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Railway Company v. McCarthy/Opinion of the Court

The defendant in error was the plaintiff in the court below. He brought this action to recover damages from the railroad company for alleged breaches of a contract entered into by the parties on the 23d of September, 1873, for the transportation by the company of sixteen car-loads of cattle from East St. Louis to the city of Philadelphia. It was stipulated that McCarthy should have the entire care and charge of the cattle during the trip; that he should load and unload them; that the company should be deemed forwarders and not common carriers; and that it should be liable only for loss or injuries caused by its gross negligence. The cattle were shipped, accordingly, at East St. Louis, under the care of Hensley, an employ e of McCarthy. They were transported thence by the defendant's road to Cincinnati, thence by the Marietta and Cincinnati road to Parkersburg, in West Virginia, and thence by the Baltimore and Ohio road to Baltimore. There the performance of the contract terminated. The plaintiff gave evidence tending to prove the following state of facts: Between East St. Louis and Cincinnati there was unnecessary delay and serious injury to the cattle, arising from the gross negligence of the company's servants. At Cincinnati, Hensley sold forty of the cattle. This was done because, by reason of the injuries they had received, they were unfit for further transportation. Between Cincinnati and Parkersburg there was further unnecessary delay, arising from the same cause which produced it between East St. Louis and Cincinnati. The cattle arrived at the latter place five hours behind the proper time. Hensley insisted that they should be shipped for Baltimore on the morning of the next day, which was Sunday. The Baltimore company received but refused to forward them until Monday morning; and refused to ship them at all, until Hensley signed a new and onerous contract touching their transportation upon the Baltimore road. He at first refused; but, there being no other means of transportation east, he was constrained to submit, and signed under protest.

The defendant company gave evidence tending to contradict the plaintiff's evidence on all these points. It was expressly proved that the Baltimore company 'was not able to send the cattle out of Parkersburg on Sunday, because they had not the necessary cars therefor at the time, and that they were sent at the first opportunity, which was on Monday morning.'

The evidence as set forth in the bill of exceptions is wholly silent as to any other reason for not making the shipment on Sunday.

The testimony being closed, the company's counsel submitted sundry instructions, and prayed that they should be given to the jury. A part was given and a part refused. Proper exceptions were taken as to the latter. Finally, the court instructed the jury at large according to its own views.

There is no question presented in the record as to the sufficiency of the pleadings, or the admission or rejection of testimony. The exceptions and the assignments of error are confined to the instructions refused and to those given by the court sua sponte.

It has been repeatedly determined by this tribunal that no court is bound to give instructions in the forms and language in which they are asked. If those given sufficiently cover the case, and are correct, the judgment will not be disturbed, whatever those may have been which were refused.

We have examined the charge of the learned judge who tried the case below, and are entirely satisfied with it. It was full, clear, and unexceptionable. It submitted the case well and fairly to the jury, and was quite as favorable to the company as the company had a right to demand.

We have found no error in it.

There are a few points, and only a few, to which we deem it necessary particularly to advert:--

The suit was well brought by McCarthy. The only testimony as to the ownership of the cattle was given by him. He said, 'William Hensley, besides myself, was interested in the cattle. He had a half-interest in the profits. I was the owner.' If Hensley had been joined with McCarthy as a plaintiff, there must, upon this testimony, have been an amendment, by striking his name from the record, or the action must have failed. The facts called for no instruction, and the court properly refused to give any.

The contract with the defendant was for the transportation of the cattle the entire distance they were to go. It was stipulated that the company would forward 'sixteen cars, more or less, from East St. Louis to Philadelphia, at the rate of $130 per car, which is a reduced rate, made expressly in consideration of this agreement.' No other company was named, there was no mention of compensation to any other party, and nothing was said of a change to the cars of any other company on the way. Such corporations, unless forbidden by their charters, have the power to contract for shipments the entire distance over any connecting lines. Railroad Company v. Pratt (22 Wall. 123) is conclusive in this court upon the subject. The principle is so well settled in this country, that a further citation of authorities in support of it is unnecessary. Such is also the rule of the English law. Both here and there the company is liable in all respects upon the other lines as upon its own. In such cases, the public has a right to assume that the contracting company has made all the arrangements necessary to the fulfilment of the obligations it has assumed. The Great Western Railway Co. v. Blake, 7 H. & N. 986; Weed v. Railroad Company, 19 Wend. (N. Y.) 534; Knight v. Portland, Saco, & Portsmouth Railroad Co., 56 Me. 234. When a contract is not on its face necessarily beyond the scope of the power of the corporation by which it was made, it will, in the absence of proof to the contrary, be presumed to be valid. Corporations are presumed to contract within their powers. The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong. Union Water Co. v. Murphy's Flat Fluming Co. et al., 22 Cal. 620; Morris Railroad Co. v. Railroad Company, 29 N. J. Eq. 542; Whitney Arms Co. v. Barlow et al., 63 N. Y. 62. There is no conflict in the evidence as to the terms of the contract. It is all one way, and leaves no room for doubt.

The contract contains some provisions in favor of the company, to which we have not adverted. They do not appear to have been challenged in the court below, and have not been here. They are, therefore, not before us for consideration, and we pass them by without remark.

It does not appear that Hensley had any authority to enter into the contract forced upon him at Parkersburg. The original contract included the Baltimore road. The Parkersburg contract could not, therefore, in any wise, affect his rights with respect to the defendant. The court instructed the jury properly on the subject. It must be laid out of view as an element in the case.

The question made by the company upon the Sunday law of West Virginia does not, in our view, arise in this case. We have already shown that the defendant proved upon the trial that it was impossible to forward the cattle on Sunday, for want of cars. And it is fairly to be presumed that no other reason was given for the refusal at that time. It does not appear that any thing was then said as to the illegality of such a shipment on the Sabbath. This point was an after-thought, suggested by the pressure and exigencies of the case.

Where a party gives a reason for his conduct and decision touching any thing involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law. Gold v. Banks, 8 Wend. (N. Y.) 562; Holbrook v. White, 24 id. 169; Everett v. Saltus, 15 id. 474; Wright v. Reed, 3 Durnf. & E. 554; Duffy v. O'Donovan, 46 N. Y. 223; Winter v. Coit, 7 id. 288. The judge below committed no error in refusing to charge as requested upon this subject.

Judgment affirmed.


text: Talk:Railway Company v. McCarthy/Opinion of the Court

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Wheeler v. National Bank

ERROR to the Superior Court of the city of New York.

This suit was brought by the Union National Bank of Pittsburg, Pa., against George M. Wheeler, as indorser of two bills of exchange, one dated Jan. 20, 1871, for $10,000, and one dated March 8, 1871, for $5,000, drawn by Slack, superintendent of the Brady's Bend Iron Company, on and accepted by the treasurer of said company, pursuant to authority vested in him for that purpose, and payable sixty days after their respective dates at the American Exchange National Bank of New York. The plaintiff discounted both bills for the benefit of the company: the first on the twenty-fourth day of January, 1871, and the second on the day of its date,-the company receiving the amount mentioned in the bills, less the sum of $246.

The rate of interest in Pennsylvania was six per cent per annum.

Said bills were duly protested for non-payment, and notice given to the defendant. There was no proof of the rate of exchange when they were discounted.

There was a judgment in favor of the bank, which was affirmed by the Court of Appeals of the State of New York, and the record remitted to the inferior court. Wheeler then brought the case here by a writ of error.

Mr. Thomas M. Wheeler for the plaintiff in error.

Mr. Joseph M. Dixon, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Wheeler v. National Bank


text: Talk:Wheeler v. National Bank

title: Talk:Wheeler v. National Bank


text:
Wheeler v. National Bank/Opinion of the Court

The controlling question presented in this case for our determination involves the construction of the National Currency Act of June 3, 1864 (13 Stat. 108), which declares that 'the knowingly taking, receiving, reserving, or charging a rate of interest greater' than that 'allowed by the laws of the State or Territory where the bank is located,' shall be 'held and adjudged a forfeiture of the entire interest which the bill, note, or other evidence of debt carries with it, or which has been agreed to be paid thereon.' The same section also declares: 'But the purchase, discount, or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount, or sale, at not more than the current rate of exchange for sight drafts in addition to the interest, shall not be considered as taking or receiving a greater rate of interest.'

Wheeler, the plaintiff in error, was sued as indorser upon two bills of exchange, drawn at Brady's Bend, Pa., payable sixty days after date at the American Exchange Bank, in New York, and discounted by the Union National Bank of Pittsburg for the benefit of the Brady's Bend Iron Company, a corporation created under the laws of Pennsylvania. Wheeler claims that the bank, under the provisions of the statute, forfeited the entire interest which the bills carried, or which was agreed to be paid. This claim was denied: first, in the Superior Court for the city and county of New York, where this action was commenced; and, subsequently, in the Court of Appeals of that State.

No question having been raised as to the bona fide character of the bills, the bank had, by the express words of the statute, the right to charge and receive the current rate of exchange for sight drafts, in addition to interest at the rate of six per cent per annum, which is the rate fixed by general statute in the State of Pennsylvania. But, upon examining the special finding of facts which the State court based its judgment, we discover no evidence of the current rate of exchange at the date of discount. That exchange was, in fact, charged cannot be gainsaid by Wheeler, since he avers, in his answer, that the bills were discounted under an usurious agreement that the bank should receive, in addition to certain interest in excess of the statutory rate, commissions or exchange of one-quarter of one per cent. No such agreement was, however, proven. Indeed, the record furnishes no evidence of any distinct agreement, either as to the amount of interest or exchange to be reserved by the bank upon discounting the bills. Nothing seems to have been said at the time of discount as to the amount to be reserved by way of interest or upon the subject of exchange, and the court refused, upon the request of Wheeler, to find it as a fact in the case, that 'no exchange was charged.' While it may be inferred that exchange was charged by the bank, we are uninformed by the record whether it exceeded the current rate for sight drafts.

The statute should be liberally construed to effect the ends for which it was passed; but a forfeiture under its provisions should not be declared, unless the facts upon which it must rest are clearly established. It should appear affirmatively that the bank knowingly received or reserved an amount in excess of the statutory rate of interest, and the current exchange for sight drafts. There is no proof of the rate of exchange; and, since the courts uniformly incline against the declaration of a forfeiture, the party seeking such declaration should be held to make convincing proof of every fact essential to forfeiture.

It is unnecessary to consider any other question in the case.

Judgment affirmed.


text: Talk:Wheeler v. National Bank/Opinion of the Court


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Township of Rock Creek v. Strong

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

This was an action by Strong, against the township of Rock Creek, Jefferson County, Kansas, upon interest coupons attached to bonds issued by it to aid in constructing within its limits the depots and side-tracks of the Atchison, Topeka, and Santa Fe Railroad. The bonds refer to the act of the legislature under which they were issued, and are of tenor following:--

'$1,000.] UNITED STATES OF AMERICA. [No. ___.

'ROCK CREEK TOWNSHIP RAILROAD AND DEPOT BONDS.

'State of Kansas, County of Jefferson.

'Thirty years from the fifteenth day of October, 1872, the township of Rock Creek, in the county of Jefferson and State of Kansas, for value received, promises to pay to the Atchison, Topeka, and Santa Fe Railroad Company, or bearer, the sum of $1,000, in lawful money of the United States, with interest from the said fifteenth day of October, 1872, at the rate of seven (7) per cent per annum, payable semi-annually on the fifteenth days of April and October of each year, upon the presentation and surrender, as they severally become due, of the proper coupons therefor hereto attached, both principal and interest payable at the Fourth National Bank in the city of New York, and State of New York.

'This bond is one of a series, amounting to the sum of $20,000, made and issued to the said Atchison, Topeka, and Santa Fe Railroad Company in payment of a subscription and donation to the said company in aid of the construction of its railroad depots and sidetracks, in said township, under and in pursuance of the provisions of an act of the legislature of the State of Kansas, entitled 'An Act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water-power, or other works of internal improvement, and providing for the registration of such bonds, the registration of other bonds, and the repealing of all laws in conflict therewith,' approved March 2, 1872; and the faith of the said township is hereby pledged for the redemption and payment of said bonds and the interest coupons thereto attached.

'In testimony whereof, the township trustee and clerk of said Rock Creek township have hereunto set their hands as such trustee and clerk, as by law it is provided shall be done, this tenth day of September, A.D. 1872.

'N. A. LAFON, Trustee.

'Attest: ALBERT OWEN, Clerk.'

Indorsed on the back thereof as follows:--

'STATE OF KANSAS, SS.

'I, auditor of the State of Kansas, do hereby certify that this bond has been regularly and legally issued, and the signatures thereto are genuine, and that the same has been duly registered in my office according to law.

'In witness whereof, I have hereunto set my hand and affixed my seal of office, at the city of Topeka, this seventeenth day of October, A.D. 1872.

[L. S.] 'A. THOMAN, Auditor.'

The coupons are in the usual form.

The plaintiff having at the trial introduced evidence tending to show that he was an innocent purchaser for value of the coupons before maturity, the defendant offered evidence tending to show,--

1. That the only election held in the township upon any proposition of issuing the bonds was one held Aug. 27, 1872, pursuant to the notice of the trustee and clerk of the township, dated July 30, of that year, for the purpose of submitting to the qualified voters of the township 'the question of aiding in the construction of two permanent depots, with side-tracks to accommodate the same, on the line of the Atchison, Topeka, and Santa Fe Railroad, in said township, by a donation to the Atchison, Topeka, and Santa Fe Railroad Company of the bonds of said township, in the sum of $20,000, to be issued in sums of $1,000 each, payable in thirty years from the date of issue, payable in the city of New York, and bearing interest at the rate of seven per cent per annum, payable semi-annually in the city of New York, signed by the trustee of said township and attested by the township clerk, and upon the following conditions, to wit: Said bonds to be issued as aforesaid, and delivered to the said company whenever said company shall have constructed and completed said depots and said side-tracks in said township, the same to be located as follows, to wit: one depot at some point within one-half of one mile of the point where said company's railroad intersects the line between the north-east quarter of the south-east quarter of section twenty, township nine, in range seventeen east; and the other depot at a point within one-half of one mile of the point where said company's failroad intersects the west boundary line of section seven, in township ten, range seventeen east, and each to be accommodated with side-tracks suitable and of sufficient length for the accommodation of the business to be done at said depots, the said company to erect said depots and each of them, and to construct the said side-tracks of the same, so that the same shall be ready for use, and the reception of business thereat, on or before the fifteenth day of October, A.D. 1872; otherwise, the said company to forfeit all claims to the said bonds.' That the total number of votes cast by qualified electors of said township was one hundred and two, of which fifty-one were for, and fifty-one were against, the said proposition; and that one Rice, who was not a qualified elector of said township, cast his vote in favor of said proposition.

2. That the board of county commissioners of said county never canvassed the returns of said election, and never determined nor declared the result of any election in said township to be in favor of issuing any of the bonds of said township; but upon the records of the county the following entry, certified in due form, was made prior to the issue of the bonds:--

'FRIDAY, Aug. 30, 1872. At this, a called meeting of the board, there were present H. W. Wellman and P. M. Gilbert.

'The board proceeded to canvass the vote of Rock Creek township, on the proposition to donate the bonds of said township to the Atchison, Topeka, and Santa Fe Railroad Company, and determine the following as a result of said election:--

'For the issuing of said bonds 52 votes.

Against the issuing of said bonds 51 votes.

'Total 103 votes.

'Adjournment: Upon motion, it was ordered that the board adjourn, to meet Monday, Sept. 2, 1872.'

3. That there is not now, and never has been, in the office of the auditor of the State of Kansas, any registration of any such bonds of said township; but his certificate of registration was placed on them.

4. That the depots and side-tracks mentioned in said bonds were located and erected upon and appurtenant to a railroad built and in operation through said township prior to said election.

Whereupon the following questions arose, upon which the judges were divided in opinion:--

1. Does the act of the legislature of the State of Kansas, referred to in said bonds, authorize the issue of the bonds of a township to aid in the construction of depots and side-tracks, as recited in the bonds in suit?

2. Are the bonds mentioned in plaintiff's petition void, for the reason that they are made payable thirty years and thirty-five days from their date of execution therein written, but only drawing interest for the last thirty years of said time?3. Is the defendant estopped by the recitals in said bonds from introducing the testimony as above stated?

4. On the foregoing facts, is the plaintiff entitled to recover?

Judgment having been entered in favor of the plaintiff, in accordance with the opinion of the presiding judge, the defendant sued out this writ of error.

There being no express authority conferred by the act of March 2, 1872, for a municipal township in Kansas to issue its bonds in aid of the construction of depots and side-tracks for a railroad which was then built, any doubt as to the existence of the power supposed to be conferred must be resolved against it. Minturn v. Larue, 23 How. 435; Thompson v. Lee County, 3 Wall. 327; Thomas v. City of Richmond, 12 id. 349.

The legislature did not intend to confer such authority, as it is the legal duty of a railroad corporation to furnish the necessary depots and side-tracks for the accommodation of the public. St. Joseph & Denver City Railroad Co. v. Ryan, 11 Kan. 602; Pacific Railway Co. v. Seeley, 45 Mo. 212.

The objects in aid of which the bonds were issued cannot be claimed to be works of internal improvement, within the meaning of that act. Township of Burlington v. Beasley, 94 U.S. 310.

The bonds having been issued for a period of time in excess of that fixed by law, they are void on their face. Commissioners of Marion County v. Clark, 94 U.S. 278. The presumption is that they were delivered on the day of their date. 1 Pars. Bills and Notes, 42; Edwards, Bills, 144; Anderson v. Weston, 6 Bing. N. C. 296.

The plaintiff in error was not estopped by the recitals in the bonds from showing that the conditions precedent to their issue had not been complied with, because the right to determine those questions was vested in an entirely different tribunal from the one authorized to issue the bonds. Town of Coloma v. Eaves, 92 U.S. 484.

The record shows that the bonds were never registered as required by the statute. They were, therefore, not negotiable. Negotiability could be imparted to them only by the fact of registration, not by the mere certificate of the auditor.

Mr. George R. Peck for the plaintiff in error.

Mr. H. Strong, for the defendant in error, in support of the judgment below, cited Leavenworth v. Miller, 7 Kan. 536; Knox County v. Aspinwall, 21 How. 544; Moran v. Miami County, 2 Black, 732; Mercer County v. Hacket, 1 Wall. 83; Supervisor v. Schenck, 5 id. 784; Town of Coloma v. Eaves, 92 U.S. 484; Town of Venice v. Murdock, id. 494; Converse v. Fort Scott, id. 503; Marcy v. Town of Oswego, id. 637; Humboldt Township v. Long, id. 642; Leavenworth County v. Barnes, 94 id. 70; Douglas County v. Bolles, id. 104; Johnson County v. January, id. 202; Township of Burlington v. Beasley, id. 310; County of Moulton v. Rockingham Bank, id. 631; Town of East Lincoln v. Davenport, id. 801.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Township of Rock Creek v. Strong


text: Talk:Township of Rock Creek v. Strong

title: Talk:Township of Rock Creek v. Strong


text:
Township of Rock Creek v. Strong/Opinion of the Court

The act of the Kansas legislature approved March 2, 1872, expressly authorized the issue of township bonds 'to aid in the construction of railroads or water-power, by donation thereto, or the taking of stock therein, or for other works of internal improvement.' Like all expressions of legislative will, this provision of the act must receive a reasonable construction, and we cannot doubt that in the grant of power to aid in the construction of railroads or other works of internal improvement is included authority to assist in the construction of depots and side-tracks of a railroad. Such constructions are constituents, essential parts of every railroad, without which it would be incomplete and incapable of serving the uses for which it is intended. The cost of building them is always, and properly, charged to construction account, and not to repairs or expenses of operation; and a mortgage of a railroad, without further description than such as is necessary to identify it, covers its side-tracks and depots.

We do not see any force in the argument pressed upon us by the plaintiff in error, that, because it was the duty of the railroad company to furnish suitable side-tracks and depots, the act of 1872 cannot be construed as authorizing the issue of township bonds to aid in building such structures. It was equally the duty of the company to build the main line, and it is not questioned that the township was empowered to aid in doing that work. Nor is there any thing in the proviso to the act that tends in the least degree to the conclusion that the legislature did not mean to authorize aid to the building of depots.

The first question certified to us was, therefore, correctly answered by the Circuit Court in the affirmative, and the first assignment of error is overruled.

The second question certified is, 'Are the bonds mentioned in the plaintiff's petition void, for the reason that they are made payable thirty years and thirty-five days from their date of execution therein written, but only drawing interest for the last thirty years of said time?'

The second section of the act authorizing their issue enacted that the bonds should be payable in not less than five nor more than thirty years from the date thereof, with interest not to exceed ten per cent per annum, all in the discretion of the officers issuing the same. These provisions were obviously directory, and not of the essence of the power. The bonds issued were dated Sept. 10, 1872, made payable thirty years from the fifteenth day of October, 1872, with interest thereon from that time at the rate of seven per cent. When they were delivered to the railroad company does not appear, though they were not registered by the auditor of the State until Oct. 17, 1872. They were thus practically thirty-year bonds, bearing a less rate of interest than the rate authorized. Their legal effect is precisely what it would have been had the date inserted been Oct. 15, instead of Sept. 10, 1872. Substantially, therefore, the legislative direction was followed. The doctrine of Commissioners of Marion County v. Clark (94 U.S. 278) is applicable to the present case.

The third assignment of error is that the court erred in not holding the township was not estopped by the recitals in the bonds from introducing the testimony offered. The bonds were executed by the township trustee, and attested by the township clerk. These were the officers designated by the statute to execute such bonds. The recitals were that the bonds were made and issued in pursuance of the provisions of the act of the legislature of March 2, 1872. But whether the recitals were an estoppel against showing what the defendant proposed to show, or whether they were not, is quite immaterial in this case. The proof offered was, that, in the records of the county commissioners of the county of which Rock Creek township is a part, it appeared the board had canvassed the vote at the election held to determine whether the township should issue the bonds, and had determined the result to be, for the issue, fifty-two votes, against the issue, fifty-one votes, making one hundred and three votes in all cast; but that in fact no canvass was made, and that only one hundred and two votes were cast, fifty-one of which only were in favor of issuing the bonds, and that one person who voted in favor was not a qualified elector.

Now, if the town clerk and treasurer were not the persons authorized by law to determine the result of the election, the board of county commissioners were, and their action, according to all our rulings, was conclusive A bona fide purchaser of the bonds was under no obligation to look beyond it. It was not his duty to canvass the vote, much less to ascertain whether those who had voted were qualified electors. The law cast the duty upon the board, and in such a case the action of the board must be found in their records. If it be admitted that the purchaser of the bonds was under obligation to inquire whether an election had been held, and what its result was, the only place to which he could resort for the information sought was the records of the board; and, had he sought there, he would have found that the township clerk and treasurer could rightfully issue the bonds. It follows that the evidence offered by the defendant was quite immaterial, or, if not, that it was destructive to his defence.

The defendant further offered to show that no registration of the bonds exists, or ever has been in the office of the auditor of the State, though the auditor's certificate of registration does appear upon the bonds. We cannot think this evidence, if admitted, could in any degree avail the defendant.

The certificate of that officer indorsed on the bonds was all that was required for the holder of them. If the State auditor failed to make in his office an entry of his action, we do not perceive how his failure in this respect can invalidate bonds upon which he has certified a registration.

Judgment affirmed.


text: Talk:Township of Rock Creek v. Strong/Opinion of the Court


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Conrad v. Waples

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

This was an action for the recovery of certain real property, described in the petition of the plaintiff, situated in the city of New Orleans, and of the rents and profits. The plaintiff claimed title to the premises by a conveyance from his father, Charles M.Conrad, made to himself and his brother on the 6th of May, 1862, and a subsequent conveyance to himself of his brother's interest. The conveyance of the father was made in settlement and discharge of certain obligations resting upon him under the laws of Louisiana, by reason of his having received, as the natural tutor of his children, property belonging to them as minor heirs of their deceased mother. It appears from the record that she died intestate, at New Orleans, in 1839, leaving the plaintiff and his brother her only heirs, and an estate valued at a sum over $35,000. The estate consisted principally of her separate property; a small portion was her share of the real property belonging to the matrimonial community. The surviving husband qualified, and was confirmed as the natural tutor of the children, and took charge of their property. The law of Louisiana imposes a general mortgage upon all the property of a tutor, to secure the interests of minors and his faithful execution of the trust, but gives him the right to substitute in place of it a special mortgage upon particular parcels of his property. The tutor here availed himself of this right at different times. The last special mortgage was executed in 1847, and, with other property, covered the premises in controversy. Previously to this, and in 1845, his indebtedness to his sons had bee ascertained, and fixed by decree of the Probate Court at the sum of $36,757. This amount was subsequently increased.

No account of his administration was ever rendered by the tutor until May 6, 1862, when a settlement took place between him and his sons; and, in discharge of his obligations to them, he executed, before the recorder and ex-officio notary-public of the parish of St. Helena, a public act of sale, by which he sold and conveyed to them several lots situated in New Orleans, and among them the one in controversy in this case. This act of sale, which purports to have been recorded in the city of New Orleans on the 31st of the same month, the court refused to admit in evidence.

The defendant, Waples, in his answer, asserted title to the premises in controversy, under a deed to him by the marshal of the United States, executed in March, 1865, upon a sale under a decree of the District Court, rendered in February of that year, condemning and forfeiting the property to the United States, as that of Charles M. Conrad, in proceedings taken under the Confiscation Act of July 17, 1862. The other defendants disclaimed title.

On the 1st of May, 1862, New Orleans passed into the possession of the army of the United States; and, on the 6th of the month, General Butler, commanding our forces there, issued a proclamation re-establishing the national authority in the city. The proclamation bears date on the 1st of May, but was not published until the 6th. The Conrads, father and sons, had left the city before it was captured. They had previously been engaged in the rebellion against the United States,-the father as a member of the Confederate Congress, and the sons as officers of the Confederate army,-and they continued in such rebellion until the close of the war. The parish of St. Helena was within the Confederate lines when the act of sale of May 6, 1862, was executed. When this act was offered in evidence by the plaintiff, objection was made to its introduction, on substantially the following grounds: 1. That the act was not a sale, but a giving in payment; and that no delivery of the property was or could be made, as the same was situated within the Federal lines, and the act was executed within the military lines of the Confederate States, where the parties were sojourning. 2. That it being admitted that the vendor and vendees had been before, and were at the date of the act, and afterwards, engaged in rebellion against the United States, and so continued until the end of the war, and that the act was passed within the Confederate lines, the property being situated within the Federal lines, the act of transfer was inoperative and void. 3. That such evidence would tend to contradict the decree of condemnation previously entered in the District Court, and set up by the defendant in his answer. 4. That, it being admitted that the grantor and grantees were enemies of the United States at the time the act was passed, the grantor was incompetent to complete the transfer of the property, the same being within Federal military lines. 5. That the copy of the act offered in evidence was not, by the statute of the State, admissible in evidence against any right set up by a third person, without being accompanied with proof that the same had been duly and legally registered in the proper office where the properties were situated. 6. That a state of war then existing, a deed executed in the parish of St. Helena, within the Confederate lines, could not be legally recorded in the parish of Orleans, which at that date was within Federal military lines.

These several objections were sustained by the court, and the plaintiff excepted.

The plaintiff requested the court to instruct the jury substantially as follows:--

1st, That even if the Confiscation Act contained a prohibition against sales, transfers, and conveyances, made in good faith prior to its passage, such prohibition did not apply to transfers and conveyances wherein all parties to the same, vendor and vendees, were equally engaged in rebellion against the United States, and consequently, where the property conveyed or transferred would be as liable to confiscation in the hands of the vendees as in the hands of the vendor.

2d, That all that was seized, and all that could be seized, condemned, and sold under the judgment or decree of the United States District Court for the Eastern District of Louisiana, in the proceedings against the property of Charles M. Conrad, on which judgment or decree, and the sale made in pursuance thereof, the defendant bases his claim to the premises in controversy in this cause, was the title, right, and estate of said Charles M. Conrad, whatever the same might have been, to endure only during his life, in and to the property libelled and condemned, and the right, property, and estate therein of no other person or persons whatsoever.

3d, That the United States, by the proceedings and decree of condemnation, succeeded only to the rights of said Charles M. Conrad to said property, whatever the same might be, to endure only during his life; and that the decree, and marshal's sale to defendant thereunder, had no other effect than to transfer such rights as the United States acquired by the decree, and did not disturb or affect the rights of any other person or persons to the property, or any part thereof; and that if, at the time of the seizure, proceedings, and decree, Charles M. Conrad had no rights and estate in the property involved, the United States acquired no rights and estate therein; and the marshal's sale of the property transferred no interest or estate therein to the defendant the purchaser at the sale.

But the court refused to give the instructions as prayed, or any of them, and the plaintiff excepted.

At the request of the defendants, the court instructed the jury that, the plaintiff having offered no evidence to show title in himself, it was their duty to return a verdict for the defendants; to which instruction the plaintiff excepted.

The jury found for the defendants; and, judgment having been entered on the verdict, the plaintiff brought the case here on writ of error.

Mr. L. L. Conrad for the plaintiff in error.

Mr. Thomas J. Durant, contra.

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

title: Conrad v. Waples


text: Talk:Conrad v. Waples

title: Talk:Conrad v. Waples


text:
Conrad v. Waples/Opinion of the Court

The questions presented for our determination relate to the admissibility and effect of the act of sale of May 6, 1862, and to the subsequent condemnation and sale in the confiscation proceedings. Numerous exceptions were taken to the rulings of the Circuit Court in admitting and rejecting evidence, and in giving and refusing instructions to the jury; but we do not deem it important to notice them in detail. What we have to say upon the Confiscation Act, the title which passed by a condemnation and sale under it, and the power of enemies to sell and convey to each other their interest in real property situated within the lines of the other belligerent, will sufficiently express our judgment upon the questions involved, and serve to guide the court below in any subsequent proceedings.

The law of July 17, 1862, so far as it related to the confiscation of property, applied only to the property of persons who thereafter might be guilty of acts of disloyalty and treason. It carefully excluded from its application the property of persons who, previous to its passage, may have committed such acts. It left the door open to them to return to their allegiance, without molestation for past offences. The fifth section, with the exception of the third clause, directed the seizure of property only of persons who might thereafter hold an office or an agency under the government of the Confederacy, or of one of the States composing it, or might thereafter act as an officer in its army or navy, or who, owning property in any loyal State or Territory, or in the District of Columbia, might thereafter give aid and comfort to the rebellion; and the joint resolution of the two houses of Congress, passed in explanation and limitation of the law, removed that exception. That resolution declared that the third clause of that section should be so construed as not to apply to any act or acts done prior to its passage. The sixth section, which provided for the seizure of the property of persons other than those named in the previous section, who, being engaged in armed rebellion, did not, within sixth days after the warning and proclamation of the President, cease to aid, countenance, and abet the rebellion, declared that 'all sales, transfers, and conveyances of any such property after the expiration of the said sixty days,' should be null and void. 12 Stat. 627.

Nothing done, therefore, by the elder Conrad when he made his sale to his sons, which was before the passage of the Confiscation Act, affected his title or power of disposition. It is true, he was then engaged in the rebellion, as a member of the Confederate Congress, and giving constant aid and comfort to the insurrectionary government. But, until some provision was made by law, the courts of the United States could not decree a confiscation of his property, and direct its sale. This follows from the doctrine declared in Brown v. The United States, reported in the 8th of Cranch. In that case the question arose, whether certain property of the enemy, found on land at the commencement of hostilities with Great Britain in 1812, could be seized and condemned as a consequence of the declaration of war. And it was held that it could not be condemned, without an act of Congress authorizing its seizure and confiscation. The court said that it was conceded that war gives to the sovereign the right to take the persons and confiscate the property of enemies, wherever found; adding, that the mitigation of this rigid rule, which the humane and wise policy of modern times has introduced into practice, cannot impair the right, though it may more or less affect its exercise. 'that,' said the court, 'remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But, until that will shall be expressed, no power of condemnation can exist in the court.'

The only acts of Congress providing for the confiscation of property of persons engaged in the rebellion are those of Aug. 6, 1861, and of July 17, 1862. That of 1861 applied only to property acquired with intent to use or employ the same, or to suffer the same to be used or employed, in aiding or abetting the insurrection, or in resisting the laws, and did not touch the property in controversy here. And the act of 1862, as already stated, did not authorize a seizure and confiscation for past acts. It might have done so, on the simple ground that the owner of the property seized was a public enemy, without reference to the time he became such; but Congress otherwise provided, and its will furnishes the rule by which to determine the rights of the elder Conrad at the time he disposed of his property.

The statute not only did not recognize past acts as grounds for confiscation, but it reached only the estate of the actual owner at the time the property was seized. It might, undoubtedly, have provided for the confiscation of the entire property, from its being within the enemy's country; but the legislature did not so enact. Congress limited the exercise of its power of confiscation to those cases where the owners were officers or agents of the insurrectionary organization, or of one of the States composing it, or commanding in its army or navy; or where, while holding property in a loyal State or Territory, or in the District of Columbia, they gave aid and comfort to the rebellion; or where, not being within these classes, but being in arms in support of the insurrection, they refused, for sixty days after the warning and proclamation of the President, to return to their allegiance. It was the seizure and confiscation of 'the estate, property, money, stocks, credits, and effects' of the persons thus specially designated that the act authorized; not the seizure and confiscation of property in enemies' territory, or of enemies generally. It was at the estate and interest which belonged to offending persons of the classes mentioned that the act aimed, nothing more. Proceedings under the act, therefore, affected only their estate and interest in the property seized. It was so held by this court in Day v. Micou, reported in the 18th of Wallace, where the effect of an adjudication and sale under the act was the direct point in judgment. And this conclusion was not considered as at all affected by the fact, that after the seizure proceedings in rem were to be instituted for the condemnation of the property. The question, said the court, remained, what was the res against which the proceedings were directed; and this, it answered, was that which was seized and brought within the jurisdiction of the court. 'A condemnation in a proceeding in rem,' it added, speaking through Mr. Justice Strong, 'does not necessarily exclude all claim to other interests than those which were seized. In admiralty cases and in revenue cases a condemnation and sale generally pass the entire title to the property condemned and sold. This is because the thing condemned is considered as the offender or the debtor, and is seized in entirety. But such is not the case in many proceedings which are in rem. Decrees of courts of probate or orphans' courts directing sales for the payment of a decedent's debts, or for distribution, are proceedings in rem. So are sales under attachments or proceedings to foreclose a mortgage quasi proceedings in rem, at least. But in none of these cases is any thing more sold than the estate of the decedent, or of the debtor or the mortgagor, in the thing sold. The interests of others are not cut off or affected.'

If we apply these views to the case at bar, we must hold that there was nothing in the proceedings and decree under the Confiscation Act against the property of the elder Conrad, upon which the defendant in his answer relies, which could in any respect affect the rights of the younger Conrads to the lands conveyed to them before that act was passed, unless the fact that the parties to the conveyance were, at the time of the sale, engaged in the rebellion against the United States, and were within the enemies' country, rendered it unlawful for the father to transfer and the sons to receive the title to real property situated within the Federal lines. The illegality of the sale on this ground was insisted upon in the court below, and the position was there sustained. But we do not think the position at all tenable. The character of the parties as rebels or enemies did not deprive them of the right to contract with and to sell to each other. As between themselves, all the ordinary business between people of the same community in buying, selling, and exchanging property, movable and immovable, could be lawfully carried on, except in cases where it was expressly forbidden by the United States, or where it would have been inconsistent with or have tended to weaken their authority. It was commercial intercourse and correspondence between citizens of one belligerent and those of the other, the engaging in traffic between them, which were forbidden by the laws of war and by the President's proclamation of non-intercourse. So long as the war existed, all intercourse between them inconsistent with actual hostilities was unlawful. But commercial intercourse and correspondence of the citizens of the enemy's country among themselves were neither forbidden nor interfered with, so long as they did not impair or tend to impair the supremacy of the national authority or the rights of loyal citizens. No people could long exist without exchanging commodities, and, of course, without buying, selling, and contracting. And no belligerent has ever been so imperious and arbitrary as to attempt to forbid the transaction of ordinary business by its enemies among themselves. No principle of public law and no consideration of public policy could be subserved by any edict to that effect; and its enforcement, if made, would be impossible. If, then, intercourse between the Conrads, father and sons, they being all enemies, was not unlawful; if between them contracts for the purchase and sale of property, in respect to which there was no special interdict, would have been binding,-the sale in the case at bar can only be impeached, if at all, by reason of the situation of the property within the Federal lines. And from that circumstance it could not be impeached, unless the sale, if upheld, in some way frustrated the enforcement of the right of seizure and confiscation possessed by the United States. It may be admitted that the right of a belligerent to confiscate the property of enemies found within its territory cannot be impaired by a sale of the property during the war, but it is not perceived that on any other ground the sale could be invalidated. A conveyance in such case would pass the title subject to be defeated, if the government should afterwards proceed for its condemnation. And to declare this liability was the object of the provision in the Confiscation Act, enacting that 'all sales, transfers, and conveyances' of property of certain designated parties made subject to seizure should be null void. The invalidity there declared was limited and not absolute. It was only as against the United States that the transfers of property liable to seizure were null and void. They were not void as between private parties, or against any other party than the United States. This was so held in the case of Corbett v. Nutt, reported in the 10th of Wallace. There a devise (which for the purpose of the case was treated as included within the terms 'sales, transfers, and conveyances') of property situated in the District of Columbia, made by a resident enemy in the State of Virginia to a person as trustee, who also resided in that State, and held office under the Confederate government, was held to pass a title good against all the world except the United States. The seizure and confiscation of property of persons engaged in the rebellion, and the appropriation of the proceeds to support the army and navy, were supposed-whether wisely or unwisely is immaterial-to have a tendency to insure the speedy termination of the rebellion; and it was to prevent the provisions enacted to enforce the confiscation from being evaded by the parties whose property was liable to seizure, that sales, transfers, and conveyances of it were declared invalid. As stated by the court, 'They were null and void as against the belligerent or sovereign right of the United States to appropriate and use the property for the purpose designated, but in no other respect, and not as against any other party. Neither the object sought nor the language of the act requires any greater extension of the terms used. The United States were the only party who could institute the proceedings for condemnation, the offence for which such condemnation was decreed was against the United States, and the property condemned or its proceeds went to their sole use. They alone could, therefore, be affected by the sale.' And the court added, that any other construction would impute to the United States a severity in their legislation entirely foreign to their history. If the sale to the younger Conrads had been made after the passage of the Confiscation Act, it would not have prevented the title of the elder Conrad from vesting by the decree of condemnation in the United States. But, having been made previously, it was not impaired by the act.

An actual delivery of the property to the vendees at the time was not essential to the validity of the sale, it having been made by public act before a notary. The code of the State declares that an obligation to deliver an object which is particularly specified is perfect by the the mere consent of the parties, and renders the creditor the owner; and, further, that this rule 'is without any exception, as respects immovables, not only between the parties, but as to all the world, provided the contract be clothed with the formalities required by law, that it is bona fide, and purports to transfer the ownership of the property.' Art. 1914. The code also declares that 'the law considers the tradition or delivery of immovables as always accompanying the public act which transfers the property.' Art.2455; Lallande v. Lee, 9 Rod. (La.) 514; Flynn v. Moore, 4 La. Ann. 400; Ellis v. Prevost et al., 13 La. 235-237. We are of opinion, therefore, that the act of sale made on the 6th of May, 1862, was unaffected by the subsequent confiscation proceedings, and should have been admitted in evidence.

This case is much stronger than that of Fairfax's Devisee v. Hunter's Lessee, reported in the 7th of Cranch, which received great consideration by this court. There a devise to an alien enemy resident in England, made during our Revolutinary War by a citizen of Virginia, and there residing at the time, was sustained, and held to vest a title in the devisee which was good until office found. 'It is clear by the common law,' said Mr. Justice Story, speaking for the court, 'that an alien can take lands by purchase though not by descent; or, in other words, he cannot take by the act of law, but he may by the act of the party. This principle has been settled in the Year Books, and has been uniformly recognized as sound law from that time. Nor is there any distinction whether the purchase be by grant or by devise. In either case, the estate vests in the alien, not for his own benefit, but for the benefit of the State; or, in the language of the ancient law, the alien has the capacity to take but not to hold lands, and they may be seized into the hands of the sovereign. But, until the lands are so seized, the alien has complete dominion over the same.' And, continues the learned justice, 'We do not find that in respect to these general rights and disabilities there is any admitted difference between alien friends and alien enemies. During the war, the property of alien enemies is subject to confiscation jure belli, and their civil capacity to sue is suspended. But as to capacity to purchase, no case has been cited in which it has been denied; and in The Attorney-General v. Wheeden and Shales (Park. Rep. 267), it was adjudged that a bequest to an alien enemy was good, and after a peace might be enforced. Indeed, the common law in these particulars seems to coincide with the jus gentium.'

If an alien enemy can, by devise or purchase from a loyal citizen or subject, take an estate in the country of the other belligerent and hold it until office found, there would seem to be no solid reason for refusing a like efficacy to a conveyance from one enemy to another of land similarly situated. A different doctrine would unsettle a multitude of titles passed during the war between residents of the insurrectionary territory temporarily absent therefrom whilst it was dominated by the Federal forces. Such residents were deemed enemies by the mere fact of being inhabitants of that territory, without reference to any hostile disposition manifested or hostile acts committed by them. In numerous instances, also, transfers of property were made in loyal States bordering on the line of actual hostilities, by parties who had left those States and joined the insurgents. This was particularly the case in Missouri and Kentucky. No principle of public policy would be advanced, or principle of public law sustained, by holding such transfers absolutely void, instead of being merely inoperative as against the right of the United States to appropriate the property jure belli; on the contrary, such a holding would create unnecessary hardship, and therefore add a new cruelty to the war.

It follows from the views expressed that the judgment of the court below must be reversed and the cause remanded for a new trial; and it is

So ordered.

MR. JUSTICE CLIFFORD dissented.

His opinion applies to this and to the subsequent case of Burbank v. Conrad. It will be found on page 293.

title: Conrad v. Waples/Opinion of the Court


text: Talk:Conrad v. Waples/Opinion of the Court


text:
Burbank v. Conrad

ERROR to the Supreme Court of the State of Louisiana.

This was a suit for partition of certain real property in New Orleans, and was brought in a district court of Louisiana. The defendants had judgment, which was affirmed by the Supreme Court of the State, and the plaintiff brought the case here on writ of error. The facts sufficiently appear in the opinion of the court.

Mr. Thomas J. Durant and Mr. J. Q. A. Fellows for the plaintiff in error.

Mr. L. L. Conrad, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Burbank v. Conrad


text: Talk:Burbank v. Conrad

title: Talk:Burbank v. Conrad


text:
Burbank v. Conrad/Opinion of the Court

This is a suit for a partition of certain real property situated in the city of New Orleans in the State of Louisiana. The plaintiff alleges that he is the owner of an undivided half of the premises; that the defendants are the owners of the other undivided half; and that from the nature of the property it cannot be conveniently divided in kind. He therefore asks a partition by licitation; that is, by a sale of the premises and a division of the proceeds.

The plaintiff asserts title to an undivided half by a deed of the marshal of the United States, executed to him upon a sale under a decree of the District Court, condemning and forfeiting the property to the United States, in proceedings taken against it as the property of Charles M. Conrad, under the Confiscation Act of July 17, 1862.

The defendants assert title to the whole property by a sale by public act, made to them by their father, the said Charles M. Conrad, before the recorder and ex-officio notary-public of the parish of St. Mary, in Louisiana, on the 3d of June, 1862. This parish was then within the Confederate lines; and the Conrads, father and sons, were engaged in the rebellion against the United States. The act of sale was not placed on record in the city of New Orleans until 1870. The good faith of the parties in the transaction is not questioned, nor is the sufficiency of the consideration. But it is contended that the parties, being public, enemies in hostile territory, were incompetent at the time to transfer or to accept the title to real property situated within the Federal lines. And if this position should not be sustained, it is further contended that the act of sale not having been recorded in the city of New Orleans until after the condemnation of the property by the District Court and its sale by the marshal, the plaintiff, as purchaser, took the title unaffected by the transaction; in other words, that his position is that of a third party buying upon the faith of the title standing in the name of the elder Conrad upon the public records.

We have recently had occasion, in Conrad v. Waples (supra, p. 279), to consider the first of these questions, and it will be unnecessary here to do more than refer to our opinion in that case. And the second question requires only a brief notice. The object of requiring a public record of instruments affecting the title to real property is to protect third parties dealing with the vendor, by imparting notice to them of any previous sale or hypothecation of the property, and to protect the purchaser against any subsequent attempted disposition of it. In Louisiana, the conveyance is valid between the parties without registration, and passes the title. The only consequence of a failure of the purchaser to place his conveyance on the records of the parish where the property is situated is that he is thereby subjected to the risk of losing the property if it be again sold or hypothecated by his vendor to an innocent third party, or if it be seized and sold by a creditor of his vendor for the latter's debts. The second purchaser from the vendor and the bidder at the judicial sale would, in that case, hold the property. The United States never stood in the position of a second purchaser of the property sold by the elder Conrad. They were not purchasers at any sale of his property. They had caused his estate in the land, whatever that was, to be seized and condemned. By the decree of condemnation, that estate vested in them for the period of his life. His estate for that period was then their property. The statute declares that the property condemned 'shall become the property of the United States, and may be disposed of as the court shall decree.' It was the property of the United States, therefore, which was sold and conveyed at the marshal's sale. The United States acquired by the decree, for the life of the offender, only the estate which at the time of the seizure he actually possessed; not what he may have appeared from the public records to possess, by reason of the omission of his vendees to record the act of sale to them: and that estate, whatever it was, for that period passed by the marshal's sale and deed; nothing more and nothing less. The Registry Act was not intended to protect the United States in the exercise of their power of confiscation from the consequences of previous unrecorded sales of the alleged offender. It was in the power of Congress to provide for the confiscation of the entire property, as being within the enemy's country, without limiting it to the estate remaining in the offender; but, not having done so, the court cannot enlarge the operation of the stringent provisions of the statute. The plaintiff had notice of the character and legal effect of the decree of condemnation when he purchased, and is therefore presumed to have known that if the alleged offender possessed no estate in the premises at the time of their seizure, nothing passed to the United States by the decree, or to him by his purchase.

We see no error in the ruling of the Supreme Court of the State of Louisiana, and its judgment is

Affirmed.

MR. JUSTICE CLIFFORD dissenting.

title: Burbank v. Conrad/Opinion of the Court


text: Talk:Burbank v. Conrad/Opinion of the Court