Ejectment to recover possession of a lot in the City of Mobile,
Alabama. The defendants, in the circuit court, claimed title to the
land under Lucy Landry, who was the devisee of one Geronio, who
having been in possession of the lot at the corner of St. Francis
and Royal Streets, occupied it until his death. On the arrival of
Lucy Landry at age, she occupied the lot as her own property, and
in 1818 she sold and conveyed it by deed to certain persons,
stating the eastern boundary in the deed to be the Mobile River.
These persons on the same day conveyed the premises to Oliver
Holman, who entered on it and improved it by erecting houses and a
wharf upon it, and continued to occupy it as a merchant in
co-partnership with one Charles Brown, who lived in Boston, until
December, 1822, when he died, leaving as his heirs the lessors of
the plaintiff. The possession of Lucy Landry of the lot commenced
in 1800 and extended on Royal Street, and on the east, followed the
high water mark on the river. The land was not subject to
inundation, though in many places the water ran across it. Until
the improvements made by Holman, the lot was not susceptible of
occupancy. There was a ridge of high land formed of shells and
artificial deposits, to the east of which, to the river, the lot
was situated, and the ridge was protected by the Spanish
authorities, no person being permitted by them to improve on the
ground or to remove the earth. It was called "The King's highway,"
or landing place. Questions as to the title of the proprietors of
the adjacent lots above Water Street to the lots extending to the
river prevailed until 1824, when on 26 May, 1824, a law was passed
which granted the lots known as water lots under the Spanish
government to the owners of the adjacent grounds. The improvements
were made by Holman in 1819 or 1820. The defendants below gave in
evidence, to maintain their title, the title to them from Lucy
Landry, through her grantees to Oliver Holman, a title bond from
Holman to Brown for half of the lot in controversy, by which a deed
was to be executed two years after the date of the bond, and an act
of the Legislature of Alabama, passed in December, 1823, after the
decease of Holman, authorizing the administratrix of Holman, then
residing in Boston, where administration of the estate of the
deceased had been granted to her, to sell the real estate of which
he died seized, in the City of Mobile, for the payment of his
debts, the estate being insolvent, a deed made in pursuance of a
sale of the premises under the act of assembly and in conformity to
the provisions thereof, and also the record of certain proceedings
in the Supreme Court of Massachusetts wherein a license was given
to the administratrix to make a deed in pursuance of the title bond
to Brown, and the deed made under this authority. The questions
which arose in the case and on which the court decided were first,
whether the act of the Legislature of Alabama authorizing the sale
of the estate of Holman was constitutional and valid; second,
whether the proceedings in the Supreme Court of Massachusetts were
operative and authorized the administratrix to convey the title;
third, whether a volume of state papers published under the
authority of Congress was evidence; fourth, whether the lessors of
the plaintiff below had established a legal title; fifth,
Page 41 U. S. 26
whether the defendants in the circuit court had not established
a title in themselves independent of and adverse to the title they
had derived under Oliver Holman.
The relation of landlord and tenant in nowise exists between the
vendor and vendee, and this is especially the case where a
conveyance has been executed.
A mere intruder on land is limited to his actual possession, and
the rights of a riparian proprietor do not attach to him. The case
of
Mayor of New Orleans v. United
States, 10 Pet. 662, cited.
The Act of Congress of 26 May, 1824, relinquished the rights of
the United States, whatever they were, in the lot in question, to
the proprietor of the front lot.
A volume of state papers published under the authority of an act
of Congress and containing the authentication required by the act
is legal evidence. In the United States, in all public matters, the
journals of Congress, and of the state legislatures are evidence,
and also the reports which have been sanctioned and published by
authority. This publication does not make that evidence which
intrinsically is not so, but it gives in a most authentic form
certain papers and documents. The very highest authority attaches
to state papers published under the sanction of Congress.
The deed executed by the administratrix of Holman, in pursuance
of the license given by the Supreme Court of Massachusetts, by
which nearly a moiety of the property of Holman, in Mobile,
described in the title bond to Brown, was conveyed to Brown, was
inoperative. The deed was executed under a decree or order of the
Supreme Court in Massachusetts and by virtue of a statute of that
state. It is not pretended that it was authorized by any law of
Alabama, and no principle is better settled that the disposition of
real estate, whether by deed, descent, or by any other mode, must
be governed by the laws of the state where the land is
situated.
A court of chancery, acting
in personam, may well
decree the conveyance of land in any other state, and may enforce
their decree by process against the defendant. But neither the
decree itself nor any conveyance under it except by the person in
whom the title is vested can operate beyond the jurisdiction of the
court.
It is not perceived why a court of law should regard a resulting
trust more than any other equitable rights, and any attempt to give
effect to these rights at law through the instrumentality of a jury
must lead to confusion and uncertainty. Equitable and legal
jurisdictions have been wisely separated, and the soundest maxims
of jurisprudence require each to be exercised in its appropriate
sphere.
The act of the Legislature of Alabama which authorized Sarah
Holman, resident in Boston, the administratrix of Oliver Holman, to
sell the estate of which Holman died seized in the City of Mobile
was a valid act, and the deed made under that statute, according to
its provisions, was legal and operative, and was authorized by the
Constitution of Alabama.
On the death of the ancestor, the land owned by him descends to
his heirs. They hold it subject to the payment of the debts of the
ancestor, in those states where it is liable to such debts. The
heirs cannot alien the land to the prejudice of creditors. In fact,
and in law, they have no right to the real estate of their
ancestors except that of possession until the creditors shall be
paid.
No objection is perceived to the power of the legislature to
subjecting the lands of a deceased person to the payment of his
debts, to the exclusion of the personal property. The legislature
regulates descents and the conveyance of real estate. To define the
rights of debtor and creditor is their common duty; the whole range
of remedies lies within their province.
Page 41 U. S. 27
This was an action of ejectment brought by the defendants, who
were plaintiffs in the courts below, to recover possession of
stores and a lot of ground in the City of Mobile. The declaration
was in the common form; the plea, the general issue. A verdict was
rendered in the circuit court for the plaintiffs, and the defendant
prosecuted this writ of error.
Upon trial, the plaintiffs below proved that one Geronio was in
possession of a lot in the City of Mobile at the corner of St.
Francis and Royal Streets; that he occupied the same till his
death, when he gave the same to one Lucy Landry; that about the
year 1788, Simon Landry took charge of the lot for his daughter
Lucy, and when she came to woman's estate, she used and occupied
the same as her property. The plaintiff further proved that in
1818, Lucy Landry conveyed the lot to McKinzie and Swett by a deed
in which the eastern boundary was laid down as the Mobile River,
and included the premises in question in this case. On the same
day, McKinzie and Swett conveyed the property to Oliver Holman, who
took possession in 1818 and erected houses and a wharf upon the lot
and occupied the same as a merchant in co-partnership with one
Charles Brown, Brown residing in Boston and Holman in Mobile.
Holman died in December 1822, leaving three children. Oliver, with
a grandchild of Holman, were the legal heirs of Oliver Holman,
deceased, and the lessors of the defendants in error.
The defendants in the circuit court, in order to show title in
them to one equal undivided moiety of the premises in question,
exhibited a bond, executed by Oliver Holman, the ancestor of the
plaintiffs in the ejectment, on 29 September 1821, to Charles
Brown, by which Oliver Holman bound himself to give to Charles
Brown a quitclaim deed of one-half of the land he had purchased
from McKinzie and Swett -- the ground in question, the deed to be
executed two years from date if Charles Brown requested. Oliver
Holman died soon afterwards, without executing the deed.
Sarah Holman, the widow of Oliver Holman, removed to Boston,
Page 41 U. S. 28
Massachusetts, and there took out letters of administration on
the estate of her deceased husband. Charles Brown presented a
petition to the Supreme Judicial Court of Massachusetts setting
forth, that Oliver Holman had executed to him the bond before
stated, by which he bound himself to convey certain property in
Mobile to him, being the part of the premises for which this suit
was instituted, and that he was prevented conveying the same by
death, and praying the court would grant license to and would
empower Sarah Holman, the widow and administratrix of Oliver
Holman, to execute to him such conveyance of the premises, as
Oliver Holman would have been obliged to make and execute if he
were then living. The widow and administratrix, Sarah Holman,
certified to the court that
"she had read and had notice of the petition, and had no
objections to offer why the prayer thereof should not be granted;
and signified her consent to the same."
Elisha Read, guardian of Sarah Holman and Oliver Holman, minors,
and Catharine Holman, daughter of Oliver Holman, certified that
they had read and had notice of the petition and believed the
statement therein to be correct, and had no cause to show why the
prayer of the petitioner should not be granted, and signified their
consent to the same. The court thereupon ordered that Sarah Holman
should be licensed to make and execute a deed to Charles Brown of
the premises, and accordingly, on 10 March 1824, a deed was
executed to the petitioner for the property described in the title
bond.
The defendants in the circuit court, also gave in evidence an
act of the Legislature of Alabama in the following terms:
"An act to authorize the administratrix of Oliver Holman,
deceased, late of the County of Mobile, to sell real estate."
"§ 1. Be it enacted . . . that the administratrix of the late
Oliver Holman, resident in the City of Boston, in the State of
Massachusetts, be and she is hereby authorized to sell, by
Nathaniel Littlefield and Gorham Davenport, her attorneys in fact,
the real estate of which the said Oliver Holman died seized in the
City of Mobile on such terms and in such manner as may be deemed
most advantageous to the estate of the deceased."
"§ 2. And be it further enacted that the said administratrix be
and she is hereby authorized by her attorneys aforesaid, on
Page 41 U. S. 29
the sale of the said estate, to make and deliver to the
purchaser or purchasers, as the case may be, a legal conveyance of
the same, which shall be as binding as if the same had been made by
the said Oliver Holman in his lifetime."
"§ 3. And be it further enacted that Nathaniel Littlefield and
Gorham Davenport, before the sale of the estate aforesaid, shall
enter into bond, with sufficient security, payable to the judge of
the County Court of Mobile County, for the true and faithful
payment of the money arising from the sale of the said estate into
the hands of the administratrix thereof, to be appropriated to the
payment of the debts due by the said decedent."
On 24 April 1824, by a deed executed in conformity with the law,
in consideration of the sum of $15,000 paid to the administratrix
of Oliver Holman, the other moiety of the property was conveyed to
Charles Brown. The defendants in the circuit court claimed to hold
all the premises in controversy by conveyances from the grantee of
Charles Brown, made under the license of the Supreme Court of
Massachusetts and the act of the assembly of Alabama. It was
further in evidence that Oliver Holman erected stores on the lot
and used them for four years, when he died.
The lot, which was proved to have been in the actual possession
of Geronio, was enclosed, there being a line of fence running from
the street on the north, to the southern boundary of the lot, and
followed by the meanders of high tidewater mark. There was no
person who ever enclosed to the east of this lot or who had ever
set up any claim upon it except so far as the facts disclosed the
claim of Lucy Landry, under Geronio. The ground in dispute was more
than one hundred feet distant from the enclosure of Lucy Landry,
and was at all times subject to the influx of the tide, prior to
the improvements of Holman. It was in evidence that all the land
east of Lucy Landry's enclosure, before the improvements of Holman,
had been used, as all the land on the same line from St. Francis
Street to Government Street, on the same line, had been used, as a
public landing place by the people under the Spanish government,
and that no improvements or obstructions had been erected upon that
tract of land.
The circuit court decided that the bond from Holman to
Page 41 U. S. 30
Brown, and the proceedings of the Supreme Court of
Massachusetts, and the deed under those proceedings were not
sufficient to confer any legal title upon the defendants; these
proceedings were without authority and of no effect, and they were
admissible as evidence only to show the nature of the defendants'
claim of possession. The court also charged the jury that the act
of the legislature and all proceedings under it were void and the
evidence was competent only to show the defendants' claim and
possession, to which decision, as well as to the charge the
defendants' counsel excepted
The defendants then offered in evidence a map obtained from the
General Land Office at Washington City, purporting to have been
made in 1761, and which was certified to have been on file there,
made by one _____ _____, surveyor. This map indicated that the city
was then laid off unto regular squares, and bounded by streets;
that there was a space between the front square and the margin of
the river, not divided, and that this space was marked in the two
halves, with the word "quai." The defendant gave evidence conducing
to prove that the lands sued for were embraced within that space
and that it continued to be public and open till Holman's
possession and improvements in 1818, and so contended before the
jury. The defendants further gave evidence that Holman & Brown
were merchants and that the carpenters who built the houses on the
lands in dispute were sent out by the said Brown; that Brown &
Holman were in partnership as merchants, and that in carrying on
their business, these buildings were used as storehouses, that
Brown resided in Boston, and had never been in Mobile, and that
Holman resided in Mobile; that the store-houses were reputed to be
Holman's, and not Holman & Brown's. After the death of Holman,
agents of Holman went into possession; whether instantly or after
the execution of the deeds aforesaid, his agents or vendees had
enjoyed entire and exclusive possession of the premises. It was
further in evidence, that the house in possession of defendants
fronted on Water Street, one of the streets of the city.
Whereupon the court charged the jury that if they believed from
the evidence that Geronio claimed title to the premises in
question, and was in actual possession of a part of the lot of land
to which they were then
Page 41 U. S. 31
attached and remained in possession, claiming title, from and
prior to the year 1785 till the time of his death, and that before
his death he gave the whole of said lot to Lucy Landry, and that
her father thereupon took and held possession of it for her until
she arrived at full age, when she took possession and claimed title
to the full extent of the boundaries in the deed from her to
McKinsie and Swett, and that since the possession of Mobile by the
United States, the streets and quai had been so altered by the
municipal authorities of said city that the said quai had been
discontinued or otherwise abolished, and the said Water Street
erected in lieu of it, and that the premises in question were
within the boundaries of the said lot conveyed, as aforesaid, by
Lucy Landry to McKinsie and Swett and by them to Oliver Holman, and
that said Holman entered upon and remained in possession of the
said premises from the date of his purchase until the time of his
death; the plaintiffs were entitled to a verdict unless the jury
believed from the evidence that actual possession was delivered by
said Holman to Brown under said bond for title, and that said Brown
had remained in possession, and that the possession had been
regularly transmitted through those claiming under him to the
defendant. The defendant contended that the premises in question
were not embraced within the claim of Lucy Landry, but formed a
portion of the public quai; that the entry of Holman under the
title derived from Lucy Landry, and the building of stores on the
lot, gave him no title, and that his heirs could not maintain an
ejectment for the lot against those claiming under his partner,
Brown. This the court overruled, and the counsel for the defendant
excepted.
The defendant's counsel contended that from the bond, the proof
in the cause, and the admission of Catharine Holman in the record
of the Supreme Judicial Court of Massachusetts thereto attached, it
appeared that Holman & Brown were jointly interested in the
premises at the period of his entry, that although Brown never was
upon the land, the same was held by Holman for their joint benefit,
and that though no actual possession was delivered under the bond
for title, if those facts were found, Brown or those claiming under
him could not be sued for the moiety in the bond without a demand
and notice to quit. This the court overruled.
Page 41 U. S. 51
McLEAN, JUSTICE, delivered the opinion of the Court.
The heirs of Holman commenced an action of ejectment against the
plaintiffs in error to recover possession of a certain lot in the
City of Mobile. On the trial, the lessors of the plaintiffs proved
that before the year 1785, one Geronio was in possession of a lot
in the City of Mobile at the corner of St. Francis and Royal
Streets, which he continued to occupy until his death. Previous to
his death, he devised the lot to Lucy Landry, whose father, Simon
Landry, took charge of it for his daughter until she became of age,
when she occupied it as her own property. In 1818, she conveyed the
lot to McKinsie and Swett by deed in which the eastern boundary was
stated to be the Mobile River, and it is admitted that the deed
embraced the lot in dispute. McKinsie and Swett conveyed the
premises on the same day to Oliver Holman, and in 1818 he took
possession of the lot in controversy, erected houses and a wharf on
it, and continued to occupy it as a merchant in co-partnership with
one Charles Brown, who lived in Boston, Massachusetts, until
December 1822, when Holman died. He left, as his heirs, the lessors
of the plaintiffs.
There was no proof of any paper title in Lucy Landry or her
father except the will above stated. Her possession commenced in
the year 1800, or prior to that time, and it was proved that her
enclosure extended on Royal Street, the whole distance claimed in
the declaration, and on the east it followed the high water mark of
the Mobile River. It was proved that Water Street, which runs
parallel with Royal Street and the Mobile River, was an irregular
bank, reaching from St. Francis Street southerly the length of the
city, formed by a deposit of shells and earth, and was higher than
any land east of it or any land to which the water extended. This
land was not subject to inundation, though in many places the water
ran across it.
Page 41 U. S. 52
Until the improvements by Holman, the lot in controversy was not
susceptible of occupancy. Water Street was laid out in 1817 or
1818, and the lot in dispute lies east of that Street and east of
the high land above described. The ridge or high land was protected
by the Spanish authorities; no person was permitted to remove the
earth or improve on the ground. It was called the King's highway
and landing place. And after the American authorities took
possession, the general impression seemed to be that the ground
east of Water Street did not belong to the proprietors of lots west
of it. But these proprietors in some instances made entries on this
ground, and in others entries were made by the corporate
authorities of the city. Under this state of doubt, the Act of
Congress of 26 May, 1824, was passed. Holman, it seems, built a
wharf and warehouse on the lot in 1819 or 1820, and these were
among the earliest improvements made east of Water Street.
The defendants proved that since the year 1823, they or those
under whom they claim have had the exclusive possession of the lot,
and that they made valuable improvements thereon. They gave in
evidence copies of deeds from Lucy Landry to McKinsie and Swett and
from them to Oliver Holman. They also exhibited in evidence a title
bond, dated 29 September 1821, from Holman to Brown, for half of
the land conveyed to him by McKinsie and Swett, excepting certain
parts described. The deed was to be executed in two years. A map
was also in evidence, purporting to have been made in 1760 by a
French surveyor. The map represented the land lying near the river
as divided into oblong squares bounded by streets, and that the
vacant space between the river and the front line of the square had
the word "quai" written upon it. But it is not shown by what
authority this map was made, or that it governed in the sale of
lots. Until the year 1817, the King's wharf was the only one in the
city.
To explain the nature and extent of Lucy Landry's claim and
possession, certain documents from the land office at St.
Stephen's, Alabama, were offered in evidence, and also an act of
the Legislature of Alabama, passed 21 December 1823, authorizing
the administratrix of Oliver Holman to sell the real estate of
which he died seized in the City of Mobile. It was proved
Page 41 U. S. 53
that Holman's estate was insolvent, and it was admitted that the
attorneys of the administratrix, named in the act, had given the
bond required before the premises in question were sold. The deed
made in pursuance of the sale under the act of the legislature was
read; also a record of certain proceedings in the Supreme Court of
Massachusetts, wherein a license to the administratrix was given to
make a deed in pursuance of the title bond to Brown and the deed
that was made under this authority.
The court instructed the jury that the act of Alabama was
unconstitutional and void, and that no title passed under it, and
that the proceedings in the Massachusetts court were inoperative,
and did not authorize the administratrix to convey the title. The
court also overruled as evidence the documents above offered,
contained in a volume of state papers published under the authority
of Congress. Exceptions were taken to the rulings of the court and
to their instructions to the jury, and on these the questions for
consideration arise. The plaintiff in error asks a reversal of
these judgments, on two grounds: 1. because the lessors of the
plaintiff showed no legal title; 2. because the defendant
established a title in himself.
On the part of the defendant's counsel it is contended that as
the plaintiff in error claims under Holman, he cannot question his
title, and in support of this position the cases of
Jackson v.
Bush, 10 Johns. 223, and
Jackson v. Hinman, 16 Johns.
292, 293, are relied on. But these are cases in which the lessors
of the plaintiff claimed under sheriffs' sales, and the defenses
set up were under the defendants in the judgments. The court
said
"The rule excluding a defendant against whom there has been a
judgment and execution from defeating the purchaser's recovery of
his possession by setting up a title in some third person is
founded on justice and policy, and the reason of the rule equally
applies where such defendant has in the meantime delivered up his
possession to another."
The case of
Brant v. Livermore, cited from the same
volume, arose between landlord and tenant. And the decision relied
on in
Schauber v. Jackson, 2 Wend. 14, does not sustain
the ground assumed.
Page 41 U. S. 54
The relation of landlord and tenant in no sense exists between
the vendor and vendee, and this is especially the case where a
conveyance has been executed. In the language of this Court in the
case of
Blight's Lessee v.
Rochester, 7 Wheat. 548,
"The vendee acquires the property for himself, and his faith is
not pledged to maintain the title of the vendor. If the vendor has
actually made a conveyance, his title is extinguished."
And the Court said,
"The property having become, by the sale, the property of the
vendee, he has a right to fortify that title by the purchase of any
other which may protect him in the quiet enjoyment of the
premises."
To the same effect are the cases of
Society for the
Propagation &c. v. Town of Pawlet, 4 Pet. 506;
Jackson v.
Huntington, 5 Pet. 402;
Willison v.
Watkins, 3 Pet. 43. In Kentucky it is well
established that a purchaser who has obtained a conveyance holds
adversely to the vendor, and may controvert his title.
Voorhies
v. White's Heirs, 2 A.K.Marsh. 27;
Winlock v. Hardy,
4 Litt. 274. And this is the settled doctrine on the subject.
The plaintiff in error contends, as the lessors of the plaintiff
have shown no paper title emanating from the government, they must
be considered as trespassers, and that their right is strictly
limited to the
pedis possessio of the occupants under whom
they claim. That a mere trespasser cannot set up the right of a
riparian proprietor unless his enclosures are extended so as to
include the alluvial formations.
In the case of
Ewing's Lessee v.
Burnet, 11 Pet. 41, this Court held that an
enclosure was not necessary to show possession under the statute of
limitations. That for this purpose it is sufficient to show visible
and notorious acts of ownership exercised over the premises. In
this case, it appears that the proprietors of the contiguous lots,
by a deposit of earth and other means, contributed to the new
formation on the shore of the river, so that this formation was not
wholly attributable to the action of the tides. And it may well be
contended that this labor of the proprietors made their claim and
possession of the water lot as notorious as if it had been
surrounded by an enclosure. It appears too that the
Page 41 U. S. 55
wharf and warehouse were erected by Holman on the lot in
dispute, as soon as it was susceptible of occupation. These facts,
connected with the possession of the adjacent lot since 1785,
present a strong ground to presume a title. And so far as regards
the controversy between the parties to this record, and looking
only at the facts and circumstances before us, we think that the
lot in dispute may be considered as included in the title of
Holman. The position assumed by the plaintiff's counsel that a mere
intruder is limited to his actual possession, and that the rights
of a riparian proprietor do not attach to him, is correct. He can
have no rights beyond his possession. The doctrines of the common
law on this subject have been taken substantially from the civil
law. In the case of
Mayor of New Orleans v. United
States, 10 Pet. 662, we had occasion to examine
this doctrine especially in reference to the laws of Spain.
The Act of Congress of 26 May 1824, entitled "an act granting
certain lots of ground to the corporation of the City of Mobile and
to certain individuals of said city," embraces the lot in
controversy, whether the title be vested in the lessors of the
plaintiff, the defendants in the ejectment, or in the City of
Mobile. As no right to this lot is asserted on the part of the
city, we can now only consider the law as affecting the title
before us. At the time the law was passed, either the plaintiffs or
defendant were the proprietors of the front lot, and claimed the
water lot with its improvements, and this brings them within any
known construction of the act of 1824. It relinquished to the
proprietor or proprietors of the front lot, under the circumstances
of this case, whatever right, if any, the United States had to the
water lot.
The volume of state papers offered in evidence by the defendants
we think should have been admitted. This volume was published under
an act of Congress, and contains the authentication required by the
act. Its contents are therefore evidence. The recital in the
preamble of a public act of Parliament of a public fact is evidence
to prove the existence of that fact.
Rex v. Sutton, 4
Maule & Selw. 532; Stark.Evid. 197. The journals of the House
of Lords have always been admitted as evidence of their
proceedings, even in criminal cases, and the
Page 41 U. S. 56
journals of the House of Commons are also admissible. It is said
that the journals are not evidence of particular facts stated in
the resolutions, which are not a part of the proceedings of the
House -- as for instance a resolution stating the existence of a
popish plot would not be evidence of the fact in a criminal case.
Jones v. Randall, Cowp. 17; 5 T.R. 465; Doug. 572;
Stark.Evid. 199. In this country, in all public matters, the
journals of Congress and of the state legislatures are evidence,
and also the reports which have been sanctioned and published by
authority. This publication does not make that evidence which
intrinsically is not so, but it gives in a most authentic form
certain papers and documents. In the case under consideration, the
volume of documents was offered to show the report of certain
commissioners under an act of Congress confirming the title in
question. Now this original report, duly authenticated by the
Treasury Department, to which it was made, would be evidence, and
it is evidence in the published volume. The very highest
authenticity attaches to these state papers published under the
sanction of Congress.
We come now to consider the proceedings in the Supreme Court of
Massachusetts. These proceedings took place under a statute of that
state, and were founded upon the title bond given to Brown by
Holman for nearly a moiety of the lot purchased by him from
McKinsie and Swett. Brown applied to the court by petition, setting
out the title bond and representing that Holman had died without
making a deed, and he prayed that Sarah Holman, his administratrix,
might be licensed and empowered to execute to him such a conveyance
of the premises as Holman would have been obliged to make if he
were living. Sarah Holman, as widow and administratrix, certified
to the court that she had read, and had due notice of the petition
of Brown, and that she had no objection to the prayer of it. And
the guardian of Sarah Holmand and Oliver Holman, minors and
children of Oliver Holman, deceased, certified that they also had
notice, and that they had nothing to allege against the prayer of
the petition. The court, on hearing the petition, licensed and
empowered the administratrix to make the deed. And in pursuance of
this
Page 41 U. S. 57
order she executed a deed in conformity with the bond to Brown,
10 March, 1824.
That this deed is inoperative is clear. It was executed by the
administratrix under a decree or order of the Supreme Court in
Massachusetts and by virtue of a statute of that state. The
proceeding, it is not pretended, was authorized by any law of
Alabama. And no principle is better established than that the
disposition of real estate, whether by deed, descent or by any
other mode, must be governed by the law of the state where the land
is situated. A court of chancery, acting
in personam, may
well decree the conveyance of land in any other state, and may
enforce their decree by process against the defendant. But neither
the decree itself nor any conveyance under it, except by the person
in whom the title is vested, can operate beyond the jurisdiction of
the court. The Massachusetts court, in granting this license to the
administratrix, did not exercise chancery powers. Neither the
administratrix nor the minor heirs were made parties and required
to answer as a procedure in chancery. It was a proceeding at law,
informal and summary in its character. The administratrix only was
required to execute the conveyance. By the laws of Alabama, she had
no power to dispose of the real estate of her husband as
administratrix except for the payment of the debts of the estate
under the sanction of law.
But the defendants insist that the title bond given to Brown by
Holman for a part of the premises constituted a good defense in the
action; that, the consideration having been paid, Holman and his
heirs held the property in trust for Brown and his assignees; and
that a court of law will give effect to the trust, at least so far
as to prevent the trustees from recovering the possession against
the
cestui que trust. This doctrine seems to have been
sanctioned to some extent in New York in the cases of
Foote v.
Colvin, 3 Johns. 216;
Jackson v. Matsdorf, 11 Johns.
91;
Seelye v. Morse, 16 Johns. 197. These decisions may
have been influenced somewhat by the statute concerning uses in
that state, which subjects the estate of the
cestui que
trust to execution. In one of the cases,
Page 41 U. S. 58
Spencer, Justice, giving the opinion of the court, says "without
the aid of the statute, I consider James Litchfield, if he advanced
the purchase money, as having an interest liable to be sold on
execution." In the case of
Jackson v. Leggett, 7 Wend.
377, the court remarks
"The legal estate must prevail. . . . The only exception to the
rule is in the case of a resulting trust; in such case the trust
may be proved by parol, and the estate of the
cestui que
trust may be sold on execution, and has been so far considered
the property of the
cestui que trust as to be a defense in
an action of ejectment."
This was the doctrine of Lord Mansfield in the case of
Armstrong v. Peirse, 3 Burr. 1899. In
Bristow v.
Pegge, 1 T.R. 758, note a, he lays down the broad doctrine
"that a trust shall never be set up against him for whom the trust
was intended," and the other judges concurred. It is known that
that great judge had a strong leaning to the principles of equity
in trials at common law. His successor seemed to be under a
different influence, although he had been Master of the Rolls for
some years. This equitable doctrine in a court of law was overruled
in the case of
Hodsden v. Staple, 2 T.R. 684. Lord Kenyon
says
"Is it possible for a court of law to enter into the discussion
of such nice points of equity? We have no such authority. Sitting
in this court, we must look at the record and see whether a legal
title is conveyed to the party claiming under these instruments;
now there is no color for saying that these give any legal title.
Without deciding or presuming to think what a court of equity would
do in this case, it is enough for me to say that we are to decide a
legal question, and cannot enter into such an entangled
equity."
The other judges, except Buller, concurred with the Chief
Justice. In
Shewen v. Wroot, 5 East 132, Lord Ellenborough
said
"We can only look to the legal estate, and that is clearly not
in the devisees, but in the heir-at-law of the surrenderer, and if
the devisees have an equitable interest, they must claim it
elsewhere, and not in a court of law. For as to the doctrine that
the legal estate cannot be set up at
Page 41 U. S. 59
law by a trustee against his
cestui que trust, that has
been long repudiated."
And this is the settled doctrine in England on this subject,
and, with few exceptions, in this country. In the states where no
courts of chancery are established, courts of law, in giving
relief, of necessity trench upon an equitable jurisdiction. It is
not perceived why a court of law should regard a resulting trust
more than other equitable rights, and any attempt to give effect to
these rights at law through the instrumentality of a jury must lead
to confusion and uncertainty. Equitable and legal jurisdictions
have been wisely separated, and the soundest maxims of
jurisprudence require each to be exercised in its appropriate
sphere. We are clearly of the opinion that the title bond in
question constituted no defense in the above action.
Whether any title passed under the Alabama statute is the last
point to be considered.
The act authorized the administratrix of the late Oliver Holman,
resident in the City of Boston, Massachusetts, to sell, by
Nathaniel Littlefield and Gorham Davenport, her attorneys in fact,
the real estate of which the said Holman died seized in the City of
Mobile "on such terms and in such manner, as may be deemed most
advantageous to his estate. . . . The second section authorized the
administratrix, by her attorneys, to convey the premises to the
purchaser." And the third section provided that before the sale,
the attorneys should give bond, with sufficient security, for the
faithful payment of the money received by them to the
administratrix, "to be appropriated to the payment of the debts of
the deceased." Under this law a sale was made and a conveyance
executed to Brown by Sarah Holman and her attorneys in fact, 24
April 1824. This act of the legislature, it is contended, is in
violation of the Constitution of Alabama, and, with the proceeding
under it, is consequently void.
The first section of the second article of the Constitution
declares that
"The powers of the government of the State of Alabama shall be
divided into three distinct departments, and each of them confided
to a separate body of magistracy, to-wit, those which are
legislative to one; those which are executive to another; and those
which are judicial to another."
And the second
Page 41 U. S. 60
section declares that
"No person or collection of persons, being of one of those
departments, shall exercise any power properly belonging to either
of the others except in the instances hereinafter expressly
directed or permitted."
The passage of the statute, it is insisted, was a judicial act
by the legislature, which the Constitution inhibits.
On the part of the plaintiffs in error, a great number of acts
of this character by the Alabama Legislature, shortly after the
adoption of the constitution, are cited to show a settled
construction of that instrument. The defendants in error referred
to reports by committees of the legislature which maintained the
unconstitutionality of these acts. And it is asserted, and not
contradicted, that since that report, under a conviction of its
soundness, the legislature has passed no laws on the subject. A
manuscript decision of a circuit court in Alabama, in the case of
Campbell and Havre v. Scales, was read, but the question
now under consideration seems not to have been raised. In almost
all the states, laws of this description are common, and the titles
to an immense amount of property depend upon their validity.
The phraseology of the Constitution of Alabama in regard to the
distribution of its powers is somewhat peculiar, but it is not
substantially different from the constitutional provisions of some
of the other states. The third section of the Virginia Constitution
declares that
"The legislative, executive and judiciary departments shall be
separated and distinct, so that neither exercise the powers
properly belonging to the other."
Indeed, in all the state constitutions, the legislative,
judicial and executive functions are vested in different
functionaries, and it would seem to follow that the powers thus
specially given should be exercised under their appropriate
limitations. The inhibition of the Alabama Constitution contains in
terms that which necessarily arises from the construction of the
constitutions of other states. In some cases it is difficult to
draw a line that shall show with precision the limitation of powers
under our form of government. The executive, in acting upon claims
for services rendered, may be said to exercise, if not in form, in
substance, a judicial power. And so, a court, in the use of a
discretion essential to its existence, by the adoption of rules or
otherwise, may be said to
Page 41 U. S. 61
legislate. A legislature, too, in providing for the payment of a
claim, exercises a power in its nature judicial; but this is
coupled with the paramount and remedial power.
But whatever difficulty may arise in certain cases in regard to
the exercise of these powers, there would seem to be little or none
in the case under consideration. The character of the act in
question is essentially remedial. It contains no other feature. An
authority is given to the administratrix to sell in a particular
manner the property in dispute for the payment of the debts of the
intestate. The act does not determine the amount of the debts nor
to whom they are payable. It is proved, however that the estate was
insolvent. And it is conformable to the settled policy of Alabama
to apply the real estate of a deceased person in payment of his
debts. The case under consideration, the administratrix residing in
Massachusetts and being desirous of selling the property through
her attorneys in fact, was not embraced by the general statute on
the subject, and hence the necessity of the special authority.
Now how does this act differ in principle from the general law
on the same subject? The general law was passed from a knowledge
which the legislature had of its expediency and necessity. The
special law was passed from a knowledge of its propriety in the
particular case. The power exercised in passing the special as well
as the general law was remedial. Under the general law, application
is required to be made by the executor or administrator to the
county court, representing that the personal estate is not
sufficient to pay the debts of the deceased; that he left real
estate, particularly describing it and praying that it may be sold
&c. A notice is required to be given to the heirs and devisees,
&c., who are to answer, &c., and the court, on the hearing,
is authorized to decree a sale of the estate on the petitioner's
giving bond, &c. The mode of procedure under the general law
was required by the legislature from motives of expediency, but it
by no means follows that it was the only mode they could adopt. In
some of the states the heirs or devisees are not required to be
made parties by the administrator. His application is
ex
parte to the court, which orders a sale of the real estate to
pay the debts of the deceased where the personal estate is
insufficient. And
Page 41 U. S. 62
no doubt can be entertained that the legislature may authorize
the administrator, by a general or a special act, to sell lands to
pay debts, where the personal assets are exhausted, without any
application to the court. And in such case the administrator would
act on his own responsibility and be accountable to the creditors
and heirs for the correct performance of this trust in this as in
other parts of his duty. This is a question of power, and not of
policy, and on such a question we cannot test the act by any
considerations of expediency. Whether the act may be open to abuse,
whether it be politic or impolitic, is not a matter now before us,
but whether the legislature had power to pass it.
A report in the Senate of Alabama on this subject says
"Upon the death of the ancestor, the real estate owned by him
descends to and vests in his heirs, and the title thus vested
cannot be divested without some proceeding to which the heir is a
party. A minor could not legally assent to the passage of a law
authorizing the sale of his real estate, but would have the right
to affirm or disaffirm the sale when he arrived at lawful age."
This is laid down on general principles, and without reference
to the Constitution of Alabama. As a legal proposition, it is
wholly unsustainable. In the first place, it is contrary to the
general practice of many of the states and to the received notions
of the profession on the subject. Titles in Ohio and in many other
states to a vast amount of real property rest upon sales of
executors and administrators under the order of a court without
making the heirs parties, and it is believed that a doubt of the
validity of such titles, where the proceedings have been regular,
has never been entertained or expressed. These titles have been
contested in state courts and in this Court, and a defect of power
to convey a good title in the mode authorized, it is believed, has
never been objected. A course of proceeding so extensive, involving
interests so great and which has been subjected to the severest
legal scrutiny, is no unsatisfactory evidence of what the law
is.
But on principle, this proceeding is sustainable. On the death
of the ancestor, the land owned by him descends to his heirs. But
how do they hold it? They hold it subject to the payment
Page 41 U. S. 63
of the debts of the ancestor, in those states where it is liable
to such debts. The heirs cannot alien the land to the prejudice of
creditors. In fact and in law, they have no right to the real
estate of their ancestor, except that of possession, until the
creditors shall be paid.
As it regards the question of power in the legislature, no
objection is perceived to their subjecting the lands of the
deceased to the payment of his debts, to the exclusion of his
personal property. The legislature regulates descents, and the
conveyance of real estate; to define the rights of debtor and
creditor is their common duty; the whole range of remedies lies
within their province. They may authorize a guardian to convey the
lands of an infant, and indeed they may give the capacity to the
infant himself to convey them. The idea that the lands of an infant
which descend to him cannot be made responsible for the payment of
the debts of the ancestor except through the decree of a court of
chancery is novel and unfounded. So far from this being the case,
no doubt is entertained that the legislature of a state has power
to subject the lands of a deceased person to execution in the same
manner as if he were living. The mode in which this shall be done
is a question of policy, and rests in the discretion of the
legislature.
The law under which the lot in dispute was sold decides no fact
binding on creditors or heirs. If the administratrix and Brown have
acted fraudulently in procuring the passage of this act or in the
sale under it, relief may be given on that ground. But the act does
nothing more than provide a remedy, which is strictly within the
power of the legislature.
The judgment of the circuit court is reversed, and the cause
remanded for further proceedings, in accordance with this
opinion.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Alabama, and was argued by counsel. On consideration
whereof, it is now here considered, ordered and adjudged by this
Court that the judgment of the said circuit court in this cause be
and the same is hereby reversed with costs, and that this cause be
and the same is hereby remanded to the said circuit
Page 41 U. S. 64
court with directions for further proceedings to be had therein
according to law and justice and in conformity to the opinion of
this Court.
