NATCHEZ DIST. MS and ADAMS CO. MS
COURT RECORDS
 

"The Federal reporter : cases argued and determined in the circuit and district courts of the United States November 1881 to February 1882" James W. Goodwin, Editor, Vol.9, pgs.586 to 588 (California State Law Library, Sacramento, 1/2004) (MAD: see Adams Co. MS)
      UNITED STATES v. LEVERICH and others; District Court, S.D. New York; 9 F. 586; December 12, 1881.
      (Opinion:) BROWN, D.J. This is an action to recover a tax on distributive shares of personal property under section 124 of the act of June 16, 1864, (13 St. at Large, 285.)
      On June 7, 1864, Stephen Duncan executed to Charles D. Leverich and Henry S. Leverich a deed of personal property, consisting of stocks, bonds, railroad shares, etc., to the amount of about $227,500, in trust, to take possession of the same, to collect the interest thereon, and to pay the income thereof to himself and to his wife, in manner stated in the trust deed, until the death of the survivor of them, and thereafter to distribute the principal and any accumulated interest to his children. Charles D. Leverich, prior to and at the time of the execution of the deed of trust, had in his individual custody and possession all the property so conveyed. Both trustees signed the trust deed accepting the trust, but Henry S. Leverich never had the custody of any of the property, never received any of the proceeds of it, and never took any part in the execution of any of the duties imposed by the trust deed. The whole business of the trust was managed by Charles D. Leverich alone, who retained possession of the property, collected the income, and paid it over as directed by the deed -- in part to Stephen Duncan, until his death, in 1866, and in part to his wife, who died in 1868. Upon her death he distributed the whole property to and among the children of the grantor according to the terms of the trust. Charles D. Leverich died in 1876, and no tax was ever paid or claimed up to the time of his death. This suit to recover $3,805, the taxes alleged to be due upon the distribution of the shares to the children in 1868, was brought on September 13, 1879, against Henry S. Leverich, the surviving trustee, and the other defendants, who are the executors of the deceased trustee.
      I am of opinion that no tax accrued to the government upon the shares distributed under this trust deed, under section 124, as claimed. This case does not come under the first clause of the general words of that section, for the reason that the property here did not "pass after the passage of this act from any person possessed of such property, either by will or by the intestate laws of any state or territory." To come under the second clause of the general words of section 124 the case must be one of "a person having in charge or trust * * * any personal property * * * transferred by deed, etc., made or intended to take effect in possession or enjoyment after the death of the grantor, to any person or persons;" and it must also come under some one of the five following subdivisions of that section. But the only persons described in any of those five subdivisions are persons who, being entitled to the beneficial interest in such property, also stand in a certain relationship "to the person who died possessed of such property."
      Now, the facts here show that the grantor did not "die possessed" of said property. He had parted with the title to the property and the possession of it, by deed executed and delivered several years before his death, and before the passage of the act. The deed created a valid trust of personal property under the laws of this state, and in such cases "the whole estate is vested in the trustees in law and in equity, subject only to the execution of the trust. The person for whose benefit the trust is created takes no estate or interest in the property." No interest in this property which Mr. Duncan had at his death ever passed to his children. The whole legal title and the possession were in the trustees long before the grantor's death, and so continued for two years afterwards, without change, until the death of his wife, when the legal title to the property and the possession passed direct from the trustees to the children. What the children thus took was not anything which Stephen Duncan or any other person had "died possessed of," but what the trustees had had in their own possession along with the legal title long before. It appears, therefore, that the children did not take this property from any person "dying possessed of it," and therefore section 124 of the act of 1864 does not embrace this case. As to beneficial interests accruing, not "by will or intestate laws," but by deed "intended to take effect after the death of the grantor," the act can only apply to cases where, under such deeds, the ancestor or other relative of the beneficiaries mentioned in the five subdivisions of section 124 was entitled to hold possession till his death, and "died possessed" thereof. This is not such a case.
      The language of section 125 confirms the same view. It provides that the tax or duty aforesaid shall be a lien or charge upon "the property of every person who may die as aforesaid," etc. The words "every person who may die as aforesaid" can only refer to the words which are repeated substantially in each of the five subdivisions of section 124, viz., "the person who died possessed of such property," and the lien is given upon the property of such person only; and there is none such in this case. The act, I think, plainly contemplates those cases only, whether arising under will, intestacy, or trust deeds, in which the grantor, the testator, or deceased relative had the legal possession or ownership of the property up to his death, and not cases like this, where, in consequence of a valid trust created before the passage of the act, the grantor or ancestor had, according to the law of his domicile, no legal or equitable estate in the property at the time of his death, and where the property was subsequently distributed among his children through the medium of a long prior trust. The complaint should, therefore, be dismissed.
 

"U.S. Supreme Court Reports : Cases argued and decided in the Supreme Court of the United States" Vol.15 Lawyers Edition, by Stephen K. Williams, 1882; includes Vol.60 U.S. Reports, Dec. 1856; also reported in Vol.19 Howard and Vol.1 Miller's Decisions; pages 670-674 in Vol.15 Lawyer's Edition; pages 303-312 in Vol.60 U.S. Reports (El Dorado Co. CA Law Library 12/2003)
      WILLIAM BYERS, Appellant, v. FRANCIS SURGET; Supreme Court of the United States; 60 U.S. 303; 15 L. Ed. 670; 19 HOW 303; March 5, 1857, Decided; December 1856 Term.
      This was an appeal from the Circuit Court of the United States for the eastern district of Arkansas, sitting in equity. It was a bill filed by Surget, a citizen of Mississippi, to set aside a sale made under the circumstances, which are fully stated in the opinion of the court. The Circuit Court decreed that the purchase of the lands by Byers was fraudulent and void, and ordered the sale to be set aside. Byers appealed to this court.
      (opinion) The appellee, Francis Surget, a citizen of the State of Mississippi, instituted his suit in equity in the Circuit Court of the United States for the eastern district of Arkansas, against the appellant, the object of which suit was to annul as fraudulent and void a sale of lands belonging to the appellee, made by the sheriff of Jackson, in Arkansas, on the 18th of May, 1846. These lands, situated in the county and State above mentioned, are described in the pleadings according to the public surveys, amounting to more than fourteen thousand acres, and estimated in value at from forty or seventy thousand dollars, and were sold by the sheriff in satisfaction of a claim for $39, and conveyed to the appellant for the sum of nine dollars thirteen and one-half cents.
      The Circuit Court having pronounced the sale and conveyance fraudulent and void, and decreed a surrender and reconveyance of the lands by the appellant to the appellee, the former party has appealed from that decree to this court.
      The facts of this cause, as collated from the pleadings, and as established by the proofs, are substantially as follows:
      The appellee, during the year 1835, separately, and in his individual right, entered and purchased of the Government of the United States, at their land office at Batesville, in the State of Arkansas, a number of tracts or parcels of land, situated in the county of Jackson, in the State aforesaid, all of which are known and designated on the plats of the public surveys, and are enumerated and set forth in the bill. In the same year, (1835,) about the 10th of November, the appellee, together with John Ker, Stephen Duncan, and William B. Duncan, formed a partnership under the name and style of Willaim B. Duncan & Co., and, in the name and behalf of that firm, entered and purchased of the United States, at their land office at Batesville, various other tracts, lots, and parcels of land, lying in the same county and State, known and designated on the plats of the public surveys, and described and set out in the bill. Sometime in the year 1836, the partnership of William B. Duncan & Co. was, by mutual consent, dissolved; and the property, real and personal, belonging to the firm, including the purchases and entries of land made by them, was by like consent divided, and the portion of each partner allotted to him, and by him held in se curity. The portions assigned and allotted, under this distribution, to Stephen Duncan and William B. Duncan, as members of the partnership of William B. Duncan & Co., are particularly set out and described in the bill. Subsequently to the dissolution of the partnership of William B. Duncan & Co., and to the transfer to each partner of his respective rights and interest therein, Stephen Duncan and William B. Duncan, by deeds bearing date, the one on the 29th of December, 1836, and the other on the 23d of March, 1837, sold and conveyed to the appellee in fee simple, together with sundry other tracts and parcels of land, the lands, lots, and parcels, before mentioned as having been transferred and assigned to said Stephen and William B., as members of the firm of William B. Duncan & Co., all of which lots and parcels of land, so conveyed to the appellee by Stephen and William B. Duncan, as well as the portion thereof belonging to the appellee, as a member of the firm of William B. Duncan & Co., and the several lots and parcels of land originally and separately entered and purchased by the appellee in his own right, were included in the levy and sale impeached by the bill.
      In the year 1840, four years after the dissolution of the firm of William B. Duncan & Co., an action was instituted in the name of that firm, by William B. Duncan, in the Circuit Court of Jackson county, in the State of Arkansas, against one Noadiah Marsh, for a breach of covenant; and in that suit, under the plea of a subsequent discharge in bankruptcy, the court gave judgment in favor of the defendant for costs of suit.
      The bill charges that this suit instituted against Marsh was posterior in time to the dissolution of the partnership, and was commenced and prosecuted without the authority or knowledge of the other members of the recent partnership, who all resided beyond the limits of the State of Arkansas; and further avers, that the first knowledge of the existence of the suit on the part of the appellee was imparted to him by a communication informing him of the sale of his land. This allegation in the bill with respect to the period at which the suit against Marsh was instituted, and with respect also to the person by whom instituted, and the ignorance on the part of the appellee of the institution of that suit, is fully sustained by the deposition of William B. Duncan, and by the facts that the deeds from the other partners to the appellee, executed after the dissolution, bear date in the years 1836 and 1837; the action at law against Marsh not having been commenced until 1840, September 5th.
      But should it be conceded that the partnership was in full existence at the time of the institution of the suit against Marsh, and that the suit had been ordered or sanctioned by the firm, yet a judgment for costs against them, upon a ground which controverted neither the justice nor the legality of their claim, presents an anomaly in judicial proceedings, as irreconcilable with reason as it is believed to be without precedent.
      Upon this extraordinary judgment, the appellant, as the attorney for the defendant in the inferior court, assumed to himself the poser to tax the costs adjudged to the defendant; to tax them not in the capacity of clerk, the agent created by law for the performance of that service, nor in that of the legal deputy or subordinate of that officer, but, as it has been asserted, as a sort of amicus clerici, and with equal benevolence, or in order to remedy the ignorance and imbecility which, by way of justification of the appellant's acts, it is attempted to be shown, characterized the ministers of the law in that unfortunate locality, assumed to himself the power and the right not only of selecting the final process, but of prescribing also the description and the quantity of the property which he chose to have seized in satisfaction of that process; of furnishing a list of the parcels and amount which he chose to have thus seized; of ordering the sheriff to levy upon the whole of what he had so described; of preparing himself and furnishing to the officer such advertisements for the sale of the property levied upon as he approved; of requiring of the sheriff, under peril of responsibility for refusal, towards the satisfaction of an execution for thirty-nine dollars and ten cents, peremptorily to make sale of more than fourteen thousand acres of land, estimated by the witnesses from forty to seventy thousand dollars; and finally, under a proceeding irregular in its origin, commenced by himself, and by him controlled and managed to its consummation, of becoming the purchaser of the property estimated as above, for the sum of nine dollars thirteen and one-half cents.
      Such is the history of a transaction which the appellant asks of this court of sanction; and it seems pertinent here to inquire, under what system of civil polity, under what code of law or ethics, a transaction like that disclosed by the record in this case can be excused, or even palliated? To the appellant must necessarily be imputed full knowledge of this transaction; he was the attorney for the defendant in the State court; he is shown to have been not only the adviser, but virtually the executor, of every step taken for the enforcement of the judgment of that court; and, as a lawyer, it is reasonable to presume that he must have comprehended the nature and effects of the measures adopted by him and at his instance. The bill impeaches these measures as being contrived by the appellant for purposes of fraud and oppression, as is betrayed --
      1. By the anomalous character of the judgment procured by the appellant, without notice or knowledge on the part of the appellee.
      2. By the fact, that the process sued out upon the judgment at law was not made out by the only officer legally authorized for that purpose, but was calculated, and drawn up, and determined, and written out, by the appellant himself, and by his authority and direction delivered to the sheriff, who was ordered by this same party on what particular property and to what amount to levy the execution.
      3. By the facts, that whatever notices or advertisements may have been given or prepared previously to the sale of the lands levied upon, were prepared not by the sheriff, but by the appellant; and that such as were prepared by him were not published by the sheriff in the mode prescribed by the law, previously to the sale of lands under execution.
      4. By the wanton excessiveness of the levy insisted on by the appellant; this being an abuse of the process of the court, and evidence of a fraudulent design, with a view to incite suspicion, and to deter purchasers by reason of that suspicion, and by offering larger portions of property than many persons would be willing or able to purchase.
      5. By the peremptory demand upon the sheriff, and in opposition to the remonstrances of this officer, and under threats, in the event of his refusal, to force a sale of this large amount of property, under circumstances calculated to insure its ruinous sacrifice.
      6. The gross inadequacy of consideration given by the appellant for this large property, an effect produced by his own fraudulent contrivances.
      The ground upon which the defendant below, the appellant here, has rested his case, may in substance be reduced to the two following positions:
      1. The strength of his legal title acquired under the execution and sale, and under the conveyance from the sheriff, which execution, sale, and conveyance, he alleges were fair, and not fraudulent; and
      2. That sacrifices of land in the section of the State in which this sale occurred, similar to that complained of, were usual in sales under execution.
      With respect to the effect of the judgment at law, and of the proceedings taken for its enforcement, it is insisted, in the answer of the appellant, that this judgment having been rendered by a court of competent authority, and still remaining unreversed, neither the validity of that judgment nor the proceedings in virtue thereof can now be questioned.
      It is true, that with respect to the regularity of that judgment, or of any legal errors in obtaining it, this court or the Circuit Court could not take cognizance, nor exercise any appellate power for its reversal; and in any collateral attempt at law to impeach that judgment, it must be regarded as binding and operative. But with any fraudulent conduct of parties in obtaining a judgment, or in attempting to avail themselves thereof, this court can regularly, as could the Circuit Court, take cognizance. Such a proceeding is within the legitimate province of courts of equity, and constitutes an extensive ground of their jurisdiction. The true and intrinsic character of proceedings, as well in courts of law as in pais, is alike subject to the scrutiny of a court of equity, which will probe, and either sustain or annul them, according to their real character, and as the ends of justice may require.
      With reference to the conduct of the appellant, in procuring and enforcing the judgment at law, that conduct has been, by the answer of the appellant and by the argument of his counsel, sought to be sustained, upon the ground that, as attorney for Marsh, the appellant had the power and the right to control the judgment, and to carry it into effect. The power and right thus claimed for the appellant, like every other right and power, are bounded by rules of law and justice, and by consistency with the rights of others. So far as it was necessary to maintain and enforce the legitimate interests of Marsh, it was unquestionably within the competency of his attorney to interpose; but he could not, in pursuance of whatever he may have fancied legitimate, or of whatever he may have deemed judicious or promotive of advantage to his client or himself, usurp the authority and functions of officers on whom the law had devolved its just administration, and by that the preservation of the rights of the citizen.
      The offices of clerk and sheriff were never designed to be mere names, nor to be engines and pretexts, to be used at the will of any one. By what authority, then, could the appellant assume the functions of both clerk and sheriff; tax such costs as he deemed proper; order the seizure of property to an amount entirely arbitrary, as his cupidity or indiscretion might incline him, and command peremptorily the sale of the whole subject thus illegally and rapaciously seized upon, without the slightest reference to the value of the subject, in comparison with the demand to be satisfied, and then to become himself the possessor of the subject thus sacrificed by his own irregular and oppressive conduct, for a pretended consideration so trivial that it may be considered as nominal merely?
      In justification or in excuse for this assumption, it has been alleged and relied on by the appellant, (though the position is entirely unsustained by proof,) that it was rendered necessary by the ignorance of those officers to whom the duties of clerk and sheriff had been assigned by law; and had become a common practice in the particular part of the country where this proceeding occurred. If the position thus taken be true in fact, it rather aggravates than extenuates the wrong complained of, as it shows that, by the ignorance or the corruption of those officers of the law, the rights of the complainant had been surrendered to the mercy of one having a direct interest to invade those rights. It evinces, moreover, if true, a practice, in a profession heretofore deemed enlightened and honorable, highly calculated to bring that profession into merited disrepute.
      Upon the question of the illegality in the sale for want of notice by advertisement, it has been insisted by the appellant that the bill contains no charge with respect to such illegality, and that therefore no proofs as to that point can be admitted.
      It is undoubtedly the rule in equity, as well as at law, that the proofs must correspond with the allegations, and that evidence irrelevant or inapplicable to the latter will be regarded as immaterial. The bill in this case is less searchingly and minutely framed than it might have been on this particular point, yet it is considered as being sufficiently comprehensive, and as sufficiently specific at the same time, to embrace this point, and to justify proofs in relation thereto.
      It alleges as illegal and unwarrantable the taxing of the costs, the writing of the execution, the writing of the list and description of the lands required to be levied on, and the notices of sale by the appellant; the manner of publishing or putting those notices and the proceedings under them at the sale -- all as being unwarranted by law, and as having been concocted and carried out in fraud; all these allegations it was competent to the appellee to prove. The answer of the appellant -- after a general denial of fraud and unfairness, and after admitting the taxing of the costs, the writing of the execution, the description of the land to be levied upon, the directions of the sheriff, and the preparation of the advertisements, all by himself -- next insists upon the regularity and propriety of all these acts. He then proceeds to aver the performance of every prerequisite of the law with respect to such sales. After enumerating these prerequisites in detail, he endeavors to establish them by evidence. He says that the sheriff advertised the lands for twenty days in three of the most public places in each township of the county, in conformity with the statute; and he introduces the evidence of the sheriff and of other witnesses to maintain these averments.
      But in contravention of these statements are, first, the admission of the appellant that he himself, and not the sheriff, prepared the notices of sale; and, secondly, the evidence of the sheriff introduced and relied on by the appellant, so far from showing a compliance with the requisites of the law, establishes the fact that these were violated and disregarded; for the sheriff declares that he took the list and the description of the property, and the notices prepared by the appellant; and this officer admits that he did not put up advertisements, either in number or locality, as required by law, nor could he swear to such a proceeding by him. He says it was his practice to set up advertisements in places in which it was convenient for him to do so, and to hand over other notices to persons in whom he had confidence.
      Here, then, is proof, supplied by the appellant, that the law had not been complied with. The acts of an official deputy are evidence of the acts of his principal, and are binding on all who fall within the legal scope of those acts. But it is not perceived how the rights of suitors can be at all dependent upon the unofficial and individual confidence of one officer, even when that confidence may not have been misplaced. In this case, there is no proof that it has been fulfilled; for no person shows that the notices had been in fact put up and published according to the statute. The mere belief, either of the sheriff or any other person, can have no operation where the law calls for full legal proof.
      The objections here stated cannot be deemed narrow or technical with reference to a case like the present -- a case presenting no claim to favor either in law or in equity; a case in which the respondent was and is bound to pursue the hair line of legal and formal strictness, and from which, if he deviate in never so small a degree, he is doomed to fall. The conduct of the defendant, in all that he has done himself, and in all that he has exacted of others, is essentially important in this case as evidence of the quo animo with which this transaction was begun, prosecuted, and consummated. Another pregnant proof of the design of the appellant to grasp and to retain what no principle of liberality or equity could warrant, is the fact, clearly established, of his refusal after the sale to accept from the appellee, for the redemption of his lands so glaringly sacrificed, a sum of money considerably. exceeding in amount the judgment for costs, with all the expenses incidental to the carrying that judgment into effect. The appellant, by his irregular and unconscientious contrivances, achieved what he conceived to be an immense speculation; and he determined to avail himself of it, regardless of its injustice and ruinous consequences to the appellee.
      To meet the objection made to the sale in this case, founded on the inadequacy of the price at which the land was sold, it is insisted that inadequacy of consideration, singly, cannot amount to proof of fraud. This position, however, is scarcely reconcilable with the qualification annexed to it by the courts; namely, unless such inadequacy be so gross as to shock the conscience; for this qualification implies necessarily the affirmation, that if the inadequacy be of a nature so gross as to shock the conscience, it will amount to proof of fraud. Again, in answer to the same objection, it is insisted, that whatever presumption arising from inadequacy of consideration may be permitted with respect to transactions strictly limited to vendor and vendee, no unfavorable inference from that cause is permissible with respect to sales made under judicial process. Certainly the facts that sales are made by the officers or ministers of the law, and under its authority, may properly weaken the usual presumption arising from gross inadequacy; but to declare that such inadequacy, connected with other facts and circumstances evincing fraud or unfairness, could never be regarded as affecting sales under process, would be as rational as the assertion that process of law could never be abused, and that the ministers of the law must necessarily be intelligent and upright, and incapable of being ever willingly or unwittingly made the instruments of fraud or oppression. But the transaction now under review can with no show of propriety be tested by the single fact of inadequacy of consideration, however gross and extraordinary that inadequacy has been. We perceive in this transaction other ingredients that have been mingled therewith by the appellant, that give to the objection of inadequacy an effect that, standing isolated and alone, could not be ascribed to or deduced from it.
      Thus, when we advert to the irregular and extraordinary character of the judgment procured through the agency of the appellant -- to his eagerness, that could not await the action of the officer of the court -- his assumption of the functions of the clerk, in taxing the costs, and in writing out the execution -- his preparation and delivery to the sheriff of a description and list of the lands of the appellee, amounting to more than fourteen thousand acres -- his requisition of a seizure of the whole of those lands in satisfaction of the sum of thirty-nine dollars -- his inflexible demand upon the sheriff, under threats of prosecution, to expose to sale the entire levy -- his purchase of all these lands for the sum of nine dollars and thirteen and a half cents -- and his refusal after the sale and purchase to accept, in redemption of these lands so sacrificed, a sum of money tendered to him much more than equal to the costs, with all the expenses incident to the judgment: when all these acts on the part of the appellant are adverted to, they impel irresistibly to the conclusion, that the gross inadequacy of consideration in the sale and purchase of these lands was the premeditated result which the proceedings by the appellant were put in practice to insure. They betray that malus dolus in which the design of the appellant was conceived, which appears to have presided over and regulated the progress of the design from its birth to its consummation; to which design the appellant has tenaciously clung, in the seeming expectation that it was beyond the corrective powers of law or justice.
      Upon the whole case, we are constrained to view the entire transaction impeached by the appellee as one that cannot be sustained without the subversion of the principles and rules either of legal or moral justice. We accordingly approve the decision of the Circuit Court in so regarding it, and order that decree of be affirmed.
      MAD: See also, in Jackson Co. Arkansas, the case of SURGET v. BYERS; Case No. 13,629; Circuit Court, D. Arkansas; 23 F. Cas. 436; Hempst. 715; April, 1845; from "The Federal Cases, comprising cases argued and determined in the circuit and district courts of the United States from the earliest times to the beginning of the Federal Reporter, arranged alphabetically by the titles of the cases and numbered consecutively" Cases 13,390 to 14,077, Stevens - Toledo; Vol.23, pgs. 436-440 (California State Law Library 12/2003)
      MAD: See also, in Monroe Co. Arkansas, the case of DUNCAN et al. v. BISCOE et al, Trustees R. E. BANK; Supreme Court of Arkansas; 7 Ark. 175; January, 1846, Decided; from "Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January and July term 1846 and January term 1847" ("Arkansas Reports") Vol.7, by E.H. English, pgs.175 to 194 (California State Law Library, Sacramento, 12/2003)
      MAD: See also, in Monroe and Pulaski Co. Arkansas, the case of PEAY, Receiver, Etc., v. DUNCAN et al; in which the original complainants were Henry L. Biscoe, Sandford C. Faulkner, and others, residuary trustees of the Real Estate Bank for which Gordon N. Peay became receiver and substituted complainant, and the defendants were William B. Duncan, Francis Surget, John Ker, Alfred Mullins, William McBride and John Smith; Supreme Court of Arkansas; 20 Ark. 85; January, 1859, Decided; from "Reports of cases at law and equity argued and determined in the Supreme Court of Arkansas; January, May and October terms 1859" ("Arkansas Reports") Vol.20, by L.E. Barber, pgs.85 to 92 (California State Law Library, Sacramento, 12/2003)
 

"Reports of Cases Argued and Decided in The Supreme Court of the United States" Book XIII (13 L Ed. pgs.1050 to 1051), by Stephen K. Williams, Containing Howard Vol.9, 10, 11, and 12; (12 How pgs.423 to 426) (El Dorado Co. CA Law Library 12/2003)
      DUNCAN LINTON, CHARLOTTE LINTON and her husband, FRANCIS SURGETTE, STEPHEN DUNCAN guardian of MARY LINTON and JOHN LINTON, Minors, Plaintiffs in error, v. FREDERICK STANTON; Supreme Court of the United States; 53 U.S. 423; 13 L. Ed. 1050; 12 HOW 423; March 1, 1852, Decided December 1851 Term.
      This case was brought up from the Supreme Court of the State of Louisiana for the Eastern District, by a writ of error issued under the 25th section of the Judiciary Act.
      The plaintiffs in error, on the 19th June, 1848, filed their petition in the Third District Court of New Orleans, stating themselves to be residents of Mississippi, and the only heirs and representatives of John Linton, deceased, and as such in possession of his property.
      That on the 13th May, 1839, the defendant, Stanton, owed the estate of John Linton, then deceased, the sum of $11,446.60, and on that date executed his two promissory notes in favor of Stephen Duncan, (one of the petitioners, and administrator to Linton,) one for $5,856.40, due the 1st April, 1841, the other for $5,590.20, payable the 1st April, 1842.
      The petitioners further state, that on the 25th August, 1842, and also on the 25th December, 1843, the defendant promised to pay each of these notes, but has neglected and refused to do so, and that the debt still remains due and unpaid.
      The two notes, they state, were made and fell due in the State of Mississippi, where the legal interest on all debts due and unpaid, is 8 per cent. That the defendant lives in Mississippi, but was then in New Orleans.
      They pray judgment against him for the amounts of the notes, with interest from 13th May, 1839, till paid, and for general relief.
      Stanton filed his exceptions, alleging that the petition did not fully set out and state the nature of the demand, requiring the plaintiffs to state whether the promises charged were verbal or written, and if written, claiming oyer.
      Plaintiffs filed two letters from Stanton to Duncan, dated, respectively, the 25th day of August, 1842, and the 25th December, 1843, to which in their supplemental petition they refer as the written evidence of the promises alleged in their original petition, and also charge verbal promises by Stanton to pay, made both before and after the dates of these letters.
      To this supplemental petition, Stanton filed his exception, alleging that the verbal promises above charged were insufficiently stated, from failure to mention to whom and when they were made.
      The plaintiffs filed an amended petition, stating that these verbal promises were made to Stephen Duncan, the representative of John Linton, on each and every day of the years 1842, 1843, 1844, 1845, 1846, and 1847.
      Stanton's answer denies all the allegations of the original and supplemental petitions; and specially pleads, that on the -- day of    , 1842, he applied to the United States District Court, in and for the State of Mississippi, where he then resided, for the benefit of the bankrupt law of the United States; and after due proceeding had, he obtained his discharge and certificate, and that these proceedings and discharge took place after the date of the note sued on.
      Pleads his discharge in bar, and also that the plaintiffs' demand is barred by prescription.
      His supplemental answers allege that the notes on which plaintiffs sue, and which were made before his bankruptcy, were secured by a deed of trust or mortgage upon real estate, and that the plaintiffs, or Duncan, for their use, purchased it and paid for the same by said notes, thus receiving payment and compensation. And further, that by the law of Mississippi, verbal promises to pay a debt discharged by bankruptcy are not binding.
      Amongst the testimony offered on both sides, the defendant produced the proceedings in bankruptcy.
      The District Court of New Orleans decreed in favor of the defendant.
      The plaintiffs appealed to the Supreme Court of Louisiana, which confirmed the decision below, because, --
      1st. The jurisdiction of the United States District Court in matters of bankruptcy not having been contested, a decree of that court, declaring that all the requisitions of the bankrupt act had been complied with, was conclusive when drawn collaterally into question.
      2d. Because the subsequent promises of the defendant, relied on by the plaintiffs, did not include this debt.
      The plaintiffs then brought the case up to this court.
      (opinion) This is a writ of error to the Supreme Court of Louisiana for the Eastern District, and a motion has been made to dismiss it for want of jurisdiction.
      The plaintiffs in error, it appears, filed their petition in the Third District Court of New Orleans, against the defendant, to recover certain sums of money which they alleged were due to them on two promissory notes which had been executed by the defendant.
      The defendant pleaded his discharge under the bankrupt law of the United States, and at the trial offered in evidence the record of the proceedings in bankruptcy in the District Court in which he had obtained his certificate. Objections were taken to the regularity and validity of this discharge, but they were overruled by the court, and judgment rendered for the defendant. The plaintiffs appealed to the Supreme Court of the State, where the judgment of the court below was affirmed, and this writ of error is brought to reverse that judgment.
      The writ must, we presume, have been prosecuted under a misconstruction of the 25th section of the act of 1789, ch. 20.
      We have no jurisdiction over the judgment of a State court upon a writ of error, except in the cases specified in that section. And the jurisdiction of this court is there limited with great care and in plain terms. It gives a writ of error to this court where a party claims a right or exemption under a law of Congress, and the decision is against the right claimed. Undoubtedly the defendant in pleading his discharge under the bankrupt law claimed a right or exemption under a law of Congress. But in order to give jurisdiction something more is necessary; the judgment of the State court must be against the right claimed. In the case before us the decision was in favor of it, and consequently no writ of error will lie to this court under the provisions of the act of 1789.
      And as we have no jurisdiction, we cannot examine into the objections made to the validity of the proceedings in bankruptcy. The judgment of the State court that they were valid, and the defendant thereby discharged from the debt due to the plaintiffs, is conclusive between the parties.
      Nor has this court the power to examine into the other question which appears to have arisen as to the legal effect of certain promises which the defendant is alleged to have made after he obtained his certificate in the bankrupt court. The legal obligation of such promises depends upon the laws of the State in which they were made; and in suit in a State court the decision of that question by the highest tribunal of the State cannot be reviewed in any court of the United States.
      This case must therefore be dismissed for want of jurisdiction.
      This cause came on to be heard on the transcript of the record from the Supreme Court of the State of Louisiana for the Eastern District, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, dismissed, for the want of jurisdiction.
 

"Cases decided in the Court of Claims of the United States at the December term 1867" by Charles C. Nott and Samuel H. Huntington; Vol.3, pgs.400 to 404 (call number KF125.C5 C55, California State Law Library 12/2003)
      TURNER'S CASE. George W. Turner v. The United States; United States Court of Claims; 3 Ct. Cl. 400; December 1867, Term.
      The claimant for many years was the owner of a cotton plantation in Tensas parish, State of Louisiana. Before 1853 he had resided at Natchez, in the State of Mississippi. In that year he removed to the city of New York. He retained his plantation in Louisiana, and conducted its operations by means of an overseer. In August, 1860, he took out his passports to sail for Europe, but was prevented by sickness in his family and the death of a brother from going until the 26th April, 1861. He remained abroad until the autumn of 1864, when he returned to New York, where he still resides.
      When about to sail for Europe, and just at the breaking out of the war, he procured his brother-in-law, William Poyntell, to go to Louisiana to assist in the care and superintendence of his estates there. Mr. Poyntell remained there until after the return of Mr. Turner, in December, 1864.
      Some time during the war the confederate authorities visited the plantation and burned about a thousand bales of cotton belonging to the claimant, who was considered and treated by them as an alien enemy.
      The property, the proceeds of which are claimed in this suit, consisted of 68 bales and 22 bags of ginned cotton, raised upon the claimant's plantation, and which was concealed to prevent its destruction by the confederates. When the district of country in which it was situated fell into the hands of the national forces, they seized this cotton as abandoned property, and by the military it was turned over to the treasury agent, and by him sold, and the net proceeds have been paid into the treasury of the United States.
      That it was the property of the claimant is clearly and distinctly proved; as little doubt exists of the loyalty of the claimant. He had for a good many years before the war given up his residence in the south; he was at its commencement a citizen and resident of the State of New York; all the presumptions, therefore, were in his favor, as they are against those resident in the insurrectionary districts. But apart from this, he has proved his positive and actual loyalty by the best and clearest evidence. Hon. Robert J. Walker, to whom he is related by marriage, swears that he has known him well and intimately for more than thirty years; that in all that time he was consistently opposed to nullification and secession; that he saw him on the day he sailed from New York for Europe, in 1861, and again several times in Europe in 1863 and 1864, and that in all his actions and sentiments during the entire war he was consistently and uniformly loyal. This testimony is corroborated by the evidence of Dr. Stephen Duncan, who had known the claimant forty years. All this is sustained by a number of other witnesses, and also by the fact that his plantation, which had been seized and the property on it, was restored to him by the Secretary of the Treasury because his loyalty was undoubted, and because the property had not been abandoned, and was not subject to capture within the meaning of the acts of Congress.
      After the action was brought by the claimant and the case prepared for trial, James M. Haworth made application to this court, setting forth that he was the legal trustee of Clark, Wright & Co., loyal citizens, and that Clark, Wright & Co., were the legal bona fide owners of the property, the proceeds of which were claimed by Turner in this case, and praying that they might be made parties to the suit by interpleader, and thereby be allowed to prove their ownership of the property and their right to the proceeds. Upon the hearing of the respective claimants we allowed the interpleader, and Mr. Haworth filed his petition in March, 1867.
      The testimony presented in this record leaves no doubt that this property belonged to Mr. Turner. It was cotton grown upon his plantation, which he had owned for more than forty years. His title to it was undisputed and indisputable. His loyalty is not only not impeached by any proof, but is sustained by the clearest and strongest testimony.
      So far as Mr. Haworth or those he represents are concerned, they have failed to show a spark of right or title to this property, or its proceeds.
      We therefore, upon full consideration of the premises, do order, adjudge, and decree that the said James M. Haworth, trustee, &c., take nothing by his petition, and that the United States, as well as the said George W. Turner, go thereof without day, and that the said petition be dismissed.
      And it is further considered, adjudged, and decreed that the said George W. Turner be awarded the sum of $22,074.03, being the net proceeds of the property claimed in this suit, now in the treasury of the United States, and that the same be certified to the Secretary of the Treasury for payment, &c.
 

"Reports of cases argued and determined in the High Court of Errors and appeals for the state of Mississippi" by W.C. Smedes and T.A. Marshall of Vicksburg, Reporters to the State, Vol.VIII, Cases for January 1847; ("Mississippi Reports") Vol.16, pgs.456 to 461 (California State Law Library 12/2003) (MAD: ?? see Hinds Co. MS)
      HORACE GRIDLEY v. JOHN DUNCAN and EDWARD DUNCAN; Supreme Court of Mississippi; 16 Miss. 456; 8 S. & M. 456; January, 1847, Decided.
      On appeal from the circuit court of Adams county.
      The record in this case shows the following facts, to wit: That on the 24th day of February, 1838, John Duncan and Edward Duncan, copartners, under the name and firm of John Duncan & Co., recovered a judgment in the circuit court of Adams county, against Horace Gridley, for the sum of $121.90, besides costs of suit. That on the 20th day of February, 1843, Gridley was declared a bankrupt, and obtained his discharge as such, by a decree of the district court of the United States, in and for the southern district of Mississippi. That on the 19th January, 1844, Thomas Barrett and wife, for the consideration of $750, conveyed to Gridley a tract of land in Washington county, in this state, containing 198 15/100 acres.
      That on the 16th day of November, 1844, John Duncan & Co. sued out an execution from the office of the clerk of the circuit court of Adams county, on said judgment, directed to the sheriff of Washington county, and made returnable to the May term of said court, in the year 1845; which execution was received on the 6th January, 1845, and levied on said land. And on the 14th day of April, 1845, the sheriff of Washington county sold the same, and John Duncan became the purchaser of the whole tract, for the sum of ten dollars. At the May term, 1845, being the return term of said execution, Gridley entered the following motion in said cause: "Motion by defendant to quash the levy and sale made by the sheriff of Washington county, because that, before said levy and sale, and after the judgment under which said execution issued, the said defendant became a bankrupt, under the act of congress, in such case made and provided, and because the said land was acquired by said defendant after his said bankruptcy, and because of the inadequacy of price, and other causes set forth in affidavit and exhibits." Notice was given to the attorney of record of John Duncan & Co., who, declining to defend the motion, it was continued, and actual service of notice of the pendency of the motion was made on the plaintiff in execution. At the May term, 1846, the motion came on to be heard, and was opposed by John Duncan & Co. on the ground that the court could not set aside said sale, or quash said execution, levy, and sale, by so summary a proceeding as that of a motion, which opposition was sustained by the court, and the motion overruled, and judgment rendered in favor of John Duncan & Co. and against Gridley, for costs. To which decision of the court Gridley excepted, and prayed an appeal to this court.
      The appellant assigns the following errors:
      1. The court below erred in overruling the motion of appellant.
      2. The circuit court erred in rendering judgment for costs against appellant.
      3. The circuit court erred in refusing to entertain jurisdiction of the motion made by appellant, for the causes assigned.
      Sanders and Price, for appellant. ... In this case it appears that the plaintiffs are the purchasers, after notice of discharge of defendant under the bankrupt law, of a property worth near $2000, for the sum of ten dollars. The motion is made at the return term of the process, whilst the court has control over it. Had a stranger purchased without notice the law might have been different. The parties are duly notified of the motion, appear to it, and resist it, not upon its merits, or the controverting any fact alleged, but because the court could not set aside said sale, or quash said execution, levy and sale, by so summary a proceeding as that of a motion, and the court sustains the opposition, and refuses the motion, with cost. (MAD: more arguments of counsel omitted here)
      Mr. Justice THACHER delivered the opinion of the court.
      This was a motion in the circuit court of Adams county, "to quash the levy and sale made by the sheriff of Washington county, because that before said levy and sale, and after the judgment under which said execution issued, the said defendant became a bankrupt, under the act of congress, in such case made and provided, and because the said land was acquired by said defendant, after his said bankruptcy, and because of the inadequacy of price, and other causes set forth in affidavits and exhibits."
      The facts of this case, as presented by the record, are different from those in Flournoy v. Smith et al. 3 Howard 62, and probably present a much stronger case; but it must be observed that the decision in Flournoy v. Smith et al. was not made upon the merits in that case; but upon the question of law, whether a motion could be entertained whereby to determine the merits, that is, whether a motion were the appropriate remedy. In that case, this court said: "But it is conceived that the court below had no power to determine these questions, under a mere suggestion or motion. The constitutional law of this country provides, that no man shall be deprived of his liberty, life, or property, except by due course of law. Is it according to any of the forms of proceeding, known to the common law or statute law of this state, for the presiding judge, in a court of common law, to divest another of his title to the freehold in land, upon a naked motion? A law which should confer such a power, would be an infringement of the right of trial by jury, so cautiously guaranteed by our fundamental law to every citizen. What is the effect of the judgment in this case? It is to dispossess Flournoy of the land in question. But how is the court to enforce its judgment? Can it order a writ of habere facias possessionem? Can it order the sheriff's deed to Flournoy to be delivered up to be cancelled? Has the judgment that effect? Surely not. It can then have no effect whatever, and is, therefore, totally void. For this reason, the judgment of the court below must be reversed, and the motion dismissed." It will be thus clearly seen, that a motion is not the remedy compatible for the end sought to be obtained, and that the circuit court did not err in overruling the motion.
      Judgment affirmed.
 

END

Return to the Adams Co. MS Research File

Return to Index to Duncan Research Files in Mississippi

Return to The Genealogy Bug's Home Page