By the strict rules of the common law, a bond of conveyance
might be adduced in support of a possession of twenty years held in
pursuance of the bond to corroborate such possession against an
action founded upon the mere right of entry in the obligor or his
heirs.
But when the bond was given to carry out the policy of a state
in establishing the seat of justice for a new county, it was proper
to allow it to be given to the jury as competent evidence to be
weighed by them in expounding the provisions of the statute.
Where a court, acting under a state law, appointed a
commissioner to convey the legal title after the death of the
obligor of the bond, and the record of that court
Page 53 U. S. 372
said that proper and legal notices had been given, it was not
competent to offer evidence in another court for the purpose of
showing that legal notice had not been given.
It was an ejectment brought by the plaintiffs in error, citizens
of Vermont, against the State Bank of Indiana, under the following
circumstances.
By a law passed on 14 January, 1824, the Legislature of Indiana
provided that whenever any new county should be laid off, five
commissioners should be appointed to locate the seat of justice
therein, to receive donations in land, and take title bonds for the
conveyance of it to such persons as the county commissioners should
direct.
In 1826 the County of Tippecanoe was about to be laid off, and
on 20 January, 1826, an act was passed creating the County of
Tippecanoe, which so far altered the act of 1824 as to substitute a
board of five justices of the peace in lieu of county
commissioners. But these justices of the peace were not to be
appointed until June. The rest of the act was to go into operation
on the first Monday in May.
Accordingly, on the first Monday in May, a majority of the
commissioners appointed to locate the seat of justice, met and
designated Lafayette as the town. On 4 May, they received two
bonds, with the name of Samuel Sargeant as an obligor, in one of
which he was the sole obligor, and in the other a joint obligor
with other persons. These bonds bound Sargeant to convey the land
"to the Board of Justices of Tippecanoe County that may hereafter
be organized, and their successors in office."
On 8 July, 1826, the board of justices, having been elected, met
and organized. Samuel Sargeant was county clerk and
ex
officio clerk of the board of justices. They received the
report of the locating commissioners, and ordered a public sale of
the lots for which title bonds had been given, to take place on the
second Monday of the ensuing October.
In the latter part of July, 1826, Samuel Sargeant died. His
co-obligors in the bond conveyed their title to the justices,
according to the tenor of the bond.
By the act of 1826, it was provided that in case of the death of
any person who had executed or might execute such a bond, the
obligee might apply to the circuit court of the county to appoint a
commissioner to convey the title, provided four weeks' personal
notice should be given to the heir of the obligor, or certain
advertising if a nonresident.
At the term of the Tippecanoe Circuit Court, which was held
Page 53 U. S. 373
in November, 1827, the board of justices prayed the court to
appoint a commissioner to convey Sargeant's title; whereupon the
court passed an order concluding in the following words,
viz.,
"And it appearing to the satisfaction of the court now here,
that proper and legal notices have been given of this motion, it is
therefore, by the court now here, ordered, that Richard Johnson be
appointed commissioner to convey by good and sufficient deed unto
the board of justices Tippecanoe County, or their successors in
office, said lots and parcels of ground in pursuance of the
aforesaid bonds, in fee simple, for and on behalf of the heirs of
the said Samuel Sargeant, deceased."
On 5 April, 1828, Richard Johnson executed the deed.
On 17 November, 1846, Phineas O. Sargeant, Nabby Sargeant, Jabez
Sargeant, and Benjamin B. Sargeant, heirs at law of Samuel
Sargeant, deceased, and resident citizens of Vermont, brought an
action of ejectment in the circuit court of the United States, for
a part of the property, against the State Bank of Indiana.
In May, 1848, the cause came on for trial, when the jury, under
certain instructions from the court, found a verdict for the
defendant.
The bill of exceptions extended over twenty-five pages of the
printed record, and, therefore, cannot be inserted at length.
The plaintiffs having proved a title in Sargeant and their
heirship, rested their case.
The defendant gave in evidence the record book of the justices
of Tippecanoe County, the report of the commissioners appointed to
locate the seat of justice, the execution of the title bond, and
then offered in evidence the record of the Tippecanoe Circuit Court
relative to the execution of the deed by Johnson.
To the production of which aforesaid record in evidence by the
said defendant the said plaintiffs then and there objected, upon
the following grounds assumed by them, namely, the proceedings were
coram non judice, and void, as the court had no
jurisdiction of the person nor of the subject matter; the bond
being void, the court had no jurisdiction to entertain proceedings
upon it; the proceedings were between no parties known at the time
to the law in Indiana. There was no legal notice of the proceeding;
the preliminary steps were not taken to confer jurisdiction, and
jurisdiction never attached; and at the time of making said
objection, and before the said defendant had closed its evidence,
the said plaintiffs offered to produce in evidence to the court the
following authenticated copy of a paper, to-wit:
Page 53 U. S. 374
(The paper was a notice published in the newspaper, which was
for the heirs to appear at a different time and term from that at
which the proceedings were held, and an affidavit of its
publication, endorsed "Filed 7 November, 1827." Hoover, clerk.)
To the production of this paper in evidence, the defendant
objected.
The defendant then offered in evidence a confirmatory deed,
signed by Sargeant's co-obligors in the bond, and by Johnson as
representing Sargeant.
To the production of which last-mentioned copy in evidence the
said plaintiffs then and there objected, on the grounds assumed by
them that the same was void, having been executed without any
authority of law, and there being no vendors named in the deed;
which said several objections, so made by said plaintiffs as
aforesaid, the court then and there overruled, and permitted the
said papers and copies, and each of them, so offered by said
defendants as aforesaid, to be read in evidence, and they were read
in evidence to the jury by the said defendant.
This was all the material testimony on behalf of the
defendant.
After the evidence for the defendant had been closed, the
plaintiffs proved that the first election for justices of the peace
for Tippecanoe County was held on the third Monday in June,
eighteen hundred and twenty-six, pursuant to the proclamation of
the Governor of Indiana in that behalf, and that the commissions of
said justices, as appears from the records of the Secretary of
State of Indiana, bear date on ________, and that said justices
held their first session on the eighth day of July, eighteen
hundred and twenty-six, being Saturday, as set forth in the
foregoing record thereof, and that said justices did not hold any
other session, or meet as a board at any other time, until after
the death of said Samuel Sargeant.
And after the evidence on both sides had been closed, the said
plaintiffs moved the court to charge the jury as follows,
to-wit:
"1. That the title bond given in evidence by the defendant is
void as against Samuel Sargeant and his heirs, for want of an
obligee in being capable of being contracted with at the time of
the delivery of said bond."
"2. That the said title bond is a nullity as against said
Sargeant and his heirs."
"3. That the record and proceedings of the Tippecanoe Circuit
Court, and the commissioner's deed in pursuance thereof, are wholly
void, and did not divest the title of Samuel Sargeant's heirs.
"
Page 53 U. S. 375
"4. That the certified copy of the notice, and proof of
publication given in evidence by the plaintiffs, is a part of the
record of the proceedings of the Tippecanoe Circuit Court, and as
such may explain and qualify the statement in the record, that
proof was made that 'due and legal notices had been given,' which
said several instructions and each of them the court refused to
give to the jury, but charged the jury that the said record of the
Tippecanoe Circuit Court is not void, and that the above proof, so
produced and given in evidence by the said defendant, is competent
evidence to prove a dedication to public use, and the title of the
premises in controversy out of the lessors of the plaintiffs."
"To which said several opinions and decisions of the court in
admitting said evidence, so as above offered by the defendant and
objected to by the plaintiffs, and in refusing to charge the jury
as moved by the said plaintiffs, as above stated, and to the charge
so as above given by the court to the jury, the said plaintiffs
except, and pray that this their bill of exceptions may be signed,
sealed, and made a part of the record in this cause, which is done
&c.; both parties agreeing in open court that in making up of
the record, whenever the words 'here insert' occur in this bill of
exceptions, the clerk shall copy and insert the documents
indicated. And that the printed statutes of Indiana, so far as
applicable to this cause, shall be deemed and taken as part of the
record in this cause, and so considered by the Supreme Court."
"JOHN McLEAN [SEAL]"
Page 53 U. S. 378
MR. JUSTICE DANIEL delivered the opinion of the Court.
The facts upon which this case is founded are to the effect
following:
The Legislature of Indiana, having by a law bearing date on 20
January, 1826, laid off and established the County of Tippecanoe in
that state, by the same act appointed four commissioners for the
purpose of selecting and establishing a seat of justice for the
county thus created, in conformity with the provisions of another
statute of the state, passed on 14 January, 1824, entitled "An act
establishing seats of justice in new counties," and with the
provisions of other acts amendatory of the law last mentioned.
Pending the investigation of the commissioners who took upon
themselves the fulfillment of the duties prescribed by the statutes
above mentioned, proffers were made to them by various persons,
proprietors of land in and adjacent to the Town of Lafayette, of
certain lots and parcels of land as donations to the County of
Tippecanoe, and amongst these proffers was that of the land
involved in this suit, then held by Samuel Sargeant, from whom the
lessors of the plaintiffs deduce their title. The commissioners
having accepted the donations offered as above mentioned and
selected the Town of Lafayette as the seat of justice for the
County of Tippecanoe, took from the several donors their joint and
several title bond, dated May 4, 1826, in the penalty of ten
thousand dollars payable to the board of justices of the county to
be thereafter organized with condition that these obligors should
convey by deed with general warranty to the board of justices, on 1
October, 1826, the lots and parcels of land contained in their
respective donations within the Town of Lafayette, and took also
the separate bond of Samuel Sargeant, conditioned to convey at the
same period, by a like deed to the board of justices, another
parcel of land of ten acres adjoining the town, as in the
conditions annexed to those bonds set forth. The board of justices
appointed by the Governor of Indiana for the County of Tippecanoe
was organized on 8 July, 1826, and on that day received the report
of the commissioners appointed by law to select the seat of justice
for the County of Tippecanoe, and at the same time received and
accepted the joint and several obligation of Samuel Sargeant and
others above mentioned, and also the separate bond of Samuel
Sargeant, conditioned for the execution of a deed with general
warranty to the board of justices for the tract of ten acres of
land as before referred to, the said Samuel Sargeant having been
chosen their clerk by the board of justices, entered upon the
record their acceptance of the title bonds given by himself and
others in his own handwriting. Samuel Sargeant having died before
the execution of any deed either by the obligors in the joint and
several bond,
Page 53 U. S. 379
or by Sargeant alone, in pursuance of his separate obligation,
proceedings were instituted at the November term, 1827, of the
Circuit Court of the County of Tippecanoe for the appointment of a
commissioner for the purpose of conveying to the board of justices
the title and interest held by Samuel Sargeant in his lifetime in
the lots and parcels of land mentioned in the joint and several
bond of Sargeant and others, and in the ten acres of land mentioned
in the separate title bond executed by Sargeant. The circuit court
appointed Richard Johnson a commissioner in conformity with the
application, and this commissioner, conjointly with all the
obligors except Sargeant, executed to the board of justices a deed
with general warranty for the lands mentioned in the joint and
several bond, and a separate deed for the ten acres of land
described in the bond given by Sargeant individually. The
proceedings of the Circuit Court of Tippecanoe upon the petition of
the board of justices and the conveyances ordered by that court
took place in the years 1826 and 1827, and are of record.
In the year 1846, the lessors of the plaintiffs, representing
themselves to be heirs at law of Samuel Sargeant, instituted this
their action of ejectment against the State Bank of Indiana, as the
tenant in possession of lots No. 90 and 132, situated in the Town
of Lafayette. The said defendant also deducing title mediately from
Samuel Sargeant, by purchase from the board of justices for the
County of Tippecanoe, no question therefore is raised upon the
validity of the title as originally existing in Samuel
Sargeant.
At the trial, the lessors of the plaintiffs having introduced
evidence to show the death of Samuel Sargeant on 31 July, 1826, and
that the said lessors were his heirs at law, and evidence also of
the value of the property in dispute, there rested their cause.
The defendant then offered in evidence the report of the
commissioners appointed under the Act of the legislature of January
20, 1826, to locate the seat of justice for the County of
Tippecanoe, the record of the appointment and qualification of the
board of justices for the said county in July, 1826, the delivery
to them and their acceptance of the title bonds from the locating
commissioners; their petition to the circuit court in order to
obtain a conveyance of the lands mentioned in the title bonds, the
record of the proceedings of the Circuit Court of Tippecanoe upon
the petition of the board of justices, and the conveyances to them
made in pursuance of the judgment of that court, as comprised in
the foregoing statement of facts. Upon the evidence thus submitted,
the jury found a verdict for the defendant.
Page 53 U. S. 380
The questions presented for our consideration by this record
arise upon exceptions to the rulings of the court refusing certain
instructions asked by the plaintiffs with regard to the evidence
adduced by the defendant and in charging the jury upon the law
applicable to that evidence as expounded by the court. Thus the
plaintiffs prayed the court to instruct the jury --
"1. That the title bonds given in evidence by the defendant were
void as against Samuel Sargeant and his heirs for want of an
obligee in existence capable of being contracted with at the time
of the delivery of these bonds."
"2. That the title bonds are a nullity as against the said
Sargeant and his heirs."
"3. That the record and proceedings of the Tippecanoe Circuit
Court and the commissioners' deed in pursuance thereof are wholly
void, and did not divest the title of Samuel Sargeant's heirs."
"4. That the certified copy of the notice and proof of
publication given in evidence by the plaintiffs is a part of the
record of the proceedings of the Tippecanoe Circuit Court, and as
such may explain and qualify the statement in the record that proof
was made that 'due and legal notice' had been given."
These several instructions the court refused to give, but
charged the jury that the said record of Tippecanoe Circuit Court
was not void and that the proof produced and given in evidence as
aforesaid by the defendant was competent to prove a dedication to
public use, and the title of the premises in controversy out of the
lessors of the plaintiffs. It was agreed by the parties in this
case that the printed statutes of Indiana, so far as they are
applicable to the case, should be deemed and taken as parts of the
record in this cause and be so considered by this Court.
In considering the three first charges asked for by the
plaintiffs, this Court can perceive no essential difference between
them, but regards them as resolving themselves into the single
objection of the want of an obligee or grantee capable of receiving
any legal rights from the acts of Samuel Sargeant, for it follows
necessarily that if any legal or equitable rights were invested or
transferred by the title bonds delivered by Sargeant in his
lifetime to the commissioners, such rights could not remain in his
heirs. The fourth charge required of the court presents quite a
different question, and one going rather to the mode or form by
which the title to the property has been transferred or ratified
than to the foundation of the right or title itself.
Although, if tested by the rules of law applicable to
conveyances of real property, bonds like those executed and
delivered by Samuel Sargeant in his lifetime could not confer a
legal title, yet if adduced in support of a possession of twenty
years,
Page 53 U. S. 381
held as in this instance, in pursuance of the express condition
of those bonds, they would seem to corroborate such possession
against an action founded upon the mere right of entry in the
obligor or his heirs.
But these bonds should not be judged of by the strict rules of
the common law, nor by the general principles applicable to uses
and trusts in the conveyance of legal titles, but should be
interpreted according to the local policy of the community which
called them into existence, and which has defined both their
objects and effects. Whatever these bonds were designed to be --
whatever purposes they were, by the local policy and laws of
Indiana, intended to accomplish in respect to the makers thereof or
the beneficiaries therein named, this Court should endeavor to
effectuate.
By the general law of Indiana, approved January 14, 1824,
entitled "An act to establish the seats of justice in new
counties," it is provided in section first
"That whenever any new county shall be laid off, five
commissioners shall be appointed whose duty it shall be to locate
the seat of justice in such new county, to receive donations in
land, and to take bond or bonds of any person proposing to give any
such lands, payable to the board of county commissioners and their
successors in office and conditioned for the conveyance of such
tract or tracts of land so given or sold to such person as the
county commissioners shall appoint to receive the same, which bond
or bonds the said commissioners shall deliver to the county
commissioners, together with a plain and correct report of their
proceedings, containing a particular description of the lands so
selected for the county seat."
By section fourth of the same act, it is declared
"That the county commissioners, so soon as the report of the
locating commissioners is received, shall appoint a county agent,
who shall receive deeds for such donated lands, and lay them off
into lots,"
&c. The act of the Indiana legislature creating the County
of Tippecanoe, passed January 20, 1826, by section seventh so far
alters the general law of 1824, for the establishment of new
counties, as to substitute a board of five justices of the peace
who shall constitute a board for transacting all other county
business, as well as the duties theretofore devolving on the board
of county commissioners in organizing a new county. This statute
was to take effect on 1 March, 1826, and, by its second section the
board of commissioners were appointed by name for the purpose of
fixing a permanent seat of justice for the county on the first
Monday in May, 1826. The election or appointment of the Board of
Justices for the County of Tippecanoe was, by the proclamation of
the governor, to take effect not until the ___ day of June
following. The grants
Page 53 U. S. 382
or donations to the locating commissioners having been
authorized by law from the first Monday in May, 1826, and the
grantees or ultimate beneficiaries,
viz., the board of
justices, not being chosen or their election authorized until after
the ___ day of June, 1826, if the objection alleged to the
donations made or received by the locating commissioners,
viz., the absence of a competent obligee or grantee, be
sustained, then the whole legislation of the state upon this
subject, and the obvious purposes of that legislation, must be
defeated. Such a result, however, can hardly be reconciled with
either the provisions or the purposes of the legislation of Indiana
in reference to this subject, for by the general law of that state
approved January 14, 1824, regulating the establishment of new
counties, we find it provided that the commissioners appointed to
locate the seat of justice in a new county, and to receive the
donations and to take the bonds mentioned in that law, are
required, together with their report, to deliver said title bonds
to the county commissioners. This delivery, therefore, of the bonds
so taken must have been by this general provision intended to refer
to some period after these county commissioners or board of
justices had come into existence. We think there can be no question
as to the power of the state to create or authorize a contract
which should operate in this mode.
The acts of the board of commissioners for selecting the county
seat, those of the board of county justices, and of the donors of
lands to the county, all conform to this construction. Thus, in the
case before us, the title bonds were taken by the former board,
were by them subsequently, together with their report, delivered to
the board of justices, and Samuel Sargeant, who had previously
deposited the title bonds executed by himself with the former board
and who had been subsequently appointed the clerk of the county
justices in his character of clerk, certifies the record of these
proceedings. We think, therefore, that the Circuit Court for the
District of Indiana properly refused to pronounce the bonds
executed by Samuel Sargeant and the proceedings of the board of
commissioners and of the board of justices void, and correctly
allowed them to be given to the jury as competent evidence to be
weighed by them in expounding the provisions of the statutes of
Indiana above referred to.
Should it be conceded that the execution of the title bonds by
Samuel Sargeant in his lifetime and the proceedings on the part of
the board of commissioners and of the board of justices did not,
under the statutes of Indiana, confer a legal title on the county
or clearly divest the title of Sargeant; yet these acts, standing
alone and unconnected with the proceedings of the Circuit Court of
Tippecanoe, show an equity on the part of the
Page 53 U. S. 383
county which clearly authorized them to call for the legal title
from Sargeant. They show a written contract formally entered into
and solemnly recognized by him, and a fair equivalent or
consideration for that contract in the enhanced value of property
arising from the establishment of the seat of justice, forming an
obligation from which neither Sargeant nor his heirs could withdraw
without the perpetration of a gross fraud.
This brings us to a consideration of the fourth charge asked of
the circuit court in the trial below, and of the decision of the
court thereupon, involving the regularity of the proceedings at the
suit of the county justices in the Circuit Court of Tippecanoe, in
order to perfect their title stipulated for in the bonds executed
by Samuel Sargeant. The court was requested by the proposed charge
to say to the jury, that a certified copy of a notice and proof of
publication offered in evidence by the plaintiffs, were a part of
the record of the proceedings of the Tippecanoe Circuit Court, and,
as such, might explain and qualify the statement of the record
itself, that proof was made that "due and legal notices had been
given," which charge the court refused to give, but charged the
jury that the said record of the Tippecanoe Circuit Court is not
void, and that the above proof, so produced and given in evidence
by the said defendant, is competent evidence to show a dedication
to public use, and the title of the premises out of the lessors of
the plaintiffs.
Of the correctness of the circuit court in refusing this last
charge, we entertain no doubt whatever. With a view of determining
the propriety of this rejection by the circuit court, it may be
proper here to refer to an act of the Legislature of the State of
Indiana approved on 20 January, 1826, entitled "An act amendatory
of the law for the better advancement of justice," under which
statute the decision of the Circuit Court of Tippecanoe, impugned
by the plaintiffs below, was made By the tenth section of this
statute it is provided
"That whenever any person or persons who shall have executed, or
hereafter shall execute his or their obligation for the conveyance
of any real estate to any person or persons, body politic or
corporate, shall die intestate or without having made the necessary
provisions by will for the conveyance of such estate, it shall be
lawful for the obligee or obligees in such bonds, or his or their
assignees, to apply to the circuit court of the county in which
such real estate lies, to appoint a commissioner to convey the same
in conformity with the conditions of the said obligation, by a deed
to be by such commissioner executed, of the same tenor and effect
as the deceased obligor was bound to make in his lifetime, provided
the person or persons making such application as aforesaid shall
first give four weeks personal notice to
Page 53 U. S. 384
the heir or heirs of such obligor or obligors if residents of
the state, and if nonresidents, then three months notice of such
application, by advertising the same three weeks successively in
the nearest public newspaper to which the said real estate is
situate, and the commissioner shall,"
&c.
Under the authority of the section just quoted, application in
the name and on behalf of the County of Tippecanoe was made by
petition to the judges of the circuit court of that county, for the
appointment of a commissioner to convey the lands mentioned in the
title bonds executed by Sargeant, and which he had failed to convey
in conformity with those obligations. In setting forth the action
of the court upon this petition, the record contains the following
statement:
"Came into court Peter Hughes, agent for the County of
Tippecanoe by his attorneys, and moves the court now here to
appoint a commissioner to convey real estate under and in
conformity to a title bond given by Samuel Sargeant, deceased, and
others therein named in his lifetime, to the Board of Justices of
Tippecanoe County and their successors in office, which bond he now
here files, for the conveyance of certain town lots in the Town of
Lafayette in the said bond mentioned and numbered. Also files a
bond given by the said Samuel Sargeant deceased, by himself, for
the conveyance of ten acres of land east and adjoining the Town of
Lafayette, to the board of justices of the county and their
successors in office, and it appearing to the court now here, that
proper and legal notices have been given of this motion, it is by
the court now here ordered, that Richard Johnson be appointed
commissioner to convey by good and sufficient deed unto the Board
of Justices of Tippecanoe County and their successors in office,
the said lots and parcels of ground, in pursuance of the aforesaid
bonds in fee simple, for and on behalf of the heirs of Samuel
Sargeant, deceased."
It is this record of the decision of the Circuit Court of
Tippecanoe County, and particularly that portion of it which states
that the decision was pronounced after proper and legal notices had
been given to the heirs of Samuel Sargeant, that the plaintiffs
asked of the court to charge was irregular and void, upon the
strength of a paper purporting to be a notice which they urged the
court to consider as a part of the record of the proceedings of the
Tippecanoe Circuit Court, and as such, explaining and qualifying
the statement in that record, that proof was made to the court of
due and legal notice to the heirs of Samuel Sargeant.
With respect to the propriety and regularity of this application
to the circuit court, we would remark in the first place that the
mere fact of a paper's being found amongst the files of a cause
does not, of itself, constitute it a part of the record of the
Page 53 U. S. 385
cause. In order to render it a part of the record, it should
form some part of the pleadings in the cause or be brought under
and engrafted upon the action of the court by some motion from the
parties. Without this, such a paper can no more be a portion of the
record than would the knowledge of facts on the part of a witness,
who had been summoned and not examined, or the oral testimony given
to a jury and not noted by exception or otherwise. There is nothing
in the record of the Circuit Court of Tippecanoe to show that the
paper on which this fourth charge asked for by the plaintiffs is
founded was ever brought to the notice of the court last mentioned.
The real veritable record informs us that legal and sufficient
notice was given to the heirs of Samuel Sargeant, but whether by
this paper or in what other mode except that it was legal and
sufficient we are not told, and are not at liberty in this case to
indulge in inferences against the verity of the record. It is a
principle well settled, too, in judicial proceedings that whatever
may be the powers of a superior court, in the exercise of regular
appellate jurisdiction, to examine the acts of an inferior court,
the proceedings of a court of general and competent jurisdiction
cannot be properly impeached and reexamined collaterally by a
distinct tribunal, one not acting in the exercise of appellate
power. To permit the converse of this principle in practice would
unsettle nine tenths of the rights and titles in any community and
lead to infinite confusion and wrong. In support of a principle so
obvious and of such universal acceptation as is that just above
stated, a recurrence to cases would seem to be wholly unnecessary.
We will mention, however, one in this Court which, from its direct
appositeness to the question now under consideration, may be
regarded as conclusive. The case alluded to is that of
Grignon's Lessee v.
Astor, 2 How. 319. This was an action of ejectment
brought by the heirs of a decedent to recover lands which had been
sold by the personal representative, who, by the law of Michigan,
was, in the event of a deficiency of the personal assets to pay
debts, authorized to sell the real estate, upon a license granted
him to effect such sale, but to be obtained only upon proofs
prescribed by the statute to be made before the court by which the
license to the administrator was to be granted. The objection to
the title of the purchaser was that by the record of the court
granting the license to the administrator to sell, it was apparent
that the prescribed evidences of deficiency of the personal assets
had not been adduced, and that the court had therefore exceeded the
powers with which it was clothed by the statute. The language of
the record is as follows:
"The petition of Paul Grignon, administrator on the estate of
Pierre Grignon, late of the County of Brown, deceased,
Page 53 U. S. 386
was filed, praying for an order from the court to authorize him
to dispose of the real estate of the said Pierre. In consideration
of the facts alleged in said petition and for divers other good and
sufficient reasons, it is ordered that he be empowered as
aforesaid."
In overruling the objection made to the title derived from the
personal representative, this Court said, p.
43 U. S.
339:
"The record of the county court shows that there was a petition
representing some facts by the administrator who prayed for an
order of sale, and the court took those facts into consideration,
and for these and divers other good reasons, ordered that he be
empowered to sell."
Again this Court said, p.
43 U. S.
340:
"After the court has passed on the representation of the
administrator, the law presumes that it was accompanied by the
certificate of the judge of probate, as that was a requisite to the
action of the court. Their order of sale was evidence of that or
any other fact which was necessary to give them the power to make
it; and the same remark applies to the order to give notice to the
parties. This is a familiar principle in ordinary adversary
actions, in which it is presumed after verdict, that the plaintiff
has proved every fact which is indispensable to his recovery,
though no evidence appears on the record to show it, and the
principle is of more universal application in proceedings
in
rem after a final decree by a court of competent jurisdiction
over the subject matter."
Again said the Court,
"The record is absolute verity, to contradict which there can be
no averment or evidence; the court having power to make the decree,
it can be impeached only by fraud in the party obtaining it."
Several decisions by this Court upon this particular point will
be found cited in the opinion above quoted as delivered by the late
Justice Baldwin who concludes that opinion with the following
striking and cogent observations: "We do not," said that learned
judge (alluding particularly to the case of
Vorhees v. Bank of United
States, 10 Pet. 473),
"think it necessary, now or hereafter, to retrace the reasons or
the authorities on which the decisions of this Court in that case
and those which preceded it rested; they are founded on the oldest
and most sacred principles of the common law. Time has consecrated
them; the courts of the states have followed, and this Court has
never departed from them. They are rules of property on which the
repose of the country depends; titles acquired under the
proceedings of courts of competent jurisdiction must be deemed
inviolable in collateral actions, or none can know what is his own;
and there are no judicial sales around which greater sanctity ought
to be placed, than those made of the estates of decedents by order
of those courts to whom the laws of the states confide full
jurisdiction
Page 53 U. S. 387
over the subjects."
By the doctrine thus ruled the decision of the circuit court is
fully sustained, and, upon a review of the whole case, it is the
opinion of this Court that the decision of the circuit court be and
the same is hereby
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Indiana, and was argued by counsel. On consideration whereof, it is
now here ordered and adjudged by this Court, that the judgment of
the said circuit court in this cause be and the same is hereby
affirmed with costs.
