text:
Brobst v. Brock

ERROR to the Circuit Court for the Eastern District of Pennsylvania, the suit below being an ejectment for an undivided fourth of a tract of land, and the case being this:

The tract for a fourth of which the ejectment was brought, was the easternmost of twenty-five adjoining tracts in Pennsylvania which were surveyed in 1793, on warrants issued the same year, and for which separate patents were issued on the 9th and 10th of May, in 1816, to one George Grant, who in the same year conveyed the whole, forming a tract of 10,000 acres, to Thomas B. Smith. Smith conveyed the whole in undivided fourths, on the 27th of September, to Michael Brobst and three other persons, one-fourth to each. On the 6th March, 1817, Brobst mortgaged his undivided fourth to Samuel Wood, for $1500, payable on the 1st of April, 1821; the mortgage being properly recorded. The deeds of both Grant and Smith, and the mortgage of Brobst described the land collectively as one tract.

Michael and John Brobst were brothers, and were engaged in partnership in making iron in Berks County, in the eastern part of Pennsylvania. They failed in business, and confessed several judgments, among them one, January 17, 1817, for $1000, to Jacob Kutz and Jacob Levan.

On the 15th May, 1817, Michael Brobst conveyed to his brother, John Brobst, his undivided fourth of the twenty-five tracts and went to Illinois, where he died, in 1820, never having married; news of his death being brought to Pennsylvania about 1823.

John Brobst left the eastern parts of Pennsylvania, where he lived, about the year 1820, went to distant parts of the State for a short time, and in 1824 out of it to Maryland. His place of residence was unknown to his relatives in Pennsylvania. He was supposed to be dead, and about the year 1847, letters of administration on his estate were issued; though in point of fact he did not die till 1861.

The mortgage already mentioned as given in 1817 by Michael Brobst to Wood, having been assigned in the same year by Wood to a certain Dunn, and by him to one Boyer, Boyer on the 3d of November, 1825, proceeded by the mode usual in Pennsylvania, where mortgages are recorded, and considered, in some respects, as records, to foreclose it; that is to say, he issued upon it a writ of scire facias, under an act of 1705.

By this old act the mortgagee is authorized a year and a day after the mortgage is payable, to sue forth, if it remains unpaid, a writ of scire facias from the Court of Common Pleas, of the county where the mortgaged premises lie, directed to the proper officer, requiring him, by honest and lawful men of the neighborhood,

'To make known to the mortgagor, his, her, or their heirs, executors or administrators, that he or they be and appear before the magistrates, judges, or justices of the said court or courts, to show if anything he or they have to say wherefore the said mortgaged premises ought not to be seized or taken in execution for payment of the said mortgage-money, with interest, &c. . . . And if the defendant in such scire facias appears, he or she may plead satisfaction or payment of part or all the mortgage-money, or any other lawful plea; but if such defendants in such scire facias will not appear on the day whereon the writ shall be made returnable, then, if the case be such as damages only are to be recovered, an inquest shall forthwith be charged to inquire thereof, and the definitive judgment therein as well as all other judgments to be given upon such scire facias shall be entered, that the plaintiff in the scire facias shall have execution by levari facias, directed to the proper officer, by virtue whereof the said mortgaged premises shall be taken in execution and sold,' &c.

The writ issued as already mentioned was directed against 'Michael Brobst with notice to terre tenant,' and confessedly was not served in the way the most proper. There was no personal service upon the mortgagor, who in fact was dead, nor any upon his heirs or representatives, nor any upon the true terre tenant, that is to say, upon John Brobst; the holder of the title being the only person regarded in Pennsylvania as falling within that designation. Neither was this want of actual service supplied by a return of two nihils, which in Pennsylvania are commonly regarded as the equivalent of service. The return was thus:

'Served upon Jacob Rodeberger, terre tenant, 21 miles. ''Sci. fa. sur mortgage'', debt $3000. March 29, 1826, judgment ''lev. fac.'' July Term, 1826, 46.'

Upon this irregular service, judgment was entered on motion that the mortgaged lands be sold to satisfy the debt. And upon this judgment all the mortgaged property was sold on the 22d March, 1828, to one Charles Frailey, to whom a sheriff's deed was made; Frailey purchasing at the request of Boyer, assignee of the mortgage, and with his money. He subsequently conveyed to John Smull, whose title became vested in Brock and others, defendants in the case.

The body of lands patented to Grant were uninhabited until about 1824, when one Philip Rodeberger erected a small log tavern in what was still a wilderness, upon a tract adjoining the tract whose fourth part was here sued for, and cleared an acre or two of ground.

In 1834 a partition of some sort, valid or invalid, was made of the four undivided fourths of the whole twenty-five tracts, and the parties who had been originally co-owners with the Brobsts took what they considered their own purparts in severalty.

No further improvements than Rodeberger's were made on any of the purparts until 1847, when the owners of some of the purparts (not derived through the Brobsts) laid out towns, began building railroads, opening coal mines, and making extensive and costly improvements, which had been continued to the present time, when not less than ten thousand people live in the various towns laid out on the land-with their churches, halls, manufactories, stores, school-houses, dwellings, cemeteries, &c., &c.

About the year 1848, possession was taken of the purpart allotted to the Brobst alienees, by the present defendants, and those from whom they derived title, who had paid taxes from that time to the present; and on these purparts, also, similar improvements had been made and hundreds of houses and other buildings erected, and inhabited by a large population, and more than half a million of dollars expended in mining improvements.

In this state of things the heirs and devisees of John Brobst brought the present ejectment, A.D. 1865, against Brock and others to recover, as already stated, an undivided fourth of one of the tracts; one warranted in the name of Deborah Grant.

In addition to the title made, as already stated, under the mortgage, the defendants asserted that they were possessed of a title under the partition made in 1834; also by virtue of a sheriff's sale of the property under the judgment of Kutz and Levan, already mentioned as entered against the Brobsts, also under a tax sale, as the property of John Brobst, of the particular lot sued for.

Every one of the titles set up by defendants, including all the last-mentioned titles, were disputed by the plaintiff, as irregular, null, and void.

The court below (GRIER, J.) charged that the title set up under the partition was good enough, as also that set up under the judgments of Kutz and Levan. In regard to the title set up under the mortgage, he said that it was not necessary to decide whether those proceedings were regular and sufficient to extinguish the equity of redemption and vest a title in the purchaser; but that admitting that they might have been set aside or could be, it was first necessary to show that the mortgage debt was paid or offered to be paid, which was not shown; that as to redemption now, more than thirty years had elapsed, during which time John Brobst, the owner of the equitable title, had taken no step to assert or establish his right to redeem. That in such case the presumption of law was that he had released his equitable right, and equity would give him no remedy after his sleep of thirty years. 'He must now,' said the court, 'as plaintiff in this case, show a legal title. He has shown no valid title, either legal or equitable.'

Judgment having gone for the defendant, the plaintiff brought the case here.

It was fully and ably argued on all the points decided below; Messrs. G. W. Woodward, Brent, and Crittenden, for the plaintiff, contending that the partition of 1834, the sale under the judgment of Kutz and Levan and the purchase at the tax sale were severally void; Messrs. George W. Biddle and J. P. Brock, on the other side, supporting their case under those titles. The ground, however, upon which this court rests the case, avoiding, as it does, any decision on those points, report of this argument would be useless. On the other point, the title derived under the mortgage, the ground taken was thus:

For the plaintiffs:

I. The defendant sets up title through a purchase under a statutory foreclosure of a mortgage. The proceeding under the Pennsylvania act is one in rem and strictissimi juris. For every reason, therefore, the party settting up the foreclosure must show a compliance with the statute. Now, here the writ was issued against the mortgagor. But he, confessedly, was dead at the time, and of course was not served. His 'heirs, executors, and administrators,' the parties mentioned in the act, are nowhere referred to in writ, service, judgment, or other part of the record. These are not irregularities but fatal defects.

Is the matter helped by the service upon Rodeberger, terre tenant? The act does not speak of terre tenants, not does it authorize any such service; though by the Pennsylvania practice, besides service upon the mortgagor, notice is sometimes given to the terre tenant. But service upon Rodeberger amounted to nothing; because—

1. He was not tenant of anything, but of one tract, and that tract was not the one sued for, but a tract at best adjoining it. It is impossible to consider the possession of a person thus putting himself down on one tract, surveyed specifically, and patented by a patent defining its dimensions, as working a possession of twenty-four other tracts. He occupied but a spot even on the tract where he was. It is difficult to regard such possession as extending even to its boundaries. The case of Ellicott v. Pearl, in this court, sustains our views.

2. He was not terre tenant of even the spot where he was. A terre tenant is the holder of the title to the ground; and the reason why notice is given (when it is given) to him, is in order that if he has any title, other than that derived through the mortgagor, he may come in and set it up in defence to the scire facias, when the mortgagee is about to take possession as owner under his mortgage.

Everything was void, therefore, in form, without the least alleviation in substance.

II. After such a lapse of time as exists here, the debt of Brobst must be presumed to be paid. And, if all were regular in form, instead of being fatally defective, the defendants stand in the position of parties claiming under a mortgage actually satisfied.

Contra, for the defendants:

The judgment on the mortgage was but erroneous, not void. The proceeding was not upon an original cause of action, but upon that which was the equivalent of a record of the court, namely, a mortgage acknowledged and recorded and already a lien on the defendant's property. The judgment was not that the plaintiff should recover a sum of money, &c., from the defendant, as in ordinary cases, but in the language of the act of 1705, that the defendant, the mortgagor, &c., should show, if he could, wherefore the said mortgaged premises ought not be seized and taken in execution for the said mortgage debt. The writ of scire facias was therefore substantially mesne process, and required no personal service; for, by the well-known practice, the sheriff was only bound to make reasonable efforts to find out the mortgagor (he not being entitled of right to personal notice), and these reasonable efforts being made, he was considered to have had notice of the intended taking in execution of the mortgaged premises. It is only under this theory that two returns of nihil habet are regarded as the equivalent of the return of service. In such a proceeding, therefore, the personal knowledge of the defendant of the writ was not necessary, and its absence did not vitiate the proceeding. It has been decided in Allison v. Rankin that one return of nihil was enough to prevent the judgment being void or impeachable collaterally; but there is no difference in reality between a return, that the defendant cannot be found, and an omission to state this fact in the return by the sheriff. In Warder v. Tainter, the court say:

'But is it necessary that the court should have jurisdiction of the person in a proceeding by scire facias upon a mortgage? If it be, then, I apprehend that many judgments and sales of mortgaged land, made under them, that have hitherto been considered valid, are void.'

We have in this case, as in Allison v. Rankin, a judgment in a court of record having jurisdiction of the subject-matter, in full existence when the levari issued. We have also the additional fact apparent, that before this judgment was entered, the sheriff had gone upon the land to look for the mortgagor, for the purpose of serving the writ upon him. This is plain, from the return of service upon the only person then in possession of this undivided portion of twenty-five tracts. No partition had then been made, and, of course, Michael or John Brobst's interest was, as to his undivided fourth, commensurate with the extent of all the tracts. The judgment was, therefore, valid to sustain a sale made under it. But suppose, for the sake of argument, that the judgment in question did not authorize the issuing of a writ of levari upon it, what then is the case? We have a mortgagee solemnly asserting, by the process of the law, that the mortgage debt was unpaid, and that he was entitled to take the mortgaged lands in execution. We have a writ of execution issued upon a judgment containing this assertion; also a sheriff's sale, and a deed under it, carrying into consummation this assertion, so far as the mortgagee is concerned. In the face of this assertion, published to the whole world in the form of a judicial proceeding, we find no counter assertion by the mortgagor for nearly forty years. No attempt is made by him, or his heirs, or by his alienee, in all this period, either to review the proceeding or to impeach it in any way, or to enter upon the mortgaged land, or to pay the taxes upon it, or to exercise any act of dominion or ownership over it. The sheriff's vendee was the mortgagee claiming to be in possession under a foreclosure of a mortgage. He stood ready, in all this time, to contest the right of the mortgagor, or those claiming under him to redeem. At the end of twenty years, the right of a mortgagor, to redeem, or against a mortgagee claiming to be in possession, is barred. Their right, therefore, to redeem, now is gone.

In Slicer v. Bank of Pittsburg, on a question of the right of mortgagors to redeem land, which, by improvements and the general increase of the value of real estate, had become of great value, the court dwell with emphasis upon this state of things. They say:

'Thirty years have elapsed since it was sold, under the appearance, at least, of judicial authority.'

And cases are cited to show that twenty years' undisturbed possession, without any admission of holding under the mortgage, or treating it as a mortgage, during that period, is a bar to a bill to redeem.

Reply: The case and argument of the other side assume that John Brobst, finding himself insolvent, left the State years ago, and after these lands had been applied to the payment of his debts and taxes, bought by honest purchasers, and coal veins opened, towns and railroads built, and expensive improvements erected, that he is aroused from his sleep of years, and comes to reclaim his abandoned property. But that is not the true case. The true case is that of an unfortunate man who, believing that his fourth part of inaccessible, untaxed, mountain land, was worthless, left his native State to seek a home among strangers, and was overtaken by death; then a rush of speculators to these immense fields; hunters of void executions and worthless papers, and the seizure of the lands of the absentee upon less than twenty years' possession, to bar the true owner. If the defendants are even now ejected, they will retire enriched by nearly twenty years of lucrative trespass.

Mr. Justice STRONG delivered the opinion of the court.

title: Brobst v. Brock


text: Talk:Brobst v. Brock

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title: Talk:Brobst v. Brock


text:
Brobst v. Brock/Opinion of the Court

Much of the very elaborate argument addressed to us on behalf of the plaintiff in error was directed to the consideration of questions not necessary to the decision of this case. Whether the judgment in the scire facias upon the mortgage was absolutely void, or only irregular, we are not called upon now to determine, for on the trial of the case in the court below no effect was allowed to it. The learned judge who presided at the trial did not rule that the judgment was valid, or that the sale made under it divested the equity of redemption of the mortgagor, or of John Brobst, to whom the equity had been conveyed. It is true the defendant set up that he had acquired title under that sale, and, had that been his only defence, it would be necessary to consider whether it was sufficient to extinguish the equity of redemption. But there were several other defences, two of which the court below ruled sufficient to protect the defendant in his possession. If the ruling was correct, or if either of these defences was perfect, it matters not what may have been the instruction given to the jury respecting other parts of the case. It would be idle to reverse the judgment and send the case back for a new trial if it be certain that the plaintiff cannot recover in the action. In Greenleaf's Lessee v. Birth, it was stated to be 'a general rule that where there are various bills of exceptions filed according to the local practice, if, in the progress of the cause, the matters of any of those exceptions become wholly immaterial to the merits as they are finally made out at the trial, they are no longer assignable as error, however they may have been ruled in the court below. There must be some injury to the party to make the matter generally assignable as error.' So in Campbell's Executors v. Pratt et al., the court refused to reverse a decree of the Circuit Court, although an error had been committed, as no benefit could result to the appellant from the reversal.

Without noticing, therefore, for the present at least, the particular exceptions taken in the court below, we proceed to inquire whether the record exhibits any insuperable obstacle to the plaintiff's recovery in this action. Both parties claim under Michael Brobst, who, on the 27th day of September, 1816, became the owner of one undivided fourth part of twenty-five adjoining tracts of land, of which the tract now in controversy was a part. The whole body was then, and during many years thereafter, wild, uncultivated, and uninhabited. While thus, the owner, Michael Brobst, on the 6th day of March, 1817, mortgaged his interest in the entire body of lands to Samuel Wood to secure the payment of fifteen hundred dollars, with interest, on the 1st day of April, 1821. This mortgage, by subsequent assignments made in the same year, became the property of Boyer. On the 15th of May, 1817, after the execution of the mortgage, Michael Brobst conveyed his remaining interest in the lands to John Brobst in fee, who does not appear ever to have made any entry upon them, or to have claimed possession prior to his death, which occurred in 1861. It is as an heir and devisee of John Brobst that the lessor of the plaintiff claims. The defendants claim under Wood, the mortgagee, through Boyer, the assignee of the mortgage. They also set up several other titles, which it is not necessary now to notice. It thus appears that what John Brobst acquired by the deed of Michael Brobst to him was only an equity of redemption. As between his grantor and Wood, or Wood's assignees, the legal title was then in the latter, and so it continued notwithstanding the conveyance of the equity of redemption to John Brobst.

It is true that a mortgage is in substance but a security for a debt, or an obligation, to which it is collateral. As between the mortgagor and all others than the mortgagee, it is a lien, a security, and not an estate. But as between the parties to the instrument, or their privies, it is a grant which operates to transmit the legal title to the mortgagee, and leaves the mortgagor only a right to redeem. Formerly, if the condition was not strictly performed, the estate of the mortgagee, at first conditional, became absolute, and the mortgagor's right to redeem was lost. The estate or interest, though defeasible at its inception, became unconditional on the failure of the mortgagor to pay the money secured, or fulfil the condition at the time appointed for performance.

Courts of equity have in modern times relieved against such forfeitures, and, in favor of a mortgagor, have extended the time for redemption. But such courts, as fully as courts of law, have always regarded the legal title to be in the mortgagee until redemption, and bills to redeem are entertained upon the principle that the mortgagee holds for the mortgagor when the debt secured by the mortgage has been paid or tendered. And such is the law of Pennsylvania. There, as elsewhere, the mortgagee, after breach of the condition, may enter or maintain ejectment for the land. And having entered he cannot be dispossessed by the mortgagor so long as the mortgage continues in force. Applying these principles to this case it is plain that John Brobst, having acquired only an equity by the deed from Michael Brobst, neither he nor his heirs can recover in ejectment against those in possession under the mortgagee while the mortgage remains in existence, or until there has been a redemption.

It is true that in the State courts of Pennsylvania ejectment may be maintained upon an equitable title, but such has never been the rule in the Federal courts. It becomes, therefore, a material inquiry whether the legal title which was in Wood has ever been acquired by John Brobst or his heirs, and also whether the defendants are in possession under Wood, and in virtue of the mortgage. It has already been noticed that Boyer became the assignee of the mortgage in 1817. It was assigned by Wood to Dunn, and by Dunn to Boyer. The assignments were undoubtedly sufficient to transmit the rights and estate of the mortgagee. When the debt secured by the mortgage fell due in 1821, no effort was made to redeem, and none has been made to the present day. There is no evidence that any one was in actual possession of the lands before 1821, or at any time before the condition of the mortgage was broken. But after that time Boyer had possession by his tenant, Roderberger, who occupied a house upon the body of lands mortgaged, certainly as early as 1825. In regard to this there is no dispute and no contradictory evidence. It is true Roderberger was resident upon one of the twenty-five tracts which adjoins the tract now in dispute. But, though for the purpose of acquiring title from the commonwealth several patents were taken, they described collectively but one tract. Several patents were required under the law of the State when there were, as in this case, several warrants. The warrants were each issued for four hundred acres, and an allowance of six per cent., and the law required the patents to follow the surveys made on each warrant. The whole twenty-five tracts belonged to one person. They were all patented to George Grant on the 9th and 10th days of May, 1816, and they adjoined each other, so as to constitute one tract or body. Grant sold them together, as a whole, to Smith, who in turn sold an undivided fourth part of the whole body to Michael Brobst by one deed. So Michael Brobst mortgaged his entire estate in the whole to Wood, and conveyed his equity of redemption by one deed to John Brobst. From the beginning the entire body of land was treated as one subject of grant or mortgage, though held under several conveyances. After Grant became the owner nothing in the title ever separated the tracts before Boyer took possession. Having been paid for originally by one person, and one warrant calling for another as an adjoiner, it is not probable the interior lines of the block were ever run. We have not the surveys before us, but when surveys in Pennsylvania are laid in a block (that is so as together to constitute one tract), under warrants issued at the same time and calling for each other, it is not required, nor is it usual, that the surveyors run more than the exterior lines.

It is then to be presumed there was nothing upon the ground to distinguish one part of the entire body from any other part, and the mortgage treated it all as one hypothecation. The entry of Boyer, therefore, by his tenant, Rodeberger, upon any part of this large tract must be held to have been an entry upon the whole, a taking possession of the whole. There is nothing in Ellicott v. Pearl, in conflict with this. On the contrary it was there held, as had been frequently held before, that one, entering under color of title by deed, is deemed to have taken possession coextensive with the bounds of the deed, that is, of all the land conveyed by the deed, if it is not in any adverse possession. Here Boyer entered under a deed. Having a right to enter only in virtue of the mortgage of which he was assignee, it is a legal presumption that his entry was in right of it, under color of his title, and that he intended to assert his claim to the entire subject of the grant. It follows that the entry transferred the possession of the whole body of the land from John Brobst to Boyer, and that no matter where his pedis possessio was taken, he acquired possession to the extent of the mortgage deed. There is no distinct evidence how long he continued an actual occupation by his tenants. It is enough that Brobst never afterwards sought to regain possession, and the presumption of law therefore is that the possession remained in Boyer so long as his rights under the mortgage continued. On the 3d of November, 1825, he caused a scire facias to be issued under the statute law of the State against the mortgagor, with notice to terre tenants, requiring them to show cause why the lands should not be sold, and the proceeds of sale applied to the payment of the debt. This writ was not served upon the mortgagor, or upon John Brobst, the owner of the equity of redemption, The sheriff's return was, 'Served upon Jacob Rodeberger; terre tenant.' Nevertheless a judgment was entered on motion. That judgment was, that the lands mortgaged be sold to satisfy the debt. Had the judgment been authorized, even though erroneously entered, a sale under it would have passed to the purchaser both the interest of the mortgagee in the lands and the equity of redemption then in John Brobst.

But it is contended the judgment was void in law because no service of the scire facias was made upon the mortgagor, or the actual terre tenant, John Brobst (no one but the holder of the title being recognized as a terre tenant), and because there was no return of Nihil in default of such service. We shall not discuss that. Assuming that the objection is well taken, and so it was assumed in the court below, it is still true that the record exhibited a formal judgment. Upon this a writ of levari facias was issued, and all the lands described in the mortgage were sold under it to Charles Frailey, on the 22d of March, 1828, to whom a sheriff's deed was duly made. Frailey purchased at Boyer's instance, with Boyer's money, and, of course, for Boyer. Subsequently, at Boyer's request, he conveyed the property to John Smull, whose title the defendant, Brock, has. In regard to all this there is no controversy. The evidence submitted by the plaintiff shows how Frailey purchased and conveyed. Now, the worst that can be said of the sheriff's sale under the judgment so obtained is, that it did not pass the title to the equity of redemption; that it did not operate as a foreclosure of the mortgage. But did it not, in connection with Frailey's deed to Smull, made at Boyer's instance, and the subsequent conveyances by which Brock became invested with the title, operate to transmit to Brock the rights of the mortgagee? We think it did. It would be 'passing strange' if Boyer, after having requested Frailey to buy at the sheriff's sale, and after having furnished him with the money to purchase, and directed him to convey to Smull, could have asserted his mortgage against Smull or Smull's grantee. Beyond question the conveyance by Frailey under the circumstances was a conveyance in effect by Boyer, and it passed all the right to the land which Boyer had. It is not necessary to this conclusion that we should hold the sale under the judgment cut off the equity of redemption. We express no opinion upon that subject. It is enough that an irregular or a void judicial sale, made at the instance of a mortgagee, passes to the purchaser all the rights the mortgagee, as such, had. For this authority is hardly needed. We may, however, refer to Gilbert v. Cooley, where it was held that though a statutory foreclosure of a mortgage be irregular, and no bar to the equity of redemption, yet the purchaser at the sale succeeds to all the interest of the mortgagee. In that case there was no evidence that the purchaser bought at the instance of the holder of the mortgage. A fortiori, must one who has bought from the mortgagee, or from a purchaser at such a sale for the mortgagee, as in this instance, obtain all the rights which the mortgagee held. To the same effect as Gilbert v. Cooley is the case of Jackson v. Bowen and Neff. If, therefore, it could be held that Boyer's possession, through his tenant, Roderberger, did not, of course, extend over the Deborah Grant tract (which is the tract in contest in this suit), it would still be established that the defendants are assignees of the mortgage in possession. The principal defendant, Brock, consequently, is clothed with the rights of the mortgagee. He is protected by the legal title, even though it be conceded that the equity of redemption is still in existence. From 1821 to 1861, the date of John Brobst's death, and, indeed, until 1865, when this suit was brought, no claim for redemption was ever asserted. As a general rule, a mortgagor, after his mortgagee has been in possession twenty years, cannot be heard in advancing a claim to redeem. As was said in the court below, it is presumed he has released his equity. A chancellor will not entertain stale claims. It is true that in most cases where this doctrine has been avowed the mortgagee had been in continued actual occupancy, having not merely a right, but a pedis possessionem. But the cases are not rested upon that ground, nor is it easy to see how that can make any difference in the rule when the mortgagor is out of possession, and knows, or is bound to know, that a right is asserted against him. The refusal of a court of equity to interfere is because of the laches of the holder of the equitable right, and a sleep of forty years such as there was in this case, may well raise every presumption against a claim merely equitable. All such rights are imperfect, and hence they must be asserted with vigilance.

It was said in the argument, on behalf of the plaintiff in error, that the lapse of more than twenty years raised a presumption that the mortgage had been paid, and that the mortgagee's rights had been extinguished before this suit was brought. No such point appears to have been presented in the court below, and hence it ought not to be mooted here. But how any such presumption can arise against a mortgagee, or his alienee, when he has been in possession under the mortgage, we have not been shown. Even if it could, it was completely rebutted in this case by the evidence submitted by the plaintiff in error. It was proved, without contradiction, that Michael Brobst, the mortgagor, became insolvent, and died in 1820, before the mortgage debt became due, never having been married, and leaving no personal representatives, and none but collateral heirs. John Brobst, his alienee, also became insolvent, removed to the western part of the State, and thence to Maryland in 1827, where he resided until his death in 1861, never having returned to Pennsylvania, so far as it appears, and having been supposed to be dead. These facts, shown by the plaintiff, were quite enough to repel any presumption of payment arising from the lapse of time. Had they been submitted to the jury, it would have been their duty to find that the legal presumption, if any could arise under the circumstances, was rebutted. To this the authorities are numerous.

The defendant, Brock, then, if all his other titles are shut out of view, is, as has been said before, in the position of a mortgagee in possession, and the lessor of the plaintiff has at most only an equity of redemption-an equity more than commonly stale. From 1825, when Rodeberger was certainly in possession under Boyer, until 1865, when this suit was brought, no attempt was made to assert the equity or to redeem the land. Meanwhile extensive improvements have been made upon the property, and it has been converted from a wilderness to a populous settlement. It is hardly probable that at this late day a bill to redeem would be entertained by any chancellor. But this we need not now decide. It is sufficient that there has been no redemption. It has been held that ejectment will not lie at the suit of a mortgagor against his mortgagee in possession, after breach of the condition, even if the money secured by the mortgage be paid or tendered. This was said by the Supreme Court of Massachusetts in Hill v. Payson et al., and solemnly decided by the same court in Parsons v. Wells et al., where may be found a thorough discussion of the subject. The doctrine of that case is, that the only remedy for a mortgagor or his assignee, after payment of the debt, if the mortgagee, having entered for condition broken, refuses to relinquish possession of the mortgaged premises, is by bill in equity. This was shown to be in accordance with the rules of the common law, as well as implied in the statutes of the State, and this seems to rest upon correct principles. If it were not so, a mortgagor might remain quiet until his mortgagee in possession (the property being unimproved, as in this case) had made improvements necessary for obtaining any income therefrom. He might then tender the debt and interest, and recover the possession without making any compensation for the improvements. The mortgagee in such a case would have no remedy for his disbursements. But if the mortgagor must file a bill to redeem, asking for equity, he may be compelled to do equity. Hence, there is justice and fitness in holding that the legal title remains in the mortgagee until redemption, though the debt has been paid. It is observable that the statute of 7 Geo. II, ch. 20, enacted that a mortgagee shall not maintain ejectment, after payment or tender by the mortgagor of principal, interest, and costs. There could have been no necessity for such an enactment if the legal title had not remained in the mortgagee. The point has never been decided by this court, but in Gray v. Jenks, Judge Story intimated at least that such was his opinion, though the case did not call for such a decision. It is true a different rule is said to prevail in New York from that held in Massachusetts, but it is not the rule of the common law, nor can it be so promotive of justice.

This is all that need be said of the case. Were it conceded that the Circuit Court was in error in instructing the jury that the sale under the Kutz and Levan judgment passed whatever title John Brobst had (which we do not assert), or that the rulings respecting the partition and the tax title were erroneous, it would not avail the plaintiff in error, because, for the reasons mentioned, there can be no recovery in this action.

JUDGMENT AFFIRMED.

title: Brobst v. Brock/Opinion of the Court


text: Talk:Brobst v. Brock/Opinion of the Court


text:
Bethell v. Demaret

ON motion to dismiss a writ of error to the Supreme Court of Louisiana. The case was this:

Bethel brought suit against Demaret and others in a district court of the State, to enforce a mortgage given to secure the payment of two notes of $7500 each, given by them for the loan of Confederate currency, on the 2d April, 1862, payable in two and three years after date, with interest. The plaintiff recovered judgment, and the mortgaged premises were directed to be sold to pay it. Whereupon an appeal was taken to the Supreme Court of the State, where the judgment was reversed and the suit dismissed. The decision was placed on the ground that the Confederate money was illegal, and constituted no valid consideration for the two notes and mortgage at the time they were executed, according to the code of the State. The court say, in its opinion, 'The plaintiff is endeavoring to enforce a contract, the consideration of which was Confederate currency. The nullity of contracts founded upon that unlawful currency has been frequently determined.' The plaintiff then brought the case here, assuming it to come within that clause of the 25th section of the Judiciary Act, which gives a right of review to this court of the judgment in the highest State court, 'where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, &c.,. . . and the decision is in favor of such validity.'

Mr. J. A. Campbell now moved to dismiss the writ for want of jurisdiction.

Mr. Miles Taylor, in support of the writ:

When the mortgage in this case was given, 'Confederate notes' were the only money of the South. They were habitually in use there for procuring the necessaries of life, and for paying for services of every kind. And by all principles of equity a mortgage to secure the payment of a loan of them was a 'contract.' In this case we sue on them, and the defence is set up that the contract was unlawful. We plead the obligation of the contract, and the provision of the Constitution which forbids a State to violate its obligation. The Supreme Court of Louisiana decides against us. It decided, in effect, that the contracts contained in the obligations sued on, were null and void, because they were given for Confederate money; and, in consequence thereof, the court exercised its power, under the authority of the State of Louisiana, to prevent the plaintiff from enforcing the payment of these obligations, so as not only to impair the obligation of the contracts in question, but to destroy them altogether.

Mr. Campbell, contra, in support of his motion:

The Supreme Court of the State decided that a loan of Confederate money could not be a lawful cause of a contract. The judges did not consider the court in which they were sitting as having been at any time independent of the laws and statutes of the United States. Those laws and the acts of the departments of the government have never regarded the Confederate States as anything more than a name, or the notes otherwise than as without authority, and for a purpose illegal, and hostile to the government of the United States; issued to sustain and to promote what was declared to be an existing insurrection, and carried the evidence of that fact on their face.

The question now submitted is, whether this judgment presents any matter for the review of the Supreme Court of the United States? Does the Constitution of the United States, or any treaty or law, authorize or protect the circulation of these Confederate notes, or prescribe that they shall be a basis for a contract of loan? The answer must be in the negative.

Does the adjudication that they do not form a legal cause for a contract of loan by the Supreme Court of the State violate any part of the Constitution, laws or treaties of the United States? The answer must be the same.

The decision of the State court is, that the circulation of those notes by any party for any cause, affected the public order and disturbed the public peace of the United States. Unquestionably this is true, and beyond this the court did not go.

Mr. Justice NELSON delivered the opinion of the court.

title: Bethell v. Demaret


text: Talk:Bethell v. Demaret

title: Talk:Bethell v. Demaret


text:
Bethell v. Demaret/Opinion of the Court

There was no Federal question presented to the court below by the plaintiff in error, so far as appears from the record. There is no statute of a State in question here.

But it is insisted that there was an authority under the State of Louisiana exercised in the case drawn in question, and which was repugnant to the Constitution, and the decision in favor of its validity, and that is, the Supreme Court of the State were acting under the authority of the State at the time its decision was rendered.

There are two answers to this ground: 1st. That the authority conferred on a court to hear and determine cases in a State, is not the kind of authority referred to in the 25th section, otherwise every judgment of the Supreme Court of a State would be re-examinable under the section; and 2d. The decision of the court was not repugnant to the Constitution. It simply held that the promissory notes, together with the mortgage in question, were nullities, on the ground that the 'Confederate currency,' which constituted the consideration, was illegal according to the law of the State at the time the contract was entered into.

As no Federal question appears in the record the motion to dismiss must be

GRANTED.

title: Bethell v. Demaret/Opinion of the Court


text: Talk:Bethell v. Demaret/Opinion of the Court


text:
Ex parte Graham

ON petition for a writ of prohibition to the District Court of the United States for the District of Louisiana.

Mr. Durant, for the petitioner; Mr. Cushing, contra.

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

title: Ex parte Graham


text: Talk:Ex parte Graham

title: Talk:Ex parte Graham


text:
Ex parte Graham/Opinion of the Court

A rule was granted by this court that the district judge show cause why a writ of prohibition should not issue agreeably to the prayer of the petitioners.

The petition upon which the rule was founded discloses, so far as it is necessary to state them, the following facts:

The United States instituted in the District Court of the United States for the Eastern District of Louisiana, under the act of Congress approved July 17th, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,' proceedings in confiscation against sixteen lots of ground, the property of Duncan Kenner. The lots were condemned as forfeited to the United States and ordered to be sold by the marshal. This was accordingly done. Graham and Day became the purchasers of certain portions of the property. They complied with the conditions of the sale and received deeds from the marshal. The court ordered the proceeds of the sale, less the costs, to be paid over to the United States. Subsequently, on the 9th of February, 1869, Kenner, as is alleged for the purpose of clouding the title of the purchasers, and of annoying and harassing them, filed in said court what purports to be a libel of review, wherein he prayed that the decree in confiscation condemning the property and ordering it to be sold, should be reviewed and reversed for errors of law apparent on the face of the record.

On the 29th of November, 1869, for the same purposes as is alleged, he filed, by leave of the court, an amendment to his original libel of review, whereby and by process duly served upon them, Graham and Day were made parties to the proceeding.

In addition to the prayer of the original libel the amendment prays that they should render an account of the rents and profits of the property while in their possession, and that they should be required respectively to pay to Kenner such sums as should be found due to him.

The district judge, it is alleged, holds that the proceeding in confiscation was a proceeding in admiralty, and that it was therefore competent for him to entertain the libel of review and to exercise the jurisdiction which it invoked.

The jurisdiction is denied by the petitioners and a remedy is prayed for by a writ of prohibition.

The district judge has filed an answer to the rule, but the view which we take of the case renders its consideration unnecessary.

Our jurisdiction is specific and limited. It is defined by the Constitution and laws of the United States. We can exercise none but what is conferred by one or the other.

The thirteenth section of the Judiciary Act of 1789 authorizes this court 'to issue writs of prohibition to the District Courts when proceeding as courts of admiralty.'

The question whether the District Court, in entertaining the libel of review, is proceeding as a court of admiralty, meets us, therefore, at the threshold of the case before us. It is only in such cases that it is competent for this court to issue the writ. The seventh section of the act of 1862, under which the decree sought to be reviewed was made, provides that proceedings against the property seized shall be in rem, and 'shall conform as nearly as may be to proceedings in admiralty or in revenue cases.' It is too clear to admit of doubt that the original case was not one in admiralty, and it is equally clear that the proceeding sought to be prohibited is not within that category.

The supplemental case is an elongation of the original case, and necessarily of the same nature and jurisdictional character.

These conclusions are fatal to the case of the petitioners. If the District Court shall err in the proceedings upon the libel of review, the remedy of the petitioners will be by a writ of error from the Circuit to the District Court, and, if need be, finally by a like writ from this court to the Circuit Court.

MOTION DENIED.

title: Ex parte Graham/Opinion of the Court


text: Talk:Ex parte Graham/Opinion of the Court


text:
Baltimore v. Baltimore Railroad

ERROR to the Circuit Court for the District of Maryland; the case being this:

In 1854, the Baltimore and Ohio Railroad Company being then unfinished, and needing money to complete its road, the city of Baltimore, which was a very large stockholder in the road, and greatly interested to have it completed, agreed, in pursuance of an act of the legislature of Maryland, which gave it this power, to lend the company $4,500,000; and, in order to raise the money, to issue the bonds of the city for $5,000,000, payable in 1890, with interest payable quarterly, on the first days of certain months named. An ordinance was accordingly passed by the city authorizing the loan. It directed that the commissioners of finance of the city should issue certificates of city debt, or bonds, which they themselves were to sell, not however below par; and pay the proceeds of $4,500,000 to the register of the city. With the money thus put 'from time to time' into his hands, the register was to pay the railroad company the amount that might be required by it. The remaining $500,000, and its quarterly interest, as accumulated, were to be reserved as a sinking fund to redeem the principal of the whole loan at maturity. The city at the time owed several other debts incurred in aid of internal improvement; and the ordinance proceeded:

'If, at the maturity of said bonds, the sinking fund shall have accumulated to an amount exceeding the principal sum of the loan authorized of $5,000,000, the said excess shall be paid into the city treasury, for the use of the city, and be applied to the extinguishing the internal improvement debt.'

'The premium, if any, that may be received on account of the sale of the said certificates or bonds, shall be converted into a sinking fund and invested in the public debt of the city of Baltimore, and so from time to time, with the interest quarterly accruing, to be applied to the payment of the original internal improvement debt of the city.'

The railroad company in fulfilment of its part of the contract mortgaged its property to the city; the mortgage containing a proviso thus:

'Provided, That if the said railroad company do, and shall pay to the register of the said city, the principal sum of $5,000,000, less the amount of the sinking fund provided for therein, and its accumulations, at least one month before the day on which the bonds, directed by said ordinance to be issued, shall become redeemable, and shall also pay to the said register interest at the rate of six per cent. per annum on the whole amount of said certificates or bonds issued quarterly, and in advance at least ten days previous to the first days of the several months mentioned in said ordinance, which said payment shall commence to be made in advance of the first payments of interest which shall be required to be made by the city, on said certificates or bonds, and shall continue to be made as aforesaid until the repayment by the said company to the city, of the principal sums of money which shall or may be issued as aforesaid; and shall well and truly pay all and any expense incidental to the issue of any of the bonds as aforesaid, and shall pay the expense of recording this indenture of mortgage in the proper offices, then these presents shall be null and void; else to remain in full force and effect.'

The railroad company having received the money from the city, paid the interest on its mortgage, as agreed on, and in full, until October, 1862.

On the 1st of July in that year, Congress passed an excise law, levying an income tax of 3 per cent. on all sums of money due for interest by a railroad company on its bonds or other 'evidences of indebtedness,' and 'authorized and required' such companies to deduct and withhold from all payments made to any party after the said 1st July, 1862, the said duty; thus, in effect, constituting the company the collector of the tax for the United States. A statute of June 30th, 1864, enacted that payment over by the railroad companies should discharge them from that amount of interest, 'except where said companies may have contracted otherwise.'

Neither statute, however, taxed the bonds of municipal corporations. The Commissioner of Internal Revenue now made a demand on the railroad company, for 3 per cent. on its mortgage to the city, insisting that the mortgage was an 'evidence of indebtedness' within the meaning of the act of 1862. The company gave notice to the city of this demand, and that if it was enforced by the government, the company would have to deduct the 3 per cent. from the interest which it had hitherto paid the city. The city objected to this being done in any event, and the railroad company and city made a joint attempt to persuade the Commissioner of Internal Revenue that the case did not come within the act of 1862. The commissioner did not accept this view, and to prevent a distress upon it the company paid the tax, making a protest, however, setting forth fully and specifically the grounds of objection to the demand, 'in view,' as the protest declared, 'of attempting to recover it under the provisions of the act of Congress in this connection;' provisions, which, when protest is properly made, authorized recovery from the government, if the tax have been illegally exacted. Having thus paid the tax the company deducted the amount of it from the payments of interest to the city, and in October, 1864, the city brought this suit to recover the amount thus withheld. Judgment having been given in favor of the railroad company, the city brought the case here.

Messrs. W. H. Norris and G. H. Chandler, for the city, plaintiff in error:

1. The case shows that the position of the city in relation to the railroad was that of a surety. The transaction was in fact but a loan of credit for the benefit of the railroad. The bonds of the city were of a higher market value than bonds of the railroad, though of no higher real value; and so the city issues its bonds; the company stipulating that it will always pay to the register of the city, at least ten days before it becomes due, the interest on its mortgage (being the same sum exactly which the city has to pay on its bonds), so that without raising a cent by taxation the city might pay this large sum of interest; and the railroad agreeing also that when the principal is about to fall due it will put into the city treasury a month before it is actually due all principal not redeemed by the operations of the sinking fund. This is a pure loan of credit.

Independently, therefore, of the express stipulations, to be referred to hereafter, the road company was bound by the nature of the transactions to indemnify the city, as if the form of principal and surety had been carried out. By that relation the situation of a surety can never be more onerous than that of the principal.

The possibility of taxation should have been foreseen by the principal, and it is a part of his obligation to indemnify the surety. If there is any hardship in the taxation, it is one which the borrower contracted to bear and is a part of the obligation of his contract.

2. The contract expressly provided 'that all and any expense incidental to the issue of any of the bonds' shall be chargeable to and paid by the railroad company. Congress never intended to give the power to deduct the tax by the debtor when the debtor had contracted to pay all expenses incidental to the loan. It did not propose to alter contracts, but merely to use the debtor as an agency to collect the tax from the creditor whom it intended to tax, and it made that purpose very obvious by its act of June 30th, 1864. In this case the railroad company has 'contracted otherwise.'

3. The tax was not to be deducted in this case, because Congress did not intend double taxation of the same fund. It had no right to use municipalities as agencies for collection, they being political bodies not liable to their service. Accordingly no power was given to the municipality to deduct the tax from the holders of its bonds, for Congress has not attempted to employ it as a collecting agency. It paid full interest to its bondholders without abatement, and they are taxed on that income in their returns. Is not the fund double taxed?

4. The city, in the exercise of a function of government delegated by the State, had issued its bonds and borrowed money of the purchasers, which was brought into the municipal treasury. Repayment was secured by the delegated power of taxation. For the promotion of a public purpose, 'a State object' constitutionally adequate to justify taxation, the money thus raised was lent, under a specific scheme for its reimbursement, to a private corporation as an agency to effect this public purpose. The debt, by being thus due to the territorial political agency of the State, is due to the State, so as not to be taxable by the National government, and it is to be assumed was not intended to be taxed by the Internal Revenue Act.

Mr. J. H. B. Latrobe, contra:

The mortgage was given in 1854, at which time there was no income tax nor the expectation of one by any man. It comes to us as an incident of our civil war. The 'expense incidental to the issue of any of the bonds' was such expense and such alone, as related to the preparation of them, and such books and clerk hire as might be required in connection with them.

While the doctrine that a surety shall not be prejudiced by contingencies not anticipated at the time of creating the relation, is true as a general one, it is not true to the extent of vacating a contract such as exists here, where the parties declare what shall be their respective rights and liabilities.

But the doctrine has no application to this case. The city was not a surety. Had she guaranteed bonds issued by the railroad company, had she even placed her own bonds lent to the company, in the hands of the latter, there might be ground, perhaps, for saying that the city was a surety only. But, when besides issuing her own bonds, she retained the possession of them, and sold them only when required to pay from time to time the moneys wanted by the company, the transaction is that of a principal borrowing money to lend it again; in this instance to aid in the promotion of an object in which such principal was deeply interested.

Or, had the ordinance provided that the mortgage should be released or become void so soon as the accumulations of the sinking fund amounted to the entire debt of $5,000,000, it might have been argued, that the city was a surety only, having no interest but to secure itself from loss. But the ordinance shows, that so far as the city is concerned, the transaction in the aspect is for her own benefit apart from the Baltimore and Ohio Railroad Company altogether. It directs all excess of the sinking fund, and all the premiums, if any, to go into the city treasury.

The transaction was intended as an operation by which the city, if the commissioners of finance performed their duty by making judicious investments, would be a gainer, and be furnished with the means of discharging a debt with which the Baltimore and Ohio Railroad Company was unconnected, the general internal improvement debt of the city.

By the ordinance the commissioners of finance were required to invest the interest and premium, if any, received by them, in the public debt of the city. Now, if the calculation which fixed the amount of the sinking fund and the length of the loan was based upon sales and purchases at par, the ability of the finance commissioners to invest at rates 8 and 10 per cent. below par (which it may be stated that as a matter of fact they have been able to do), would leave a large surplus in the hands of the city in 1890, to be applied to its general debt.

We agree that the tax is illegally laid, and we have paid it only to save a distress on us and under protest. If we recover it, we will pay it to the city, or the city using our protest can proceed, itself, to recover it.

Mr. Justice DAVIS delivered the opinion of the court.

title: Baltimore v. Baltimore Railroad


text: Talk:Baltimore v. Baltimore Railroad

title: Talk:Baltimore v. Baltimore Railroad


text:
Page:Ulysses, 1922.djvu/651

648 What proposal did Bloom, diambulist, father of Milly, somnambulist, make to Stephen, noctambulist?

To pass in repose the hours intervening between Thursday (proper) and Friday (normal) on an extemporised cubicle in the apartment immediately above the kitchen and immediateiyimmediately [sic] adjacent to the sleeping apartment of his host and hostess.

What various advantages would or might have resulted from a prolungation of such extemporisation?

For the guest: security of domicile and seclusion of study. For the host: rejuvenation of intelligence, vicarious satisfaction. For the hostess: disintegration of obsession, acquisition of correct Italian pronunciation.

Why might these several provisional contingencies between a guest and a hostess not necessarily preclude or be precluded by a permanent eventuality of reconciliatory union between a schoolfellow and a jew's daughter?

Because the way to daughter led through mother, the way to mother through daughter.

To what inconsequent polysyllabic question of his host did the guest return a monosyllabic negative answer?

If he had known the late Mrs Emily Sinico, accidentally killed at Sydney Parade railway station, 14 October 1903.

What inchoate corollary statement was consequently suppressed by the host?

A statement explanatory of his absence on the occasion of the interment of Mrs Mary GouldingDedalus born Goulding [sic], 26 June 1903, vigil of the anniversary of the decease of Rudolph Bloom (born Virag).

Was the proposal of asylum accepted?

Promptly, inexplicably, with amicability, gratefully it was declined.

What exchange of money took place between host and guest?

The former returned to the latter, without interest, a sum of money (£1-7-0), one pound seven shillingshillings [sic], advanced by the latter to the former.

title: Page:Ulysses, 1922.djvu/651


text:
Baltimore v. Baltimore Railroad/Opinion of the Court

It is contended, on the part of the city, that if the tax in question be a lawful exaction by the United States, the burden of it must be borne by the company, and that the obligation of the company to the city is not changed by reason of the imposition and collection of the tax. Whether this be so or not, depends on the nature of the contract between the parties, for the company was authorized to withhold the tax, unless it had contracted with the city to pay it. The position taken by the city is, that the company was bound to pay the full amount of the interest without deduction, because of the following words in the defeasance clause of the mortgage: 'And shall pay all and any expense incidental to the issue of any of the bonds.' It is, therefore, necessary to construe these words, and there is no difficulty about it, when we consider the subject-matter about which they were employed. The word expense may mean one thing in one case and quite a different thing in another. Its meaning in this case cannot be mistaken.

To carry out the arrangement between the parties required a considerable expenditure of money for printing, clerk hire, stationery, advertising, and similar matters. These expenses were incidental to the issue of the bonds, and it was right and proper that the railroad company-the party to be benefited by the transaction-should pay them. And it agreed to do so; but this agreement cannot be extended to cover the tax in question, for in no sense is it an expense incidental to the issue of the bonds. At the date of the mortgage (1854) there was no tax of the kind, nor any reasonable expectation of one. If there had been, it is easy to see that appropriate words applicable to the subject would have been used. But the words which were used did not relate to the subject of taxation at all, and it is very certain that the possibility of taxation was not in the contemplation of either of the parties to the mortgage.

It is unnecessary to discuss the general rules of law affecting the relations of principal and surety, and to show in what state of case a surety is required to save his principal from loss, because these rules are not applicable to this case. It is always competent for parties capable of entering into a business arrangement to fix the terms of it, and to declare what shall be their respective rights and liabilities under it. If the court can in any case see that this has been done, it is required to give effect to the contract which the parties chose to make for themselves, although in the absence of a special agreement on the subject, the rule to determine the rights of the parties might be different.

The parties to this suit have made a contract in relation to a matter of interest to both, and have settled what each shall do. To hold one of them responsible for contingencies not provided for, and not even anticipated when the contract was executed, would be to disregard instead of giving effect to the will of the parties.

It is contended, however, by the city, that the securities of a municipality like Baltimore are not taxable by the National government, and therefore the tax in question was an unlawful exaction. This presents an important question; but the city is not in a condition to raise it, and, under the circumstances, can have no cause of action against the company for paying the tax. It is difficult to see in what respect the company failed to discharge its duty in regard to this subject. It occupied the position of a stakeholder, owing the money either to the city or the United States, and wholly indifferent to which of the parties it should be paid. It notified the city that the United States were enforcing the collection of the tax, and did not pay it until it was obliged to do so to avoid the consequences provided for in the act in case of refusal, and not then, without a written protest stating distinctly all the grounds of objection claimed by the city to the assessment and collection of the tax. In this condition of things, if the city felt itself aggrieved by the action of the officers administering the internal revenue laws in a matter of interest to it and not the company, it should have stepped in, and taken upon itself the burden of testing the legality of the assessment and collection of this tax, by instituting proper proceedings to recover back the money. This it was authorized to do by these laws, which not only provide for the manner of collecting the revenue, but also furnish a mode of rederess to the party who has suffered injury by their administration.

If there were injury at all, the city sustained it, and, as it did not avail itself of the privilege to sue, it cannot turn round and litigate the legality of the tax with the railroad company. This tax was exacted under color of law, and the company, having notified the city of the demand of the United States and the proceedings taken to enforce it, and having protested against its collection, were justified in paying it.

And it cannot be required in this state of case, on its own behalf, to test the correctness of the ruling of the revenue officers.

JUDGMENT AFFIRMED.


text: Talk:Baltimore v. Baltimore Railroad/Opinion of the Court


text:
Pennsylvania v. Quicksilver Company

ON motion to dismiss an original writ:

The first clause of the second section of the third article of the Constitution ordains that the judicial power shall extend to certain cases named, and among them 'to controversies between a State and the citizens of another State.'

The second clause of this same section provides:

'That in all cases affecting ambassadors, &c., and those in which a State shall be a party, the Supreme Court shall have original jurisdiction,' and that 'in all the other cases before mentioned it shall have appellate jurisdiction.'

The 13th section of the Judiciary Act provides:

'That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, and except also between a State and citizens of another State, or aliens, in which latter case it shall have original, but not exclusive jurisdiction.'

In this state of the law, constitutional and statutory, the commonwealth of Pennsylvania brought an original suit against the Quicksilver Mining Company. The declaration was thus:

'The commonwealth of Pennsylvania, by her attorney-general, complains of the Quicksilver Mining Company, a body politic in the law of, and doing business in, the State of California, of a plea that the said company render unto the said commonwealth the sum of $100,000, &c.'

Mr. M. H. Carpenter, on behalf of the Quicksilver Company, defendant in the case, now moved to dismiss the writ, resting his motion on the ground that as the record did not aver or in any way show that the said company was incorporated by the laws of any other State or nation than those of Pennsylvania, or was resident elsewhere than in that State, no cause of action within the jurisdiction of this court was disclosed.

Mr. F. Carroll Brewster, in support of the jurisdiction:

We admit that the Quicksilver Company was incorporated by Pennsylvania, and we have no knowledge that it is incorporated by California. But it does business in California. Its mines are there; its office, officers, agents and concerns. Citizenship when spoken of in the Constitution in reference to the jurisdiction of the Federal courts, means, as is well settled, nothing more than residence. What then constitutes the residence of a corporation? This seems to have been ruled by McLean, J., in the seventh circuit. The declaration there characterized the plaintiff as 'doing business and resident in the State of New York.' Mr. Stanbery demurred for want of jurisdiction. The opinion of the court is thus:

McLean, J.: 'Where a corporation of another State sues in this court, all allegation of citizenship is not now necessary, as was formerly required. The State where the corporation is located, and in which its corporate functions are exercised, if alleged, is sufficient to give jurisdiction. The demurrer is overruled.'

Now, here we allege that the company is 'a body politic in the law of, and does business in California;' which brings us sufficiently within the language of the opinion cited.

But, independently of this, under the second clause of the second section of the third article of the Constitution, this court has original jurisdiction in all cases where a State is a party; jurisdiction even where the party is one of its own citizens. The language is express, and this view is expressed by Marshall, C. J., and by Thompson, J., in the Cherokee Nation v. The State of Georgia. The former says:

'The second section of the third article of the Constitution describes the extent of the judicial power. The second section closes an enumeration of the cases to which it is extended with 'controversies' between a State or the citizens thereof, and foreign States, citizens or subjects. A subsequent clause of the same section gives the Supreme Court original jurisdiction in all cases in which a State shall be a party. The party defendant may unquestionably be sued in this court.'

The latter says:

'The Supreme Court shall have original jurisdiction in all cases where a State shall be a party.'

Mr. Justice NELSON delivered the opinion of the court.

title: Pennsylvania v. Quicksilver Company


text:
Author:Sergei Yesenin

Works

 * "Upon Green Hills"
 * "Hopes Painted by the Autumn Cold"
 * "In the Clear Cold"
 * Transfiguration: III

title: Author:Sergei Yesenin


text: Talk:Pennsylvania v. Quicksilver Company


text:
Pennsylvania v. Quicksilver Company/Opinion of the Court

By the second section of the third article of the Constitution it is ordained that the judicial power shall extend 'to all controversies between a State and the citizens of another State.' The second clause of this section provides 'that in all cases affecting ambassadors, &c., and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. . . In all other cases before mentioned it shall have appellate jurisdiction.' This second clause distributes the jurisdiction conferred upon the Supreme Court in the previous one into original and appellate jurisdiction; but does not profess to confer any.

The thirteenth section of the Judiciary Act, which provides for the jurisdiction of this court, accords with this construction.

A State, therefore, may bring a suit, by virtue of its original jurisdiction, against a citizen of another State, but not against one of her own. And the question in this case is whether it is sufficiently disclosed in the declaration that this suit is brought against a citizen of California. And this turns upon another question, and that is, whether the averment there imports that the defendant is a corporation created by the laws of that State; for, unless it is, it does not partake of the character of a citizen within the meaning of the cases on this subject.

The court is of opinion that this averment is insufficient to establish that the defendant is a California corporation. It may mean that the defendant is a corporation doing business in that State by its agent; but not that it had been incorporated by the laws of the State. It would have been very easy to have made the fact clear by averment, and, being a jurisdictional fact, it should not have been left in doubt. Indeed, it was admitted in the argument that the defendant was a Pennsylvania corporation, and the jurisdiction sought to be sustained by a suit against this agency. We have already shown that this is unavailable to support the jurisdiction.

WRIT DISMISSED.


text: Talk:Pennsylvania v. Quicksilver Company/Opinion of the Court


text:
The Daniel Ball

APPEAL from the Circuit Court for the Western District of Michigan, the case being thus:

The act of July 7th, 1838, provides, in its second section, that it shall not be lawful for the owner, master, or captain of any vessel, propelled in whole or in part by steam, to transport any merchandise or passengers upon 'the bays, lakes, rivers, or other navigable waters of the United States,' after the 1st of October of that year, without having first obtained from the proper officer a license under existing laws; that for every violation of this enactment the owner or owners of the vessel shall forfeit and pay to the United States the sum of five hundred dollars; and that for this sum the vessel engaged shall be liable, and may be seized and proceeded against summarily by libel in the District Court of the United States.

The act of August 30th, 1852, which is amendatory of the act of July 7th, 1838, provides for the inspection of vessels propelled in whole or in part by steam and carrying passengers, and the delivery to the collector of the district of a certificate of such inspection, before a license, register, or enrolment, under either of the acts, can be granted, and declares that if any vessel of this kind is navigated with passengers on board, without complying with the terms of the act, the owners and the vessel shall be subject to the penalties prescribed by the second section of the act of 1838.

In March, 1868, the Daniel Ball, a vessel propelled by steam, of one hundred and twenty-three tons burden, was engaged in navigating Grand River, in the State of Michigan, between the cities of Grand Rapids and Grand Haven, and in the transportation of merchandise and passengers between those places, without having been inspected or licensed under the laws of the United States; and to recover the penalty, provided for want of such inspection and license, the United States filed a libel in the District Court for the Western District of Michigan.

The libel, as amended, described Grand River as a navigable water of the United States; and, in addition to the employment stated above, alleged that in such employment the steamer transported merchandise, shipped on board of her, destined for ports and places in States other than the State of Michigan, and was thus engaged in commerce between the States.

The answer of the owners, who appeared in the case, admitted substantially the employment of the steamer as alleged, but set up as a defence that Grand River was not a navigable water of the United States, and that the steamer was engaged solely in domestic trade and commerce, and was not engaged in trade or commerce between two or more States, or in any trade by reason of which she was subject to the navigation laws of the United States, or was required to be inspected and licensed.

It was admitted, by stipulation of the parties, that the steamer was employed in the navigation of Grand River between the cities of Grand Rapids and Grand Haven, and in the transportation of merchandise and passengers between those places; that she was not enrolled and licensed for the coasting trade; that some of the goods that she shipped at Grand Rapids and carried to Grand Haven were destined and marked for places in other States than Michigan, and that some of the goods which she shipped at Grand Haven came from other States and were destined for places within that State.

It was also admitted that the steamer was so constructed as to draw only two feet of water, and was incapable of navigating the waters of Lake Michigan; that she was a common carrier between the cities named, but did not run in connection with or in continuation of any line of steamers or vessels on the lake, or any line of railway in the State, although there were various lines of steamers and other vessels running from places in other States to Grand Haven carrying merchandise, and a line of railway was running from Detroit which touched at both of the cities named.

The District Court dismissed the libel. The Circuit Court reversed this decision, and gave a decree for the penalty demanded.

From this decree the case was brought by appeal to this court.

Mr. A. T. McReynolds, for the appellant:

1. The steamer Daniel Ball is not liable under the navigation laws, unless she was employed upon the navigable waters of the United States, in carrying on commerce among the States.

What, then, is meant by the term 'navigable waters of the United States,' and the kindred phrases employed in the navigation laws? And does Grand River fall within the class?

It is clear that the term is not employed in a territorial sense; merely or primarily to include all waters within the territorial limits of the United States, to which the term 'navigable' is applied in American law. We have extended that term to include not simply the tide-waters, as is understood by it in England, but also the great fresh-water rivers and lakes of our country; and, in a still broader sense, we apply it to every stream or body of water, susceptible of being made, in its natural condition, a highway for commerce, even though that trade be nothing more than the floating of lumber in rafts or logs.

But if merely because a stream is a highway it becomes a navigable water of the United States, in a sense that attaches to it and to the vessels trading upon it the regulating control of Congress, then every highway must be regarded as a highway of the United States, and the vehicles upon it must be subject to the same control. But this will not be asserted on the part of the government.

The navigable rivers of the United States pass through States, they form their boundary lines, they are not in any one State, nor the exclusive property of any one, but are common to all. To make waters navigable waters of the United States, some other incident must attach to them besides the territorial and the capability for public use.

This term contrasts with domestic waters of the United States, and implies, not simply that the waters are public and within the Union, but that they have attached to them some circumstance that brings them within the scope of the sovereignty of the United States as defined by the Constitution.

Grand River, we maintain, is a domestic stream, and not a navigable water of the United States. It is not brought within the sphere of the sovereignty of the United States as defined in the Constitution, unless it be by becoming a highway for the commerce which Congress can regulate. By the Constitution, Congress regulates commerce with foreign nations, among the several States, &c. No such commerce is carried on upon Grand River. Commerce means an exchange of commodities. This river is entirely within the State of Michigan, and therefore an exchange of commodities between two States cannot be made upon it. It is navigated by vessels, the commencement and termination of whose voyage is within the State. It is not adapted to navigation by lake-going vessels, which alone could carry on commerce between the port at its mouth and any other State. It cannot, therefore, be said to be a public water of the United States, because forming part of a continuous route for vessels engaged in interstate trade.

The framers of the Constitution supposed that the State would be best able to establish all necessary regulations for commerce carried on between citizens of the same State; and all proper police regulations for domestic highways. They have not authorized Congress to interfere, and Congress has never done so by attempting to subject this stream to regulations specially applicable to it. The case falls within that of Veazie v. Moor. There, as here, the stream was navigable; but there, as here, its natural condition precluded its being used for continuous voyages from one State to another.

2. If Grand River is a navigable water or river of the United States, the steamer was not engaged in carrying on commerce among the States. So far as her passenger trade was concerned, she was engaged in internal commerce; as she transported passengers solely between Grand Haven and Grand Rapids, and the landings on the river between those places, in the State of Michigan. It makes no difference that packages were put on board the steamer plying on Grand River, destined and marked for ports and places in States other than the State of Michigan. It is admitted that she did not take these packages out of the State, nor did she run in connection with any vessels that did; she simply took packages at one place in the State of Michigan, to be delivered at another place in the same State, to some party who appears by a direction on the packages to be expected to find some other conveyance for them to a distant point. We do not know from this record that such conveyance was ever found. But found or not, the owners of this vessel had nothing to do with it. Their operations were confined entirely to the State, and did not, even by contract, extend beyond its limits.

It seems clear, therefore, that this steamer was engaged exclusively in domestic trade. If it was not, there is no such thing as the domestic trade of a State, and Congress may take jurisdiction of the whole commerce of the country. Railroads entirely within a State, which transport grain or fruit destined eventually to a distant market, may be subjected to police regulations from Congress.

Mr. Bristow, Solictor-General, contra, for the United States.

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

title: The Daniel Ball


text: Talk:The Daniel Ball

title: Talk:The Daniel Ball


text:
The Daniel Ball/Opinion of the Court

Two questions are presented in this case for our determination.

First: Whether the steamer was at the time designated in the libel engaged in transporting merchandise and passengers on a navigable water of the United States within the meaning of the acts of Congress; and, Second: Whether those acts are applicable to a steamer engaged as a common carrier between places in the same State, when a portion of the merchandise transported by her is destined to places in other States, or comes from places without the State, she not running in connection with or in continuation of any line of steamers or other vessels, or any railway line leading to or from another State.

Upon the first of these questions we entertain no doubt. The doctrine of the common law as to the navigability of waters has no application in this country. Here the ebb and flow of the tide do not constitute the usual test, as in England, or any test at all of the navigability of waters. There no waters are navigable in fact, or at least to any considerable extent, which are not subject to the tide, and from this circumstance tide water and navigable water there signify substantially the same thing. But in this country the case is widely different. Some of our rivers are as navigable for many hundreds of miles above as they are below the limits of tide water, and some of them are navigable for great distances by large vessels, which are not even affected by the tide at any point during their entire length. A different test must, therefore, be applied to determine the navigability of our rivers, and that is found in their navigable capacity. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water.

If we apply this test to Grand River, the conclusion follows that it must be regarded as a navigable water of the United States. From the conceded facts in the case the stream is capable of bearing a steamer of one hundred and twenty-three tons burden, laden with merchandise and passengers, as far as Grand Rapids, a distance of forty miles from its mouth in Lake Michigan. And by its junction with the lake it forms a continued highway for commerce, both with other States and with foreign countries, and is thus brought under the direct control of Congress in the exercise of its commercial power.

That power authorizes all appropriate legislation for the protection or advancement of either interstate or foreign commerce, and for that purpose such legislation as will insure the convenient and safe navigation of all the navigable waters of the United States, whether that legislation consists in requiring the removal of obstructions to their use, in prescribing the form and size of the vessels employed upon them, or in subjecting the vessels to inspection and license, in order to insure their proper construction and equipment. 'The power to regulate commerce,' this court said in Gilman v. Philadelphia, 'comprehends the control for that purpose, and to the extent necessary, of all navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation of Congress.'

But it is contended that the steamer Daniel Ball was only engaged in the internal commerce of the State of Michigan, and was not, therefore, required to be inspected or licensed, even if it be conceded that Grand River is a navigable water of the United States; and this brings us to the consideration of the second question presented.

There is undoubtedly an internal commerce which is subject to the control of the States. The power delegated to Congress is limited to commerce 'among the several States,' with foreign nations, and with the Indian tribes. This limitation necessarily excludes from Federal control all commerce not thus designated, and of course that commerce which is carried on entirely within the limits of a State, and does not extend to or affect other States. In this case it is admitted that the steamer was engaged in shipping and transporting down Grand River, goods destined and marked for other States than Michigan, and in receiving and transporting up the river goods brought within the State from without its limits; but inasmuch as her agency in the transportation was entirely within the limits of the State, and she did not run in connection with, or in continuation of, any line of vessels or railway leading to other States, it is contended that she was engaged entirely in domestic commerce. But this conclusion does not follow. So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an article of trade from one State to another, commerce in that commodity between the States has commenced. The fact that several different and independent agencies are employed in transporting the commodity, some acting entirely in one State, and some acting through two or more States, does in no respect affect the character of the transaction. To the extent in which each agency acts in that transportation, it is subject to the regulation of Congress.

It is said that if the position here asserted be sustained, there is no such thing as the domestic trade of a State; that Congress may take the entire control of the commerce of the country, and extend its regulations to the railroads within a State on which grain or fruit is transported to a distant market.

We answer that the present case relates to transportation on the navigable waters of the United States, and we are not called upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation. And we answer further, that we are unable to draw any clear and distinct line between the authority of Congress to regulate an agency employed in commerce between the States, when that agency extends through two or more States, and when it is confined in its action entirely within the limits of a single State. If its authority does not extend to an agency in such commerce, when that agency is confined within the limits of a State, its entire authority over interstate commerce may be defeated. Several agencies combining, each taking up the commodity transported at the boundary line at one end of a State, and leaving it at the boundary line at the other end, the Federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter.

We perceive no error in the record, and the decree of the Circuit Court must be

AFFIRMED.

title: The Daniel Ball/Opinion of the Court


text: Talk:The Daniel Ball/Opinion of the Court