Bank of Hamilton v. Lessee of Dudley
27 U.S. 492 (1829)

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U.S. Supreme Court

Bank of Hamilton v. Lessee of Dudley, 27 U.S. 2 Pet. 492 492 (1829)

Bank of Hamilton v. Lessee of Dudley

27 U.S. (2 Pet.) 492

ERROR TO THE COURT OF THE UNITED STATES FOR

THE SEVENTH CIRCUIT AND DISTRICT OF OHIO

Syllabus

Proceedings for the sale of the real estate of an intestate for the payment of debts were commenced before the repeal of the act of the Legislature of Ohio entitled "A law for the settlement of intestates' estates." The administrators, notwithstanding the repeal, went on to sell the land and appropriate the proceeds to the discharge of the debts of the intestate. Held that the sale was void.

The power of the inferior court of a state to make an order at one term as of another is of a character so peculiarly local, a proceeding so necessarily dependent on the judgment of the revising tribunal, that the judgment of the same is considered authority, and this Court is disposed to conform to it.

That a court of record whose proceedings are to be proved by the record alone should at a subsequent term determine that an order was made at a previous term, of which no trace could be found on its records, and that, too, after the repeal of the law which gave authority to make such an order, is a proceeding of so much delicacy and danger, which is liable to so much abuse, that some of the Court question the existence of the power.

Where administrators, acting under the provisions of an act of assembly of the State of Ohio were ordered by the court, vested by the law with the power to grant such order, to sell real estate, and before the sale was made the law was repealed, the powers of the administrators to sell terminated with the repeal of the law.

The lands of an intestate descend not to the administrator, but to the heir; they vest in him liable to the debts of his ancestor and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the court of common pleas. This is not an independent power, to be exercised at discretion when the exigency in his opinion may require it, but it is conferred by the court in a state of things prescribed by the law. The order of the court is a prerequisite, indispensable to the very existence of the power, and if the law which authorizes the court to make the order, be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but it is the exercise of a legislative power which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor must always depend on the wisdom of the legislature.

The Judicial Department of every government is the rightful expositor of its laws, and emphatically of its supreme law. If in a case depending before any court a legislative act shall conflict with the Constitution, it is admitted that the court must exercise its judgment on both, and that the Constitution must control the act. The court must determine whether a repugnancy does or does not exist, and in making this determination must construe both instruments. That its construction of the one is authority, while its construction of the other is to be disregarded, is a proposition for which this Court can perceive no reason.

Page 27 U. S. 493

This Court can perceive no sufficient grounds for declaring that the Legislature of Ohio might not repeal the law of that state by which the court of common pleas was authorized to direct, in a summary way, the sale of the lands of an intestate. "Jurisdiction of all probate and testamentary matters" may be completely exercised without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to be identical with that power or to comprehend it.

The occupant claimant law of Ohio, which declares that an occupying claimant shall not be turned out of possession until he shall be paid for lasting and valuable improvements made by him, and directs the court in a suit at law to appoint commissioners to value the same, is repugnant to the Seventh Amendment of the Constitution of the United States, which declares that "in suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." The compensation for improvements is a suit at common law, and must be submitted to a jury.

Admitting that the Legislature of Ohio can give an occupant claimant a right to the value of his improvements, and authorize him to retain possession of the land he has improved until he shall have received that value, and assuming that they may annex conditions to the change of possession, which, so far as they are constitutional, must be respected in all courts, still the legislature cannot change radically the mode of proceeding prescribed for the courts of the United States or direct those courts in a trial at common law to appoint commissioners for the decision of questions which a court of common law must submit to a jury.

The inability of the courts of the United States to proceed in suits at common law in the mode prescribed by the occupant law of Ohio does not deprive the occupant of the benefit intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law, and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements, as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded, while full effect will be given to such as are not repugnant to the constitution of the state or the ordinance of 1787. The question whether any of its provisions be of this description will properly arise in the suit brought to carry them into effect.

This is an ejectment brought in by the defendants in error against the present plaintiffs for part of lot No. 103, in the City of Cincinnati.

The plaintiff is heir at law of Israel Ludlow, who died seized of the premises in the declaration mentioned. The defendant claimed under a sale and deed made by the administrator of the said Israel Ludlow in pursuance of certain orders of the Court of Common Pleas for the County of Hamilton.

Page 27 U. S. 494

The case depends on the validity of this deed.

In August, 1788, the territorial government of Ohio enacted "a law establishing a court of probate." The first section enacts that

"There shall be appointed one judge of probate in each county whose duty it shall be to take the probate of last wills and testaments and to grant letters testamentary and letters of administration, and to do and perform every matter and thing that doth or by law may appertain to the probate office excepting the rendering definitive sentence and final decrees."

In 1795, an orphans' court was established and it was enacted that where persons die intestate and leave lawful issue,

"but not a sufficient personal estate to pay their just debts and maintain their children, it shall be lawful for the administrator or administrators of such deceased person to sell and convey such part or parts of the said lands or tenements for defraying their just debts, maintenance of their children, &c., as the orphans' court of the county where such estate lies, shall think fit to allow, order, and direct from time to time."

In the year 1802, Ohio became an independent state. The Constitution, in the article which respects the judicial department, declares that

"The court of common pleas in each county shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law."

In April, 1803, the judicial courts were organized, and the court of common pleas, after a general grant of original jurisdiction, was empowered to examine and take the proof of wills, to grant administration on intestate estates, and to hear and determine all causes, suits, and controversies of a probate and testamentary nature.

In June, 1805, the territorial ordinance of 1795 was repealed.

At the trial of the ejectment in the circuit court, after the plaintiff had closed his evidence, the defendants offered in evidence a deed from the administrators of Israel Ludlow deceased to Andrew Dunseth for the premises in the declaration mentioned.

"They also offered in evidence duly

Page 27 U. S. 495

certified entries and copies of orders from the records of the Court of Common Pleas within and for the County of Hamilton State of Ohio, of which the following are true copies, viz.,"

"2d of February 1804: Letters of administration granted unto Charlotte C. Ludlow, John Ludlow, James Findlay and James Pierson, on the estate of Israel Ludlow deceased, and their bond with William Ludlow and James Smith as securities for their faithful administration."

At May term in the year 1804, date 8 May, 1804, the following order was made, viz.,

"The administrators of the estate of Israel Ludlow deceased exhibit an account current and pray the court to issue an order for the sale of real property to defray the debts due from the estate, &c., John Ludlow and James Findlay sworn in court. The court orders so much of the real property to be sold as will meet the said demand, except the farm and improved land near Cincinnati, together with the house and lots in Cincinnati."

At the August term of the said court in the year 1805, a supplemental order was made of which the following was a copy, viz.,

"The administrators of I. Ludlow deceased, on application to the court to extend the order for the sale of property to discharge the debts arising from the estate, whereupon the court allows the administrators to sell the house and lots in the Town of Cincinnati and any other property except the mansion house and farm in the country, so that the sale does not amount to more than $10,000. This entry considered as of May term, 1805."

It was in evidence that the sale was made agreeably to the provisions of the law adopted from the Pennsylvania code by the governor and judges of the Northwestern Territory on 16 June, 1795, entitled "a law for the settlement of intestate estates;" that the deed was duly executed, acknowledged and proved.

The plaintiff by his counsel moved to overrule the testimony offered by the defendants' counsel, because the law aforesaid, entitled "a law for the settlement of intestate estates," was repealed before the order was made authorizing said sale, and that at the time of making of the said order, there was no law of the State of Ohio authorizing the court of common pleas to

Page 27 U. S. 496

order the sale of real estate for the payment of debts, &c., of intestates. The court sustained the motion and overruled the defendants' evidence. The defendants excepted to this opinion.

The jury found a verdict for the plaintiff, after which the counsel for the defendants moved the court for the appointment of commissioners under the occupying claimant law of Ohio to value improvements. This motion was overruled and judgment was rendered for the plaintiffs.

Page 27 U. S. 520

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

This cause was fully argued at the last term on the validity of the deed made by the administrators, and several acts which were supposed to illustrate that question to which it is unnecessary now to refer were cited and relied on. As it was a question of great interest on which many titles depended, which was to be decided entirely by the statutes of Ohio, and as the Court was informed that the very case was depending before the highest tribunal of the state, the case was held under advisement. The cause depending before the state court, which was an ejectment for other land sold by the same administrators under the same orders of the court of common pleas, has been since decided, and the supreme court of the state has determined:

1. That there was no law in the territory prior to the act of 1795 authorizing administrators to sell the lands and tenements of an intestate.

Page 27 U. S. 521

2. That this law was repealed and ceased to have effect from and after 1 June, 1805.

3. That the order of the court of common pleas of May term, 1804, directing the administrators of Israel Ludlow to sell a part of the real estate of said Ludlow for the payment of his debts, did not embrace the premises in question.

4. That the parol testimony offered in evidence to prove an order of sale at the May term, 1805, was incompetent.

5. That the order of the said court at the August term, 1805, was coram non judice and void, and that the lessors of the plaintiffs could not be divested of their title in consequence of any act done in pursuance of that order.

At this term, the cause has been again argued and the counsel for the plaintiffs in error have made several points which they suppose to be still open.

They contend that the repeated declaration of this Court that it will conform to the construction of the statutes of a state made by its own tribunals does not apply to the decision respecting the order made in August, 1805. They insist that the power of the court to make this entry as of the May term preceding depends upon the common law, not on the statutes of Ohio, and that the question is still open for discussion.

Supposing it to be open, they maintain that the omission to enter the order in May, when it was made, was a clerical misprision which the court might correct in August and enter the order as of May term. It has, they contend, the same effect as if it had been actually entered in May, and, allowing this, the subsequent repeal of the law before the sale was made could not affect the power to sell which was given by the order, and therefore the sale is valid.

To sustain this argument, all the propositions on which it rests must be true. The decision of the state tribunal must be of a character which this Court will consider, undoubtedly with great respect but not as conclusive authority. The court of common pleas must have had the power in August, after the repeal of the law under which the order was made, to enter it as of May, and the administrators must have had the power to sell in virtue of the order, after the law by authority of which it was made, had been repealed. If the

Page 27 U. S. 522

plaintiffs in error have failed in sustaining any one of these propositions, the conclusion which has been drawn from them is not supported.

The judges are not united in opinion on these several propositions, but concur in thinking that the conclusion drawn from the whole of them is not sustained. The power of the inferior courts of a state, to make an order at one term as of another is of a character so peculiarly local, a proceeding so necessarily dependent on the judgment of the revising tribunal of the state, that a majority considers that judgment as authority, and we are all disposed to conform to it.

But were this question entirely open, the considerations which appear to have influenced the judgment of the Supreme Court of Ohio are certainly entitled to great weight. That a court of record, whose proceedings can be proved by the record alone, should at a subsequent term determine that an order was made at a previous term of which no trace could be found on its records, and that too after the repeal of the law which gave authority to make such an order, is a proceeding of so much delicacy and danger, which is liable to so much abuse, that some of us question the existence of the power.

In the case as depending before this Court, there is still a stronger objection to the validity of the order of August, 1805. Its language does not import that the administrators had applied to the court at the preceding May term for an extension of the order of May, 1804, and that the court had granted their application and made the order, which the clerk had omitted to enter, and that therefore the order is now made with a direction that it should be entered as of May. This is not its language. It makes no allusion to any proceeding in May. It purports to have been made on an original application by the administrators in August for an extension of the order of May, 1804. On this original application the court allows the administrators to sell the house and lots in Cincinnati, and adds "this entry to be considered as of May term, 1805." The entry, on its face, does not import to be the correction of the record by placing on it an order which had in fact been made in the preceding May

Page 27 U. S. 523

and which the clerk had omitted to enter, but to be an original proceeding in August, to which the court by its own authority gives a retrospective operation. If any explanatory testimony could have been received in the circuit court, none was offered. That court was required to infer from the words "this entry to be considered as of May term, 1805" that it was in fact made at that term and that the clerk had totally omitted it. The certainty which is necessary in judicial records and the principle that they prove themselves forbade the court to draw this inference. The law being then repealed, the order was certainly coram non judice.

It is also the opinion of one of the judges that had the order even been made in May term, the repeal of the law before the sale terminated the power to sell.

The counsel for the plaintiffs in error have also contended that the interest of the administrators in the real estate as trustees for the creditors was a vested interest which the repeal of the law could not divest, and that they might proceed to sell under the sanction of an order made even after the law was repealed.

This is a point on which we cannot doubt. The lands of an intestate descend not to the administrators, but to the heir. They vest in him, liable, it is true, to the debts of his ancestor, and subject to be sold for those debts. The administrator has no estate in the land, but a power to sell under the authority of the court of common pleas. This is not an independent power, to be exercised at discretion when the exigency in his opinion may require it, but is conferred by the court in a state of things prescribed by the law. The order of the court is a prerequisite, indispensable to the very existence of the power, and if the law which authorized the court to make the order be repealed, the power to sell can never come into existence. The repeal of such a law divests no vested estate, but is the exercise of a legislative power which every legislature possesses. The mode of subjecting the property of a debtor to the demands of a creditor, must always depend on the wisdom of the legislature.

It is also contended that the jurisdiction of the court of

Page 27 U. S. 524

common pleas in testamentary matters is established by the Constitution, and that the exclusive power of the state courts to construe legislative acts does not extend to the paramount law so as to enable them to give efficacy to an act which is contrary to the Constitution.

We cannot admit this distinction. The Judicial Department of every government is the rightful expositor or its laws and emphatically of its supreme law. If in a case depending before any court a legislative act shall conflict with the Constitution, it is admitted that the court must exercise its judgment on both, and that the Constitution must control the act. The court must determine whether a repugnancy does or does not exist, and in making this determination, must construe both instruments. That its construction of the one is authority while its construction of the other is to be disregarded is a proposition for which this Court can perceive no reason.

But had the question never been decided in Ohio, this Court can perceive no sufficient ground for declaring that the legislature of the state might not repeal the law by which the court of common pleas was authorized to direct, in a summary way, the sale of the lands of an intestate. "Jurisdiction of all probate and testamentary matters" may be completely exercised without possessing the power to order the sale of the lands of an intestate. Such jurisdiction does not appear to us to be identical with that power or to comprehend it. The Constitution did not mean and could not mean to deprive the legislature of the power of exercising its wisdom on a subject so vitally interesting to the people, nor do its words convey such an intent. Were it even true, which we cannot admit, that the Constitution established the jurisdiction of the court of common pleas in the case, still the legislature might prescribe the rule by which that jurisdiction should be exercised.

We are satisfied that there was no error in the instruction given by the circuit court to the jury.

The plaintiffs in error contend that the court erred in overruling the motion to appoint commissioners to value the improvements in pursuance of the occupant law of Ohio

Page 27 U. S. 525

and in rendering judgment without conforming to that law. The first section of the act provides that "An occupying claimant," circumstanced as was the plaintiff in error,

"shall not be evicted or turned out of possession until he or she shall be fully paid the value of all lasting and valuable improvements made by such occupying claimant, . . . previous to receiving actual notice by the commencement of suit . . . unless such occupying claimant shall refuse to pay the person so setting up and proving an adverse and better title, the value of the land without the improvements made thereon. . . ."

The 2d section proceeds to direct the court to appoint commissioners to make the valuation, which had been prescribed by the preceding section.

The counsel for the defendant in error insists that this law is repugnant to the 10th section of the first article of the Constitution of the United States, and to the ordinance of 1787 for the government of the Northwestern Territory.

This Court does not think that these questions properly arise in the present actual state of this controversy. The 7th Amendment to the Constitution of the United States declares that "In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." This is a suit at common law, and the value in controversy exceeds twenty dollars. The controversy is not confined to the question of title. The compensation for improvements is an important part of it, and if that is to be determined at common law, it must be submitted to a jury.

It has been said that the occupant law of Ohio, must, in conformity with the 34th section of the Judicial Act, be regarded as a rule of decision in the courts of the United States.

The laws of the states and the occupant law, like others, would be so regarded independent of that special enactment, but the exception contained in that section must be regarded likewise. The law, so far as it consists with the Constitution of the United States and of the State of Ohio, is a rule of property, and of course a rule of decision in the

Page 27 U. S. 526

courts of the United States, but that rule must be applied consistently with their constitution.

Admitting that the Legislature of Ohio can give an occupant claimant a right to the value of his improvements, and can authorize him to retain possession of the land he has improved until he shall have received that value, and assuming that they may also annex conditions to the change of possession which, so far as they are constitutional, must be respected in all courts, still that legislature cannot change radically the mode of proceeding prescribed for the courts of the United States or direct those courts, in a trial at common law, to appoint commissioners for the decision of questions which a court of common law must submit to a jury.

But this inability of the courts of the United States to proceed in the mode prescribed by the statute does not deprive the occupant of the benefit it intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law, and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements as well as rents and profits, and can enjoin the execution of the judgment at law until its decree shall be complied with. If any part of the act be unconstitutional, the provisions of that part may be disregarded while full effect will be given to such as are not repugnant to the Constitution of the United States or of the state or to the Ordinance of 1787. The question whether any of its provisions be of this description will properly arise in the suit brought to carry them into effect.

We think there is no error in the judgment, and it is

Affirmed with costs.

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