Sargeant v. State Bank of Indiana,
53 U.S. 371 (1851)

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U.S. Supreme Court

Sargeant v. State Bank of Indiana, 53 U.S. 12 How. 371 371 (1851)

Sargeant v. State Bank of Indiana

53 U.S. (12 How.) 371


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."


Page 53 U. S. 378

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