought; and that such proceedings shall conform, as nearly as possible, to proceedings in admiralty or revenue cases.

The seizure of the property, as thus seen, is made the foundation of the subsequent proceedings. It is essential to give jurisdiction to the court to decree a forfeiture. Now, by the seizure of a thing is meant the taking of a thing into possession, the manner of which, and whether actual or constructive, depending upon the nature of the thing seized. As applied to subjects capable of manual delivery, the term means caption; the physical taking into custody.

In the case at bar, a visible thing, capable of physical possession, is the subject of the libel. It is the promissory note of Pelham which constitutes the res, against which the proceeding is instituted, and not 'a credit,' or debt, which the note is supposed by the defendants' counsel to represent. Whether by any proceedings under the act of July, 1862, the indebtedness of a maker on a negotiable promissory note, before its maturity, could be reached without the possession of the note itself, is not a question presented for our consideration. It is sufficient that the object of the present libel is to reach the note itself. This appears at every stage of the proceedings; in the information; in the monition to the marshal; in his return; in the decree of the court; and in the sale made.

To effect its seizure, as required by the act, it was, therefore, necessary for the marshal to take the note into his actual custody and control. And such was the purport of the command of the writ of monition. The writ describes the note, and the command to the marshal is, 'to attach the note, and to detain the same in your custody until the further order of the court respecting the same,'-language which is inconsistent with any service other than that made by physically taking the note into his possession and control. This form of command is usually adopted in warrants to the marshal in cases of municipal seizure. 'On receiving it' (the warrant), says Conkling in his treatise, 'it is the duty of the marshal to arrest the property seized by taking it into his custody.' #fn-s-s The term arrest is the technical term used in admiralty process to indicate an actual seizure of property. And the return of the marshal to the writ, that he has 'arrested the property within mentioned,' signifies in apt and technical language that he has actually taken the property into his custody and under his control.

The first and second questions certified to us must, therefore, be answered IN THE AFFIRMATIVE.

The third question rests upon an hypothesis, and we must DECLINE TO ANSWER it until it has lost its hypothetical character and become involved in actual controversy.

title: Pelham v. Rose/Opinion of the Court


text: Talk:Pelham v. Rose/Opinion of the Court


text:
Cheever v. Wilson

APPEAL from the Supreme Court of the District of Columbia; the case being this:

By a statute in force in Indiana in 1857 it was thus enacted:

'Divorces may be decreed by the Circuit Court of the State on petition, filed by any person at the time a bon a fide resident of the county in which the same is filed; of which bon a fide residence the affidavit of such petition shall be prim a facie evidence.

'The grounds of divorce are (among others):

'Abandonment for one year.

'Cruel treatment of either party by the other.'

The statute further declares that, the court, in decreeing a divorce, shall make provision for the guardianship, custody, support, and education of the minor children of such marriage.

With this statute in force, one Mrs. Annie Jane Cheever, in June, 1857, she being then in Marion County, Indiana, filed a bill in the County Court of the State (the proper court, if the case were otherwise one for its cognizance), praying a divorce, a vinculo, from her husband, B. H. Cheever. Mrs. Cheever had come to Indiana from Washington in apparently the February preceding, and the city just named was the place where her parents had long lived, where it seemed that she was brought up, and where in 1842 she was married; a contemporary document describing both herself and her then intended husband, as 'of the city of Washington.' At the time of the application for divorce, Mrs. Cheever was owner, as for more than seventeen years previously she had been, by devise from her father, of real estate in Washington; a store on Pennsylvania Avenue and two houses on Sixth Street; property which on her marriage in 1842 had been settled in trust, that she should 'receive, take, and enjoy the rents and profits to her sole and exclusive use and benefit.'

There was little in the record to show exactly what motive took Mrs. Cheever from Washington to Indiana; or how long exactly she remained in Indiana, or how or where, by dates, she was living after she left it. But it was certain that divorces a vinculo could not, when she went to Indiana, nor until long after she was divorced in that State, be obtained by law in the District of Columbia.

Her petition for divorce-which described her as a resident of Marion County, and, to which was annexed an affidavit that she was a bon a fide resident of the county at the time the petition was filed (June 16th, 1857), and was so still-represented that she had been married to Cheever; that after conduct to her, harsh, cruel, and severe, he had in 1854 abandoned her without any purpose of returning to her; and it gave the names and dates of birth of four children, which it stated were the issue of the marriage.

The husband, by an answer of three lines, denied the allegations of the wife's bill, and required strict proof; and on his part filed a cross-bill, setting forth the fact of her separate property, the existence of the children, that in 1854 a disagreement arose between him and his wife which was wholly irreconcilable, that he had abandoned her with intent never to live with her again; that reconciliation was impossible: and he, too, on his part concluded his petition with a prayer for a divorce a vinculo, and to have custody of the older children, and the profits of the real estate to support them.

To this cross-bill of her husband Mrs. Cheever appeared without process, and the cause being called for trial, it was by consent of parties submitted to the court without a jury, and 'the court having heard the evidence,' as the record stated, found the marriage, abandonment, and residence of Mrs. Cheever, the birth and names of the children all as alleged, and on the 26th of August, 1857, decreed the divorce prayed for by both parties alike.

How long Mrs. Cheever remained in Indiana after this date was not quite apparent. It rather seemed as if she had left it in the end of the following September. The record of the already described proceeding in divorce, contained under the date of February 24th, 1858, this entry:

'Now comes S. Yandes, Esq., attorney for B. H. Cheever, and L. Barton, Esq., attorney for Annie Jane Cheever, and on their motion each of said parties has leave to withdraw their respective depositions filed in this court at the last term thereof, in the cause then pending for divorce between said Cheever and Cheever.'

Some time before December of the same year (in June, as was said in one of the briefs, without contradiction by the other), Mrs. Cheever remarried, and went to Kentucky. Her second husband dying, she came back, apparently, to Washington. She was there it seemed in 1862 and 1863.

Prior to the divorce she had made to one Wilson, a grocer, two leases of five years each, of the store in Washington; one of the leases, made in 1855, ran from the 1st of October, in that year, till the 1st of October, 1860; and the other (made July 16th, 1857, forty days before the divorce), for a further term of five years, to commence when the first one should expire.

Besides these two leases made before the divorce, she made a third one in 1858, after it; this third one running for ten years from the expiration of the first one, that is to say, from the 1st October, 1860, till the same day in 1870; this last lease containing a stipulation, that if the premises should be destroyed by fire during the term, the rent should cease until the premises should be rebuilt by the lessors.

Wilson, the lessee, already named, appeared to have been on friendly terms with Mrs. Cheever and her mother, and from time to time during her domestic troubles advanced to her money; collected the rents of her Sixth Street houses, paid certain claims against her, charging them against the rents of the property occupied or managed by him. To secure him for these advances made, and certain others to be made, Mrs. Cheever, nine months before the divorce, executed a deed of trust, in form, to two gentlemen of Washington, Messrs. Carlisle and Maury; and Wilson went on making advances on the one hand, and charging them against rents on the other, to the extent, as was alleged, of near $5000; the whole of this sort of business being done without much formality. A likelihood of confusion of accounts and of contest about them, if third parties became interested to intervene, was augmented by the fact that after the divorce, and after Cheever's rights, if any, under the Indiana order, had attached, Mrs. Cheever-Worcester received further advances from Wilson, not secured by the deed of trust, and which advances it was agreed by her that Wilson should still charge against rents; and finally, that in 1862, the storehouse was destroyed by fire, that the mother of Mrs. Cheever-Worcester received the insureance money, $4000, and that Wilson, under the covenant received the insurance it.

The decree of divorce in Indiana, which allotted the children in pursuance of the statute there, gave Cheever the three oldest, and Mrs. Cheever one, the youngest, and at the same time ordered that 'as the rents should become due and payable,' he should receive for the maintenance and education of the children which he took, the one third part of those which would be coming to Mrs. Cheever, in her own right, to obtain which Mrs. Cheever was ordered to give to him a proper authority to demand them of the tenant. Mrs. Cheever was to have the remaining two thirds. The mother was still alive, and her dower third was as yet paramount.

Mrs. Cheever, soon after the divorce, executed a power with an assignment to Cheever to receive the rents, interlining in it before execution, a declaration that the assignment was subject to a previous incumbrance of about $5000 to Wilson. Cheever, disregarding this part of the instrument, demanded his one third of Mrs. Cheever's two thirds, and Wilson setting up his prior right, and refusing to pay, Cheever now filed a bill in the court below, against him, Mrs. Cheever (now called Worcester), and her new husband, Worcester himself, setting out the divorce, order, &c., and praying for a specific performance of the Indiana order as to the portion of the rents allotted to him, and for general relief.

Mr. and Mrs. Worcester set up that the advances had not been yet paid by the rents; but, of course, did not set up that the divorce in Indiana was void.

Wilson set up the same allegation that the rents had not yet repaid him his advances made on the faith of them; and while he made no averment that the divorce was void, he yet stated that he 'did not admit its validity or regularity, or that it was operative to affect his rights, but, on the contrary, reserved to himself the right to impeach it if occasion should offer and require him to do so.' The matter, independently of the question of validity of the Indiana divorce, which, as Worcester died some time after filing his answer, it was possible might now be made, was obviously very much one of figures; and the court, in June, 1863, referred the matter to an auditor to state an account; the mother of Mrs. Cheever-Worcester having died in the April before, and her one third so falling in to her daughter.

The auditor, assuming the validity of the divorce, and bringing his account down as near to the date as practicable of his report, considered that the order of payment ought to be:

1. Wilson's advances to Mrs. Cheever, as secured by the trust deed of Carlisle and Maury.

2. Cheever's one third of the rents under the Indiana order from the time the advances were so satisfied.

3. So much of Cheever's one third of the rents as had been displaced by the interference of Wilson's prior claim, from the date of the Indiana order to the date of the payment of the advances under the trust deed, to payment of which one third, the whole two thirds of Mrs. Cheever-Worcester's rents were to be devoted; and, as the reporter understood his view-this part of the case not having been argued here-he held that Wilson was bound on the principle of subrogation to pay so much of Cheever's third as had been thus displaced; the effect of the auditor's whole view being to throw Wilson on later rents for reimbursement of advances not secured by the trust deed (the only ones as yet unpaid), and leaving to Mrs. Cheever-Worcester, for a considerable time, nothing but the dower one third which had fallen in by her mother's death.

Acting on these views of law, and subrogating Cheever to Wilson's rights against Mrs. Cheever-Worcester, the auditor, after much work of calculation, presented certain figures in result. Both Cheever and Wilson excepted to the report. Cheever excepted—

1. To the position assumed by the auditor, that the wife had power, under the marriage settlement, to anticipate and pledge her rents.

2. To the auditor's not bringing in, after the death of the mother, Mrs. Cheever-Worcester's new one third, to help to pay him a one third of the whole rents.

3. To the finding as to the state of the accounts between Wilson and Mrs. Cheever, as to the advances.

Wilson, on his part, objected to his being too much postponed for his later advances.

The court sustained the defendant's exceptions and dismissed the bill, upon the ground that the Indiana decree was wholly void as to each of the subjects of which it undertook to dispose; the divorce, the children, and the property. Cheever then brought the case here.

In this court, while some reference was made, on the side of Cheever, to the views of the auditor as to the wife's power of anticipation, to his view that the dower one third was not subject to the Indiana order; and to his figures; and by Wilson to the principle of subrogation adopted, the argument was on the validity of the Indiana divorce and orders.

Mr. Boyce, for the appellant, contended that the Constitution ordaining that 'full faith and credit should be given to the judicial proceedings of every other State,' the judgment, if conclusive, as undoubtedly it was, in Indiana, was conclusive everywhere else in this country. Jurisdiction having attached, the judgment was not open to inquiry upon the merits; that judgments of another State were not prim a facie but conclusive evidence of what they adjudged; that while parties not privies could show that the judgment had been obtained by fraud, or that the court rendering it had no jurisdiction, parties privy to the judgment could not do it.

Mr. W. S.C.ox, contra, commenting on the case as already stated, and upon the demoralizing character of the Indiana statute, contended that the courts of Indiana had no right to decree a divorce of any person but of bon a fide domiciled citizens of that State; that the question of bon a fide domicil was always one of fact; that here it was palpable that no case existed in fact, and that the divorce was a divorce by collusion and consent; the wife having set up a domicil in Indiana, because no divorce a vinculo could be got in Washington, her true domicil; that Mrs. Cheever could acquire no domicil except that of her husband, who it was not pretended was ever domiciled in Indiana; that even if there had been jurisdiction in Indiana to affect the person, there was none to affect the real estate in Washington; and, finally, that the decree was without parallel, for that it awarded the husband alimony for his own offence of desertion.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Cheever v. Wilson


text: Talk:Cheever v. Wilson

title: Talk:Cheever v. Wilson


text:
Cheever v. Wilson/Opinion of the Court

The material facts of the case, as disclosed in the record, are as follows:

On the 6th of September, 1842, Cheever, and the defendant, Annie, then Annie J. Hughes, executed a deed of marriage settlement, whereby the title of the real estate therein described, situate in the city of Washington, was vested in Sarah T. Hughes, the mother of Annie, 'in trust, to permit her daughter, the said Annie J. Hughes, to receive, take, and enjoy the rents and profits of the said lands and premises to her sole and exclusive use and benefit,' &c. The property embraced in the settlement is designated in the proceedings as 'the Avenue property,' and 'the Sixth Street property.' On the 8th of September, 1842, the parties were married. On the 10th of September, 1855, Mrs. Cheever and Mrs. Hughes executed to the defendant, Wilson, a lease of the Avenue property for five years, from the 1st of October, 1855, at an annual rent of $1300, to be paid quarterly. On the 26th of November, 1856, they executed a deed of trust to Carlisle and Maury, to secure certain advances therein mentioned, made, and to be made, by the defendant Wilson, to Mrs. Cheever.

This deed refers to the lease, and authorizes Wilson, after the 1st of October, 1857, to retain and apply the rents to the indebtedness until it should be extinguished. On the 11th of February, 1857, Mrs. Cheever executed to Wilson a paper purporting to assign to him all the rents then due and thereafter accruing until he should have received the sums therein mentioned. A further lease was given by Mrs. Hughes and Mrs. Cheever to Wilson, on the 16th of July, 1857, of the Avenue property, for the term of five years, to commence on the 1st of October, 1860, at the same rent, to be paid in the same manner as was provided in the former lease. Mr. and Mrs. Cheever lived together in Washington until December, 1854, when they separated. On the 16th of June, 1857, Mrs. Cheever filed her petition for a divorce in the Circuit Court of Marion County, Indiana. She described herself therein as a bon a fide resident of that county. The cause was removed by an order for a change of venue to the Circuit Court of Madison County, in that State. On the 19th of August, 1857, Cheever appeared and filed his answer and a cross-petition. On the 26th of that month the court decreed a divorce a vinculo matrimonii, and thereafter, by the agreement of the parties, it was further decreed that Cheever should have the custody of the three elder children, and that Mrs. Cheever should have the custody of the younger one until the further order of the court, and that for the support and education of the children Cheever should receive one third of the rents and profits, to which Mrs. Cheever was entitled, accruing from the property described in the deed of settlement. The decree declared, 'that the same is hereby decreed to the said Benjamin, as the same shall hereafter become due and payable, for the uses and purposes of the said infant children during the lifetime of the said Annie.'. . . 'And the said Annie shall execute to the said Benjamin a good and sufficient power to receive said rents and profits for the uses and purposes herein declared, which shall be sufficient for the purpose.' On the 27th of August she executed such an instrument, pursuant to the decree; but before doing so she added this sentence to the draft which had been prepared: 'This assignment of rents is subject to an incumbrance upon said rents to my agent, Jesse B. Wilson, of about $5000.' Her interest in the rents at the date of the decree was two thirds in possession, and the remaining third expectant upon the death of her mother, who received that portion for her dower. Notice of the decree was given to Wilson within a very short time after it was rendered. He did not recognize the complainant's claim, and has never paid him anything.

Soon after the divorce was granted Mrs. Cheever married Louis Worcester. On the 11th of December, 1858, Worcester and wife gave to Wilson an instrument whereby they assigned to him all her rents until he should have received the sum of $3000. On the 30th of December, 1858, Worcester and wife and Mrs. Hughes gave to Wilson an extension of his lease of the Avenue property for the term of ten years, from the 1st of October, 1860, being an addition of five years to the term of the last preceding lease. At the same time Mr. and Mrs. Worcester executed to him a further assignment of the rents. The Avenue buildings were destroyed by fire in April, 1862. Wilson erected the present store on the property at a cost to himself of upwards of $4000. He has continued to occupy it, and has paid no rent since the fire to any one.

Mrs. Hughes died on the 12th of April, 1863. Worcester died before that time. On the 22d of October, 1863, Wilson and Mrs. Worcester came to a settlement of their accounts. He had collected the rents of the Sixth Street property up to that time, but did so no longer. The accounts embraced the rent received from that property, as well as that from the Avenue property, and extended to the period of the fire. The result was that she was found to be indebted to him in the sum of $3290.

The complainant's bill was filed the 21st of June, 1858, and seeks a specific performance of the Indiana decree, against Wilson, as to the portion of the rents allotted to the complainant for the benefit of the children. On the 17th of June, 1863, it was ordered by the court that the auditor should report upon the state of the accounts between Mrs. Worcester and Wilson. There was no finding as to the rights of the parties, and no specific directions were given in the order.

The auditor made a very elaborate report. Assuming the Indiana decree to be valid, his conclusions were that the balance due to Wilson for his advances on the faith of the pledges of the rents, prior to the divorce or his having notice, and at the time of notice-which the auditor found to be the 11th of September, 1857-was $4627.78, including interest, and that this balance was extinguished on the 1st of January, 1863, leaving an overplus of $23.30; that there was due to the complainant the sum of $622.97, including interest, for rents, from the time of the payment of Wilson's advances to the 1st of January, 1865, the last quarter-day before the adjustment by the auditor, and the further sum of $2437.41 and interest for rents, from the date of the decree to the time the advances were paid; that the amount of the rents, accruing from the time of the payment of the advances, to the 1st of March, 1865, from the Avenue property, as well as the Sixth Street houses, while the defendant collected the rents of the latter, excluding the third which fell in by the death of Mrs. Hughes, was $1831.84; that the amount due to the complainant was, therefore, $3060.38, and that the sum in the hands of the defendant, Wilson, applicable thereto in payment, $1831.84, was not sufficient to pay complainant's arrears by the sum of $1295.58.

According to the report the claimant is entitled to a decree against Wilson for the sum of $1831.84, with interest from the 1st of March, 1865, and for the further sum of $1295.58 against Mrs. Worcester, with interest from the same time. The sum proposed to be decreed against Wilson is made up of two elements: (1) the complainant's share of the rents received by Wilson after his advances were paid, with interest down to March 1st, 1865, being $622.97; and (2) the share belonging to Mrs. Worcester of the rents accruing after the same period (excluding her mother's share, which lapsed by her mother's death), with interest computed also to the 1st of March, 1865, being $1208.87, these sums making together the aggregate of $1831.84. The auditor held that Wilson was liable for the latter sum, because the complainant was entitled to it, on the principle of subrogation. All the parties excepted to the report. The court sustained the defendants' exceptions, and dismissed the bill upon the ground that the Indiana decree was void.

Upon the execution of the deed of settlement, the real estate therein described became the separate property of Mrs. Worcester, and she had the same power to anticipate and encumber the rents as if she had been a feme sole.

The proportion of the rents to which the complainant was entitled was one third of the two thirds to which Mrs. Worcester was entitled at the time of the rendition of the decree in Indiana. The decree had reference to her rights as they existed at that time. It was not affected by the falling in of the other third, which her mother held as her dower to the time of her death.

The complainant was not bound by the lease of December, 1858. It was executed after the decree and notice to Wilson. He was bound by the preceding lease of July, 1857, which was executed before the decree. That lease contained a covenant on the part of Wilson to repair and pay rent. It did not expire until October 1st, 1865.

The buildings on the Avenue property destroyed by fire in April, 1862, were insured in the name of Mrs. Hughes for $4000, and she received that amount from the insurance company. The lease of 1857 fixed the amount of the rent, and the complainant is entitled to claim accordingly.

Under the lease of 1858, important questions may arise between Wilson, Mrs. Worcester, and the estate of Mrs. Hughes, but they do not affect the rights of the complainant in this litigation, and we need not therefore consider them.

It was proper, under the circumstances, to include in the accounts the rents received by Wilson from the Sixth Street property. That property was embraced in the deed of settlement and in the Indiana decree. The record of that case was filed with the bill as an exhibit, and became a part of it. The prayer of the bill is for general relief. The securities given by Mrs. Worcester embraced alike the rents accruing from that and the Avenue property. Wilson had applied and credited both. It would not be proper to withdraw and separate the former.

It appears by the ocmplainant's exceptions, that he objected strenuously in the court below to the findings of the auditor, as to the state of the accounts between Wilson and Mrs. Worcester touching the advances. After a careful consideration of the evidence, we are satisfied with his conclusions, and see no reason to disturb them. We do not think anything would be gained to the interests of justice by modifying the report, or by setting it aside, and ordering a further examination of the subject.

We think the auditor was right in his conclusion upon the point of subrogation. A much larger amount of the complainant's share of the rents than this principle will give him of hers, was applied in payment of Wilson's advances. It is proper that an equal amount of her share, according to her rights, as they were when the decree was rendered, should replace what had been so applied for her benefit. This will leave, unaffected by this ruling, for her enjoyment, the full third which had belonged to her mother, and to which she became entitled at her mother's death. We are satisfied with the anditor's findings as to the amount for which the defendants respectively should be held liable. Their exceptions should have been overruled.

The decree rendered in Indiana, so far as it related to the real property in question, could have no extra-territorial effect; but, if valid, it bound personally those who were parties in the case, and could have been enforced in the situs rei, by the proper proceedings conducted there for that purpose. But no question arises upon that subject. The assignment executed by Mrs. Worcester to the complainant, of the 27th of August, 1857, in pursuance of the decree, was ample to vest in him the interest and authority which the court ordered her to convey. The reservation in behalf of Wilson was only what the law without it would have prescribed, and did not impair its efficacy, or limit what would otherwise have been the scope of its effect and operation.

The main pressure of the arguments here has been upon the question of the validity of the Indiana decree. Those at the bar were confined to that subject, and the printed briefs go but little beyond it.

The courts of the United States take judicial notice of the laws and judicial decisions of the several States.

Upon looking into the laws of Indiana we find that the proceedings in the case there were governed by 'an act regulating the granting of divorces, nullification of marriages, and decrees and orders of court incidental thereto,' approved May 13th, 1852. The petition makes a case within the statute. It alleges that the petitioner was a bon a fide resident of the county where it was filed, and sets forth as causes for a divorce abandonment from December, 1854, and cruel treatment, by the husband. His answer denied the allegations of the petition. His cross-petition prayed for a divorce, for the custody of the children, and for provision for their support out of the separate property of the wife described in the deed of settlement. The decree sets forth as follows: 'The court find the marriage, abandonment, and residence of the said Annie J. Cheever, and the births, and names, and ages of the children, as alleged in the original petition, to be true, and the residue of said petition to be untrue.' A divorce was thereupon adjudged in the usual form.

It would be a sufficient answer to the questions raised as to the validity of this decree, that no such issue is made in the pleadings. The answer of Mrs. Worcester is silent upon the subject. Wilson, in his answer, says he 'does not admit the validity or regularity of said decree,' or that 'it is operative to affect his rights,' but, on the contrary,. . . 'reserves to himself the right to impeach it if occasion should offer and require him to do so.' This language is too vague and indefinite to have any effect. If he desired to assail the decree he should have stated clearly the grounds of objection upon which he proposed to rely. The averments should have been such that issue could be taken upon them. He and his co-defendant are precluded by the settled rules of equity jurisprudence from entering upon such an inquiry. Their silence is an admission, and they are bound by the implication. As, however, the question has been fully argued upon both sides, and may arise hereafter in further litigation between the parties, we deem it proper to express our views upon the subject.

The petition laid the proper foundation for the subsequent proceedings. It warranted the exercise of the authority which was invoked. It contained all the requisite averments. The court was the proper one before which to bring the case. It had jurisdiction of the parties and the subject-matter. The decree was valid and effectual, according to the law and adjudications in Indiana.

The Constitution and laws of the United States give the decree the same effect elsewhere which it had in Indiana. 'If a judgment is conclusive in a State where it is rendered, it is equally conclusive everywhere' in the courts of the United States.

It is said the petitioner went to Indiana to procure the divorce, and that she never resided there. The only question is as to the reality of her new residence and of the change of domicil. That she did reside in the county where the petition was filed is expressly found by the decree. Whether this finding is conclusive, or only prim a facie sufficient, is a point on which the authorities are not in harmony. We do not deem it necessary to express any opinion upon the point. The finding is clearly sufficient until overcome by adverse testimony. None adequate to that result is found in the record. Giving to what there is the fullest effect it only raises a suspicion that the animus manendi may have been wanting.

It is insisted that Cheever never resided in Indiana; that the domicil of the husband is the wife's, and that she cannot have a different one from his. The converse of the latter proposition is so well settled that it would be idle to discuss it. The rule is that she may acquire a separate domicil whenever it is necessary or proper that she should do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues. The proceeding for a divorce may be instituted where the wife has her domicil. The place of the marriage, of the offence, and the domicil of the husband are of no consequence.

The statute of Indiana enacted that 'the court, in decreeing a divorce, shall make provision for the guardianship, custody, and support, and education of the minor children of such marriage.' That part of the decree which relates to this subject has been already sufficiently considered. Barber v. Barber, has an important bearing upon the case under consideration. There a wife had obtained a divorce a mens a et thoro, and an allowance of alimony, in the State of New York. The husband afterwards removed to Wisconsin. To enforce the payment of the alimony she sued him in equity in the District Court of the United States for that district. The court was clothed with equity powers. The ground of Federal jurisdiction relied upon was the domicil of the husband and wife in different States. The court decreed for the complainant. This court, on appeal, recognized the validity of the original decree, sustained the jurisdiction, and affirmed the decree of the court below. This is conclusive upon several of the most important points involved in the case before us.

DECREE REVERSED, and the case remanded with directions to enter a decree

IN CONFORMITY TO THIS OPINION.

title: Cheever v. Wilson/Opinion of the Court


text: Talk:Cheever v. Wilson/Opinion of the Court


text:
Norris v. Jackson

IN error to the Circuit Court for the Northern District of Illinois, the case being this:

By section 4 of the act of March 3d, 1865, it is provided that parties may submit the issues of fact in civil cases, to be tried and determined by the court, without the intervention of a jury; and it declares what the effect of such finding shall be, and how and under what circumstances there may be a review of such judgments.

The language of the section on this subject is thus:

'The finding of the court upon the facts, which finding shall be general or special, shall have the same effect as the verdict of a jury. The rulings of the court in the cause, in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error, or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.'

With this statute in force, Norris brought ejectment in the court below against Jackson, submitting the case to the court without the intervention of a jury. Both parties derived title from one Woodruff; the plaintiff by judicial sale, the defendant as tenant of one Gitchell, to whom Woodruff had sold the lands bon a fide some time before the judicial sale. This judicial sale, under which the plaintiff claimed, was made eleven days after the lien of the judgment on which the execution issued had expired, and this fact made it, under the statutes of Illinois, as the defendant contended, a nullity.

To counteract the effect of this too long delay, the plaintiff in the progress of the trial offered to prove that after the levy of the execution on the land in question, Gitchell, the landlord of the defendant Jackson, and the real party in interest, had agreed to pay the judgment, and had requested and obtained, from the attorney holding the same for collection, a delay of the sale of the land so levied on for fifteen or more days, when he refused to make payment as he had agreed to do, whereby the marshal's sale of said land was necessarily deferred till eleven days after the lien had expired.

The court rejected the evidence, and judgment having been given for the defendant, the plaintiff brought the case here. On its coming up, the transcript showed a long bill of exceptions, embracing all the evidence, which consisted of judgments, executions, deeds, depositions, admissions, and agreements of the parties, at the close of which it was said that 'the foregoing was all the cause, and the court thereupon found the issues and rendered judgment for the defendant, to which decision and ruling of he court, the plaintiff then and there excepted.'Mr. A. F. Miller, for the plaintiff, both below and here, insisting particularly as error upon the rejection of the evidence which had been offered to show the cause of the delay, rested his case in part upon other matter embraced in the bill of exceptions.

Mr. S. W. Fuller, contra, argued that the attention of the court was confined to a single point.

Mr. Justice MILLER delivered the opinion of the court.

title: Norris v. Jackson


text: Talk:Norris v. Jackson

title: Talk:Norris v. Jackson


text:
Norris v. Jackson/Opinion of the Court

The first thing to be observed in the enactment made by the 4th section of the act of 3d March, 1865, allowing parties to submit issues of fact in civil cases to be tried and determined by the court, is that it provides for two kinds of findings in regard to the facts, to wit, general and special. This is in perfect analogy to the findings by a jury, for which the court is in such cases substituted by the consent of the parties. In other words, the court finds a general verdict on all the issues for plaintiff or defendant, or it finds a special verdict.

This special finding has often been considered and described by this court. It is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest. #fn-s-s

The next thing to be observed is, that whether the finding be general or special, it shall have the same effect as the verdict of a jury; that is to say, it is conclusive as to the facts so found. In the case of a general verdict, which includes or may include, as it generally does, mixed questions of law and fact, it concludes both, except so far as they may be saved by some exception which the party has taken to the ruling of the court on the law.

In the case of a special verdict, the question is presented as it would be if tried by a jury, whether the facts thus found require a judgment for plaintiff or defendant; and this being matter of law, the ruling of the court on it can be reviewed in this court on that record. If there were such special verdict here, we could examine its sufficiency to sustain the judgment. But there is none. The bill of exceptions, while professing to detail all the evidence, is no special finding of the facts.

The judgment of the court, then, must be affirmed, unless the bill of exceptions presents some erroneous ruling of the court in the progress of the trial.

The only ruling in the progress of the trial to which exception was taken by plaintiff, was to the refusal of the court to permit him to prove that Gitchell, the landlord of defendant, had promised to pay the judgment under which the land was sold to plaintiff.

We do not see that this was a matter of which plaintiff, a volunteer purchaser, had any right to complain. It could not extend the lien of the judgment beyond the time fixed by law, which seems to be the purpose for which it was offered.

We have taken some pains to comment on the mode in which cases tried by the court, which are properly triable by a jury, may be reviewed here. Attention was called to the statute of 1865, in the case of Insurance Co. v. Tweed, #fn-s-s-s and we condense here the results of an examination of that statute.

1. If the verdict be a general verdict, only such rulings of the court, in the progress of the trial, only such rulings are presented by bill of exceptions, or as may arise on the pleadings.

2. In such cases, a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a trial by jury.

3. That if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict, which raises the legal propositions, or they must present to the court their propositions of law, and require the court to rule on them.

4. That objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions.

As the only ruling of the court in this case that we can examine seems to have been correct, the judgment is

AFFIRMED.

title: Norris v. Jackson/Opinion of the Court


text: Talk:Norris v. Jackson/Opinion of the Court


text:
The Grapeshot (76 U.S. 129)

THIS case, which in its original form, was a libel in the District Court of Louisiana, on a bottomry bond, and, as such, involved nothing but the correct presentation of the principles of maritime law relating to that matter, and the examination of a good deal of contradictory evidence, to see how far the particular case came within them, presented subsequently, and in consequence of the rebellion and the occupation by our army of the mere city of New Orleans, while the region surrounding it generally was still held by the Confederate powers and troops, a great question of constitutional law, the question namely, how far, with that clause of the Constitution in force which declares that—

'The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,'--

the President could establish a Provisional Court, and how far Congress, on the suppression of the rebellion, could, by its enactment, validate the doings of such a court, transfer its judgments, and make them judgments of the now re-established former and proper Federal courts, from one of which, the Circuit Court of the United States for the District of Louisiana, the cause purported to be brought here.

The case-which in this court consisted accordingly of three parts-to wit:

1. The matter of jurisdiction,

2. That of the principles of maritime law in regard to bottomry bonds,3. The one of their application to the particular case, on the evidence, is all stated in the opinion of the court, not all consecutively in the opening of it, but all completely enough and with distinctness from the opinion itself, in three different parts, as the three respective topics arise to be treated of.

Mr. C. Cushing, for the owners of the ship, appellants; Mr. T. J. Durant, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Grapeshot (76 U.S. 129)


text: Talk:The Grapeshot (76 U.S. 129)

title: Talk:The Grapeshot (76 U.S. 129)