text:
Caujolle v. Ferri E/Opinion of the Court

If the learned judge of the court below erred in not sustaining the plea in bar, we are relieved of the necessity of looking into the evidence in order to see whether the cause was rightly decided on its merits. The inquiry arises then, in the first place, whether he did so err or not.

There must be an end of every controversy, and the question raised by the plea is, whether the litigation concerning the legitimacy of Ferri e in the State tribunals of New York has been of such a character that it cannot be renewed between the same parties in the Federal courts.

Chief Justice De Grey, in the Duchess of Kingston's case, has, in a few words, given a comprehensive summary of the law on this subject: 'From the variety of cases in respect to judgments being given in evidence,' said the chief justice, 'these two distinctions seem to follow as being generally true: first, that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, or, as evidence, conclusive between the same parties on the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point is, in like manner, conclusive upon the same matter between the same parties, coming incidentally in question, in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.' Did the fact of legitimacy come before the surrogate's court, directly or incidentally, and was it necessary to decide the point before the letters of administration could issue? are the questions to be considered and determined.

In cases of intestacy in New York the surrogate has the sole and exclusive power of granting letters of administration, and is obliged to grant them-no question being made as to personal competency-to the relatives of the deceased who would be entitled to succeed to his or her personal estate, and if Ferri e were the only child of the intestate, he had the legal right to administer, because he succeeded to the whole of her estate. It is true a large discretion is given to the surrogate to secure a competent person, and if relatives are disqualified, for certain causes mentioned in the statute, or are unwilling to accept, administration may be granted to others, and, in such a case, the basis of action concludes nothing as to the right of succession. But if there be next of kin, and no personal disqualifications attach to them, the surrogate can exercise no discretion on the subject. The inquiry becomes then a matter or right, and is, by the express language of the statute, to be determined by the right to the succession.

In this state of the law on the subject Ferri e applied for letters of administration on the estate of Jeanne Du Lux, claiming to be her son, and, therefore, her nearest of kin. But these appellants said, You cannot have these letters, because you are illegitimate, and we, as the descendants of a deceased aunt of the intestate, are her nearest relatives, and therefore entitled to the succession. The purpose was to get at the estate, and so they say in their petition addressed to the surrogate for leave to intervene. They allege themselves to be 'the nearest of kin' and 'entitled to share upon the distribution of the estate,' and ask to be heard 'and to receive their distributive share of the estate.' Manifestly, they sought the contest because they supposed the right to administer involved the right to the property. Their opposition was not based on the ground of Ferrie's personal unfitness, nor did they wish to administer themselves. How, then, can it be said that the administration in this case was granted, without any reference to, or consideration of, the question of distribution? In the absence of personal disqualifications, as we have seen, it is compulsory on the surrogate to grant the letters to the party to whom the inheritance belongs. This is the primary and only object of inquiry, in order to ascertain to whom the letters should be issued. The illegitimacy of Ferri e in any other view was an immaterial issue. It is personal good conduct, and not the status of birth which constitutes a man a fit person to be intrusted with the duties of administration. It is idle, therefore, to suppose that this contest was inaugurated and carried on, on any other theory, than that the result of it settled the right to the estate. Because an administrator can, under certain circumstances, be appointed who is not connected by kinship with the intestate proves nothing. It is enough to say there was no occasion for the surrogate to do this, and his action was not grounded on his ability to do it in certain contingencies. His power was invoked under that clause of the statute which directed him to issue letters, in case there were relatives, to the one to whom the estate went, by the law of descents. Ferri e alleged himself to be that person, because he was the son of the deceased. These appellants said, Not so, for you are illegitimate, and have no inheritable blood, and we propose to try that question, and if it is decided in our favor, we get the estate, as we are, confessedly, in that event the nearest of kin. The issue thus solicited was framed, voluminous evidence both from abroad and at home taken upon it, able arguments heard, elaborate opinions given, and repeated decisions made against the right set up by these appellants, and yet they are not content. Beaten in the State courts on the vital question-the illegitimacy of Ferri e they turn to this court to try over again the very point decided against them. Can they do this? They say the point was only cognizable incidentally; but how can this be, when the surrogate could not have done the thing he did no without deciding it? It had to be decided in order to determine to whom the letters should issue, and the decision of it, of necessity, settled the distribution of the estate. If this litigation can be renewed in a separate suit for distribution in another court, then the same persons can try the same question, in respect to the same subject, in two different suits. The question before the surrogate was the legitimacy of Ferri e, and the subject in regard to which it was necessary to decide it, was the distribution of the estate. That the ultimate right of property was the pivot point of the case appears by the decree itself, for it finds Ferri e to be the legitimate son and sole nearest of kin of the intestate, and by reason of this directs administration to be granted to him. And it goes further, for it finds, substantially, that the contest was made on the question of kinship alone, and denies the claim set up by these appellants. Suppose the suit for distribution had been brought in the surrogate's court, can there be a doubt that the decree granting administration to Ferri e would be pleadable in bar to it? If such be its effect in that court, can or ought it to have a different effect in another court of concurrent jurisdiction? If so, then instead of there being uniformity in the exercise of concurrent jurisdiction, there would be conflicting determinations, and the evils resulting from such a course of procedure can be easily foreseen. Neither the policy of the law nor the interests of society require this to be done.

We have thus far considered the question on principle, but we are also sustained by authority.

In the Ecclesiastical Courts in England, in cases of intestacy, the right of administration follows the right to the property, as it does in New York and elsewhere in this country.

The effect of the sentence of the Ecclesiastical Court, in granting administration, was considered by Lord Hardwicke, in Thomas v. Ketteriche, on a bill filed for distribution of an intestate's goods, and he held himself concluded by it. There had been a contest in the Ecclesiastical Court for administration between the same parties on the point which was the nearest of kin. The court decided they were in equal degree, and granted administration to Ketteriche, because Thomas was a minor. Thomas, believing the Ecclesiastical Court had not computed the degrees correctly, and that he was nearer in relationship to the intestate, filed his bill for distribution in the High Court of Chancery for the purpose of getting another computation, but the Lord Chancellor refused to go behind the sentence of the Ecclesiastical Court. 'That court,' he said, 'is bound to grant administration to the next of kin; and, if I should determine these parties not to be equal, but the plaintiff nearer, it is directly contrary to the foundation of this sentence, which would make it erroneous and to be reversed. The consequence of which would be that, by choosing to come here for a distribution, you would change the rule relating thereto, for the suit might have been in the Ecclesiastical Court for a distribution as well as here, and that court could not have contradicted the sentence by which administration was granted.' This decision was in 1749.

In Bouchier v. Taylor, the same point was raised and decided the same way by the House of Lords in 1776. Notwithstanding these decisions the question was again the subject for discussion, in a suit for distribution, before Vice-Chancellor Bruce, in Barrs v. Jackson, as late as 1842, and he denied to the sentence of an Ecclesiastical Court, in a suit for administration, the effect which was given to it in the other cases. But, on appeal to the House of Lords, this decree was reversed, and Lord Chancellor Lyndhurst, on a review of all the authorities, held that the question was no longer an open one. It is to be observed, in regard to the opinion of the learned chancellor, that, although he declined to enter into any of the general arguments in the case, on the ground that he was bound by the decision of the House of Lords in Bouchier v. Taylor, yet he concedes that if the suit for distribution had been instituted in the Ecclesiastical Court, the sentence in the suit for administration would have been conclusive upon it, and, if it were conclusive there, that it ought to be conclusive in the Court of Chancery.

It may, therefore, as the result of these authorities, be safely assumed to be the established law in England, that if the sentence of an ecclesiastical court, in a suit for administration, turns upon the question of which of the parties is next of kin to the intestate, it is conclusive upon that question in a subsequent suit in the Court of Chancery between the same parties for distribution.

We are not aware of any decisions directly upon this subject in any of the State courts of this country. This, doubtless, results from the fact that, with us, estates are settled and distributed in the same court that grants the letters of administration. It seldom occurs here that separate suits for distribution are instituted at all, and very rarely, anywhere else than in the courts of probate. The recent case in this court, of Blackburn v. Crawford, is, in some of its features, unlike this, but the principle of that case would seem to create an estoppel in this.

On principle and authority, therefore, the judgment in the suit for administration in New York was pleadable in bar to this suit, and on that ground alone the bill should have been dismissed.

DECREE AFFIRMED.

The CHIEF JUSTICE having been of counsel for the appellee, Ferri e, did not sit in this case.


text:
Page:Copyright, Its History And Its Law (1912).djvu/198

 as to suggest the omission, by amendment, of this proviso. The use of the word "public" in both cases implies that the author cannot control private representation and opens other questions difi&cult of judicial interpretation.

It is provided (sec. ii): "That copyright may also be had of the works of an author of which copies are not reproduced for sale, by the deposit, with claim of copyright, of one complete copy of such work if it be ... a dramatic or musical composition"; provided that the required deposit of two copies shall be made, as in the case of books, on publication thereafter by the multiplication and public sale or distribution of copies.

The notice of copyright must be printed (sec. 18) on each copy, as in the case of a book in the form "Copyright" or the abbreviation "Copr.," "accompanied by the name of the copyright proprietor" and "the year in which the copyright was secured by publication." In the case of a published dramatic work the notice must be placed, as in the case of a book, upon the title-page or the page immediately following, but in the case of a published musical work the law provides that the notice "shall be applied . . . either upon its title-page or the first page of music," and this specification makes the copyright notice of doubtful validity if applied in a musical work on the page following the title-page, unless this is the first page of music.

The classification of dramatico-musical compositions under subsection (d) as dramatic works and not under subsection (e) as musical compositions, defines an opera and possibly an oratorio or cantata as a dramatic rather than a musical composition. As the dramatic author is given (sec. i, d) the comprehensive rights over reproduction "in any manner or by

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


text: Talk:Caujolle v. Ferri E/Opinion of the Court


text:
The Ariadne (80 U.S. 475)

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

This was an appeal in admiralty from the decree of the Circuit Court for the Southern District of New York; the case being one arising from a collision between the steamer Ariadne and the brig William Edwards, and the questions being purely questions of fact.

Mr. J. E. Parsons, for the appellant; Mr. E. H. Owens, contra.

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

title: The Ariadne (80 U.S. 475)


text: Talk:The Ariadne (80 U.S. 475)

title: Talk:The Ariadne (80 U.S. 475)


text:
The Ariadne (80 U.S. 475)/Opinion of the Court

The collision, which is the subject of this appeal, occurred in the night of the 13th of December, 1865, off the Jersey coast, about twelve miles from Barnegat, and eight miles from land. The brig was on a voyage from Havre to New York. The wind was north-northeast. The brig was on her port tack, with her starboard side to the steamer, and going at the rate of four or five miles an hour. She was sailing closehauled, as near as she could lie to the wind, and heading west-northwest or northwest. The steamer was bound from New York to New Orleans, and was upon one of her regular trips. She was laden with freight and carried passengers. She was on her proper course, south by west one-quarter south, and running at the rate of seven or eight knots an hour. The brig did not change her course down to the time of the collision. The steamer was first made from the brig, about five points from her starboard bow. She was not discovered from the steamer until it was too late to avoid the collision. The steamer struck her on her starboard side, abaft the main chains. The blow was of such force that it cut through into her cabin and down to the water's edge. She sunk in a short time. This libel was filed by her owners to recover damages for her loss. It was dismissed by the District Court. The decree was affirmed by the Circuit Court. The decree of the latter has been brought here by this appeal for review. In this court the controversy between the parties has been narrowed down to two points.

It is insisted by the claimant of the steamer that the brig had no green light, or an insufficient one, on her starboard side; that the collision is due to this cause, and that the steamer is blameless.

The libellants deny this impeachment as to the light, and contend that the lookout on the steamer wholly failed to do his duty; that he could, and should, have seen the brig, whether she had, or had not, a sufficient green light, in season to enable the steamer to avoid the collision, and that in this particular there is fault on her part. We shall consider the case only in these aspects.

In regard to the light on the brig the testimony, as usual in such cases, is conflicting. We think that which sustains the negative largely preponderates. We find no sufficient reason to doubt that Morgan (the brig's lookout) told the truth. He testified:

'The binnacle light used to bother me-it would frequently go out. There was something about the oil that was not right. . . When I was on the lookout I noticed our starboard light, but not until the Ariadne was very near to us. I stepped to the side of the brig, thinking that our light might not be burning, and that the Ariadne might, therefore, run into us, and then I looked at our starboard light. The light was very dim. I was, I should judge, fifty feet from the light when I looked at it, and could see it plainly. As light was then burning, I should not think it could be seen over two hundred feet.'

This testimony is fully sustained by all the witnesses, six in number, who were on the steamer. They were in positions to see the light, and must have seen it if it were distinctly visible. The probative force of these proofs is not overcome by the testimony of the libellants. Both the courts below held the charge to be established, and we see no reason to dissent from the conclusion at which they arrived.

The steamer was about two hundred feet long. She obeyed her helm with unusual quickness. When running at her then speed, she could be easily stopped in a space of about twice her length. She approached the brig in the direction most favorable for her lookout to see the hull and sails of the latter. According to the steamer's testimony, a vessel without a light could be seen the eighth of a mile. Her testimony also shows the following facts: She had but one lookout. The second mate saw the brig first. He asked the lookout if he saw her. The lookout thereupon turned and saw her. He had not seen her before. He saw no light, and could not tell which way she was heading. Malony, who was at the wheel of the steamer, says:

'I saw the brig just a moment before the first bell struck. The second mate struck first one bell, and then a second bell, and then rung again. There was not a second between. It was done as quick as lightning. . . . The Ariadne swung about a point and a half, or two points, before we struck.'

The lookout says the steamer ran about a length between the time when he first saw the brig and the time when the steamer struck her.

There is no controversy as to the facts thus stated. They are undisputed and indisputable. Certain inferences from them are inevitable.

The brig was not seen by the lookout or any one else on the steamer when she was distant as far as she could have been seen. She was not seen by the lookout at all until his attention was called to her by the mate. She was not seen by either of them until almost at the moment of the collision. It is by no means certain that the lookout would have seen her before he felt the shock but for the inquiry of the mate. He was on the port side, and had been looking, according to his own account, three minutes in the opposite direction. The discovery came too late to do any good. The catastrophe was then unavoidable. For all the purposes of this case there might as well have been no lookout on the steamer. He could have rendered, and it was his duty to render, a service of vital importance, but he rendered none. If the brig had been seen when she became visible from the steamer, or very some thereafter, the collision could have been avoided. It would have been the duty of the steamer to stop or slow her engine until everything as to the brig, necessary to be known, was ascertained. This would doubtless have been done; and, if so, the result which followed would have been averted. Indeed, it would have been impossible to occur. We think the conduct of the lookout was marked by gross carelessness, and that it was clearly one of the concurring causes of the disaster.

The waters near the city of New York are at all times crowded with shipping. Navigation there is not unlike the traveller threading his way through the mazes of a forest, with the difference that most of the objects to be avoided are also in motion. The greatest care and caution are necessary. The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment's negligence on his part may involve the loss of his vessel with all the property and the lives of all on board. The same consequence may ensue to the vessel with which his shall collide. In the performance of this duty the law requires indefatigable care and sleepless vigilance. The rigor of the requirement rises according to the power and speed of the vessel in question. It is applied with full force to the steamships belonging to our commercial marine. If this were not so, there would be no safety for other vessels. But it is equally important to vessels of that powerful class for their protection from one another. It is the duty of all courts, charged with the administration of this branch of our jurisprudence, to give it the fullest effect whenever the circumstances are such so to call for its application. Every doubt as to the performance of the duty, and the effect of non-performance, should be resolved against the vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary.

The fault of the brig does not excuse the fault of the steamer if the latter were, in any degree, a contributory cause of the collision.

Both vessels being in fault the damages must be divided.

We are not unmindful that both the Circuit and District Court came to a conclusion different from ours as to the alleged fault of the steamer.

Their judgments are entitled to, and have received, our most respectful consideration. Their concurrence raises a presumption, prim a facie, that they are correct. Mere doubts should not be permitted to disturb them. But the presumption referred to may be rebutted. The right of appeal to this court is a substantial right, and not a shadow. It involves examination, thought, and judgment. Where our convictions are clear, and differ from those of the learned judges below, we may not abdicate the performance of the duty which the law imposes upon us by declining to give our own judicial effect.

DECREE REVERSED, and the cause remanded to the Circuit Court with directions to enter a decree

IN CONFORMITY TO THIS OPINION.


text: Talk:The Ariadne (80 U.S. 475)/Opinion of the Court


text:
Carpentier v. Montgomery

ERROR to the Circuit Court for the District of California.

Carpentier brought suit against Montgomery and a number of other defendants to recover certain lands in their possession, lying on the east side of the bay of San Francisco, and described in the complaint. Answers were put in by the defendants, severally claiming distinct portions of the lands.

On the trial the plaintiff deraigned title under the children of Maria Teodora Peralta, a deceased daughter of Luis Peralta, and proved mesne conveyances from them to the extent of an undivided five and a half ninths of one-ninth of the land in question. But whether the children of Maria Teodora Peralta were entitled to any estate in the lands, upon which the plaintiff could sustain an action of ejectment against the defendants, was the question.

Luis Peralta, the father of Maria Teodora, died in August, 1851, in possession of the rancho called San Antonio (of which the premises in question were a part), leaving four sons and four daughters, and several grandchildren by a de ceased daughter, the said Maria Teodora. The four sons presented their petition for the confirmation of their claim for the entire rancho to the board of commissioners, organized under the act of Congress of March 3d, 1851, founding their claim upon certain documents establishing their father's right to the rancho, and upon an alleged devise thereof to them. Upon this petition the rancho was confirmed to the said sons in divided parcels, the portion embracing the premises in question being confirmed to Domingo and Vincente Peralta by final decree of this court in December Term, 1856. No final approved survey, however, took place under the confirmation. The defendants held under the confirmees.

On the trial the plaintiff showed by documentary evidence from the archives, that on 20th June, 1820, Luis Peralta, who was then sergeant of the presidio near San Francisco, and commissioner of the pueblo of San Jos e, presented a petition to Pablo Vincente de Sola, then Governor of California, in which he stated that, 'at the distance of eight leagues from the mission of San Jos e, in a northerly or northwesterly course along the coast, there is a creek named by the reverend fathers of the aforesaid mission, San Leandro, and from this to a little hill adjoining the sea-beach, in the same direction and along the coast, there may be four or five leagues, more or less (or about), which place and land he asks and solicits may be granted to him that he may establish a rancho, and place thereon all his goods and chattels.'

Governor Sola, on the 3d of August, 1820, ordered Captain Luis Antonio de Arguello, commandant of the presidio, to appoint an officer to put Sergeant Peralta 'in possession of the lands petitioned for, giving previous notice of it to the reverend fathers, the missionaries of the missions bordering on said land, and then place landmarks on the four points of the compass, that it may be known at all times, the extent of said lands which have been granted to him.'

On the 10th, Arguello appointed Lieutenant Martinez to execute this decree.

On the 16th, Father Duran certified, on behalf of the mission of San Jos e, that there was no objection, on the part of that mission, to the grant asked for by Paralta.

On the same day Martinez certified that, having given due notice, he 'proceeded to the said place, and in presence of the two witnesses, Nicholas Berreyesa and Juan Miranda, the boundaries which separate his (Peralta's) land were marked out to him, to wit: The deep creek called San Leandro, and, at a distance from this (say about five leagues), there are two small mountains (cerritos). The first is close to the beach; next to it follows that of San Antonio, serving as boundaries, the rivulet which issues from the mountain ranges, and runs along the foot of said small mountain of San Antonio, dividing or separating the land; and, at the entrance of the little gulch, there is a rock elevating itself in the form of a monument, and looking towards the north. On both boundaries were fixed firm landmarks; and, inasmuch as this individual does not prejudice any of the adjoining neighbors, and by virtue of the authority on me conferred, and in the name of our Catholic Monarch, Senor Don Ferdinand VII (whom God preserve), I put in possession of the said land the above-named Luis Peralta.'

This return was signed by him and the witnesses in testimony of the facts.

On the 30th of August Governor Sola, reciting that Father Chabot, of the mission of San Francisco, alleged that Don Ignatio Martinez had not fulfilled his decree of the 3d of August, and that through this fault possession had been given to Peralta of some lands pertaining to said mission, ordered that these should be withdrawn from those which were assigned to Peralta, and remain, as they were before, in favor of the neophytes of said mission.

In a paper dated September 14th, 1820, Fathers Chabot and Ordaz, on behalf of the mission, certified that inasmuch as the mission had had possession since the month of November of the previous year, granted by the superior government for agricultural purposes and the feeding of sheep, as far as a rivulet at the distance from the house of the rancho some three and a half to four leagues in the direction of San Jos e, there was 'no objection to set the boundaries of Sergeant Luis Peralta from that place up to the creek called San Leandro.'

On the 16th of September, 1820, Lieutenant Martinez reported that, in the presence of the same witnesses, he had executed the order of the governor of the 30th August, 'by appointing to him (Peralta) anew the boundaries at about one and a half league from the hill of San Antonio towards that part of San Leandro serving as the dividing-line, a rivulet (the Temescal) issuing from the mountain or hill-range, which runs down to the beach, where there is a willow grove, fixing in said place the four landmarks, which shall be valid, and not those that were designated before on the little mountain of San Antonio.'

On the 18th October, 1822, Governor Sola certified that 'this day was issued, in favor of Sergeant Luis Peralta, by the governor of this province, the certifying document for the land which had been granted to him, as appears in this folio, by the writ of possession, which the lieutenant of his company, Don Ignacio Martinez, gave him agreeably to an order issued him by the government.'

The certifying document recited the original petition of Peralta, the reclamation of the fathers of the mission, the appointment of Martinez to give possession, the performance of that order, 'by designating the boundaries, about one league and a half from the small hill of San Antonio, towards the part of the San Leandro Creek serving as a dividing-place, a small brook which falls from the mountains or heights running towards the beach, where ends a willow brake, establishing on said land the four landmarks;' and concluded by saying that this document was given 'in order that, in all time to come, it may be attested that this concession to said Sergeant Luis Peralta was made in remuneration of forty years of service in the military career.'

On the 14th of October, 1820, Sergeant Peralta addressed a letter to his captain, Arguello, complaining of having been dispossessed of the land which had been assigned to him. In that letter he insisted that he had a right to the land, and declared that he yielded up the possession only because he was compelled to do so. He replied also to the allegations of the fathers, that he did not need so much land, by saying that 'five leagues does not seem to me much, in a narrow tract, as you know it is, from the beach to the mountain range,' &c. On 23d June, 1821, Captain Arguello transmitted the memorial of Peralta to the governor, gave the history of Peralta's application, insisted upon his right to the land, and stated his claim upon the government for long and meritorious services as a soldier.

On the 15th of May, 1823, Peralta petitioned the governor directly, praying that 'the land may be returned' to him, showing that the reverend father of the mission had practiced a fraud to induce the governor to dispossess him, by which he says, 'I was deprived of the best land which had been granted to me.' He again refuted the charge that the tract was too large, by saying, 'though it appears to be large, it is not so, for two reasons-1st, because it is situated on the coast, and the shore between the beach and the top of the mountains (La Sierra) is too narrow; 2d, because in the space lying from San Leandro to the said cerrito redondo there is a great part of it forming high lands, revines, and inlets, which are not suitable for the purpose,' &c. Upon this petition, on the 30th November, 1823, the following order or decision was made:

'Let the land which by order of my predecessor, Senor Don Pablo Vincente Sola, was taken from this claimant, after having oeen granted him and possession given, for that reason be returned to him. He shall apply with this decree to the judge then commissioned (Lieutenant Martinez) for the said possession, that he may comply with it. When this be done, he shall annex all the proceedings to the expediente already formed.

'ARGUELLO.'

On the 24th December, 1824, Martinez, who was the person formerly commissioned as the judge to deliver the possession, certified that 'in compliance with the foregoing superior decree of the superior chief of the province, Captain Don Luis Antonio Arguello, the land which by order of Colonel Don Pable Vincente de Sola had been taken from Sergeant Luis Peralta, has hereby been returned to him, and he has newly been put in possession of the place called Cerrito de San Antonio and the rivulet which crosses the place to the coast where is a rock looking to the north; said Peralta has received lawful possession in presence of the same witnesses who assisted when the first possession was given to him.'

On the 7th of October, 1827, Governor Echandia issued an order requiring every individual in possession of a rancho to make a statement describing the boundaries thereof, annexing thereto the title of his possession and the foundation he may have for such possession.

In pursuance thereof Peralta returned 'a description showing the extent of the lands granted me and of which I was placed in possession since the year 1820, to wit: Along the coast of the mission of San Jos e, in a northwesterly course, there is a deep creek called San Leandro, forming the dividing boundary of said mission of San Jos e, thence to a small, round mountain called San Antonio, the dividing boundary with my neighbor, Francisco Castro, which space is a little over four leagues long, and as it is the narrowest portion of the coast, it at most contains half a league in breadth, from the mountain to the sea.'

On the 11th of February, 1844, Ignacio Peralta, a son of Luis, applied to Governor Micheltorena, on behalf of his father, for a new title, stating that the title-papers had been mislaid, and describing the land as the Rancho San Antonio, situated between the mission of San Jos e and San Pablo Point, which was granted to his father by Senor Don Pablo Vincente de Sola, and of which he was put in possession by Lieutenant Don Ignacio Martinez by superior order, any other authority being at that time unknown. The new grant to be 'to the extent expressed by the document of Governor Sola as plat of survey (design) that accompanies it, including the range of hill up to it summit, and thence to the sea.'

The governor referred this petition to Jimeno, then Secretary of State, who reported that the land shown by the plat presented had been granted twenty-two years previously, and had been occupied by the grantee since 1819, and that there was no objection whatever to the grant of a new title. The governor ordered the title to issue on the 13th of February. An instrument was accordingly drawn, which was found in the archives, declaring that Luis Peralta was 'the owner in fee of said land, which is bounded as follows, namely: On the southeast by the creek of San Leandro, on the northwest by the creek of Los Cerritos de San Antonio (the small hills of San Antonio), on the southwest by the sea, and on the northeast by the tops of the hill range,' and directing that this expediente be submitted to the Departmental Assembly. But this paper was not signed by the governor.

The plaintiff gave also parol testimony tending to prove the following facts:

That by the grant of Sola, and the other documents connected with and preceding that grant, and which had been given in evidence, the natural objects described in the original concession, and in the possession given by Martinez, could be ascertained upon the land, and that the objects called for in the second, and reduced or limited possession ordered and given on the representation of the fathers of the mission of San Francisco, and which was intended to be covered by, and included in, the final grant of Sola, could also be ascertained on the ground.

That the original possession given by Martinez was bounded by the San Leandro Creek on the south, southeast, and east, and the crest of the hills to the gap easterly of the monumental rock looking to the north, mentioned in the act or certificate of possession of Martinez; on the north and northwesterly by the creek of the cerrito of San Antonio, and on the west by the bay of San Francisco.

That the boundaries of the restricted possession were the San Leandro Creek on the south, southeast, and east, the Temescal Creek on the north and northwest, and the bay of San Francisco on the west, and that the possession was reduced to the line of the Temescal Creek.

That the sources of the San Leandro Creek and Temescal Creek spring near each other, with merely a narrow dividing ridge between them, not more than a quarter of a mile from the source of the one to the other, and that they both empty into the bay of San Francisco.

He also introduced the evidence of witnesses tending to prove the delivery of possession of the rancho of San Antonio to Luis Peralta, by Lieutenant Martinez, in 1820, and that possession was formally given, and the boundaries designated by Martinez, in accordance with the description thereof, first herein above set forth.

The plaintiff having rested his case the defendants moved the court to strike out all the evidence introduced by the plaintiff, on the ground that the same did not establish nor tend to establish a right in the plaintiff to a verdict.

The court having heard counsel thereon denied the motion, on the ground that the same was irregular in practice, and an evasion of the rule against nonsuits; but stated that, if the defendants would submit their case without evidence on their part, it would instruct the jury to render a verdict for the defendants, to which the plaintiff excepted.

The defendants thereupon declined to offer any evidence on their part, and the evidence was closed.

And the court thereupon, at the request of the defendants, instructed the jury that the plaintiff had failed to establish a case entitling him to a verdict, and that it was their duty to return a general verdict for the defendants, to which decision and instruction the plaintiff excepted. The jury thereupon rendered their verdict for the defendants; and judgment having been entered thereon, the plaintiff brought the case here on error.

Messrs. M. Blair and F. A. Dick, for the plaintiff in error, insisted that Luis Peralta's title was a perfect title under the Spanish and Mexican laws, and was protected by the treaty of Guadalupe Hidalgo, and that the confirmation of it, on the application of the sons, could not add to its strength, and could not take away the right of the daughters as coheirs of their father; and, whether so or not, that the confirmation of the title enured to the benefit of those really entitled under the original grant, their heirs and assigns; and that as no devise from Luis to his sons was exhibited on the trial of this cause, that the plaintiff was entitled to recover under the hereditary right of Maria Teodora's children.

Mr. S. O. Houghton, contra, for the defendants, denied that the title of Luis Peralta was a perfect title; and contended that even if it was, the claim of the daughters could not avail in an action of ejectment against the award of the commissioners in favor of the sons of Luis, which gave them the legal title.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Carpentier v. Montgomery


text: Talk:Carpentier v. Montgomery

title: Talk:Carpentier v. Montgomery


text:
Carpentier v. Montgomery/Opinion of the Court

To show that Luis Peralta's title was a perfect one the plaintiff produced in evidence the documents on which it was founded. They are set out in the bill of exceptions, and are the same that were before this court in the case of United States v. Peralta, when the claim was confirmed. In that case the court intimated an opinion that the title was perfect for at least a part of the rancho (embracing a part of the premises now in question), but the point was not material in the case, because the claimants were equally entitled to a confirmation, whether their father's title was perfect or imperfect, legal or equitable; so that the intimation was nothing but an obiter dictum of the judge who delivered the opinion. The title, in some of its aspects, again came before the Supreme Court of California, in 1864, in the case of Minturn v. Brower, but, as both parties in that case deemed it their interest to concede the title to be a perfect one, the observations of the court on the subject cannot be regarded as precluding further examination. Such examination, exhaustive in its character, was given in 1870 by the same court on this identical title, and on the very point in question, in the case of Banks v. Moreno; and the court, with all the documents before it which have been proven in this case, decided that the title was imperfect. If this were a case depending merely on the local land laws of California, we should be bound by that decision. But as the appellant, in case the title is adjudged a perfect one, invokes the guaranty stipulations of the treaty of Guadaloupe Hidalgo in his favor, independent of any action of the commissioners, the question ceases to be a mere local one, and devolves upon this court the duty of deciding it on its merits. An examination, however, of the reasoning of the Supreme Court of California, in the case last cited, satisfies us of its soundness. The point of the decision is, that the rancho of San Antonio never had any clearly defined boundary on the east. In this we concur with that court. The new claim now made to extend that boundary beyond the crest of the mountain, and to take in the eastern slope on the pretence that the Leandro Creek is the boundary to its ultimate source, is itself conclusive to show the uncertainty with which it has always been invested.

Luis Peralta's occupation of the rancho goes back to 1820. In that year he presented to Governor De Sola his petition for a grant, describing the tract as follows: 'At the distance of eight leagues from the mission of San Jos e, in a northerly or northwesterly course, along the coast, there is a creek named by the reverend fathers of the aforesaid mission, San Leandro, and from this to a little hill adjoining the seabeach, in the same direction and along the coast-there may be four or five leagues more or less, or about-which place and land he asks and solicits may be granted to him that he may establish a rancho.' Here, certainly, is nothing definite. Supposing the creek, San Leandro, as the point of beginning, and the little hill four or five leagues beyond, as fixed and ascertained points; and suppose the shore of the bay on the west to be meant for the boundary on that side; there is no hint of a boundary on the east. Nor is the quantity specified. Had that been done, perhaps it might have enabled a surveyor to fix a boundary by relation. This is the first and original document on which the title is based-the foundation of all the rest.

Upon this petition, the governor, by an order of August 3d, 1820, directs Captain Arguello to appoint an officer to put Sergeant Luis Peralta in possession of the lands petitioned for, and to 'place landmarks on the four points of the compass, that it may be known at all times the extent of said lands which have been granted to him.' Lieutenant Martinez being detailed for this service, on the 16th of August, 1820, reports his action as follows: 'The boundaries which separate his land were marked to him, to wit: The deep creek called San Leandro, and at a distance from this (say about five leagues), there are two small mountains (cerritos). The first is close to the beach; next to it follows that of San Antonio, serving as boundaries, the rivulet which issues from the mountain ranges, and runs along the foot of said small mountain of San Antonio, dividing or separating the land; and at the entrance of the little gulch there is a rock elevating itself in the form of a monument, and looking towards the north. On both boundaries were fixed firm landmarks. . . I put in possession of the said land the above named Luis Peralta.' Here we have, again, the two extremities of the tract along the bay, the creek San Leandro, at one end, and the rivulet that runs by the cerritos, at the other, and nothing more.

Next we have a complaint of the fathers of the San Francisco mission, that Peralta has been put in possession of a portion of their land at the north end of the tract; the result of which is that Peralta is limited, on the north, to the Temescal Creek, or Willow Grove Creek, about a league and a half south of the cerritos. This occurred in September, 1820.

On the 18th of October an entry was made in the public records to the effect, that 'this day was issued in favor of Sergeant Luis Peralta, by the governor of this province, the certifying document for the land which has been granted to him, as appears in this folio by the writ of possession, which the lieutenant of his company, Don Ignacio Martinez, gave him agreeably to an order issued by the government.' We also have the certifying document itself of the same date, which adds nothing to the definiteness of the description.

Now the grant on which the appellant's counsel relies as conferring perfect title is not the certifying document above referred to, but the previous act of directing possession to be given to Peralta, and the actual delivery of possession to him. It is perfectly manifest that Peralta could not have been put into manual possession of several leagues of land. He could only have been put into possession of a certain part or parts in the name of all; and the exterior boundaries of the tract must have been indicated by language or monuments. But we have no evidence of any description of boundaries, or monuments to designate them, except the bay on one side, and the extreme limits of the tract along the bay. The interior line between those limits is entirely wanting in all the documents thus far presented. The title relied on, therefore, is necessarily imperfect, and requires some authoritative survey to distinguish what was intended to be granted from what remained in the public domain.

If we examine the remaining documents we shall not derive any material aid to help us out of the difficulty.

In October, 1820, Peralta addressed a remonstrance to the governor against the curtailing of his tract on the north. The only expression which this paper contains going to show what the tract was which Peralta supposed was granted to him, are the following: 'The reverend father says to the honorable governor that I do not need the land, and that I occupy a great extent; but I would represent that five leagues does not seem to me much in a narrow tract, as you know it is, from the beach to the mountain range, and that not all of it is good, as my lieutenant is aware, for great portions contain hills, creeks, and ravines, not fit for the purpose.' This would seem to indicate that the rancho extended from the bay to the foot of the mountain.

In 1823, whilst the revolution was in progress, Peralta's captain, Arguello, had become Governor of California, and Peralta renewed his application to have the curtailment of his rancho annulled. He speaks of the tract which he originally applied for, as follows: 'Which tract of land, though it appears to be large is not so, for two reasons: 1st. Because it is situate on the coast, and the space between the beach and the top of the mountain is too narrow.' This would indicate the top of the mountain as his supposed boundary. The governor promptly made an order that the part which had been taken from him should be restored, and Lieutenant Martinez put him in possession accordingly; but nothing yet appears in the lieutenant's return or elsewhere to identify or fix the eastern boundary of the rancho, much less to fix it beyond the eastern slope of the mountain, as since claimed by the parties.

In 1827 some new regulations made it necessary for every proprietor to make a return of all lands occupied by him, with the titles annexed; and, in December of that year, Peralta made a return accordingly, describing his rancho as follows: 'Along the coast of the mission of San Jos e, in a northwesterly course, there is a deep creek called San Leandro, forming the dividing boundary of said mission of San Jos e; thence to a small round mountain called San Antonio, the dividing boundary with my neighbor Francisco Castro; which space is a little over four leagues long, and, as it is the narrowest portion of the coast, it at most contains half a league in breadth from the mountain to the sea.'

In 1844 Ignacio Peralta, on behalf of his father, whose title-papers he says were mislaid, petitioned the then governor, Micheltorena, to order the issue of a new title, extending to the top of the range, and accompanies his petition with a dise no, or rough map of the property. The governor ordered a grant to issue, as requested, extending to the top of the hill range, but not to prohibit the inahbitants of the Contra Costa from cutting wood for their own use. This order was not signed by the governor, and seems never to have been carried into execution. And this is the last of the documents on which the plaintiff, the now appellant, relied for a perfect title. Leaving out the proceedings of 1844, which are admitted to be imperfect, no human being can tell, from the language of the various documents, what was the eastern boundary of the rancho. It certainly would seem not to embrace the eastern slope of the hills, as is now claimed; but what it did embrace, or where it did run, is not ascertainable from any of the documents which have been adduced; and no parol testimony can aid this defect as regards the question now under consideration. Parol testimony was very properly adduced before the commissioners for the purpose of showing where equity required that the line should be run, in order to separate the rancho from the public domain. But it cannot make that title perfect which was not perfect before.

The Supreme Court of California, in Banks v. Moreno, well observed: 'The precise point under discussion is, whether or not the title of Peralta, as exhibited by the plaintiff, was a perfect title conveying the fee, and which invested him with absolute dominion over a specific parcel of land without any further action on the part of the United States; or whether, at the time of the cession of California, something remained to be done by the government which was necessary to invest Peralta with a complete legal title to the specific tract.

'In every complete grant conveying a perfect title it is essential that the thing granted be sufficiently described to enable it to be identified. In grants of real estate it is not always necessary to describe it by metes and bounds, or by a reference to actual or artificial monuments, nor by courses and distances. If the tract granted have a well-known name, and the boundaries of the tract known by that name are notorious and well-defined, a grant of the tract by its name would, doubtless, convey the title to the whole. In like manner, a grant describing the tract by reference to the known occupation of the grantor or another-or to another instrument containing a sufficient description of the premises-would be sufficient. In short, any description will suffice which identifies the land granted with such certainty that the specific parcel intended to be granted can be ascertained either by the calls of the instrument, as applied to the land, or by the aid of the descriptive portions of the grant. But it is equally certain that to constitute a complete and perfect grant to a specific parcel of land, it must, in some method, appear on the face of the instrument, or by the aid of its descriptive portions-not only that a specific parcel was intended to be granted, but it must also be so described that the particular tract intended to be granted can be identified with reasonable certainty. It would be a contradiction in terms to say that a specific tract was granted if there was nothing in the grant by which it could be ascertained with reasonable certainty what particular parcel was intended to be conveyed.'

We entirely concur in these views; and, therefore hold that the title of Peralta was an imperfect title, and necessarily required confirmation in order to vest a full legal estate in private parties.

But it is contended that the confirmation of the title enured to the benefit of the parties really interested, both at law and in equity, and not merely to the benefit of the confirmees. This is undoubtedly true so far as the segregation of the lands from the public domain and the extinguishment of the government title or claim of title is concerned; but as it respects the legal estate, the confirmation enures to the confirmees alone. The eighth and ninth sections of the act require the claimant to show not only the original title, but his own title by deraignment therefrom. Having established these the object of the inquest is attained. It satisfactorily appears that the land does not belong to the government, and the claimant appears to be the person prim a facie entitled to the legal title. Hence the thirteenth section goes on to declare that for all claims finally confirmed a patent shall issue to the claimant upon his presenting to the general land office an authentic certificate of such confirmation and a plat or survey of the said land duly certified and approved by the surveyor-general of California, whose duty it shall be to cause all private claims which shall be finally confirmed to be accurately surveyed and to furnish plats of the same.

This language is utterably irreconcilable with the hypothesis that the legal estate devolves, upon the confirmation, to any other parties than the confirmees. The patent is to be given to them, and the legal title cannot be separated from the patent.

It is true that the fifteenth section of the act declares that the decree of confirmation shall be conclusive between the United States and the claimants only, and shall not affect the interests of third persons. But this was intended to save the rights of third persons not parties to the proceeding, who might have Spanish or Mexican claims independent of or superior to that presented by the claimant; or the equitable rights of other parties having rightful claims under the title confirmed. The former class could still present their claims without prejudice within the time limited by the statute. The latter class, those equitably entitled to rights in the land under the title confirmed, were not to be cut off. Their equities were reserved. But they must seek them by a proceeding appropriate to their nature and condition. The legal title is vested in the confirmees, or will be when the requisite conditions are performed. It is not in these equitable claimants. They cannot maintain an action of ejectment against the confirmees, or those claiming under them; but must go into equity, where their rights can be properly investigated with a due regard to the rights of others. Had the daughters as well as the sons of Luis Peralta gone before the commissioners, it is possible that they would have participated in the legal advantages of the confirmation. It may now be inequitable on the part of the sons to withhold from them a due share of their father's estate. But other rights may have grown up in the meantime, rights of bon a fide purchasers and others ignorant of the equities existing between the original parties, which it would be unjust to disturb. These questions can be much better examined in an equitable proceeding than they can be in this action, in which, indeed, they are entirely inadmissible.

This view of the relative position of the parties is supported by the weight of authority. The case of Wilson v. Castro is directly in point to show the form of proceeding proper for those who claim against the confirmee. In that case the claim was confirmed to the widow, who really had no interest. The brother and sister of the owner, as his heirs at law, brought a suit in equity against the widow, and obtained a decree declaring her to be seized, as trustee, for their use. In Estrada v. Murphy, the court says: 'A court of equity will control the legal title in his [the confirmee's] hands, so as to protect the just rights of others. But in ejectment the legal title must prevail;' and it decided the case accordingly against the plaintiff in ejectment. In Banks v. Moreno, the same conclusion was reached. In that case, as in this, the plaintiff claimed under the daughters of Luis Peralta; the defendant under the sons; and it was held that the action did not lie. The same view was taken by this court in Beard v. Federy, and Townsent v. Greeley. In the last case the court uses this language: 'The confirmation only enures to the benefit of the confirmee so far as the legal title is concerned. It establishes the legal title in him, but it does not determine the equitable relations between him and third parties.'

The case is somewhat analogous to that of patents granted upon a pre emption right for public land. Whilst the patent in that case confers the legal title, and admits of no averment to the contrary, the patentee may be subjected in equity to any just claim of a third party, even to the extent of holding the title for his sole use. The grounds of equitable jurisdiction in such cases are stated in the opinion of this court in the recent case of Johnson v. Towsley.

The action of ejectment in this case cannot be maintained. The judgment of the Circuit Court is

AFFIRMED.


text: Talk:Carpentier v. Montgomery/Opinion of the Court


text:
Chew v. Brumagen

ERROR to the Supreme Court of New Jersey; the case being thus:

The Code of Procedure of the State of New York enacts by its 111th section that:

'Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113.'

The exception of this 113th section is that:

'An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.'

And by the same section:

'A trustee of an express trust within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another.'

Other sections of the code make provisions which may be referred to. Thus, the 117th enacts that:

'All persons having an interest in the subject-matter of the controversy, may be joined as plaintiffs.'

The 118th that:

'Any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.'

The 119th enacts that:

'Of the parties to the action, those who are united in interest must join as plaintiffs or defendants, but if the consent of any one who should have joined as plaintiff cannot be obtained, he may be made a defendant.'

This Code of Procedure being the law of New York, a certain Walker sold to one Chew a farm in New Jersey, taking Chew's bond for $3500, and a mortgage on the farm sold.

Soon after the bond was given Walker, the obligee, assigned the bond and mortgage to one Wood, as collateral security for the payment of $1700, and afterwards by another instrument of writing declared that the assignee held them as collateral security for the payment of $200 more. Wood, having thus become the assignee, brought suit on the bond in the Supreme Court of New York in 1853, against Chew, the obligor, and joined Walker as a defendant, he having refused to join as plaintiff; but process was not served upon Walker, nor did he appear. After his death, which occurred before the trial, on affidavit of his administratrix that he had died, the court ordered that the action should be continued against her as administratrix, but it did not appear that the order was ever served upon her. Chew, however, pleaded fraud in the sale of the farm, and claimed to recoup the damages he had sustained in consequence of the fraud, and the case went to trial upon the issue tendered by this plea. On the trial, the jury found for Wood the sum of $2091, for which judgment was given, and which Chew immediately paid.

Pending the suit, however, Wood assigned the bond and mortgage to one Braisted, and, two days after the judgment which had been recovered was paid, Braisted and Walker's administratrix joined in assigning them to a certain Brumagen. A bill was then filed in chancery in New Jersey, at the suit of Brumagen, seeking to foreclose the mortgage, and Chew's administratrix set up in defence the suit in the Supreme Court of New York, the judgment therein and the payment of the judgment; asserting that the debt which the mortgage was given to secure was thereby satisfied, and consequently that the mortgage, which was only a security for the debt, had also been satisfied. But it was decided by the chancellor that the judgment in the Supreme Court of New York was no defence to the bill, beyond the amount actually recovered by Wood and paid to him; that inasmuch as neither Walker nor his administratrix were served with process in that suit, or appeared therein, the assignee was not concluded by the judgment, and the ruling of the chancellor was affirmed in the Court of Errors and Appeals. From that decree the case was brought here.

Mr. J. H. Reynolds, for the plaintiff in error:

The courts below held that the judgment in New York, between Wood and Chew, was inconclusive, because neither Walker nor his legal representative was in fact a party, and because under the law of New York, in order to conclude the rights of Walker or his estate by the judgment, he or his representative should have been brought in as a party. This was error. The expression 'real party in interest,' as used in the code, had long been well known and understood in equity courts, both in England and America, and it meant and intended the party in whom the entire title, whether legal or equitable, was vested, as contradistinguished from a nominal party.

Assuming then, that the judgment in Wood v. Chew, was conclusive and binding upon the personal representative of Walker, and his assigns, it merged the entire bond and the mortgage as collateral to it in the judgment, and the payment of the judgment has extinguished the debt. The suit was to recover the entire sum, principal and interest.

Chew, the defendant, set up a defence which as he asserted authorized him to recoup damages by reason of the fraud in the inception of the bond to its entire amount. Upon these issues the case was tried.

By the judgment he was permitted to recoup to an amount less than the whole, and the plaintiff took judgment for the remainder.

Mr. E. T. Green, contra:

The whole effect of the judgment in New York on the bond secured by the mortgage, was simply the reduction, pro tanto, of the amount due upon the bond, and Chew's estate has the right to look to the security for the balance.

It is a settled principle that to make a judgment binding and effective, the court must have jurisdiction over both the cause and all the necessary parties thereto, over the parties and things to be affected.

Who were, then, the necessary parties to this suit in New York upon the bond, so that a judgment obtained there should be binding and conclusive? Wood was interested in the bond to the extent of $1900, it having been assigned to him as collateral security for that amount. Walker was interested in the same bond to the extent of $1600, that being the amount due to him after the satisfaction of the debt for which it was held by Wood as collateral, and Chew was interested in the bond to the extent of $3500, for that was the amount which he had bound himself to pay to Walker. It is apparent, therefore, that Wood, Walker, and Chew were the real parties in interest.

Now, the Code of Procedure of the State of New York requires that all parties in interest must be before the court to perfect an adjudication. But if the person holding the legal title is the only real party in interest under the 111th section-which is in fact the argument of the other side-it was not necessary to enact that 'an executor or administrator, or a trustee of an express trust,' might sue, without joining those beneficially interested. A 'trustee of an express trust,' without doubt, has the legal title to a chose in action, held for his cestui que trust. If so, construing the section as the plaintiff does, he can sue in his own name as the real party in interest, and the 113th section becomes a nullity. So, too, with executors; they have the legal title, but not the beneficial interest. If they could maintain an action in their own name under the 111th section as the 'real parties in interest,' why enact the 113th section? It would have no other purpose than to confer on them a right and power which they already possessed. To give this construction to the term 'real party in interest,' must necessarily be violated a plain rule of statutory construction, by depriving an express exception of all meaning and purpose whatever. In fact, the effect of this construction would be to exclude from the operation of the 111th section those who had the 'beneficial interest,' and to include those only who held the 'legal title.' And this is absurd.

What, then, was the design contemplated by the 111th section? Evidently to establish a procedure, theretofore unknown to courts of common law, and to assimilate the practice in courts of law with respect to parties, with that which governed in courts of equity.

It would be strange, if one holding a bond as collateral security for one-half its amount, could bring suit upon it in the absence and without the knowledge of the pledgor, and by negligence or collusion, permit a defence to one-half the amount to prevail, on recovering the amount necessary to pay his own claim.

Mr. Justice STRONG delivered the opinion of the court.

title: Chew v. Brumagen


text: Talk:Chew v. Brumagen

title: Talk:Chew v. Brumagen


text:
Chew v. Brumagen/Opinion of the Court

Confessedly the judgment must have the same effect given to it in the courts of New Jersey as it has in the State of New York, by the laws of that State, and either of the parties to it has, under the Constitution of the United States, a right to insist that such shall be its operation.

The question, therefore, is what was its effect in the State of New York?

If, by the assignment to him, Wood, the assignee of the bond and mortgage, was clothed with the legal interest therein, and if when he sued, Walker, the assignor, was not a necessary party to the suit, it is plain the judgment in the suit determined finally the amount of the debt for which the bond was given, and neither Walker nor his administratrix, nor any subsequent assignee of either of them can maintain that the bond was not wholly extinguished in the judgment. They were all represented by Wood, and they can claim only through him. On the other hand, if Walker was a necessary party to the suit, neither he nor those claiming under him by subsequent right can be concluded by the judgment.

By the 111th section of the Code of Procedure in New York, it was enacted that 'every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113.' The 113th section enacted thus: 'An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust within the meaning of this section shall be construed to include a person with whom, or in whose name a contract is made for the benefit of another.' Doubtless the object of these provisions was to change the common-law rule that an action must be brought in the name of the party two has the legal right, and to substitute for it the rule in equity, but with considerable enlargement. This is manifest not only in the language of the statute, but in the construction which has been given to it by the courts of New York.

Had there been nothing more than the requirement of the 111th section, that every action must be brought in the name of the real party in interest, it might be that the precise rule in equity as to parties might have been intended. But this cannot be, in view of the other sections. Thus the 117th enacts that all persons having an interest in the subject-matter may be joined as plaintiffs. The 118th enacts that any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiffs, or who is a necessary party to a complete determination and settlement of the questions involved therein. The 119th section enacts that those united in interest must be joined as plaintiffs or defendants, unless the consent of one who should have been joined as plaintiff cannot be obtained, when he may be made a defendant. The 113th section we have already quoted. That, as we have seen, enables a trustee of an express trust to sue in his own name without joining those who have a beneficial interest. It makes him the representative of the holders of mere equities. Who, then, is a trustee of an express trust within the meaning of the statute? It is plain that the law intended to class among such trustees others than those who, in equity, are regarded as technical trustees. It expressly declares that included among them shall be persons with whom, or in whose name, a contract is made for the benefit of another.

And the judicial decisions of New York have given a liberal interpretation to the description, 'trustee of an express trust,' in accordance with the apparent intention of the legislature. Thus, in Cummings v. Morris, where notes had been assigned to the plaintiff upon his agreement to give to the assignor when the notes should be collected the amount thereof in stock, it was held that the assignee might sue alone, and this though the whole beneficial interest was in the assignor. In Considerant v. Brisbane, where a promissory note had been given to the plaintiff, as executive agent of a firm, it was ruled that he might sue in his own name, because he was a trustee of an express trust. In St. John v. The American Life Insurance Company, the plaintiff was the assignee of two policies of insurance under an agreement that, if one of the policies was paid, he would pay to the wife of the assignor part of the proceeds thereof, and pay her all he recovered on the other policy. It was held that he could sue alone. Lewis v. Graham, was a case where an assignment of property had been made by a debtor in trust for certain creditors, and the assignee was empowered to pay them, returning the balance to the assignor; and it was held that the assignee might bring a suit in his own name, without joining the cestui que trusts. In Slocum v. Barry, which was an action brought by persons appointed to receive subscriptions for the Troy University against one who had signed a general subscription agreement, it was ruled they were trustees of an express trust, and it was said 'no formal or written agreement is necessary to create a trust in money or personal estate. Any declaration, however informal, which evinces the intention of the party with sufficient clearness, will have that effect.' A factor, or other mercantile agent, who contracts in his own name in behalf of his principal, is a trustee of an express trust within the meaning of the statute.

These, and other cases which might he cited, show how liberally the term 'trustee of an express trust' has been construed in order to preserve, measurably, the common-law rule, that he who has the legal right is the proper plaintiff.

If, now, we turn to the case in hand it will be found not easy to see why, if Wood was not the real party in interest when he sued upon the bond, he was not at least a trustee of an express trust. The assignment of Walker to him, though expressly stated to be for a collateral security, gave him the entire legal interest. It enabled him to employ the entire bond, if necessary, for the payment of the assignor's debt to him. Had the assignment been without reference to the purpose for which it was made, it is not doubted that the assignee would have been the real party in interest, and as such entitled to sue without joining the assignor, and this though in fact made as a collateral security. The legal effect of the transfer cannot be different because the purpose of it was expressed. It is to be observed that Walker's assignment was not of part of the bond, making Wood and Walker joint owners, as was the case in Lewando v. Dunham, where the agreement was that the assignor should have half the judgment. Walker's rights were not concurrent with those of his assignee. They were subordinate. He had nothing to get until Wood's claim was entirely satisfied. By his assignment he substituted Wood in his place to demand and receive payment of the bond, and agreed to look to Wood for what remained after his notes were satisfied. Surely after the assignment he had no right to demand anything from Chew. How then had he any real interest in the bond? He had an interest in what Wood might collect by virtue of the bond, but that is a different thing from an interest in the bond itself. And Wood, by taking the assignment expressly as a collateral security, undertook to account to his assignor for the property assigned. He became the holder of the legal right under an express trust to hold the beneficial interest or the money collected primarily for himself, and secondarily for his assignor. If faithless to his trust, if he colluded with the obligor in the bond, he was responsible to his cestui que trust.

If then, as we think, Wood by the assignment became the trustee of an express trust, neither Walker nor his personal representative was a necessary party to the suit which was brought upon the bond. They were represented by the trustee, and the judgment which he recovered settled finally against them, and all claiming under them as well as against Wood, the amount recoverable. Such, in our opinion, was the legal effect of the judgment in the State of New York. And the plaintiff in error has a constitutional right to have the same effect given to it in the State of New Jersey. The learned court, therefore, erred in decreeing a foreclosure of the mortgage. The complainant's bill should have been dismissed.

DECREE REVERSED, and the cause remitted with directions to proceed.

IN ACCORDANCE WITH THIS OPINION.

title: Chew v. Brumagen/Opinion of the Court


text: Talk:Chew v. Brumagen/Opinion of the Court


text:
Page:Copyright, Its History And Its Law (1912).djvu/199

 any method whatsoever" while the musical author is limited (sec. I, e) in respect to mechanical reproductions, it would seem to follow that the author of an opera may retain absolute control over mechanical reproduction, as the author of a non-musical drama retains absolute control over phonographic or other reproduction of his drama. This would seem to confine the requirements that the author of a musical composition permitting mechanical reproduction should license any manufacturer, to musical compositions which are not dramatic, i.e., to instrumental compositions or to songs and other vocal music not associated with drama. As an overture to an opera is an integral part of the dramatico-musical composition, it would even seem that an overture which is part of an opera, or possibly an orchestral introduction or interlude in an oratorio or cantata, would not be subject to the mandatory license provided as to musical compositions. But this question has not yet come before the courts.

Dramatic and musical works are not mentioned in the manufacturing and affidavit provisions (sees, 15, 16, 17) which are specifically confined to "the printed book or periodical specified in section 5, subsections (a) and (b)," while dramatic and musical compositions are classified in subsections (d) and (e). It might be alleged that dramatic or musical compositions in book form or produced as books from type or by lithographic or photo-engraving process should be classified as books and subjected to the manufacturing provisions; but this is distinctly not the letter of the law. This exception was specifically upheld for music in the case of Littleton v. Ditson in 1894, by Judge Colt in the U.S. Circuit Court in Mcissachusetts, where the defense that there was no copyright in certain songs because the music sheets


text:
French v. Edwards (80 U.S. 506)

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

This was an action for the possession of a tract of land situated in the county of Sacramento, in the State of California, 'commencing at the corner of Main and Water Streets of the town of Sutter, at the east bank of the Sacramento River; running thence, in a northerly direction, up and along said river one-half of a mile; thence in an easterly direction one mile; thence southerly, at right angles, one-half mile; and thence westerly, at right angles, one mile, to the place of beginning, containing three hundred and twenty acres.'

The plaintiff derived his title by deed from a certain R. H. Vance, dated March 1st, 1862. Vance acquired his title through sundry mesne conveyances from John A. Sutter, to whom a grant of land, including the premises in controversy, was made in June, 1841, by the then governor of the Department of California. This grant was, in March, 1852, submitted to investigation under the act of Congress of March 3d, 1851, to ascertain and settle private land claims in California, and was adjudged valid and confirmed by a decree of the Board of Commissioners created under that act, and by the District Court and the Supreme Court of the United States, to which the decision of the board was carried on appeal. A patent of the United States pursuant to the decree followed to the grantee, bearing date in June, 1866. As this patent took effect by relation as of the day when the proceedings for its acquisition were instituted, in March, 1852, all the title and rights, which it conferred to the premises in controversy, enured to the benefit of the plaintiff claiming under the patentee, although the deed to him was executed before the patent was issued.

The defendants asserted title to the premises under a deed executed by the sheriff of Sacramento County upon a sale on a judgment rendered for unpaid taxes assessed on the property for the year 1864, and the whole case turned upon the validity of this tax deed.

By an act of California, passed in 1861, the district attorneys of the several counties of the State are authorized and required to commence actions for the recovery of taxes assessed upon real property and improvements thereon, which remain unpaid after a prescribed period. Such actions are to be brought in the name of the people in the courts having jurisdiction of the amount claimed in the counties where the property is situated, against the parties delinquent, the real property and improvements assessed, and against all owners or claimants of the same, known or unknown. The manner in which process issued in such actions shall be served, actually upon the defendants if found, and constructively upon defendants absent from the county, and upon the real property and improvements, is specially prescribed. The answers which shall be allowed therein are also designated, and all acts required between the assessment of the taxes and the commencement of the actions are declared to be directory merely. Personal judgments are only authorized against defendants, who are actually served with process or who appear in the actions; but judgments can be rendered, upon service of process by posting, against the real estate and improvements for the taxes assessed, severally against each, if they belong to different owners and are separately assessed, and jointly against both if they belong to the same owners.

The act regulating proceedings in civil cases generally in the courts of the State, passed in 1851, and its several amendments, so far as they are not inconsistent with the special provisions of the act of 1861, are made applicable to proceedings under the latter act for the recovery of delinquent taxes, subject to the proviso that the sheriff in selling the property under the judgment 'shall only sell the smallest quantity that any purchaser will take and pay the judgment and all costs.' By the act of 1851 the sheriff is required to sell property under ordinary judgments to the highest bidder.

A further act of the State, passed in May, 1862, in relation to suits of this character, provides for service of process by publication in a newspaper, as well as by posting, and authorizes the court, in enforcing the lien for taxes, to exercise all the powers which pertain to a court of equity in the foreclosure of mortgages, but at the same time it declares, that when the decree of the court contains no special directions as to the mode of selling, 'no more of the property shall be sold than is necessary to pay the judgment and costs.'

The judgment under which the sale was made for which the deed in suit was executed to the defendants, was rendered in October, 1865, in an action brought against R. H. Vance, who had transferred his interest to the plaintiff in March, 1862, and against John Doe, Richard Roe, and the real estate in controversy. It found that $113.75 of taxes were due on the property for the year 1864, and for that sum and the taxed costs, $37.65, and accruing costs, it directed that a sale of the property, or so much thereof as might be necessary, should be made in accordance with the statute, and the proceeds applied to pay the judgment and costs.

The deed of the sheriff did not show a compliance in the sale of the property with the requirements of the statutes mentioned. It did not show that the smallest quantity of the property was sold for which a purchaser would pay the judgment and costs, or that any less than the whole property was ever offered to bidders, or that any opportunity was afforded them to take any less than the entire tract and pay the judgment and costs. The recitals of the deed were that the sheriff sold the land described to 'the highest bidder,' and for 'the largest sum bid for said property,' language which imported that the entire tract was offered in one body, and that there were more than one bidder, and of course that different sums were bid for it in this form.

The court instructed the jury to find for the defendant; to which instruction the plaintiff excepted. Verdict was rendered on 3d of April, 1867; the bill of exceptions was signed and dated on the following 13th, and judgment on the verdict was entered on the following 26th, the court not having adjourned until after this date.

On error brought by the plaintiff the main question was whether the departure of the officer from the requirements of the statute rendered the sale invalid; a minor one-of practice-being to the bill of exceptions.

Messrs. E. Casserly and D. Lake, in support of the ruling below:

1. The bill of exceptions, not having been tendered and signed at the trial, forms no part of the record, and, therefore, cannot be considered on his writ of error.

2. The recitals in the sheriff's deed show compliance with the statute. Every presumption is in favor of the deed, which was made as the result of an action at law, and bears no analogy to a conveyance by a tax collector. The 'highest bidder' was the man who offered to pay the judgment and costs for the least quantity of land, and 'the largest sum bid' was the amount of the judgment and costs in connection with the least quantity of land, in other words, the sum which involved the highest appraisement of the value of the tract purchased.

3. Policy and presumptions are in favor of purchasers under sheriff's deed.

4. The statute of California is directory as to the mode of executing the writ, especially under the decisions of the Supreme Court of that State.

5. The remedy of the judgment debtor for a violation of law by the sheriff in the manner of executing the writ is by application to the court to set aside the sale. The sheriff is also liable in damages.

6. Recitals in a sheriff's deed, when not required in law, do not vitiate.

Mr. S. O. Houghton (a brief of Mr. J. Reynolds being filed), contra, for the plaintiff in error.

Mr. Justice FIELD having stated the case, delivered the opinion of the court, as follows:

title: French v. Edwards (80 U.S. 506)


text: Talk:French v. Edwards (80 U.S. 506)

title: Talk:French v. Edwards (80 U.S. 506)


text:
French v. Edwards (80 U.S. 506)/Opinion of the Court

There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such generally are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.

These positions will be found illustrated in numerous cases scattered through the reports of the courts of England and of this country. They are cited in Sedgwick's Treatise on Statutory and Constitutional Law, and in Cooley's Treatise on Constitutional Limitations.

Tested by them the sale of the sheriff in the case before us cannot be upheld. The provision of the statute, that he shall only sell the smallest quantity of the property which any purchaser will take and pay the judgment and costs, is intended for the protection of the taxpayer. It is almost the only security afforded him against the sacrifice of his property in his absence, even though the assessment be irregular and the tax illegal. The proceedings in the actions for delinquent taxes are, as against absent or unknown owners, generally ex parte, and judgments usually follow upon the production of the delinquent list of the county showing an unpaid tax against the property described. Constructive service of the process in such actions by posting or publication is all that is required to give the court jurisdiction; and the delinquent list certified by the county auditor is made prim a facie evidence to prove the assessment upon the property, the delinquency, the amount of taxes due and unpaid, and that all the forms of law in relation to the assessment and levy of such taxes have been complied with. When the owner of the property is absent and no appearance is made for him, this prim a facie evidence is conclusive, and judgment follows as a matter of course. From the sale which ensues no redemption is permitted unless made within six months afterwards, except in the case of minors and persons laboring under some legal disability.

It is evident from this brief statement of the character of the proceedings and of the evidence permitted in these actions for delinquent taxes, that the provision in question is of the utmost importance to non-resident or absent taxpayers, and that in many cases it affords the only security they have against a confiscation of their property under the forms of law.

It is plain to us, upon a consideration of the different statutes of California upon this subject, that whilst the legislature of that State intended to prevent by the strictest proceedings the possibility of any property escaping its proportional burden of taxation, it also intended by the provision in question to guard against a wanton sacrifice of the property of the taxpayer.

In the present case, real property situated near the second city in size of California, and the capital of the State, extending one-half a mile along the river Sacramento, and running back one mile, was sold, according to the recitals of the deed, in one body, for less than one-twentieth of its assessed value. It is hardly credible that a less portion than the whole of this large tract would not have been readily accepted and the judgment and costs, amounting to only one hundred and fifty-five dollars and forty cents, been paid, had any opportunity to take less than the entire tract been afforded to purchasers. Be this, however, as it may, it was incumbent upon the officer to afford such opportunity, and not to offer the whole trace at once to the highest bidder.

By the laws of Georgia, of 1790 and 1791, the collector of taxes in that State was authorized to sell the land of the delinquent only on the deficiency of personal estate, and then only so much thereof as would pay the amount of the taxes due, with costs. In Stead's Executors v. Course, which came before this court, it appeared that a sale was made under these laws of an entire tract of four hundred and fifty acres, without specifying the amount of taxes actually due for which the land was liable; and the court said, Mr. Chief Justice Marshall delivering its opinion, that the sale ought to have been of so much of the land as would satisfy the tax in arrear; and if the whole tract was sold when a smaller part would have been sufficient, the collector exceeded his authority; and a plea founded upon the supposed validity of the title conferred by the sale could not be sustained.

By a law of New Hampshire, in force in 1843, it was provided that so much of the delinquent taxpayer's estate should be sold as would pay the taxes and incidental charges. In Ainsworth v. Dean, which came before the Supreme Court of that State, it appeared that a fifty-acre lot was offered and sold in one body, and the court held the sale to be void, observing that no regard appeared to have been paid to the provision mentioned in the statute, and that no reason was given why the law was not complied with, 'if, indeed, any reason could be considered as sufficient.' A similar decision was made by the Supreme Court of Maine upon a similar clause in one of the statutes of that State. And numerous analogous adjudications will be found in the reports. They all proceed on the principle stated by the Supreme Court of Michigan, that 'what the law requires to be done for the protection of the taxpayer is mandatory, and cannot be regarded as directory merely.'

But it is contended that inasmuch as the sale in the present case was had under a decree of a court, the same presumptions must be indulged to sustain the action of the sheriff that would be entertained to uphold ordinary sales made by him under execution; and that he is not to be held to the same strictness in his proceedings that he would be if he had acted without the decree, solely under the statute. And several cases are cited from the reports of the Supreme Court of California, showing that all reasonable presumptions are indulged in support of sales on execution, and that such sales are not rendered invalid by reason of a want of conformity to statutory provisions as to the time, notice, and in some particulars, manner of the sale.

But the obvious answer to this position is, that here there is no room for presumptions. The officer recites in his deed the manner in which he sold the property, and from the recitals it appears that the sale was made in conformity with directions which the statute, applicable to the case, in effect declares shall not govern sales upon judgments for delinquent taxes. Presumptions are not indulged to sustain irregular proceedings of this character, when the irregularity is manifest. Presumptions are indulged to supply the place of that which is not apparent, not to give a new character to that which is seen to be defective. The courses prescribed for the officer in the conduct of sales upon ordinary judgments under the act of 1851, and upon judgments for delinquent taxes under the act of 1861, are entirely unlike, and usually lead to different results. The general authority of the officer in judicial sales under the act of 1851, in the exercise of which he has a large discretion, is limited and defined when applied to sales under judgments for delinquent taxes, by the provision declaring that the sheriff in selling the property assessed 'shall only sell the smallest quantity that any purchaser will take, and pay the judgment and all costs'-language which imports a negative upon a sale in any other way. The fact that in some cases no purchaser at the sale may, perhaps, be willing to take less than the whole property and pay that amount, does not dispense with the duty of the officer to comply with the law.

It is also contended that the recitals in the deed were not required, and therefore do not vitiate the deed, but the cases cited fail to support the position as broadly as here stated. They only show that a defective or erroneous recital of the execution, under which a sheriff has acted, will not vitiate his deed if the execution be sufficiently identified. Every deed executed under a power must refer to the power. As an independent instrument of the holder of the power it would not convey the interest intended. The deed of a sheriff forms no exception to the rule. But it is not essential that the execution, or judgment under which he acted, should be set out in full, or that his proceedings on the sale should be detailed at length. It is sufficient if they be referred to with convenient certainty, and any misdescription not actually misleading the grantee would undoubtedly be considered immaterial. But if the manner in which the power is exercised is recited, it being a proper matter for recital, then the recital is evidence, not against strangers, but against the grantee and parties claiming under him. Thus, if a sheriff should refer in his deed to an execution issued to him, and recite that in obedience to it and the statute in such case provided, he had sold the property to the highest bidder, it would be presumed that he had done his duty in the premises, given the proper advertisement, and made the sale at public auction in the proper manner. But if he should go farther and recite that he had sold the property, not at public auction, but at a private sale, the deed would be void on its face, the sale by auction being essential to a valid execution of the authority of the sheriff. The vendee, by accepting the conveyance with this solemn declaration of the officer as to the manner in which his power was exercised, would be estopped from denying that the fact was as recited.

It is unnecessary to express an opinion whether in any case of a sale on a judgment for taxes under the special provision of the statute of California, any presumption can be indulged that the officer had complied with its directions when the fact does not affirmatively appear. It is sufficient that the recitals in his deed of what he did with respect to the sale under consideration show that these directions were disregarded by him in that case. It may also be added that the return of the officer corresponds with these recitals.

The objection to the bill of exceptions, that it does not purport to have been tendered and signed during the trial, is not tenable. It shows that the exceptions were taken at the trial, and that is sufficient. It is dated during the term, and was in fact filed before the judgment on the verdict was entered.

JUDGMENT REVERSED, AND THE CAUSE REMANDED FOR A NEW TRIAL.


text: Talk:French v. Edwards (80 U.S. 506)/Opinion of the Court