Grignon's Lessee v. Astor - 43 U.S. 319 (1844)


U.S. Supreme Court

Grignon's Lessee v. Astor, 43 U.S. 2 How. 319 319 (1844)

Grignon's Lessee v. Astor

43 U.S. (2 How.) 319

Syllabus

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.

It was for that court to decide upon the existence of the facts which gave jurisdiction, and the exercise of the jurisdiction warrants the presumption that the facts which were necessary to be proved were proved.

The distinction examined between courts of limited jurisdiction, where the record must show that jurisdiction was rightfully exercised, and courts of general jurisdiction, where the record being silent upon the subject, it will be presumed that jurisdiction existed.

A title to land becomes a legal title when a claim is confirmed by Congress. Such confirmation is a higher evidence of title than a patent, because it is a direct grant of the fee, which had been previously in the United States.

This was an ejectment to recover certain lands in the possession of Linns Thompson, the tenant in possession, at Green Bay, in the County of Brown and Territory of Wisconsin. The plaintiffs in error were also plaintiffs below.

Both parties derived title from Pierre Grignon, deceased, who was one-eighth Indian and seven-eighths French. He died in March, 1823, leaving Robert, born in 1803, and Peter, born in 1805 or 1806, his only children by an Indian woman, to whom it was alleged he had been married. They made a conveyance of one-third of the lands to Morgan L. Martin by deed, 15 November, 1834, who together with the two sons of Pierre, were the lessors of the plaintiff below.

A patent was issued by the United States, on 21 December, 1829, to Pierre Grignon and his heirs, reciting, that by the 3d section of the Act of Congress approved on 21 February, 1823, Pierre Grignon was confirmed in his claim to the tract of land containing 230 acres, bounded &c., and granting said land accordingly.

This was the case made out for the plaintiffs in the court below.

The defendant's title was this.

Pierre Grignon died intestate in March, 1823. Letters of administration

Page 43 U. S. 320

upon his estate were granted by the Judge of Probate of Brown County, on 21 June, 1824, to Paul Grignon, who applied under the laws of Michigan, to the County Court of Brown County for power to sell the real estate of the deceased. The authority was granted and the sale made, under which the title passed through Augustine Grignon to Astor, Crooks, and Stuart, the defendants in the court below. The case turned on the validity of these proceedings, to which sundry objections were made. Before stating them, it is proper to insert so much of the law of Michigan as bears upon the various points.

Act July 27, 1818, sec. 1.

"Be it enacted . . . that when the goods and chattels belonging to the estate of any person deceased, or that may hereafter decease, shall not be sufficient to answer the just debts which the deceased owed &c., upon representation thereof, and the same being made to appear to the Supreme Judicial Court, at any term or sitting of said court, or to the county court in the county where the deceased person last dwelt, or in the county in which the real estate lies, the said courts are severally and respectively authorized to empower and license the executors or administrators of such estate, to make sale of all or any part of the houses, lands, or tenements, of the deceased, so far as shall be necessary to satisfy the just debts which the deceased owed at the time of his death, and legacies bequeathed in and by the last will and testament of the deceased, with the incidental charges."

"And every executor or administrator being so licensed and authorized, shall and may, by virtue of such authority, make, sign, and execute in due form of law, deeds and conveyances for such houses &c., as they shall so sell, which instrument shall make as good a title to the purchaser, his heirs and assigns forever, as the testator or intestate, being of full age, of sane mind and memory, in his or her lifetime, might or could for a valuable consideration."

"Provided always that the executor or administrator, before sale be made as aforesaid, give thirty days' public notice, by posting up notifications of such sale in the township where the lands lie, as well as where the deceased person last dwelt, and in the two next adjoining townships, and also in the county town of the county,"

&c.

"Sec. 2. Whereas, by the partial sale of real estate for the payment of debts or legacies as aforesaid, it often happens that the remainder thereof is much injured, be it therefore enacted . . . that whenever it shall be necessary that executors and administrators

Page 43 U. S. 321

shall be empowered to sell some part of the real estate of testators or intestates, or for guardians to sell some part of the real estate of minors or persons non compos mentis, for the payment of just debts, legacies, or taxes, or for the support or legal expenses of minors or persons non compos mentis, and by such partial sale the residue would be greatly injured, and the same shall be represented and made to appear to either of the aforesaid courts, on petition and declaration, filed and duly proved therein by the said executors, administrators, or guardians, the aforesaid courts respectively may authorize and empower such executors, administrators, or guardians . . . to sell and convey the whole, or so much of said real estate as shall be most for the interest and benefit of the parties concerned therein, at public auction, and good and sufficient deeds of conveyance therefor to make and execute, which deed or deeds, when duly acknowledged and recorded in the registers of deeds for the county where the said real estate lies, shall make a complete and legal title in fee to the purchaser or purchasers thereof."

"Provided the said executors, administrators &c., give thirty days' public notice of such intended sale, in manner and form hereinbefore prescribed."

"And provided, also, that they first give bonds, with sufficient sureties, to the judge of probate for the county where the deceased testator or intestate last dwelt and his estate was inventoried, that he or she will observe the rules and directions of law for the sale of real estate by executors or administrators, and the proceeds of such sale, after the payment of just debts, legacies, taxes, and just debts for the support of minors, and other legal expenses and incidental charges, shall be put on interest, on good securities, and that the same shall be disposed of agreeably to the rules of law."

"Sec. 3. That every representation to be made as aforesaid, shall be accompanied with a certificate from the judge of probate of the county where the deceased person's estate was inventoried, certifying the value of the real estate and of the personal estate of such deceased person, and the amount of his or her just debts, and also his opinion whether it be necessary that the whole or a part of the estate should be sold, and if part only, what part."

"And the said courts, previous to their passing on the said representation, shall order due notice to be given to all parties concerned, or their guardians, who do not signify their assent to such sale, to

Page 43 U. S. 322

show cause at such time and place as they shall appoint, why such license should not be granted."

"And in case any person concerned be not an inhabitant of this territory, nor have any guardian, agent, or attorney therein, who may represent him or her, the said justices may cause the said petition to be continued for a reasonable time, and the petitioners shall give personal notice of the petition to such absent person, his or her agent, attorney, or guardian, or cause the same to be published in someone of the newspapers in this territory three weeks successively."

"And the said courts, when they think it expedient, may examine the said petitioner on oath, touching the truth of facts set forth in the said petition, and the circumstances attending the same."

"Sec. 7. That real estate is and shall be liable to be taken and levied upon by any execution issuing upon judgments recovered against executors or administrators in such capacity, being the proper debts of the testator or intestate; and that the method of levying; appraising and recording, shall be the same as by law is provided respecting other real estates levied upon and taken in execution, and may be redeemed by the executor, administrator, or heir, in like time and manner."

Act to direct Descents, sec. 17.

"Whereas, it sometimes happens, that for want of prudent management in executors, administrators . . . who are empowered to sell real estates, such estates are disposed of below their true value, to the great injury of heirs and creditors: therefore every executor, administrator . . . who may obtain a legal order for selling real estate, shall, previous to the sale, before the judge of probate, or some justice of the peace, take the following oath:"

" I, A. B., do solemnly swear, that in disposing of the estate belonging to _____, now deceased, I will use my best skill and judgment in fixing on the time and place of sale, and that I will exert my utmost endeavors to dispose of the same in such manner as will produce the greatest advantage to all persons interested therein, and that without any sinister views whatever."

"And the said executor, administrator &c., shall return to the judge of probate a certificate of the same, under the hand of the justice before whom such oath was taken."

The defendants then called Charles C. P. Arndt as a witness, who testified that he was the Judge of Probate for the County of Brown, and produced the record of letters of administration granted by John Lawe, judge of probate of said county, to Paul Grignon, on

Page 43 U. S. 323

21 June, A.D. 1824, on the estate of Pierre Grignon, deceased, and also the record of the bond given by the administrator, filed and approved by the said judge of probate on 21 June, 1824, which were read in evidence.

The defendants then offered to read in evidence the following extract or order from a book purporting to be the book of the minutes of the proceedings of the County Court for the County of Brown, which book, Gardner Childs, the clerk of this court, testified that he had received as the record of said county court, viz.:

"At a session of the County Court for the County of Brown, begun and held at the Township of Green Bay, in the school house, on Tuesday, the tenth day of January, one thousand eight hundred and twenty-six."

"Present; the Hon. James Porlier, Chief Justice, and John Lawe, Esq., Associate Justices. The court was opened by George Johnston, Sheriff."

"The petition of Paul Grignon, administrator on the estate of Pierre Grignon, late of the County of Brown (deceased), was filed by his attorney, H. S. Baird, praying for an order from the court to authorize him to dispose of the real estate of said Pierre."

"In consideration of the facts alleged in said petition, and for divers other good and sufficient reasons, it is ordered that he be empowered as aforesaid."

"Minutes read, corrected, and signed by order of the court."

"ROBERT IRWIN, Jr., Clerk"

The reading of which said extract or order in evidence was objected to by the lessors of plaintiff on the ground that it does not appear that there was any petition presented to the court, nor any certificate of the judge of probate certifying as to the value of the property and the necessity of the sale; nor is there anything to show the reasons by which the court could be invested with power to order the sale of the real estate of the intestate according to the statute; and that no notice was given to the parties concerned to show cause according to the requisites of the statute; nor does the order specify what lands of the intestate were to be sold; which objections were overruled by the court, and the said extract or order was read in evidence. To which decision the lessors of the plaintiff excepted.

The defendants then offered in evidence a bond and oath of said administrator to make sale of the real estate of the intestate according to the statute, dated and filed in the probate office of 20

Page 43 U. S. 324

April, 1826, which were objected to by the lessors of the plaintiff. The objection overruled by the court, who decided that the same might be read in evidence. To which decision the lessors of the plaintiff excepted.

The defendants then introduced Henry S. Baird as a witness, who, being sworn, says, he thinks the notice of sale by the administrator was written and printed. The printed notice is in court, contained in a newspaper called the "Michigan Herald," printed at Detroit, in seven weekly numbers, commencing on 16 March, 1826, and ending on 26 April, in the same year. Defendants offered to read the notice from the papers and to prove by parol that notice of sale was also given in writing, all which evidence was objected to by lessors of plaintiff, which objection was overruled by the court, and the testimony admitted. To which decision the lessors of the plaintiff excepted.

The witness then testified

"I cannot state that I put up any notices of sale, but that I drew the notices, I am positive. I think, I am positive, I drew five copies of the notice which has been read from the newspaper. I cannot say that they were put up in the township at this distance of time -- 13 years. I cannot recollect. There was at that time but one township in this County of Brown, and two counties in what is now the Territory of Wisconsin."

John P. Arndt was called again by the defendants, and testified that he saw a notice of sale of lands of Pierre Grignon posted up in the township, and thinks it was at this house is Green Bay, in the fore part of the season of 1826.

The foregoing testimony of the witnesses, Baird and Arndt, was objected to by lessors of the plaintiff at the time the same was offered. The objection was overruled by the court and testimony admitted. To which decision the lessors of the plaintiff excepted.

The defendants then offered in evidence a deed from Paul Grignon, as administrator on the estate of Pierre Grignon, deceased, to Augustus Grignon, dated 13 June, A.D. 1826, and recorded on 5 February, 1828, in the register's office of Brown County, in book B, page 34, for land covering the land in dispute, which was objected to by the lessors of the plaintiff on the following ground, viz.,

1. No title appeared to be in Pierre Grignon, at the time of his death, or at the date of the deed, to the lands in question.

2. There was no certificate of the judge of probate, as required by

Page 43 U. S. 325

the statute, to the county court of the necessity of the sale of said lands for the payment of debts, and the order for sale, by the county court, was void.

3. There is no evidence on record that the property was sold, or ordered to be sold, for the payment of the debts of the intestate.

4. The sale was not advertised according to law, nor is there any record that the county court made any order how the estate should be advertised.

5. No order was made by the county court to show cause why the sale should not be made before granting the order.

In connection with the above deed from Paul Grignon, the defendants offered in evidence the following license, the reading of which was objected to, on the ground that it could have no greater effect than the order upon which it purported to be founded, but the court overruled the objection and permitted it to be read.

"TERRITORY OF MICHIGAN"

"Brown County"

"The United States of America, to Paul Grignon, administrator of Pierre Grignon, deceased: "

"Be it known to all to whom it may concern, that at a term of the County Court of the County of Brown, continued and held at the Township of Green Bay, on Tuesday, the tenth of January, A.D. 1826, before the Hon. James Porlier, Chief Justice, and John Lawe, Esq., Associate Justice, Paul Grignon, administrator of all and singular the goods &c., lands and tenements of Pierre Grignon, deceased, late of the County of Brown aforesaid, represents to this Court, then and there in session, that the said Pierre died intestate at Green Bay, in said County of Brown, on 4 March, A.D. 1823."

"That at the time of his death the said Piere was seized in his demesne as of fee, in and to the following tracts or lots of land, situated at Green Bay aforesaid, to-wit.: "

"[Here follows a description of the land.]"

"And it has been ascertained by the petitioner that the goods and chattels belonging to the estate of the said deceased are insufficient to pay all the just debts which he owed at the time of his death, but that his estate will be insolvent, and therefore prays that leave may be granted to him to dispose of the tracts and lots of land aforesaid."

"Now therefore, for the causes aforesaid, and for divers other

Page 43 U. S. 326

good and sufficient reasons, the court thereunto moving, they do hereby authorize and empower you, the said administrator, to dispose of all the right, title, and interest of the deceased, in and to the above described tracts and lots of land, in such manner as will best serve the interest of all concerned in said estate, requiring of you a due observance of the statute in such case made and provided."

"WITNESS, James Porlier, Chief Justice of the County Court of the County of Brown, at the Township of Green Bay, on 28 March, A.D. 1826."

"ROBERT IRWIN, Jr., Clerk, B.C."

The counsel for the lessors of plaintiff thereupon requested the court to give the jury the following instructions, viz.:

"Instruction 1st. If the jury believes from the evidence that the lessors of the plaintiff are the heirs-at-law of Pierre Grignon or have shown a regular conveyance from the heirs-at-law to themselves of the premises in question before the commencement of this suit, that then the defendants can claim no title under the sale of the premises in question, made by Paul Grignon, as administrator of the estate of Pierre Grignon, by virtue of the order made by the County Court of Brown County made on 10 January, 1826, unless the jury is satisfied that the representation made by the said administrator to the said court to obtain the order for license of the said court for the sale of the said premises was accompanied by a certificate of the judge of probate of the county where the said deceased person's estate was inventoried, certifying the value of the real estate, and the value of the personal estate of the said deceased person, and the amount of his just debts, and also his opinion whether it be necessary that the whole or a part of the estate should be sold, and, if a part only, what part, as directed by the third section of an act entitled 'An act directing the settlement of the estates of persons deceased, and for the conveyance of real estate in certain cases,' as adopted by the Governor and judges of the Territory of Michigan, on 27 July, 1818."

"Instruction 2d. That the said order or license of the said county court for the said sale, unless the said court had been furnished with the said certificate of the said judge of probate, is null and void as against the heirs-at-law of Pierre Grignon, who have not acquiesced in the said sale made by the administrator under and by virtue of the said order. "

Page 43 U. S. 327

To the two preceding instructions the court decided and directed the jury as follows, to-wit.:

"The two preceding instructions are answered, as the county court had jurisdiction of this subject, we are bound to infer that these things were shown to said court."

"Instruction 3d. That the said county court had no power or jurisdiction to make said order for sale, without the said certificate of the said judge of probate."

To which said instruction the said court decided and directed the jury as follows, viz.:

"The court answer that the certificate of the judge of probate was not necessary to give the court jurisdiction. It was required as evidence."

"Instruction 4th. It must appear affirmatively to the jury that the said county court at the time of the making the said order for sale of the said premises, had before them the said certificate of the said judge of probate at the time of making the said order, or granting the said license for the sale of the premises in question, or the said order for sale is void as against the heirs-at-law of Pierre Grignon, deceased, who had not acquiesced in the sale, and those claiming under them."

To which said instruction the court decided and directed the jury as follows, viz.,

"This is answered. The judgment of the county court having jurisdiction is conclusive upon this point."

"Instruction 5th. Unless it appears affirmatively to the jury that the said county court, previous to their passing on said representation for the sale of said premises, ordered due notice to be given to all parties concerned or their guardians who did not signify their assent to such sale to show cause, at such time and place as the court appoint, why such license should not be granted agreeably to the provisions of the said third section of said act in the first instruction referred to, that then the said order or license for sale was void as against the heirs of Pierre Grignon who have not acquiesced in such sale, and the defendants can acquire no title by virtue of the sale made by the administrator under the said order as against the heirs-at-law of the said Pierre Grignon, deceased."

To which said instruction the court decided and directed the jury as follows, to-wit:

"This is answered. We state that the county court having jurisdiction on the subject, their judgment is conclusive. "

Page 43 U. S. 328

"Instruction 6th. Unless the jury believe from the evidence that the said administrator, before the sale of the said premises, gave thirty days' public notice by posting up notifications of such sale, in the township where the lands lie, as well as where the said deceased last dwelt and in the two next adjoining townships, or caused the printing of such notifications for three weeks successively in such gazette or newspaper as the court who authorized the sale ordered and directed, the said sale was void as against the heirs of the deceased, and those claiming under them."

To which said instruction the court decided and directed the jury as follows, to-wit:

"This is a fact for the jury, and you must find that the advertisement given substantially complied with the law, or the sale is void."

"Instruction 7th. That the publishing of said notice of sale in a newspaper without the order or direction of the court who authorized the sale was a nullity."

To which said instruction the court decided and directed the jury as follows, to-wit:

"This is answered in the affirmative."

"Instruction 8th. That it must appear affirmatively that the administrator, before making sale of the said premises, did literally and strictly comply with the provisions of the said statute in relation to the posting up or publishing the said notice of sale, or the said sale was void as against the heirs of Pierre Grignon, who have not acquiesced in the same."

To which said instruction the court decided and directed the jury as follows, viz.:

"A substantial compliance with the requisites of the law on this subject is sufficient."

"Instruction 9th. If the jury believe from the evidence that Peter B. Grignon, one of the lessors of plaintiff, is one of the heirs-at-law of the deceased and was a minor at the time of the making of the said order for sale, and at the time of the said sale, a guardian should have been appointed to represent him according to law, and if no such guardian was appointed, the said sale was void as to him and those claiming under him."

To which said instruction the court decided and directed the jury as follows, to-wit:

"It was necessary and proper that, if a minor, he should be notified

Page 43 U. S. 329

by guardian, but in this issue the presumption is that he was. This is a fact that he might controvert on appeal."

"Instruction 10th. Unless the defendants in this case have proven affirmatively to the jury that the administrator of the said deceased strictly complied with all the provisions of the said statute, in obtaining the order for sale, and in making the said sale, that the defendants in this suit can acquire no title to the premises in question under said sale, as against the lessors of the plaintiff, if the jury believe from the evidence that the lessors of the plaintiff are the heirs-at-law of the said Pierre Grignon, deceased, or derived title from the heirs-at-law."

To which said instruction the court decided and directed the jury as follows, to-wit:

"Answer. That the court charge the jury that they are bound to consider, in this collateral issue, that the judgment or order of the County Court of Brown County, ordering the sale, was made upon sufficient and proper evidence, and that they had everything requisite before them to authorize them to make the order for the sale, and that the judgment of that court is conclusive until reversed."

"To all which foregoing decisions and answers, given by the said court to each and every of the said instructions, and for refusing to give the said instructions, respectively, as the same were asked, and to the said charge to the jury, and every part thereof, the said lessors of the said plaintiff except, and tender this bill of exceptions to the court for its signature, and bill sealed."

"ANDREW G. MILLER, Judge [L.S.]"

"October 21, 1839 "

Page 43 U. S. 335



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