Cynthia Jenks, on a petition to the General Assembly of Rhode
Island, representing that she was the executrix of the last will
and testament of Jonathan Jenks, late of Winchester in the State of
New Hampshire, deceased, and the personal property being
insufficient to pay the debts of the estate, obtained authority
from the judge of probate to make sale of so much of the real
estate of the deceased as should be necessary to pay the debts.
Under this authority, she sold and conveyed certain lands in the
State of Rhode Island as belonging to the estate and received a
part of the consideration money, and the balance was to be paid
when the deed executed by the petitioner should be ratified by the
general assembly. The residue of the purchase money was represented
to be absolutely necessary to pay the debts of the estate, and a
ratification of the deed, &c., was prayed. In the lower house,
June 1792,
"it was voted and resolved that the said petition be received
and that the said deed and the same is hereby ratified and
confirmed so far as respects the conveyance of any right or
interest in said estate, mentioned in said deed, which belonged to
the said Jonathan Jenks at the time of his decease."
And in the upper house this resolve was read the same day and
concurred in.
By the Court:
"The purchasers under the deed sanctioned received all the
interest in the premises which had been vested in Jonathan Jenks
and which on his death vested in his heirs or devisees. The act of
the legislature and the deed are unconditional, and neither the
heirs of Cynthia Jenks nor any other persons can impeach the deed
by evidence of facts prior to the act of confirmation."
The power of the Legislature of Rhode Island in relation to the
confirmation of such sales of real estate is greater than the
strict judicial power. They may sanction past transactions where
vested rights are not disturbed, while the court can only authorize
a title to be made in future.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The matters in controversy in this case are contained in certain
points, on which the judges of the Circuit Court for the District
of
Page 35 U. S. 295
Rhode Island were divided, and which have been certified for
decision to this Court, under the act of Congress.
The plaintiffs brought their action of ejectment against the
defendant to recover possession of the land in controversy, and
they claim as the heirs at law of Cynthia Jenks. It was proved that
Jonathan Jenks, who was seized of the premises and who died in
January 1787, devised the land to his daughter Cynthia, a few days
before his decease.
The defendant's counsel gave in evidence a certain deed,
executed by Cynthia Jenks, executrix, to Moses Brown and Ariel
Wilkinson, dated 12 November, 1791, and a certain bond or warrant
of the same date.
Also the petition of Cynthia Jenks to the General Assembly of
Rhode Island, representing that she was executrix of the last will
and testament of Jonathan Jenks, late of Winchester, in the State
of New Hampshire, deceased, and that the personal property being
insufficient to pay the debts of the estate, she obtained authority
from the judge of probate to make sale of so much of the real
estate of the deceased as should be necessary to pay the debts. And
that under this authority she sold and conveyed certain lands in
the State of Rhode Island, as belonging to the estate, and received
a part of the consideration money, and the balance was to be paid
when the deed executed by the petitioner should be ratified by the
general assembly. The residue of the purchase money was represented
to be absolutely necessary to pay the debts of the estate, and a
ratification of the deed, &c., was prayed.
In the lower house, June, 1792,
"It was voted and resolved that the said petition be received
and that the said deed and the same is hereby ratified and
confirmed so far as respects the conveyance of any right or
interest in said estate mentioned in said deed, which belonged to
the said Jonathan Jenks at the time of his decease."
And in the upper house this resolve was read the same day and
concurred in.
The questions adjourned to this Court are as follows:
"1. Whether the confirmatory act above stated is sufficient to
divest the title of the plaintiffs, if the sale of Cynthia Jenks,
the executrix, confirmed by that act, was not necessary to pay the
debts of her testator, Jonathan Jenks."
"2. Whether the burden of proof of the existence of such debts,
and the insufficiency of the personal estate, and also of the
real
Page 35 U. S. 296
estate, which the said Jonathan Jenks, by his said will,
authorized his executors to sell, and pay the same, or of either of
said points, is on the defendant."
"3. Whether the said confirmatory act is
prima facie
evidence of the existence of such debts, and of such insufficiency
of personal estate and real estate, so authorized to be sold as
aforesaid."
"4. Whether the defendant is to be deemed and held to be a
purchaser for a valuable consideration,
bona fide, and
without notice, so that he can protect himself under his title
aforesaid, notwithstanding there might have been no deficiency of
assets, and no debts of the testator remaining unpaid at the time
of the sale of Cynthia Jenks, executrix as aforesaid, and the
passage of the confirmatory act aforesaid."
"5. Whether the description of the demanded premises in the said
deed of Cynthia Jenks, taken in connection with the confirmatory
act, is sufficient in law to divest the plaintiff's title to the
same, and convey the same to the grantees."
"6. Whether the recital of the license of the judge of probate
in New Hampshire, contained in the deed of Cynthia Jenks, dated
November 12, 1791, and the recital of and reference to said license
in the petition of the said Cynthia to the legislature, and the act
passed, is
prima facie evidence of such license."
The whole of these questions, with the exception of a part of
the fifth, that refers to a description of the premises, and which
is not so stated as to enable the court to decide it, may be
included in the simple inquiry whether the grantees in the deed,
confirmed by the legislature, took an absolute title to the
premises in dispute. If this inquiry be answered in the
affirmative, there is an end to all further inquiries, and if in
the negative it follows that the title and all the proceedings
referred to could only be considered as
prima facie
evidence of the facts represented.
In 1829, this case was brought before this Court by writ of
error, and the Court then decided that the Legislature of Rhode
Island had the power to pass the above act.
27 U. S. 2 Pet.
627. And the only question which remains for consideration is the
effect of such legislative act.
If the legislature had power to confirm the deed in question, is
it not made absolute by the confirmatory act? That such is the
character of a title, made by an executor under an order of court,
is admitted, and is it not clear that the sanction of the
legislature must produce the same effect?
Page 35 U. S. 297
In this respect, the power of the Legislature of Rhode Island is
greater than the strictly judicial power, for they may sanction
past transactions, where vested rights are not disturbed, while the
court can only authorize a title to be made in future.
No fraud is alleged between the purchasers and executrix, and
the presumption is that they acted in good faith. Nor does it
appear that the rights of strangers were affected by the sale.
The purchasers then, under the deed sanctioned, received all the
interest in the premises which had been vested in Jonathan Jenks
and which on his death vested in his heirs or devisees. The act of
the legislature and the deed are unconditional, and neither the
heirs of Cynthia Jenks nor any other persons can impeach the deed
by evidence of facts prior to the act of confirmation. The
legislature would have investigated the facts and confirmed the
deed to but little purpose if it is to be considered only as
prima facie evidence of title. In this view it would be
necessary, in order to resist the title set up by the plaintiffs,
to show that the administratrix proceeded regularly in her acts of
administration, and that the sale of the real estate of the
deceased in Rhode Island was necessary to pay debts. But this is
not the nature of the title received by the purchasers. So far as
the deed, under the sanctions given to it, purports to convey, all
the right to the premises of which Jonathan Jenks was seized at the
time of his decease was conveyed absolutely.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Rhode Island, and on the points and questions on which the judges
of the said circuit court were opposed in opinion, and which were
certified to this Court for its opinion, agreeably to the act of
Congress in such case made and provided, and was argued by counsel,
on consideration whereof it is the opinion of this Court that the
grantees in the deed confirmed by the Legislature of Rhode Island,
took an absolute title to the premises in dispute in this cause,
which opinion answers the first, second, third, fourth and sixth
questions so certified, and also the fifth question, except that
part of said fifth question which refers to a description of the
premises, and which is not so stated as to enable this Court to
express an opinion, all of which is hereby ordered and adjudged by
this Court to be certified to the said circuit court.