Dirst v. Morris,
81 U.S. 484 (1871)

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U.S. Supreme Court

Dirst v. Morris, 81 U.S. 14 Wall. 484 484 (1871)

Dirst v. Morris

81 U.S. (14 Wall.) 484


1. A plaintiff in ejectment, claiming under a deed made on a sale in a foreclosure of a mortgage, may properly put in evidence the record of the proceedings in foreclosure even though the defendant claim by a deed absolute made by the mortgagor, prior to giving the mortgage under which the foreclosure took place. Showing title from a party previously seized, the plaintiff has a right to exhibit it subject to such decision with regard to its effect as might become necessary after all the evidence is in.

2. Even more obviously has he a right to introduce it as evidence in chief, and when the prior deed absolute under which the defendant claims has not yet been offered in evidence, for in such a stage of the proceeding, the proceedings in foreclosure give apparently a valid title.

Page 81 U. S. 485

3. Under the Act of Congress of March 3, 1865, authorizing the trial of facts by the circuit courts and enacting that the findings of the court upon them shall have the same effect as the verdict of a jury, this Court, sitting as a court of error, cannot pass, as it does in equity appeals, upon the weight or sufficiency of evidence. If the court chooses to find generally for one side or the other instead of making a special finding of the facts, the losing party has no redress on error except for the wrongful admission or rejection of evidence.

Russell, being the owner of a large number of lots of land in different counties in Illinois, conveyed one in May, 1837, to Josiah Breese. This deed was not recorded until the year 1864.

In December, 1837, Russell, being a debtor to the United States, mortgaged the same lot with all the several others that he owned to the then Solicitor of the Treasury to secure this debt, and the mortgage was promptly put on record. There was no evidence that the existence of the deed to Breese was known to the agents of the government at the time when this mortgage was taken by it.

On the 1st of September, 1841, the United States filed a bill to foreclose the mortgage. The bill was in ordinary form against Russell, but it contained a clause alleging that Francis Peyton, Gordon Hubbard, Josiah Breese, H. S. Fuller, Augustus Garrett, Frederick Fraylor, and several others named, "commissioners of school lands, have or pretend to have some interest or claim upon the above described premises as judgment creditors or otherwise," and process was accordingly prayed against them.

A summons with subpoena issued accordingly, the record saying:

"Which said subpoena went into the hands of the marshal to be executed, and was returned by him into the said clerk's office, executed upon all of the defendants by delivering to each of them true copies thereof."

The marshal's return, however, on the summons itself, which it was shown by the fee bill on file in the case, was

Page 81 U. S. 486

the only summons issued, while making return that certain of the defendants named had been served, stated that Breese and the rest had not been found in his district.

An order taking the bill pro confesso against the defendants was subsequently entered, reciting "that the said defendants have been duly served with process and have failed to appear."

Final decree having been entered and sale made, the lands were bought in by the United States, whose title by means of a deed from the Solicitor of the Treasury, in whose name the title had been made, became subsequently vested in W. W. Corcoran, who conveyed to W. B. Morris.

The title in Breese under the deed of 1837 of Russell to him became, on the other hand, vested in one Dirst, and he in 1864 having taken possession of the land, which till then had been unoccupied, Morris brought ejectment against him.

The case was tried by the court, under the act of Congress of March 2, 1865, authorizing the circuit courts on written stipulation of the parties to try issues of fact without the intervention of a jury, and enacting that "the findings of the court upon the facts shall have the same effect as the verdict of a jury."

On this trial before the court, the plaintiff, having first put in the mortgage to the government, offered in evidence the record of the foreclosure suit, to which the defendant objected, on the ground (amongst others) that Breese had not been served with process in the cause. To prove this, he referred to the record itself, and also proved by parol that Breese was not in Chicago in 1841, but was in New York, and further produced the original subpoenas and files in the cause. As already stated, the papers showed that Breese had been made a party to the bill, and that his name had been included in the subpoena; and the record recited that the subpoena was returned by the marshal into the clerk's office executed upon all the defendants; but the return of the subpoena did not show any service on Breese. Nevertheless

Page 81 U. S. 487

the court admitted the record in evidence, and the defendant excepted.

The plaintiff also offered in evidence the deed from the Solicitor of the Treasury (representing the government) to Corcoran, the plaintiff's grantor. The defendant objected to it on the ground that it did not appear thus far in the proceedings, that the United States had any title to the premises in controversy, except as mortgagee, and that as the deed did not purport to assign or convey to the grantee any part of the mortgage debt, and, as the defendant maintained that it did not appear that the mortgage had been foreclosed as against Breese, the owner of the equity of redemption -- therefore, that the said deed did not pass to the grantee any legal title or estate to the premises. The court, however, received the deed, and the defendant excepted.

The defendant, on his part, produced Breese's deed and mesne conveyances to himself and evidence to show that under this title, in 1864, he had taken possession of the property, which till then was unoccupied. He now insisted that his right was paramount to that of the plaintiff. But the court decided that the plaintiff was entitled to recover notwithstanding the possession taken by the defendant, and found the issues generally in the plaintiff's favor. This ruling of the court at the close of the trial was alleged by the defendant as an additional error.

Page 81 U. S. 490

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