THE opinion of the Court was delivered in this case, in the
following terms;
IREDELL, Justice.
A motion was made for a rule to show cause, why these ejectments
should not be dismissed, upon an allegation tht it appeared, by an
answer to a bill in equity, for a discovery in this court, brought
by the defendants in these ejectments, against the lessor of the
plaintiff, that they are in reality the suits of a citizen of this
state (viz. Samuel Wallis) though under the name of a citizen of
another state, to whom it is alleged, conveyances were made without
any consideration, for the sole purpose of making him a nominal
lessor of the plaintiff in these ejectments.
A rule to show cause was granted, and, upon the day appointed,
the case was fully heard and argued on both sides, the proceedings
in equity on the bill for a discovery having been exhibited to the
Court and read. [330-Continued.]
The importance of the present question is evident, because it
concerns the constitution and laws of the United States, in a point
highly essential to their welfare, to wit, the proper boundaries
between the authority of a single state, and that of the United
States.
This, not only the constitution itself has been anxious to
ascertain by precise and particular definitions, but the congress,
in carrying into effect that part of the constitution which
concerns the judiciary, has been solicitous to preserve with the
greatest caution. The strong instance of this is a provision in the
judicial act, to the following effect:
'That no district or circuit Court
shall have cognizance of any suit to recover the contents of any
promissory note, or other chose in action, in favour of an
assignee, unless a suit might have been prosecuted in such Court to
recover the said contents, if no assignment had been made, except
in cases of foreign bills of exchange.' Sect. 11. 1 vol. p.
55.
This I adduce as a strong instance to show the solicitude of
congress on this subject, for the regulation extends to a bon a
fide assignment in the instances specified, as well as to one mala
fide: but the provision goes to all, more effectually to prevent
any practices of deception by means of the latter.
Page 4 U.S.
330, 331
Nothing is more evident than that if this be a controversy
between citizens of different states, it is a controversy
determinable in this Court, and of which, therefore, the Court must
sustain jurisdiction. On the other hand, if it be not a controversy
between citizens of different states, but between citizens of the
same state, it not being one of those cases which entitle citizens
of the same state to any exercise of jurisdiction by this Court, it
ought not to be determined here. But if it shall appear, from a
consideration of the facts, that this is not a case which the
lessor of the plaintiff was entitled to bring into this Court, it
will still remain to be inquired, whether the remedy pursued on the
present occasion is proper. The first question, therefore, is,
Whether it sufficiently appears to the Court, that this is a
controversy subsisting between citizens of the same, state, and not
between citizens of different states, so as to authorise a
dismission of the suit, in case the remedy be in point of law a
proper one? The evidence, upon which the charge is alleged, is an
answer to a bill filed in the equity side of this Court by the
defendants in the ejectments, in order to obtain a discovery by the
oath of the lessor of the plaintiff. This is admitted to be
competent evidence on a question at law, and therefore (supposing
the method of proceeding in other respects proper) I am only to
consider, if it affords satisfactory evidence of the facts
suggested: The facts admitted by the answer, in substance, are
these: That there were certain applications to the land-office of
this state for 64 tracts of land, in the county of Luzerne,
containing 27,400 acres: That the applications were made (as the
respondent has been informed and believes) by and for the use of
Samuel Wallis of the county of Northumberland in this state: That
in April 1784, conveyances were executed to Maxfield the present
lessor of the plaintiff, by which the legal title to the lands
therein described was conveyed and assigned to Maxfield, as he
apprehends and believes. That Maxfield paid no consideration,
either pecuniary, or of any other nature, for the lands, and,
therefore, he apprehends and believes, that the equitable title is
in Samuel Wallis. That Maxfield consented to stand the trustee of
the lands, for the use and benefit of Wallis, and left the
management, direction, and prosecution, of the business to Wallis,
by whose direction Maxfield apprehends and believes, that the
caveats mentioned in the complainant's bill were filed, and all
subsequent proceedings had. In comparing the facts thus admitted,
with the bill he was called upon to answer, it is very remarkable,
that the last interrogatory was expressed in such particular and
pointed terms, that if it had been directly and positively
answered, it would have
Page 4 U.S.
330, 332
been decisive one way or the other. But it is not so answered,
and his own counsel now object, that he did not answer directly to
the question, and, therefore, the only remedy was to except to the
answer for insufficiency, and compel a better answer. This
objection, I think, may be easily obviated by the following
considerations. 1st. If the question had been an improper one, it
might have been demurred to. By that not being done, it is
confessed that the question was proper, and of course it ought to
have been answered. And it is little short of an insult on the
Court now to tell it, that the lessor of the plaintiff purposely
declined answering a question fairly put to him, which he might and
ought to have answered, but by his not doing it he now sets the
Court at defiance. 2d. If for want of a fuller answer, no evidence
was before the Court, the objection might possibly be of weight.
But all the other facts admitted by the answer, are open to all
proper inferences, as well such as arise from this wilful and
insolent omission, as from any other part of the case. The object
was to effect a discovery, whether certain conveyances were
actually given for the sole purpose of evading the constitutional
limits, as to jurisdiction, prescribed to this Court. Such a design
could be expected only to be disclosed by direct confession, or a
number of concurring circumstances. 3d. It does not appear that he
will ever given a better answer. He may chuse to go through all the
processes of contempt for not answering sufficiently, as he appears
already to have done for not answering at all. He may even submit
to perpetual imprisonment. Is the case never to be decided, until
he thinks fit to consent it shall be? 4th. The jurisdiction of this
Court is not prima facie general, but special. A man must assign a
good reason for coming here. If the fact is denied, upon which he
grounds his right to come here, he pust prove it. He, therefore, is
the actor in the proof; and, consequently, he has no right, where
the point is contested, to throw the onus probandi on the
defendant. As this undoubtedly is the general principle, I see no
reason to depart from it on the present occasion, when the
knowledge of all the circumstances of the case is fully possessed
by the lessor of the plaintiff, and he is regularly called upon to
disclose them. For these reasons, I am clearly of opinion, that
Maxfield's forbearing to give a fuller answer, is no reason for my
not weighing the amount of the answer, which he has thought proper
to give; and considering whether it sufficiently establishes the
allegations of the defendants in these causes. But it is objected,
that Maxfield's answer, though evidence against him, is no evidence
against Wallis, who is said to be the cestui que trust, and
Maxfield a bare trustee.
Page 4 U.S.
330, 333
Answer. Upon the face of these ejectments Wallis's name no where
appears. Maxfield, therefore, is the only person to be considered
here. If a cestui que trust has a right to support an ejectment,
but is forced, upon legal principles, to use the name of his
trustee, he must take the consequences. This Court, as a Court of
law, cannot punish the trustee for a breach of trust, though in
another capacity it may. But if it had been material to have made
Wallis a party, a great, if not an insuperable, difficulty has been
alleged in doing it. Wallis and the defendants being citizens of
the same state, it is very doubtful whether a bill in equity would
have lain against Wallis in this Court, though it was merely
incidental to the suit at law. But, it is clear, that the objection
in this case is merely frivolous, because upon the return of the
rule to show cause, an ex parte affidavit might be produced.
Wallis's affidavit undoubtedly might have been, as well as any
others. Why has it not been? No reason has been assigned to show it
could not be done, or that he desired, or that his counsel wished,
he should do it. Nor has time been solicited for his putting in
such an affidavit, though it is so seriously alleged, that it was
highly important to him to have had an opportunity of answering
this charge.
It is alleged, that Maxfield was a trustee, and as such
authorised to come into this Court.
A trustee for what purpose? There is not the least shadow of
evidence, that he was a trustee for any other purpose, than that
Wallis should have a colour for suing in this Court, in his name.
The deed is not even stated to have been delivered. No fair object
of the trust is specified. Wallis lived in Pennsylvania; the land
lies in Pennsylvania: Maxfield lived in Delaware. What was he to
do? It appears, from his own acknowledgment, that he has done
nothing hitherto, nor does he state he was to do any thing.
But, it is said, a man is not obliged to specify any object of a
trust. He may create a trust from mere whim.
Admitted. But the law cannot, without absurdity, permit a man to
create a trust, for the purpose of defeating a solemn provision of
its own. Nothing could be more ridiculous than such a principle.
When the constitution has guarded, with the utmost solicitude,
against the exercise of a particular authority, so as that, under
certain circumstances, one man shall not sue another in a Court
created under it, can such a Court for a moment support a doctrine,
that it shall be in the power of such a man, by any contrivance
expressly calculated to defeat this object, to render it wholly
negatory? This, indeed, would be to render the laws of our country
a farce; to make the constitution a mere shadow; and deservedly to
draw upon those entrusted with its execution, an odium which has
been industriously, but, I hope, will ever be in vain
attempted.
Page 4 U.S.
330, 334
But it is said, he system of fictions is not new; and an attempt
has been gravely made to induce this Court, by flattering
expressions, to add to the list of fictions in being, one of its
own, in the face of the constitution we are sworn to support, and
by every other sacred tie bound to maintain inviolate. It is true,
the Courts of law in England have countenanced and supported some
fictions. Such (for instance) as a fine and recovery, and an
ejectment; and, still more exceptionably, fictions to give a
jurisdiction, which otherwise could not be maintained. It is
sufficient to say of all these, that they originally took place,
when very dark notions of law and liberty were entertained; that
they are supported now solely on the authority of long usage; and
that no Court would now dare to set up a new one. No Court in
America ever yet thought, nor, I hope, ever will, of acquiring
jurisdiction by a fiction. And the only fiction ever in general use
in America (perhaps with a few exceptions as to fines and
recoveries) I believe, has been that of proceeding by ejectment,
which is a mere form of action, and so modified as to do no
possible injury. It cannot substantially affect any man's right
whatever. In order to encourage the Court to countenance this
scheme, it is said that no injury can arise from this practice,
because the decision in this Court will be on the same principles,
and, it is to be presumed, with an equal regard to justice, in this
Court, as in a state Court. If a serious answer to such an
observation is required, it is surely evident, that we are not to
assume a voluntary jurisdiction, because, we think, or any others
may think, it may be exercised innocently, or even wisely. The
Court is not to fix the bounds of its own jurisdiction, according
to its own discretion. A jurisdiction assumed without authority,
would be equally an usurpation, whether exercised wisely, or
unwisely. But the fact assumed cannot be admitted to be true. If
this Court exercise a jurisdiction in such a case, it may do so
after all avenues to a state jurisdiction are for ever closed. That
is alleged to be the fact in the present instance. There are, also,
other differences, such as regard the place of trial, the venue of
the jurors, and other circumstances omitted to be mentioned,
because this part of the case is too plain to require any formal
discussion. On this occasion, it may be material to consider
whether, on the facts now apparent to the Court, Maxfield has any
title, either in equity, or at law; because, if he has not, it is
evidence, the title to be contested must be Wallis's, and not his;
and, of course, the subject matter to be decided, is a title in
question between two citizens of the same state. 1st. As to equity.
He has none by his own acknoviedgment. He paid no consideration. He
is to perform no duty. He only permits his name
Page 4 U.S.
330, 335
to be used, for the support of a fraud on the jurisdiction of
the Court; a purpose which a Court of equity would reject with the
highest disdain.
2d. As little, in my opinion, can he support any title at
law.
1st. Consider this as a mere bargain and sale. A bargain and
sale is of no validity, where no money has been paid. Nothing gives
a legal title under the act of H. 8. (concerning uses) which was
not an equitable one before that statute. At that time no bargainee
could have compelled a bargainor to convey, who had received no
money. Therefore, since the statute, no use can arise on such a
deed, without some money to support it.
2d. Allowing the highest efficacy to this deed under the act of
assembly. This can only mean, that what a man can lawfully grant by
any form of conveyance, shall be sufficiently granted in this form.
Of course, if under any other form of conveyance, owing to
technical difficulties, such a purpose could succeed without
redress, a deed, professedly a bargain and sale, is not to have its
influence extended, merely that an illegal purpose should take
effect, under colour of form. The intent of the act certainly was,
that the want of form should not defeat the intention of an honest,
but unskilful conveyance; but surely not to smooth the path of
injustice, by converting a rightful estate into a wrongful one.
3d. But admitting it to be any form of conveyance you please,
then I say, that a Court of law will not, any more than a Court of
equity, support a deed formally good, but substantially fraudulent.
And whether the fraud be of a moral nature, for the purpose of
doing a wilful injustice, or the act be, as the lawyers term it, in
fraudem legis (that is, to evade some law) the law will equally
interpose, to prevent its own principles from being made mere
instruments, to defeat its own purposes. [335-Continued.]
There is no act in law, within my recollection, which fraud will
not vitiate.
It will vitiate a feoffment, which is a very strict conveyance,
requiring no consideration, and passes by an actual livery.
It will vitiate a fine, though a solemn transaction in a Court
of justice, and peculiarly favoured.
It will even deprive a party of the benefit of a judgment
deliberately given.
Conveyances to defeat creditors (however formally agreeable to
law) are held absolutely void, at least as against them.
So, also, in the common case of usury, for which so many
contrivances have been devised. No contrivance, no colour, no form
whatever, can protect any transaction, which really appears to have
been usurious, from being declared so.
The application of these principles is obvious.
If (as I observed before) the deed in question is to be
considered as a mere bargain and sale, it is absolutely void for
want of a legal consideration (which must be money alone) to
support
Page 4 U.S.
330, 336
it. If it is to be considered as any other kind of conveyance,
it having no consideration whatever but an illegal one (that of
defeating the constitution and laws of the United States in a most
essential point) it is at least void as to that purpose, and,
therefore, does not authorise Maxfield to come into this Court. I,
therefore, conclude without difficulty, that Maxfield has neither a
legal, nor an equitable, title to authorise him to come into this
Court. The only remaining consideration is, as to the remedy,
which, from the first, was the only difficulty I found. I will
venture to lay it down as an unquestionable principle, that no
grievance can arise in the law, but some remedy may be applied to
it. The present grievance, therefore (which, if unredressed, will,
in any case like the present, enable two persons, at their
pleasure, to do injustice to a third, and force this Court to
exercise a jurisdiction never delegated to it) must admit of some
remedy. Only three have been suggested, in the present stage of the
proceeding. 1st. The method now under consideration. 2d. A plea to
the jurisdiction. 3d. And injunction in equity. I will consider the
two last first; for, if they are removed out of the way (as I think
they must be) it will facilitate our consideration of the first. As
to a plea to the jurisdiction. This can be of no avail, unless not
only the fact, at the proper time of pleading, be known to the
defendant, but that he has disinterested proof of it. This, in a
thousand instances, would be impossible; and in no instance can be
expected. To insist on this, therefore, as the only method, would
leave the constitution, and the law, in almost every instance, open
to certain evasion. It consequently cannot be admitted, that this
is the only method of redress. With regard to a bill in equity. I
will not say, equity ought not to interpose a remedy in any case.
But it seems most proper, that a Court of law should support its
own jurisdiction, on its own principles, and, if proof can be
obtained, I conceive it is necessarily incident to every Court to
take care, that its jurisdiction be not encroached upon, or in
other words, that the Court be not made either voluntarily, or
involuntarily (if it can prevent it) an usurper of jurisdiction not
belonging to it. In this case, the aid of equity may be useful (as
it has been on the present occasion) in compelling a discovery; but
there, I think, its interference ought to stop, unless the power of
the Law Court over the action has entirely ceased; as for instance,
after a judgment, in which case (but in which, perhaps, alone)
equity might properly grant an injunction, to prevent a party
availing himself of his own fraud.
Page 4 U.S.
330, 337
The only remaining remedy suggested (or which occurs to me) in
the present stage of the proceeding, is that now under
consideration; and, of course, this must be adopted, if an
interference by the Court in the present stage of the cause is
proper. It is, however, objected, that the Court ought not to
interfere at present, but permit the case to go before the jury,
who may find for the defendants, if they believe the facts
suggested, and apply the law accordingly. If this case had, indeed,
gone before the jury, I should have had no difficulty in telling
them, that admitting the truth of the facts as stated, the lessor
of the plaintiff had, in my opinion, no title; and, if the jury had
found accordingly, redress (though late) could be obtained. But, at
present, I do not think myself at liberty to submit the case to the
jury, for the following reasons. 1st. The Court is the proper
guardian of its own jurisdiction. It is alone responsible for it,
and must, therefore, take care that in neither abandons a
jurisdiction rightfully belonging to it, nor usurps that which does
not. 2d. Admitting that a plea to the jurisdiction is not the only
remedy, for the reasons I have given, upon complaint made of any
fraud on the jurisdiction having been practised, if the complaint
is supported on good grounds, is it just that an immediate inquiry
should be made into it, in order that if any injury to a party has
been hitherto unavoidably sustained by any such fraud, it may be
put a stop to, as soon as possible. To compel a party, in such a
case, to stay in Court, until a jury shall be summoned and
convened, to try a general issue, would be a voluntary exercise of
jurisdiction, after the Court entertained reason to doubt, at
least, whether they had any. 3d. To swear a jury is an exercise of
jurisdiction. With what propriety can I order that, after being
fully convinced from evidence, admitted to be competent, that the
Court hath no jurisdiction at all? 4th. Suppose the jury in this
case should find for the plaintiff, when the Court was thoroughly
convinced it had no jurisdiction of the cause? Can the Court give
judgment for the plaintiff in such a case? Surely not. If,
therefore, a verdict to that effect, could produce no good, why
should a verdict be required of them? Because this would not be an
ordinary case concerning a new trial; in which case, after two or
three verdicts the same way, a Court might be compelled to stop,
and proceed no further. But if there were a hundred verdicts in a
case, in their opinion, not within their jurisdiction, they could
not give judgment without voluntarily usurping a power not
belonging to them. 5th. In this case there is no occasion for a
jury to try the facts, because the facts are not denied, and the
Court surely will
Page 4 U.S.
330, 338
not call a jury to decide a question of law, and a question
which, as I have just observed, they could not decide finally.
Maxfield's allegations in this case, are either a direct
confession, or as to some points (if the expression is proper) a
nil dicit. In neither case is a jury wanting. A complete denial can
alone entitle a party to have facts tried by a jury. There is no
denial in this case but of the merits, upon which a jury can be
sworn; which certainly would be premature when facts had already
been confessed sufficient to oust the jurisdiction. Had he
positively denied, indeed, the allegations of the bill in equity,
the jury must have been sworn; for, as a Judge, I certainly could
not, in any shape, determine on an issue of fact.
But as he has not though proper to deny them, but, in my
opinion, substantially confessed every thing, to show that the
Court had no jurisdiction of the cause; I consider myself bound to
order these ejectments to be dismissed, and do accordingly order
them to be dismissed with costs. [
Footnote 2]
Here one of the counsel interfered, and asked the Judge whether
he would order costs in a case where he declared the Court had no
jurisdiction.
The Judge answered, That that circumstance did not occur to him;
he acknowledged he had committed a mistake in that part of the
order. But, if it was in his power, he would order double costs.
[
Footnote 3]
[338-Continued.]
The defendant, upon these facts, and upon the authority of
Maxwell's Lessee v. Levy, and Hurst v. Hurst, moved to strike from
the record this ejectment, and others in the same predicament. But
the motion was over- ruled by the Court; and this distinction
taken:
WASHINGTON, Justice. In the cases cited, the deeds were
executed, with a collusive intention, to give a jurisdiction to the
Court, which the Court could not possess without them. The
objection proceeded on two grounds: 1st. On the equity of the
statute provision, which declares, that a suit shall not be
maintained in a federal Court, by the assignee of a promissory
note, or other chose in action (with the single exception of
foreign bills of exchange) unless it could have been brought there,
by the original party. And, 2d. On the manifest attempt, by a
fraud, to create jurisdiction. But in the case now under
consideration, the lessor of the plaintiff would have had a right,
as a citizen of New-York, to apply to the equity side of the Court,
to compel the trustees to convey his share of the trust estate to
him: and if the trustees have only voluntarily made a conveyance,
which the Court would have decreed, surely we cannot call it a
fraudulent deed, or refuse to take cognizance of a suit founded
upon it, between a citizen of New-York, and a citizen of
Pennsylvania.
Footnotes
Footnote 1 An outline of
this cause was given in 2 Dall. Rep. 381; but I comply with the
subsequent request of the presiding Judge, (whose death was greatly
lamented by the bench and the bar) in publishing the opinion of the
Court at large.
Footnote 2 Mr. William
Tilghman, one of the counsel for the defendants , quoted a case in
Saviry's Reports, p. 12. which Judge IREDELL thought much in point,
and meant to have declared so, in delivering his opinion, but
inadvertently omitted it.
See Worlay v. Harrison, Dyer, 249. 2 Inst. 215. 21 Viner, 535,
536. tit. Vacat.
Footnote 3 In the case of
Bowne's Lessee v. Aurbuckle, in the Circuit Court, at October term
1806, it appeared, upon bill and answer on the equity side of the
Court, that the lessor of the plaintiff was a citizen of the state
of New-York, and the defendant was a citizen of Pennsylvania; that
the former was a member of the population company, who had
purchased extensive tracts of land, on the north-western boundary
of Pennsylvania; that the land, so purchased, was held by trustees
(all citizens of Pennsylvania) for the use of the company; that the
trustees had conveyed to the lessor of the plaintiff his portion of
the land (including the premises mentioned in the declaration) in
severalty; and that the present ejectment was founded upon that
conveyance.