Proceedings for the sale of the real estate of an intestate for
the payment of debts were commenced before the repeal of the act of
the Legislature of Ohio entitled "A law for the settlement of
intestates' estates." The administrators, notwithstanding the
repeal, went on to sell the land and appropriate the proceeds to
the discharge of the debts of the intestate.
Held that the
sale was void.
The power of the inferior court of a state to make an order at
one term as of another is of a character so peculiarly local, a
proceeding so necessarily dependent on the judgment of the revising
tribunal, that the judgment of the same is considered authority,
and this Court is disposed to conform to it.
That a court of record whose proceedings are to be proved by the
record alone should at a subsequent term determine that an order
was made at a previous term, of which no trace could be found on
its records, and that, too, after the repeal of the law which gave
authority to make such an order, is a proceeding of so much
delicacy and danger, which is liable to so much abuse, that some of
the Court question the existence of the power.
Where administrators, acting under the provisions of an act of
assembly of the State of Ohio were ordered by the court, vested by
the law with the power to grant such order, to sell real estate,
and before the sale was made the law was repealed, the powers of
the administrators to sell terminated with the repeal of the
law.
The lands of an intestate descend not to the administrator, but
to the heir; they vest in him liable to the debts of his ancestor
and subject to be sold for those debts. The administrator has no
estate in the land, but a power to sell under the authority of the
court of common pleas. This is not an independent power, to be
exercised at discretion when the exigency in his opinion may
require it, but it is conferred by the court in a state of things
prescribed by the law. The order of the court is a prerequisite,
indispensable to the very existence of the power, and if the law
which authorizes the court to make the order, be repealed, the
power to sell can never come into existence. The repeal of such a
law divests no vested estate, but it is the exercise of a
legislative power which every legislature possesses. The mode of
subjecting the property of a debtor to the demands of a creditor
must always depend on the wisdom of the legislature.
The Judicial Department of every government is the rightful
expositor of its laws, and emphatically of its supreme law. If in a
case depending before any court a legislative act shall conflict
with the Constitution, it is admitted that the court must exercise
its judgment on both, and that the Constitution must control the
act. The court must determine whether a repugnancy does or does not
exist, and in making this determination must construe both
instruments. That its construction of the one is authority, while
its construction of the other is to be disregarded, is a
proposition for which this Court can perceive no reason.
Page 27 U. S. 493
This Court can perceive no sufficient grounds for declaring that
the Legislature of Ohio might not repeal the law of that state by
which the court of common pleas was authorized to direct, in a
summary way, the sale of the lands of an intestate. "Jurisdiction
of all probate and testamentary matters" may be completely
exercised without possessing the power to order the sale of the
lands of an intestate. Such jurisdiction does not appear to be
identical with that power or to comprehend it.
The occupant claimant law of Ohio, which declares that an
occupying claimant shall not be turned out of possession until he
shall be paid for lasting and valuable improvements made by him,
and directs the court in a suit at law to appoint commissioners to
value the same, is repugnant to the Seventh Amendment of the
Constitution of the United States, which declares that "in suits at
common law where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved." The
compensation for improvements is a suit at common law, and must be
submitted to a jury.
Admitting that the Legislature of Ohio can give an occupant
claimant a right to the value of his improvements, and authorize
him to retain possession of the land he has improved until he shall
have received that value, and assuming that they may annex
conditions to the change of possession, which, so far as they are
constitutional, must be respected in all courts, still the
legislature cannot change radically the mode of proceeding
prescribed for the courts of the United States or direct those
courts in a trial at common law to appoint commissioners for the
decision of questions which a court of common law must submit to a
jury.
The inability of the courts of the United States to proceed in
suits at common law in the mode prescribed by the occupant law of
Ohio does not deprive the occupant of the benefit intended him. The
modes of proceeding which belong to courts of chancery are adapted
to the execution of the law, and to the equity side of the court he
may apply for relief. Sitting in chancery, it can appoint
commissioners to estimate improvements, as well as rents and
profits, and can enjoin the execution of the judgment at law until
its decree shall be complied with. If any part of the act be
unconstitutional, the provisions of that part may be disregarded,
while full effect will be given to such as are not repugnant to the
constitution of the state or the ordinance of 1787. The question
whether any of its provisions be of this description will properly
arise in the suit brought to carry them into effect.
This is an ejectment brought in by the defendants in error
against the present plaintiffs for part of lot No. 103, in the City
of Cincinnati.
The plaintiff is heir at law of Israel Ludlow, who died seized
of the premises in the declaration mentioned. The defendant claimed
under a sale and deed made by the administrator of the said Israel
Ludlow in pursuance of certain orders of the Court of Common Pleas
for the County of Hamilton.
Page 27 U. S. 494
The case depends on the validity of this deed.
In August, 1788, the territorial government of Ohio enacted "a
law establishing a court of probate." The first section enacts
that
"There shall be appointed one judge of probate in each county
whose duty it shall be to take the probate of last wills and
testaments and to grant letters testamentary and letters of
administration, and to do and perform every matter and thing that
doth or by law may appertain to the probate office excepting the
rendering definitive sentence and final decrees."
In 1795, an orphans' court was established and it was enacted
that where persons die intestate and leave lawful issue,
"but not a sufficient personal estate to pay their just debts
and maintain their children, it shall be lawful for the
administrator or administrators of such deceased person to sell and
convey such part or parts of the said lands or tenements for
defraying their just debts, maintenance of their children, &c.,
as the orphans' court of the county where such estate lies, shall
think fit to allow, order, and direct from time to time."
In the year 1802, Ohio became an independent state. The
Constitution, in the article which respects the judicial
department, declares that
"The court of common pleas in each county shall have
jurisdiction of all probate and testamentary matters, granting
administration, the appointment of guardians, and such other cases
as shall be prescribed by law."
In April, 1803, the judicial courts were organized, and the
court of common pleas, after a general grant of original
jurisdiction, was empowered to examine and take the proof of wills,
to grant administration on intestate estates, and to hear and
determine all causes, suits, and controversies of a probate and
testamentary nature.
In June, 1805, the territorial ordinance of 1795 was
repealed.
At the trial of the ejectment in the circuit court, after the
plaintiff had closed his evidence, the defendants offered in
evidence a deed from the administrators of Israel Ludlow deceased
to Andrew Dunseth for the premises in the declaration
mentioned.
"They also offered in evidence duly
Page 27 U. S. 495
certified entries and copies of orders from the records of the
Court of Common Pleas within and for the County of Hamilton State
of Ohio, of which the following are true copies,
viz.,"
"2d of February 1804: Letters of administration granted unto
Charlotte C. Ludlow, John Ludlow, James Findlay and James Pierson,
on the estate of Israel Ludlow deceased, and their bond with
William Ludlow and James Smith as securities for their faithful
administration."
At May term in the year 1804, date 8 May, 1804, the following
order was made,
viz.,
"The administrators of the estate of Israel Ludlow deceased
exhibit an account current and pray the court to issue an order for
the sale of real property to defray the debts due from the estate,
&c., John Ludlow and James Findlay sworn in court. The court
orders so much of the real property to be sold as will meet the
said demand, except the farm and improved land near Cincinnati,
together with the house and lots in Cincinnati."
At the August term of the said court in the year 1805, a
supplemental order was made of which the following was a copy,
viz.,
"The administrators of I. Ludlow deceased, on application to the
court to extend the order for the sale of property to discharge the
debts arising from the estate, whereupon the court allows the
administrators to sell the house and lots in the Town of Cincinnati
and any other property except the mansion house and farm in the
country, so that the sale does not amount to more than $10,000.
This entry considered as of May term, 1805."
It was in evidence that the sale was made agreeably to the
provisions of the law adopted from the Pennsylvania code by the
governor and judges of the Northwestern Territory on 16 June, 1795,
entitled "a law for the settlement of intestate estates;" that the
deed was duly executed, acknowledged and proved.
The plaintiff by his counsel moved to overrule the testimony
offered by the defendants' counsel, because the law aforesaid,
entitled "a law for the settlement of intestate estates," was
repealed before the order was made authorizing said sale, and that
at the time of making of the said order, there was no law of the
State of Ohio authorizing the court of common pleas to
Page 27 U. S. 496
order the sale of real estate for the payment of debts, &c.,
of intestates. The court sustained the motion and overruled the
defendants' evidence. The defendants excepted to this opinion.
The jury found a verdict for the plaintiff, after which the
counsel for the defendants moved the court for the appointment of
commissioners under the occupying claimant law of Ohio to value
improvements. This motion was overruled and judgment was rendered
for the plaintiffs.
Page 27 U. S. 520
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This cause was fully argued at the last term on the validity of
the deed made by the administrators, and several acts which were
supposed to illustrate that question to which it is unnecessary now
to refer were cited and relied on. As it was a question of great
interest on which many titles depended, which was to be decided
entirely by the statutes of Ohio, and as the Court was informed
that the very case was depending before the highest tribunal of the
state, the case was held under advisement. The cause depending
before the state court, which was an ejectment for other land sold
by the same administrators under the same orders of the court of
common pleas, has been since decided, and the supreme court of the
state has determined:
1. That there was no law in the territory prior to the act of
1795 authorizing administrators to sell the lands and tenements of
an intestate.
Page 27 U. S. 521
2. That this law was repealed and ceased to have effect from and
after 1 June, 1805.
3. That the order of the court of common pleas of May term,
1804, directing the administrators of Israel Ludlow to sell a part
of the real estate of said Ludlow for the payment of his debts, did
not embrace the premises in question.
4. That the parol testimony offered in evidence to prove an
order of sale at the May term, 1805, was incompetent.
5. That the order of the said court at the August term, 1805,
was
coram non judice and void, and that the lessors of the
plaintiffs could not be divested of their title in consequence of
any act done in pursuance of that order.
At this term, the cause has been again argued and the counsel
for the plaintiffs in error have made several points which they
suppose to be still open.
They contend that the repeated declaration of this Court that it
will conform to the construction of the statutes of a state made by
its own tribunals does not apply to the decision respecting the
order made in August, 1805. They insist that the power of the court
to make this entry as of the May term preceding depends upon the
common law, not on the statutes of Ohio, and that the question is
still open for discussion.
Supposing it to be open, they maintain that the omission to
enter the order in May, when it was made, was a clerical misprision
which the court might correct in August and enter the order as of
May term. It has, they contend, the same effect as if it had been
actually entered in May, and, allowing this, the subsequent repeal
of the law before the sale was made could not affect the power to
sell which was given by the order, and therefore the sale is
valid.
To sustain this argument, all the propositions on which it rests
must be true. The decision of the state tribunal must be of a
character which this Court will consider, undoubtedly with great
respect but not as conclusive authority. The court of common pleas
must have had the power in August, after the repeal of the law
under which the order was made, to enter it as of May, and the
administrators must have had the power to sell in virtue of the
order, after the law by authority of which it was made, had been
repealed. If the
Page 27 U. S. 522
plaintiffs in error have failed in sustaining any one of these
propositions, the conclusion which has been drawn from them is not
supported.
The judges are not united in opinion on these several
propositions, but concur in thinking that the conclusion drawn from
the whole of them is not sustained. The power of the inferior
courts of a state, to make an order at one term as of another is of
a character so peculiarly local, a proceeding so necessarily
dependent on the judgment of the revising tribunal of the state,
that a majority considers that judgment as authority, and we are
all disposed to conform to it.
But were this question entirely open, the considerations which
appear to have influenced the judgment of the Supreme Court of Ohio
are certainly entitled to great weight. That a court of record,
whose proceedings can be proved by the record alone, should at a
subsequent term determine that an order was made at a previous term
of which no trace could be found on its records, and that too after
the repeal of the law which gave authority to make such an order,
is a proceeding of so much delicacy and danger, which is liable to
so much abuse, that some of us question the existence of the
power.
In the case as depending before this Court, there is still a
stronger objection to the validity of the order of August, 1805.
Its language does not import that the administrators had applied to
the court at the preceding May term for an extension of the order
of May, 1804, and that the court had granted their application and
made the order, which the clerk had omitted to enter, and that
therefore the order is now made with a direction that it should be
entered as of May. This is not its language. It makes no allusion
to any proceeding in May. It purports to have been made on an
original application by the administrators in August for an
extension of the order of May, 1804. On this original application
the court allows the administrators to sell the house and lots in
Cincinnati, and adds "this entry to be considered as of May term,
1805." The entry, on its face, does not import to be the correction
of the record by placing on it an order which had in fact been made
in the preceding May
Page 27 U. S. 523
and which the clerk had omitted to enter, but to be an original
proceeding in August, to which the court by its own authority gives
a retrospective operation. If any explanatory testimony could have
been received in the circuit court, none was offered. That court
was required to infer from the words "this entry to be considered
as of May term, 1805" that it was in fact made at that term and
that the clerk had totally omitted it. The certainty which is
necessary in judicial records and the principle that they prove
themselves forbade the court to draw this inference. The law being
then repealed, the order was
certainly coram non
judice.
It is also the opinion of one of the judges that had the order
even been made in May term, the repeal of the law before the sale
terminated the power to sell.
The counsel for the plaintiffs in error have also contended that
the interest of the administrators in the real estate as trustees
for the creditors was a vested interest which the repeal of the law
could not divest, and that they might proceed to sell under the
sanction of an order made even after the law was repealed.
This is a point on which we cannot doubt. The lands of an
intestate descend not to the administrators, but to the heir. They
vest in him, liable, it is true, to the debts of his ancestor, and
subject to be sold for those debts. The administrator has no estate
in the land, but a power to sell under the authority of the court
of common pleas. This is not an independent power, to be exercised
at discretion when the exigency in his opinion may require it, but
is conferred by the court in a state of things prescribed by the
law. The order of the court is a prerequisite, indispensable to the
very existence of the power, and if the law which authorized the
court to make the order be repealed, the power to sell can never
come into existence. The repeal of such a law divests no vested
estate, but is the exercise of a legislative power which every
legislature possesses. The mode of subjecting the property of a
debtor to the demands of a creditor, must always depend on the
wisdom of the legislature.
It is also contended that the jurisdiction of the court of
Page 27 U. S. 524
common pleas in testamentary matters is established by the
Constitution, and that the exclusive power of the state courts to
construe legislative acts does not extend to the paramount law so
as to enable them to give efficacy to an act which is contrary to
the Constitution.
We cannot admit this distinction. The Judicial Department of
every government is the rightful expositor or its laws and
emphatically of its supreme law. If in a case depending before any
court a legislative act shall conflict with the Constitution, it is
admitted that the court must exercise its judgment on both, and
that the Constitution must control the act. The court must
determine whether a repugnancy does or does not exist, and in
making this determination, must construe both instruments. That its
construction of the one is authority while its construction of the
other is to be disregarded is a proposition for which this Court
can perceive no reason.
But had the question never been decided in Ohio, this Court can
perceive no sufficient ground for declaring that the legislature of
the state might not repeal the law by which the court of common
pleas was authorized to direct, in a summary way, the sale of the
lands of an intestate. "Jurisdiction of all probate and
testamentary matters" may be completely exercised without
possessing the power to order the sale of the lands of an
intestate. Such jurisdiction does not appear to us to be identical
with that power or to comprehend it. The Constitution did not mean
and could not mean to deprive the legislature of the power of
exercising its wisdom on a subject so vitally interesting to the
people, nor do its words convey such an intent. Were it even true,
which we cannot admit, that the Constitution established the
jurisdiction of the court of common pleas in the case, still the
legislature might prescribe the rule by which that jurisdiction
should be exercised.
We are satisfied that there was no error in the instruction
given by the circuit court to the jury.
The plaintiffs in error contend that the court erred in
overruling the motion to appoint commissioners to value the
improvements in pursuance of the occupant law of Ohio
Page 27 U. S. 525
and in rendering judgment without conforming to that law. The
first section of the act provides that "An occupying claimant,"
circumstanced as was the plaintiff in error,
"shall not be evicted or turned out of possession until he or
she shall be fully paid the value of all lasting and valuable
improvements made by such occupying claimant, . . . previous to
receiving actual notice by the commencement of suit . . . unless
such occupying claimant shall refuse to pay the person so setting
up and proving an adverse and better title, the value of the land
without the improvements made thereon. . . ."
The 2d section proceeds to direct the court to appoint
commissioners to make the valuation, which had been prescribed by
the preceding section.
The counsel for the defendant in error insists that this law is
repugnant to the 10th section of the first article of the
Constitution of the United States, and to the ordinance of 1787 for
the government of the Northwestern Territory.
This Court does not think that these questions properly arise in
the present actual state of this controversy. The 7th Amendment to
the Constitution of the United States declares that "In suits at
common law where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved." This is a
suit at common law, and the value in controversy exceeds twenty
dollars. The controversy is not confined to the question of title.
The compensation for improvements is an important part of it, and
if that is to be determined at common law, it must be submitted to
a jury.
It has been said that the occupant law of Ohio, must, in
conformity with the 34th section of the Judicial Act, be regarded
as a rule of decision in the courts of the United States.
The laws of the states and the occupant law, like others, would
be so regarded independent of that special enactment, but the
exception contained in that section must be regarded likewise. The
law, so far as it consists with the Constitution of the United
States and of the State of Ohio, is a rule of property, and of
course a rule of decision in the
Page 27 U. S. 526
courts of the United States, but that rule must be applied
consistently with their constitution.
Admitting that the Legislature of Ohio can give an occupant
claimant a right to the value of his improvements, and can
authorize him to retain possession of the land he has improved
until he shall have received that value, and assuming that they may
also annex conditions to the change of possession which, so far as
they are constitutional, must be respected in all courts, still
that legislature cannot change radically the mode of proceeding
prescribed for the courts of the United States or direct those
courts, in a trial at common law, to appoint commissioners for the
decision of questions which a court of common law must submit to a
jury.
But this inability of the courts of the United States to proceed
in the mode prescribed by the statute does not deprive the occupant
of the benefit it intended him. The modes of proceeding which
belong to courts of chancery are adapted to the execution of the
law, and to the equity side of the court he may apply for relief.
Sitting in chancery, it can appoint commissioners to estimate
improvements as well as rents and profits, and can enjoin the
execution of the judgment at law until its decree shall be complied
with. If any part of the act be unconstitutional, the provisions of
that part may be disregarded while full effect will be given to
such as are not repugnant to the Constitution of the United States
or of the state or to the Ordinance of 1787. The question whether
any of its provisions be of this description will properly arise in
the suit brought to carry them into effect.
We think there is no error in the judgment, and it is
Affirmed with costs.
