Mary Clarke devised to Benjamin Moore and Charity, his wife, and
Elizabeth Maunsell, and their heirs forever, as joint tenants, and
not as tenants in common,
"all that part of my said farm at Greenwich aforesaid, called
Chelsea &c., to have and to hold the said hereby devised
premises to the said Benjamin Moore and Charity, his wife, and
Elizabeth Maunseli, and to the survivor or survivors of them, and
to the heirs of such survivor, as joint tenants, and not as tenants
in common, in trust, to receive the rents, issues, and profits
thereof, and to pay the same to Thomas B. Clarke &c., during
his natural life, and from and after the death of Thomas B. Clarke,
in further trust, to convey the same in fee to the lawful issue of
the said Thomas B. Clarke, living at his death."
Under this devise, the first-born child of Thomas B. Clarke, at
its birth, took a vested estate in remainder, which opened to let
in his other children to the like estate, as they were successively
born, and such vested remainder became a fee simple absolute in the
children living, on the death of their father.
The acts of the Legislature of New York passed for the relief of
Thomas B. Clarke show that he was made the trustee of the property
devised; to sell or mortgage a part of it, with the assent or
appointment of the chancellor.
His obligation was to account annually for the proceeds of every
sale or mortgage which might be made, and it was his right to use
the interest of the principal for himself and for the education and
maintenance of his children.
The acts of the legislature discharged the trustees named in the
devise, whatever may have been their estate in the land under it,
but did not vest an estate in fee in Thomas B. Clarke.
The acts of the legislature for the relief of Clarke are private
acts. They provide that the chancellor may act upon them summarily,
upon the petition of Clarke, upon which orders are given, as
contradistinguished from decrees in suits by bill filed. The last
are judgments upon the matters in controversy between the parties
before the court. The other are orders in conformity with a
legislative act in a particular case. Whatever the chancellor does
in either case, he does as a court of chancery. It will stand when
it has been done within the jurisdiction conferred by the private
act, until it has been set aside upon motion, as his decrees in
suits upon bill filed do, until they have been set aside by a bill
of review.
In such a case, the court will not deviate from the letter of
the act, nor make an order partly founded upon its original
jurisdiction, and partly upon the statute. It cannot confound its
original jurisdiction in a suit with the powers it may be
authorized to execute by petition, either in a public act giving
statutory jurisdiction to the court, to be exercised summarily upon
petition, or in a private act providing for relief in a particular
case, which is to be carried out by the same mode of procedure.
In these acts for the relief of Clarke, what the chancellor can
do is precisely stated. No authority was given to him, in giving
his assent to Clarke's making sales of any part of the devised
premises, to order that Clarke might make sales of any portion of
it, in payment and satisfaction of any debt or debts due and owing
by Clarke, upon a valuation to be agreed upon, between him and his
respective creditors. Or that Clarke might take the money arising
from the sales of the premises, and apply the same to the payment
of his debts, investing the surplus only in such manner as he may
deem proper to yield an income for the maintenance and support of
his family. This was not an exercise of jurisdiction, but an order
out of and beyond it.
These were private acts for the alienation of land, to be made
with the assent of the chancellor that there might be an assurance
by matter of record, under his sanction, of a transfer of the
property to such as might become purchasers from Clarke.
Neither orders summarily given upon petition in chancery, nor
decrees in suits upon bill filed, can be summarily reviewed as a
whole in a collateral way.
But it is a well settled rule in jurisprudence that the
jurisdiction of any court exercising authority over a subject maybe
inquired into in every other court, when
Page 49 U. S. 496
the proceedings in the former are relied upon, and brought
before the latter, by a party claiming the benefit of such
proceedings.
The rule applies to the case in hand, though it may have been
decided by the highest tribunal in New York, that the chancellor
had jurisdiction, under the acts for the relief of Clarke, to give
the order permitting him to sell the property to his creditors, in
payment of his debts, for though this Court will recognize as a
rule for its judgments the decisions of the highest courts of the
states relative to real property as a part of the local law, it
does not recognize as in any way binding upon them, as a part of
the local law, the decisions of the state courts upon private acts
of any kind, or such of them as provide for the alienation of
private estates, by particular persons, with the sanction of a
court or of the chancellor. Decisions upon private
acts form no part of the local law of real property. They
concern only those for whose benefit they are made, and can be no
rule for any other case.
This Court decides that, under the acts of New York, the
chancellor had not the jurisdiction to give an order, permitting
Clarke to convey any part of the devised premises in satisfaction
of his debts, and that neither De Grasse, nor his alienee Berry,
can derive from the order of the chancellor, or from the conveyance
by Clarke to De Grasse, any title to the premises in dispute.
A sale is a word of precise legal import, both at law and in
equity. It means a contract between parties to take and to pass
rights of property for money, which the buyer pays or promises to
pay to the seller for the thing bought and sold.
A sale ordered, decreed, or permitted by a chancellor, subject
to the approval of a master, requires the master's approval, and
confirmation by the court, before a purchaser can have a legal
title to the estate that he means to buy or has bid for under the
decree of the court.
In any sale under a decree or order in chancery, the purchaser,
before he pays his money, must not only satisfy himself that the
title to the property to be sold is good, but he must take care
that the sale has been made according to the decree or order.
If he takes under an imperfect sale, he must abide the
consequence.
The sale in this instance by Clarke to De Grasse, if it were
otherwise good, which it is not, would be a nullity, for it wants
the approval by the master to whom the execution of the order was
confided by the chancellor.
Nor was Clarke's sale to De Grasse a judicial sale. By judicial
sale is meant one made under the process of a court, having
competent authority to order it, by an officer legally appointed
and commissioned to sell.
In order that the sale by Clarke to De Grasse should be a
judicial sale, it was requisite that the chancellor should have had
the authority to direct a sale of the premises to his creditors for
their demands, and that it should have been approved by the master
in the way the order directed it to be done.
It was an action of ejectment for one-third of eight lots of
land in the City of New York. Mrs. Williamson was the daughter of
Thomas B. Clarke, being one of three children who survived him, the
other two being Mrs. Isabella M. Cochran and Bayard Clarke.
In the year 1802, Mary Clarke died, leaving a will, from which
the following is an extract:
"Item, I give and devise unto the said Benjamin Moore and
Charity, his wife, and to Elizabeth Maunsell, and their heirs
forever, as joint tenants, and not as tenants in common, all that
certain lot of land number eight, in the said thirteenth allotment
of the said patent, containing one hundred acres; also that part
of
Page 49 U. S. 497
my said farm at Greenwich aforesaid, called Chelsea, lying to
the northward of the line herein before directed to be drawn from
the Greenwich Road to the Hudson River, twelve feet to the
northward of the fence standing behind the house now occupied by
John Hall, bounded southerly by the said line, northerly by the
land of Cornelius Ray, easterly by the Greenwich Road, and westerly
by the Hudson, including that part of my said farm now under lease
to Robert Lenox; also all my house and lot, with the appurtenances,
known by number seven, within the limits of the prison, and now
occupied by Thomas Byron; to have and to hold the said hereby
devised premises to the said Benjamin Moore and Charity, his wife,
and Elizabeth Maunsell, and to the survivor or survivors of them,
and the heirs of such survivor, as joint tenants, and not as
tenants in common, in trust to receive the rents, issues, and
profits thereof, and to pay the same to the said Thomas B. Clarke,
natural son of my late son Clement, during his natural life, and
from and after the death of the said Thomas B. Clarke, in further
trust to convey the same to the lawful issue of the said Thomas B.
Clarke living at his death in fee, and if the said Thomas B. Clarke
shall not leave any lawful issue at the time of his death, then in
the further trust and confidence to convey the said hereby devised
premises to my said grandson Clement C. Moore and to his heirs, or
to such person in fee as he may be will appoint, in case of his
death prior to the death of the said Thomas B. Clarke."
On 2 March, 1814, Thomas B. Clarke presented a petition to the
Legislature of New York, stating the will; that the trustees had
signed a paper agreeing to all such acts as the legislature might
pass, and requesting to be discharged from the trust; that Clement
C. Moore, the devisee in remainder, had also consented to such
acts, and that the estate could not be so improved and made
productive as to answer the benevolent purposes of the testatrix.
The prayer was for general relief.
On 1 April, 1814, the legislature passed an act entitled, "An
act for the relief of Thomas B. Clarke." It recited the facts above
mentioned, and then provided in the first section
"That it shall and may be lawful for the court of chancery on
the application of the said Thomas B. Clarke, to constitute and
appoint one or more trustees to execute and perform the several
trusts and duties specified and set forth in the said in part
recited will and testament, and in this act, in the place and stead
of the said Benjamin Moore and Charity, his wife, and the said
Elizabeth Maunsell, who are hereby discharged from the trusts in
the said will mentioned. Provided, that it
Page 49 U. S. 498
shall be lawful for the said court at any time thereafter, as
occasion may require, to substitute and appoint other trustee or
trustees in the room of any of those appointed in this act, in like
manner as is practiced in the said court in cases of trustees
appointed therein, and such trustee or trustees so appointed, are
hereby vested with the like powers as if he or they had been named
and appointed in and by this act."
The second, third, fourth, and fifth sections prescribed
minutely what should be done by the trustees, and authorized them
to sell and dispose of a moiety of the estate, and invest the
proceeds in some productive stock, the interest, excepting a
certain portion, to be paid to Mr. Clarke, and the principal to be
reserved for the trusts of the will.
The sixth section was as follows:
"VI. And be it further enacted that in every case, not otherwise
provided for by this act, the trustees appointed, or to be
appointed, in virtue thereof, shall be deemed and adjudged trustees
under the said will, so far as relates to the premises mentioned
and described in the recital to this act, in like manner as if such
trustees had been originally named and appointed in the said will;
and they shall, in all respects, be liable to the power and
authority of the court of chancery for or concerning the trusts
created by this act."
It did not appear that any proceedings took place under this
act.
On 1 March, 1815, Clarke presented another petition to the
legislature, stating that Clement C. Moore the contingent devisee,
had released all his interest in the property to Clarke and his
family, whereby the petitioner and his infant children had become
the only persons interested in the estate. He stated also that he
had been unable to prevail upon any suitable person to undertake
the performance of the trust.
On 24 March, 1815, the legislature passed an act supplemental to
the "act for the relief of Thomas B. Clarke." This act being a very
important part of the case, it is proper to recite it.
"
An act supplemental to the "act for the Relief of Thomas B.
Clarke,""
"
passed April 1, 1814"
"Whereas, since the passing of the act entitled 'An act for the
relief of Thomas B. Clarke,' Clement C. Moore in the said act
named, by an indenture duly executed by him, and recorded in the
office of the secretary of this state, and bearing date 21
February, in the year 1815, hath, for the consideration therein
expressed, and in due form of law, released and
Page 49 U. S. 499
conveyed unto the said Thomas B. Clarke, his heirs and assigns,
forever, all the estate, right, title, interest, property, claim,
and demand whatsoever of the said Clement C. Moore of, in, and to
the real estate mentioned in the said act, whereby the said real
estate became exclusively vested in the said Thomas B. Clarke and
his children. And whereas the said Thomas B. Clarke hath prayed the
legislature to alter and amend the said act, particularly in
relation to the interest of the said Clement C. Moore and the
execution of certain trusts in the said act mentioned,
therefore"
"I. Be it enacted by the people of the State of New York,
represented in Senate and assembly, that all the beneficial
interests and estate of the said Clement C. Moore or those under
him, arising or to arise by virtue of the act to which this is a
supplement, or by the will mentioned in the said act, shall be, and
the same is hereby, vested in the said Thomas B. Clarke, his heirs
and assigns, and so much of the act to which this is a supplement
as is repugnant hereto, and so much thereof as requires the
trustees to set apart and reserve a certain annual stipend out of
the interest or income of the property thereby directed to be sold
for the purpose of creating and accumulating a fund at compound
interest during the life of the said Thomas B. Clarke, and so much
of the said act as requires the several duties therein enumerated
to be performed by trustees, to be appointed by the court of
chancery as therein mentioned, be, and the same is hereby,
repealed."
"II. And be it further enacted that the said Thomas B. Clarke
be, and is hereby, authorized and empowered to execute and perform
every act, matter, and thing, in relation to the real estate
mentioned in the act to which this is a supplement in like manner
and with like effect that trustees duly appointed under the said
act might have done, and that the said Thomas B. Clarke apply the
whole of the interest and income of the said property to the
maintenance and support of his family and the education of his
children."
"III. And be it further enacted that no sale of any part of the
said estate shall be made by the said Thomas B. Clarke until he
shall have procured the assent of the chancellor of this state to
such sale, who shall, at the time of giving such assent, also
direct the mode in which the proceeds of such sale, or so much
thereof as he shall think proper, shall be vested in the said
Thomas B. Clarke as trustee, and further that it shall be the duty
of the said Thomas B. Clarke annually to render an account to the
chancellor or to such person as he may appoint of the principal of
the proceeds of such sale only, the interest
Page 49 U. S. 500
being to be applied by the said Thomas B. Clarke, in such manner
as he may think proper, for his use and benefit, and for the
maintenance and education of his children, and if, on such return,
or at any other time, and in any other manner, the chancellor shall
be of opinion that the said Thomas B. Clarke hath not duly
performed the trust by this act reposed in him, he may remove the
said Thomas B. Clarke from his said trust, and appoint another in
his stead, subject to such rules as he may prescribe in the
management of the estate hereby vested in the said Thomas B. Clarke
as trustee."
On 28 June, 1815, Clarke presented a petition to the chancellor.
It recited the will and the two acts of the legislature; stated
that he had a large and expensive family and no means of
maintaining them except from the rents and income of the devised
property, which were then and always had been insufficient for the
purpose; that he had been compelled to resort to loans and incur
debts; that he had borrowed, in order to meet the exigencies of his
family, the sum of $4,400 in the year 1805, and $4,500 since; that
a sale of a moiety of the devised property had become necessary, so
much of the proceeds of which as might be required should be
applied to the payment of the above debts, and the residue vested
in him as trustee under the acts, and praying the chancellor to
authorize, order, and direct a sale for the above-mentioned
purposes.
On the same day, the chancellor referred this petition to one of
the masters, to examine into the allegations and matters contained
in it, and report thereon.
On 30 June, 1815, the master reported, and stated the condition
of the property and the income which it produced; the debts of the
petitioner; the opinion of the master, that they had been
contracted for the support of his family, and that the rents and
profits were insufficient for the reasonable and proper support of
the petitioner and his family according to their situation in
life.
On 3 July, 1815, the chancellor issued an order, reciting all
the circumstances of the case, and concluding thus:
"Therefore, on motion of Mr. S. Jones Jr. of counsel for the
petitioner, it is ordered that the assent of the chancellor be, and
hereby is, given to the sale, by the petitioner, of the said house
and lot in the Fifth Ward of the City of New York, and of the
eastern moiety or half part of the said premises at Greenwich, in
the Ninth Ward of the City of New York, to be divided by the line
in the manner for that purpose mentioned in the said petition; and
the petitioner is authorized and directed
Page 49 U. S. 501
to sell and dispose of the same, under and according to the
aforesaid acts of the legislature in that behalf, the said sales to
be made under the direction of one of the masters of this court,
and the petitioner to proceed in making the sales and conveyances
of the said premises, so to be sold, in the manner for that purpose
in and by the said acts prescribed and directed."
"And it is further ordered, that the purchase moneys for the
said premises so to be sold be paid by the purchasers to the said
master, to be disposed of by him as hereinafter directed. And it is
further ordered and directed, and his Honor the chancellor hereby
doth authorize, order, and direct, that so much of the net
proceeds, to arise from such sales, as may be necessary for the
purpose, be applied, under the direction of one of the masters of
this Court, in and for the payment and discharge of the debts now
owing by the petitioner, and to be contracted for the necessary
purposes of his family, to be proved before the said master; and
the costs, charges, and expenses of the petitioner, on his petition
in this matter, and the proceedings had, and to be hereafter had,
under or in consequence thereof; but so, however, and it is further
ordered and directed, that the net proceeds of the said eastern
moiety of the said premises at Greenwich aforesaid, or so much
thereof as shall be necessary for that purpose, be applied in the
first place, and before and in preference to any other
appropriation or application thereof, to pay and satisfy to the
President and Directors of the Manhattan Company aforesaid the
aforesaid debt or sum of four thousand four hundred dollars, with
the interest thereof up to the time of such payment, or such part
and balance of the said debt, and interest, as shall not have been
otherwise paid or satisfied. And it is further ordered and
directed, and his Honor the chancellor hereby doth further order
and direct, that the residue of the said net moneys, and proceeds
arising from such said sales, after the said debts, costs, charges,
and expenses shall be discharged and paid by and out of the same,
be placed out at interest, on real security, in the City of New
York, in the name of the petitioner as trustee, under the direction
of one of the masters of this Court, upon the following trusts, to
be expressed upon the face and in the body of the said securities
respectively, whereon the same shall be so placed, that is to say,
upon trust that the interest and income thereof, or so much of the
same as may be required for that purpose, be applied, from time to
time, in and for the suitable and proper maintenance and support of
the petitioner, and his wife and children, already born and to be
hereafter born, according to their situation in life, and for the
suitable education
Page 49 U. S. 502
of the said children; and upon further trust, that the principal
sum or sums, with the securities whereon the same may be vested or
placed, and may stand, shall be held, and he, the petitioner, as
trustee, stand and be possessed thereof in trust, for the benefit
of the lawful issue of the petitioner who shall be living at the
death of him, the petitioner, according to the trusts upon which
the unsold moiety of the said premises at Greenwich aforesaid, in
the aforesaid acts of the legislature mentioned, are or shall be
held; and so, and in such manner, that the said interest and income
of the said trust moneys, funds, and securities, or so much thereof
as may be requisite thereto, shall be appropriated, applied, and
secured in the first instance, and exclusively, to the suitable
maintenance of the family of the petitioner, according to their
situation in life, and the suitable education of his children, and
shall not be subject or liable to or for the engagements, debts, or
control of the petitioner, or for any other purpose whatsoever than
the said purposes hereby designated and authorized; provided that
any surplus of the said interest and income, that may be left and
remain after the said objects and purposes, hereby designated as
aforesaid, are first fully and liberally fulfilled and
accomplished, according to the true meaning hereof, shall be for
the use and at the disposal of him, the petitioner."
"And it is further ordered that the master, under whose
direction the said sales should be made, and the debts paid, and
surplus proceeds placed out as aforesaid, report to this Court the
proceedings that may be had in the premises, and the securities
that may be taken therein, pursuant to this order, with all
convenient speed; and that all and every person or persons who are,
or is, or may become interested therein, have liberty to apply to
this Court, at any time or times hereafter, for any further or
other orders or directions in or touching the premises."
On 12 March, 1816, Clarke again applied to the legislature. The
petition is short, and may be inserted.
"To the Honorable the Legislature of the State of New York. The
memorial and petition of Thomas B. Clarke, of the City of New York,
respectfully showeth:"
"That his Honor, the chancellor, under the act 'for the relief
of Thomas B. Clarke,' passed April 1, 1814, and the act
'supplemental to the act for the relief of Thomas B. Clarke,'
passed March 24, 1815, did order and direct that the said Thomas B.
Clarke should sell the eastern moiety or half part of the premises
in the said act and order mentioned."
"And your petitioner further shows, that, owing to the
scarcity
Page 49 U. S. 503
of money, and the present low price of property, no sale can be
made without a great sacrifice."
"Your petitioner therefore prays that he may be allowed to
mortgage such part of the property in the said act mentioned as the
chancellor may appoint, and for the purposes mentioned in the said
acts and order, and that your petitioner be allowed to bring in a
bill for that purpose. And he will ever pray, &c."
On 29 March, 1816, the legislature passed the following act:
"An act further supplemental to an act entitled 'An act for the
relief of Thomas B. Clarke.'"
"Be it enacted by the people of the State of New York
represented in senate and assembly that the said Thomas B. Clarke
be, and he is hereby, authorized, under the order heretofore
granted by the chancellor or under any subsequent order either to
mortgage or to sell the premises which the chancellor has permitted
or hereafter may permit him to sell as trustee under the will of
Mary Clarke, and to apply the money so raised by mortgage or sale
to the purposes required or to be required by the chancellor under
the acts heretofore passed for the relief of the said Thomas B.
Clarke."
On 27 May, 1816, Clarke presented another petition to the
chancellor, again reciting all the facts in the case, and praying
his assent to a mortgage.
On 30 May, 1816, the chancellor passed the following order:
"It is ordered, that the said petitioner, under the act entitled
"An act further supplemental to the act entitled
An act for the
relief of Thomas B. Clarke,'" passed March 29, 1816, be and he is
hereby authorized, so far as the assent of this court is requisite,
to mortgage, instead of selling, the lands he was authorized to
sell in and by an order of this Court of the third day of July
last, and that the moneys to be procured, and the debts to be
extinguished by such mortgage or mortgages, be appropriated and
adjusted in the same manner and under the same checks, and not
otherwise than is prayed for in and by said order, and the said
order is to apply to and govern the application of the moneys to be
raised by mortgage, equally as if the same had been raised by a
sale of all or any of the lands authorized to be sold in and by the
said order."
"May 30, 1816 J. KENT"
On 8 March, 1817, Clarke presented another petition
Page 49 U. S. 504
to the chancellor, representing the propriety and expediency of
dividing the estate by an eastern and western, instead of a
northern and southern, line, and of granting to the petitioner the
power to sell or mortgage the southern, instead of the eastern,
moiety. This being referred to James A. Hamilton, a master in
chancery, he reported that it would be expedient to divide the
estate by a line running from east to west, passing through
Twenty-sixth Street.
On 15 March, 1817, the chancellor passed the following
order:
"On reading and filing the report of James A. Hamilton, esquire,
one of the masters of this court, bearing date 11 March, 1817, by
which it appears that no part of the northern moiety of the estate
at Greenwich mentioned in the petition of the above-named
petitioner, the same being divided into two equal parts by a line
running from east to west through a street called Twenty-sixth
Street, has been either sold or mortgaged by the said Thomas B.
Clarke, and it appearing to this Court reasonable and proper that
the prayer of the said petitioner should be granted, it is
thereupon ordered, on motion of Mr. S. Jones, solicitor for the
petitioner, that the said petitioner be and he is hereby authorized
to sell and dispose of the southern moiety of the said estate, the
same being divided by a line running east and west through the
center of Twenty-sixth Street aforesaid, together with the lot in
Broadway, instead of the eastern moiety of the said estate, as
permitted and directed by the orders heretofore made in the
premises. And it is further ordered that the said Thomas B. Clarke
be and he hereby is authorized to mortgage all or any tract or
parts of the said southern moiety of the said estate if in his
judgment it will be more beneficial to mortgage them than to sell
the same. And the said Thomas B. Clarke is further authorized to
convey any part or parts of the said southern moiety of the said
estate in payment and satisfaction of any debt or debts due and
owing from the said Thomas B. Clarke upon a valuation to be agreed
on between him and his respective creditors, provided nevertheless
that every sale, and mortgage, and conveyance in satisfaction, that
may be made by the said Thomas B. Clarke in virtue hereof, shall be
approved by one of the masters of this Court, and that a
certificate of such approval be endorsed upon every deed or
mortgage that may be made in the premises. And it is further
ordered, that the said Thomas B. Clarke shall be, and he is hereby,
authorized to receive and take the moneys arising from the
premises, and apply the same to the payment of his debts, and
invest the surplus
Page 49 U. S. 505
in such manner as he may deem proper to yield an income for the
maintenance and support of his family."
On 9 April, 1816, Clarke mortgaged the premises in question,
with other property, being in the southern moiety of the estate, to
Henry Simmons, which mortgage was discharged in 1822.
Having given this historical account of the facts of the case,
let us now see what occurred upon the trial in the court below.
It has already been mentioned, that it was an ejectment brought
by Williamson and wife against a party in possession of a portion
of the property included in the devise of Mary Clarke. The
following case was stated for the opinion of the court:
"
Circuit Court, U.S., Southern District New
York"
"
CHARLES A. WILLIAMSON AND CATHARINE H., HIS WIFE v. JOSEPH
BERRY"
"This is an action of ejectment for the undivided third part of
eight lots of land, in the Sixteenth Ward of the City of New
York."
"The pleadings may be referred to as part of this case."
"The plaintiffs claimed under the will of Mary Clarke."
"The plaintiffs gave in evidence an exemplified copy of the will
of Mary Clarke, proved in the supreme court, of which a copy is
hereto annexed."
"It was then admitted by the defendant's counsel, that Mary
Clarke was seized of the premises described in the said will
as"
"all that part of my said farm at Greenwich aforesaid, called
Chelsea, lying to the northward of the line herein before directed
to be drawn from the Greenwich Road to the Hudson River, twelve
feet to the northward of the fence standing behind the house now
occupied by John Hall, bounded southerly by the said line,
northerly by the land of Cornelius Ray, easterly by the Greenwich
Road, and westerly by the Hudson, including that part of my said
farm now under lease to Robert Lenox."
"At the time of the making of the will, and thence until her
death, which took place in July, 1802, that the said premises
included the eight lots claimed herein; that the said trustees,
Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, are
all dead -- Mrs. Moore having died since 1830, the other two
previously; that Thomas B. Clarke was married in 1803; that his
wife died in August, 1815, and himself on 1 May, 1826; that he left
three children surviving him, Catharine, Isabella, and Bayard; that
he had four other children, all of whom died before him without
having had any
Page 49 U. S. 506
children, and unmarried; that Catharine was born on 5 June,
1807, and was married to Charles A. Williamson, on 10 May, 1827;
that Isabella was born on 11 June, 1809, and was married to Rupert
J. Cochran on 4 June, 1835; that Bayard was born on 17 March, 1815;
all of whom are still living. It was also admitted that the
defendant was the actual occupant of the premises at the
commencement of this suit, on 6 March, 1845; and that one-third of
the premises claimed was of greater value than two thousand
dollars."
The plaintiffs thereupon rested.
The defendant's counsel then proved the acts of the legislature,
the deed of Clement C. Moore the petitions to the chancellor, the
master's reports, and the orders of the chancellor (excepting only
the order endorsed on petition), of which copies are hereto
annexed.
The defendant's counsel then offered in evidence the deed from
Thomas B. Clarke to George De Grasse, of which the following is a
copy:
"This indenture, made this 2 August, in the year of our Lord
1821, between Thomas B. Clarke, of the City of New York, gentleman,
of the first part, and George De Grasse of the second part. Whereas
the said Thomas B. Clarke, by virtue of sundry conveyances, acts of
the legislature, and orders of the Court of Chancery of the State
of New York, hath been empowered to sell, or mortgage, or convey,
in satisfaction of any debt due from him to any person or persons,
the southern moiety of the estate at Greenwich, devised by Mary
Clarke, deceased, for the benefit of the said Thomas B. Clarke and
his children, or any part thereof. Now, therefore, this indenture
witnesseth that the said Thomas B. Clarke, in consideration of the
premises, and of two thousand dollars lawful money of the United
States to him in hand paid by the said party of the second part, at
or before the sealing and delivery of these presents, the receipt
whereof is hereby acknowledged, hath granted, bargained, sold,
aliened, enfeoffed, conveyed, and confirmed, and by these presents
doth grant, bargain, sell, alien, enfeoff, convey, and confirm unto
the said party of the second part, his heirs and assigns, forever,
all those lots of ground situate, lying, and being in the Ninth
Ward of the City of New York, known and distinguished on a certain
map of the property of the said Thomas B. Clarke,"
&c.
(The deed then described twenty-nine lots, with a covenant of
general warranty.)
James A. Hamilton joined in this deed, as a trustee for Clarke's
life estate, of which he had become possessed.
Page 49 U. S. 507
This deed was objected to by the plaintiffs' counsel, for two
reasons:
1. Because not approved by a master.
2. Because not shown to have been given upon a sale for
cash.
The objections were overruled, and the plaintiffs' counsel
excepted.
The deed was then read in evidence, as was also a deed from
George De Grasse to Margaret Van Surlay. (It is not necessary to
insert this deed.)
The defendant's counsel then rested.
The plaintiffs' counsel then offered to read the petitions to
the legislature, the extracts from the journals of the two houses,
and the order endorsed on petition, of which copies are hereto
annexed. They were objected to by the defendant's counsel, the
objection sustained, and the plaintiffs' counsel excepted.
The plaintiffs' counsel then proved the mortgage executed by
Thomas B. Clarke to Henry Simmons, of which the following is a
copy. (It is not necessary to insert this mortgage.)
The plaintiffs' counsel then offered evidence to show the
consideration of the deed from Clarke to De Grasse. The defendant's
counsel objected; the objection was overruled, and the defendant's
counsel excepted.
The plaintiffs' counsel then called as a witness James A.
Hamilton, who testified that he knew Thomas B. Clarke and George De
Grasse; that in 1821, and for some years previous, he was a master
in chancery in the City of New York; that the order of March 15,
1817, was put into his hands for execution, and that Clarke and De
Grasse applied to him to approve the deed from Clarke to De Grasse
above set forth; that on that occasion, which was at or about the
time the deed was given, they explained to him the consideration of
the deed, and that the consideration for which it was given was
some wild lands in Pennsylvania or Virginia, and an account for
articles previously furnished to Clarke by De Grasse, out of any
oyster house which he kept, including some items of money let. On
thus ascertaining its consideration, he refused to approve the
deed.
On his cross-examination, he said that he could not state the
time at which the transaction occurred, except by reference to the
deed; he had more than one interview with Clarke and De Grasse, he
was sought by them more than once; he did not consider the
execution of the life estate deed a matter of any interest; he
executed it as trustee. He did not remember at all a person by the
name of James Cunningham, and on being
Page 49 U. S. 508
shown the signature of James Cunningham, as subscribing witness
to the deed for the life estate, witness said that his recollection
of the person was not thereby revived. He received from De Grasse
no fee. It was his impression that the account for articles
furnished at the oyster shop was exhibited. He held the life estate
of Clarke in the premises as trustee for Clarke. His impression was
that Clarke filled up his own deed to De Grasse, and to obtain his
sanction called upon witness; he was not certain that De Grasse was
present upon that occasion. He did not recollect that De Grasse was
present when the deed for life estate was executed, but he
recollected that both Clarke and De Grasse came together to
witness' office more than once on the subject, and he was besought
by them frequently to approve the deed. In answer to a question by
defendant's counsel what evidence he had of the insufficient value
of the lands which formed part of the consideration, the witness
stated that he had evidence enough then, though he did not
recollect it now, that the lands were worthless tax lands. There
might have been some money charged in De Grasse's account against
Clarke; the whole account was for articles furnished previously. He
did not recollect that there were any notes forming part of the
consideration of the deed from Clarke.
The plaintiffs' counsel then proved that seven of the lots in
suit,
viz., numbers 5, 6, 7, 41, 42, 43, and 45, were
reconveyed to De Grasse on the 31st of October, 1844.
The defendant's counsel then proved that lot number 44 had been
conveyed to Samuel Judd.
They also proved the bond of Clarke to Simmons, referred to in
the aforesaid mortgage to Simmons, and called Henry M. Western,
who, being shown two endorsements on the said bond, as follows:
"Received, New York, October 18, 1821, from Mr. George De
Grasse, one hundred dollars on account of the within bond."
"100 H. SIMMONS"
"Received of George De Grasse two hundred and fifty dollars,
being in full for principal and interest, and all other claims and
demands on account of the within bond, and also of the mortgage
therein mentioned, for which mortgage I have this day entered
satisfaction of record."
"H. SIMMONS"
"New York, March 28, 1822"
"Witness: H. M. WESTERN "
Page 49 U. S. 509
testified that he was a subscribing witness to the last, which
he wrote; but that he recollected nothing of the transaction but
from the paper.
The plaintiffs' counsel then offered to prove --
(1) That the acts of the legislature were not for the benefit of
the infants, but for the benefit of Thomas B. Clarke merely.
(2) That the orders of the chancellor had the effect to take the
proceeds of their future interest in the property, and to apply the
same to the father's debts, without giving them any benefit, by
support or otherwise, out of the income of the life estate in other
parts of the property.
(3) That, under the acts and orders, he actually aliened the lot
on Broadway, and all of the southern moiety of the Greenwich
property, excepting two lots, and that none of the children
received any benefit from such alienation.
(4) That the whole of this property was mortgaged or conveyed
for old debts; that no proceeds were ever invested, or secured, or
even received from the grantees or mortgagees.
(5) That, so far from providing for the children, or protecting
the estate, he suffered a large portion of the northern moiety to
be sold for assessments, and was proceeding to dispose of the
northern moiety for twenty-one years, when, on 31 March, 1826, a
bill was filed against him on behalf of the children, and an
injunction issued.
(6) That the plaintiff, Mrs. Williamson, was, from the death of
her mother in August, 1815, supported entirely by one of her aunts,
and that after about two years from the mother's death, the other
children were supported by their friends, and were entirely
neglected by their father, and that this was notorious in the City
of New York, and would have been immediately known to anyone making
inquiry.
The defendant's counsel objected; the objection was sustained,
and the plaintiffs' counsel excepted.
A verdict was then taken for the plaintiffs for one undivided
third part of the eight lots, subject to the opinion of the court
upon the questions of law, with power to enter a verdict for
defendant, if such should be the opinion of the court, and with
liberty to either party to turn this case into a special verdict or
bill of exceptions.
On 18 May, 1846, the judges of the circuit court pronounced
their judgment upon the four following points,
viz.:
1. Under the will of Mary Clarke, the first-born child of Thomas
B. Clarke, at its birth, took a vested estate in remainder, which
opened to let in his other children to the like estate as they were
successively born.
Page 49 U. S. 510
2. This estate would have become a fee simple absolute in the
children living on the death of T. B. Clarke, the first day of May,
1826, and it is not important now to decide whether the trustees
took a fee, under the will, in trust to convey to the children
after his decease, or a fee for his life, as in the latter case the
estate would vest in possession in the children at the death of T.
B. Clarke, and in the former case the law would presume an
execution of this trust by the surviving trustee on the death of T.
B. Clarke, or the trust would be executed in 1830, by force of the
Revised statutes.
3. The several offers of the plaintiffs to give parol evidence
to the jury touching the objects and operation of the acts of the
legislature, referred to in the case, or the effect of the orders
of the chancellor therein stated upon the interests of the children
of T. B. Clarke, or the failure of T. B. Clarke to apply or secure
the proceeds of the devised estate, when disposed of by him, to and
for the benefit of his children, or the consideration on which the
devised estate was disposed of by T. B. Clarke, or his neglect to
protect the estate from sacrifice for assessments &c., or to
provide for and support his children, were properly overruled by
the court, with the exception of such particulars included in those
offers as may be embraced in the points hereafter stated, upon
which the judges are divided in opinion.
4. The acts of the Legislature of the State of New York, of
April 1, 1814, March 24, 1815, and March 29, 1816, referred to in
the case, are constitutional and valid.
But the judges are divided in opinion upon the following points
presented by the case:
1. Whether the acts of the legislature, stated in the case,
devested the estate of the trustees under the will of Mary Clarke,
and vested the whole estate in fee in Thomas B. Clarke.
2. Whether the authority given by the said acts to the trustee
to sell was a special power, to be strictly pursued, or whether he
was vested with the absolute power of alienation, subject only to
reexamination and account in equity.
3. Whether the orders set forth in the case, made by the
chancellor, were authorized by and in conformity to the said acts
of the legislature, and are to be regarded as the acts of the court
of chancery empowered to proceed as such in that behalf, or the
doings of an officer acting under a special authority.
4. Whether the chancellor had competent authority, under the
acts, to order or allow such sale or conveyance of the estate
Page 49 U. S. 511
by the trustee, as is stated in the case, or any other
consideration than for cash, paid on said conveyance.
5. Whether the deed executed by Thomas B. Clarke to George de
Grasse, for the premises in question, being upon a consideration
other than for cash paid on the purchase, is valid
6. Whether the said deed is valid, it having no certificate
endorsed thereon that it was approved by a master in chancery.
7. Whether Thomas B. Clarke, having previously mortgaged the
premises in fee to Henry Simmons, had competent authority to sell
and convey the same to De Grasse.
8. Whether the subsequent conveyance of the premises as set
forth in the case, made by George De Grasse, rendered the title of
such grantee, or his assigns, valid against the plaintiffs.
It is thereupon, on motion of the plaintiffs, by their counsel,
ordered that a certificate of division of opinion, upon the
foregoing points, which are here stated during this same term,
under the direction of the said Judges, be duly certified, under
the seal of this Court, to the Supreme Court of the United States,
to be finally decided.
Page 49 U. S. 531
MR. JUSTICE WAYNE delivered the opinion of the Court.
This cause has been brought to this Court to get its decision
upon questions of law which were raised upon a case stated in the
circuit court upon which the judges of that court differed in
opinion.
The suit is an action of ejectment, for the undivided third part
of eight lots of land in the Sixteenth Ward of the City of New
York. The plaintiffs claimed under the will of Mary Clarke. It was
admitted by the counsel for the defendant, that Mary Clarke had
been seized of the premises in dispute, when she made her will, and
when she died in 1802. It was also admitted, that the defendant was
the actual occupant of the premises, when the suit was commenced
against him.
The premises are a portion of a tract of land, devised by Mary
Clarke to "Benjamin Moore and Charity, his wife, and Elizabeth
Maunsell, and their heirs forever, as joint tenants and not as
tenants in common," of "all that part of my said farm at Greenwich
aforesaid, called Chelsea," &c.,
"to have and to hold the said hereby devised premises, to the
said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell,
and to the survivor or survivors of them, and to the heirs of such
survivor, as joint tenants, and not as tenants in common, in trust,
to receive the rents, issues, and profits thereof, and to pay the
same . . . to Thomas B. Clarke,"
&c.,
"during his natural life, and from and after the death of the
said Thomas B. Clarke, in further trust, to convey the same in fee,
to the lawful issue of the said Thomas B. Clarke, living at his
death. And if the said Thomas B. Clarke shall not leave any lawful
issue, at the time of his death, then in the further trust and
confidence, to convey the said hereby devised premises to my
grandson, Clement C. Moore and to his heirs, or to such person in
fee as he may by will appoint, in case of his death, prior to the
death of Thomas B. Clarke. "
Page 49 U. S. 532
It was also admitted, that the trustees named in the will were
dead; that Thomas B. Clarke married in 1803; that his wife died in
1815; and that he died in 1826, leaving three children --
Catharine, the wife of Charles H. Williamson, plaintiffs in this
suit -- Isabella, now the wife of Rupert Cochran -- and Bayard
Clarke, all of whom were still living. Here the plaintiffs rested
their case.
The defendant then put his case upon conveyances from Thomas B.
Clarke, made, as he says, under legislative enactments of the State
of New York and orders of the Chancellor of New York.
The acts and the orders of the chancellor under them will be the
subjects of our consideration only so far as may be necessary to
give answers to the points certified to this Court. In other words,
we will not discuss the quantity of interest which the persons
provided for in the devise took under it.
It is right, however, to say, that we concur with the learned
judges of the circuit court, that under the will of Mary Clarke,
the first-born child of Thomas B. Clarke, at its birth, took a
vested estate in remainder, which opened to let in his other
children to the like estate, as they were successively born, and
that their vested remainder became a fee simple absolute, in the
children living, on the death of their father.
The points certified are as follows:
1. Whether the acts of the legislature, stated in the case,
divested the estate of the trustees under the will of Mary Clarke,
and vested the whole estate in fee in Thomas B. Clarke.
2. Whether the authority given by the said acts to the trustee
to sell, was a special power, to be strictly pursued, or whether he
was vested with the absolute power of alienation, subject only to
reexamination and account in equity.
3. Whether the orders set forth in the case, made by the
chancellor, were authorized by and in conformity to the said acts
of the legislature, and are to be regarded as the acts of the court
of chancery empowered to proceed as such in that behalf, or the
doings of an officer acting under a special authority.
4. Whether the chancellor had competent authority, under the
acts, to order or allow such sale or conveyance of the estate by
the trustee, as is stated in the case, on any other consideration
than for cash paid on said conveyance.
5. Whether the deed executed by Thomas B. Clarke to George De
Grasse, for the premises in question, being upon a consideration
other than for cash paid on the purchase, is valid.
Page 49 U. S. 533
6. Whether the said deed is valid, it having no certificate
endorsed thereon that it was approved by a master in chancery.
7. Whether Thomas B. Clarke, having previously mortgaged the
premises in fee to Henry Simmons, had competent authority to sell
and convey the same to De Grasse.
8. Whether the subsequent conveyance of the premises, as set
forth in the case, made by George De Grasse, rendered the title of
such grantee, or his assigns, valid against the plaintiffs.
It is thereupon, on motion of the plaintiffs by their counsel,
ordered that a certificate of division of opinion, upon the
foregoing points, which are here stated during this same term,
under the direction of the said judges, be duly certified under the
seal of this Court to the Supreme Court of the United States, to be
finally decided.
Our first observation upon the act of April, 1814, is that the
first section of it gives to the chancellor the power to appoint
trustees, in the place of those named in the will. This is to be
done upon the petition of Thomas B. Clarke, as contradistinguished
from a suit by bill for such a purpose; and as occasion may
require, the chancellor may substitute and appoint other trustees,
in the room of these appointed under the act, in like manner as is
practiced in chancery, in cases of trustees appointed therein. By
the last section of the act, the trustees are said to be liable in
all respects to the power and authority of the court of chancery
concerning the trusts created by the act.
It will be conceded by all, that the court of chancery without
this act, had not the power, under its inherent or original
jurisdiction, to change the trustees summarily upon petition, or
except by means of a bill filed by and against all proper parties,
for such causes as trustees may be removed in chancery.
The second, third, fourth, fifth, and sixth sections of the act,
except the last clause in the sixth already cited, prescribe
minutely what may be done by the trustees who might be appointed by
the chancellor, in relation to the land devised, leaving nothing to
be done by the court, except in its supervisory power over the acts
of the trustees.
Under this act, it does not appear that any application was made
for the substitution of trustees in place of those named in the
will. The latter continued in their testamentary relation to the
land devised, until after the act of March, 1815, had been
passed.
That act was passed upon the petition of Thomas B. Clarke. He
recites a release to him by Clement C. Moore of his contingent
Page 49 U. S. 534
interest in the estate devised, whereby he says himself and his
infant children have become the only persons interested in the
estate. And he declares that he has not been able to prevail upon
any suitable person to undertake the performance of the duties
enjoined by the first act. He then prays for an amendment of
it.
Leave was given in the Senate of New York, that such a bill
might be reported, and it was passed into an act 24 March,
1815.
In the preamble to this act, after reciting Clement C. Moore's
release, "whereby the said real estate became exclusively vested in
Thomas B. Clarke and his children," it is enacted, that all the
beneficial interest and estate of Moore or those under him, arising
by virtue of the act, to which this is a supplement, is vested in
Clarke, his heirs and assigns &c. And that so much of the act
as requires the several duties therein enumerated to be performed
by trustees, to be appointed by the court of chancery as therein
mentioned, be, and the same is hereby, repealed.
The power given by the first act to the court, to appoint
trustees, having been repealed, the second section of the second
act is -- that Clarke is authorized and empowered to execute and
perform every matter and thing, in relation to the real estate
mentioned in the act to which this is a supplement, in like manner,
and with like effect, that trustees duly appointed under the first
act might have done. And Clarke is required to apply the whole
interest and income of the property to the maintenance of his
family and the education of his children. Then it is enacted in the
third section that no sale of any part of the estate shall be made
by Clarke, until he shall have procured the assent of the
chancellor to such sale, who shall, at the time of giving such
assent, also direct the mode in which the proceeds of such sale, or
so much thereof as he shall think proper, shall be vested in Clarke
as trustee, and further, that it shall be the duty of Clarke to
render an annual account to the chancellor, or to such person as he
may appoint, of the principal of the proceeds of such sale only,
the interest being to be applied by said Clarke in such manner as
he may think proper, for his own use and benefit, and for the
maintenance and education of his children. And if on such return,
or at any other time, and in any other manner, the chancellor shall
be of the opinion, that Thomas B. Clarke hath not duly performed
the trust by this act reposed in him, he may remove him and appoint
another trustee in his stead, subject to such rules as he may
prescribe in the management of the estate hereby vested in Thomas
B. Clarke as trustee.
Page 49 U. S. 535
We have hitherto used the words of the acts. And shall do so, as
occasion may require, that Clarke's character under the acts as a
trustee, with power as it might be given to him by the chancellor
to sell, may not be misunderstood; and that the special power or
jurisdiction given to the chancellor in the whole matter may be
more apparent, when we treat of that part of the case.
The orders given by the chancellor under the first and
supplemental act, upon the petition of Clarke, shall have our
attention, after the third act which was passed for Clark's relief
has been noticed.
It was passed upon the memorial of Clarke. It recites, that the
chancellor, under the act for his relief, did order that he might
sell the eastern moiety of the property in the act mentioned, but
that, owing to the scarcity of money, and low price, no sale could
be made, without a great sacrifice. And therefore he prays to be
permitted to mortgage the property, as the chancellor may appoint,
for the purposes mentioned in the preceding acts and order of the
chancellor.
The act passed upon this petition is that he is authorized,
under the order heretofore given, or under any order which the
chancellor might give, to mortgage and sell the premises, as
trustee under the will of Mary Clarke, and to apply the money to be
raised by mortgage or sale to the purposes required or to be
required by the chancellor, under the acts heretofore passed for
Clarke's relief.
So much of Clarke's petition to the legislature has been cited
in connection with its acts, to show that the latter were
coincident with, and not beyond, the relief for which he asked.
Both fix conclusively that Clarke is to be regarded as the
trustee only of the property devised, to sell or mortgage a part of
it, with the assent or appointment of the chancellor. His
obligation is to account annually for the principal of the proceeds
of every sale or mortgage which might be made, and it is his right
to use the interest of the principal for himself and for the
education and maintenance of his children. He is called trustee in
the acts. In that character, and in no other, is he recognized in
the orders of the chancellor. And, in the last clause of the third
section of the second act, it is said another may be appointed in
his stead, "subject to such rules as the chancellor may prescribe,
in the management of the estate, hereby vested in the said Thomas
B. Clarke as trustee."
His relation to the devised estate was changed by the discharge
of the trustees named in the will, but his interest in it was the
same as it had been, with the exception of Moore's assignment
Page 49 U. S. 536
of his contingent remainder, and the power given to the
chancellor to assent to the sale or mortgage of a part of it. The
acts of the legislature discharged the trustees named in the
devise, whatever may have been their estate in the land under it,
but did not vest an estate in fee in Thomas B. Clarke.
We will now precede our inquiry into the jurisdiction given to
the chancellor by the acts, with a few remarks which will aid in
determining the extent of that jurisdiction, and what would have
been its rightful exercise.
Jurisdiction in chancery is inherent and original, comprehending
now almost every exigency of human disagreement for which there is
not an adequate remedy at law.
Or it is statutory, meaning a new power from legislation for the
court to act upon particular subjects of a like kind, as occasions
for doing so may occur. Examples of this statutory jurisdiction are
the 43d of Elizabeth, called the Statute of Charities. The act
known as Sir Samuel Romilly's, giving a summary remedy in cases of
breach of trust for charitable uses. And another is the trustee act
of Sir Edward Sugden for amending the laws respecting conveyances
and transfers of estate and funds vested in trustees and mortgagees
and for enabling the courts of equity to give effect to their
decree and orders in certain cases.
Or the jurisdiction in equity is extraordinary, as when a
statute permits persons to present petitions to the chancellor for
relief in private affairs when the petitioner cannot get relief by
the ordinary course of law or from the inherent power of a court of
chancery. Cruise, in his Title 33, c. 11, says they are termed
"real estate acts," and that it is a conveyance or settlement of
lands or hereditaments, made under the immediate sanction of
Parliament, in cases where the parties are not capable of
substantiating their agreements without the aid of the legislature,
and where the carrying such agreements into effect is evidently
beneficial to the parties.
In these cases it must also be recollected that the chancellor
acts summarily,
ex parte, upon the petition of the party
seeking relief. Upon such petitions orders are given, as
contradistinguished from decrees in suits by bill filed. The last
are his judgments upon the matters in controversy between the
parties before the court, the other being orders in conformity with
whatever may be the legislative direction and intent in any
particular case. Whatever, however, the chancellor does in either
case he does as a court of chancery. It will stand as his judgment,
when it has been done within the jurisdiction conferred, until it
has been set aside upon motion, as his
Page 49 U. S. 537
decrees do, until they have been set aside by a bill of
review.
The acts for the relief of Thomas B. Clarke are of the last
kind. They are private acts, relating to a particular estate and
persons having interests in it -- one of whom, Clarke, is empowered
as a trustee to sell a part of it with the consent of the
chancellor. Several cases of private acts for such relief as was
asked by Clarke will be found in the 33 c. of Cruise.
The acts in this case provide that the chancellor may act upon
them summarily, upon the application or petition of Clarke, and in
each of them what the chancellor can do is precisely stated. In
such cases, the court will not deviate from the letter of the act
nor make an order partly founded upon its original jurisdiction and
partly upon the statute. In other words, it cannot confound its
original jurisdiction in a suit with the powers it may be
authorized to execute by petition, either in a public act, giving
statutory jurisdiction to the court, to be exercised summarily upon
petition, or in a private act providing for relief in a particular
case, which is to be carried out by the same mode of procedure.
The Legislature of New York, in the exercise of its rightful
power to loose a devised estate from fetters put upon it by
unforeseen causes, which were defeating the objects of the
testatrix, substitutes the court of chancery for itself, to give
relief to Clarke, to the extent that it is enacted, according to
the manner of proceedings in such cases in courts of chancery. The
relief wanted by Clarke was permission to sell or mortgage a part
of the estate. Permission to do either or both is given by the
acts, provided it is done with the assent of the chancellor.
For the jurisdiction or power of the chancellor in the matter we
must look to the third section of the Act of 24 March, 1815, and to
the Act of March 29, 1816. Both shall be cited in terms. The first
is that no sale of any part of the said estate shall be made by
Thomas B. Clarke until he shall have procured the assent of the
chancellor of this state to such sale; at the time of giving such
assent, the chancellor shall also direct the mode in which the
proceeds of such sale, or so much thereof as he shall think proper,
shall be vested in Thomas B. Clarke as trustee. And further, it
shall be the duty of the said Thomas B. Clarke annually to render
an account to the chancellor, or to such person as he may appoint,
of the principal of the proceeds of such sale only, the interest
being to be applied by Clarke, in such manner as he may think
proper for his use and benefit, and for the maintenance and
education of his children.
Page 49 U. S. 538
The act of 1816 is that Clarke
"is authorized, under the order heretofore granted by the
chancellor, or under any subsequent order, either to sell or
mortgage the premises, which the chancellor has permitted or
hereafter may permit him to sell, as trustee under the will of Mary
Clarke, and to apply the money, so raised by mortgage or sale, to
the purposes required, or to be required, by the chancellor, under
the acts heretofore passed, for the relief of the said Thomas B.
Clarke."
Such is the jurisdiction of the chancellor under these acts in
respect to sale, mortgage of the estate, and the proceeds which
might be made from either. No authority is given to convey any part
or parts of the southern moiety of the said estate in payment and
satisfaction of any debt or debts due and owing by Clarke upon a
valuation to be agreed upon between him and his respective
creditors. None that he might receive and take the moneys arising
from the premises and apply the same to the payment of his debts,
investing the surplus only in such manner as he may deem proper to
yield an income for the maintenance and support of his family.
This was not an exercise of jurisdiction, but an order out of
and beyond it. The jurisdiction given by these acts to the
chancellor is suggested by Blackstone when he says,
"A private act of Parliament for the alienation of an estate is
an assurance by matter of record, not depending upon the act or
consent of parties themselves. But the sanction of a court of
record is called in to substantiate, preserve, and be a perpetual
testimony of the transfer of property from one man to another."
2 Wend.Bl.Com. 344.
It is not unworthy of remark that the acts of New York now under
consideration were initiated and passed in strict conformity with
the mode of legislative proceedings in passing private acts. There
were petitions, references to committees, and leave to bring in
bills. Nothing was done without the consent of the parties in being
capable of consent, and the acts provide for an equivalent in money
to be settled upon the infants interested, who had not a capacity
to act for themselves, but who were to be concluded by what was
directed to be done under the acts. 2 Wend.Bl.Com. 345.
In all this may be seen, too manifestly for any denial of it,
the intention of the legislature as to the office of the
chancellor, in the execution of its acts for the relief of Clarke.
The chancellor's office, in respect to the sale of the premises,
was to substantiate and preserve a perpetual testimony of the
transfer of the property, as a matter of record, to whoever might
be the purchaser of any part of it, in conformity with the way in
which a sale of it could be made.
Page 49 U. S. 539
The beginning and the end of this affair are not unworthy of
remark or of being remembered. The legislature is first asked to
empower the court of chancery to appoint trustees, in the place of
those named in the will of Mary Clarke, to carry out her beneficent
intentions for her grandson and his children. The father, being
unable to support himself and his children, asks that a sale might
be made of a part of the devised premises, the rents, issues, and
profits of which he was entitled to during life. An act is passed,
permitting the appointment of trustees, giving a power to sell, and
securing to the children an amount from the sales, thought by the
legislature to be only an adequate compensation for the sale of
land in which they then had a vested estate in remainder, which
would become theirs in fee simple absolute upon the death of their
father. The next year the legislature is told that a trustee could
not be got. A supplemental act is passed permitting Clarke himself
to do all that trustees could do. Then follows another memorial for
another aiding act, to permit Clarke to mortgage the premises, on
account of sales' not having been made and because they could not
be made for a fair price. Permission is given. After other orders
more numerous than the acts under which they were made, an order is
given permitting Clarke, upon an agreed valuation between himself
and his creditors, subject to the approval of a master in chancery,
to convey the premises to his creditors. Further, that he may apply
the money arising from the sales in payment of his debts and invest
the surplus in such manner as he may deem proper to yield an income
for the support of his family. Thus importunity, beginning with an
intention to obtain consummate control over a part of the devised
premises, triumphs in the privilege given to the children to have
any surplus invested for their use which may remain out of the
sales of their estate after the payment of their father's
debts.
The best commentary upon the whole is that its first result was
a conveyance from Clarke to De Grasse for much of the property,
without the master's approval, for worthless wild tax lands in
Pennsylvania or Virginia, for some money lent, and for articles
furnished Clarke from De Grasse's oyster house. And De Grasse held
on to the conveyance in defiance of the declaration of the master
that he would not approve the deed for such a consideration.
It is under that conveyance, and another from De Grasse to him,
that the present defendant in ejectment claims title to the
premises in dispute. They do not give to him any title, either
legal or equitable, against the fee simple absolute which the
Page 49 U. S. 540
children of Thomas B. Clarke have had in the devised estate
since the death of their father.
Whenever the order of the chancellor permitting Clarke to convey
the estate to creditors or to apply the money arising from it in
payment of his debts has been considered in the courts of New York,
it has been intimated that the act did not give the chancellor the
power to give such an order. Judge Bronson, in
Clarke v. Van
Surlay, 15 Wend. 445, says so. The same may be gathered from
the opinion of chancellor Walworth in
Cochran v. Van
Surlay, 20 Wend. 384. Mr. Senator Verplanck, in the same case,
sitting in the Court for the Correction of Errors, says
"I have already intimated my strong impression, at least as at
present advised, that the orders of the chancellor were not in
conformity with the acts, and that the third act still confined the
chancellor to allow no other application of the proceeds of the
sale than was valid under the acts heretofore passed. . . . The
order made under the first two acts was in contravention of the
statute so far as it allowed a part of the proceeds of the sale to
be applied to the payment of Clarke's former debts. Nor do I think
that the words in the act of 1816 ratified the former orders, or
extended the chancellor's powers in future orders, as to the
liberty of applying the principal of the funds, of which, according
to the acts heretofore on this subject, the interest only was to be
expended."
In this point, then, this Court, in the opinion it now
expresses, will not differ from the courts in New York.
But we do differ with the learned judges and senator upon
another point common to the case before us and those cases in which
they expressed their opinions. Our conclusion, however, contrary to
theirs, will be put upon grounds not suggested when they acted on
those cases. Indeed, our point of difference is not concerning a
principle or rule in chancery, but as to the application of the
rule in
Cochran v. Van Surlay. It was said in that case,
and it was the foundation of the judgment in it, that a decree in
chancery could not be looked into in a collateral way for the
purpose of setting aside rights growing out of it. We concur that
neither orders nor decrees in chancery can be reviewed as a whole
in a collateral way. But it is an equally well settled rule in
jurisprudence, that the jurisdiction of any court exercising
authority over a subject may be inquired into in every other court,
when the proceedings in the former are relied upon, and brought
before the latter, by a party claiming the benefit of such
proceedings. The rule prevails, whether the decree or judgment has
been given in a court of admiralty, chancery, ecclesiastical court,
or court of common
Page 49 U. S. 541
law, or whether the point ruled has arisen under the laws of
nations, the practice in chancery, or the municipal laws of
states.
This Court applied it as early as the year 1794, in the case of
Glass v. Sloop
Betsey, 3 Dall. 7. Again, in 1808, in the case of
Rose v. Himely,
4 Cranch 241. Afterwards, in 1828, in
Elliott v.
Piersol, a case of ejectment, 1 Pet. 328,
26 U. S. 340.
This is the language of the court in that case -- not stronger
though, than it was in the preceding cases:
"It is argued that the circuit court of the United States had no
authority to question the jurisdiction of the county court of
Woodford County, and that its proceedings were conclusive upon the
matter, whether erroneous or not. We agree, if the county court had
jurisdiction, its decision would be conclusive. But we cannot yield
assent to the proposition, that the jurisdiction of the county
court could not be questioned, when its proceedings were brought
collaterally before the circuit court. Where a court has
jurisdiction, it has a right to decide every question which occurs
in the cause, and whether its decision be correct or otherwise, its
judgment, until reversed, is regarded as binding in every other
court. But if it act without authority, its judgments and orders
are nullities; they are not voidable, but simply void, and form no
bar to a recovery sought, even prior to a reversal, in opposition
to them; they constitute no justification, and all persons
concerned in executing such judgments, or sentences, are considered
in law as trespassers."
This distinction runs through all the cases on the subject.
This Court announce the same principle in
Wilcox
v. Jackson, 13 Pet. 499, and twice since in the
second and third volumes of Howard's Supreme Court Reports.
Shriver's Lessee v.
Lynn, 2 How. 59;
Lessee of
Hickey v. Stewart, 3 How. 750.
In the case in 3 Howard the defendant in ejectment wished to
protect himself by a record in a prior chancery suit between
himself and the plaintiff, in which a decree had been made in favor
of the former, upon which the chancery court had issued a
habere facias possessionem, to put him in possession of
the land. The record in the circuit court was admitted as evidence,
the plaintiff objecting, and the court gave judgment for the
defendant in ejectment. The case was brought here upon a writ of
error. And this Court said that as the defendant claimed property
on the premises in dispute under the record from the court of
chancery it would inquire collaterally into the jurisdiction of
that court to try the question of title. And it ruled that the
court had no jurisdiction for such a purpose,
Page 49 U. S. 542
that the circuit court erred in permitting the record to be read
to the jury as evidence in behalf of the defendant, and reversed
the judgment.
The point in
Cochran v. Van Surlay and in this case is
whether the chancellor did or did not, in a case for which he had
jurisdiction for certain purposes, exceed the jurisdiction given to
him for the special purposes of the case. Jurisdiction may be in
the court over the cause, but there may be an excess of
jurisdiction asserted in its judgment. That was
Shriver's
Case, 2 How. 43.
Then the point of inquiry now is, exactly that which the judges
in the cases in 15 and 20 Wendell admitted to be a very doubtful
exercise of power by the chancellor. That is whether the order
permitting Clarke to convey the property to his creditors, at a
valuation to be agreed upon between them, and to apply the proceeds
of sales and mortgages to the payment of his debts, was an order
within the power given to him by the acts. Judge Bronson will not
admit it. Chancellor Walworth puts it hypothetically -- if the
chancellor has not exceeded his jurisdiction, but has merely erred
upon the question whether such a sale as he ordered would
eventually be for the benefit of the infants, Justice Bronson was
clearly right in supposing that the decision of the court of
chancery could not be reviewed in this collateral way. Mr. Senator
Verplanck says that the order under the first two acts was in
contravention of the statutes, nor does he think that the act of
1816 extended the chancellor's power as to the proceeds.
Upon the point of looking into the jurisdiction of a court
collaterally, when a right of property is claimed under its
proceedings, we must add, that it prevails in New York just as it
does in the courts of England and in the courts of the United
States. In
Latham v. Edgerton, 9 Cow. 227, it is said
"The principle that a record cannot be impeached by pleading is
not applicable when there is a want of jurisdiction. The want of it
makes a record utterly void and unavailable for any purpose. The
want of jurisdiction is a matter that may always be set up against
a judgment when it is to be enforced, or when any benefit is
claimed under it."
See also, to the same point,
Fenton v.
Garlick, 8 Johns. 194;
Kilbourne v. Woodworth, 5
id. 37; 19
id. 39; 6 Wend. 446. And in the case
of
Rogers v. Diel, 6 Hill 415 -- a case of ejectment --
the Chief Justice ruled that the power of a court of chancery to
order the real estate of an infant is derived entirely from the
statute. Thus sustaining an objection collaterally to proceedings
and a decree in chancery which were regular in
Page 49 U. S. 543
form, but void in fact, on account of the chancellor's not
having jurisdiction or authority to make such a decree.
The operation of every judgment depends upon the jurisdiction of
the court to render it. Though there may be jurisdiction for
certain purposes in a cause, that jurisdiction may be exceeded in
the judgment. And whenever the right to property is claimed to have
been changed under a judgment or decree by a court, and it is set
up as a defense in another court, the jurisdiction of the former
may be inquired into. The rule is that where a limited tribunal
takes upon itself to exercise a jurisdiction which does not belong
to it, its decision amounts to nothing, and does not create a
necessity for an appeal.
Attorney General v. Lord Hotham,
Turn. & Russ. 219.
And such is the rule in New York, as has been shown by the
citation of cases from the reports of that state. But it has been
argued, that the rule will not apply in the cases now in hand,
because it has been decided by the highest tribunal in New York,
that the chancellor had jurisdiction, under the acts for the relief
of Clarke, to give the order permitting him to sell the property to
his creditors in payment of his debts.
It is difficult for us to admit that the cases of
Clarke v.
Van Surlay, in 15 Wend., and
Cochran v. Van Surlay,
in 20
id. were meant to decide that point, when each judge
whose opinion has been reported in those cases expresses an opinion
amounting almost to a denial that the chancellor had jurisdiction
to order or permit a sale in payment of Clarke's debts. But admit
that the New York cases are otherwise, we cannot admit that the
rule hitherto observed in the court, of recognizing the judicial
decisions of the highest courts of the states upon state statutes
relative to real property as a part of local law, comprehends
private statutes or statutes giving special jurisdiction to a state
court for the alienation of private estates. It has never been
extended to private acts relating to particular persons, for the
reason, that, whatever a court in a state may do in such a case,
its decision is no part of local law. It concerns only those for
whose benefit such a law was passed, and because the decision under
it is no rule for any other future case. It may from analogy be
cited for the interpretation of another private law of a like kind,
but then the utmost extension of it would be, that there would be
two judgments in two private cases, which only show more plainly
that no local law had been made by both.
The case put before us, upon several of the points certified, is
this. The State of New York passes certain acts for the relief of
Thomas B. Clarke, in relation to a devise of land, and
Page 49 U. S. 544
directs that the acts shall be carried into execution by the
chancellor of the state. In the course of the proceedings for that
purpose, he orders that the trustee, Clarke, may sell or mortgage
particular portions of the land, and permits him to convey parts of
it in payment of any debt or debts, upon a valuation to be agreed
on between himself and his creditors, and that Clarke may apply the
proceeds of sales to the payment of his debts.
The defendant in this action says he bought from De Grasse. It
is proved that De Grasse was a creditor of Clarke, and that the
consideration for Clarke's conveyance to him, except the wild
lands, was the amount that Clarke owed to him. Then, in order to
sustain Clarke's conveyance to De Grasse, he introduces the acts
for the relief of Clarke, and the orders of the chancellor upon
them.
This evidence raises the question, whether or not the chancellor
had jurisdiction to give an order, permitting Clarke to convey any
part of the property in payment of a debt. After the most careful
perusal of the acts and orders, we have concluded that the
chancellor had not the jurisdiction to give an order, permitting
Clarke to convey any part of the devised premises in satisfaction
of his debts, and that neither De Grasse nor his alienee, Berry,
can derive from the order, or the conveyance by Clarke to De
Grasse, any title to the premises in dispute. This conclusion
substantially answers the first four points certified, but answers
will be given in more precise form hereafter.
We now proceed to the other points certified.
Upon the first of them, relating to the premises having been
parted with by Clarke to De Grasse, upon a consideration other than
cash, we remark that sale is a word of precise legal import, both
at law and in equity. It means at all times, a contract between
parties, to give and to pass rights of property for money -- which
the buyer pays or promises to pay to the seller for the thing
bought and sold. Noy's Max., ch. 42; Shep.Touch. 244. No departure
from the manner in which a sale is directed to be made, either
under a judgment at law or a decree in equity, is permitted.
In the acts for the relief of Clarke, sale is the word used and
frequently repeated. No other term, in reference to the power given
to sell a part of the devised premises, is used. The chancellor's
order is that Clarke is permitted to sell. No words are used in the
acts to qualify the term sale. There is not anything to raise a
presumption, that Clarke was permitted to sell for anything else
than cash. Even the debts of Clarke,
Page 49 U. S. 545
which the chancellor thought he had the jurisdiction to order
the payment of, are directed to be paid out of the proceeds of the
sale.
We think, therefore, that the deed executed by Clarke to De
Grasse, being upon a consideration other than for cash, is not
valid to pass the premises in dispute to De Grasse, or to his
alienees.
Another point certified is whether Clarke, having previously
mortgaged the premises in fee to Henry Simmons, had competent
authority to sell and convey the same to De Grasse. If Clarke could
not convey the premises for which he was the trustee to a creditor
in payment of a debt due when the order of the chancellor was
given, his having united with the master in chancery in mortgaging
the premises in fee to Simmons, as a security for a debt, could
not, from any transfer of it by the mortgagee, alter its character
as a security for a debt, so as to permit the assignee, who by
taking an assignment of the mortgage became a creditor, or any
other person who became his assignee, to receive from Clarke, a
conveyance of the premises in discharge of the mortgage. Simmons
was a creditor of Clarke. The assignee of his claim could only be a
creditor in his place, having no other right to be paid by a
conveyance of the premises, than the original creditor had. But in
truth the mortgage was discharged, and being so, Clarke was
replaced in his trustee relation to the premises, precisely as he
stood before the mortgage was made. He could not then, because the
land had been mortgaged in fee to Simmons, have any authority to
sell and convey the premises to De Grasse, for the consideration of
the debt due by him to De Grasse. But if by the question it was
meant that, because Clarke had mortgaged to Simmons, he could not
mortgage or sell again after a release from the mortgagee, then we
conclude that Clarke's having previously mortgaged the premises in
fee to Simmons, did not prevent him, after a release from the
mortgagee, from selling and mortgaging the premises again, provided
the same was not done in payment of a debt, or as security for a
debt.
The eighth point may be dismissed with two observations. If the
conveyance from Clarke to De Grasse did not give to him a title,
and we have said it did not, De Grasse could not convey a title in
the premises to a third person, though value was received by him
from the latter. Besides, in this case the paper under which De
Grasse claims has recitals in it, which would exclude any person
buying from him from saying that he had not notice enough to put
him upon an inquiry into the title of De Grasse.
Page 49 U. S. 546
We are now brought to the consideration of the point, whether
the deed to De Grasse is valid, it having no certificate endorsed
upon it that it was approved by a master in chancery. It involves
what has been the practice in courts of equity, which, from long
standing, habitual use, and uniform judicial acquiescence, has
become law -- law in England, law in New York, law for the courts
of equity of the United States, and law in every state of the
Union, except as it may have been modified by the legislation of
the states.
The usual mode of selling property under a decree or order in
chancery is a direction that it shall be sold with the approbation
of a master in chancery, to whom the execution of the decree in
that particular has been confided. It matters not whether the sale
is public or private by a person authorized to make it. Not that
the approbation of the master in either case completes a title to a
purchaser. It is only the master's approval of the sale, and is one
step towards a purchaser's getting a title. Before, however, a
purchaser can get a title, he must get a report from the master
that he approves the sale, or that he was the best bidder,
accordingly as the sale may have been made either privately or at
auction. That report then becomes the basis of a motion to the
court, by the purchaser, that his purchase may be confirmed. Notice
of the motion is given to the solicitors in the cause, and
confirmation
nisi is ordered by the court -- to become
absolute in a time stated, unless cause is shown against it. Then,
unless the purchaser calls for an investigation of the title by the
master, it is the master's privilege and duty to draw the title for
the purchaser, reciting in it the decree for sale, his approval of
it, and the confirmation by the court of the sale, in the manner
that such confirmation has been ordered.
We have been thus particular, for the purpose of showing the
offices of the master in relation to a sale, and what is meant by
subjecting a sale to the approval of a master, and to show that
such a sale, until approved by the master and confirmed by the
court, gives no title to a purchaser of an estate, which he may
have bargained to buy. We do not mean to say, that such cautionary
proceedings upon sales under decrees and orders in chancery may not
be dispensed with, by a special order of the chancellor to
pretermit them; but that such are the proceedings, when no special
order has been given. Nor do we mean to have it implied that a
special order for the master's approval of the sale was not given
in this case.
The proviso in the order of 15 March, 1817, is
"Provided, nevertheless, that every sale, and mortgage, and
conveyance
Page 49 U. S. 547
in satisfaction, that may be made by the said Thomas B. Clarke
in virtue hereof, shall be approved by one of the masters of this
Court, and that a certificate of such approval be endorsed upon
every deed or mortgage which shall be made in the premises."
Our interpretation of the order is that the approval of the
master, and the certificate of it, are not confined to a conveyance
in satisfaction of debt, but that the chancellor meant that the
approval and certificate should be given and be endorsed upon every
deed of sale and mortgage, as well as upon conveyances in
satisfaction of debts.
It was also argued, that the sale to De Grasse was a judicial
sale. Unless a legal term of definite and unmistakable certainty in
all the past application of it shall be made to comprehend a
transaction which it has never included before, the sale by Clarke
to De Grasse was not a judicial sale. By judicial sale is meant one
made under the process of a court having competent authority to
order it, by an officer legally appointed and commissioned to
sell.
The sale by Clarke to De Grasse was an attempt by both of them
to evade the order of the chancellor that every sale &c. made
by Clarke shall be approved by one of the masters of this Court and
that a certificate of such approval be endorsed upon every deed or
mortgage that may be made in the premises. And in no event could a
sale by Clarke in conformity with the order have been a judicial
sale, but simply a sale by a private individual authorized to make
it under acts passed for his relief and assented to by the
chancellor for the purpose of ultimately substantiating and
verifying by a court of record the transfer of the property. It was
a sale made without process, not by an officer in any sense of the
word, but by a private person to a private person, after
negotiation between them, and done by one of them, who had only in
a particular way the assent of the chancellor to sell.
Now if, in the instance of Clarke's conveyance to De Grasse,
none of the usual cautions have been taken by the latter to make
the conveyance complete -- which, for the sake of the present
point, we are only supposing might have been done, subject to our
conclusion that Clarke could not have conveyed the premises to him
as a creditor -- whose fault is it that they were not taken? and
how much more is De Grasse's fault aggravated from the testimony in
the cause, which proves that he was told by the master, Mr.
Hamilton, from the start of his buying or meaning to buy from
Clarke, that he would not approve the sale, and make such a
certificate of it, upon the paper
Page 49 U. S. 548
given to him by Clarke, upon such a consideration for the
property?
We find the answer to our inquiries in the long experience and
practice in chancery. In any sale under a decree or order in
chancery, the purchaser, before he pays his money, must not only
satisfy himself that the title to the property to be sold is good,
but he must take care that the sale has been made according to the
decree or order.
Colclough v. Sterum, 3 Bligh 181;
Lutwiche v. Winford, 2 Bro.C.C. 251. If he takes a title
under an imperfect sale, he must abide the consequence.
In this instance, there was a perverse disregard by De Grasse of
the order of the chancellor and the caution of the master. His
conduct puts it out of his power, or anyone claiming under him, to
complain, if Clarke's conveyance shall be declared to be invalid,
on account of the master's disapproval of the sale and his refusal
to put a certificate of approval of it upon the deed to De
Grasse.
Mr. Hamilton, the master's, testimony in the case is that Clarke
and De Grasse came to him to approve the deed which it is his
impression had been filled up by Clarke, and that upon ascertaining
from them the consideration, he refused to do so. The deed too
recites a consideration of two thousand dollars, and it is proved
that the consideration was, in fact, wild worthless tax lands in
Virginia or Pennsylvania, an account for articles furnished to
Clarke by De Grasse, and some items of money lent. The witness says
both Clarke and De Grasse came together more than once to his
office on the subject, and that he was besought by them frequently
to approve the deed; that he would not do so. It is the case of an
anxious creditor, holding on to what he could get from an insolvent
and prodigal debtor in spite of what he knew to be the only terms
upon which the debtor could convey.
We think that the sale by Clarke was a nullity without such
approval by the master, to whom the execution of the order was
confided by the chancellor.
"Looking merely to the parties, it is a nullity because it wants
the assent of the chancellor, through the officer whom he
substitutes for himself to give it. Looking to the conveyance, it
is void for the want of the performance of that condition precedent
which was made essential not merely to the commencement of the
estate, but to the very creation of the power of sale."
It is under that conveyance and another from De Grasse to him
that the defendant in ejectment claims title to the premises in
dispute. They do not give to him any title, either legal or
equitable.
Page 49 U. S. 549
We answer, then, to the points certified to this Court for its
decision:
To the first point, we rule that the act of the legislature
stated in the case divested the estate of the trustees under the
devise in the will of Mary Clarke, but did not vest the whole
estate in fee, or any part of it, in Thomas B. Clarke.
To the second point, we rule, that the authority given by the
said acts to the trustee to sell, was a special power, to be
strictly pursued, and that the trustee was not vested with an
absolute power of alienation, but only with the power to sell with
the assent of the chancellor, subject, in all that the trustee
might do, by way of sale or otherwise, concerning the premises, to
reexamination and account in equity.
To the third point we rule that so much of the order set forth
in the case as having been made by the chancellor, which permitted
Thomas B. Clarke to convey any part or parts of the southern moiety
of the estate, or any other part of the estate, in payment and
satisfaction of any debt or debts due and owing from Thomas B.
Clarke, upon a valuation to be agreed between himself and his
respective creditors provided nevertheless that every sale and
mortgage and conveyance in satisfaction that may be made by the
said Thomas B. Clarke in virtue hereof shall be approved by one of
the masters of the court, and that a certificate of such approval
be endorsed upon every deed or mortgage that may be made in the
premises or which authorized Thomas B. Clarke to receive and take
the moneys arising from the premises and apply the same to the
payment of his debts and to invest the surplus in such manner as he
may deem proper to yield an income for the maintenance and support
of his family was not authorized or in conformity to the acts of
the legislature as they are set forth in the record. That these
orders, however, are to be regarded as the acts of a court of
chancery, exercising a special jurisdiction under private acts,
which did not give to the chancellor jurisdiction to pass the
orders as they have been stated in this answer to the third
point.
To the fourth point, we rule that the chancellor had authority
under the acts to assent to sales and conveyances of the estate by
the trustee, but not to any sale or conveyance, on any other
consideration than for cash paid on said conveyance.
To the fifth point, we rule, that the deed executed by Thomas B.
Clarke to George De Grasse, for the premises in question, is not
valid, it having been made for a consideration other than for cash
paid on the purchase.
To the sixth point, we rule, that, if the deed to De Grasse
Page 49 U. S. 550
had been otherwise valid, which we have said was not, it would
not be valid without having a certificate endorsed thereon, that it
was approved by Mr. Hamilton, the master in chancery, to whom the
execution of the order was confided by the chancellor.
To the seventh point, we rule, that the mortgage in fee of the
premises by Clarke to Simmons, did not so exhaust the power as
trustee, that he might not, after a release from the mortgagee,
sell or mortgage the property again; but it was not in the
trustee's power to sell to De Grasse for a debt.
To the eighth point, we rule, that the subsequent conveyance of
the premises, as set forth in the case, made by George De Grasse,
would not give to his grantee, or the grantee's assigns, a valid
title against the plaintiffs in ejectment.
MR. CHIEF JUSTICE TANEY dissented from the opinion of the Court
in this case, and also in the subsequent cases of
Williamson
and Wife v. Irish Presbyterian Congregation of New York and of
Charles A. Williamson and Wife, Rupert J. Cochran and Wife, and
Bayard Clarke v. George Ball, and concurred with MR. JUSTICE
NELSON.
MR. JUSTICE CATRON also dissented in the above enumerated cases,
and concurred with the opinion of MR. JUSTICE NELSON.
MR. JUSTICE NELSON.
I am unable to concur in the judgment of a majority of the Court
in this case, and shall therefore proceed to state the grounds of
that dissent with as much brevity as the nature and importance of
the questions involved will admit.
I shall confine the examination to those grounds which I regard
as decisive in the determination of these questions, without
stopping to discuss several other points made upon the argument and
which have a more remote bearing upon the case.
The will of Mary Clarke, made and published April 6, 1802, lies
at the foundation of this controversy, and it is necessary
therefore to recur for a moment to its provisions.
She devised to three trustees and their heirs a part of her farm
at Greenwich, called Chelsea, then situate in the vicinity of the
City of New York, now a part of it, embracing some forty acres of
land, together with a dwelling house in town, in trust, to receive
the rents and profits, and pay the same to Thomas B. Clarke, a
grandson, during his life; and after his decease, to convey the
estate to his children living at his death; and if he should leave
no children, then, in trust, to convey the same to Clement C. Moore
and his heirs.
Page 49 U. S. 551
Thomas B. Clarke, the tenant for life, was married in 1802, and
in 1814 had a family of six children, the eldest eleven years of
age, and on 2 March of that year applied to the Legislature of New
York for relief on the ground that the property devised was, in its
then condition, nearly unproductive and incapable of being improved
so as to yield an adequate income for the maintenance and support
of himself and family.
The trustees, and C. C. Moore joined in the application.
On 1 April, 1814, an act was passed for his relief, authorizing
the court of chancery to appoint trustees in the place of those
named in the will and providing for a sale of a moiety of the
estate by the trustees, under the direction of the chancellor, the
proceeds to be invested in stocks or real security upon the trusts
in the will, and the income to be applied to the maintenance and
support of the family of Clarke and the education of his children.
Nothing was done under this act.
On 21 February, 1815, Clement C. Moore the ultimate remainderman
under the will, released and quitclaimed all his interest in the
estate to Clarke, and on a second application to the legislature
for relief, a supplemental act was passed, on 24 March, 1815,
reciting in the preamble the release and substituting Clarke as the
trustee of the estate in place of those provided for in the
previous act and authorizing a sale by the trustee of a moiety of
the estate, with the assent of the chancellor, and providing for
the investment of so much of the proceeds in Clarke, as trustee, as
the chancellor should direct, the income of the investment to be
applied to the maintenance and support of the family, as in the
previous act.
On an application to the chancellor under this and the previous
act on 28 June, 1815, an order of reference to one of the masters
in chancery was made directing him to inquire into the debts of
Clarke, distinguishing between those contracted for the maintenance
of his family and the education of his children, and into the then
condition of the estate devised under the will, and the means
possessed by Clarke to maintain and support his family, other than
from the rents and profits of the estate; which report was made
accordingly. And on the coming in and filing of the same, the
chancellor, on 3 July, ordered a sale of a moiety of the estate,
together with the house and lot in town; and that so much of the
proceeds as might be necessary for the purpose be applied, under
the direction of one of the masters of the court, to the payment
and discharge of the debts then owing by Clarke, and to be
contracted for the necessary purposes of the family, to be proved
before the said masters, and the residue to be invested and the
income applied as therein provided by the order.
Page 49 U. S. 552
Nothing was done under this order except the sale of a few lots,
the sales having been superseded by the master for want of bidders,
at the request of the trustee, to prevent the sacrifice of the
property. And on application to the legislature, another act was
passed on 29 March, 1816, authorizing Clarke, as trustee, under the
order already granted by the chancellor or any subsequent orders
that might be granted, either to mortgage or sell the premises
which the chancellor had permitted or might permit him to sell and
to apply the proceeds to the purposes required or that might be
required by the chancellor under the previous acts of the
legislature.
On 15 March, 1816, on an application, the chancellor ordered
that Clarke be authorized to mortgage or sell the moiety of the
estate, as provided for in the several acts, as might be deemed
most beneficial to all parties concerned, and also to convey any
part of it in payment and satisfaction of any debt owing by him,
upon a valuation to be agreed on between him and his creditors,
provided that every sale, and mortgage, and conveyance in
satisfaction that may be made by him shall be approved by one of
the masters of the court, and that the certificate of such approval
be endorsed on such deed or mortgage that may be made in the
premises. And further that he apply the proceeds to the payment of
his debts and invest the surplus in such manner as he may deem
proper to yield an income for the support and maintenance of his
family.
On 2 August, 1821, Clarke, under this order of the court, sold
and conveyed the lot in question, among others, to George De Grasse
for the consideration on the face of the deed of $2,000. No
approval of the master appeared to have been endorsed on the
deed.
The defendant holds through intermediate conveyances from De
Grasse, and is admitted to be a
bona fide purchaser.
I have thus stated the material facts out of which the important
questions involved in this case arise, and I have done so for the
reason that in my judgment the statement itself presents a history
of legislative and judicial proceedings which demonstrate that the
legal title to the premises in controversy is in the defendant upon
well established principles of law -- a title derived under a
judicial sale, made in pursuance of an order or judgment of one of
the highest courts in a state in the exercise of its general
jurisdiction.
This plain proposition is manifest on the face of the record.
Every order made by Chancellor Kent was made in his court according
to the established forms of proceeding and rules of the court.
Page 49 U. S. 553
The chancellor had previously determined,
In the Matter of
Bostwick, 4 Johns.Ch. 100, that a proceeding of this character
could be properly instituted by petition instead of by bill, as he
found it to be in conformity with the established practice of the
Court of Chancery in England.
The practice there had not been uniform, depending somewhat upon
the amount of the estate, and a distinction had been made at one
time between real and personal estate, but the later authorities
had generally concurred in allowing the institution of the
proceeding by petition. 2 Story Eq. § 1354, 582, and cases there
referred to; Macpherson on Infants, ch. 22, § 1, and cases.
In every instance, the application took the usual course of a
reference to one of the masters of the court, directing him to
inquire into the truth of the allegations in the petition and
report thereon, and upon the coming in and filing of the report,
the order was entered.
All the powers and machinery of the court were used in
conducting the proceedings, and which, while they facilitate the
orderly dispatch of business, at the same time enable the parties
to present their case in the fullest and most authentic form, for
the judgment of the court.
Even if a bill had been filed in this case -- and we have seen
that it might have been, in which event it would hardly have been
pretended the order or decree of the court could have been
questioned collaterally -- the forms of the proceeding could not
have been more strictly observed. Indeed the petition in the
particular case is nothing more than a substitute for the bill, as
affording a more speedy and economical mode of instituting the
proceedings.
Originally it was supposed that a bill was indispensable,
Fonbl.Eq., Book 2, part 2, ch. § 1, note
d, as it still is
in England, where the estate of the infant is large, or it is
doubtful as to the fund. 15 Ves. 445; Macpherson on Infants 214 and
cases.
Any party interested in the order had a right to appeal from the
decision of the chancellor to the Court for the Correction of
Errors, as appeals may be taken from interlocutory as well as final
decrees according to the laws and practice in New York.
That an appeal might have been taken in the case is the
established practice, and would be doubted by no lawyer there, and
which, of itself, would seem to be decisive of the nature and
character of the jurisdiction exercised by the chancellor.
Being, therefore, a judicial sale under the judgment of one of
the highest courts of the state, the principle is fundamental
Page 49 U. S. 554
that the regularity of the proceedings cannot be inquired into
in this collateral way.
The general impression of all the cases on this head, says Lord
Redesdale, is that the purchaser has a right to presume that the
court has taken the steps necessary to investigate the rights of
the parties, and that it has on investigation properly decreed a
sale, 1 Sch. & L. 597. And, says Mr. Justice Thompson, in
delivering the opinion of this Court in
Thompson v.
Tolmie, 2 Pet. 168,
"If the purchaser was responsible for the mistakes of the court
in point of fact, after it had adjudicated upon the facts and acted
upon them, these sales would be snares for honest men. The
purchaser is not bound to look farther back than the order of the
court. He is not to see whether the court was mistaken in the
facts."
The defendant in that case held the title under a judicial sale,
ordered by the court in a case of partition, where the
commissioners had reported that partition could not be made without
loss. The suit was brought by the heirs, who set up, as
invalidating the title of the defendant, that neither of the
children of the intestate was of age at the time of the sale. The
statute expressly forbade it until the eldest became of age. The
other ground was that the sale had been confirmed only
conditionally. The court held the parties concluded by the order
and sale.
I shall not pursue the examination of this branch of the case
further, as the principle upon which it rests has become
incorporated into the very elements of the law. I have referred to
these two cases simply to illustrate the strength and force of the
principle in protecting the title of a
bona fide purchaser
standing in the relation of the present defendant.
But it has been argued that Chancellor Kent, while sitting in
his court administering the law under these acts of the Legislature
of New York, has misconstrued or misapprehended the nature of his
jurisdiction, and that instead of sitting as a court, he was acting
in the subordinate character of a commissioner, or as an individual
outside of his court; that it was an extraordinary power, conferred
upon him by a special statute, prescribing the course of
proceeding; and that any departure therefrom, or error in the
proceedings, rendered the order null and void, and of course all
acts done under it.
It was even intimated, though not argued, that the statutes
themselves were unconstitutional; that it was not competent for the
legislature to authorize the sale of the real estate of infants for
their maintenance and support, or for their education or
advancement in life.
Page 49 U. S. 555
We suppose this power will be found to exist in every civilized
government that acknowledges a superintending and protecting power
over those of its citizens or subjects who are disabled through
infancy or infirmity from taking care of themselves, and that where
they possess the means of themselves, they will be applied, under
the direction of the proper authority, to their support and
nourishment.
No one doubts the power of the government to take the property
of the citizen to support the paupers of the state, and surely it
can hardly be regarded as a very great stretch of power to provide
for the application or it to the maintenance and support of the
owner or proprietor himself or even to the support of the members
of the same family.
But I shall not go into this question, for whatever may be the
objections to the exercise of the legislative powers, we are not
aware of any on the ground of repugnancy to the Constitution of the
United States or, if made, that there is any foundation for it, and
as to the State of New York, where the question alone must be
determined, no doubt is entertained there in respect to it by any
department of the government.
But to recur to the jurisdiction of the chancellor.
The court of chancery possesses an inherent jurisdiction which
extends to the care of the persons of infants so far as is
necessary for their protection and education and also to the care
of their property, real and personal, for its due management and
preservation and proper application for their maintenance.
The court is the general guardian, and, on the institution of
proceedings therein involving rights of persons or property
concerning them, they are regarded as wards of the court, and as
under its special cognizance and protection, and no act can be done
affecting either person or property or the condition of infants
except under the express or implied direction of the court itself;
and every act done without such direction is treated as a violation
of the authority of the court and the offending party deemed guilty
of a contempt, and treated accordingly. 2 Story Eq. §§ 1341, 1352,
1353; 3 Johns.Ch. 49; 4
id. 378; 2
id. 542; 6
Paige 391, 366; 10 Ves. 52; Macpherson on the Law of Infants 103,
App'x 1;
Hughes v. Science, 3 Atk. 601,
S.C.
If the father is not able to maintain his children, the court
will order maintenance out of their own estate, and the inability
need not depend upon the insolvency, but inability, from limited
means, to give the child an education suitable to the fortune
possessed or expected.
Buckworth v. Buckworth, 1 Cox
Page 49 U. S. 556
80;
Jervoise v. Silk, Coop. 52. The allowance will be
made although the devise or settlement under which the property is
held contains no direction for maintenance,
ib., but even
directs the income to accumulate. 5 Ves. 194, 195, n. 197, note; 10
id. 44; 4 Sim. 132; Macpherson, ch. 21, § 2, 223.
It is also settled that where there are legacies to a class of
children, for whom it would be beneficial that maintenance should
be allowed, though the will does not authorize it, but directs an
accumulation of the income, and the principal, with the
accumulation, to be paid over at twenty-one, with survivorship in
case any should die under age, the court will direct maintenance,
11 Ves. 606; 12
id. 204; 2 Swanst. 436; but if there is a
gift over, it will not be allowed without the consent of the
ultimate devisee. 14 Ves. 202; 5
id. 195, n.; Ward on
Legacies 303; Macpherson, pp., 232, 233, 234.
So the court will break in upon the principal where the income
is insufficient for maintenance and education, 1 Jac. & W. 253;
1 Russ & M. 575, 499, and will break in upon it for past
payments, 2 Vern. 137; 2 P.Wms. 23, and where the father is unable
to maintain his children and has contracted debts for this purpose
or for their education, the court will direct a reimbursement out
of children's estate, 6 Ves. 424, 454; 1 Bro.C.C. 387; Macpherson,
sec. 9, 246, and will, if the father or mother is in narrow
circumstances, in fixing the allowance, have regard to them,
increasing it for the benefit of the family, 1 Ves. 160; 2 Bro.C.C.
231; 1 Beav. 202; 1 Cox 179.
The management and disposition of the estates of infants, which
I have thus referred to and briefly stated, with the authorities,
are among the mass of powers upon this subject which belong to the
original and inherent jurisdiction of the court of chancery. They
relate to their personal and the income of their real estate, the
court having no inherent power to direct a sale of the latter for
their maintenance or education; that power rests with the
legislature. It will be seen, therefore, that the only additional
authority conferred upon the chancellor by the acts of the
legislature in question was the power to direct the sale of the
real estate -- to convert it into personalty for the purposes
mentioned. It was but an enlargement, in this respect, of the
existing jurisdiction of the court, placing the real estate, for
the purpose of maintenance and education, upon the same footing as
the personalty. With this exception, every power conferred or
exercised under the acts in question, in the management and
application of the fraud, as we have been, belonged inherently to
its general jurisdiction, and its exercise in the particular case
was as essential for the proper management and
Page 49 U. S. 557
preservation and application as in any other that might come
before the court.
We can hardly suppose that it was the intention of the
legislature to confer authority upon the chancellor in one capacity
to sell and in another to manage and apply the proceeds for the
benefit of the children. And yet such must be the conclusion unless
we suppose it was intended that the fund itself should be
administered out of court, and under the direction of the
chancellor as a commissioner.
I must be permitted, therefore, to think that Chancellor Kent,
familiar to his mind as were the powers and duties belonging to his
court over the estates of infants, as well as in respect to every
other branch of equity jurisprudence, did not mistake or
misapprehend the nature of the powers and duties enjoined upon him
under the acts in question. And that he might well conclude that
the authority to sell the real estate of the children for their
maintenance and education was but an enlargement of his general
jurisdiction in the management and disposition of their property
for the purposes mentioned. Indeed the very objects of the sale
pointed directly to this jurisdiction. How apply the fund for
maintenance and education -- as commissioner, or chancellor?
Certainly he could not doubt as to the intent or objects of the
acts in this respect. It was a fund to be brought into the court,
and the children were to become wards of the court, to be cherished
and protected by its powers.
In addition to the judgment of Chancellor Kent himself, we have
also the judgments of the two highest courts in New York in the
case of
Clarke v. Van Surlay, 15 Wend. 436, and
Cochran v. Same, 20
id. 365,
S.C.
That was a suit involving the same title, brought by one of the
heirs of Thomas B. Clarke, and depending upon the same evidence. It
was first decided in the supreme court of that state in 1836, and
in the Court for the Correction of Errors in 1838.
It was determined by both courts that the title of the purchaser
was valid on the ground that he held under a judicial sale directed
by the chancellor in the exercise of his general jurisdiction and
that, having jurisdiction of the subject matters, if any error was
committed either in his construction of the acts of the legislature
or in the application of the funds, it was not inquirable into in a
court of law. The order was conclusive, till set aside, upon all
the parties.
No member of either court that expressed an opinion entertained
a doubt about the nature of the jurisdiction. The judgment
Page 49 U. S. 558
had the concurrence of chancellor Walworth, his learned
successor, who has presided in that court with distinguished
ability for the last twenty years, and is familiar with its
organization and powers. If it is possible, therefore, for a
judicial question involving the construction of state laws to be
settled by learning or authority in its own courts, it would seem
that the one before us has been.
But there is another view of this branch of the case which, in
my judgment, is equally decisive of the question, and much more
important on account of the principle involved. Where are we to
look for the purpose of ascertaining the jurisdiction of the court
of chancery of the State of New York -- to the judgment of this
Court or to the laws and the decisions of the courts of the
state?
It should be recollected that in the trial of titles to real
property held or claimed under the laws of the state, the federal
courts sitting in the state are administering those laws, the same
as the state courts, and can administer no other. They are obliged
to adopt the local law not only because the titles as founded upon
it, but because these courts have no system of jurisprudence of
their own to be administered, except where the title is affected by
the Constitution of the United States or by acts of Congress.
It has been held accordingly that we are to look to the local
laws for the rule of decision, as ascertained by the decisions of
the state courts, whether these decisions are grounded on the
construction of statutes or form a part of the unwritten law of the
state. The court adopts the state decisions because they settle the
law applicable to the case. Such a course is deemed indispensable
in order to preserve uniformity; otherwise, the peculiar
constitution of the judicial tribunals of the states and of the
United States would be productive of the greatest mischief and
confusion -- a perpetual conflict of decision and of
jurisdiction.
In construing the statutes of a state on which land titles
depend, said the court, infinite mischief would ensue should this
Court observe a different rule from that which has been established
in the state, and whether these rules of land titles grow out of
the statutes of a state, or principles of the common law adopted
and applied to such titles can make no difference, as there is the
same necessity and fitness in preserving uniformity of decisions in
the one case as in the other. This Court has repeatedly said,
speaking of the construction of statutes, that it would be governed
by the state construction where it is settled and can be
ascertained, especially
Page 49 U. S. 559
where the title to lands is in question.
25 U. S. 12
Wheat. 167-168;
31 U. S. 6 Pet.
291.
In the case of
Nesmith v.
Sheldon, 7 How. 818, decided at the last term,
involving a question upon the statutes of Michigan, the Court
said:
"It is the established doctrine of this Court that it will adopt
and follow the decisions of the state courts in the construction of
their own constitution and statutes when that construction has been
settled by the decision of its highest judicial tribunal."
Now what can be more peculiarly a matter of local law and to be
ascertained and settled by the state tribunals than the character
and extent of the jurisdiction of their courts, and the effect to
be given to their own orders and judgments.
I suppose it will not be denied but that each state has the
right to prescribe the jurisdiction of her courts, either by the
acts of her legislature or as expounded by the courts themselves,
and that if that jurisdiction is settled by a long course of
decision, or, in respect to the particular case, by the authority
which has a right to settle it, this Court, professing to
administer the laws of the state as they find them and acting upon
its own principle as well as the principle of the thirty-fourth
section of the Judiciary Act, cannot disregard the jurisdiction as
thus settled.
It is no answer to this view to say that the question here is
the construction of a private statute of New York. That assumes the
very point in controversy. The point is can this Court reach the
question involving the construction of the statute? That depends
upon the prior one whether Chancellor Kent acted in the exercise of
the jurisdiction of his court in expounding the statute. If he did,
the question upon its construction is concluded and whether the
construction be right or wrong is a matter not inquirable into in
this collateral way.
The case therefore comes down to a question of jurisdiction -- a
question which Chancellor Kent himself settled in this very case in
1815, which settlement has since been confirmed by the highest
tribunals in the state and about which no one of them there could
be brought to entertain a doubt.
I must be permitted to think, therefore, that, looking at the
question as an original one, Chancellor Kent was right in the
jurisdiction that he exercised in administering the acts in
question, and that whether so or not, it belonged to the courts of
that state to expound and settle the limit of his jurisdiction, and
that when so settled it becomes a rule of decision for the federal
courts sitting in the state and administering her laws, and that
therefore the order of the chancellor in question was conclusive
upon the matter before him, and is not inquirable into collaterally
in a court of law.
Page 49 U. S. 560
But were we compelled to go behind the order and to reexamine
the case as upon an appeal, we perceive no difficulty in sustaining
it.
When Clarke applied to the legislature in 1815 for relief, he
was the owner of the life estate, and of the ultimate remainder in
the premises, the residue belonging to the children, and for this
reason, doubtless, the act which was passed at that time left it
discretionary with the chancellor to determine the portion of the
proceeds that should belong to Clarke, individually and also as
trustee for the children.
And under this provision of the law, before any order was made
for the disposition of the proceeds, the court ordered a reference
to the master to ascertain the amount of his debts and what portion
of them had been contracted for the maintenance of the family and
education of the children.
The interest of Clarke in the proceeds was properly applicable
to his own debts as well as to the debts contracted for the support
of the family, and after the coming in of the report which
exhibited the amount of the debts and for what purposes contracted,
the order for the application of the proceeds was made. This is the
order referred to and confirmed by the act of 1816.
It in effect applied what was regarded by the chancellor as the
interest of Clarke in them to the payment of his own debts; the
amount of that interest, as we have seen, having been left to be
ascertained by him in the exercise of his judgment in the matters.
That Clarke had a considerable interest is apparent, having united
in himself two portions of the estate. That the chancellor erred in
the exercise of his judgment in dividing the proceeds of the estate
between Clarke and his children according to their respective
interests does not appear, nor can it be shown from anything to be
found in the record; much less can a want of power to act or an
excess of power in acting be predicated of the exercise of any such
discretionary authority.
Then, as to the application of a portion of the fund belonging
to the children for the maintenance of the family, as well as their
own education.
From the cases already referred to on that subject, we have seen
that this is within the acknowledged powers of the court of
chancery and of which it is in the habitual exercise in cases where
the parents are in narrow circumstances and unable to furnish the
means of support. The application is made for the benefit of the
children, that they may have the comforts and enjoyments of a home,
with all the wholesome and endearing influences of the family
association.
Page 49 U. S. 561
Even beyond this, small annuities have been settled upon the
father and the mother, in destitute circumstances, out of the
estates of the infant children.
It was a knowledge of these principles, which were familiar to
the mind of Chancellor Kent as was the whole system of the powers
and duties of his court over the persons and estates of infants,
that dictated the granting of the order in question, and in my
judgment, so far as the power and authority of the court was
concerned, which is the question here, it requires but an
application of these principles to the facts before him to enable
us to see that it was well warranted.
Again it is said that the children were not parties to the
proceedings. The same may be said concerning the exercise of all
the powers of the court of chancery over the estate of infants.
The answer is the proceeding is not an adversary suit. The
estate is regarded as a fund in court, and the infants as wards of
the court; the chancellor himself, as the general guardian,
exerting his great power, either inherent or vested by positive
law, over a class of persons specially committed to his care, for
their own benefit, for the proper management of their estates, real
and personal, for their maintenance and support, for their
education and advancement in life.
It is a proceeding
in rem, the property itself
in
custodia legis, and if a guardian had been appointed, it would
have been but a desecration of the power of the court, which, in
the proceeding before us, was exercised by the court itself through
the agency and instrumentality of its officers.
The rule in respect to adversary suits against infants requiring
the appointment of a guardian
pendente lite has no sort of
application to the proceedings in question.
It has also been argued that the order of the chancellor
authorizing Clarke to sell and convey the premises in question
required a certificate of the approval of one of the masters of the
court to be endorsed on the deed, and that no such certificate has
been given or endorsed thereon.
The deed to De Grasse was executed on 2 August, 1821, and on the
next day it appears that the master was a witness to prove the
execution before the commissioner who took the acknowledgment.
It further appears that on the same day, the master, having had
the life estate of Clarke in the premises previously conveyed to
him in trust in order to complete the title, endorsed on the back
of the deed and executed under his hand and seal a release of this
life interest to the purchaser, and duly acknowledged
Page 49 U. S. 562
the same, that it might be recorded in the register's office
along with the deed. This was done, as the master recites in the
release, at the request of the trustee and for the purpose of
completing the title.
One can hardly conceive of a more effectual approval than is to
be derived from these acts of the master, for without the release
of the life estate, which he held in trust, the title could not
have been perfected and the sale must have fallen through. The
release enabled the trustee to complete it and invest De Grasse,
the purchaser, with the fee.
But the courts of New York in the case already referred to have
held that, upon the true construction of the order, the approval of
the master was not necessary, as the direction in that respect was
limited to conveyances by the trustee in satisfaction of debts.
Even if this construction should be regarded as doubtful, or that
requiring the approval was thought to be the better one, inasmuch
as this construction has been given by the highest court of a state
upon this very title, in a case in which its judgment was final,
the habitual deference and respect conceded by this Court to the
decisions of the state courts upon their own statutes and orders of
their courts would seem to render it conclusive.
This view was directly affirmed and acted on in the case of
Bank of Hamilton v. Dudley's
Lessee, 2 Pet. 492. That, as is the case before us,
was an action of ejectment by the heir to recover a tract of land
situate in the city of Cincinnati. The defendant held under a deed
made by administrators, upon a sale under an order of the Court of
Common Pleas for the County of Hamilton, which possessed the powers
of an orphans' court.
The title depended upon the effect to be given to the order
under which the sale took place. It was made at the August term and
entered as of the May term preceding. It was alleged that, though
granted at the May term, the clerk had omitted to enter it. The law
conferring the powers of the orphans' court upon the common pleas
had been repealed between the May and August terms, and the
question was whether the order was a nullity, or valid until set
aside.
The sale had taken place at an early day, and the property had
become of great value. The case was most elaborately argued. The
action of this Court, independently of the principle decided in the
case, is worthy of remark.
Chief Justice Marshall, in delivering the opinion, observed that
the case had been argued at the last term on the validity of the
deed made by the administrators, but as the question
Page 49 U. S. 563
was one of great interest, on which many titles depended and
which was to be decided upon the statutes of Ohio, and as the court
was informed that the case was depending before the highest
tribunal of the state, the case was held under advisement.
The state court held that the order of the court of common
pleas, entered at the August term as of the preceding May term, was
coram non judice and void, and that the deed under which
the defendant derived title was, of course, invalid.
This Court held that the judgment of the Supreme Court of Ohio
should govern the case. I will give its language.
"The power of the inferior courts of a state," said the Chief
Justice,
"to make an order at one term as of another is of a character so
peculiarly local, a proceeding so necessarily dependent on the
revising tribunal of the state, that a majority consider that
judgment as authority, and we are all disposed to conform to
it."
I will simply add that the Court for the Correction of Errors in
New York possessed a revising power in all cases over the orders
and decrees of the chancellor, and that that court has held, upon
this very title, not only that the order in question was an order
entered by him acting as a court, but, in expounding it, that the
deed of conveyance given to De Grasse under it did not require the
approval of a master. Further comment to show the identity of the
two cases would be superfluous.
But I forbear to pursue this branch of the case farther,
The validity of the execution of the deed to De Grasse by the
trustee, as it respects the alleged want of approval, stands
1. Upon the acts of the master in the execution of it, as a
substantial approval within the meaning of the order, and
2. Upon the decision of the highest judicial tribunal of the
state, whose laws we are administering, that, upon a fair
interpretation of the terms of the order, and approval was not
essential.
It has also been argued that according to the true construction
of the order, the sale should have been for cash, and that here it
was otherwise.
But this is an action at law, and the deed on the face of it
shows a cash consideration of $2,000. The nature of the
consideration was not inquirable into, and should have been
excluded at the trial. If the complainant had sought to invalidate
the proceedings on that ground, he should have gone into a court of
equity, where the question could have been appropriately
Page 49 U. S. 564
examined, and justice done to all the parties. That it was not
examinable in a court of law is too plain for argument. The recital
of the considerations can no more be varied by parol proof than any
other part of the deed. 2 Phill. on Ev. 353, 354, 2 Cow. & Hill
n. 289, and cases there cited; 1
id. n. 228, 384; 7 Johns.
341; 8 Cow. 290; 2 Den. 336; 4 N.H. 229; 1 J.J.Marsh. 388, 390.
I have thus gone over the several grounds relied on for the
purpose of impeaching the title of the defendant to the premises in
question, and although in the minority in the judgment given, have
done so not so much on account of the magnitude of the interest
depending, which is great of itself, as of the importance of the
principle involved, and upon the application of which the judgment
has been arrived at.
Notwithstanding several questions have been brought within the
range of the discussion, there are but two, in reality, involved in
the determination of the case. 1. The effect to be given to the
order of Chancellor Kent made on the 15th of March, 1817, and 2.
The execution of the conveyance by Clarke, the trustee, under this
order.
If the order was made by the chancellor in the exercise of his
jurisdiction as a court, his judgment was conclusive in the matters
before him; and there is an end of that question. It affords an
authority to sell and convey, that cannot be controverted in a
court of law. And the validity of the deed executed under it stands
upon an equally solid foundation.
The title of the defendant therefore would seem to be beyond
controversy, were it not for the principle against which we have
been contending and which imparts to the case its greatest
importance -- namely the right claimed for this Court to inquire
into the nature and character of the jurisdiction exercised by the
chancellor in making the order coming before us collaterally; and
as this Court determines that jurisdiction to be general or
special, to refuse or consent to go behind his judgment, and reopen
and rejudge the merits of the case, and according to the opinion
entertained upon that question, to affirm or disaffirm the validity
of all acts and proceedings that have taken place under it. And
this too in a case where the jurisdiction thus exercised by the
chancellor has been settled by himself in his own court, under the
state laws, and affirmed by the judgment of the highest judicial
tribunals of the state.
It is apparent that if this principle becomes engrafted upon the
powers of this Court, and is to be regarded as a rule to guide its
action in passing upon the judgments of the state courts coming up
collaterally, a revising power is thus indirectly
Page 49 U. S. 565
acquired over them in cases where no such power exists directly,
under the Constitution or laws of Congress. For if the right exists
to inquire into the kind and character of the jurisdiction, without
regard to that established by the laws and decisions of the states;
and to determine for itself whether the jurisdiction is general or
special, and if the latter, to go behind the judgment to see
whether the special authority has been strictly pursued, there is
no limit to this revising power, except the discretion and judgment
of the court.
The principle will be as applicable to every state judgment
coming before us collaterally, as to the one in question. It
denies, virtually, to the states the power, in the organization of
her courts, to prescribe and settle their jurisdiction, either by
the acts of her legislature, or the adjudication of her judicial
tribunals.
I cannot consent to the introduction into this Court of any such
principle, and am, therefore, obliged to refuse a concurrence in
the judgment given.
