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Fuller v. Claflin/Opinion of the Court

This action was brought to recover the amount of two promissory notes of $1,000 each, given by the firm of Fuller & McKibben to H. B. Claflin & Co., and dated July 1, 1870.

A defence was set up that the execution of the notes was procured by an agent of the holders, who presented the statement of an account showing a balance of $3,407.73; that, believing the statement to be accurate, the defendants gave the notes in suit and two others, in all equalling the amount claimed by the statement; that the statement was, in fact, false and fraudulent; that due on the account there was less than $1,550, which has since been paid to Claflin & Co.

To this answer a demurrer was interposed and overruled.

A motion was then made, and granted, that the answer be rendered more specific by setting forth the statement therein referred to, and the items and particulars of the alleged falsity. In obedience to this order a further answer was filed.

A motion was then made to strike out the further answer as not being a compliance with the order, and for judgment. The motion was granted, a request for time until the next morning to perfect the answer was refused, and judgment entered for the amount of the notes. From this judgment the present writ of error is brought.

It is objected, preliminarily, that the order directing the answer to be made more specific is one depending upon the discretion of the court, and that it is not appealable. It is said that the refusal of the court to grant further time to perfect the answer is also a discretionary order, and not appealable. This may be true. There is undoubtedly a large class of cases involving the procedure merely in a cause, in which the court acts as in its discretion it thinks best, and where no appeal can be taken from its decision.

It is quite likely that an order to make the answer more specific falls within this category. So it may well be conceded that the refusal to give further time until the next morning, to comply with the direction, comes within the same rule. It may appear harsh to us, but the judge holding the circuit was better able, knowing all the circumstances, to determine the point than are we, at a distant time and place.

The rule we are speaking of has sometimes been held to apply to an order refusing to strike out an answer. 4 How. Pr. 432. But it does not apply to an order which strikes out an answer. That is not a mere procedure in the cause. It is the ending of the cause, leaving the action undefended and with a right to immediate judgment. Accordingly, we find in this case, that the same order entered on the 8th of December, 1873, at nine o'clock in the morning, which directed the amended answer to be struck out and denied permission to file a further answer on the next morning, also contained a final judgment for the amount of the notes described, with interest and costs, and directed that execution issue therefor. Such an order has often been held to be appealable. Mandebaum v. The People, 8 Wall. 310; Hozey v. Bachan, 16 Pet. 215; Trustees v. Forbes, 8 How. 285; Crucible Co. v. Steel Works, 9 Abb. Pr. N. S. 195; Union Bank v. Mott, 11 Abb. Pr. 42; Shelden v. Adams, 18 id. 405.

The question then recurs upon the merits of the order striking out the answer, on the ground that it was not in compliance with the rule requiring certain particulars to be stated. The first answer alleged that the statement furnished by the agent of Claflin & Co. was false, and that instead of there being a balance of $3,400 then due from the debtors, as in the statement set forth, there was due less than $1,550. The court ordered that this answer should be made more definite and precise, in two particulars: 1st, that the statement referred to should be set forth in the answer; and, 2d, that the particulars and items of alleged fraud or error should be stated with certainty and precision.

The first direction was performed by the allegation of the answer that 'the original of said statement had been lost or destroyed, but a copy of which, except the credits dated on said copy on and after July 1, 1870, is filed with the deposition of Lyman Mallory, marked exhibit B, of depositions in said cause.' A copy of a lost document is attached to the deposition of Mallory, the agent who made the statement, and who appears to have been examined upon deposition, and, as we may presume, on behalf of his employers. This is a reasonable compliance with the direction. It is an allegation that the creditors themselves are in possession of and have filed a copy of the statement, that the debtors admit the accuracy of the copy filed by their adversaries, that the original is lost or destroyed, and that it is out of their power to produce it.

The second requisition is also fairly complied with; to wit, that a specification of the alleged items of error shall be made. Thus, it was alleged in the second answer, that, instead of there being due to Claflin & Co. the sum of $3,407, there was due less than $1,550; and the difference between these two sums, and in items which should have been credited in the statement, were set forth as follows:--

1. The sum of $801, the amount of a bill of goods lost in transit, which the plaintiffs recovered from the owners, but which they fraudulently included in the account against the defendants.

2. The sum of $162.25, the amount of a bill of balmorals, which was twice charged against the defendants.

3. That the plaintiffs fraudulently omitted to give a sufficient credit, by the sum of $602.79, for money received on account of the defendants for cotton sunk in the Arkansas River, from certain underwriters at New Orleans.

4. That there was a failure to credit the sum of $24.22, paid on the ninth day of April, 1868.

These four items aggregate the sum of more than $1,590, and, so far as they went, were specifications of the items set forth in the answer. We think there was no ground for the alleged failure to comply with the order of the court in respect to specifying the items.

It is further objected that the answer is not good in law, for that it does not show how the fraud was effected. The court below, upon demurrer, held the answer to be good. This decision stands unreversed, and is the law of this case. But we are not discussing that question. The point whether the answer contained a sufficient compliance with the previous order of the court, and whether, for the absence of such compliance, the court was justified in striking it out, is all that is before us.

We are of the opinion that there was error in the proceeding below; that the order striking out the answer and the final judgment rendered should be reversed, and the case remanded to the Circuit Court for further proceedings.

It is so ordered.

title: Fuller v. Claflin/Opinion of the Court


text: Talk:Fuller v. Claflin/Opinion of the Court

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


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Ex parte Parks

MR. WILLIAM GREEN presented the petition of Richard S. Parks praying for a writ of habeas corpus.

The petition is set forth, and the facts in the case are stated, in the opinion of the court.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Ex parte Parks


text: Talk:Ex parte Parks

title: Talk:Ex parte Parks


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Ex parte Parks/Opinion of the Court

The petitioner for habeas corpus in this case was convicted of forgery in the District Court of the United States for the Western District of Virginia, and is in custody by virtue of a commitment under sentence of imprisonment in the penitentiary for said offence. Complaining that his conviction was illegal, by reason that the act for which he was convicted was not a crime against the laws of the United States, he applied to the circuit judge for a habeas corpus, and, after a hearing thereon, was remanded into custody. Not being satisfied with this decision, he now applies to this court for a habeas corpus. His petition is as follows:--

'To the Honorable Morrison R. Waite, Chief Justice, and his Associates, Justices of the Supreme Court of the United States:

'The petition of Richard S. Parks respectfully represents, that your petitioner is illegally confined in jail, at Harrisonburg, in Virginia, being in the custody of A. S. Gray, as Marshal of the United States for the Western District of Virginia, by virtue of a commitment under an illegal sentence of the District Court of the United States for the said district, the same (sentence) being void and in law a nullity, for want of jurisdiction in the said court to pass it upon and against your petitioner, which said sentence was pronounced in a case of the United States against your petitioner, a transcript of the record whereof is herewith presented. That your petitioner heretofore made application to the honorable judge of Circuit Court of the United States for the said district, that he would order the discharge of your petitioner upon a writ of habeas corpus sued out for that object; but his honor, the said judge of the Circuit Court, instead of discharging, remanded him to the custody of the said marshal, as will appear from a transcript of his order in the said matter, which transcript is likewise herewith presented. And that your petitioner therefore prays at your honors' hands the benefit of the writ of habeas corpus, to be directed to the said marshal, commanding him to have before your honors, at a day and place to be named therein, the body of your petitioner, together with the cause of his capture and detention, to undergo and receive whatsoever your honors shall then and there consider of him in that behalf.

'And your petitioner will ever pray, &c.

'RICH'D S. PARKS.'

The transcript of the record of conviction, which accompanies the petition, shows that the petitioner was indicted for forging the signature of C. Douglass Gray, register in bankruptcy, to the following receipt:--

'HARRISONBURG, July 30, 1872.

'Received of J. D. Martin, by R. S. Parks, his attorney, the application, with necessary papers, for adjudication in bankruptcy of said Martin; also, $50, amount of required deposit.

'C. DOUGLASS GRAY, Register.'

One count of the indictment charges that Parks committed the forgery for the purpose of authenticating the commencement of proceedings in bankruptcy in the case of J. D. Martin. Another count alleges the purpose to have been to authenticate a proceeding in the said case; namely, the filing of the paper with the register. There was a third count, which did not state the purpose.

The petitioner contends that the forging of this receipt is not a crime by any act of Congress, and that, as the courts of the United States have no common-law jurisdiction of crimes, the District Court had no jurisdiction to try him for the offence. The indictment is founded on the forty-sixth section of the Bankrupt Act (re-enacted and made more general in sect. 5419 of the Revised Statutes), which declares, that 'if any person shall forge the signature of a judge, register, or other officer of the court, or knowingly concur in using any such forged or counterfeited signature. . . for the purpose of authenticating any proceeding or document,. . . such person shall be guilty of felony,' &c. The petitioner insists that the paper whose forgery is charged is not a document which could be used in evidence in any proceeding, by reason of its being authenticated by the official signature of the register. This proposition may be questioned. But suppose it were true, the receipt could be used in evidence, if genuine, for the purpose of showing the fact stated therein as against the signer in his official as well as private capacity. At all events, it is not clear and free from all doubt that the forgery is not within the terms of the statute.

But the question whether it was or was not a crime within the statute was one which the District Court was competent to decide. It was before the court, and within its jurisdiction. No other court, except the Circuit Court for the same district, having concurrent jurisdiction, was as competent to decide the question as the District Court.

Whether an act charged in an indictment is or is not a crime by the law which the court administers (in this case the statute law of the United States), is a question which has to be met at almost every stage of criminal proceedings; on motions to quash the indictment, on demurrers, on motions to arrest judgment, & c. The court may err, but it has jurisdiction of the question. If it errs, there is no remedy after final judgment, unless a writ of error lies to some Superior Court; and no such writ lies in this case. It would be an assumption of authority for this court, by means of the writ of habeas corpus, to review every case in which the defendant attempts to controvert the criminality of the offence charged in the indictment. It having been held that the regulation of the appellate power of this court was conferred upon Congress, and Congress having given an appeal or writ of error in only certain specified cases, the implication is irresistible, that those errors and irregularities, which can only be reviewed by appeal or writ of error, cannot be reviewed in this court in any other cases than those in which those processes are given. Now, it has always been held that a mere error in point of law, committed by a court in a case properly subject to its cognizance, can only be reviewed by the ordinary methods of appeal or writ of error; but that where the proceedings are not only erroneous, but entirely void,-as where the court is without jurisdiction of the person or of the cause, and a party is subjected to illegal imprisonment in consequence, the Superior Court, or judge invested with the prerogative power of issuing a habeas corpus, may review the proceedings by that writ, and discharge from illegal imprisonment. This is one of the modes in which this court exercises supervisory power over inferior courts and tribunals; but it is a special mode, and confined to a limited class of cases.

The general principles upon which the writ of habeas corpus is issued in England were well settled by usage and statutes long before the period of our national independence, and must have been in the mind of Congress when the power to issue the writ was given to the courts and judges of the United States. These principles, subject to the limitations imposed by the Federal Constitution and laws, are to be referred to for our guidance on the subject. A brief reference to the principal authorities will suffice on this occasion.

Lord Coke, before the Habeas Corpus Act was passed, excepted from the privilege of the writ persons imprisoned upon conviction for a crime, or in execution. 2 Inst. 52; Com. Dig., Hab. Corp. B.

The Habeas Corpus Act itself excepts those committed or detained for treason or felony plainly expressed in the warrant, and persons convict, or in execution by legal process. Com. Dig., Hab. Corp. B.

Lord Hale says, 'If it appear by the return of the writ that the party be wrongfully committed, or by one that hath not jurisdiction, or for a cause for which a man ought not to be imprisoned, he shall be discharged or bailed.' 2 Hale's H. P. C. 144.

Chief Baron Gilbert says, 'If the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge. Bac. Abr., Hab. Corp. B, 10.

These extracts are sufficient to show, that, when a person is convict or in execution by legal process issued by a court of competent jurisdiction, no relief can be had. Of course, a superior court will interfere if the inferior court had exceeded its jurisdiction, or was not competent to act.

The courts of the United States derive their jurisdiction on this subject from the Constitution and laws of the United States. The fourteenth section of the Judiciary Act granted to all the courts power to issue writs of scire facias, habeas corpus, and all other writs necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law; and to the justices and judges, power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment; but it added a proviso, that the writ should not extend to prisoners in jail, unless in custody under or by color of authority of the United States, or committed for trial before some court of the same, or necessary to be brought into court to testify. It was found necessary to relax the limitation contained in this proviso; and this was done in several subsequent laws. See act of 1833 (4 Stat. 634), passed in consequence of nullification proceedings in South Carolina; act of 1842 (5 Stat. 539), passed in consequence of the McLeod Case; and act of 1867 (14 Stat. 44), passed in consequence of the state of things that followed the late rebellion.

The power of the Supreme Court is subject to a further limitation, arising from its constitutional want of original jurisdiction on the subject; from whence it follows that, except in aid of some other acknowledged jurisdiction, it can only issue the writ to review the action of some inferior court or officer. Ex parte Barry, 2 How. 65.

From this review of the law it is apparent, therefore, as before suggested, that in a case like the present, where the prisoner is in execution upon a conviction, the writ ought not to be issued, or, if issued, the prisoner should at once be remanded, if the court below had jurisdiction of the offence, and did no act beyond the powers conferred upon it. The court will look into the proceedings so far as to determine this question. If it finds that the court below has transcended its powers, it will grant the writ and discharge the prisoner, even after judgment. Ex parte Kearney, 7 Wheat. 38; Ex parte Wells, 18 How. 307; Ex parte Lange, 18 Wall. 163. But if the court had jurisdiction and power to convict and sentence, the writ cannot issue to correct a mere error. We have shown that the court below had power to determine the question before it: and that this is so, is further manifest from the language of Chief Justice Marshall in the case of Tobias Watkins, 3 Pet. 203. He there says, 'To determine whether the offence charged in the indictment be legally punishable or not, is among the most unquestionable of its [the court's] powers and duties.'

But after the thorough investigation which has been given to this subject in previous cases, particularly those of Ex parte Yerger, 8 Wall. 85, and Ex parte Lange, 18 id. 163, it is unnecessary to pursue the subject further at this time.

The last-mentioned case is confidently relied on as a precedent for allowing the writ in this case. But the two are totally unlike. In Ex parte Lange we proceeded on the ground, that, when the court rendered its second judgment, the case was entirely out of its hands. It was functus officio in regard to it. The judgment first rendered had been executed and satisfied. The subsequent proceedings were, therefore, according to our view, void.

But, in the case before us, the District Court had plenary jurisdiction, both of the person, the place, the cause, and every thing about it. To review the decision of that court by means of the writ of habeas corpus would be to convert that writ into a mere writ of error, and to assume an appellate power which has never been conferred upon this court.

Since the cause was submitted to the court, the learned counsel for the petitioner has called its attention to the case of Booth and Rycroft, 3 Wis. 157, as a case precisely in point in favor of granting the writ. It had probably escaped the recollection of counsel that this very case was reversed by this court in Ableman v. Booth, 21 How. 506, in which Chief Justice Taney delivered one of his most elaborate and able opinions.

As the entire record has been brought before us by the petition, and we are clear as to our want of authority to discharge the prisoner, the application for the writ is

Denied.

title: Ex parte Parks/Opinion of the Court


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


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New York Life Insurance Company v. Statham

THE first of these cases is here on appeal from, and the second and third on writs of error to, the Circuit Court of the United States for the Southern District of Mississippi.

The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the defendant (now appellant) in 1851, on the life of Dr. A. D. Statham, of Mississippi, from the proceeds of certain funds belonging to the defendant attached in the hands of its agent at Jackson, in that State. It appears from the statements of the bill that the annual premiums accruing on the policy were all regularly paid, until the breaking out of the late civil war, but that, in consequence of that event, the premium due on the 8th of December, 1861, was not paid; the parties assured being residents of Mississippi, and the defendant a corporation of New York. Dr. Statham died in July, 1862.

The second case is an action at law against the same defendant to recover the amount of a policy issued in 1859 on the life of Henry S. Seyms, the husband of the plaintiff. In this case, also, the premiums had been paid until the breaking out of the war, when, by reason thereof, they ceased to be paid, the plaintiff and her husband being residents of Mississippi. He died in May, 1862.

The third case is a similar action against the Manhattan Life Insurance Company of New York, to recover the amount of a policy issued by it in 1858, on the life of C. L. Buck, of Vicksburg, Miss.; the circumstances being substantially the same as in the other cases.

Each policy is in the usual form of such an instrument, declaring that the company, in consideration of a certain specified sum to it in hand paid by the assured, and of an annual premium of the same amount to be paid on the same day and month in every year during the continuance of the policy, did assure the life of the party named, in a specified amount, for the term of his natural life. Each contained various conditions, upon the breach of which it was to be null and void; and amongst others the following: 'That in case the said [assured] shall not pay the said premium on or before the several days hereinbefore mentioned for the payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured, or in any part thereof, and this policy shall cease and determine.' The Manhattan policy contained the additional provision, that, in every case where the policy should cease or become null and void, all previous payments made thereon should be forfeited to the company.

The non-payment of the premiums in arrear was set up in bar of the actions; and the plaintiffs respectively relied on the existence of the war as an excuse, offering to deduct the premiums in arrear from the amounts of the policies.

The decree and judgments below were against the defedants.

''Mr. Matt. H. Carpenter and Mr. James A. Garfield'' for the appellant in the first case, and for the plaintiff in error in the second. The third case was submitted by Mr. Alfred Pitman for the plaintiff in error.

The rights involved depend upon the contract. The court will not interpolate new conditions, but hold the parties to their agreement. Dermott v. Jones, 2 Wall. 1; Jeffreys v. ''Life Ins. Co.'', 22 id. 47. It consists of two parts, and is divisible. The payment of the first premium accomplished two things: First, it effected an insurance upon the life of the applicant for one year, which is, so far as he is concerned, an executed contract. Should he die within that specific period, the company absolutely covenants to pay the amount of the policy. Second, it purchased the option of his making the stipulated payments, and thus continuing the insurance from year to year, and is in this respect an executory contract. Worthington v. ''Charter Oak Life Ins. Co.'', 41 Conn. 372. The provisions requiring payment of the agreed premium for each subsequent year are an essential part of the substance of the contract, by which the duration of the risk is limited and defined, and are not a condition in the nature of a penalty. Dean v. Nelson, 10 Wall. 158. They declare that the policy, if the requisite premium is not paid, expires by its own limitation; but if the court considers that they create a condition, then we insist that it is a condition precedent to the renewal and extension of the risk. Until its performance, no liability is incurred by the underwriter, and no right vests in the policy-holder. Want et al. v. Blunt et al., 12 East, 183; ''Phoenix Life Ins. Co. v. Sheridan'', 8 Ho. of Lds. Cas. 745; Law R. 9 Ch. 502; id. 9 Eq. 705; id. 17 Ed. 316-320. An impossibility to perform it does not prevent the loss which results therefrom; nor will a court of equity relieve against the consequences of a breach, although such impossibility be occasioned by law. Salk. 231, 233; 3 Vern. 338, 339, 344; 1 id. 223; 1 Bro. Ch. 168; Earl of Shrewsbury v. Scott, 6 C. B. N. S. 1; Barker v. Hodgson, 3 M. & S. 267.

From the beginning of the war until the President's proclamation of Aug. 6, 1861, the assured, who lived within the rebel States, had full opportunity and permission to withdraw to loyal territory. His duty in such a case is clearly indicated in Mrs. Alexander's Cotton, 2 Wall. 421, and The William Bay ley, 5 id. 377. He elected to remain within the jurisdiction of the enemy. The result of his choice cannot be pleaded as an excuse for non-performance; nor can relief be claimed on the ground insisted upon by the other side, that, when the annual premium became due, its payment was rendered unlawful by the existence of war.

The contract, under the circumstances, and by his own voluntary act, was, if for no other reason, made void by the war; because its continued existence depended upon the performance of certain conditions by a person who remained within the Confederate lines, when all intercourse was prohibited by law. Hanger v. Abbott, 6 Wall. 536; Duer on Insurance, 473, note 2; Thompson v. United States, 15 Wall. 400. As insurance of the property or lives of enemies violates the laws of war, all such continuing policies are annulled when hostilities commence between the countries where the insurance company and the assured respectively reside. The war, ipso facto, dissolved the contracts sued on. Furtado v. Rogers, 3 Bos. & Pull. 191. There can be no well-founded distinction between a promise to indemnify a hostile country and one to indemnify its citizen or subject, though a non-combatant, against loss of life. Upon his death, should the contract be valid, and the non-performance of the condition which he has assumed be waived, an absolute right to a sum of money accrues, even though payment might not be enforced until the close of the war. We also insist, that during the war, and when the insured died, the contract, by its own limitation, or by reason of the non-performance of the condition, ceased and determined. The ground taken on the other side is, that only the particular clause requiring the stipulated annual payment was suspended, and that no loss arises from a non-compliance with its terms. This extraordinary result then follows. The contract, so far as the company is concerned, remains in force, and absolutely binds it, whilst the enemy is excused from performance. Should the insured survive the war, there would be no obligation to pay the back premiums, the contract being unilateral; if he dies, the assured can claim, as is done in these cases, the amount of the policy.

But if the court should reject these views, and hold that the defences are not a valid bar to a recovery in these suits, it will not affirm the judgments and decree for the entire amount of the several policies. If any equitable adjustment of the matters in controversy be made, the policy-holder, whose policy was alive when the war began, should not be entitled to any thing beyond its surrender value at that date. Such an adjustment would not impose on the assured the forfeiture of the premiums paid, or on the company the hardship of paying all lapses, whether voluntary or involuntary.

Mr. Clinton L. Rice for the appellees in the first case, and Mr. Joseph Casey for the defendant in error in the second. The third case was submitted by Mr. W. P. Harris for the defendant in error.

A contract of insurance, when made upon and for the life of the insured, is a contract for life, and not from year to year. ''Manhattan Life Ins. Co. v. Warwick'', 20 Gratt. 620; Reese v. ''Mut. Benefit Life Ins. Co.'', 26 Barb. 556; Hodson's Adm'rs v. ''Guard. Life Ins. Co.'', 97 Mass. 144; Hillyard v. ''Mut. Benefit Ins. Co.'', 37 N. J. 444. The payment of the premiums is a condition subsequent, the performance of which is excused when rendered illegal by the interdiction of commerce and intercourse in time of war between the countries where the contracting parties respectively reside.

It is not an executory contract of such a nature as to be ipso facto terminated or abrogated by a state of war. The war did not, therefore, proprio vigore, annul it, or impair any vested right under it. It had no other effect than to suspend the remedy upon, or the performance of, it. Statham v. ''New York Life Ins. Co.'', 45 Miss. 592; Cohen v. ''New York Mut. Life Ins. Co., 50 N. Y. 610; Sands v. New York Life Ins. Co.'', id. 626; ''Manhattan Life Ins. Co. v. Warwick, supra; New York Life Ins. Co. v. Clopton, 7 Bush, 179; Hamilton v. New York Mut. Life Ins. Co.'', 9 Blatch. 234; Semmes v. ''Hartford Ins. Co.'', 13 Wall. 158; Griswold v. Waddington, 16 Johns. 438; Bliss on Life Ins. (2d ed.) pp. 657-702. Conditions are void, if, at the time of their creation, their performance is impossible, or afterwards becomes so, by the act of God or the law. Walker v. Osgood, 53 Me. 432; Wood v. Edwards, 19 Johns. 205; Glover v. Taylor, 41 Ala. 124; People v. Bartlett, 3 Hill, 570; Story's Eq. sects. 1304, 1307; Brewster v. Kitchen, 1 Ld. Raym. 317; Coke's Com. 206 a; 2 Pars. on Contr. 672-674. The nonperformance of a condition subsequent, where its performance is a forbidden and unlawful act, does not work a forfeiture of the policy. There is no forfeiture, in the just sense of that term, where the law prohibits performance (Semmes v. Hartford Ins. Co., supra; Dean v. Nelson, 10 Wall. 169; Brewster v. Kitchen, supra; Tenlevey v. Hubbard, 3 B. & P. 291); and every intendment consistent with the contract will be made to prevent a forfeiture. McAllister v. ''N. E. Mut. Life Ins. Co.'', 101 Mass. 558; ''N. E. Mut. Life Ins. Co. v. Hasbrook'', 32 Ind. 447; Helme v. ''Phila. Life Ins. Co.'', 61 Penn. 107; Bliss on Life Ins., sects. 186, 190; Thompson v. ''St. Louis Mut. Life Ins. Co.'', 52 Mo. 469. On the cessation of hostilities, the former state of things revived, and rights under a valid contract were restored to their original vigor. United States v. Grossmeyer, 9 Wall. 72; Montgomery v. United States, 15 id. 395; United States v. Lapene, 17 id. 601.

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


text: Talk:New York Life Insurance Company v. Statham


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New York Life Insurance Company v. Statham/Opinion of the Court

We agree with the court below, that the contract is not an assurance for a single year, with a privilege of renewal from year to year by paying the annual premium, but that it is an entire contract of assurance for life, subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such is the form of the contract, and such is its character. It has been contended that the payment of each premium is the consideration for insurance during the next following year,-as in fire policies. But the position is untenable. It often happens that the assured pays the entire premium in advance, or in five, ten, or twenty annual instalments. Such instalments are clearly not intended as the consideration for the respective years in which they are paid; for, after they are all paid, the policy stands good for the balance of the life insured, without any further payment. Each instalment is, in fact, part consideration of the entire insurance for life. It is the same thing, where the annual premiums are spread over the whole life. The value of assurance for one year of a man's life when he is young, strong, and healthy, is manifestly not the same as when he is old and decrepit. There is no proper relation between the annual premium and the risk of assurance for the year in which it is paid. This idea of assurance from year to year is the suggestion of ingenious counsel. The annual premiums are an annuity, the present value of which is calculated to correspond with the present value of the amount assured, a reasonable percentage being added to the premiums to cover expenses and contingencies. The whole premiums are balanced against the whole insurance.

But whilst this is true, it must be conceded that promptness of payment is essential in the business of life insurance. All the calculations of the insurance company are based on the hypothesis of prompt payments. They not only calculate on the receipt of the premiums when due, but on compounding interest upon them. It is on this basis that they are enabled to offer assurance at the favorable rates they do. Forfeiture for non-payment is a necessary means of protecting themselves from embarrassment. Unless it were enforceable, the business would be thrown into utter confusion. It is like the forfeiture of shares in mining enterprises, and all other hazardous undertakings. There must be power to cut off unprofitable members, or the success of the whole scheme is endangered. The insured parties are associates in a great scheme. This associated relation exists whether the company be a mutual one or not. Each is interested in the engagements of all; for out of the coexistence of many risks arises the law of average, which underlies the whole business. An essential feature of this scheme is the mathematical calculations referred to, on which the premiums and amounts assured are based. And these calculations, again, are based on the assumption of average mortality, and of prompt payments and compound interest thereon. Delinquency cannot be tolerated nor redeemed, except at the option of the company. This has always been the understanding and the practice in this department of business. Some companies, it is true, accord a grace of thirty days, or other fixed period, within which the premium in arrear may be paid, on certain conditions of continued good health, &c. But this is a matter of stipulation, or of discretion, on the part of the particular company. When no stipulation exists, it is the general understanding that time is material, and that the forfeiture is absolute if the premium be not paid. The extraordinary and even desperate efforts sometimes made, when an insured person is in extremis, to meet a premium coming due, demonstrates the common view of this matter.

The case, therefore, is one in which time is material and of the essence of the contract. Non-payment at the day involves absolute forfeiture, if such be the terms of the contract, as is the case here. Courts cannot with safety vary the stipulation of the parties by introducing equities for the relief of the insured against their own negligence.

But the court below bases its decision on the assumption that, when performance of the condition becomes illegal in consequence of the prevalence of public war, it is excused, and forfeiture does not ensue. It supposes the contract to have been suspended during the war, and to have revived with all its force when the war ended. Such a suspension and revival do take place in the case of ordinary debts. But have they ever been known to take place in the case of executory contracts in which time is material? If a Texas merchant had contracted to furnish some Northern explorer a thousand cans of preserved meat by a certain day, so as to be ready for his departure for the North Pole, and was prevented from furnishing it by the civil war, would the contract still be good at the close of the war five years afterwards, and after the return of the expedition? If the proprietor of a Tennessee quarry had agreed, in 1860, to furnish, during the two following years, ten thousand cubic feet of marble, for the construction of a building in Cincinnati, could he have claimed to perform the contract in 1865, on the ground that the war prevented an earlier performance?

The truth is, that the doctrine of the revival of contracts suspended during the war is one based on considerations of equity and justice, and cannot be invoked to revive a contract which it would be unjust or inequitable to revive.

In the case of life insurance, besides the materiality of time in the performance of the contract, another strong reason exists why the policy should not be revived. The parties do not stand on equal ground in reference to such a revival. It would operate most unjustly against the company. The business of insurance is founded on the law of averages; that of life insurance eminently so. The average rate of mortality is the basis on which it rests. By spreading their risks over a large number of cases, the companies calculate on this average with reasonable certainty and safety. Any thing that interferes with it deranges the security of the business. If every policy lapsed by reason of the war should be revived, and all the back premiums should be paid, the companies would have the benefit of this average amount of risk. But the good risks are never heard from; only the bad are sought to be revived, where the person insured is either dead or dying. Those in health can get new policies cheaper than to pay arrearages on the old. To enforce a revival of the bad cases, whilst the company necessarily lose the cases which are desirable, would be manifestly unjust. An insured person, as before stated, does not stand isolated and alone. His case is connected with and corelated to the cases of all others insured by the same company. The nature of the business, as a whole, must be looked at to understand the general equities of the parties.

We are of opinion, therefore, that an action cannot be maintained for the amount assured on a policy of life insurance forfeited, like those in question, by non-payment of the premium, even though the payment was prevented by the existence of the war.

The question then arises, Must the insured lose all the money which has been paid for premiums on their respective policies? If they must, they will sustain an equal injustice to that which the companies would sustain by reviving the policies. At the very first blush, it seems manifest that justice requires that they should have some compensation or return for the money already paid, otherwise the companies would be the gainers from their loss; and that from a cause for which neither party is to blame. The case may be illustrated thus: Suppose an inhabitant of Georgia had bargained for a house, situated in a Northern city, to be paid for by instalments, and no title to be made until all the instalments were paid, with a condition that, on the failure to pay any of the instalments when due, the contract should be at an end, and the previous payments forfeited; and suppose that this condition was declared by the parties to be absolute and the time of payment material. Now, if some of the instalments were paid before the war, and others accruing during the war were not paid, the contract, as an executory one, was at an end. If the necessities of the vendor obliged him to avail himself of the condition, and to resell the property to another party, would it be just for him to retain the money he had received? Perhaps it might be just if the failure to pay had been voluntary, or could, by possibility, have been avoided. But it was caused by an event beyond the control of either party,-an event which made it unlawful to pay. In such case, whilst it would be unjust, after the war, to enforce the contract as an executory one against the vendor, contrary to his will, it would be equally unjust in him, treating it as ended, to insist upon the forfeiture of the money already paid on it. An equitable right to some compensation or return for previous payments would clearly result from the circumstances of the case. The money paid by the purchaser, subject to the value of any possession which he may have enjoyed, should, ex aequo et bono, be returned to him. This would clearly be demanded by justice and right.

And so, in the present case, whilst the insurance company has a right to insist on the materiality of time in the condition of payment of premiums, and to hold the contract ended by reason of non-payment, they cannot with any fairness insist upon the condition, as it regards the forfeiture of the premiums already paid; that would be clearly unjust and inequitable. The insured has an equitable right to have this amount restored to him, subject to a deduction for the value of the assurance enjoyed by him whilst the policy was in existence; in other words, he is fairly entitled to have the equitable value of his policy.

As before suggested, the annual premiums are not the consideration of assurance for the year in which they are severally paid, for they are equal in amount; whereas, the risk in the early years of life is much less than in the later. It is common knowledge, that the annual premiums are increased with the age of the person applying for insurance. According to approved tables, a person becoming insured at twenty-five is charged about twenty dollars annual premium on a policy of one thousand dollars, whilst a person at forty-five is charged about thirty-eight dollars. It is evident, therefore, that, when the younger person arrives at forty-five, his policy has become, by reason of his previous payments, of considerable value. Instead of having to pay, for the balance of his life, thirty-eight dollars per annum, as he would if he took out a new policy on which nothing had been paid, he has only to pay twenty dollars. The difference (eighteen dollars per annum during his life) is called the equitable value of his policy. The present value of the assurance on his life exceeds by this amount what he has yet to pay. Indeed, the company, if well managed, has laid aside and invested a reserve fund equal to this equitable value, to be appropriated to the payment of his policy when it falls due. This reserve fund has grown out of the premiums already paid. It belongs, in one sense, to the insured who has paid them, somewhat as a deposit in a savingsbank is said to belong to the person who made the deposit. Indeed, some life-insurance companies have a standing regulation by which they agree to pay to any person insured the equitable value of his policy whenever he wishes it; in other words, it is due on demand. But whether thus demandable or not, the policy has a real value corresponding to it,-a value on which the holder often realizes money by borrowing. The careful capitalist does not fail to see that the present value of the amount assured exceeds the present value of the annuity or annual premium yet to be paid by the assured party. The present value of the amount assured is exactly represented by the annuity which would have to be paid on a new policy; or, thirty-eight dollars per annum in the case supposed, where the party is forty-five years old; whilst the present value of the premiums yet to be paid on a policy taken by the same person at twenty-five is but little more than half that amount. To forfeit this excess, which fairly belongs to the assured, and is fairly due from the company, and which the latter actually has in its coffers, and to do this for a cause beyond individual control, would be rank injustice. It would be taking away from the assured that which had already become substantially his property. It would be contrary to the maxim, that no one should be made rich by making another poor.

We are of opinion, therefore, first, that as the companies elected to insist upon the condition in these cases, the policies in question must be regarded as extinguished by the non-payment of the premiums, though caused by the existence of the war, and that an action will not lie for the amount insured thereon.

Secondly, that such failure being caused by a public war, without the fault of the assured, they are entitled ex aequo et bono to recover the equitable value of the policies with interest from the close of the war.

It results from these conclusions that the several judgments and the decree in the cases before us, being in favor of the plaintiffs for the whole sum assured, must be reversed, and the records remanded for further proceedings. We perceive that the declarations in the actions at law contain no common or other counts applicable to the kind of relief which, according to our decision, the plaintiffs are entitled to demand; but as the question is one of first impression, in which the parties were necessarily somewhat in the dark with regard to their precise rights and remedies, we think it fair and just that they should be allowed to amend their pleadings. In the equitable suit, perhaps, the prayer for alternative relief might be sufficient to sustain a proper decree; but, nevertheless, the complainants should be allowed to amend their bill, if they shall be so advised.

In estimating the equitable value of a policy, no deduction should be made from the precise amount which the calculations give, as is sometimes done where policies are voluntarily surrendered, for the purpose of discouraging such surrenders; and the value should be taken as of the day when the first default occurred in the payment of the premium by which the policy became forfeited. In each case the rates of mortality and interest used in the tables of the company will form the basis of the calculation.

The decree in the equity suit and the judgments in the actions at law are reversed, and the causes respectively remanded to be proceeded with according to law and the directions of this opinion.

MR. CHIEF JUSTICE WAITE.

I agree with the majority of the court in the opinion that the decree and judgments in these cases should be reversed, and that the failure to pay the annual premiums as they matured put an end to the policies, notwithstanding the default was occasioned by the war; but I do not think that a default, even under such circumstances, raises an implied promise by the company to pay the assured what his policy was equitably worth at the time. I therefore dissent from that part of the judgment just announced which remands the causes for trial upon such a promise.

MR. JUSTICE STRONG.

While I concur in a reversal of these judgments and the decree, I dissent entirely from the opinion filed by a majority of the court. I cannot construe the policies as the majority have construed them. A policy of life insurance is a peculiar contract. Its obligations are unilateral. It contains no undertaking of the assured to pay premiums: it merely gives him an option to pay or not, and thus to continue the obligation of the insurers, or terminate it at his pleasure. It follows that the consideration for the assumption of the insurers can in no sense be considered an annuity consisting of the annual premiums. In my opinion, the true meaning of the contract is, that the applicant for insurance, by paying the first premium, obtains an insurance for one year, together with a right to have the insurance continued from year to year during his life, upon payment of the same annual premium, if paid in advance. Whether he will avail himself of the refusal of the insurers, or not, is optional with him. The payment ad diem of the second or any subsequent premium is, therefore, a condition precedent to continued liability of the insurers. The assured may perform it or not, at his option. In such a case, the doctrine that accident, inevitable necessity, or the act of God, may excuse performance, has no existence. It is for this reason that I think the policies upon which these suits were brought were not in force after the assured ceased to pay premiums. And so, though for other reasons, the majority of the court holds; but they hold, at the same time, that the assured in each case is entitled to recover the surrender, or what they call the equitable, value of the policy. This is incomprehensible to me. I think it has never before been decided that the surrender value of a policy can be recovered by an assured, unless there has been an agreement between the parties for a surrender; and certainly it has not before been decided that a supervening state of war makes a contract between private parties, or raises an implication of one.

MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE HUNT, dissenting.


text: Talk:New York Life Insurance Company v. Statham/Opinion of the Court


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New York Life Insurance Company v. Statham/Dissent Clifford

MR. JUSTICE CLIFFORD, with whom concurred MR. JUSTICE HUNT, dissenting.

Where the parties to an executory money-contract live in different countries, and the governments of those countries become involved in public war with each other, the contract between such parties is suspended during the existence of the war, and revives when peace ensues; and that rule, in my judgment, is as applicable to the contract of life insurance as to any other executory contract. Consequently, I am obliged to dissent from the opinion and judgment of the court in these cases.


text: Talk:New York Life Insurance Company v. Statham/Dissent Clifford


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Terry v. Abraham

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

The case was argued by Mr. H. Terry for the appellant, and by Mr. A. T. Akerman for the appellees.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Terry v. Abraham


text: Talk:Terry v. Abraham

title: Talk:Terry v. Abraham


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Page:A short history of social life in England.djvu/300

280 reserved for a woman to introduce into England the system of inoculation for small-pox. This disease was still rampant, some 3,000 persons dying of it in London alone in the year 1719. Inoculation, which consisted in procuring a slight attack of small-pox by means of incision, was practised at Constantinople, where Lady Lady Mary Wortley Montague had her five-year-old boy inoculated in 1717. The child at once had a slight attack of small-pox, from which he easily recovered. The King's daughter-in-law took up the subject; experiments were made on condemned criminals and charity children, and the results being satisfactory, the two little Princesses of nine and eleven, granddaughters of George I., were inoculated with marked success. But the idea grew slowly, and it was not till 1740 that inoculation came into general use.

Thus, while under George I. great ideas were slowly developing among the more enlightened and educated members of the English community, the common people persisted in their old-world remedies. They tried to cure asthma by drinking a wine-glass of wine in which wood lice were steeped, cramp by wearing garters made of rosemary leaves sewn up in fine linen, loss of


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Terry v. Abraham/Opinion of the Court

On the twelfth day of July, 1869, Harvey Terry, the appellant, filed his bill in the Circuit Court for the Southern District of Georgia against the Merchants' and Planters' Bank and Hiram Roberts. The bill purported to be brought in behalf of plaintiff and all others in like condition with himself who would unite and contribute to the expenses of the proceeding. It sets out, as the foundation of plaintiff's rights, that he is the owner and holder of a considerable amount of the circulating notes of the bank; that the bank, since 1866, has been insolvent, and refused to redeem its bills; and that, on the eighteenth day of July of that year, it had made to Hiram Roberts, the other defendant, a general assignment of its effects for the benefit of its creditors. This assignment is set out in full as an exhibit to the bill.

It is alleged that Roberts has wholly failed to execute the trust; and the relief sought is, that a receiver may be appointed, who shall take charge of the property so assigned, and who shall administer and close up the affairs of the trust, and distribute the effects among the creditors, as they may be found justly entitled.

A receiver was appointed in accordance with the prayer of the petition, with directions to take possession of the assets of the bank, and to collect its debts; and a master was appointed to ascertain and report the names of all the creditors entitled to share in the fund, and the amount to be distributed to each of them.

It is on the exceptions taken by the appellant to this report that the only questions arise which this court can notice. There are seven of these exceptions, the second and third of which alone relate to allowances made by the master to creditors, represented by Stone and Akerman, as attorneys in the case. The other exceptions relate to allowances in favor of other creditors, who are not parties to this appeal. The appellant, in taking his appeal, expressly limited it to the creditors represented by Stone and Akerman, and procured an order of severance as to the others, and the allowance of the appeal as between appellant and those parties alone. Conceding the appeal to be good as to these parties, and the issues between them (which is a little doubtful), it is very clear that no modification of the decree can be had here to the prejudice of those who were parties below and are not parties here.

This principle disposes also of the alleged error of the court in refusing to allow a reasonable compensation for services of plaintiff's attorney, to be paid out of the general fund before distribution. As appellant had instituted the suit, and carried it on at his own expense, until he procured a decree for distribution of a large fund, in the benefit of which all the creditors participated, we see no good reason why the fund thus realized and distributed should not have been chargeable with the expense incident to the proceeding.

But there may have been a good reason for it; and, if the creditors who shared in the distribution were here as parties, they might be able to sustain the action of the court below. At all events, as no order on the subject could now be made without disturbing their rights under the decree, and as appellant has not thought proper to bring them here, the decree cannot be changed on that subject.

The third exception, which relates to the parties represented by Stone and Akerman, questions an allowance of interest on their claims. The sufficient answer to this is, that appellant claimed and received interest on his claims in precisely the same manner, which made these parties equal in the matter, and which estops appellant from alleging the action of the court to be error.

The second exception is founded on the allegation contained in it, that the creditors represented by Stone and Akerman, whose claims to the amount of $832,115.76 had been allowed, had, after the assignment, collected from the stockholders of the bank, by legal proceedings, the sum of $197,672 'in the aggregate;' and he raises two points on this part of the master's report: 1st, That these parties should have been allowed nothing at all out of the fund now in court. 2d, That they should have only been permitted to share in the fund after all the other creditors had been made equal by receiving as much in proportion as these had collected by law.

There are several reasons why these exceptions cannot be sustained here. One of these is, that the sum mentioned as realized by the twenty-three creditors represented by Stone and Akerman is stated in the aggregate; and there is no averment of the amount received by each creditor, or that in point of fact each one of the twenty-three received a part of this sum. It is perfectly consistent with the language of the exception that one or two or three of the claimants represented by these attorneys received the whole amount mentioned.

Another objection is, that the record shows that appellant himself had in like manner proceeded at law, and had collected a considerable sum, just in the same manner as these creditors had; and if their action debarred them from any benefit of the trust funds, he was in like manner debarred, and has no standing in court.

Again: though the exception alleges that the money so made by these creditors was realized out of the unpaid stock, by which is probably meant that part of the stock subscribed for and not paid in, the record leaves it in doubt whether it was not collected of stockholders on account of the personal liability which the statute imposed on the shareholder outside of his liability to pay on the stock actually subscribed, with a strong probability that the statutory liability was the principal source of the money so collected.

We are of opinion that the assignment did not carry this statutory liability to the assignee, and that as the purpose of this bill was to enforce the assignment, and nothing else, the amount received from other sources had no other effect on the rights of creditors than to diminish the amount of their debts on which the dividend was to be estimated.

A circumstance quite as strong against the appellant is, that, though he had, as plaintiff, the control of the management of this suit, he took no steps to have the unpaid stock collected, had no order made for its payment by the shareholders, nor any directions to the receiver to enforce its payment. No other creditor took any step in that direction. Neither the receiver, the other creditors, nor the appellant, have in any manner, up to the argument in this court, looked to that source as part of the fund to be distributed under this assignment.

Under all these circumstances, we hold, that, if any right to collect this unpaid stock passed to the assignee, of which there is great doubt, the parties to this suit have waived and abandoned that right, and the appellant cannot now set it up to reverse this decree.

Decree affirmed.

title: Terry v. Abraham/Opinion of the Court


text: Talk:Terry v. Abraham/Opinion of the Court


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Smith v. Chapman

ERROR to the Circuit Court of the United States for the District of Minnesota.

The case was argued by Mr. W. P. Clough for the plaintiff in error, and by Mr. Thomas J. Durant for the defendant in error.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Smith v. Chapman


text: Talk:Smith v. Chapman

title: Talk:Smith v. Chapman


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Smith v. Chapman/Opinion of the Court

Judgment was recovered in the Supreme Court of the State of New York by George W. Chapman, executor of Eunice Chapman, deceased, against John Gordon, then in full life, since deceased, in the sum of $4,759.80; and it appearing that the judgment was unsatisfied and in full force, and that the judgment debtor had deceased, the judgment creditor brought an action of debt on that judgment against the executors of the deceased judgment debtor, in which he demanded judgment for the amount recovered against the testator, with lawful interest. Due service was made on the first-named defendant; and he appeared and filed an answer setting up the following defence: That most of the property, rights, and credits of the testator, at the time of his death, were then situated in San Francisco, in the State of California; that the last will and testament of the deceased was duly proved, approved, and recorded in the probate court for the county where the testator died; that letters testamentary, in due form of law, were issued and delivered to P. B. Clark, one of the persons named in his will as executor, and that he, as sole executor of the estate of the decedent, fully administered the same; and that the defendant, at the time of the commencement of the action, had not, nor has he since had, any property, rights, or credits of the deceased in his hands to be administered.

Replications not being allowed by the law of the State, the parties, having waived a jury, went to trial before the court without any further pleadings, and the verdict and judgment were for the plaintiff. Rev. Stat., Minn. 1866, p. 459.

Exceptions were filed by the defendant to the rulings of the court in the progress of the trial; but the court here does not find it necessary to determine the questions raised by the exceptions, as it is clear that the form of the judgment is erroneous, and that the judgment must be reversed for that reason. Enough has already been remarked to show that the action was debt on judgment recovered against the deceased testator of the defendant, and that nothing is alleged in the declaration to show that the defendant has become personally liable for the judgment debt.

Viewed in the light of those suggestions, it is clear that the judgment should have been de bonis testatoris, instead of de bonis propriis, as shown in the record. Unless an administrator or executor in such a case pleads a false plea, he is not liable to a judgment beyond the assets in his hands to be administered; and it is well settled that a plea of plene administravit is not necessarily a false plea, and that the judgment in such a case, even if the plea is not sustained, should be a judgment ''de bonis testatoris. Siglar v. Haywood'', 8 Wheat. 675.

Instead of that, the judgment in this case was as follows: 'It is considered by the court, and adjudged, that the plaintiff do have, and recover of and from the defendant, impleaded as aforesaid, the sum of $7,648.33,' with interest and costs.

Beyond doubt, the suit in this case was against the defendant, as the executor of the last will and testament of Jonh Gordon, deceased; and it is equally clear, that the declaration does not contain any allegation that the defendant had been guilty of any waste of the assets in his hands, or of any mismanagement in the performance of his duties as executor of the last will and testament of the deceased.

When the suit is against the defendant as executor, and no devastavit is alleged, it is clear that a judgment de bonis propriis is unwarranted, even if it appear that the defendant has received assets, unless it appears that no assets can be found. Boyce's Ex'rs v. Grundy, 9 Pet. 275.

Plene administravit is doubtless a good plea, and, if sustained by sufficient evidence, it is a good defence; but the rule is, that the jury, under such a plea, if no devastavit is averred, must find the amount of the assets, if any, before any judgment can be rendered. Fairfax's Ex'r v. Fairfax, 5 Cranch, 19.

Even if it appear that an executor has received assets, still the judgment or decree should be against him, in his representative character, to be levied out of the assets in his hands, when no devastavit is averred and proved, unless it appear that no such assets can be found; in which event, the rule is, that the judgment may, if so ordered, be levied out of his own proper goods.

Apply these rules to the case before the court, and it is clear that the judgment is erroneous.

title: Smith v. Chapman/Opinion of the Court


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Terry v. Hatch

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

Mr. Harvey Terry for the appellant.

Mr. A. T. Akerman, contra.

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

title: Terry v. Hatch


text: Talk:Terry v. Hatch

title: Talk:Terry v. Hatch


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Terry v. Hatch/Opinion of the Court

The Bank of Commerce, located at Savannah, Ga., being insolvent and unable to proceed with its business, made an assignment of its property to John C. Ferrill for the benefit of its creditors, of whom the appellant was one. He commenced this suit 'in behalf of himself and all other parties in like condition who will concur and unite and contribute to the expenses,' to obtain a decree in his own favor against the bank for the amount of his debt; an account by the assignee; the conversion of the assigned property into money under the authority and direction of the court, and the distribution of the proceeds among the creditors according to the assignment. In the progress of the cause a decree was rendered against the bank and in favor of Terry for $23,297. Afterwards decrees were entered requiring all persons interested in the distribution of the assets to make themselves parties, and referring the cause to a master to take testimony and report the amounts due to the several claimants, the nature of their respective claims, and the order in which they were entitled to payment out of the fund in court.

The master reported, allowing claims amounting in the aggregate to about $425,000, all of which were entitled to participate pro rata in the distribution. Among the claims allowed were the decree in favor of Terry, $23,297, and several judgments in favor of George W. Hatch, amounting in all to $75,000.

Terry excepted to the report, because,--

1. An account of $25 presented by him, and on which he claimed priority of payment over the other creditiors, had been disallowed; and,--

2. The claim in favor of Hatch had been allowed.

Both these exceptions were overruled. The amount allowed to Hatch was increased to $88,000, or thereabouts; the report in all other respects confirmed, and an order entered for the payment of the fund in court to the several creditors, in accordance therewith.

The amount of the fund in court for distribution is stated to have been about $30,000, and the total amount of the allowed claims not far from $440,000; so that Hatch would receive for his dividend, under the decree as entered, about $6,000.

Terry took this appeal, which is separate, 'without joining any other party to the record with him as appellant,' or any party as defendant except Hatch. Such was the order of the Circuit Court when allowing the appeal upon his petition.

Hatch now moves to dismiss, for the reason that the 'matter in dispute' is not sufficient in amount or value to give this court jurisdiction.

Sect. 692, Rev. Stat., in force when this appeal was taken, permitted appeals to this court 'from all final decrees of any circuit court, or of any district court acting as a circuit court, in cases of equity, and of admiralty and maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of $2,000.'

The matter in dispute between the parties who are here is that part of the money payable to Hatch under the decree which would have gone to Terry if his exceptions had been sustained. Terry presented an account for $25, on which he claimed priority of payment; but, upon its disallowance, Hatch became entitled to no more than his share upon a pro rata distribution of that amount to all the creditors. So, too, Hatch, upon the allowance of his claim, became entitled under the decree to a dividend of about $6,000; but, if it had been disallowed, Terry would have received only his share of the amount of the dividend upon a like pro rata distribution. If Terry succeeds in this appeal, he can only recover from Hatch what would have been distributed to him in the court below, if his exceptions had been there sustained. The aggregate of the claims allowed, deducting that of Hatch, is about $350,000; and of this amount Terry has but $23,297. Upon a distribution of the amount decreed to Hatch among the other creditors, the dividend would be less than two per cent upon the amount of the several claims, or but little more than $500 to Terry. It is clear, therefore, that the amount in dispute is less than $2,000.

Appeal dismissed.

title: Terry v. Hatch/Opinion of the Court


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Beaver v. Taylor (93 U.S. 46)

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

This was ejectment brought by plaintiff in error, to recover an undivided sixth part of the north-west quarter of section thirty-six, the north-east fractional quarter of section twenty-seven, the south fractional half of section twenty-six, and the north-east fractional quarter of section thirty-five, in township seventeen south, range one west, situated in the county of Alexander and State of Illinois, at or near the junction of the Ohio and Mississippi Rivers. The case was tried before a jury, who found the issue for the defendants. A motion for a new trial was made; and thereupon defendants filed a stipulation, that the verdict might be so modified as to show a verdict for the plaintiff in fee-simple to the undivided sixth part of north-east fractional quarter of section twenty-seven, and that judgment might be entered therefor non obstante veredicto. Plaintiff refused to consent to said stipulation; and thereupon the motion for a new trial was overruled, and judgment entered for the defendants. It was admitted, on the trial, that the plaintiff at the time of the institution of the suit, July 17, 1854, and at the time of the alleged entry of the defendants, was the owner in fee of one undivided sixth part of the premises mentioned in the declaration, by title derived from Isabella F. Bond, through Joseph B. Holmes, unless said title was barred or divested by the evidence submitted on the part of the defendants; and that the defendants at the same time were the owners in fee of the other five-sixths of said premises, and exercising acts of ownership over the entire premises. The title of defendants to the one-sixth claimed by the plaintiff is based on a claim and color of title to, and seven successive years' possession and payment of taxes upon, the said one-sixth, under sect. 1. of the act of the legislature of March 2, 1839, which is as follows:--

'Every person in the actual possession of lands or tenements, under claim and color of title, made in good faith, and who shall, for seven successive years, continue in such possession, and shall also, during said time, pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owners of said lands or tenements, to the extent and according to the purport of his or her paper-title. All persons holding under such possession, by purchase, devise, or descent, before said seven years shall have expired, and who shall continue such possession, and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.' Rev. Stat. 1874, p. 674.

The defendants, for the purpose of showing claim and color of title made in good faith, introduced in evidence, without objection, a deed from Achsah Bond, as guardian of said Isabella F. Bond, to the Cairo City and Canal Company, of whom the defendants were admitted to be trustees.

The plaintiff requested the court to charge the jury as follows:--

1. It devolves upon the defendants, who rely upon this section of law as a defence to the plaintiffs' action, to prove to the satisfaction of the jury that they, the defendants, or those under and through whom they claim color of title, have had the actual possession of the tracts of land in question for seven successive years prior to the seventeenth day of July, 1854, the date when this action was commenced; that they have paid all taxes legally assessed on the lands during the same seven years.

2. The good faith of the claim and color of title will be presumed, unless, from the evidence, it is made to appear otherwise. If the jury shall find from the evidence that Taylor and Gilbert, the defendants, in 1854, tendered to Craig, the husband of Isabella F. Bond, $2,200, in payment for his wife's interest in the lands in controversy, that is a circumstance that may be taken into consideration, in connection with the other evidence in the case, as tending to rebut the presumption of good faith of defendants under what they have produced as color of title.

3. If, in this case, it shall appear from the evidence that the taxes for any one or more of the seven successive years were paid by Miles A. Gilbert for his own benefit, the payment of taxes cannot avail Taylor and Davis and those claiming under them; the jury are to determine, from all the evidence in the case, whether all the taxes for said seven years were paid on account of Taylor and Davis, or whether for a portion of that time they were paid on account of Miles A. Gilbert.

4. To make out the actual possession of the lands in question, it must appear from the evidence that the defendants, or those under and through whom they claim, during the whole period of seven successive years prior to the seventeenth day of July, 1854, had possession adverse to the legal claim of Isabella F. Bond and those claiming through her. During the whole of that time their possession must have been visibly notorious and exclusive; it must have been manifested by such unequivocal acts of dominion over the lands as would have given the owner of the lands, on reasonable inquiry, constant notice that the party or persons in possession were using and claiming the lands exclusively as their own.

5. The defendants, to prevent a recovery in this case, must, as to each tract of land in dispute, show, by a preponderance of evidence, actual, visible, open, and notorious possession of the particular tract as to which the jury is inquiring. Possession by defendants of premises not claimed by plaintiff will not make out a defence as to any of the tracts in dispute, nor will possession by defendants of one distinct tract of the several tracts in controversy make out a defence as to any other tract or tracts in dispute.

6. The law permits one tenant in common to possess, use, and enjoy the lands owned by himself and co-tenant, without prejudice to the rights of an absent co-tenant in common. The first section of the limitation law of March 2, 1839, cannot be successfully invoked as a defence to an act of ejectment instituted by the tenant in common out of possession, unless there is evidence to satisfy the jury that the defendant or defendants, the co-tenant or co-tenants in common in possession, has or have been in the open, well-known, exclusive, and adverse possession, claiming the whole of the lands in question for the full period of seven successive years prior to the commencement of such action. The payment of all the taxes assessed on land or lands owned in common by one of the co-tenants is not of itself evidence of an adverse possession on the part of the party who so pays, or who has so paid, the taxes, as against the co-tenant or co-tenants in common out of possession.

7. If in this case the jury are satisfied, from the evidence, that Taylor and Davis, or their agents, up to the year 1850, did no act or acts in and about their alleged possession of the lands in question, except such acts as co-tenants in common had a lawful right to do towards the improvement of said tracts of land, or that they did such acts only as they were legally authorized to do by virtue of the charter to the Cairo City and Canal Company and the deed of release from Achsah Bond, the guardian of Isabella F. Bond, the plaintiff is entitled to recover to the extent as claimed in his declaration, subject to such rights in and over the lands in question as may be claimed under said charter and the deed of release executed by the guardian of said Isabella F. Bond.

8. The building of dykes, levees, and embankments, for the security and preservation of the city of Cairo, and for the security and preservation of said city and land, and all improvements thereon, from all and every inundation which could possibly affect or injure said city or the improvements therein, was authorized by the first section of the act incorporating the Cairo City and Canal Company, approved March 4, 1837; and the mode of procuring a release of damages occasioned by such building of dykes, levees, and embankments, was provided for by the same act. The deed of release executed to said company by the guardian of Isabella F. Bond, who, at the time, was a minor, was a sufficient authority to said company to warrant them in constructing dykes, levees, and embankments over and across the lands belonging to said minor; but the construction of such improvements was not, and is not, to be taken of itself as evidence of a denial on the part of said company of the legal title and right of possession of said minor, and of those claiming through and under her, to the lands owned by said minor over and across which said improvements may have been constructed.

The court declined to so charge the jury on either and all of said points, as requested by the plaintiff; and, instead thereof, charged and instructed them as follows:--

This suit is brought to recover one-sixth of certain tracts of land in Cairo. Beaver shows title from the government through Isabella F. Bond, who sold it to Holmes, and from whom Beaver bought it. Before Isabella F. Bond sold it to Holmes, in 1852, her guardian, Achsah Bond, on the 22d of May, 1837, reciting the act of the legislature passed March 4, 1837, empowering guardians to release the damages and interest of their wards in lands which the Cairo City Company might take for their use, sold the share of Isabella F. Bond to the Cairo City and Canal Company.

This deed, in the opinion of the court, does not in itself convey title, as the authority conferred by the legislature did not extend to the selling of the land. The plaintiff is therefore entitled to recover, unless the defendants bring themselves within the provisions of the first section of the act of the legislature of March 2, 1839. By that section, although a paper-title may be defective and fail to divert the title, yet if the purchaser bought the land in good faith, supposing he had a title, the deed he has got can be used as color of title; and if he, under the claim of title, takes possession of the lands, and continues in possession of them for seven years, and pays the taxes on them for the same time, then he is as much the owner of the lands as if his paper-title was perfect.

The court instructs the jury that the deed from Achsah Bond is color of title, within the meaning of the statute, to one-sixth part of the land in controversy. Good faith in buying the property, possession of it for seven years, and payment of taxes during that period, must concur, in order to bring the defendant within the terms of the statute.

Good faith is presumed in the absence of proof to the contrary; and where there is no actual fraud and no proof showing that the color of title was acquired in bad faith, which means in or by fraud, then the title was acquired in good faith. On the question of the payment of taxes, the law is, that the taxes must be paid for the benefit of the party claiming the title.

Gilbert bought these lands in his own name at a tax sale in 1843 and 1845, as he swears, for the benefit of the company, and with their money, for the purpose of getting rid of an old tax-title, being at the time the general agent of the company.

The taxes on the land for 1846 and 1847 were paid in the name of Gilbert, but, as he testifies, with the funds of the company and for their benefit. If the jury believe this testimony is true, then it was a good payment of taxes by the company for those years; and as to the payment of taxes for the remainder of the seven years, there is no question but what they were paid by the company.

In order to defeat the plaintiff's title, the defendants must have had actual possession of the land; but actual possession, in the meaning of the statute, does not require a residence on the lands, nor their enclosure by a fence. If the lands were occupied in such a manner by the defendants as to convey a constant notice to the plaintiff, or those under whom he derives title, that they were claimed adversely to him or them, then they were, in the sense of the limitation law, in the actual possession of the defendants. In other words, if Isabella F. Bond, or the party claiming under her, could, by visiting the lands, readily see that they were in the actual occupation of the defendants, the statute is complied with. The adverse occupation must have continued for the full period of seven years before the suit was commenced, in order to bar the plaintiff.

It must have been, during all this period, a continuous occupation, and also an undivided one. In this case, the possession by the State of the ten acres now the possession by heirs of Mackenzie does not affect the rights of the parties. But if Galtin was in possession adversely to the defendants, then their possession is not an undivided one to the north-east fractional quarter of section five, on which Galtin had his possession. But if he was in possession under the defendants, or if Gray and Simmons, from whom he bought, were in possession under them, then his possession is consistent with the rights of the defendants, and he had no interest adverse to them; but his possession was the possession of the defendants.

There is no arbitrary rule in relation to what constitutes, under the law, actual possession. There must always be such a manifestation on the part of the claimant as to convey notice to the holder of the legal title that he is claiming adversely to his or her interest. The way in which this is done may be very different in the case of a tract of land for a farm, or tracts of land purchased for the purpose of being laid out into city lots.

The legislature of Illinois incorporated in 1837 the Cairo City and Canal Company, and authorized them to purchase the whole of township seventeen, and to lay the whole, or such parts of it as they saw fit, into city lots. If the jury believe from the evidence that the company did purchase the tracts of land in controversy (all being in township seventeen) for purposes authorized by the statute; and that during the period of seven years, before this suit was begun, the defendants constructed levees and embankments for the purpose not only of preserving the then city of Cairo from inundation, but also these lands, with a design of ultimately incorporating them into the city; and that these levees and embankments enclosed or crossed parts of the lands, so that the legal owner of the interest in controversy could readily see that they were occupied by the defendants; and timber was cut upon them in such manner by the defendants, or those having permission from them, as to convey notice to the owner of the adverse interest,-then the defendants had such possession under color of title as will protect them.

If, on the contrary, the levees and embankments were constructed for the sole purpose of protecting the then city of Cairo, and the cutting of the timber was done in such a manner that the party holding the legal title could not see that it was done, then the defendants are not protected. If the embank ments were made to protect these lands, as well as what was then known as the city of Cairo, and they run across a part of them, and all the lands were designed for a common purpose, then the occupation by the levees of a part of the lands was the occupation of the whole.

The rights of a tenant in common are not involved in this controversy. If the defendants believed that they purchased the interest of Isabella F. Bond, and occupied the premises adversely to her interest, they are protected, notwithstanding the interest was undivided, they owning the remaining five-sixths.

The construction of levees by the Illinois Central Railroad before the suit was commenced, under contract with the defendants, serves the same purpose as if they were constructed by the defendants.

The plaintiff is entitled to recover the one-sixth of north-east fractional quarter of twenty-seven, there being no disclaimer of title by the defendants, unless the same was occupied by the defendants adversely for seven years prior to the bringing of this suit, it making no difference under the state of the pleadings whether the land had been washed away by the Mississippi River or not.

The plaintiff at the time excepted to the refusal of the court to charge the jury on the several points of law as by him requested, and also excepted at the time to so much of the charge of the court as given, as in conflict with and variant from the several propositions urged and submitted as the law by and on behalf of the plaintiff. The jury found that defendants were in possession of the premises and paid the taxes for seven successive years, as required by the statute; and the only questions in the case arise upon the charge of the court to the jury, and its refusal to give the instructions, as asked.

Submitted on printed argument by Mr. Lyman Trumbull for the defendants in error. No counsel appeared for the plaintiff in error.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Beaver v. Taylor (93 U.S. 46)


text: Talk:Beaver v. Taylor (93 U.S. 46)

title: Talk:Beaver v. Taylor (93 U.S. 46)


text:
Beaver v. Taylor (93 U.S. 46)/Opinion of the Court

This action was ejectment to recover an undivided interest in certain lands situate in Cairo, Ill. The defence was actual possession under claim and color of title for seven successive years, and payment during that period of all taxes legally assessed upon the premises claimed. Rev. Stat. of Ill., 1874, p. 674.

Evidence was given sustaining the defence, and a verdict by the jury was rendered in favor of the defendants.

Before the case was submitted to the jury, the plaintiff requested the court to charge, as set forth by him, in eight several propositions. The court declined to charge as requested, but charged in its own language, and fully, upon the case as presented by the evidence.

The plaintiff excepted to the refusal of the court, and excepted also 'to so much of the charge of the court as given, as was in conflict with and variant from the several propositions' presented by him.

It is upon this presentation of the case that this court is asked to reverse the judgment entered upon the verdict.

1. The entire series of propositions was presented as one request; and, if any one proposition was unsound, an exception to a refusal to charge the series cannot be maintained. 11 N. Y. 416; 6 id. 233; 7 id. 236. All of the propositions presented were not sound; notably the fifth request could not be complied with.

2. If the entire charge of the court is excepted to, or a series of propositions contained in it is excepted to in gross, and any portion thus excepted to is sound, the exception cannot be sustained. Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler, 2 id. 328; 5 Denio, 213; Jones v. Osgood, 2 Seld. 233; Caldwell v. Murphy, 11 N. Y. 416; Walsh v. Kelly, 40 id. 556. The charge before us was confessedly sound in the most of its points.

3. An exception to such portions of a charge as are variant from the requests made by a party, not pointing out the variances, cannot be sustained. 40 N. Y. 556; 45 id. 129; 47 id. 570. It is not the duty of a judge at the circuit court, or of an appellate court, to analyze and compare the requests and the charge, to discover what are the portions thus excepted to. One object of an exception is to call the attention of the circuit judge to the precise point as to which it is supposed he has erred, that he may then and there consider it, and give new and different instructions to the jury, if in his judgment it should be proper to do so. Ayrault v. The Pacific Bank, 47 N. Y. 576. An exception in the form we are considering entirely defeats that object.

For these three reasons, the bill of exceptions fails to present any point that we can consider.

We are also of the opinion, upon an examination of the record, that the case was well submitted to the jury, and that the plaintiff has no just ground of complaint.

Judgment affirmed.


text: Talk:Beaver v. Taylor (93 U.S. 46)/Opinion of the Court


text:
Grymes v. Sanders

APPEAL from the Circuit Court of the United States for the Eastern District of Virginia.

The case was argued by Mr. Conway Robinson and Mr. Leigh Robinson for the appellant, and by Mr. Edwin L. Stanton and Mr. George M. Dallas for the appellees.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Grymes v. Sanders


text: Talk:Grymes v. Sanders

title: Talk:Grymes v. Sanders