text:
County of Morgan v. Allen/Opinion of the Court

'It is undeniable that the moving cause for the subscription, the real motive, was the construction of the road in Morgan County. It did not matter to the county by what particular agencies the road should be made,-it was sufficient that it was made. The stipulation must be construed with reference to its object and substance. The object was to secure the road in Morgan County. Had the company built the road out of its general assets, it is very certain they could have demanded the bonds. The sense of the stipulation is, not that these identical bonds shall pay for work done in Morgan County, but it is, if the work is done in the county the bonds shall be delivered. The fact that the road has been completed from Virginia to Jacksonville is a substantial performance of the condition upon which the bonds were issued, and the Allen & McGrady orders for $4,000 of them, drawn by the company, which have honestly come into the possession of the appellant, operated as an equitable transfer of so much of the county subscription from the railroad company to the appellant.'

In another part of the opinion the court said:--

'Upon the theory that these bonds are a trust fund in the custody of the court, it is the duty of the court to see that it is not wasted or misapplied, as the demurrer admits it has been, in the respects alleged in the bill of complaint.

'It is not denied that the parties prosecuting that suit agreed to receive from the county, in full satisfaction of their claims, the sum of $6,000 in cash and $6,360 of these bonds. There were then in the hands of the custodian, Ayres & Co., bonds of the nominal value of $32,500. These were surrendered, by the custodian, to the solicitor of the complainants in that action, in discharge of an indebtedness of only $12.360. This, without explanation, is a wasting and misappropriation of the fund, which a court of chancery can and ought to correct.'

The decree was reversed, with directions to require an answer to the bill.

Upon the return of the cause the county filed an answer, claiming that its bonds had all been cancelled except those disposed of pursuant to the previous decrees of the court. That cause was consolidated subsequently with the suit of Morgan County v. The Peoria, Pekin, & Jacksonville Railroad Company, in which the county sought to recover from that company the possession of some of the bonds which had gone wrongfully, as claimed by the county, into its custody. From the final decree in that case the county prosecuted an appeal to the Supreme Court of Illinois. That case is reported as Morgan County v. Thomas, 76 Ill. 120. The court re-examined the grounds of the previous decisions, and, among other things, adjudged in that case—

First, That the claim of William Thomas should be sustained, not for the reason that the supposed condition upon which the bonds were placed in the custody of Elliott & Brown was performed, 'but because no such condition, so far as the stockholders and creditors of the Illinois River Railroad Company, including Mr. Thomas, were concerned, ever existed. The subscription which the county court was authorized to make for capital stock in the Illinois River Railroad Company by the vote of the people, and the subsequent enactment of the legislature, was not conditional, but absolute, and the subscription made pursuant to this authority was unconditional. It was made prior to any issue of bonds, and when made, the contract between the county on the one side and the railroad company on the other was complete. The county was then legally bound to issue and deliver its bonds to the company in conformity with the terms of its subscription, and upon its doing so, the company was bound to deliver to the county the requisite certificate showing that it was the owner of the number of shares subscribed for in its capital stock. This claim for unpaid subscription then became a part of the assets of the company. Creditors might rely upon it for payment of their debts as implicitly as upon any other assets of the company, and this, too, although the company, subsequently to the making of the subscription, may have abandoned all proceedings under its charter, on account of its insolvency.'

Second, 'The subscription being absolute in its terms, and, therefore, constituting a part of the assets of the company, R. S. Thomas had no authority, simply as president of the company, to consent that it should become conditional; nor could the county make such claim as a matter of right.'

Third, 'The Peoria, Pekin, and Jacksonville Railroad Company acquired no claim to the Morgan County bonds at the sale under the deed of trust, because they were neither expressly nor by necessary implication included within its terms;' that 'the bonds, then, remaining as assets of the Illinois River Railroad Company, could not have been donated by the county to the Peoria, Pekin, and Jacksonville Railroad Company. Nor was it competent for the legislature, by enactment, to make such donation. They were a trust fund, to be held for the payment of the debts of the company to which they belonged, and this, even if the failure of that corporation to exercise its corporate powers had worked its dissolution.'

It thus appears that the county, by the payment of a little over $19,000 to certain creditors of the Illinois River Railroad Company, attempted, to the prejudice of other creditors, to discharge its own indebtedness to that insolvent corporation, represented by bonds of the nominal value of about $50,000, with coupons attached, the latter alone exceeding the claim of the particular creditors thus paid off.

In pursuance of authority conferred by its charter, the Illinois River Railroad Company conveyed, by way of mortgage, dated Nov. 1, 1858, to Alexander Studwell, Lucius Hopkins, and George S.C.obb, as trustees, all of its corporate property, real and personal, franchises and effects, acquired and to be acquired, including all rents, issues, income, profits, moneys, rights, and advantages, derived and to be derived therefrom, in trust to secure the payment of one thousand three hundred and twenty bonds, aggregating the sum of $1,020,000, and payable in New York on the first day of January, 1880, with semiannual interest at the rate of ten per cent per annum.

The deed provided that, if the company failed at any time to meet the annual interest on the bonds, all of them might be treated as matured obligations, and the mortgaged property, in that event, should be surrendered to the trustees, to be owned, operated, and held for the use and benefit of the holders of the bonds.

The company failed to pay the interest when due, after having constructed only the part of the road between Pekin, in Tazewell County, and Virginia, in Cass County. Its board of directors, at a meeting held on the 12th of July, 1862, ordered a surrender of the mortgaged property to the trustees. It then suspended all further operations, and ceased to discharge its functions. The trustees took possession by an agent, and, on the 17th of December, 1862, instituted a suit for foreclosure in the court below.

By an act of assembly passed June 11, 1863, Studwell, Hopkins, and Cobb, trustees, and Allen, Arnold, and Trowbridge, holders of the bonds secured by the deed of trust, and their associates, who should thereafter become purchasers of the mortgaged property under any decree of foreclosure, were constituted a corporation, under the name of the Peoria, Pekin, and Jacksonville Railroad Company, with power to purchase that property, and, upon receiving a proper transfer thereof, to have and be vested with all the corporate powers, privileges, immunities, and franchises theretofore given or granted to the Illinois River Railroad Company.

A final decree was rendered in the foreclosure suit, from which it appears that the principal and interest, then due and unpaid, of the bonds was $1,419,666. A sale thereunder was made on the 1st of October, 1863, to Allen, Arnold, and Trowbridge, at the price of $400,000, and was duly confirmed. A further decree was entered in June, 1864, against the company for the sum of $1,061,292.56, the balance then due upon the debt after crediting the proceeds of sale.

Shortly before the last decree the purchasers at the sale conveyed and transferred the railroad, franchises, and property of the company to the Peoria, Pekin, and Jacksonville Railroad Company, which thereafter completed the road from Virginia, in Cass County, to Jacksonville.

The present suit in equity was instituted by Allen, Arnold, and Trowbridge, the holders jointly of all the bonds secured by the trust deed, and, therefore, the equitable owners of the decree in the foreclosure suit, for the purpose mainly of subjecting to that decree such amount as was due from the county of Morgan upon its subscription, to the capital stock of the Illinois River Railroad Company. The bill proceeds upon the ground that the bonds issued for the subscription were a part of the assets of that corporation, constituting a trust fund to which its creditors could resort for the satisfaction of their debts. Before the commencement of this suit the county had obtained possession of and destroyed or cancelled its bonds. It denied all liability to the complainants, as creditors of the company, by reason of the alleged subscription, or upon any other ground. The complainants contended that the county obtained possession of the bonds in fraud of their rights as creditors of the company, and that, to the extent it had not, in fact, paid the amount due upon the bonds given for the subscription, but remained, notwithstanding their cancellation, liable to the creditors of the company. In that view the court concurred, and having ascertained through a master that there was due from the county, principal and interest, on its original subscription of $50,000 in bonds, the sum of$72,539.56, after allowing all payments theretofore made by it to creditors of the company, a decree was rendered in favor of the complainants for that amount. From that decree the present appeal is prosecuted by the county.

The case was argued by Mr. William Brown and Mr. William M. Springer for the appellant, and by Mr. Washington H. Campbell and Mr. Henry S. Green for the appellees.

MR. JUSTICE HARLAN, after making the foregoing statement of the case, delivered the opinion of the court.

The right of the creditors of the Illinois River Railroad Company to subject to the satisfaction of their claims the bonds issued by Morgan County for its subscription to the capital stock of the company has for many years been the subject of litigation in Illinois.

The preceding statement mentions the cases in her supreme court, where the history of that litigation will be found, and summarizes the essential facts which gave rise to it. They are numerous and complicated, and our labor in ascertaining them with accuracy has been greatly increased by the confused condition of the transcript.

We will notice such of the questions of law, suggested by the assignments of error, as we deem necessary to consider or determine.

1. In Sawyer v. Hoag (17 Wall. 610), we had occasion to consider the question whether the creditors of an insolvent corporation were at liberty to assail a transaction between it and its debtor, whereby his subscription of stock was with-drawn, so far as general creditors were concerned, from the assets of the corporation. In that case we declared the doctrine to be well established, that the capital stock of a corporation, especially its unpaid subscriptions, constitutes a trust fund, for the benefit of its general creditors, and that its governing officers cannot, by agreement or other transaction with the stockholder, release him from his obligation to pay, to the prejudice of its creditors, except by fair and honest dealing, and for a valuable consideration. In the subsequent case of Sawyer v. Upton (91 U.S. 56), we had occasion to consider the same question, and there said: 'The capital stock of an incorporated company is a fund set apart for the payment of its debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the creditors that it shall not be withdrawn or applied otherwise than upon their demands, until such demands are satisfied. The creditors have a lien upon it in equity. If diverted, they may follow it as far as it can be traced, and subject it to the payment of their claims, except as against holders who have taken it bona fide for a valuable consideration and without notice. It is publicly pledged to those who deal with the corporation for their security. Unpaid stock is as much a part of this pledge, and as much a part of the assets of the company, as the cash which has been paid in upon it. Creditors have the same right to look to it as to anything else, and the same right to insist upon its payment as upon the payment of any other debt due the company. As regards creditors, there is no distinction between such a demand and any other assets which may form a part of the property and effects of the corporation.' The same doctrines are held in Upton v. Tribilcock, 91 U.S. 45; Webster v. Upton, id. 65; Hatch v. Dana, 101 id. 205. In no court have they been more distinctly approved than in the Supreme Court of Illinois, when considering the liability of the county of Morgan to creditors of the Illinois River Railroad Company arising out of these identical bonds. Morgan County v. Thomas, 76 Ill. 120.

These principles condemn the arrangements with certain creditors of the company, through which the county, to the prejudice of other creditors, attempted to discharge its liability to the common debtor by paying less than the entire sum due from it. The suits in the State court, under cover of which these arrangements were consummated, were all commenced after the decree of foreclosure, and after the company had suspended operations and was notoriously insolvent. The county recognized the dangers which beset the original enterprise, in furtherance of which its people had voted a subscription of stock payable in bonds. Its officers believed that it would inevitably fail, and that the ends expected to be accomplished by the aid voted would not be attained. It was, for these reasons, that they sought, or acceded to, an arrangement looking to the protection of the county against liability. But it is clear that other creditors besides those with whom it combined had an interest in the disposition of the assets of the company, and that the plan, as conceived and consummated, was wholly inconsistent with the established doctrines of equity. Upon recognized principles of public policy and good faith, the debt which the county owed, by reason of its subscription and the bonds given therefor, constituted, with other property of the company, a trust fund, to which all its creditors could rightfully look for satisfaction of their claims. The county was liable for the whole of that debt, and by no device or combination, to which particular creditors were parties, could it withdraw its bonds from that fund, and thereby avoid liability to the general creditors of the company.

Had the county's liability to the company rested upon its original subscription, the present case, it must be conceded, would come within the very letter of our decisions in the cases just cited. That the subscription was paid or merged in bonds can certainly make no difference in the application of the principle upon which those cases were determined. The bonds were the evidence of the debt created by the original subscription. The company had become, as all its creditors knew, wholly unable to meet its engagements, and had practically ceased to exist. The bonds in question were part of its assets, in which all the creditors had an interest. The county, by an arrangement with some of those creditors, attempted to lessen its obligation to pay what it had stipulated to pay, and thereby defeat the rights of other creditors, who had as much claim upon the assets of the company as those with whom the county contracted. What it did is utterly indefensible under any known rules of equity.

2. But it is contended that the subscription was without authority of law, and that, consequently, the county is not liable thereon, or upon the bonds. The specific ground upon whihc this contention rests is that the vote of the people in 1856 conferred no legal authority to make the subscription, such vote having been taken under an order of the county court submitting, as a single proposition, the question of subscribing $50,000 to the capital stock of three separate railroad companies, one of which was the Illinois River Railroad Company; that a vote upon such a proposition, submitted in that form, was not one upon which a municipal subscription could rest. There are two sufficient answers to this suggestion. One is, that in no one of the three cases in the Supreme Court of Illinois involving this subscription was any such question distinctly raised by the county. All of them proceeded manifestly upon the undisputed ground that the county court had ample power by statute to make the subscription. We are not now disposed to inquire whether the particular mode in which the people were invited to pass upon the proposed subscription affected the substance or validity of the subseription when made; or, whether the subscription was not a waiver of any irregularity in that respect. Until this suit was brought, more than fifteen years after the subscription had been made, the county never disputed, in any direct form, the legality of the order submitting the question of subscription. Another answer to this objection is suggested by the act of Jan. 29, 1857, declaring the vote to have been legally taken, and requiring a subscription and the issuing of bonds in accordance with the vote of the people. That act, it is argued, was beyond the power of the legislature to pass, in that, in violation of section 9 of article 5 of the Constitution of 1848, as construed by the Supreme Court of Illinois, it imposed upon the people of the county a debt which they had never legally voted to incur; that the vote in 1856, upon the proposition to subscribe stock in three distinct railroad corporations, was an absolute nullity, which could not be constitutionally remedied by any act of assembly, or otherwise than by a direct vote of the electors upon a new proposition submitted in legal form. In support of these views we are referred to numerous decisions of the State court, which we had occasion heretofore to examine in other cases. We deem it unnecessary to consider the general doctrine, with all its limitations and qualifications, of the power of the legislature, by retrospective enactments, to cure defects or omissions which occurred in elections relating to municipal subscriptions. It is often difficult to determine, as matter of local constitutional law, whether the defect or omission in a particular case involves a mere irregularity in the execution of a statutory power, or is vital and jurisdictional. It is quite sufficient on this point to say that the Supreme Court of the State, in Thomas et al. v. County of Morgan (39 Ill. 496), as well as in Morgan County v. Thomas (76 id. 120), recognized the act of the 29th of January, 1857, as having legalized the vote of the county. Those cases, in connection with Thomas v. County of Morgan (59 id. 479), are adjudications under which certain creditors of the Illinois River Railroad Company have received payments of their claims out of the amount due from the county upon the bonds issued in payment of its subscription. The decrees in those cases could not have been rendered except upon the ground that the subscription was not invalid by reason of the particular mode in which the question of county aid was submitted to the electors.

3. It is further contended that the bonds were deposited with Elliott & Brown, to be delivered upon the condition, to which the railroad company assented, that they should be used only for the payment of work done in Morgan County; and, since no such work was done by that company, neither the latter nor its creditors can enforce liability upon the county.

Undoubtedly the county authorities, at the outset, expected that the bonds would be applied only upon such work, and there is no reason to suppose that the president of the company intended any application of them inconsistent with the paper which he exoeuted and delivered to the county prior to their issue. The county court relied upon the assurances given by that officer, and made an order, at its September Term, 1857, that the bonds be delivered to the company. In conformity with that order the bonds were deposited with Elliott & Brown, the bankers of the company, and were held by them subject to its order. They in return received, for the county and by its direction, the certificate of stock. Subsequently, and after the bonds were issued and delivered to Elliott & Brown, the county voted as a stockholder in the election of directors, and for two years paid the interest on its bonds. During all that time who owned the bonds? We have already seen that the Supreme Court of the State adjudged, and, as we think, rightly, that the subscription was absolute and unconditional, and, when made, the company became entitled to the bonds, and the county to the stock. When the absolute subscription was made, the claim for its payment became, as was held by that court, a part of the assets of the company, upon which creditors could rely for the payment of their debts. While, as held by the State court, Thomas might bind himself to treat the subscription as conditional, he had no authority, simply as president of the company, 'to consent that it should become conditional.' The present appellees, by their purchase of its mortgage bonds (about $900,000 of them purchased in April or May, 1862, and the remainder in 1868), became creditors of the company, and nothing is disclosed by the evidence which estops them from claiming, as against the county, that the bonds given for the county's unconditional subscription constituted, from, at least, the time of their issue and delivery to Elliott & Brown, a part of the assets of the company, to which the latter's creditors could look. Upon this very point the Supreme Court of the State expressed similar views, and said that 'where a party receives property from another in discharge of precedent liability, and the party delivering the property has no legal right to prescribe its future disposition or use, as in the present instance, the mere fact that when he delivers it he expects and intends that it shall be applied to a particular disposition or use, does not make such an application of it a condition precedent to the vesting of title.'

4. The objection that the appellees are concluded by the decree in the State court, under which the county obtained possession of its bonds, is not well taken. They were not parties to any of those suits, but it is contended that they are nevertheless bound by the adjudication upon the claim asserted therein by Studwell, Hopkins, and Cobb, in their capacity as trustees in the mortgage deed, that they were entitled to the possession of the bonds, for delivery to the new company in completion of the original contract with the county. The Supreme Court of the State was of opinion that the mortgage deed did not, by its terms, include these bonds; that the Peoria, Pekin, and Jacksonville Railroad Company was not a reorganization of the Illinois River Railroad Company, but a new and totally independent organization; and, therefore, the new company acquired no claim to the bonds at the sale under the deed of trust. 76 Ill. But if the trustees, after obtaining the decree of foreclosure and a sale of the mortgage property for the benefit of the bondholders, were under a duty, or by virtue of their position were authorized to enforce, for the benefit of those creditors, the collection of the decree against the company for the balance of the mortgage debt, it is manifest that they did not assume, in the suit in the State court, to which they and the county were parties, to represent the bondholders. In the suit commenced by Elliott & Brown, and reported in 39 Ill., they claimed the right to hold the bonds for the benefit of the new company, and not for the bondholders, whose claims, after crediting the proceeds of the foreclosure sale, were unsatisfied to the extent of $1,061,292.56. Besides, the State court did not, in that case, decide that Morgan County was discharged altogether, and as to everybody, from responsibility upon the bonds, because of the failure of the old company to construct the road in that county. In the original decree it directed the bonds to remain in the custody of Ayres & Co. And in the case in 59 Ill. the court held that the construction of the road by the new company was a substantial compliance with the contract between the old company and the county. There was no adjudication, in the State court, against the claims of the present appellees. On the contrary, the grounds upon which the claims of Vail, Ladd, Thomas, Blair, and other creditors were adjudged by the Supreme Court of the State to be payable out of these bonds are the precise grounds upon which we sustain the claims of appellees as creditors of the old company.

5. In reference to the suit which, it is suggested, was instituted by Studwell, Hopkins, and Cobb in the Circuit Court of the United States for the Southern District of Illinois, it is sufficient to say that the present transcript contains nothing upon that subject. We are not advised, in any proper form, of the nature and object of that suit, nor who were parties to it. We cannot, therefore, say that the final decree in that case, if any was rendered, would affect the rights of parties in this litigation.

There are many other questions which counsel have discussed, but we do not regard them as material in determining the essential rights of the parties. We, therefore, refrain from any discussion of them. The decree below is in line with the adjudications of the Supreme Court of the State, and, in our judgment, is right.

While upon the bench MR. JUSTICE SWAYNE and MR. JUSTICE STRONG participated in the decision of this case. They concur in this opinion; and it is ordered that the judgment be entered as of the date when this cause was submitted to this court.

Decree affirmed.

MR. JUSTICE MILLER, MR. JUSTICE FIELD, and MR. JUSTICE BRADLEY dissented.

NOTE.-A petition was filed for rehearing.

See Allen v. County of Morgan, 103 U.S. 515.


text: Talk:County of Morgan v. Allen/Opinion of the Court

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


text:
Allen v. Morgan County

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Allen v. Morgan County


text: Talk:Allen v. Morgan County

title: Talk:Allen v. Morgan County


text:
Allen v. Morgan County/Opinion of the Court

We do not perceive that the petition for rehearing in behalf of the county of Morgan contains any suggestion which was not pressed upon our attention in oral argument, as well as in the printed briefs heretofore filed. All that counsel said was carefully considered by us. But there were one or two matters, not distinctly covered by our opinion, to which we may properly refer. A rehearing is asked to the end that a complete record of the suit, in the Circuit Court of the United States for the Southern District of Illinois, of Studwell, Hopkins, and Cobb, Trustees, v. Morgan County, &c., may be obtained and embodied in the transcript of the present case. If the record of the case were here, it could be of no use to the county. The decree therein is not pleaded for any purpose. Further, it is apparent, as well from the printed arguments filed in this court, for and against the county, as from the testimony of the witnesses who refer to the case in the Circuit Court, that the suit of Studwell, &c. v. Morgan County, &c., was dismissed by the complainants therein, and that there was no adjudication upon the merits. The decree of dismissal in that suit, therefore, concluded none of the parties to it, even were it conceded that the trustees had authority, in virtue of their position, to represent the present appellees in any litigation with Morgan County touching its liability to creditors of the Illinois River Railroad Company.

We did not, as counsel seem to suppose, overlook the argument based upon the subscription made by the city of Jacksonville. That subscription, as matter of law, was wholly disconnected from the subscription made by the county, and we could not regard the former as payment, in whole or in part, of the latter, without assuming to make for the parties a contract which they did not choose to make for themselves. If, as urged, that the result is unfortunate for the county, we can only say, what cannot be too often repeated, that hard cases cannot be permitted to make bad law.

Petition denied.

Allen v. County of Morgan, appeal from the same decree, was argued by the counsel who appeared in the preceding case. MR. JUSTICE HARLAN remarked, in giving the opinion of the court, that no error was perceived in the record to the substantial prejudice of the appellants. The decree below was therefore

Affirmed.

MR. JUSTICE MILLER, MR. JUSTICE FIELD, and MR. JUSTICE BRADLEY dissented.


text: Talk:Allen v. Morgan County/Opinion of the Court


text:
Water-Works Company v. Barret

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

The facts are stated in the opinion of the court.

Mr. Augustus H. Garland for the appellant.

Mr. U. M. Rose, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Water-Works Company v. Barret


text: Talk:Water-Works Company v. Barret

title: Talk:Water-Works Company v. Barret


text:
Water-Works Company v. Barret/Opinion of the Court

The Little. Rock Water-works Company, a corporation under the laws of the State of Arkansas, undertook to construct a system of water-works for the use of the city of Little Rock and the citizens of that city, under an ordinance passed by the city authorities.

In order to raise the money necessary to do this work the company issued its bonds to the amount of $80,000, the payment of which was secured by a mortgage on its entire works and property to Barret and Alexander, as trustees, who, on failure of payment of the semi-annual interest coupons, brought in the State court this foreclosure suit. In its progress it was removed into the Circuit Court of the United States, where a receiver was appointed to take charge of the property pending the litigation. The court rendered a final decree ordering a sale to satisfy the full amount of the bonds and coupons secured by the mortgage. This appeal was taken by the company.

Two errors are assigned:--

1. The appointment of a receiver.

2. The rendering of a decree for the amount of the bonds which by their terms are not yet due.

As regards the first assignment of error, it is sufficient to say that the record shows that the appointment of receiver was made by consent of parties, the attorneys of appellant being in court at the time. However other parties may complain of this act, and there were other parties, none of whom have appealed, the present appellants are bound by their consent in this court as well as in the court below, and cannot be heard to object to what they then agreed to.

As to the second error assigned, the counsel for appellant says, 'The court will search in vain through the bill, two amended bills, and supplemental bill, to find any reason why the appellees should have a decree for the payment of bonds which will not be due for many years.' Yet in the very body of the original bill is a long extract from the deed of trust on which the suit is founded, a part of which is in this language: 'It is further agreed that in the event said party of the first part (the water-works company) shall fail for the space of ninety days to pay the semi-annual interest due on said bonds as and when the same may become due, or any of said annual instalments of the sinking-fund as and when the same may become due, provided that such failure is not caused by the said city of Little Rock under the contract aforesaid, after presentation and demand of the payment of said coupons, or after the demand of any instalment of said sinking-fund, then and in that event all of said bonds shall become due and payable, and the lien hereby created may be enforced for the whole debt.' The bill shows that one set of coupons was due and unpaid over ninety days when this suit was begun, that others fell due during the litigation, and that the company was insolvent and the works going to ruin. A copy of the deed of trust is made a part of the bill by reference and is attached to it as an exhibit.

It is said, however, that it does not appear by any allegation of the bill that the failure to pay was not by reason of the fault of the city of Little Rock mentioned in the mortgage. It seems probable that the fault of the city, which might mitigate the failure of the company to pay its interest, so far as to prevent the whole sum falling due for that failure, had reference to the money which the city had agreed to pay for the use of water in the public buildings and certain hydrants which were to be for public use.

If there was any such fault in the city it was matter of defence to be made out by the defendant, for the innocent purchaser of the bonds could not be supposed to know whether the city had paid as it should or not. No such case is made by the appellant. On the contrary, it appears that the appellant did not construct the works, but let out the job to Dennis Long and Samuel A. Miller; that by reason of their failure to do the work according to the contract of the company with the city, the latter refused to accept it, and the company sued Long and Miller for that cause and attached the work they had constructed, which suit was pending when the foreclosure suit began, the record of the former being made a part of the latter. It was obviously the fault of the appellant and not the city which caused the default in paying the coupons.

These are all the errors assigned, and they are not sustained by the record.

Decree affirmed.


text: Talk:Water-Works Company v. Barret/Opinion of the Court


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Green v. Fisk (103 U.S. 518)

MOTION to dismiss an appeal from the Circuit Court of the United States for the District of Louisiana.

The facts are stated in the opinion of the court.

Mr. Thomas J. Durant and Mr. Charles W. Hornor in support of the motion.

Mr. Thomas J. Semmes, contra.

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

title: Green v. Fisk (103 U.S. 518)


text: Talk:Green v. Fisk (103 U.S. 518)

title: Talk:Green v. Fisk (103 U.S. 518)


text:
Green v. Fisk (103 U.S. 518)/Opinion of the Court

This was a suit begun by Mrs. Fisk, the appellee, in a State court of Louisiana, to obtain a partition of real property. She alleged that she was the owner of one-half the property; that she was not willing to continue her joint ownership, and that a partition by sale was necessary, as a division could not be made in kind. The prayer of her petition was in accordance with these allegations.

Green, the defendant below, being a citizen of California, removed the case to the Circuit Court of the United States for the District of Louisiana. In that court, on the 31st of March, 1879, Mrs. Fisk was decreed to be the owner of one-half the property, and the case was referred to 'J. W. Gurley, Esq., master, to proceed to a partition according to law, under the direction of the court.' From that decree an appeal was taken by the defendant, which Mrs. Fisk now moves to dismiss, because the decree appealed from is not the final decree in the cause.

We think the motion must be granted. In the Circuit Court the suit was one in equity for partition. Although no formal order was entered assigning it to the equity side of the court, that was clearly its proper place, and it was so treated by the parties and the court.

In partition causes, courts of equity first ascertain the rights of the several persons interested, and then make a division of the property. After the division has been made, and confirmed by the court, the partition, if in kind, is completed by mutual conveyances of the allotments to the several parties. Mitford, Eq. Pl. (4th ed. by Jeremy), 120; 1 Story, Eq., sect. 650; 2 Daniell, Ch. Pr. (4th Am. ed.) 1151.

A decree cannot be said to be final until the court has completed its adjudication of the cause. Here the several interests of the parties in the land have been ascertained and determined, but this is merely preparatory to the final relief which is sought; that is to say, a setting off to the complainant in severalty her share of the property in money or in kind. This can only be done by a further decree of the court. Ordinarily, in chancery, commissioners are appointed to make the necessary examination and inquiries and report a partition. Upon the coming in of the report the court acts again. If the commissioners make a division the court must decide whether it shall be confirmed before the partition, which is the primary object of the suit, is complete. If they report that a division cannot be made and recommend a sale, the court must pass on this view of the case before the adjudication between the parties can be said to be ended.

In this case a partition by sale was asked for, because the property was not susceptible of division in kind. That the court has not ordered, and the reference to the master was undoubtedly to ascertain, among other things, whether such a proceeding was in fact necessary in order to divide the property. The master was in everything to proceed under the direction of the court. He had no fixed duty to perform. He was the mere assistant of the court, not in executing its process, but in completing its adjudication of the partition which was asked. There are still questions, in which the parties have each a direct interest, and they must be determined judicially before the relief has been granted which the suit calls for.

In foreclosure suits it has been held that a decree which settles all the rights of the parties and leaves nothing to be done but to make a sale and pay over the proceeds is final for the purposes of an appeal. The reason is that in such a case the sale is the execution of the decree of the court, and simply enforces the rights of the parties as finally adjudicated. Here, however, such is not the case, because still the court must act judicially in making the partition it has ordered. What remains to be done is not ministerial but judicial. The law has prescribed no fixed rules by which the officers of the court are to be governed in the performance of the duty assigned to them. The court is still to exercise its judicial discretion in directing the movements and approving the acts of its assistants, until it has finally settled and determined on the details of the partition, if made in kind, or directed a sale by the ministerial officers and prescribed the rules for a division of the proceeds.

Appeal dismissed.


text: Talk:Green v. Fisk (103 U.S. 518)/Opinion of the Court


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Dennison v. Alexander

APPEAL from the Supreme Court of the District of Columbia.

Alexander, on the fifth day of January, 1875, filed his bill in the court below against Dennison and others, commissioners of the District of Columbia, and the First National Bank, to restrain the sale of real estate in the city of Washington which the commissioners had advertised to satisfy the amount due for improvements made by the board of public works. The certificate of indebtedness issued by that board and transferred to the bank, was for less than $400 and more than $100. A perpetual injunction was awarded and an appeal allowed by a justice of this court.

Mr. Albert G. Riddle for the appellant.

Mr. Joseph J. Stewart for the appellee.

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

title: Dennison v. Alexander


text: Talk:Dennison v. Alexander

title: Talk:Dennison v. Alexander


text:
Dennison v. Alexander/Opinion of the Court

We think this case is governed by Railroad Company v. Grant, 98 U.S. 398. In that case we held that the act of Feb. 25, 1879, c. 99, sects. 4, 5 (20 Stat. 320), took away our right to hear and determine cases from the Supreme Court of the District of Columbia where the matter in dispute did not exceed $2,500, and that it operated on pending cases which had been brought here under the provisions of sect. 847 of the Revised Statutes relating to the District. This case came here under sect. 848, which provided for the allowance of appeals and writs of error by the justices of this court under certain circumstances, when the matter in dispute was less than $1,000, the then general jurisdictional amount, but exceeded $100. There is no reservation in the repealing act as to this class of pending cases any more than the other. Both sections have reference to the same general subject-matter, that is to say, our review of the judgments and decrees of the Supreme Court of the District in cases where jurisdiction has been made to depend on the value of the matter in dispute. Under the act of 1879 we can no longer hear any of that class of cases, unless the amount exceeds $2,500.

Appeal dismissed, each party to pay his own costs.


text: Talk:Dennison v. Alexander/Opinion of the Court


text:
County of Tipton v. Locomotive Works

ERROR to the Circuit Court of the United States for the Western District of Tennessee.

The facts are stated in the opinion of the court.

Mr. George Gantt for the plaintiff in error.

Mr. William Y. C. Humes, Mr. Henry T. Ellett, and Mr. Stanley Matthews for the defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: County of Tipton v. Locomotive Works


text: Talk:County of Tipton v. Locomotive Works


text:
County of Tipton v. Locomotive Works/Opinion of the Court

This is a writ of error from a judgment in favor of the Rogers Locomotive and Machine Works against the county of Tipton, in the State of Tennessee, for the principal and interest of fifty bonds of $500 each, dated Jan. 1, 1869, and payable on the first day of January, 1873, to the Mississippi River Railroad Company or bearer, with interest from date at the rate of six per cent per annum.

Each bond, signed by the chairman of the Tipton County court, and countersigned by its clerk, recites that it is 'issued under and by virtue of sect. 6 of an act of the legislature of the State of Tennessee, passed Feb. 25, 1867, amended on the twelfth day of February, 1869;' also, that 'a special tax is levied, by authority of law, upon all the taxable property in the county of Tipton, to meet the principal and interest of these bonds, collectible in equal instalments, running through five years, as the bonds themselves mature;' and further, that 'this is one of four hundred bonds, all of the same denomination and rate of interest, issued by Tipton County in payment of a subscription of $200,000 to the Mississippi River Railroad Company, made by the county court of said county, under the authority of the acts above recited,-these bonds, transferable by delivery and redeemable in five years at the rate of $40,000 a year, commencing Jan. 1, 1870.'

When the foregoing acts were passed there was in force a general statute, under the provisions of which counties, incorporated cities, and towns could subscribe stock in railroads, upon certain terms and conditions, one of which was the previous approval of the legal voters of such county, city, or town, at an election called and held for the ascertainment of their will. These special acts, in connection with the act of Nov. 5, 1867, for the benefit of the Mississippi River Railroad Company, authorized the county courts of counties on the line of that company's road (among which was the county of Tipton) to subscribe to its capital stock, without requiring a submission of the question of subscription to a popular vote,-the majority of the justices in commission being present, and a majority of those present concurring.

The validity of those acts is questioned here, as it was in the court below, upon the ground that they are unconstitutional, and, therefore, gave no authority to make the subscription, or issue bonds in payment thereof.

The provisions of the Constitution of Tennessee (that of 1834), to which, it is supposed, they are repugnant, are sect. 8 of art. 1, and sect. 7 of art. 11; the first of which declares that 'no freeman shall be taken, or imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life or property, except by the judgment of his peers, or the law of the land;' and the last of which provides that 'the legislature shall have no power to suspend any general law for the benefit of any particular individual; nor to pass any law for the benefit of individuals, inconsistent with the general law of the land; nor to pass any law granting to any individual, or individuals, rights, privileges, immunities, or exemptions, other than such as may be, by the same law, extended to any member of the community who may be able to bring himself within the provisions of such law: Provided, always, the legislature sahll have power to grant such charters of incorporation as may be deemed expedient for the public good.'

It is contended that these special acts are in violation of sect. 7, art. 11, of the State Constitution in that they authorized a limited number of counties to subscribe to the capital stock of a particular railroad corporation, and also because they dispensed with the previous sanction of a popular vote, as required by the general statute regulating railroad subscriptions by counties, incorporated cities, and towns; and, further, that being partial and special laws, inconsistent with the general law upon the subject of municipal subscriptions, they do not constitute 'the law of the land,' within the meaning of sect. 8, art. 1, of that Constitution. The argument in behalf of the plaintiff in error is, that the power, reserved to the legislature in the proviso to sect. 7 of art. 11, 'to grant such charters of incorporation as may be deemed expedient for the public good,' is limited, in its exercise, by the prohibitions contained in the body of the same section; and that a charter conferring upon a particular railroad company, or upon particular municipal corporations, special privileges and immunities, not given by the general law, was inconsistent with those prohibitions, and, besides, was not a 'law of the land' within the meaning of sect. 8 of art. 1.

These propositions have received at our hands that consideration which their importance confessedly demands; and if we err in the conclusions reached, it will not be the fault of able counsel, who, both in oral and printed arguments, have pressed upon our attention every suggestion which seems to have any bearing upon the question presented for determination.

The earnestness with which they have asserted their positions to be sustained by adjudications of the Supreme Court of the State has made it necessary for us to examine, with great care, a very large number of the reported decisions of that learned tribunal. If, when the acts in question were passed, the General Assembly was without power, under the Constitution, as interpreted by the highest court of Tennessee, to enact a special law authorizing a designated number of counties, without a previous vote of the people, to make subscriptions of stock to a particular railroad running through such counties, our duty is to accept that construction of the fundamental law of the State. But if there was no such contemporaneous or fixed construction, this court, as was the court of original jurisdiction, is under a duty imposed by the Constitution of the United States, from the performance of which it is not at liberty to shrink, to determine, for itself, what were the legal rights of parties at the time the bonds in suit were issued.

It would extend this opinion to an improper length should we extract from the numerous decisions of the State court, cited by counsel, so much of their language as seems pertinent to the questions before us. We must, therefore, content ourselves with stating only the general doctrines to be deduced from the adjudged cases, some of which are cited in a note to this opinion.

Prior to the case of Wallace v. Tipton County (to which we will hereafter refer more particularly), the following rules or principles seem to have been established by repeated adjudications in the Supreme Court of the State, viz.:--

That a law, which did not alike embrace and equally affect all persons in general, or all persons who exist, or may come into the like state and circumstances, was a partial and special law, and, therefore, not 'the law of the land,' within the meaning of the Constitution of 1796, from which was taken sect. 8 of art. 1 of the Constitution of 1834;

That sect. 7 of art. 11, prohibiting the suspension of a general law for the benefit of any particular individual, or the passage of any law for the benefit of individuals, inconsistent with the general laws of the land, or the passage of any law granting to any individual or individuals, rights, privileges, immunities, or exceptions, other than such as may by the same law be extended to any menber of the community who may be able to bring himself within the provisions of such law, is a statement, in condensed form, of the construction which the Supreme Court of the State had in several decisions placed upon the phrase, 'the law of the land,' as used in both the Constitutions of 1796 and of 1834;

That, nevertheless, the authority of the legislature to create corporations with special rights and privileges, existed as an incident of sovereignty; that a law creating a corporation and granting a franchise was more in the nature of a contract than a 'law of the land,' in the sense of the Constitution; and, upon that ground, the right given to a bank by its charter, granted in 1832, to take a greater rate of interest than was allowed by a general statute to individual citizens, was held not to be obnoxious to the Constitution upon the ground that it was not a general law, or 'the law of the land;'

That the proviso in sect. 7 of art. 11 of the Constitution of 1834 was inserted 'for the purpose of enabling the legislature thereby to grant exclusive privileges, which, but for the proviso, would be prohibited by the body of the section;' that the power to create corporations was not curtailed or restricted by the general prohibitions in that section, but only by the positive provisions to be found in other parts of the Constitution; That prior to the adoption of the Constitution of 1834 the Supreme Court of the State suggested doubts as to whether the taxing power, being legislative in its nature, could be constitutionally conferred upon the subordinate municipal corporations or civil divisions of the State; and, that for the purpose of removing those doubts, the convention which framed that Constitution incorporated into it sect. 29 of art. 2, which declares that 'the General Assembly shall have power to authorize the several counties and incorporated towns in the State to impose taxes for county and corporation purposes, respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to State taxation;'

That the construction of a railroad to or through a county or incorporated town is, in the one case, a county, and in the other a corporate purpose, for which the legislature may invest such county or town respectively with the power to impose taxes;

That under sect. 29 of art. 2 the legislature could, by special act, confer upon the mayor and aldermen of an incorporated town, directly and exclusively (and, consequently, upon the county court of a county), the power to subscribe railroad stock, without first, or at all, submitting the question of subscription to a vote of the inhabitants of such town.

Such were, beyond question, as we think, the established principles of the Constitution as announced by the highest judicial tribunal of the State, up to the decision in Wallace v. Tipton County, to which reference has already been made. These doctrines, it must be conceded, would sustain the statutes of 1867 and 1869 against the objections urged. But it is contended that the decision in that case is a direct authority against the constitutionality of those acts, and should control our judgment.

That case deserves special examination. It was a suit commenced in 1873, in an inferior State court of Tennessee, by certain taxpayers of Tipton County against the county court of that county, the Paducah and Memphis Railroad Company (a corporation lawfully created by the consolidation, in 1872, of the Mississippi River Railroad Company, with the Paducah and Gulf Railroad Company, a Kentucky corporation), and the local collectors of Tipton County engaged in the collection of taxes which had been levied to meet the bonds constituting the issue of $200,000 to the Mississippi River Railroad Company, under the aforesaid acts of 1867 and 1869. The object of that suit was to enjoin the collection of such taxes, upon the ground that those acts were unconstitutional and void. In May, 1874, certain citizens of other States, holders of a portion of the Tipton County bonds, were, upon their own application, made parties defendant in that suit. They thereupon filed a petition for its removal to the Circuit Court of the United States, and, as to them, the opinion of the court states, the suit was removed. The railroad company, by and amended answer, disclaimed all interest in the suit, and informed the court that it neither held nor owned any of the bonds, but that they were held and owned by others who had paid value therefor. Thenceforward it was a suit, practically if not exclusively, between parties who had no interest in enforcing the collection of the county's bonds. It was finally determined without the presence of any of the holders of the bonds. Waiving any question as to whether, under the act of Congress, the whole suit was not removed to the Federal court, it is sufficient to say that, in accordance with the prayer of the taxpayers, a decree was entered, which was, by the Supreme Court of the State, in all respects, affirmed. Although the case was determined in the Supreme Court, at its September Term, 1875, it has not, that we can ascertain, been published in its reported decisions, and we are not, therefore, advised of the precise grounds upon which the acts of 1867 and 1869 were assailed in argument, as being in conflict with the Constitution. But the opinion of the court discloses the fact that those acts were held to be repugnant to sect. 8 of art. 1, and sect. 7 of art. 11, of the State Constitution, upon the ground, that while the general law of 1852, regulating railroad subscriptions by counties, towns, and cities, required a popular vote as a condition precedent to any authority to make subscriptions, the special acts of 1867 and 1869 permitted a few counties, upon the line of the Mississippi River railroad, by their respective county courts, and without a submission of the question to the people, to subscribe to that company's stock. No comment whatever is made in the original opinion, and very little in the opinion on the rehearing, upon the scope or effect of the proviso in sect. 7 of art. 11, giving or reserving to the legislature the power to grant such charters of incorporation as it deemed expedient for the public good. But it is to be assumed that the court did not regard that proviso as materially affecting the conclusion reached. If there had been no decision of the State court, subsequent to that of Wallace v. Tipton County, on the subject of municipal subscriptions, under special statutes, we should feel greatly embarrassed by the circumstance, that the judgment of the Circuit Court could not, upon this branch of the case, be sustained, except by disregarding that decision.

But all difficulty, we think, is removed by the decision of the State court in the more recent case of the Knoxville and Ohio Railroad Company v. Hicks, determined in 1877. Unless we mistake, altogether, the import of that decision, it is inconsistent with the doctrines of Wallace v. Tipton County, and, upon the point now before us, practically overrules the latter case.

In Knoxville and Ohio Railroad Company v. Hicks, it was a question whether an act passed in 1852, exempting the capital stock, dividends, roads, and fixtures of the Knoxville and Kentucky Railroad Company from taxation, until the stock paid a dividend equal to the legal rate of interest, was in conflict with the Constitution of 1834. That Constitution declared (sect. 28, art. 2) 'that all lands, liable to taxation, held by deed, grant, or entry, town lots, bank stock, &c., and such other property as the legislature may from time to time deem expedient, shall be taxable.' In view of that constitutional injunction, the case was a very strong one for the application of the prohibitions, against special and partial laws, contained in sect. 7 of art. 11, if such prohibitions had any application whatever to charters of incorporation granted by the legislature. But the court, after stating that the convention of 1834 comprised among its delegates some of the ablest lawyers the State ever had, who were familiar with the principles of the Dartmouth College case, and knew that the legislature, under the previous Constitution, had, without question, exercised the power of granting charters, with total or partial exemptions, said: 'With these facts prominently before the convention, if it was their purpose to restrict the power of the legislature, one should expect to find such restriction expressed in unequivocal language. But the only direct provision, in regard to the power of the legislature in respect to charters of incorporation, is in the proviso to sect. 7 of art. 11, to the effect that the restriction upon the power of the legislature to grant special privileges, immunities, and exemptions was not to be construed to affect the power of the legislature to grant such charters of incorporation as they might deem expedient for the public good, thereby leaving the power as it previously existed. See Hope v. Deaderick, 8 Hum. 1. If it had been the purpose of the convention to restrict the power of the legislature in this particular, this would certainly have been the appropriate place to insert the restriction; but so far from doing so, we find only the proviso above referred to, which was intended to exclude the idea that the first clause of the section against the granting of special privileges, immunities, or exemptions was intended to limit the power of the legislature in regard to granting charters of incorporation. From this, the conclusion seems necessarily to follow, that the legislature was still left the power to pass laws creating bodies corporate, with all the rights, privileges, immunities, and exemptions which it was usual to vest in such fictitious persons under the general principles previously recognized; and, as we have seen, the power in question was previously recognized by the general law and the authorities of the State. We do not say rights, privileges, or immunities might be granted inconsistent with other positive restrictions of the Constitution.' The court then proceeds to consider the language of sect. 28 of art. 2, already cited, in reference to taxation, and says: 'On the other hand, this section may well be construed as having no reference to the property of corporations to be created, and as leaving the power of the legislature, in this regard, as it stood before. This is the more natural construction when we take this section in connection with the clause before referred to, and find that no express restriction is placed upon the power conceded to have previously existed in the legislature, in respect to corporations, in that clause which refers directly to the power to grant such charters.'

The chief significance of the decision in the last case lies in the explicit declaration by the court, that the power expressly granted to the legislature in the proviso the seventh section of article eleven, to create corporations with such charters as, in its judgment, were expedient for the public good, was not limited or restrained in its operation by the prohibitions in the same section against special rights, privileges, immunities, or exemptions; in other words, that the legislature, as to corporations, could grant special rights and privileges which, but for the proviso, might be deemed obnoxious to the prohibitory clauses of that section. And in that view we concur.

The case of McKinney v. Overton Hotel Co. (12 Heisk. (Tenn.) 104), cited by counsel for plaintiff in error, is not adverse to this conclusion. The main question there was as to the constitutionality of an act, passed in 1860, authorizing the hotel company to issue mortgage bonds bearing a greater rate of interest than was allowed by the general law of the State. It was held that sect. 7 of art. 11, giving power to grant such charters of incorporation as the legislature deemed expedient for the public good, must be construed in connection with sect. 6 of the same article, which imposed upon the legislature lature the duty of fixing the rate of interest, and declared, that the 'rate so established shall be equal and uniform throughout the State.' The decision was that the legislature, in creating corporations under sect. 7, could not grant to them 'powers or rights expressly forbidden by any other clause of the Constitution.' Consequently, the rate of interest fixed by the legislature was applicable to corporations as well as to individuals. The language of the court, in connection with prior decisions, upon the general subject of corporations, justifies the conclusion that the act of 1860 would not have been declared void had not the Constitution of 1834 expressly required the rate of interest to be equal and uniform throughout the State.

Looking, then, as well at the language of the Constitution as at the course of decision in the Supreme Court of Tennessee up to the time the acts of 1867 and 1869 were passed, and giving full effect to its latest utterance, to which our attention has been called, and remembering, also, that the power given to a municipal corporation to subscribe to the stock of a railroad company may be, also, a right and privilege of that company (County of Scotland v. Thomas, 94 U.S. 682; Wilson v. Salamanca, 99 id. 499; Empire v. Darlington, 101 id. 87, 91), our conclusion is, that those acts were not repugnant to the constitutions of the State, by reason of the authority they confer on a limited number of counties to make, and on a par ticular railroad corporation to receive, a subscription of stock, nor because they dispensed with the previous assent of the people of such counties expressed at a popular election.

It remains to inquire whether, in view of the evidence, the Circuit Court committed any error of law, either in giving or refusing instructions to the jury.

Certain facts should be stated as explanatory of the instructions which were given to the jury. Upon the trial evidence was introduced in behalf of the county tending to establish 'fraud, moral coercion, intimidation, and bribery in the procurement and issuance of the bonds in suit in this case upon the part of the Mississippi River Railway Company,' and that such corrupt practices were not known to the county court until February, 1875. On the 30th of September, 1871, at a meeting of the board of directors of the railroad company, a resolution was offered by one who, at the time, was a justice of the peace of Tipton County, which, after reciting the failure of the county to provide means for the payment of its bonds and coupons, designated E. Norton, as agent of the company, to make the following proposition to the county, namely: 'That this company will grant an extension of time for the payment of said bonds and interest, so that the said payments shall be extended to the period of ten years from the date of the bonds, in ten annual instalments, instead of the time they now have to run; this extension to apply to all bonds which this company owns or controls. But this proposition should be made on condition that the County Court of Tipton County shall immediately levy a tax, and proceed to its collection, for the amount now due under this offer, and that they shall each year levy, collect, and promptly pay over the amount to fall due each year, as the same falls due during the whole period of this proposed extension; and, in case of a failure to levy, collect, or promptly pay over said annual amount, then the remaining bonds to become due, according to their original terms.'

This proposition was presented to the county court by Norton at its October Term, 1871. Several of the justices were then present who had attended the July meeting of 1870, on which latter occasion the court, by resolutions, entered upon its records, declared that the bonds had been issued without lawful authority, and were not binding upon the county. Across the record of those resolutions was, however, subsequently written the word 'void,' but by whom, or when, so written, does not appear.

In addition to this evidence, the substantial facts upon which the case went to the jury are indicated in the following charge given by the court at the request of the plaintiffs:--

'That if you credit the testimony, and from it believe that Mr. Norton, as president of the Paducah and Gulf Railroad Company, in October, 1871, appeared before a duly organized county court of Tipton County, and in open court fully explained to it that a consolidation was contemplated between his company and the Mississippi River Railroad Company, and that such consolidation depended upon the fact whether the bonds in controversy were to be paid by the county, and whether it would proceed to levy a tax for the same, and then and there presented the proposition of the said Mississippi company, recited in the resolution of that date, passed by the said county court, and that said Paducah company was then solvent, and owned and operated a railroad from the town of Paducah, in Kentucky, to Troy, in Tennessee, and that no portion of the railroad in Tipton County was then completed, and that but a few thousand dollars had been expended in work thereon, and that the purpose of said consolidation was to complete said road in Tipton County, and to connect it with the line of said Paducah and Gulf road, and that said road has since been completed to the town of Covington, in said county, to the city of Memphis, being a distance of thirty-seven miles, twenty-one whereof are in said Tipton County, and that said Norton communicated to his company the action of said county court at its said October session of 1871, and that in consequence thereof, and in reliance thereupon, said consolidation took place, whereby said Paducah and Memphis railroad was created, and that said latter company thereafter completed the road from Covington to Memphis, and has regularly run and operated the same from the 25th of June, 1873, to this date, and that the plaintiffs in this action, in the ordinary course of trade, and without any notice of ill faith in the procuration of said bonds, gave full value therefor to the said Paducah and Memphis Railroad Company, by furnishing engines to be employed on said road, and that said Paducah and Memphis Railroad Company received said bonds without any notice whatsoever of any fraud in their issuance; then the fact that one or more of the justices of said county court, who originally voted for said subscription of stock, were induced so to do by corrupt means, and all other proofs or matters of fraud, constitute no defence to this action.'

To the giving of that charge the county, by its attorney, excepted.

At the request of the county the court charged the jury that 'if the railway procured the issuance of the bonds by bribery, fraud, and corruption, that they would be void in the hands of the railway company, just as if they had not been issued; that all persons taking them from the company with notice, or under circumstances to put the vendor on inquiry, would stand in no better plight than the railway company would;' and that 'if it appears that there was actual fraud in procuring the bonds, then the plaintiffs would be bound to show that they were bona fide holders.'

The defendant requested the court to further charge the jury as follows: 'That if the plaintiff took them (the bonds) after due, they would stand like the railway company's;' which request was granted, with the modification that 'unless the jury believed as stated in the charge given at the request of the plaintiffs:'

'That a party may waive the fraud by subsequent acts, but in order to make this doctrine apply, it must appear that the party waiving was fully apprised of the fraud which he waives. He must know of the fraud, and, knowing, waive it;' which was given with this modification: 'Although this is generally true, it has no application to this case if the jury believe as in the charge stated in favor of the plaintiffs. If one citizen about to buy a demand against another applies to him in good faith to ascertain whether the demand will be paid, and is informed that it will be, and buys in reliance upon such information, the party admitting his obligation will not be permitted to defend, although the admission was made in ignorance of a valid defence.'

'That if before a contract which was void, which is no contract, had become a subsisting and valid contract, a constitutional provision intervenes, which took away all power from one of the contracting parties to enter into the contract, then there could be no contract by ratification, because the party would be under disability of contracting either expressly or by ratification. Therefore, if the contract was void in its making, for fraud, and the facts of the fraud were not known, and known waived, before May, 1870, when the new constitution was adopted, then there could be no contract by ratification or otherwise, as all power to make such a contract as this was then, by the mandate of the Constitution, taken away from the county court.' That instruction was also granted, with this modification: 'That although the general reasoning of this request is correct in legal principle, still, if the jury believe as stated in the charge for the plaintiffs, the defendant will be estopped to set up fraud as a defence, after having induced their purchase by answering to an inquiry of whether they would be paid, that they would be. And if the jury believe that such were the facts in this case, then fraud will not constitute a defence.'

'That if the influences which procured the contract were afterwards successfully exerted in concealing the fraud and defeating its discovery and efforts to resist the contract, then there can be no such thing as a waiver; that communities may waive fraud, but more indulgence is extended to them than to individuals; that accepting the road and using it, and paying a part of the consideration in ignorance of the fraud by which a vote was produced, will not be a waiver.' This request was given with the same modifications, however, as made in reference to the last two preceding requests by the defendant.

We are unable to perceive that any error of law was committed to the prejudice of the county. The case went to the jury under circumstances quite as favorable to it as the evidence justified. If the facts disclosed in the instructions were believed by the jury to be established by the testimony, its duty was to return a verdict for the plaintiffs. The charge of fraud, bribery, moral coercion, and intimidation applied, it must be observed, to the Mississippi Railroad Company and to the justices composing the county court at the time the original subscription was made, and the bonds issued and delivered. When the court, subsequently, received the written proposition from the railroad company, for an extension of time upon certain conditions, it was distinctly informed that its action would affect and control large business operations in which others were concerned who had no connection with the original subscription, or with the issue of the bonds. The extension of time was accepted upon the terms and conditions set out in the proposition of the company, and without, so far as the record discloses, any dissent among the twenty-two justices present; and, as evidence of its purpose to adhere to the new agreement and provide for the payment of the bonds and coupons, the county court ordered the levy of a tax upon all of the taxable property of the county. We have already seen that at the meeting of the county court held in July, 1870, resolutions were entered of record declaring that the bonds had been issued without lawful authority, and directing such steps to be taken as were necessary to protect the people against the proposed burden. With this record before the justices who composed the court in October, 1871, the proposition for an extension of time was accepted, and an assurance of record was thereby given, that the county would meet the bonds according to the new terms. The force of this action of the court was increased in view of sect. 402 of the Code of Tennessee, adopted in 1858, declaring that 'every county is a corporation, and the justices in the court assembled are the representatives of the county and authorized to act for it.'

Whether upon the faith of these proceedings in the county court the Paducah and Gulf Railroad Company consolidated with the Mississippi River Railroad Company, was fairly submitted for the determination of the jury. The new company having become, in virtue of that consolidation, the owner of the assets of the constituent companies, including the bonds in suit, proceeded with the work of construction. There was evidence tending to show that at the time of the consolidation only a few thousand dollars had been expended in building the Mississippi River railroad in Tipton County; that after the consolidation about half a million of dollars had been expended in Tipton County by the Paducah and Memphis Railroad Company; that the road from Memphis to Covington, the county seat of Tipton, a distance of thirty-seven miles (of which twenty-one miles were in Tipton County), had been built and equipped, and trains running thereon regularly, ever since June 25, 1873; that the road had been graded, bridged, and made ready for the cross-ties and rails from Covington to one and a quarter miles north of Ripley, in Lauderdale County; that since the consolidation the road had been completed and equipped from Troy to Trumber, a distance of fifteen miles, and trains run regularly between those places; that the road had been graded, bridged, and cross-tied for the rails from Trumber to Dyersburg, and the right of way secured on about twenty-one miles of the road between Dyersburg and Ripley. This is not all. The stock which Tipton County originally received in payment of its subscription was voted by its official representative in favor of the consolidation, and the county received, in place of its stock in the Mississippi River Railroad Company, stock for like amount in the new company. Besides, the county voted the new stock in favor of the execution of a mortgage for $1,951,000, which was placed upon the property of the company which was formed by the consolidation.

The acceptance by the county court of the terms and conditions set forth in the proposition of Sept. 30, 1871, and its participation, under the circumstances adverted to, by its authorized representatives, in the proceedings which resulted in the consolidation, whereby the situation of the Paducah and Gulf Railroad Company became materially altered, was, in effect, a representation to those interested in that company that the county would not withhold payment of its bonds or coupons, but would meet them according to the terms of the new agreement. By its conduct it induced those interested in the Paducah and Gulf Railroad Company-then solvent, out of debt, and owning and operating a complete railroad from Paducah, Ky., to Troy, Tenn., worth $1,000,000-to believe that the bonds would constitute a part of the available assets of the new company. The defendants in error received a portion of these bonds as early as March 15, 1873. The integrity of the business transaction by which they acquired them is not questioned by any evidence recited in the record. Nor does it appear that any evidence was offered that impugned in any degree the good faith, in respect of these matters, of those who controlled the Paducah and Gulf Railroad Company, or of those who controlled the Paducah and Memphis Railroad Company subsequent to the consolidation of 1872. The defendants in error obtained the bonds in suit from the Paducah and Memphis Railroad Company, paying value therefor, and, so far as the record discloses, without any reason to suspect their payment would be resisted by the county. In view, then, of the conduct throughout all these proceedings of those who represented the county of Tipton, it is estopped, by every consideration of law, justice, and fair dealing, from disputing its liability to defendants in error upon the bonds in suit. The discovery by the county, in February, 1874, of fraud and corrupt practices upon the part of the Mississippi River Railroad Company, in procuring the issue of the bonds in 1869, cannot be permitted to affect the rights of those who had, in good faith, acquired the bonds in reliance upon the explicit assurance which the county, in effect, gave in October, 1871, that it would provide for the payment of the bonds and their coupons. The defendants in error having obtained the bonds under the circumstances which have been detailed, may rightfully invoke, in support of their claims, any facts which would have estopped the county from disputing the claim of the Paducah and Memphis Railroad Company, had the latter company never parted with the bonds.

There are other grounds arising upon the evidence upon which the judgment below might, perhaps, be sustained, and there are other questions suggested in argument upon which we deem it unnecessary to comment.

MR. JUSTICE SWAYNE and MR. JUSTICE STRONG participated in the decision of this case in conference before their retirement, and we are authorized to say that they concur in this opinion and judgment.

Judgment affirmed.

NOTE-County of Tipton v. Norton and County of Tipton v. Edmunds, error from the same court, were argued at the same time by the same counsel as the preceding case, and, upon its authority, the judgments therein rendered were affirmed.


text: Talk:County of Tipton v. Locomotive Works/Opinion of the Court


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The Richmond

APPEAL from the Circuit Court of the United States for the District of Louisiana.

This was a libel filed by Shirley and others, owners of the steamboat 'Sabine.' They allege, in substance, that between two and three o'clock of the morning of Feb. 11, 1872, while she was descending the Mississippi River about twelve miles above New Orleans, the steamer 'Richmond' ran into and sunk her; that the collision was owing entirely to the gross and culpable negligence of the officers and pilot of the 'Richmond;' and that the libellants suffered damages to the sum of $37,500.

The owners of the 'Richmond' filed an answer and cross-libel, claiming $12,000 damages.

The Merchants' Mutual Insurance Company filed its libel against the 'Richmond' and the 'Sabine,' alleging that it had insured the cargo of the 'Sabine,' and paid a large sum on the policy, and that both vessels were at fault.

Other intervenors appeared and filed their respective libels.

The suits were consolidated. The District Court dismissed the libel April 14, 1873. An appeal was prayed for and allowed to the Circuit Court, which adjudged and decreed, April 19, 1875, that the libel of the 'Sabine' be dismissed with costs; that the 'Richmond' recover of the 'Sabine' all damages the 'Richmond' suffered by the collision; that the libel of the Merchants' Mutual Insurance Company against the 'Sabine' and the 'Richmond' be dismissed as to the 'Richmond;' and that said company and intervenors have judgment against N. C. Selby, master of the steamer 'Sabine,' for all damages sustained by the company by reason of said collision, with privilege on any balance of the proceeds in the registry arising from the sale of the 'Sabine.'

It was further ordered that it be referred to J. W. Gurley, United States commissioner, to ascertain and report the damage sustained by the 'Richmond,' the Merchants' Mutual Insurance Company, and the intervenors. He reported, June 4, 1875, that the 'Richmond' had sustained damages in the sum of $7,392.60. He subsequently filed a report of the losses of the Merchants' Mutual Insurance Company and of the various insurance companies, subrogees of the individual intervenors.

The court, March 11, 1876, confirmed the report and condemned the sureties on the bond of the 'Sabine' to pay the amount for which they respectively bound themselves. The owners of the 'Sabine' and the various insurance companies prayed an appeal from the decrees of the Circuit Court.

The insurance companies who claimed to be subrogated to the rights of the individual intervenors filed no new pleadings.

Mr. Bentinck Egan, Mr. R. H. Marr, and Mr. Charles B. Singleton for the appellants.

Mr. Given Campbell, contra.

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

title: The Richmond


text: Talk:The Richmond

title: Talk:The Richmond


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The Richmond/Opinion of the Court

This is an appeal from a decree in admiralty which was entered before the act of Feb. 16, 1875, c. 77, went into effect; consequently the whole case comes up. On examination we find that, so far as the merits are concerned, the questions involved are of fact only. Two courts have already found against the appellants. Under such circumstances the burden is on the appellants to show the error, with every presumption in favor of the decrees below. The S. B. Wheeler, 20 Wall. 385. The testimony is voluminous and conflicting, but it certainly makes no such clear case in favor of the appellants as will justify us in reversing the decrees against them.

The decree of the Circuit Court will be consequently affirmed, and as it will serve no useful purpose to enter into a discussion of the evidence in detail, no further opinion will be delivered. Having reached this conclusion, it is unnecessary to consider how much of the case has been brought here by the appeals that were taken.

Decree affirmed.

A petition for rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

We are asked to rehear this case on two grounds: 1, because on the evidence the decree below should have been reversed; and, 2, because the exceptions to the commissioner's report were not considered.

Notwithstanding what has been said in the briefs filed with this application, we still think the question of the liability of the 'Richmond' is one of fact only. She was not a carrier of the 'Sabine's' cargo, and consequently not liable in any respect as such. If not at fault for the collision, she is no more liable for damages to the cargo of the 'Sabine' than she is for the damages to the 'Sabine,' on which the cargo was carried.

So far as the 'Sabine' or her cargo, therefore, is concerned, the only question presented on this application is whether, in law, the Richmond was in fault for the collision, and that depends on the fact whether the 'Sabine' had 'fled to the wall,' and for that purpose had gone closer to the left-hand shore than her pilot had ever seen a boat before, and the 'Richmond' followed her. On that question of fact the case hinges, for if the 'Richmond' did what is thus claimed against her, the law clearly charges her with fault. As to the fact the testimony is voluminous and conflicting. Two courts have already, on the same testimony, decided against the 'Sabine' and the insurers of her cargo. As long ago as 1861 we said, speaking through Mr. Justice Grier, in the case of The Ship Marcellus, 1 Black, 414: 'We have had occasion to remark more than once that when both courts below have concurred in the decision of questions of fact,. . . parties ought not to expect this court to reverse such a decree by raising a doubt founded on the number or credibility of witnesses. The appellant in such a case has all presumptions against him, and the burden is cast on him to prove affirmatively some mistake made by the judge below in the law or in the evidence. It will not do to show that on one theory, supported by some witnesses, a different decree might have been rendered, provided there be sufficient evidence to be found on the record to establish the one that was rendered.' This rule, thus stated from the preceding cases, was uniformly followed afterwards until the act of Feb. 16, 1875, c. 77 (18 Stat., pt. 3, p. 315), which took effect on the first day of the following May, relieved us from the labor of weighing evidence. Newell v. Norton and Ship, 3 Wall. 257; The Hypodame, 6 id. 216; The S. B. Wheeler, 20 id. 385; The Lady Pike, 21 id. 1. It is true that, notwithstanding this rule, we were required 'to re-examine the facts as well as the law of the case' (The Baltimore, 8 id. 377); but we did not reverse except in a clear case. Such was the wellestablished rule of decision.

The decree on the merits was rendered April 19, 1875, a few days before the act of 1875 took effect. We were, therefore, as we thought at the hearing, compelled to consider and weigh the evidence on the question involved when that decree was rendered. We are clear now, as we were on the first hearing, that the presumptions in favor of the correctness of the two decrees below have not been overcome. If one set of witnesses are to be believed, the decree is right; if the other, it is wrong. There is, to say the least, no such preponderance in favor of the appellants as to justify us in overruling the decisions of the two courts below.

As to the exceptions to the report of the commissioner. It was presented June 4, 1875, after the law of 1875 went into effect. The exceptions were filed the next day. All the exceptions that were argued in the court below or here relate only to questions of fact, depending on the weight of evidence. The court omitted to find the facts, and the case comes here on the evidence. This, since the act of 1875, we are not bound to consider. If the appellants had desired to press their exceptions, they should have got a finding of the facts, so as to present questions of law alone. The case on its merits came up under the old law, and we were compelled to consider the testimony, but on the master's report the act of 1875 was applieable, and our review is confined to questions of law.

Petition denied.

title: The Richmond/Opinion of the Court


text: Talk:The Richmond/Opinion of the Court

title: Talk:The Richmond/Opinion of the Court


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Insurance Company v. Nelson

APPEAL from the Circuit Court of the United States for the District of Kansas.

The facts are stated in the opinion of the court.

Mr. D. G. Hooker for the appellant.

Mr. John J. Ingalls for the appellee.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Insurance Company v. Nelson


text: Talk:Insurance Company v. Nelson

title: Talk:Insurance Company v. Nelson


text:
Insurance Company v. Nelson/Opinion of the Court

The Northwestern Mutual Life Insurance Company, appellant, filed its bill in the court below for the foreclosure of a mortgage on certain lots in the city of Wyandotte, and a tract of land containing sixty acres situate outside that city, all in the county of Wyandotte, in the State of Kansas, alleged to have been executed by William Cook and Jane Cook, his wife, dated Dec. 10, 1874, to secure his bond for $5,000.

The city lots were his property, but the tract of sixty acres was the separate property of his wife.

She filed her answer, in which she admitted the execution of the bond, but denied the execution of the mortgage as set forth in the bill of complaint. Her account of the execution of the mortgage, as given in her answer, was as follows:--

'This defendant alleges that, on or about the time mentioned in the plaintiff's bill as the time when said bond and mortgage therein set out were executed, the said William Cook, her husband, requested her (this defendant) to sign a mortgage to the plaintiff as mortgagee, to secure a loan of money to be loaned by the plaintiff to him, said William Cook, her husband, and informed her that such mortgage was upon certain lots of his, in Wyandotte City, and upon this defendant asking him, her said husband, to let her read the said mortgage, he, her said husband, refused to permit this defendant to read the same. This defendant then asked whether said mortgage covered her land outside the city, and was told by her said husband that it did not; but this defendant refused to sign the same, whereupon her said husband took hold of this defendant, and by physical force seated this defendant in a chair at the table and put a pen in her hand, and placing his hands on this defendant's shoulder and arm, commanded and compelled her to write her name, which she did and not otherwise, and not of her own free will and accord, but that she was compelled to sign said mortgage by force and threats of her said husband, and that the same was signed under duress, by actual force, physical coercion, and the use of violence and compulsion of her said husband, and through and by such duress, force, physical coercion, and not otherwise, she was made to sign such mortgage, and this defendant avers and alleges that such mortgage is not her deed.

'And this defendant further answering, says that afterwards, when Alison Crockett, the officer certifying to the acknowledgment of said mortgage, came into the room where this defendant was, to take such acknowledgment, said Crockett informed defendant that said mortgage was upon some city lots belonging to her husband and did not cover her land. That defendant believed said declaration to be true; that Crockett did not read said mortgage to defendant, or otherwise explain the contents thereof, except as herein stated; that defendant did not read said mortgage, because she believed the declaration of said Crockett to be true, and feared to offend her husband by refusing to acknowledge the signature to said mortgage as hers.'

Her answer further alleged as follows:--

'The said Alison Crockett was the agent of the plaintiff herein, in loaning money to her said husband, William Cook, and taking said mortgage in security therefor; and when he took said acknowledgment and made the representations aforesaid, that this defendant's land was not included in said mortgage, he was acting as the agent of the plaintiff herein, and that he then had full knowledge and well knew that the land above described (the sixty-acre tract) was the property of this defendant and was included in said mortgage.'

To this answer the general replication was filed.

William Cook having died before the commencement of the suit, George P. Nelson, administrator of his estate, and other defendants, answered; but their answers are immaterial, as no questions are involved in this appeal except such as arise upon the answer of Jane Cook.

Upon the issue, made by the pleadings, proofs were taken, and upon final hearing the court made a decree foreclosing the mortgage upon the city lots, but as to the sixty-acre tract the court found for defendant, Jane Cook, and declared that the mortgage was not a lien thereon, and omitted said tract from the decree of sale.

The insurance company, being dissatisfied with the decree of the court below, has brought the case here on appeal.

The defence relied on is, that the signature of Janue Cook to the mortgage was obtained by means of the false representations of her husband and by compulsion through the application of physical force, and that her acknowledgment was obtained by means of the false representations of her husband and the officer before whom she made it, in respect to the contents of the mortgage.

The defence rests mainly upon the answer, and upon the deposition of Mrs. Cook.

The only person present besides Mrs. Cook, when the mortgage was signed by her was her husband. There were only two persons present besides her when the acknowledgment of the mortgage was taken. These were her husband, and Alison Crockett, register of deeds for Wyandotte County, before whom the acknowledgment was made, both of whom are dead. She is, therefore, the only living witness of what transpired when the mortgage was signed and acknowledged.

She admitted her signature to the mortgage, but said it was obtained in the following manner: Cook, her husband, came in and asked her to sign the mortgage. He stated that it covered the town lots in Wyandotte. She declined to sign it. What then took place is thus stated by her: 'He said if I did not sign that mortgage he would come off down town and go to drinking till he killed himself; these are just the words he said, and then from that he said he was going to compel me to sign it, and then as I say he forced me into the chair, he took me and set me in the chair and held me there, and took the pen and put it in my band and guided my hand and wrote my name there.'

In answer to the question, 'How is it that your name is so well written on the mortgage?' she said, 'After he got through he took the pen and straightened the places.'

She further testified as follows:--

'After the mortgage was signed, Crockett came in. He asked me, 'Where is the paper, are you going to sign?' Mr. Cook spoke up and said, 'It is already signed.' He asked me then if I signed it. I did not say anything. Mr. Cook stood between me and Mr. Crockett; he as much as told me to keep my mouth shut by his motions. He looked me right in the face.'

She further testified that Crockett did not explain to her the contents of the mortgage before taking her acknowledgment. He simply told her that the mortgage was nothing to injure her, that it was on property down on Minnesota Avenue.

The complainant introduced in evidence the original mortgage and also the original of a draft, which Mrs. Cook testified bore her indorsement, and her original deposition in this case bearing her signature. The evidence of three experts in handwriting was also introduced for complainant. They all testified that her signature to the mortgage and deposition and her indorsement of the draft were written by the same person; that the signature to the mortgage appeared to be in the same natural and voluntary hand as the other signatures, and that upon inspection through a glass showed no signs of having been touched up or altered.

The three original signatures were exhibited to the court. An inspection of them with the naked eye satisfies us that her statement that her signature to the mortgage was made in the manner described in her deposition cannot be true. It is as free and natural as her signature to her deposition or her indorsement of the draft. It bears no signs of constraint, as would inevitably have been the case if she had reluctantly held the pen and it had been guided by another hand and will. It bears no signs of any change or filling up or straightening. On this subject the inspection of the signatures leaves no doubt in our minds. Her narrative in regard to the manner in which her signature to the mortgage was made is contradicted by the signature itself, and a comparison of it with the others put in evidence. How, then, can we give credence to her testimony, touching the representations of her husband in relation to the contents of the mortgage and her account of the manner in which her acknowledgment was taken?

When a deed or mortgage, regular in appearance, and bearing the genuine signature and duly certified acknowledgment of the grantor or mortgagor is attacked, the evidence to impeach it should be clear and convincing.

In the case of Howland v. Blake (97 U.S. 624) this court said: 'The burden rests upon the moving party of overcoming the strong presumption arising from the terms of a written instrument. If the proofs were doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony enterely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. A judgment of the court, a deliberate deed or writing, are of too much solemnity to be brushed away by loose and inconclusive testimony.' See also Shelburne v. Inchiquin, 1 Bro. Ch. 338, 341; Henkle v. Royal Assurance Co., 1 Ves. Sen. 317; The Marquis Townshend v. Stungroom, 6 Ves. Jr. 328, 338; Gillespie v. Moon, 2 Johns. (N. Y.) Ch. 585; Lyman v. United Insurance Co., id. 630; Graves v. Boston Marine Insurance Co., 2 Cranch, 444.

The acknowledgment of a deed can only be impeached for fraud, and the evidence of fraud must be clear and convincing. Russell v. Baptist Theological Union, 73 Ill. 337.

In this case, the testimony of Mrs. Cook touching the manner in which her signature to the mortgage was obtained is so incredible, that her account of the way in which her acknowledgment was taken is entitled to little weight.

We have not thought it necessary to consider the question whether, under the statute of Kansas, the communications between her and her late husband, to which she testified, are admissible in evidence.

It is unnecessary to discuss the other evidence in this case. It is sufficient to say that it is entirely circumstantial, and its weight is decidedly against the defence set up.

We are of opinion that there was no evidence in the case sufficient to overcome the effect of the mortgage and the officer's certificate. The Circuit Court should, therefore, not have excepted the sixty-acre tract from its decree of foreclosure. For this error the decree must be reversed, and the cause remanded with directions to enter a decree for the complainant, in conformity with this opinion; and it is

So ordered.


text: Talk:Insurance Company v. Nelson/Opinion of the Court


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Dubuclet v. Louisiana

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

The facts are stated in the opinion of the court.

Mr. John Ray for the plaintiff in error.

Mr. Conway Robinson, contra.

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

title: Dubuclet v. Louisiana


text: Talk:Dubuclet v. Louisiana

title: Talk:Dubuclet v. Louisiana