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

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text: Croxall v. Shererd

title: Croxall v. Shererd


text: Talk:Croxall v. Shererd

title: Talk:Croxall v. Shererd


text:
Croxall v. Shererd/Opinion of the Court

THIS was a writ of error to the Circuit Court of the United States for the District of New Jersey.

Robert Morris Croxall, the plaintiff in error, in September, 1863,-the year is important,-brought ejectment in that court to recover certain premises in New Jersey. The jury found a special verdict, in substance thus:

On the 15th of November, 1793, Robert Morris, being seized in fee simple of certain lands in the State just named, an indenture tripartite was made between him, of the first part, Charles Croxall and Mary, his wife, of the second, and Robert Morris, Jr., Adam Hoops, and Aaron Dickinson Woodruff, of the third. The deed set forth that for the better settling and assuring of the lands therein described, and intended to be conveyed and settled upon the uses and subject to the trusts, and for the purposes thereinafter limited, and in consideration of ten shillings paid to the said Robert Morris by the said Robert, Jr., Adam, and Aaron, the said Robert Morris thereby conveyed to the parties of the third part, and to their heirs, the land situated, &c. The habendum was thus:

'To have and to hold the said messuage, lands, &c., to the said Robert, Jr., Adam, and Aaron, their heris and assigns, to the uses, trusts, intents, and purposes hereinafter mentioned, limited, expressed, and declared of and concerning the same; that is to say, to the use and behoof of the said Charles Croxall and his assigns, for and during the term of his natural life; and from and immediately after the decease of the said Charles to the use and behoof of the said Mary, his wife, and her assigns, for and during the term of her natural life, in case she shall happen to survive the said Charles; and from and after the determination of the said estates so limited to them, the said Charles and Mary, his wife, for their several and respective lives, to the use and behoof of the said Robert, Jr., Adam, and Aaron, and their heirs, for and during the lives of them, the said Charles and Mary, his wife, and the life of the longer liver of them, upon trust to preserve the contingent uses and remainders thereof, hereinafter limited, from being destroyed, and to and for that purpose to make entries as occasion shall require, but not to convert any of the profits of said premises to their own uses, but nevertheless in trust to permit and suffer the said Charles, and his assigns, during his natural life, and after his death, the said Mary, his wife, and her assigns, during her natural life, to receive and take the rents, issues, and profits of all and singular the said premises, with the appurtenances, to and for their respective uses and benefits; and from and immediately after the death of the survivor of them, the said Charles and Mary, his wife, then to the use and behoof of the heirs of the body of the said Mary, by her present husband lawfully begotten, or to be begotten, and to the heirs of his, her, and their bodies lawfully to be begotten; and in default of such issue, then to the use and behoof of the said Robert Morris, party of the first part to these presents, and of his heirs and assigns forever, and to or for or upon no other use, trust, intent, or purpose whatsoever.'

The grantees thereupon became seized of the premises, and Charles Croxall and his wife, and their assigns, occupied and possessed them, and received and enjoyed the profits until the premises were divided as hereinafter stated among the children of the said Charles and Mary; Charles Croxall, prior to 1817, having erected a mansion-house upon that part of the premises now in dispute.

Mary, the wife of Charles Croxall, was the daughter of the grantor, Robert Morris, and was married to the said Charles long prior to the making the indenture, and had by him before, as well as after it was executed, several children, all of whom died unmarried and without issue in the lifetime of their parents, except four, namely: Thomas, Daniel, Ann Maria (who intermarried with Claudius Legrand), and Morris Croxall, who severally survived their parents, the said Charles and Mary,-the said Thomas being the eldest, and having been born prior to the execution of the said deed.

Mary Croxall died in July, 1824, and Charles Croxall in November, 1831. Thomas Croxall was married in the year 1813, and had nine children,-three of whom died without issue in the lifetime of their father. The remaining six, of whom one was Robert Morris Croxall, the plaintiff, survived the said Thomas, and were still living. This Robert Morris Croxall, the only surviving son, was born on the 19th of March, 1821.

Thomas Croxall died in October, 1861.

On the 26th June, 1798, Charles Croxall and Mary, his wife, for the consideration of five shillings, conveyed the land by deed of bargain and sale to J. and W. Gallagher, their heirs and assigns, for and during the life of the said Charles, and after his death during the life of the said Mary, if she should survive him, in trust out of the rents and profits to pay certain debts of the said Charles, and to enable the said Mary to receive any sum, not exceeding four hundred dollars per annum, and after the debts were satisfied and the trustees reasonably compensated, to convey back the premises to the said Mary, her heirs and assigns.

On the 11th July, 1804, the Gallaghers conveyed the lands to Mary Croxall, to hold the same during life.

In December, 1807, the Court of Errors and Appeals of New Jersey, in a suit in chancery, wherein the Gallaghers were complainants, and Charles and Mary Croxall were respondents, decreed that the appellants, upon certain terms and conditions set forth, should deliver possession of the entire estate to Charles and Mary Croxall, and that they should convey the same to the said Mary, her heirs and assigns, pursuant to their agreement of June 26th, 1798. The conditions of the decree were complied with, and the Gallaghers conveyed to Mary Croxall accordingly.

On the 1st of July, 1814, Charles and Mary Croxall executed to their two sons, Thomas and Daniel, a deed of bargain and sale for one undivided half of the property, with a covenant that they had done nothing to encumber the estate, and that they would warrant and defend against all persons claiming under them, or either of them. There was also a covenant for further assurances.

On the 9th of May, 1808, all the interest of Charles Croxall in the premises was sold under execution to William McCullogh, and a sheriff's deed executed. On the 17th of May, 1808, McCullogh sold and conveyed to one Milner, who on the next day, conveyed the premises to A. D. Woodruff, Peter Gordon, and Jonathan Rhea, their heirs and assigns, to hold them during the natural lives of Charles and Mary Croxall, in trust, for the sole and separate use of Mary during life, and also to preserve the same from waste, so that after her death the same might enure to the heirs of her body by the said Charles Croxall, to the uses declared by the deed tripartite of 15th November, 1793, for the same premises. Shortly after the execution of the deed last mentioned, and before the application to the legislature of New Jersey, by Thomas Croxall, hereafter mentioned, Woodruff and Rhea died, leaving Gordon the sole surviving trustee, under the deed executed by Milner. Before that application also, Thomas, Daniel, and Anna Maria Croxall had arrived at majority, and Anna Maria had married, as before stated. Morris Croxall arrived at majority in 1820. Prior to that time and to the application to the legislature, Gordon was his guardian.

In November, 1817, Thomas Croxall presented a petition to the legislature, asking for the partition of the premises. The petition stated that the title and right of possession for life had become vested in Mary Croxall; and that in the year 1814, she had, under the advice of counsel, conveyed to the memorialist all her right and title to the undivided part of the estate to which he, as an heir, laid claim. The aid of the legislature was invoked for the reason, as stated, that difficulties had arisen among the different branches of the family in relation to the property, that the estate was so situated as not to produce to its respective owners the income which it ought to yield, and that causes of litigation frequently occurred. Charles and Mary Croxall, Daniel Croxall, Legrand and wife, and Morris Croxall, by Peter Gordon, his guardian, submitted a remonstrance. The remonstrance was afterward withdrawn, and with the consent of all the parties, an act of the legislature was passed February 14, 1818, ''which appointed three commissioners, with power to divide the estate into four equal parts, and to set off and apart to each of the children of Charles and Mary Croxall, one equal fourth part by metes and bounds and in severalty. The was accordingly done. The premises in dispute in this case are a part of the share set off to Morris Croxall''. The heirs afterwards mutually released and quit-claimed to each other according to the partition so made. Charles and Mary Croxall joined in the deeds. The deeds from Morris Croxall, and the deed to him, were executed after he arrived at the age of twenty-one years. Charles and Mary Croxall reserved for their use, during their lives, a part of his share. This was not embraced in their deed to him. The premises in dispute are a part of what was reserved. Thomas and Daniel Croxall, with Legrand and wife, in 1819, upon the execution of the deeds to them respectively, took possession in severalty of their respective shares, and held and enjoyed the same until they severally sold and conveyed to Garrett D. Wall, as hereafter stated. Morris Croxall did the same with respect to his share, except as to the part reserved for the use of his father and mother, which they occupied-he living with them. Their occupancy continued until the death of Mary, in 1824. Charles continued his occupancy after her death, until he also sold and conveyed to Wall. The deeds of the several parties to Wall were all executed in the year 1825. The deed of Morris includes the land in dispute in this case. At the time of the conveyance by Thomas Croxall, Wall held three mortgages upon the premises constituting his share, and had also bought the same, at a sale upon execution, and received a deed from the sheriff. When Daniel conveyed, Wall held a mortgage upon his share, and had also bought in the property at a sale under execution, and received the sheriff's deed accordingly. Wall had also taken up a mortgage executed by Morris Croxall before Morris conveyed to him. Wall is dead. The mortgages are held by his family as muniments of title. On the 13th of September, 1825, Charles Croxall, his wife being then dead, released and quitclaimed to Wall, all his interest in the entire premises so conveyed to Wall, whether that interest was in his own right or in right of his deceased wife. Wall paid the full value of the several parcels of the property at the times when the same were respectively conveyed. The lands have since been greatly increased in value, by improvements put upon them by Wall, and those who purchased from him. A large portion of the town of Belvidere now stood upon them.

On the 25th January, 1827, Wall conveyed to Shererd, the defendant in the case, by deed of bargain and sale, for the consideration of $2200, the full value of the property at the time, a portion of the premises. They now made part of the town of Belvidere. Upon the making of the several deeds to Wall he immediately entered into possession under the conveyances; ''and Shererd, upon the making of the deed of conveyance to him by Wall, immediately entered into possession as the owner, and has ever since been in possession, and for one year prior to the making of the deed he had been in possession as the tenant of Wall. Possession was obtained by the defendant by a fair bon a fide purchase of the property in question, of a party in possession, and supposed to have a legal right and title thereto''.

Upon this special verdict, the court below gave judgment for the defendant. The case was now on error in this court.

To understand the case fully, it is necessary to state that in New Jersey the legislature, by a statute of August 25th, 1784 (explained by one of March 3d, 1786, and repealed apparently by one in 1820), had enacted that—

'All devises heretofore made in tail as aforesaid, which have not already passed through one descent since the death of the testator, and also all such devises which shall hereafter be made in tail of any kind, shall be deemed, taken, and adjudged to vest in and entitle the person to whom the same may descend, agreeably to the devise or entailment, after the decease of the first devisee, to all the estate in the devised premises which the testator was entitled to and might or could have devised; and that no entailment of any lands, or other real estate, shall continue to entail the same, in any case whatever, longer than the life of the person to whom the same hath been or shall be first given or devised by such entailment.'

Also, that an act to abolish fines and recoveries was passed June 12th, 1799, as on the following day an act declaring that from that day 'no statute of the Parliament of England or Great Britain should have force within the State of New Jersey.'

Also, that (by act of June 5th, 1787, section 2d),

'Thirty years' actual possession of any lands, tenements, or other real estate, uninterruptedly continued as aforesaid,. . . wherever such possession was obtained by a fair bon a fide purchase of such lands, tenements, or other real estate, of any person or persons whatever in possession, and supposed to have a legal right and title thereto, or of the agent or agents of such person or persons, shall be a good and sufficient bar to all prior locations, rights, titles, conveyances, or claims whatever, not followed by actual possession as aforesaid, and shall vest an absolute right and title in the actual possessor and occupier of all such lands, tenements, or other real estate.'

The act had the usual exceptions in favor of infants, feme coverts, &c., but not others.

The case was argued at much length, and most interestingly, on the whole learning of estates tail, contingent remainders, the rule in Shelley's case, and how far affected by the statutes of New Jersey of 1786, 1799, and 1820, the different qualities of legal and equitable estates in connection with the particular subject, the effects of the different sorts of assurances at common law and under the statute of uses, as also on the more usual learning of the private statute of 1818 and the statute of limitations of 1787. The fact that the court apparently deemed it proper to rest its judgment on these last grounds chiefly, and 'not to go beyond them,' will be a sufficient excuse for a very slight or no report of so able and learned a discussion at the bar.

Messrs. Reverdy Johnson, Brent, and Merrick, for the plaintiff in error:

The plaintiff, Robert Morris Croxall, is the great-grandson of Robert Morris, and claims the benefit of the tripartite deed of settlement, made in 1793. Mr. Morris, known as the financier of our Revolution, settled the property in question by this trust upon his son-in-law, Croxall, for life, and after his death, if his wife survived, then upon his said wife, who was Mary Croxall, the daughter of Mr. Morris, for life, and in case of the determination of said life estates, to trustees to preserve contingent remainders, and after the death of the survivor of Charles and Mary Croxall, for the use of the heirs of the body of said Mary by Charles, and the heirs of his, her, or their bodies forever, and upon the failure of such issue, to the heirs of said Robert Morris.

Mary Croxall did not survive her husband, but died in July, 1824, leaving her son Thomas, the heir of her body begotten by Charles, and in whom, as we maintain, the contingent remainder vested at her death subject to the outstanding life estate in Charles Croxall, who did not die until 1831.

The New Jersey statute of 26th August, 1784, does not abolish entails or enable the tenant to do so. It only provides that estates tail shall only continue during life of the first taker who dies seized of the entail as held by the courts of New Jersey, and the next heir takes per formam doni, but takes in fee.

The questions arising on this record will be—

1. Whether, by the deed of settlement, Thomas was not the first tenant in tail? If so, as he survived until 1861, his son, the plaintiff in error, would inherit the property by primogeniture, taking, however, a fee, under the statutes of New Jersey.

2. If Mary Croxall, and not her son Thomas, became the first tenant in tail under the rule in Shelley's case, whether, as she survived until 1824, and the act of 26th August, 1784, restricting the entail, was itself repealed in her life by the act of 1820, the entail of which she was seized under the deed of 1793, did not continue and pass at her death in 1824 to her son Thomas, as second heir in tail, and at his death in 1861 to his son, the plaintiff in error, no act of the previous tenants in tail having destroyed the entail?

3. Whether, in the absence of a good paper title in the defendant in error, his possession, taken and held under the deeds of the tenants of the precedent estates, can operate to bar the plaintiff, whose title per formam doni accrued only in 1861, after the death of Thomas Croxall, the first or second tenant in tail, as he may be held to be?

The deed of settlement is in form a bargain and sale for a nominal consideration, and therefore it raises the first use impliedly in the trustees, and they took the legal title.

[The counsel then went into a learned argument to show that Thomas Croxall was the donee or first tenant in tail, and that he took a legal estate.]

Assuming our positions here to have been made out, conceding that Thomas would have been the first heir in tail, it will probably be said that the private act of February 14th, 1818, authorizing a partition, virtually annulled the entail and invested the heirs apparent with a title where none existed before.

We deny the legality of that act.

If the act be a legal one, then the legislature not only destroyed the entail created by the grantor, but confiscated the reversion in his heirs at law, and all this on the petition of private parties, some of whom only represented life estates, and others represented not even a 'scintilla juris.'

The legislature, we must think, were imposed on by ex parte allegations made in the proceedings which led to the enactment of this private act.

The parties protesting withdraw their opposition, and the act passed for a division of Belvidere, as if all parties in interest had assented.

This act assumes, incorrectly, a clear estate tail in Charles and Mary Croxall, if the rule in Shelley's case applies, and is obviously based on their assent, they being, according to the assumption in the act, the tenants of the inheritance, and willing that it should go at once to their children by an act of partition in consideration of the annuity mentioned.

The legislature, it is to be observed, use no language to prejudice the rights of third parties, but merely authorize a partition among the parties before them, assuming that they represented a vested inheritance.

There are certain rules about this class of acts-a dangerous class, perhaps, in this country-well settled, and necessary to be remembered.

The presumption of law is, that in private acts the legislature only bind the parties before them, and not strangers or third parties. The presumption must be made certainly in regard to this act, which on its face breathes no aggressive spirit towards other parties.

No greater title can be conferred on the parties by a private act than they possessed before.

Private acts passed on petition of parties are to be construed merely as private agreements.

Blackstone shows that consent of all parties having remote interest should be obtained.

Private statutes do not bind strangers, unless they have a clause to that effect.

In this case no party representing the inheritance was privy to the private act; nor were the trustees, or their representatives, under the deed of 1793, consulted. Gordon was not a substituted trustee.

It was decided, indeed, in Westby v. Kiernan, reported by Ambler, that a private act passed to enable a tenant in tail to raise money out of the entailed estate, bound the issue in tail and the remainder, because tenant in tail could have effected the same object by a common recovery. But, in New Jersey, the tenant tail cannot bar his issue, and he has no power to alienate but during his life; nor was there, according to our construction, any person before the legislature, representing any estate or interest, greater than a life interest.

In New Jersey, especially, the courts have gone far to restrain legislative control over private property, and in no form can it take A.'s property and give it to B. The case of Scudder v. Trenton Delaware Falls Company announces most conservative views on this topic.

Nor could this private act change the estates as held under the old deed of 1793. Thistle v. The Frostburg Company seems to be much in point.

We do not deny the power of the legislature to abolish the entail, but we deny that they have so intended or expressed that intention by this act of legislation. And certainly courts will not strain a private act to make it divest the right of parties not uniting in obtaining the act.

But we must recover even if Mary Croxall was first tenant in tail. [The learned counsel then argued at length in support of this position, not necessary, in view of the concessions made by the court in its opinion, to be more than presented.]

Then, too, it will be said that the defendant in error is protected by the New Jersey statute of limitations. But the statute does not bar our right under the thirty years' limitation, because our title did not accrue until 1861, when Thomas, the first tenant in tail, died.

The English case of Tolson v. Kay establishes, indeed, that an adverse possession of twenty years against the first tenant in tail will bar the next heir, but that does not reach our case, inasmuch as the defendant holds merely as assignee of Wall, who was assignee by deeds of quit-claim (or bargain and sale, if you choose), of the tenants for life, and the first tenant in tail, under our title paper.

Undoubtedly such an assignee cannot set up his possession as adverse, when his grantor held in conformity with and under our title, being in fact only the occupier of a precedent estate.

Messrs. J. P. Bradley and F. T. Frelinghuysen, contra, for the purchasers.

Mr. Justice SWAYNE delivered the opinion of the court.

Whether under the deed of Robert Morris of the 15th November 1793, Charles Croxall was tenant for life, remainder to Mary Croxall his wife, for life, remainder to their son Thomas Croxall in tail-whether Mary Croxall was not the donee in tail under the rule in Shelley's case, and if so, whether her estate was a legal or equiptable one-and whether Thomas Croxall was not the donee or first tenant in tail, and if he were the first or the second tenant in tail, whether he took a legal estate by the operation of the statute of uses, then in force in New Jersey, or whether he took an equitable estate, the statute not executing the use created by the deed for his benefit, are questions not without difficulty, and upon which the views of some members of the court are not in harmony with those of others. As there are grounds of decision, not involving these inquiries, upon which we are all united in opinion, except one member of the court, as to one of the propositions, it is deemed proper to place our judgment upon those grounds and not to go beyond them. If Thomas Croxall, and not his mother, was the first tenant in tail, taking under the deed by purchase, and not by limitation, it is immaterial whether his estate was legal or equitable. In the law, if real property, the principles which apply to estates of both kinds, with a few limited exceptions not affecting this case, are the same. In the consideration of a court of equity, the cestui que trust is actually seized of the freehold. He may alien it, and any legal conveyance by him will have the same operation in equity upon the trust, as it would have had at law upon the legal estate.

The trust like the legal estate is descendible, devisable, alienable, and barrable by the act of the parties, and by matter of record. Generally, whatever is true at law of the legal estate, is true in equity of the trust estate.

The rule in Shelley's case applies alike to equitable and to legal estates; and an equitable estate tail may be barred in the same manner as an estate tail at law, and this end cannot be accomplished in any other way.

In Doe v. Oliver the testator had devised lands to his wife for life; remainder to the children of his brother who should be living at the death of his wife. But one child, a daughter, was living at that time. She with her husband, in the lifetime of the devisee of the life estate, levied a fine, and declared the use to A. B. after the death of the first devisee, and the termination of her life estate.

A. B. brought an action of ejectment for the lands, and recovered. It was held that the fine had a double operation, that it bound the husband and wife by estoppel or conclusion, so long as the contingencies continued, and that when the contingency happened, the estate which devolved upon the wife fed the estoppel, that the estate by estoppel created by the fine, ceased to be an estate by estoppel only, and became an interest, and gave to A. B. exactly what he would have had if the contingency had happened before the fine was levied. If Mary Croxall took under the deed an equitable contingent remainder for life, and Thomas at her death would have taken a legal estate tail, if the estate still subsisted, the statute in his case, executing the use, then the estates could not coalesce, one being legal and the other equitable, and the rule in Shelley's case would not apply. In that view of the subject Thomas and not his mother was the donee in tail.

A use limited upon a use, is not executed or affected by the statute of uses. The statute executes only the first use. In the case of a deed of bargain and sale, the whole force of the statute is exhausted in transferring the legal title in fee simple to the bargainee. But the second use may be valid as a trust, and enforced in equity according to the rights of the parties.

But without pursuing the subject, let it be conceded, for the purposes of this case, that Thomas Croxall was the donee or first tenant in tail, and that he took a legal estate, as contended by the counsel for the plaintiff in error.

Taking this view of the subject, the first inquiry to which we shall direct our attention is as to the effect of the act of the legislature of the 14th of February, 1818 and of the proceedings which were had under it. All the parties in interest then in esse, were before the legislature, and asked for the act, or consented that it should be passed.

There is no ground for the imputation upon either of them of any fraud, indirection, or concealment. It is not denied that the act was deliberately passed, nor that the partition made under it by the commissioners was fair and equal; all the parties testified their approbation, and confirmed it by their subsequent conveyances. The legal doubts and difficulties which hung over the deed, the uncertainty of the rights of the several parties; the learned and elaborate arguments, and conflicting views of the counsel, and our differences of opinion in this litigation, evince the wisdom and the equity of the act. It is as clear by implication as it could be made by expression, that the object of the legislature was to dock the entail, and unfetter the estate. What is implied is as effectual, as what is expressed. If it were possible for the parties and the legislature to accomplish this object, it was thus done. Had they the power? When the deed was executed, the statute de donis was in force in New Jersey, but modified by the acts of her legislature of the 25th of August, 1784, and of the 3d of March, 1786. Fines and recoveries, as known in the English law, were then a part of her judicial system. They were abolished by the act of June 12th, 1799. By the act of 13th of June, 1799, it was declared that no British statutes should thereafter have any force within the State. The plaintiff's lessor was the son of Thomas Croxall, and was born on the 29th of March, 1821. Estates tail, under the statute de donis, were, before the passage of the statute, known in the common law as conditional fees. Like estates tail, they were limited to particular heirs to the exclusion of others. The condition was, that if the donee died, without leaving such heirs as were specified, the estate should revert to the grantor. According to the common law, upon the birth of such issue, the estate became absolute for three purposes:

1. The donee could alien, and thus bar his own issue and the reversioner.

2. He could forfeit the estate in fee simple for treason. Before he could only forfeit his life estate.

3. He could charge it with incumbrances. He might also alien before issue born, but in that case, the effect of the alienation was only to exclude the lord, during the life of the tenant, and that of his issue, if such issue were subsequently born, while if the alienation were after the birth, its effect was complete, and vested in the grantee a fee simple estate.

In this state of the law it became usual for the donee, as soon as the condition was fulfilled by the birth of issue, to alien, and afterwards to repurchase the land. This gave him a fee simple, absolute, for all purposes. The heir was thus completely in the power of the ancestor, and the bounty of the donor was liable to be defeated by the birth of the issue, for whom it was his object to provide. To prevent such results, and to enable the great families to transmit in a perpetuity the possession of their estates to their posterity, the statute de donis of the 13 Edward I, known as the Statute of Westminster the 2d, was passed. It provided, 'that the will of the donor, according to the form in his deed of gift manifestly expressed, should be observed, so that they to whom a tenement was so given upon condition, should not have the power of alienating the tenement so given, whereby it might not remain after their death to their issue, or to the heir of the donor, if the issue should fail.' Under this statute it was held that the donee had no longer a conditional fee governed by the rules of the common law, but that the estate was inalienable, and must descend 'per formam doni,' or pass in reversion. The evils arising from the statute were found to be very great. Repeated efforts were made by the Commons to effect its repeal. They were uniformly defeated by the nobility, in whose interest the statute was passed. It remained in force and was administered without evasion for about two centuries. In the reign of Edward IV it was held in Taltarem's case, that the entail might be destroyed by a common recovery. The effect of this process was to bar alike the issue, the reversioner, and all those to whom the donor had given other estates expectant on the death of the tenant in tail without issue. The demandant took an absolute estate in fee simple. Fines were subsequently resorted to for the same purpose. A statute of 32 Henry VIII, declared a fine, duly levied by the tenant in tail, to be a complete bar to him and his heirs, and all others claiming under the entail. Other incidents were subsequently, from time to time, annexed to such estates. By a statute of Henry VII, they were made liable to forfeiture for treason. At a later period they were made liable for the debts of the tenant to the crown, due by record or special contract; and still later they were made liable for all his debts in case of bankruptcy. The power to suffer a common recovery has been invariably held to be a privilege inseparably incident to an estate tail, and one which cannot be restrained by condition, limitation, custom, recognizance, or covenant.

Private acts of Parliament are one of the modes of acquiring title enumerated by Blackstone. They are resorted to when the power of the courts of justice is inadequate to give the proper relief and the exigencies of the case require the interposition of the broader power of the legislature. They were very numerous immediately after the restoration of Charles II. The validity of statutes affecting private interests in specific real property has been repeatedly recognized by this court.

Blackstone says: 'Nothing also is done without the consent expressly given of all parties in being, and capable of consent, that have the remotest interest in the matter, unless such consent shall be perversely and without any reason withheld.' Here all who were interested consented. No interest vested or contingent of the lessor of the plaintiff in error was involved; and no consent was asked of him, for the reason that he was then unborn.

In Westby v. Kiernan, it was held that a private act passed to enable the tenant in tail to raise money bound the remainder. This involved the power to destroy the estate by incumbering the property to the full amount of its value.

We entertain no doubt that the act in question was valid, and that the partition made under it, and the deeds subsequently executed, vested in each grantee a fee simple estate. This was the necessary result, whatever the quantity and character of the estate of Mary and Thomas Croxall at that time.

It remains to consider the effect of the statute of limitation relied upon by the defendant in error. The second section of the act of the 5th of June, 1787, declares that thirty years' actual possession, where such possession was obtained by a fair and bon a fide purchase of any person in possession and supposed to have a legal right and title, shall vest an absolute right and title in the possessor and occupier. The deed of Morris Croxall to Garrett D. Wall bears date on the 30th of September, 1825. Wall conveyed to Shererd, the defendant, on the 5th of January, 1827. The special verdict finds that Wall took possession at the date of the deed to him from Morris Croxall, and held it until he conveyed to Shererd on the 5th of January, 1827, and that Shererd was continuously in possession from that time down to the commencement of the suit, 'and that possession was obtained by the defendant by a fair and bon a fide purchase of the lands in question of a party in possession and supposed to have a legal title thereto.' The finding of the jury brings the case exactly within the terms of the statute. And there had been uninterrupted possession for more than the statutory period of thirty years when the action was commenced.

It is said that the possession of the defendant was subordinate to the ultimate right and title of the plaintiff's lessor, and was in effect his possession. This is not so. The defendant was a bon a fide purchaser. Such a party holds adversely to all the world. He may disclaim the title under which he entered, and set up any other title and any other defence alike against his vendor and against others.

It is said also that the remainder to Thomas Croxall was contingent and expectant until the death of his father and mother; that nothing passed by his deed to Wall, and that the statute could not, under these circumstances, affect the rights of his heir in tail. Laying out of view the act of the legislature of 1818, and what was done under it, this is still an erroneous view of the subject. Thomas was living at the time of the execution of the deed of 1793, and took at once an estate vested in right, and deferred only as to the time of possession and enjoyment. It was in the latter respect only contingent and expectant. If this were not so, upon the death of the remainderman before the vesting of the possession his children could not inherit.

The struggle with the courts had always been for that construction which gives to the remainder a vested rather than a contingent character. A remainder is never held to be contingent when, consistently with the intention, it can be held to be vested. If an estate be granted for life to one person, and any number of remainders for life to others in succession, and finally a remainder in fee simple or fee tail, each of the grantees of a remainder for life takes at once a vested estate, although there be no probability, and scarcely a possibility, that it will ever, as to most of them, vest in possession.

Chancellor Kent says the definition of a vested remainder is thus fully and accurately expressed in the Revised Statutes of New York. It is, 'when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate precedent estate.'

It is the present capacity to take effect in possession, if the precedent estate should determine, which distinguishes a vested from a contingent remainder. Where an estate is granted to one for life, and to such of his children as should be living after his death, a present right to the future possession vests at once in such as are living, subject to open and let in after-born children, and to be divested as to those who shall die without issue. A remainder, limited upon an estate tail, is held to be vested, though it be uncertain whether it will ever take effect in possession. A vested remainder is an estate recognized in law, and it is grantable by any of the conveyances operating by force of the statute of uses.

Such an estate, if the entail had not been destroyed, passed by the deed of Thomas Croxall to Morris Croxall, by the deed of Morris Croxall to Garrett D. Wall, and by the deed of Wall to the defendant, Shererd. Whatever interest Charles Croxall had in the property after the death of his wife, passed by his deed of the 20th of September, 1825, to Wall, and from Wall, under the covenant of warranty in his deed, to Shererd.

The special verdict having found that the defendant obtained possession by a bon a fide purchase from a party in possession, and supposed to have a valid title, the case is thus, in this view of the state of the title, brought again within the letter, and, as we think, within the meaning of the statute. The statute provides expressly that possession for the period of limitation shall vest in the occupant 'an absolute right and title to the land.' Such a title thus became vested in the defendant, Shererd. This would have been the effect of the bar without such a provision in the statute.

The statute contains no qualification or exception as to issue in tail, and we can interpolate none; nor can we review or reverse the finding of the jury. In Inman v. Barnes, Mr. Justice Story said: 'I take it to be well settled that if the time limited has once run against any tenant in tail, it is a good bar, not only against him, but also against all persons claiming in descent per formam doni through him.' In Wright v. Scott, this same statute came under the consideration of the court. The case involved entailed property. The court gave the same construction to the statute which we have given. Mr. Justice Washington remarked that if such were not the proper construction the issue in tail could never be barred. In cases of this class, as in all others, when the statute has begun, it continues to run until its effect is complete. It proceeds to throw its protection over the property, and does not stop by the way for any intermediate right which may have arisen during the period of its progress. It allows no immunity beyond the savings which it contains. Such statutes are now favorably regarded in all courts. They are 'statutes of repose,' and are to be construed and applied in a liberal spirit.

Our construction of this statute is sustained by the analogies of the English and Massachusetts decisions respecting writs of formidon in descender under the statute of the 21 James I, and other statutes containing similar provisions. The law presents other analogies which tend strongly in the same direction. As between trustee and cestui que trust-a joint tenant and a tenant in common, and their co-tenants, the bar becomes complete when the period has elapsed, which the statute prescribes, after the commencement of open and notorious adverse possession. We think the special verdict sustains conclusively this defence.

The judgment below was properly given for the defendant in error, and it is affirmed.

Mr. Justice MILLER.

I concur in the judgment of the court, and in its opinion as to the first ground on which the judgment is based.

In that part of the opinion which declares the statute of limitation to be a good defence, I cannot concur. The facts conceded by both parties show, that until the death of Thomas Croxall, in 1861, the defendants and those under whom they claimed, had a lawful possession; and were at no time liable to an action to disturb that possession until that event; and I do not believe that the statute of limitations of New Jersey, or of any other country, or any rule of prescription, was ever intended to create a bar in favor of parties in possession, who were not liable to be sued in regard to that possession.

It was unnecessary to decide this proposition, as the court were unanimous in the opinion that defendants had a good title, in fee simple, which needed no statute of limitation to protect it.

JUDGMENT AFFIRMED.

title: Croxall v. Shererd/Opinion of the Court


text: Talk:Croxall v. Shererd/Opinion of the Court


text:
Christmas v. Russell (72 U.S. 290)

IN March, 1840, Christmas, being a citizen and resident of Mississippi, made at Vicksburg, in that State, and there delivered to one Samuel, a promissory note, promising to pay to his order in March, 1841, a sum certain. This note was indorsed by Samuel to Russell, a citizen and resident of Kentucky. By statute of Mississippi, action on this note was barred by limitation, after six years, that is to say, was barred in March, 1847. In 1853, the defendant, who was still, and had continuously been, a resident of Mississippi, having a mansion-house therein, went into Kentucky on a visit, and was there sued in one of the State courts upon the note.

Defence was taken on a statute of limitations of Mississippi and otherwise, and the matter having been taken to the Court of Appeal of Kentucky and returned thence, judgment was entered below in favor of the plaintiff.

A transcript being promptly carried into Mississippi, the place of the domicil of Christmas, an action of debt was brought upon it in the Circuit Court of the United States for the Southern District of Mississippi; the action which was the subject of the writ of error now before this court.

The transcript above referred to, was one duly authenticated under the act of Congress of 26th May, 1790, which provides that records authenticated in a manner which it prescribes, shall 'have such faith and credit given to them in every other court in the United States, as they have by law or usage in the court from which they are taken;' an act passed in pursuance of Section 1 of Article IV of the Constitution of the United States, declaring that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings in every other State;' and that 'Congress may by general laws prescribe the manner in which such records shall be proved, and the effect thereof.'

In the action brought as above said, in the Circuit Court of Mississippi, the defendant filed six pleas-of which the second was to this effect:

'That at the time the cause of action accrued, and thenceforth until suit was brought in Kentucky, and at the time when said suit was brought, he was a resident of Mississippi, and that the cause of action would have been barred by an act of limitation of that State, if the suit had been brought therein, and so by the law of Mississippi, no action could be maintained in said State upon the said judgment.'

He also pleaded

4th. 'That the judgment set forth was obtained and procured by the plaintiff by fraud of the said plaintiff.'

And

6th. 'That the said suit in whch judgment was obtained, was instituted to evade the laws of Mississippi, and in fraud of said laws.'

The second and sixth pleas were intended to set up a defence under a statute of Mississippi, adopted in February, 1857, and which went into effect on the 1st day of November of that year. That statute enacted:

'No action shall be maintained on any judgment or decree rendered by any court without this State against any person who, at the time of the commencement of the action in which such judgment or decree was or shall be rendered, was or shall be a resident of this State, in any case where the cause of such action would have been barred by any act of limitation of this State, if such suit had been brought therein.'To these pleas the plaintiff below demurred. The demurrer was sustained, and judgment having gone for the plaintiff, the question on error here was, as to the sufficiency of these pleas, or either of them, to bar the action.

Messrs. Carlisle and McPherson, for the plaintiff in error:

We will, for convenience, discuss the fourth plea first, and then the second and sixth together.

I. The fourth plea offered to prove, in bar to the action, that the judgment sued on was obtained and procured by the plaintiff by his fraud.

1. Fraud by the plaintiff in procuring the judgment, if well and sufficiently pleaded and proven, would have barred the action.

This is the established rule of law, and was so laid down by this court in the case of Webster v. Reid.

It is also the rule in Kentucky, where the judgment now sued on was rendered.

2. Fraud was well and sufficiently pleaded.

II. As to the 2d and 6th pleas. The manifest policy of the State of Mississippi in passing the statute set up by the defendant in his second plea below was to protect its citizens from unjust and harassing litigation under circumstances such as those under which the present one is brought on. And the question is, whether this statute, having such intent and policy, was within the constitutional competency of the State to enact.

It will be maintained on the opposite side that such a power cannot be exercised without violating that clause of the Constitution, respecting the full faith and credit due to the records and judicial proceedings of the several States.

Without here examining the authorities on this subject in detail, it is sufficient to observe that on the one hand they clearly establish that 'the full faith and credit' which is guaranteed to the records and judicial proceedings of the several States, has relation to them only as instruments of evidence, while on the other all the cases concede that the whole subject of remedies by action or suit at law or in equity, is within the undoubted competency of the respective States. In Bronson v. Kinzie, Chief Justice Taney syas:

title: Christmas v. Russell (72 U.S. 290)


text: Talk:Christmas v. Russell (72 U.S. 290)

title: Talk:Christmas v. Russell (72 U.S. 290)


text:
Christmas v. Russell (72 U.S. 290)/Opinion of the Court

'Undoubtedly, a State may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. It may, for example, shorten the period of time within which claims shall be barred by the statute of limitations. It may, if it thinks proper, direct that the necessary implements of agriculture, or the tools of the mechanic, or articles of necessity in household furniture, shall, like wearing apparel, not be liable to execution on judgments. Regulations of this description have always been considered, in every civilized community, as properly belonging to the remedy to be exercised or not by every sovereignty, according to its own views of policy and humanity. It must reside in every State to enable it to secure its citizens from unjust and harassing litigation, and to protect them in those pursuits which are necessary to the existence and well-being of every community. And although a new remedy may be deemed less convenient than the old one, and may, in some respects, render the recovery of debts more tardy and difficult, yet it will not follow that the law is unconstitutional. Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract.'

Now, in the present case, the only contract between the parties in form or in substance, which is pretended to have had any existence at the date of the Mississippi statute, was that the plaintiff in error, being a citizen and resident of Mississippi, on the 10th day of March, 1840, in that State, made and delivered his promissory note to a certain Samuel, promising to pay to his order a certain sum of money at a certain day thereafter. Neither the statute in question, nor any other statute of Mississippi purports to impair, or is pretended to have impaired the obligation of this contract. After the passage of the disputed statute, as well as before, there was a statute of limitations which barred the remedy in this contract in six years after the cause of action accrued, but this it is conceded was within the constitutional power of the State.

All that had occurred after the making of this contract was, that a new and higher instrument of evidence, establishing the same contract with greater solemnity, had been imposed upon the debtor, by a proceeding in invitum, in another State of the Union, where he happened to be found temporarily sojourning. But the contract between the parties remained the same in its substance, although it had changed its form by operation of law, in which form its substance is distinctly repeated and adjudicated.

Will it be maintained that when a contract has assumed a new shape by extra-territorial judicial proceedings it may be immediately brought back into the State where it was made, and where in its original form it was a mere nullity, because against public policy, in violation of express law, and there, through the courts, in spite of the statute, be compulsorily enforced? This surely will not be contended.

The statute of Mississippi, alleged to be unconstitutional, did not deny to the Kentucky record the full faith and credit guaranteed to it by the Constitution. In the present case, full faith and credit and effect as evidence were given to the Kentucky record, as conclusive of every matter and thing which thereby appeared. And it did thereby appear that the judgment had no other foundation than a certain Mississippi contract therein set forth, which fell within the purview of the Mississippi statute in question, the cause of action therein having been long barred by the limitation acts of said State in force at the date of the contract.

This question rises far above any mere technical criticism of the provisions of the Constitution; it involves the sovereign competency of the State to enforce its own laws within its own limits in egard to subjects of litigation arising there between its own citizens. In the case at bar the statute invoked by the plaintiff was passed, manifestly, in the just and reasonable exercise of that power, which in the language of this court, above cited, must reside in every State to enable it to secure its citizens from unjust and harassing litigation. It does not disregard or discredit the Kentucky record; but giving that record full faith and credit, it declares that upon the facts thereby appearing, the obligation thereby attempted to be imposed upon the defendant is contrary to the public policy of the State, and shall not be enforced within its limits.

I. In regard to the fourth plea. The plea, even admitting for argument's sake that the judgment was procured by fraud, is perhaps defective in not setting out by what fraud; in not showing, we mean, how, particularly, the fraud set up generally was perpetrated.

But waiving this matter of form, the plea is defective substantially, fraud being no plea in one State to a judgment standing in full force, unreversed, and never set aside, in another; and this being true, both by common law principles and by the provision of the Constitution on the subject of the faith and credit due in each State to the judicial proceedings of every other.

The judgments of the courts of one State are, as respects other States, very much in the nature of domestic judgments. Certainly under our Federal system, and in a country where one sovereignty is made of States, they cannot be regarded as foreign judgments.

As to domestic judgments, it is matter of 'horn-book learning,' that these cannot be called in question collaterally, supposing that the court which gave them had jurisdiction.

And even as to foreign judgments, while the earlier common law,-the law of a day when intercourse between nations was difficult, limited, and suspicious,-held them open to a plea of fraud, the disposition in this present day of the brotherhood of nations is to disallow such plea. Certainly we would be disposed to pay as much respect to a solemn judgment of the King's Bench, or Common Pleas of England, as we should to one of our own courts. And no less respect would be due from that bench to a judgment of this high tribunal; and none less we presume would now be paid.

But all this is quite useless discussion. The question is simply, 'What faith and credit is due in one State to a judicial proceeding had in another?' And the Constitution answers the question; for it declares that it shall be 'full faith and credit.' How is full faith and credit, or any faith and credit at all, given when you can plead that the judicial proceeding was fraudulently procured? If, indeed, any matter has supervened; that is to say, if the judgment has been paid, it may in a proper form, as that of payment, be pleaded; though not in a form, as that of nil debet, which would leave it uncertain whether the plea was meant to go to matter anterior to the date of the judgment, or to matter posterior to it. This is reason, and a matter settled by authority so well known to the bar as almost to dispense with our referring to the cases.

II. As to the second and sixth pleas. The act of Mississippi is clearly unconstitutional. The Constitution declares that full faith and credit should be given in each State (including Mississippi) to the judicial proceedings in every other (including Kentucky). The act of the Mississippi legislature says that no faith or credit at all shall be given to a judicial proceeding in Kentucky in any case where the cause of action there held not barred would in Mississippi be held barred. The conflict is palpable. Under numerous authorities the statute of Mississippi set up as a plea is no plea. In short, no plea to a suit on such a record as this suit was brought on, is good, except nul tiel record, payment, or some plea in abatement touching the rights of the parties to sue in the court of the United States, or some limitation to the right of suing on the record founded on reasonable time from the date of the judgment.

Mr. Justice CLIFFORD delivered the opinion of the court.

Wilson, on the eleventh day of November, 1857, recovered judgment in one of the county courts in the State of Kentucky, against the plaintiff in error, for the sum of five thousand six hundred and thirty-four dollars and thirteen cents, which, on the thirty-first day of March, 1859, was affirmed in the Court of Appeals. Present record shows that the action in that case was assumpsit, and that it was founded upon a certain promissory note, signed by the defendant in that suit, and dated at Vicksburg, in the State of Mississippi, on the tenth day of March, 1840, and that it was payable at the Merchants' Bank, in New Orleans, and was duly indorsed to the plaintiff by the payee. Process was duly served upon the defendant, and he appeared in the case and pleaded to the declaration. Several defences were set up, but they were all finally overruled, and the verdict and judgment were for the plaintiff.

On the fourth day of June, 1854, the prevailing party in that suit instituted the present suit in the court below, which was an action of debt on that judgment, as appears by the transcript. Defendant was duly served with process, and appeared and filed six pleas in answer to the action. Reference, however, need only be particularly made to the second and fourth, as they embody the material questions presented for decision. Substance and effect of the second plea were that the note, at the commencement of the suit in Kentucky, was barred by the statute of limitations of Mississippi, the defendant having been a domiciled citizen of that State when the cause of action accrued, and from that time to the commencement of the suit.

Fourth plea alleges that the judgment mentioned in the declaration was procured by the fraud of the plaintiff in that suit. Plaintiff demurred to these pleas, as well as to the fifth and sixth, and the court sustained the demurrers.

First plea was nul tiel record, but the finding of the court under the issue joined, negatived the plea.

Third plea was payment, to which the plaintiff replied, and the jury found in his favor.

II. 1. Resting upon his second and fourth pleas, the defendant sued out this writ of error, and now seeks to reverse the judgment, upon the ground that the demurrers to those pleas should have been overruled. Views of the defendant were, and still are, that the second plea is a valid defence to the action on the judgment, under the statute of Mississippi passed in February, 1857, and found in the code of that State which went into effect on the first day of November of that year. By that statute it was enacted that 'no action shall be maintained on any judgment or decree rendered by any court without this State against any person who, at the time of the commencement of the action in which such judgment or decree was or shall be rendered, was or shall be a resident of this State, in any case where the cause of action would have been barred by any act of limitation of this State, if such suit had been brought therein.'

Material facts are that the defendant, being a citizen and resident of Mississipi, made the note to the payee, who indorsed the same to the plaintiff, a citizen and resident of Kentucky. Such causes of action are barred by limitation, under the Mississippi statute, in six years after the cause of action accrues. Some time in 1853 the defendant went into Kentucky on a visit, and while there was sued on the note. He pleaded, among other pleas, the statute of limitations of Mississippi, and, on the first trial, a verdict was found in his favor; but the judgment was reversed on appeal, and at the second trial the verdict and judgment were for the plaintiff.

2. Undoubtedly, the second plea in this case is sufficient in form, and it is a good answer to the action if the statute under which it was framed is a valid law. Plaintiff in error suggests that it should be considered as a statute of limitations; and, if it were possible to regard it in that light, there would be little or no difficulty in the case. Statutes of limitation operating prospectively do not impair vested rights or the obligation of contracts. Reasons of sound policy have led to the adoption of limitation laws, both by Congress and the States, and, if not unreasonable in their terms, their validity cannot be questioned. Consequently, it was held by this court, in the case of Elmoyle v. Cohen, that the statute of limitations of Georgia might be pleaded to an action in that State founded upon a judgment rendered in the State Court of South Carolina. Cases, however, may arise where the provisions of the statute on that subject may be so stringent and unreasonable as to amount to a denial of the right, and in that event a different rule would prevail, as it could no longer be said that the remedy only was affected by the new legislation.

3. But the provision under consideration is not a statute of limitations as known to the law or the decisions of the courts upon that subject. Limitation, as used in such statutes, means a bar to the alleged right of the plaintiff to recover in the action created by or arising out of the lapse of a certain time after the cause of action accrued, as appointed by law.

Looking at the terms of this provision, it is quite obvious that it contains no element which can give it any such character. Plain effect of the provision is to deny the right of the judgment creditor to sue at all, under any circumstances, and wholly irrespective of any lapse of time whatever, whether longer or shorter. No day is given to such a creditor, but the prohibition is absolute that no action shall be maintained on any judgment or decree falling within the conditions set forth in the provision. Those conditions are addressed, not to the judgment, but to the cause of action which was the foundation of the judgment. Substantial import of the provision is that judgments recovered in other States against the citizens of Mississippi shall not be enforced in the tribunals of that State, if the cause of action which was the foundation of the judgment would have been barred in her tribunals by her statute of limitations.

Nothing can be plainer than the proposition is, that the judgment mentioned in the declaration was a valid judgment in the State where it was rendered. Jurisdiction of the case was undeniable, and the defendant being found in that jurisdiction, was duly served with process, and appeared and made full defence. Instead of being a statute of limitations in any sense known to the law, the provision, in legal effect, is but an attempt to give operation to the statute of limitations of that State in all the other States of the Union by denying the efficacy of any judgment recovered in another State against a citizen of Mississippi for any cause of action which was barred in her tribunals under that law. Where the cause of action which led to the judgment was not barred by her statute of limitations the judgment may be enforced; but if it would have been barred in her tribunals, under her statute, then the prohibition is absolute that no action shall be maintained on the judgment.

4. Article four, section one, of the Constitution provides, that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such records shall be proved, and the effect thereof.' Congress has exercised that power, and in effect provided that the judicial records in one State shall be proved in the tribunals of another, by the attestation of the clerk, under the seal of the court, with the certificate of the judge that the attestation is in due form. 2. That such records so authenticated 'shall have such faith and credit given to them in every other court in the United States as they have by law or usage in the courts of the State from whence the said records were or shall be taken.'

When the question of the construction of that act of Congress was first presented to this court it was argued that the act provided only for the admission of such records as evidence; that it did not declare their effect; but the court refused to adopt the proposition, and held, as the act expressly declares, that the record, when duly authenticated, shall have in every other court of the United States the same faith and credit as it has in the State court from whence it was taken.

Repeated decisions made since that time have affirmed the same rule, which is applicable in all similar cases where it appears that the court had jurisdiction of the cause, and that the defendant was duly served with process, or appeared and made defence. Where the jurisdiction has attached the judgment is conclusive for all purposes, and is not open to any inquiry upon the merits. Speaking of the before-mentioned act of Congress, Judge Story says it has been settled, upon solemn argument, that that enactment does declare the effect of the records as evidence when duly authenticated. . . . 'If a judgment is conclusive in the State where it was pronounced, it is equally conclusive everywhere' in the courts of the United States.

5. Applying these rules to the present case, it is clear that the statute which is the foundation of the second plea in this case is unconstitutional and void as affecting the right of the plaintiff to enforce the judgment mentioned in the declaration. Beyond all doubt the judgment was valid in Kentucky and conclusive between the parties in all her tribunals. Such was the decision of the highest court in the State, and it was undoubtedly correct; and if so, it is not competent for any other State to authorize its courts to open the merits and review the cause, much less to enact that such a judgment shall not receive the same faith and credit that by law it had in the State courts from which it was taken.

II. 1. Second error assigned is that the court erred in sustaining the demurrer to the fourth plea, which alleged that the judgment was procured by the fraud of the plaintiff. First proposition assumed by the present defendant is, that the plea is defective and insufficient, because it does not set forth the particular acts of the plaintiff which are the subject of complaint. But the substance of the plea, if allowable at all, is well enough under a general demurrer, as in this case. Whether general or special, a demurrer admits all such matters of fact as are sufficiently pleaded, and to that extent it is a direct admission that the facts as alleged are true.

Where the objection is to matter of substance, a general demurrer is sufficient; but where it is to matter of form only, a special demurrer is necessary. Demurrers, says Chitty, are either general or special: general, when no particular cause is alleged; special, when the particular imperfection is pointed out and insisted upon as the ground of demurrer. The former will suffice when the pleading is defective in substance, and the latter is requisite where the objection is only to the form of the pleading. Obviously the objection is to the form of the plea, and is not well taken by a general demurrer.

2. But the second objection is evidently to the substance of the plea, and therefore is properly before the court for decision. Substance of the second objection of the present defendant to the fourth plea is, that inasmuch as the judgment is conclusive between the parties in the State where it was rendered, it is equally so in every other court in the United States, and consequently that the plea of fraud in procuring the judgment is not a legal answer to the declaration. Principal question in the case of Mills v. Duryee was whether nil debet was a good plea to an action founded on a judgment of another State. Much consideration was given to the case, and the decision was that the record of a State court, duly authenticated under the act of Congress, must have in every other court of the United States such faith and credit as it had in the State court from whence it was taken, and that nil debet was not a good plea to such an action.

Congress, say the court, have declared the effect of the record by declaring what faith and credit shall be given to it. Adopting the language of the court in that case, we say that the defendant had full notice of the suit, and it is beyond all doubt that the judgment of the court was conclusive upon the parties in that State. 'It must, therefore, be conclusive here also.' Unless the merits are open to exception and trial between the parties, it is difficult to see how the plea of fraud can be admitted as an answer to the action.

3. Domestic judgments, under the rules of the common law, could not be collaterally impeached or called in question if rendered in a court of competent jurisdiction. It could only be done directly by writ of error, petition for new trial, or by bill in chancery. Third persons only, says Saunders, could set up the defence of fraud or collusion, and not the parties to the record, whose only relief was in equity, except in the case of a judgment obtained on a cognovit or a warrant of attorney.

Common law rules placed foreign judgments upon a different footing, and those rules remain, as a general remark, unchanged to the present time. Under these rules a foreign judgment was prima facie evidence of the debt, and it was open to examination not only to show that the court in which it was rendered had no jurisdiction of the subject-matter, but also to show that the judgment was fraudulently obtained. Recent decisions, however, in the parent country, hold that even a foreign judgment is so far conclusive upon a defendant that he is prevented from alleging that the promises upon which it is founded were never made or were obtained by fraud of the plaintiff.

4. Cases may be found in which it is held that the judgment of a State court, when introduced as evidence in the tribunals of another State, are to be regarded in all respects as domestic judgments. On the other hand, another class of cases might be cited in which it is held that such judgments in the courts of another State are foreign judgments, and that as such the judgment is open to every inquiry to which other foreign judgments may be subjected under the rules of the common law. Neither class of these decisions is quite correct. They certainly are not foreign judgments under the Constitution and laws of Congress in any proper sense, because they 'shall have such faith and credit given to them in every other court within the United States as they have by law or usage in the courts of the State from whence' they were taken, nor are they domestic judgments in every sense, because they are not the proper foundation of final process, except in the State where they were rendered. Besides, they are open to inquiry as to the jurisdiction of the court and notice to the defendant; but in all other respects they have the same faith and credit as domestic judgments.

Subject to those qualifications, the judgment of a State court is conclusive in the courts of all the other States wherever the same matter is brought in controversy. Established rule is, that so long as the judgment remains in force it is of itself conclusive of the right of the plaintiff to the thing adjudged in his favor, and gives him a right to process, mesne or final, as the case may be, to execute the judgment.

5. Exactly the same point was decided in the case of Benton v. Burgot, which, in all respects, was substantially like the present case. The action was debt on judgment recovered in a court of another State, and the defendant appeared and pleaded nil debet, and that the judgment was obtained by fraud, imposition, and mistake, and without consideration. Plaintiff demurred to those pleas, and the court of original jurisdiction gave judgment for the defendant. Whereupon the plaintiff brought error, and the Supreme Court of the State, after full argument, reversed the judgment and directed judgment for the plaintiff. Domestic judgments, say the Supreme Court of Maine, even if fraudulently obtained, must nevertheless be considered as conclusive until reversed or set aside. Settled rule, also, in the Supreme Court of Ohio, is that the judgment of another State, rendered in a case in which the court had jurisdiction, has all the force in that State of a domestic judgment, and that the plea of fraud is not available as an answer to an action on the judgment. Express decision of the court is, that such a judgment can only be impeached by a direct proceeding in chancery.

Similar decisions have been made in the Supreme Court of Massachusetts, and it is there held that a party to a judgment cannot be permitted in equity, any more than at law, collaterally to impeach it on the ground of mistake or fraud, when it is offered in evidence against him in support of the title which was in issue in the cause in which it was recovered. Whole current of decisions upon the subject in that State seems to recognize the principle that when a cause of action has been instituted in a proper forum, where all matters of defence were open to the party sued, the judgment is conclusive until reversed by a superior court having jurisdiction of the cause, or until the same is set aside by a direct proceeding in chancery. State judgments, in courts of competent jurisdiction, are also held by the Supreme Court of Vermont to be conclusive as between the parties until the same are reversed or in some manner set aside and annulled. Strangers, say the court, may show that they were collusive or fraudulent; but they bind parties and privies.

Redfield, Ch. J., said, in the case of Hammond v. Wilder, that there was no case in which the judgment of a court of record of general jurisdiction had been held void, unless for a defect of jurisdiction. Less uniformity exists in the reported decisions upon the subject in the courts of New York, but all those of recent date are to the same effect. Take, for example, the case of Embury v. Conner, and it is clear that the same doctrine is acknowledged and enforced. Indeed, the court, in effect, say that the rule is undeniable that the judgment or decree of a court possessing competent jurisdiction is final, not only as to the subject thereby determined, but as to every other matter which the parties might have litigated in the cause, and which they might have had decided. Same rule prevails in the courts of New Hampshire, Rhode Island, and Connecticut, and in most of the other States.

For these reasons our conclusion is, that the fourth plea of the defendant is bad upon general demurrer, and that there is no error in the record. The judgment of the Circuit Court is, therefore,

AFFIRMED WITH COSTS.


text: Talk:Christmas v. Russell (72 U.S. 290)/Opinion of the Court


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Green v. Van Buskirk (72 U.S. 307)

MOTION to dismiss a writ of error to the Supreme Court of the State of New York.

The Constitution of the United States declares (Section 1, Article IV) that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State; and that Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Under the power here conferred, Congress, by act of 1790, provides that records, authenticated in a way which it prescribes, shall 'have such faith and credit given to them in every other court of the United States, as they have by law or usage in the court from which they are taken.'

With this provision of the Constitution and this law in force, Bates being the owner of certain iron safes at Chicago, in the State of Illinois, on the 3d day of November, 1857, executed and delivered, in the State of New York, to Van Buskirk and others, a chattel mortgage of them. On the 5th day of the same month Green caused to be levied on the same safes a writ of attachment, sued by him out of the proper court in Illinois, against the property of Bates. The attachment suit proceeded to judgment, and the safes were sold in satisfaction of Green's debt. Van Buskirk, Green, and Bates, were all citizens of New York. Green's attachment was levied on the safes as the property of Bates, before the possession was delivered to Van Buskirk, and before the mortgage from Bates to him was recorded, and before notice of its existence.

Van Buskirk afterwards sued Green, in the New York courts, for the value of the safes thus sold under his attachment, and Green pleaded the proceeding in the court of Illinois in bar of the action. In this suit thus brought by him in the New York courts, Van Buskirk obtained judgment, and the judgment was affirmed in the highest court of the State of New York. From this affirmance Green took a writ of error to this court, assuming the case of fall within the twenty-fifth section of the Judiciary Act, which gives such writ in any case wherein is drawn in question a clause of the Constitution of the United States, and the decision is against the title, right, or privilege specially set up. His assumption was that the faith and credit which the judicial proceedings in the courts of the State of Illinois had by law and usage in that State, were denied to them by the decision of the courts of New York, and that in such denial, those courts decided against a right claimed by him under the above-mentioned Section 1, Article IV, of the Constitution, and the act of Congress of May 26th, 1790, on the subject of it.

Mr. Carlisle, for the defendant in error, now moved to dismiss the writ of error, because the record did not present any question within the twenty-fifth section of the Judiciary Act relied on by the plaintiff in error.

The record of the case, it should be said, contained the pleadings in the case, the facts which the court had found, and their conclusions of law on them. Among the latter, the court decided 'that by the law of the State of New York the title to the property passed on the execution and delivery of the instrument under the facts found in the case, and overreached the subsequent attachment in the State of Illinois, and actual prior possession under it, at the suit of defendant, although he was a creditor, having a valid and fair debt against Bates, and had no notice of the previous assignment and sale. And that the law of the State of New York is to govern the transaction, and not the law of the State of Illinois, where the property was situated.'

Messrs. Carlisle and Gale, in support of the motion to dismiss:

The record neither shows that the construction of any clause of the Constitution was drawn in question by the plaintiff in error, in the State court, nor that any right was claimed under any such clause, nor that any decision was made against any such right.

In fact the case did not admit of any constitutional question.

The defence set up in the State court was only that the safes, at the time of the seizure and sale, belonged to Bates, and that by such seizure and sale the plaintiff in error acquired Bates's title. The only issue thus formed was as to the right of property and possession at the time of such seizure; and this was the only issue tried and determined.

Messrs. Turnbull and A. J. Parker, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Green v. Van Buskirk (72 U.S. 307)


text: Talk:Green v. Van Buskirk (72 U.S. 307)

title: Talk:Green v. Van Buskirk (72 U.S. 307)


text:
Green v. Van Buskirk (72 U.S. 307)/Opinion of the Court

The section of the Constitution discussed in this case, declares that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And that Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.'

The act of 1790 was intended to be an exercise of the power conferred upon Congress by this section. In the leading case of Mills v. Duryee, this court held that the act in question did declare the effect of such judicial records, and that it should be the same in other States as that in which the proceedings were had. In the case of Christmas v. Russell, decided at the present term of the court, we have reaffirmed this doctrine, and have further declared that no State can impair the effect thus to be given to judicial proceedings in her sister State, by a statute of limitation intended to operate on demands which may have passed into judgment by such proceedings, as though no such judgment had been rendered.

The record before us contains the pleadings in the case, the facts found by the court, and the conclusions of law arising thereon. And notwithstanding the inverted manner in which the court has stated its legal conclusions, it seems clear that it did pass upon the effect of the judicial proceedings in Illinois upon the title of the property in contest. The case is not varied by declaring that the mortgage made and delivered in New York overreached the subsequent attachment in Illinois. According to the view taken by that court, Van Buskirk, the plaintiff, had title to the property under the laws of New York by virtue of his mortgage, and the question to be decided was whether the proceedings in Illinois were paramount in their effect upon the title to the New York mortgage.

It is said that Van Buskirk being no party to the proceedings in Illinois was not bound by them, but was at liberty to assert his claim to the property in any forum that might be open to him; and, strictly speaking, this is true. He was not bound by way of estoppel, as he would have been if he had appeared and submitted his claim, and contested the proceedings in attachment. He has a right to set up any title to the property which is superior to that conferred by the attachment proceedings, and he has the further right to show that the property was not liable to the attachment-a right from which he would have been barred if he had been a party to that suit. And this question of the liability of the property in controversy to that attachment is the question which was raised by the suit in New York, and which was there decided. That court said that this question must be decided by the laws of the State of New York, bacause that was the domicil of the owner at the time the conflicting claims to the property originated.

We are of opinion that the question is to be decided by the effect given by the laws of Illinois, where the property was situated, to the proceedings in the courts of that State, under which it was sold.

There is no little conflict of authority on the general question as to how far the transfer of personal property by assignment or sale, made in the country of the domicil of the owner, will be held to be valid in the courts of the country where the property is situated, when these are in different sovereignties. The learned author of the Commentaries on the Conflict of Laws, has discussed the subject with his usual exhaustive research. And it may be conceded that as a question of comity, the weight of his authority is in favor of the proposition that such transfers will generally be respected by the courts of the country where the property is located, although the mode of transfer may be different from that prescribed by the local law. The courts of Vermont and Louisiana, which have given this question the fullest consideration, have, however, either decided adversely to this doctrine or essentially modified it. Such also seems to have been the view of the Supreme Court of Massachusetts.

But after all, this is a mere principle of comity between the courts, which must give way when the statutes of the country where property is situated, or the established policy of its laws prescribe to its courts a different rule. The learned commentator, already referred to, in speaking of the law in Louisiana which gives paramount title to an attaching creditor over a transfer made in another State, which is the domicil of the owner of the property, says: 'No one can seriously doubt that it is competent for any State to adopt such a rule in its own legislation, since it has perfect jurisdiction over all property, personal as well as real, within its territorial limits. Nor can such a rule, made for the benefit of innocent purchasers and creditors, be deemed justly open to the reproach of being founded in a narrow or a selfish policy.' Again, he says: 'Every nation, having a right to dispose of all the property actually situated within it, has (as has been often said) a right to protect itself and its citizens against the inequalities of foreign laws, which are injurious to their interests.'

Chancellor Kent, in commenting on a kindred subject, namely, the law of contracts, remarks: 'But, on this subject of conflicting laws, it may be generally observed that there is a stubborn principle of jurisprudence that will often intervene and act with controlling efficacy. This principle is, that where the lex loci contractus and the lex fori, as to conflicting rights acquired in each, come in direct collision, the comity of nations must yield to the positive law of the land.'

In the case of Milne v. Moreton, the Supreme Court of Pennsylvania says, that 'every country has a right of regulating the transfer of all personal property within its territory; but when no positive regulation exists, the owner transfers it at his pleasure.'

The Louisiana court, in a leading case on this subject, gives, in the following language, a clear statement of the foundation of this principle: 'The municipal laws of a country have no force beyond its territorial limits, and when another government permits these to be carried into effect within her jurisdiction, she does so upon a principle of comity. In doing so, care must be taken that no injury is inflicted on her own citizens, otherwise justice would be sacrificed to comity. . . . If a person sends his property within a jurisdiction different from that where he resides, he impliedly submits it to the rules and regulations in force in the country where he places it.'

Apart from the question of authority, let us look at some of the consequences of the doctrine held by the court of New York.

If the judgment rendered against the plaintiff in error is well founded, then the sheriff who served the writ of attachment, the one who sold the property on execution, any person holding it in custody pending the attachment proceeding, the purchaser at the sale, and all who have since exercised control over it, are equally liable.

If the judgment in the State of Illinois, while it protects all such persons against a suit in that State, is no protection anywhere else, it follows that in every case where personal property has been seized under attachment, or execution against a non-resident debtor, the officer whose duty it was to seize it, and any other person having any of the relations above described to the proceeding, may be sued in any other State, and subjected to heavy damages by reason of secret transfers of which they could know nothing, and which were of no force in the jurisdiction where the proceedings were had, and where the property was located.

Another consequence is that the debtor of a non-resident may be sued by garnishee process, or by foreign attachment as it is sometimes called, and be compelled to pay the debt to some one having a demand against his creditors; but if he can be caught in some other State, he may be made to pay the debt again to some person who had an assignment of it, of which he was ignorant when he was attached.

The article of the Constitution, and the act of Congress relied on by the plaintiff in error, if not expressly designed for such cases as these, find in them occasions for their most beneficent operation.

We do not here decide that the proceedings in the State of Illinois have there the effect which plaintiff claims for them; because that must remain to be decided after argument on the merits of the case. But we hold that the effect which these proceedings have there, by the law and usage of that State, was a question necessarily decided by the New York courts, and that it was decided against the claim set up by plaintiff in error under the constitutional provision and statute referred to, and that the case is therefore properly here for review.

MOTION TO DISMISS OVERRULED.

Mr. Justice NELSON, with whom concurred Mr. Justice SWAYNE, dissenting.


text: Talk:Green v. Van Buskirk (72 U.S. 307)/Opinion of the Court


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Green v. Van Buskirk (72 U.S. 307)/Dissent Nelson

Mr. Justice NELSON, with whom concurred Mr. Justice SWAYNE, dissenting.

I am unable to concur in the opinion that has just been delivered. The litigation is one of the most common occurrence growing out of the business affairs of life. It presents the case of a race of diligence among creditors after the property of a failing debtor to get the first security for the payment of their debts. There is no question here as to the bona fides of the creditors. The simple point between them is as to which party in the race acquired the better title to the property. All the parties, debtor and creditors, were citizens and residents of the State of New York. The property was in Chicago, Illinois, consisting of iron safes.

In the race of diligence, the defendants here and plaintiffs below, Van Buskirk and others, obtained from Bates, the debtor, on the 3d of November, an assignment of the property as security for their debt. It was executed at Troy, New York. But, before the agent reached Chicago to take actual possession, Tillinghast & Warren, the other creditors, on the 5th of the month, two days after the assignment, instituted proceedings in a court in Illinois against Bates, the debtor, and attached the safes, subsequently obtained a judgment by default, and sold them on execution.

The present suit was instituted by Van Buskirk and others against Tillinghast & Warren, the attaching creditors, claiming title to the property under and by virtue of their prior assignment. As the two classes of creditors were equally honest, the only question, as we have said, would seem to be which had obtained the better right to their debtor's property; and this appears to have been the view taken by the judge and counsel in the court below.

The trial before a jury was waived, and the case was heard before the judge, who gives a statement of the facts. He found the proceedings, in the attachment as set forth. The execution of the assignment, that it was executed in good faith, and not fraudulent. He then states his conclusions of law--

1. That the assignment was a legal and valid instrument, and operated to transfer the property in the safes to the assignees.

2. That by the laws of New York the title thus acquired overreached the title by attachment, being prior in point of time, though the attaching creditors had no notice of the sale or assignment; and--

3. That the laws of New York governed the case.

The defendants excepted to the rulings, and contended--

1. That the assignment was fraudulent and void on its face, and conveyed no title to the plaintiffs against the attachment.

2. That the rights of the parties must be governed by the law of the State of Illinois, and not by the law of the State of New York; and

3. That the plaintiffs have shown no ownership or right of possession to the safes superior to that of the defendants.

A judgment was entered for the plaintiffs, which was taken, on this bill of exceptions, to the higher courts in the State, and was affirmed. It is now here under the twenty-fifth section of the Judiciary Act; and it is claimed that this court has jurisdiction, on the ground that the court below denied full faith, credit, and effect to the Illinois judgment in the attachment proceedings. It is only on this ground that this attachment can be maintained. We have seen that no such point was made on the trial or ruled by the court. These proceedings were in evidence without objection either as to regularity or effect. It was conceded that the attachment bound the goods from the time it was levied. Certainly no greater effect could be given to it; that is, whatever interest Bates, the debtor, had in them at that time. This effect was not disputed. But it was claimed, on the other side, that they had a prior right to the property under the assignment made two days before the levy.

Now, it must be admitted that, as between Bates and the assignees, they became vested with the title; and as the attachment was subsequent, and would only reach the interest of Bates, it would seem to follow that the assignees had the better title; and, if this were all of the case, there could not be two opinions upon it; the title under the attachment must fail. But it is not all, for it is said that this prior assignment was ineffectual to transfer the title to the property, and prevent the operation of the attachment, for the reason that it was fraudulent against creditors, and, being so fraudulent, the seizure under the attachment gave the better title.

The question, therefore, that arose in the case, and the only question, was as to the validity or invalidity of this assignment. If valid, then the title of the safes passed out of Bates to the assignees on the 3d November. If invalid, then it remained in him quoad creditors till the 5th, when the attachment was levied. Now, this question was one simply of law, and it turned upon this: whether the assignment was to be governed by the law of New York, where the instrument was made, and in which State all the parties resided, and of which they were citizens, or by the law of Illinois, the situs of the property. In New York the immediate delivery of the possession, as is said, is not essential to the validity of the assignment; in the State of Illinois it is. The continuance in the possession by assignor or vendor after the transfer of the title is regarded in that State as evidence of fraud, and renders the instrument inoperative as against execution or attaching creditors.

The court below decided that the instrument was to be governed by the law of the State of New York, where it was made, and which was the domicil of the parties. How, whether the court erred or not in this decision is not the question, for this court has no jurisdiction to determine that. The question here is, whether, in so deciding, the court denied full faith, credit, and effect to the judgment in Illinois. In other words, did the court, in holding that the prior assignment was not fraudulent and void, but valid and effectual to transfer the title, thereby discredit the Illinois judgment? The answer to the question, I think, is obvious. These assignees were not parties to the judgment. It could not bind them. They were free, therefore, to set up and insist upon this prior title to the property; and, if there was nothing else in the case, it is clear the junior attachment could not hold it. It became necessary, therefore, for the attaching creditors to displace the assignment, and this they attempted, by insisting that it was fraudulent and void, as not having been accompanied by possession; and this they were obliged to establish before the attachment could take effect.

The assignment being prior in time, in the absence of fraud, actual or constructive, the title passed to the assignees, and was out of Bates, when the attachment was levied. This is familiar law. The question in the case, therefore, and the one litigated in the court below, was this question of fraud, upon which the validity of the assignment depended, and the finding of which was necessary to give a preference to the claim under the attachment. This question was not only consistent with the full force and effect of the attachment proceedings, but wholly independent of them.

I agree, if the attachment had been levied before the assignment, and the court had given effect to this instrument over the levy, it might be said that full faith and credit had not been given to it; but, being posterior, these proceedings could not have the effect per se to displace the assignment as against a stranger. Another element must first be shown, namely, fraud or other defect in the instrument, to render it inoperative.

Mr conclusion is, that the regularity of the attachment proceedings was not called in question in the court below; but, on the contrary, full force and credit were given to them, and the case should be dismissed for want of jurisdiction.


text: Talk:Green v. Van Buskirk (72 U.S. 307)/Dissent Nelson