Davis v. Gaines
104 U.S. 386 (1881)

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U.S. Supreme Court

Davis v. Gaines, 104 U.S. 386 (1881)

Davis v. Gaines

104 U.S. 386




1. According to the law of Louisiana in force in 1813, if the heirs, whether forced or voluntary, of a testator were absent from the state, the probate court had jurisdiction to order a sale of his property.

2. The will having been duly proved, the proper probate court, upon the petition of the executor, made an order pursuant to which the immovables of the deceased were, according to law, sold and conveyed to a purchaser in good faith for a valuable consideration. Held that his title is not affected by the subsequent discovery and probate of a later will appointing another person executor, and making a different disposition of them.

3. The order of sale is an adjudication that all the facts necessary to give the court jurisdiction existed.

4. Where the possession of the immovables so sold was held for over sixty years, under the executor's deed, which recites that the sale was made "after the publications and delays prescribed by law," and it appears from his account, remaining of record in the probate court for fifty years, that he paid a specified sum for advertising the sale, held that the deed and account are competent evidence of the advertisement, and being uncontradicted are conclusive.

5. When the purchase money was applied to the extinguishment of a mortgage executed by the deceased and constituting a valid encumbrance on the immovables, the purchaser, although the sale was irregular or void, cannot be ousted of his possession upon a bill in equity filed by the heirs or the devisees unless they repay or tender him the purchase money.

6. The prescription applicable to immovables in Louisiana cannot be maintained unless the possessor obtained them in good faith and by a just title -- that is to say, by a title which he derived from those whom he believed to be the true owners and which, if they had in fact been such owners, was by its nature sufficient to transfer the ownership.

7. The prescription against all informalities connected with or growing out of a public sale by a person authorized to sell at auction may be pleaded by one who purchases in good faith at the sale of an executor or a register of wills and holds by a just title, against the averment that the sale was not advertised, that the inventory of the estate was not completed before the order of sale was made, or that it was partly made by appraisers appointed by the testamentary executor, or that it was signed by only one of the two appraisers so appointed. Such informalities are cured by the lapse of five years.

The facts are stated fully in the opinion of the Court.

Page 104 U. S. 387

MR. JUSTICE WOODS delivered the opinion of the Court.

This was a bill in equity filed by Myra Clark Gaines, the appellee, against Minor Kenner, the intestate of Eliza Davis, the appellant, and a large number of other defendants, to recover real estate of which she claimed to be the devisee under the will of her father, Daniel Clark. The defendants were alleged to be in possession respectively of distinct parcels of the property sued for.

The facts, so far as they concern the controversy between the appellant and appellee, were as follows:

Daniel Clark purchased the real estate in dispute between them from one Stephen Henderson on Dec. 16, 1812, wholly upon credit. The purchase price was $120,000, to secure which a mortgage was retained in the act of sale. On May 20, 1811, he executed and published what then purported to be his last will and testament, as follows:

"In the name of God, amen. I, Daniel Clark, of New Orleans, do make this my last will and testament."

"Imprimis. I order that all my just debts be paid."

"Second. I leave and bequeath unto my mother, Mary Clark, now of Germantown, in the state of Pennsylvania, all the estate, whether real or personal, which I may die possessed of."

"Third. I hereby nominate and appoint my friends Richard Relf and Beverly Chew my executors, with power to settle everything relative to my estate."


"NEW ORLEANS, 20 May, 1811"

He died Aug. 16, 1813, and on the next day the will was proven before the Probate Court for the Parish of Orleans, and on the 27th of that month letters testamentary were issued to Richard Relf as sole executor, Chew being absent from the state.

The appellant claimed title to the plantation under a sale thereof made Nov. 8, 1813, by Thomas Beale, register of wills, at public auction, to Michel Fortier and Omer Fortier, for $120,000, by authority, as she asserted, of an order of the probate court. Relf, the executor, in pursuance of the sale, conveyed the property to the purchasers by deed, in which he stipulated to apply the purchase money, as fast as received, to

Page 104 U. S. 388

the discharge of the mortgage of $120,000 placed on it by Daniel Clark.

The purchase money was so applied, and the entire sum secured by the mortgage, with the interest thereon, was thus discharged.

The property came into the possession of Minor Kenner, whose estate the appellant represents, as owner, by regular chain of conveyances from the vendees of Michel and Omer Fortier.

The title of the appellee was derived under the will of Daniel Clark executed July 13, 1813, which was filed for probate in the Probate Court of the Parish of Orleans on Jan. 18, 1855, and which by the judgment of the Supreme Court of Louisiana on Dec. 17, 1855, was recognized as the last will and testament of Daniel Clark, and ordered to be recorded and executed as such.

The second item of this will was as follows:

"Second, I do hereby acknowledge that may beloved Myra, who is now living in the family of Samuel B. Davis, is my legitimate and only daughter, and that I leave and bequeath unto her, the said Myra, all the estate whether real or personal of which I may die possessed, subject only to the payment of certain legacies hereinafter named."

Both parties, therefore, trace title to Daniel Clark.

Prima facie the title of the appellee to the property in dispute under the provision of this will, which is the later and last will of Daniel Clark, is clear.

The controversy therefore depends upon the three defenses set up by the appellant.

The record shows that the will of May 20, 1811, was duly admitted to probate by the Probate Court of the Parish of Orleans, and ordered to be executed; that within the year following the order of probate, to-wit, on Aug. 27, 1813, upon the petition of the executor, an order for the sale of the real and personal property of the testator was made by the court having jurisdiction thereon; that an inventory was begun by Thomas Beale, Register of Wills for the Parish of Orleans, on Aug. 28, 1813, under the direction of said probate court, in which the plantation sued for was included as a part of the

Page 104 U. S. 389

estate of Daniel Clark; that on Nov. 8, 1813, pursuant to said order, Beale, the register of wills, sold and adjudicated the plantation to Michel Fortier and Omer Fortier for the sum of $120,000; and that on Nov. 11, 1813, Relf, the executor, made an act of sale to the purchasers.

The appellant therefore contends first that by virtue of said will and its probate, and the order of sale, and the sale and conveyance thereunder, the said Michel and Omer Fortier acquired a good and valid title to said premises, which, by mesne conveyances from them, was vested in her intestate.

The record further shows that the act of sale recited the existence of the mortgage for $120,000 placed upon the property by Daniel Clark in favor of Stephen Henderson, on Dec. 16, 1812, and his executor bound himself to discharge the same out of the purchase money, as it should be paid by the purchasers, the Fortiers, and that said mortgage was in fact discharged and paid by the application thereto of said purchase money.

The appellant therefore contends secondly that there can be no decree in favor of the appellee for the property until the purchase money which was applied to the payment of the debts of the testator is repaid or tendered, if it shall turn out that the Fortiers were purchasers in good faith.

The appellant contends thirdly that from Nov. 8, 1813, until Jan. 3, 1866, when process was served in this case, she and those under whom she claims held continuous, peaceable, and unequivocal possession of said plantation and that neither said Michel and Omer Fortier, at the time they purchased the plantation, nor any of the parties through whom she claims title, had any knowledge, information, or belief of the making or existence of the last will of Daniel Clark, executed in 1813; that the various persons who claimed title to said property under the sale made to Michel and Omer Fortier possessed the same in good faith and under a just title as owners, and that each of them had the right to acquire the same by prescription; and she pleads the prescription of ten, twenty, and thirty years in bar of the bill of complaint.

The first question for consideration is whether or not the

Page 104 U. S. 390

proceedings of Relf, the sale made by the Register of Wills under the order of the probate court, and the deed of Relf as executor in pursuance thereof, vested a title to the plantation in the purchasers.

The code of 1808 was in force when the proceedings which resulted in the sale to the Fortiers were taken. Article 169, book 3, tit. 2, of that code declares:

"When of the testator's heirs some are absent or not represented in this territory, the testamentary executor, whether the seisin be granted to him or not, and whether those heirs be forced or voluntary, shall be authorized to take possession of the property of the succession, to cause it to be sold, and to remain in possession of the portion accruing to the absent heir or heirs, deducting the debts and legacies, until those heirs shall have sent their power of attorney, or till the expiration of they year of the testamentary execution."

By the will of 1811, it appeared that Mary Clark, the mother of testator, who was constituted his universal legatee, and thereby became his heir (Civil Code, art. 880), was absent from the State of Louisiana. Moreover,

"the granting of the license to sell was an adjudication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial if no appeal was taken."

Grignon's Lessee v. Astor, 2 How. 319.

It is therefore not disputed that, upon the ground of the absence from the state of the universal legatee, it was competent for the probate court, upon the application of the executor, to make an order for the sale of the testator's property.

The jurisdiction of the Probate Court of the Parish of Orleans to admit to probate and record the wills of deceased persons is unquestioned.

Its power and authority to order a sale of the property of a testator, by virtue of article 169, book 3, tit. 2, of the code of 1808, is not and cannot be disputed. If the Fortiers purchased in good faith under an order of sale made by the probate court, for a valuable consideration, without any knowledge of the later will of Daniel Clark, and while the authority of the executor appointed and qualified under the first will continued,

Page 104 U. S. 391

and there was no fatal defect in the proceedings antecedent to the sale and conveyance to them, does the fact that such later will, making other dispositions of his property, was discovered and admitted to probate render void their title?

We think this question must be answered in the negative.

A sale by order of a probate court is a judicial sale. Moore v. Shultz, 13 Pa.St. 98; Grignon's Lessee v. Astor, 2 How. 319; Thompson v. Tolmie, 2 Pet. 157; Lalanne's Heirs v. Moreau, 13 La. 431; Howard v. Zeyer, 18 La.Ann. 407.

Such sales are therefore protected by the rule that a title acquired at a decretal sale of lands made by a court in the exercise of competent jurisdiction is not rendered invalid by the reversal of the decree. Ward v. Hollins, 14 Md. 158; Irwin v. Jeffers, 3 Ohio St. 389; Gossom v. Donaldson, 18 B.Mon. (Ky.) 230; Fergus v. Woodworth, 44 Ill. 374; Gray v. Brignardello, 1 Wall. 627, 68 U. S. 634.

In the case last cited, this court said:

"Although the judgment or decree may be reversed, yet all rights acquired at a judicial sale, while the decree or judgment was in full force and which it authorized, will be protected. It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order on the faith of which he purchased was made and authorized the sale."

In the case of McCullough v. Minor, 2 La.Ann. 466, the Supreme Court of Louisiana said:

"The jurisdiction of the court was undoubted, and the jurisprudence of the state has long been settled that a bona fide purchaser at a judicial sale is protected by the decree."

But it is not necessary to rely solely on this general doctrine. This Court and others have directly applied the law probate which governs judicial sales to sales made by order of courts.

Thus, in Thompson v. Tolmie, 2 Pet. 157, this Court said:

"The law appears to be settled in the states that courts will go far to sustain bona fide titles acquired under sales made by statutes regulating sales made by order of the orphans' courts. When there has been a fair sale, the purchaser will not be bound to look beyond the decree if the facts necessary to

Page 104 U. S. 392

give the court jurisdiction appear on the face of the proceedings."

See also Grignon's Lessee v. Astor, supra. By a law of Michigan passed in 1818, the county courts had power under certain circumstances to order the sale of the real estate of a deceased person for the payment of debts and legacies. In reference to a sale of real estate made under this law, the Court said in that case:

"The granting the license to sell is an adjudication upon all the facts necessary to give jurisdiction, and whether they existed or not is wholly immaterial if no appeal is taken. The rule is the same whether the law gives an appeal or not; if none is given from the final decree, it is conclusive on all whom it concerns. The record is absolute verity, to contradict which there can be no averment or evidence. The court having power to make the decree, it can only be impeached for fraud in the party who obtains it; a purchaser under it is not bound to look beyond the decree; if there is error in it of the most palpable kind, if the court which rendered it have in the exercise of jurisdiction disregarded, misconstrued, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them -- the title of a purchaser is as much protected as if the adjudication would stand the test of a writ of error. These principles are settled as to all courts of record which have an original general jurisdiction over any particular subjects; they are not courts of special or limited jurisdiction."

"In the Orphans' Court and all courts who have the power to sell the estates of intestates, this action operates on the estate, not on the heirs of the intestate; a purchaser claims not their title, but one paramount. The estate passes to him by operation of law. The sale is a proceeding in rem, to which all claiming under the intestate are parties, which divests the title of the deceased."

See also Erwin v. Lowry, 7 How. 172; Griffith v. Bogert, 18 How. 158; Florentine v. Barton, 2 Wall. 210; McNitt v. Turner, 16 Wall. 352.

On the same subject, the Supreme Court of Appeals of Virginia, in Ballow v. Hudson, 13 Gratt. (Va.) 672, said:

"Considerations of public policy require that all questions of

Page 104 U. S. 393

succession to property should be authoritatively settled. Courts of probate are therefore organized to pass on such questions when arising under wills, and a judgment by such a court is conclusive while it remains in force, and the succession is governed accordingly. A judgment of this nature is classed among those which in legal nomenclature are called judgments in rem. Until reversed, it binds not only the immediate parties to the proceeding in which it is had, but all other persons and all other courts."

In Lalanne's Heirs v. Moreau, supra, the Supreme Court of Louisiana said: "Sales directed or authorized by courts of probate are judicial sales to all intents and purposes, and the purchaser is protected by the decree ordering them."

So in Howard v. Zeger, supra, the same court said:

"A warrantor is not bound to look beyond the decree of the court ordering the sale of succession property, and he acquires all the right of the deceased to said property, and no more."

In Grignon's Lessee v. Astor, supra, this Court said: "Proceedings in a probate court to sell property of a decedent have been held to be proceedings in rem, to which all claiming under the decedent are parties."

In McPherson v. Cunliff, 11 Serg. & R. (Pa.) 422, the court said that the decree of an orphans' court for the sale of land was conclusive; that the proceeding was purely in rem against the estate of the intestate, and not in personam.

In Lalanne's Heirs v. Moreau, supra, it was said

"that the decree of the court of probate ordering a sale of the property of minors is so purely in rem and against the property, that a sale made under it extinguishes all the mortgages existing in the name of the owner of the property sold."

In Green v. The Baptist Church, 27 La.Ann. 563, the same court held that purchasers are not bound at their peril to inquire, when property is advertised for sale by an executor, whether anything has occurred outside the court to destroy the will under which he is acting.

In Gaines v. De La Croix, 6 Wall. 719, which was a bill filed by the appellee in the present case against De La Croix to recover certain slaves claimed by him under a sale made to

Page 104 U. S. 394

him by Relf, as executor of the will of 1811 of Daniel Clark, the defendant claimed that his titles, derived by the purchase from Relf, were valid because he purchased within the year, while the functions of Relf, as executor, were in full force. In passing upon this point, the Court said: "This is true if he purchased in good faith, and the requisites of the law on the subject of the sales of succession property were complied with."

The case involved two purchases, and both were held invalid, one because it was made at private sale, and consequently the purchaser acquired no title, and the other because, though made at public auction, the court found that De La Croix had knowledge of the will of 1813 and its contents, and "that he knew the will under which he was buying was not the true will of Daniel Clark," and he therefore "got the property in bad faith."

It is objected, however, that the discovery of a later will and its probate showed that the will of 1811 was utterly void, and could furnish no valid ground for the order of sale. But it must be borne in mind that the will of 1811 had been duly admitted to probate by a court which had jurisdiction of the subject matter and whose duty it was to ascertain and declare whether the will presented to it was in fact the genuine last will and testament of the testator. Having declared the will of 1811 to be the genuine last will of Daniel Clark, acts done under that probate in a lawful manner until the discovery of a later will were valid and binding.

The English authorities hold that the record of probate and of the qualification of the executor is conclusive evidence of the existence of the will and of his authority.

Allen v. Dundas, 3 T.R. 125, was an action on the case brought by Allen as administrator of Priestman against Dundas for money had and received to the use of the intestate and to the use of the plaintiff as administrator. The defendant pleaded the general issue. On the trial, a special verdict was found stating in substance as follows: the defendant, as treasurer of the navy, was indebted to the intestate in his lifetime

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