Even if the bill seeking a sale of infant's property for
reinvestment does not clearly state a case within the authority of
the court, the decree of sale, appointment of trustee, and
execution of his bond are not mere nullities subject to collateral
The Supreme Court of the District of Columbia is one of general
Page 218 U. S. 494
possessing all powers conferred on circuit and district courts
of the United States -- in fact, the usual powers incident to a
court of equity at the date of the Revolution not incompatible with
the changed forms and principles of government or affected by
subsequent legislation. Clark v. Mathewson,
382. The inherent power of a court of equity of general
jurisdiction over the persons and estates of infants is very wide.
Its errors in regard to a sale of real estate of infants are
reversible by appellate procedure, but until so corrected, its
judgment is not a nullity.
The voluntary surety on the bond of a trustee in a proceeding to
sell real estate is estopped to attack the validity of the decree
appointing the trustee or of the bond.
Where the demurrer to one plea of the answer was overruled and
plaintiff did not plead further, reversal of the judgment and
sustaining the demurrer to that plea leaves the other pleas open to
be dealt with by the court below.
This Court only having before it the demurrer on one plea to
this answer which was overruled below, it reverses the judgment and
sustains the demurrer, and other pleas in defense remain at issue,
and this Court will not consider them on this appeal.
31 App.D.C. 433 reversed.
The facts, which involve the liability of a surety on a bond
given for faithful performance of his duty by a trustee appointed
to sell the interest of an infant in real estate, are stated in the
Page 218 U. S. 499
MR. JUSTICE LURTON delivered the opinion of the Court.
This was an action upon a bond executed by Thomas E.
Page 218 U. S. 500
Waggaman, as principal, and Daniel B. Clarke, as his surety. The
bond was in these words and figures:
n the Supreme Court of the District of Columbia"
n Equity. No. 20,225, Docket 46."
"Mattie McC. Hine"
"Robert Edward Hine et al."
"Know all men by these presents, that we, Thomas E. Waggaman,
principal, and Daniel B. Clarke, surety, all of the District of
Columbia, acknowledge ourselves indebted to the United States of
America in the penal sum of $18,000, for the payment of which we
bind ourselves and every of our heirs, executors, and
administrators, jointly and severally, for and in the whole. Sealed
with our seals, and dated this 7th day of July, A.D. 1899."
"Whereas the said Thomas E. Waggaman has been duly appointed
trustee to make sale of the real estate in the proceedings in this
"Now the condition of the above obligation is such, that, if the
above bounden Thomas E. Waggaman shall well and truly discharge the
duties devolving upon him as such trustee, and shall in all things
obey such order and decree as this Court shall make in the
premises, then the above obligation to be void and of no effect;
else to be in full force and virtue."
The bond, as shown by its recitals, was executed in a pending
equity cause in the Supreme Court of the District, wherein the
parties for whose use this suit is brought were parties, either
plaintiff or defendant.
The declaration, in substance, averred a breach of the bond, in
this: that Waggaman had assumed the duty and function of trustee
for the sale directed by the decree, had sold and conveyed the
property as directed, but had not accounted for the proceeds,
having unfaithfully violated
Page 218 U. S. 501
the trust and confidence reposed in him by squandering and
misappropriating such proceeds. It was further averred that, on
November 21, 1905, the said Waggaman had disobeyed a decree of the
court requiring him to pay into court the sum of $8,147.27, with
interest from August 1, 1904, and was therefore in default.
The defenses with which we are concerned upon this writ are
those made by the surety, who, by a plea which the court below
sustained, challenged the obligation of the bond. The insistence is
that the Supreme Court of the District exceeded its authority in
decreeing a sale of the land which was sold by Waggaman, and his
appointment to make such a sale was a nullity, and the bond
executed by him with the defendant Clarke as surety mere waste
The proceeding in the Supreme Court in which this bond was
executed was a bill in equity to sell Lot No.1912 I Street N.W.
Washington, District of Columbia, as the property of a minor, for
purpose of reinvestment under like trusts. The title was held under
the will of Robert B. Hine, who died in 1895. So much of the will
as concerns the title to the premises of which a sale was decreed
was in these words:
"I give and bequeath to my dear wife, Mattie McC. Hine, a life
interest in all my real estate. As executrix, she will collect the
income arising from my said real estate, and after paying all
necessary expenses of collection, fire insurance, and repairs,
shall retain the remainder of the income for her own use. After the
death of my said wife, I give and bequeath my real estate to my
son, Robert Edward, and any other children that may hereafter be
born to me. If my said wife should marry again, she will, from the
date of such remarriage, be entitled to retain for her own use,
one-half of the net income of my estate, and will pay the remainder
to a trustee for my son, and any other children who may hereafter
be born to me. Provided, further, that, should my wife marry
Page 218 U. S. 502
again, and should no child of mine by her be then surviving, the
whole net income from my estate shall be retained by her, during
her life, and after her death, my real estate shall be sold, and of
the proceeds, one third shall be paid to my father, the Rev. Henry
Hine, now of Boston Spa, Yorkshire, England, if he then be living,
he not being then living, to my mother, Amelia Burnett Hine,
neither of them being then living, to my sister Amelia Burnett
Hine, and the residue shall be equally divided between my brothers
and sisters, share and share alike. If neither parent nor my sister
Amelia Burnett Hine outlives my said wife, then the whole net
proceeds of the sale of my real estate, shall be equally divided
between my brothers and sisters. Should any of these have died
before this distribution takes place, their surviving children
shall receive the share of the deceased parent, share and share
The complainant in the suit was Mattie McC. Hine, the widow of
the testator, who averred that she had never remarried. The
defendants were the only issue of her marriage with testator, her
son, Robert E. Hine, then an infant of nine years of age, and the
persons who, under the will, were given contingent interests. The
minor, Robert E. Hine, was duly served and answered by guardian
The other defendants were made parties by
publication as persons not to be found in the District. The bill
alleged that the dwelling house was deteriorating in value, that it
was often unrented, that repairs, insurance, and taxes left an
inconsiderable net income, which would go on diminishing. That she
believed she could obtain $8,500 for the premises, a sum much
larger than the value of the property to the remaindermen when her
estate should fall in, and that the proceeds could be so invested
as to much improve her income and better "enable her to provide for
the remainderman during his minority." The bill alleged that the
will did not
Page 218 U. S. 503
prohibit a sale. The prayer was for a decree of sale and for a
reinvestment, in pursuance of § 973, Rev.Stat.D.Ct.
Upon the pleadings and proof, the court directed a sale of the
said lot, and in the same decree appointed Thomas E. Waggaman
"trustee to make the sale," requiring him to execute a bond of
"conditioned for the faithful performance of the trust reposed
in him by this decree, or which may be reposed in him by any future
order or decree in the premises."
By the same decree, he was required "to bring into court the
money arising on such sale . . . to be disposed of under the
direction of the court," etc.
The contention is that the Supreme Court of the District has no
inherent or general power as a court of equity to decree the sale
of an infant's property for the purpose of reinvestment, and that
its jurisdiction was wholly dependent upon statutory power
conferred by §§ 969 et seq.,
Rev.Stat.D.C., taken from the
Act of Congress of August 18, 1856. Section 969 reads as
"Where real estate is limited by deed or will to one or more for
life or lives, with a contingent limitation over to such issue of
one or more of the tenants for life as shall be living at the death
of their parent or parents, and the deed or will does not prohibit
a sale, the Supreme Court of the District may, upon the application
of the tenants for life, and if the court shall be of the opinion
that it is expedient to do so, order a sale of such estate, and
decree to the purchaser an absolute and complete title in fee
The contention is that the only jurisdiction conferred by the
statute is confined to real estate which is by deed or will
"limited to one or more lives, with a contingent limitation over
to such issue of one or more of the tenants for life as shall be
living at the death of either parent,"
and that, under the will of Robert B. Hine, the devise to Robert
Edward Hine is a vested, and not a contingent,
Page 218 U. S. 504
remainder, while the contingent remainders -- contingent on the
death of said Robert and the subsequent remarriage of his mother,
the said Mattie -- are not limitations over to issue of either
Robert B. Hine or Mattie Hine. For this construction of the
statute, of the court below relied upon Trust Co. v. Muse,
4 App.D.C. 12, 20; Thaw v. Ritchie,
5 Mack. 200, and
Clark v. Mathewson,
7 App.D.C. 384.
Clearly, under the will, there was a life tenant and a remainder
over at the death of the life tenant to Robert E. Hine, who was the
issue of the testator and of the life tenant. The remainder was not
absolute, for if the remainderman should die, and his mother, the
life tenant, remarry, this lot was to be sold and the proceeds paid
over to certain collaterals named. Technically the interest was a
vested remainder, subject to open and let in the testator's
brothers and sisters, and to be divested upon the death of Robert
E. Hine and remarriage of the life tenant. The contention now is
that, if the court erred in the construction of the will, or in the
interpretation and application of the statute, and decreed a sale
for reinvestment, not strictly authorized by the statute, that its
action and decree is to be regarded as a nullity, that the sale is
void, and that the appointment of Waggaman as trustee and the
execution of his bond are absolute nullities.
But if we assume that, upon a critical construction of the will
and of the statute, the bill seeking a sale of this property for
reinvestment did not state a case clearly within the statutory
authority of the court, it does not necessarily follow that the
decree of sale and all else that occurred are to be treated as mere
nullities, subject to collateral attacks such as this is.
The Supreme Court of the District is one of general
jurisdiction. It possesses all of the powers which by statute are
conferred upon the circuit and district courts of the United
States. Sections 760 and 765, Rev.Stat.D.C.
Page 218 U. S. 505
It may be said, indeed, to have the usual powers incident to a
court of equity at the date of the Revolution not incompatible with
the changed form and principles of government or affected by
subsequent legislation. Clark v. Mathewson,
The inherent power of a court of equity over the persons and
estates of infants is very wide. For the purpose of maintenance,
the power over real estate is undoubtedly more comprehensive than
it is over the sale of real estate for purposes of reinvestment,
though manifestly for the interest of the minor. The weight of
authority seems to be that it does not extend to sales merely
because it shall appear to be for the interest of the infant
(Bispham's Equity, § 549; Story's Equity, § 1357; 3 Pomeroy's
Equity, §§ 1304, 1309), though there is not lacking very
respectable authority for the power to sell real estate when shown
to be for the manifest interest of the minor. 2 Kent's Com., 11th
ed. *230; Hedges v. Riker,
5 Johns Ch. 167; 4 Heisk. 370,
and 7 Baxt. 502. The Supreme Court of the District had jurisdiction
over the subject matter, the res.
It had jurisdiction over
the parties. It was, according to due course of equity proceeding,
called upon to examine the will and the statute which gave the
power to make the sale in certain circumstances. If, then,
jurisdiction consists in the power to hear and determine, as has so
many times been said, and the court errs in holding that a case has
been made either under its inherent power or its statutory
authority, can it be said that it has usurped jurisdiction and that
its decrees are absolute nullities? To this we cannot consent. If
the court was one of general, and not special, jurisdiction, if,
under its inherent power, supplemented by statutory enlargement, it
had jurisdiction under any circumstances to sell the real estate of
minors for reinvestment, it had jurisdiction to examine and
determine whether the particular application was within or beyond
its authority. To do this
Page 218 U. S. 506
was jurisdiction. If it errs, its judgment is reversible by
proper appellate procedure. But its judgment, until it be
corrected, is a judgment, and cannot be regarded as a nullity.
In the leading case of Ex Parte Tobias
3 Pet.193, 28 U. S. 203
28 U. S. 206
the opinion was by Chief Justice Marshall. The question arose upon
a writ of habeas corpus. The petitioner had been indicted and
convicted. He sought to be discharged from prison because the
indictment upon its face charged no offense cognizable by courts of
the United States. The Court said, among other things:
"An imprisonment under a judgment cannot be unlawful unless that
judgment be an absolute nullity, and it is not a nullity if the
court has general jurisdiction of the subject, although it should
be erroneous. The Circuit Court for the District of Columbia is a
court of record, having general jurisdiction over criminal cases.
An offense cognizable in any court is cognizable in that court. If
the offense be punishable by law, that court is competent to
inflict the punishment. The judgment of such a tribunal has all the
obligation which the judgment of any tribunal can have. To
determine whether the offense charged in the indictment be legally
punishable or not is among the most unquestionable of its powers
and duties. The decision of this question is the exercise of
jurisdiction, whether the judgment be for or against the prisoner.
The judgment is equally binding in the one case as in the other,
and must remain in full force unless reversed regularly by a
superior court capable of reversing it."
After referring to and commenting upon Kempe v.
5 Cranch 173, and Skillern
6 Cranch 267, the Court added:
"Had any offense against the laws of the United States been in
fact committed, the Circuit Court for the District of Columbia
could take cognizance of it. The question
Page 218 U. S. 507
whether any offense was or was not committed -- that is, whether
the indictment did or did not show that an offense had been
committed, was a question which that court was competent to decide.
If its judgment was erroneous, a point which this Court does not
determine, still it is a judgment, and, until reversed, cannot be
This case was followed in Ex Parte Parks, 93 U. S.
, 93 U. S. 23
In re Coy, 127 U. S. 731
127 U. S. 757
where this Court, speaking by Mr. Justice Miller, said of the
language just cited from Ex Parte Watkins,
"It may be said that this language is too broad in asserting
that, because every court must pass upon its own jurisdiction, such
decision is itself the exercise of a jurisdiction which belongs to
it, and cannot therefore be questioned in any other court. But we
do not so understand the meaning of the court. It certainly was not
intended to say that, because a federal court tries a prisoner for
an ordinary common law offense, as burglary, assault and battery,
or larceny, with no averment or proof of any offense against the
United States, or any connection with a statute of the United
States, and punishes him by imprisonment, he cannot be released by
habeas corpus because the court which tried him had assumed
"In all such cases, when the question of jurisdiction is raised,
the point to be decided is whether the court has jurisdiction of
that class of offenses. If the statute has invested the court which
tried the prisoner with jurisdiction to punish a well defined class
of offenses, is forgery of its bonds or perjury in its courts, its
judgment as to what acts were necessary under these statutes to
constitute the crime is not reviewable on a writ of habeas
The principle has been applied in many cases, notably in cases
in which want of jurisdiction as a court of the
Page 218 U. S. 508
United States was apparent on the record. Des Moines Co. v.
Iowa Homestead Co., 123 U. S. 552
123 U. S.
-559; Dowell v. Applegate, 152 U.
, 152 U. S.
In McNitt v.
16 Wall. 352, 83 U. S. 365
the Court, after passing upon various jurisdictional objections to
a judicial sale of a title in controversy, said:
"But there is a comprehensive and more conclusive answer to all
the objections to the sale which have been considered, and to
others suggested which have not been adverted to."
"Upon the filing of the notice with the proof of publication,
and the subsequent filing of the petition of the administrator for
authority to sell, the circuit court had jurisdiction of the case.
No presumption on that subject is necessary. Jurisdiction is
authority to hear and determine. It is an axiomatic proposition
that, when jurisdiction has attached, whatever errors may
subsequently occur in its exercise, the proceeding, being coram
can be impeached collaterally only for fraud. In all
other respects, it is as conclusive as if it were irreversible in a
proceeding for error. The order of sale before us is within this
rule. Grignon's Lessee v. Astor et
2 How. 341, was, like this, a case of a sale
by an administrator. In that case, this Court said:"
"The 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 the purchaser is as much protected as if the
adjudication would stand the test of a writ of error, and so where
an appeal is given, but not taken, in the time allowed by law."
"This case and the case of Voorhees v. The Bank of the United
10 Pet. 449, are the leading authorities in
this Court upon the subject. Other and later cases have
Page 218 U. S. 509
and been controlled by them. Stow v. Kimball,
93, affirms the same doctrine."
The line between a judgment which is a plain usurpation of
jurisdiction and one which is merely erroneous, and reviewable only
by seasonable appeal, is a plain one. The case in hand falls, in
our judgment, within those which are merely reversible upon
appellate proceedings, and the judgment decreeing the sale and
appointing Waggaman as trustee to make the sale was not a
In Voorhees v.
10 Pet. 449, 35 U. S. 474
this Court said:
"The line which separates error in judgment from the usurpation
of power is very definite, and is precisely that which denotes the
cases where a judgment or decree is reversible only by an appellate
court, or may be declared a nullity collaterally when it is offered
in evidence in an action concerning the matter adjudicated, or
purporting to have been so. In the one case, it is a record
importing absolute verity; in the other, mere waste paper. There
can be no middle character assigned to judicial proceedings which
are irreversible for error. Such is their effect between the
parties to the suit, and such are the immunities which the law
affords to a plaintiff who has obtained an erroneous judgment or
execution. It would be a well merited reproach to our jurisprudence
if an innocent purchaser, no party to the suit, who had paid his
money on the faith of an order of a court, should not have the same
protection under an erroneous proceeding as the party who derived
the benefit accruing from it."
In Fauntleroy v. Lum, 210 U. S. 230
210 U. S.
, it is laid down that a judgment cannot be
collaterally impeached by showing that it was based upon a mistake
But, aside from the view we have expressed as to the validity of
the proceedings when collaterally attacked, we are of opinion that
the question of the validity of the decree of sale, the order
appointing Waggaman trustee to make the sale, and the validity of
the bond in suit, is
Page 218 U. S. 510
not open to question by one who voluntarily became the surety
upon the bond, thereby enabling his principal to obtain the
proceeds of sale. Having obtained the trust and confidence of the
court by aid of the security afforded by the solemn obligation to
faithfully execute the order of the court, and to pay into the
court the proceeds of the sale which he undertook to make, neither
the trustee so appointed, nor the surety for his performance of the
trust, is in a situation to deny the regularity of the transaction.
The proceeds which Waggaman received are either the funds of the
beneficial owners of the property, or, if the sale be in fact void
so far as to confer no title, the purchaser, in equity and justice,
must be protected before the money is distributed. The benefit
which Waggaman expected to secure he has been enabled to enjoy
through the voluntary execution of this bond by Clarke as his
surety. That bond recites his due appointment, and it would be
inequitable and unjust to permit either the principal or his surety
to deny the fact.
This rule of estoppel has been applied in many cases. It was
applied in respect to the bond of an Indian agent. The surety upon
the bond denied liability because the government did not produce
the commission showing the appointment of his principal. The Court
said: "The bond upon which the suit was brought recites that he was
appointed agent, and, the obligors in the bond are therefore
estopped from denying it." Bruce v. United
17 How. 437, 58 U. S.
The principle was applied to a distiller's bond, where one of
the defenses was that the bond was invalid. The Court said:
"But we prefer to place our judgment upon the broader ground
marked out by the adjudications of this Court, to which we have
referred. Everyone is presumed to know the law. Ignorance, standing
alone, can never be the basis of a legal right. If a bond is liable
to the objection
Page 218 U. S. 511
taken in this case and the parties are dissatisfied, the
objection should be made when the bond is presented for execution.
If executed under constraint, the constraint will destroy it. But
where it is voluntarily entered into and the principal enjoys the
benefits which it is intended to secure and a breach occurs, it is
then too late to raise the question of its validity. The parties
are estopped from availing themselves of such a defense. In such
cases, there is neither injustice nor hardship in holding that the
contract as made is the measure of the rights of the government and
of the liability of the obligors."
United States v.
10 Wall. 395, 77 U. S.
It was applied in respect of a stay bond executed under a void
act of legislation. "Not to apply the principle of estoppel to the
bond in this case would," said the Court, "it seems to us, involve
a mockery in judicial administration, and a violation of the
plainest principles of reason and justice." Daniels v.
Tearney, 102 U. S. 415
102 U. S. 422
The opinions of the highest courts of the states are full of
applications of the rule of estoppel. In Plowman v.
59 Ala. 559, the sureties upon the bond of an
administrator were not permitted to show the illegality of his
appointment. To the same effect is White v. Weatherbee,
126 Mass. 450.
The sureties upon the bond of a sheriff were held estopped to
deny the validity of his appointment or the regularity of his bond.
Jones v. Gallatin County,
78 Ky. 491.
In People v. Norton,
9 N.Y. 176, the sureties upon the
bond of a trustee appointed by a chancery court were held estopped
to deny the validity of the order appointing him.
In State v. Anderson,
16 Lea. 321, 335, and United
States v. Maurice,
2 Brock 96, the rule is recognized and
The questions which we have considered arose upon
Page 218 U. S. 512
a plea which set out the proceedings in the case in which the
bond had been taken, and averred their nullity for want of
jurisdiction. Another and distinct defense relied upon in the plea
was that, after the proceeds of sale had come to the possession of
said Waggaman, Mattie McC. Hine, one of the beneficiaries for whose
use this suit is prosecuted by the United States, had agreed with
the said Waggaman that he should retain in his possession and for
his own purposes the fund aforesaid, and should pay to her interest
at the rate of five percent per annum, quarterly. That this
agreement was acted upon and the interest so paid from the date of
the receipt of the proceeds, in 1899, to May 1, 1904, and that the
agreement was without the knowledge or consent of the surety. There
was a demurrer and joinder thereon to so much of the said plea as
set out and relied upon the nullity of the proceedings under which
the bond had been executed, and a replication and issue upon the
plea relying upon any alleged agreement between Waggaman, the
principal, and Mrs. Hine, as one of the beneficiaries in the bond.
The demurrer was overruled, and complainants, electing to stand
upon it, declined to further plead, whereupon the action was
dismissed. From this judgment there was an appeal to the Court of
Appeals of the District, where the judgment was affirmed.
So much of the plea as sought to defend the action in whole or
in part in consequence of the alleged agreement between the
principal in the bond and Mrs. Hine, without the consent of the
surety, remains at issue undisposed of, and is accordingly not
considered by us.
The judgment of the Court of Appeals, so far as it determined
the validity of the plea aforesaid, was erroneous, and the case is
reversed and remanded with direction to sustain the demurrer, and
remand the case for further proceedings not inconsistent with this