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Court Cases Submitted to the site by T.
MS State Supreme Court
April Term 1856
James F. Bohannon, Plaintiff in Error, v. Joseph Binns.
Corporation : Dissolution Of.—The question whether a corporation has been
dissolved by a non-user, or mis-user of its franchises, cannot be
tried in an action instituted by the grantor to recover the possession of realty
which had been conveyed by him to the corporation. It must be
regarded as legally in existence, until a judgment of forfeiture has been
pronounced in a proceeding of quo warrant.
In error to the Circuit Court of Kemper county. Hon. John Watts, judge.
The plaintiff in error sued the defendant in error for the recovery of certain
premises lying in the town of DeKalb, and which had formerly been conveyed by
the plaintiff to the DeKalb Female Academy, a corporation, organized under the
general incorporation law of this State, passed in 1848. The plaintiff sought a
recovery, upon the ground that the corporation had been dissolved, and that the
land had thereby reverted to him. It appeared by the constitution of the
corporation, that five trustees were to be elected at stated periods from among
the stockholders, and that they were to continue in office until their
successors were duly elected. It also appeared that the regular number of
trustees had been
elected, but that the corporation had failed for a long time to elect others.
The plaintiff offered to show that said corporation was dissolved, by proving
that all the stock had been transferred to, and was owned by one individual,
thereby rendering it incapable of electing trustees and of acting; that there
were now no trustees, and that none could be elected according to the
constitution of the corporation ; that by means of trustees alone the purposes
of the corporation could be carried out; and that the only remaining stockholder
had, by his acts, defeated the objects of the corporation, by taking possession
of the academy, and refusing to permit a school to be taught there. All which
the court refused, and
excluded the same from the jury, and the plaintiff excepted.
The court charged the jury for the defendant, as follows: " That unless a
dissolution of the corporation had been judicially declared by a proceeding
under a quo warranto, there was and could be no dissolution." To the giving of
which plaintiff also excepted. Verdict and judgment for defendant. The plaintiff
prosecutes this writ of error.
Jarnagin and Jones, for plaintiff in error.
1. The doctrine is well settled, that upon the dissolution of a corporation the
real estate belonging to it reverts to the grantor, if alive, and if dead, to
his heirs. 24 Miss. R. 278; Angell and Ames on Corp. § 779.
2. The court erred in excluding the testimony offered by plaintiff, and in
giving the instructions asked for by defendant That a corporation can be
dissolved in many ways other than by a judicial proceeding by quo warranto,
first determining and declaring its dissolution, is clear. It may be dissolved
by the death of all its members ; and when an integral portion of it is gone. 1
Kinne, Law Comp. 282; Angell and Ames on Corp. § 770. It may be dissolved by a
surrender of its charter. Ib. 6 T. R. 277; 5 B. & C. 412,425; 8 Mod. R. 361; 1
Salk. 191; 3 T. R. 196; 2 East, 72; 4 Ib. 335; 2 Keil. on Corp. 468 et seq.; 2
Kent, Com. 310 331; 7 Mass. R. 185; 16 lb. 86, 87; 7 Conn. R. 45; 15 Johns. 456;
4 Gill & Johns. 1
9 Ohio, 203; 8 Pet. 281.
The constitution of the Female Academy required five trustees who were
stockholders, for its management. There is now only one stockholder, and hence
it is impossible, according to its own fundamental law, that it can have any
longer a legal existence. If it be argued that the five trustees who were
legally elected, continue in office until their successors are elected, the
reply is, that they cannot be trustees without being stockholders; and when they
ceased to be the latter, they could no longer be officers.
T. Reavis, J. S. Hamm, and Freeman and Dixon, for defendant in error.
1. The failure to elect the trustees cannot operate as a dissolution or
forfeiture. Smith v. The Natchez Steamboat Co., 1 How. 479; Angell and Ames on
Corp. 85, 86, and notes; lb. 653-656; 2 Bac. Abr. tit. Corporation, (G), 482.
2. The dissolution of the corporation can only be shown by a judicial proceeding
declaring it. 2 Cushm. 326; 2 Kent, Com., (3d ed.) 312,313; Angell and Ames on
Corp. 86; 1 Bl. Com. 485, note 21; 6 Cow. R. 23; 15 New Hamp. R. 162; 6 Geo. R.
130 8 Humph. R. 235; 20 Conn. R. 447, 544; 1 Maryland Ch. Decis. 107; 1 Harris,
(Pa.) R. 133; 2 Doug. 124.
Fisher, J., delivered the opinion of the court.
The plaintiff in error brought this action in the Circuit Court of Kemper
county, to recover a certain tract of land, situate in the town of De Kalb, and
in the possession of the defendant.
It appears from the evidence that the plaintiff conveyed the land to a certain
academy, which had been incorporated
by an act
of the legislature; and the ground upon which he sought to sustain his action
was, that the corporation had been dissolved, and that the land, therefore,
reverted to the donor. It appears that by its charter, a certain number of
trustees shall be elected at stated periods, to manage the affairs of the
corporation; but that the trustees who may be in office, shall continue to hold
their offices until their successors shall be duly elected. It also appears that
the whole stock of the Head v. Wash. academy is owned by one individual.
Wherefore it is contended on behalf of the plaintiff, that as the power to elect
trustees no longer exists, the corporation is dissolved. This may be a good
cause of forfeiture, and a court, in a proper proceeding, might declare a
forfeiture of the franchise; but until such judgment shall be pronounced, the
corporation must be regarded as still in existence. We are, therefore, of
opinion, that there was no error in the instructions of the court below.
Judgment affirmed.
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Cases argued and decided in the Supreme Court of Mississippi ..., Volume 31 By
Mississippi.
Supreme Court, Volney Erskine Howard, William C. Smedes, Thomas Alexander
Marshall, John Franklin Cushman, James Zachariah George, Reuben O. Reynolds,
Mississippi. High Court of Errors and Appeals
April Term 1856
James M. Campbell and Wife V. Elizabeth Webster.
Will : Probate.—It makes no difference whether a will has been probated or not,
so far as relates to the title of the legatees to the property bequeathed, if
the will makes that disposition of the estate which the law would have done in
case of intestacy. .
Appeal from the Probate Court of Kemper county. Hon. William G. Gill, judge.
The appellee, Elizabeth Webster, filed her petition in the Probate Court of
Kemper county, seeking distribution of the estate of Mary J. Puchet. The
following facts only are necessary to be stated: James Puchet died, and by his
will left his estate to be equally devided between Mary J. Puchet, his widow,
and Susan E. Campbell, wife of James M. Campbell, his only child. This will was
never probated, except in vacation. Mrs. Puchet, the widow, afterwards died,
having made a will, by which she gave all her estate derived from her husband to
Elizabeth Webster, the appellee, for life, and then to the said Susan Campbell,
her only child; and appointed the appellee her executrix. No division of the
estate of
James Puchet had ever been made, and the object of the present proceeding was to
procure such division, and also to secure the legacy for life given to Elizabeth
Webster.
The Probate Court granted the relief sought; and Campbell and wife appealed.
Geo. L. Potter, for appellant.
Freeman and Dixon, for appellee.
Fisher, J., delivered the opinion of the court.
The appellee filed her petition in the Probate Court of Kemper county, alleging
among other things that Mary J. Puchet, about the year 1849, made her last will
and testament, by which she bequeathed one undivided half of her estate to the
petitioner for life; that the estate consists of eleven slaves, and other
personal estate. That one Elizabeth Susan Campbell, wife of one James M.
Campbell, and daughter of the said testatrix, is entitled to the other moiety of
said property. The object of the petition is to have the estate divided between
the petitioner and Mrs. Campbell.
Several points are made by counsel, but there is really but one which requires
notice, and that is this. It is said that the will of James Puchet, under which
Mary Puchet is said to derive her title, has never been admitted to probate.
Admitting this objection to exist, it in no manner affects the title to the
property. Mrs. Puchet, was the widow, and Mrs. Campbell, the only child of James
Puchet; and if it be true that he died intestate, or his will has not been
established, the widow and daughter would take under the law; the will
professing to give only such title as the law would give in case of intestacy.
Judgment affirmed.
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Cases argued and decided in the Supreme Court of Mississippi ..., Volume 31
By Mississippi.
Supreme Court, Volney Erskine Howard, William C. Smedes, Thomas Alexander
Marshall, John Franklin Cushman, James Zachariah George, Reuben O. Reynolds,
Mississippi. High Court of Errors and Appeals
April Term 1856
James M. Campbell and Wife V. Elizabeth Webster.
Will : Probate.—It makes no difference whether a will has been probated or not,
so far as relates to the title of the legatees to the property bequeathed, if
the will makes that disposition of the estate which the law would have done in
case of intestacy. .
Appeal from the Probate Court of Kemper county. Hon. William G. Gill, judge.
The appellee, Elizabeth Webster, filed her petition in the Probate Court of
Kemper county, seeking distribution of the estate of Mary J. Puchet. The
following facts only are necessary to be stated: James Puchet died, and by his
will left his estate to be equally devided between Mary J. Puchet, his widow,
and Susan E. Campbell, wife of James M. Campbell, his only child. This will was
never probated, except in vacation. Mrs. Puchet, the widow, afterwards died,
having made a will, by which she gave all her estate derived from her husband to
Elizabeth Webster, the appellee, for life, and then to the said Susan Campbell,
her only child; and appointed the appellee her executrix. No division of the
estate of
James Puchet had ever been made, and the object of the present proceeding was to
procure such division, and also to secure the legacy for life given to Elizabeth
Webster.
The Probate Court granted the relief sought; and Campbell and wife appealed.
Geo. L. Potter, for appellant.
Freeman and Dixon, for appellee.
Fisher, J., delivered the opinion of the court.
The appellee filed her petition in the Probate Court of Kemper county, alleging
among other things that Mary J. Puchet, about the year 1849, made her last will
and testament, by which she bequeathed one undivided half of her estate to the
petitioner for life; that the estate consists of eleven slaves, and other
personal estate. That one Elizabeth Susan Campbell, wife of one James M.
Campbell, and daughter of the said testatrix, is entitled to the other moiety of
said property. The object of the petition is to have the estate divided between
the petitioner and Mrs. Campbell.
Several points are made by counsel, but there is really but one which requires
notice, and that is this. It is said that the will of James Puchet, under which
Mary Puchet is said to derive her title, has never been admitted to probate.
Admitting this objection to exist, it in no manner affects the title to the
property. Mrs. Puchet, was the widow, and Mrs. Campbell, the only child of James
Puchet; and if it be true that he died intestate, or his will has not been
established, the widow and daughter would take under the law; the will
professing to give only such title as the law would give in case of intestacy.
Judgment affirmed.
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Cases argued and decided in the Supreme Court of Mississippi ..., Volume 31 By
Mississippi.
Supreme Court, Volney Erskine Howard, William C. Smedes, Thomas Alexander
Marshall, John Franklin Cushman, James Zachariah George, Reuben O. Reynolds,
Mississippi. High Court of Errors and Appeals
April Term 1856
James F. Bohannon et al., Plaintiffs in Error, v. Madison and William Fulton,
Defendants in Error.
The purchaser of a slave from an executor cannot avoid the payment of the
purchase-money therefor, upon the ground that the sale was illegal and void, and
that he derived no title, unless he instantly return, or offer to return the
property to the possession of the executor.
In error to the Circuit Court of Kemper county. Hon. John Watts, judge.
The defendants in error sued the plaintiffs in error, in the Circuit Court of
Kemper county, on a promissory note for eleven hundred and sixty-five dollars.
The defendants, among other pleas, answered, "that the promissory note sued on
was given for a certain slave, named Daniel, which
was sold by plaintiffs as administrators with the will annexed, of Samuel
Fulton, deceased, on the 7th day of December, 1852. and purchased by defendant,
Bohannon; that the slave thus sold, and which was the sole consideration of the
note sued upon, was, with several other slaves, bequeathed by said
testator, Samuel Fulton, deceased, to his children viz, David, John, Samuel,
Hiram, Madison, William Green and Elizabeth, to be equally divided among them;
that a decree for the sale of all of said slaves, was made by the Court of
Probate of Kemper county, in the State of Mississippi, at the November
Term, 1852, upon the application of the said administrators with the will
annexed of Samuel Fulton, deceased, made to the said court at said November
term, 1852, who represented to the court that they wished to sell said slaves,
(together with other property,) for the purpose of paying legacies and effecting
a division among said legatees. That the said decree was made without notice to
the legatees under said will, and that the sale of the slave, Daniel as above
stated, which is the sole consideration of said note sued upon, was made by
virtue of, and in execution of the said decree . that the said decree was a
nullity, and no title passed under a sale made pursuant to it. And so defendants
say that the consideration of said note has failed."
The other facts are sufficiently stated in the opinion of the court.
T. Reavis and J. S. Hamm, for plaintiffs in error, Cited Joslin v. Caughlin, 24
Miss. R. 141; 2 Lomax Ex'r 179, sect. 3; Turner v. Ellis, 24 Miss. R. 179;
Gelstrop v. Moore, 26 D>. 206; Shattuck v. Young, 2 S. & M. 37; Gwinriv.
MCarrell, 1 lb. 351; Graves v. Williams, 2 Tb. 286; Prentiss v. Mellon, 1 lb.
521; Enos v. Smith, 7 lb. 85; Hutch. Digest, 661 §82.
Freeman and Dixon, for defendants in error,
Contended, that the plaintiffs in error could take no advantage of the alleged
invalidity of the sale, admitting it to exist, without an offer to return the
slave.
Fisher, J., delivered the opinion of the court.
The defendants in error were sued in the Circuit Court of Kemper county, upon a
promissory note, which they had given to secure the purchase-money of certain
slaves, sold by the plaintiffs as executors,
&c. The defence set up was, that the executors sold the slaves under ah order of
the Probate Court, made without notice to the legatees under the will, or to the
heirs of the deceased. The court overruled a demurrer to the plea, setting up
this defence. But upon a trial upon the merits, a verdict and judgment were
rendered for the plaintiffs below.
We have deemed it unnecessary to notice the bill of exceptions, as the
defendants below could do no more than prove the truth of their plea; and
proving it true, it is still insufficient. It may be conceded, for the sake of
the argument, that the slaves were sold under a void order of the Probate Court,
yet the defendants might be liable upon their note. By their purchase they
acquired possession of the slaves; and if the sale was void, they should
instantly return the property to the executor, to be administered in due course
of law. The executor stands chargeable with the estate, and, to rid himself of
responsibility, he must show a legal administration. If he should fail to
account to the legatees for these slaves, he may be held liable for their value.
Parties, therefore, who set up the illegal action of an executor or
administrator, as a defence for not performing their contract, ought either to
return or to offer to return the property, which they admit that they have
acquired in violation of the rights of others. Their defence proceeds upon the
ground, that the representative of a deceased person should conform to the
requirements of the law in disposing of the estate in his hands. Knowing such to
be his duty, and that he has failed in his duty in this respect, every principle
of justice and common honesty ought to admonish them to return the property to
the representative, that it may be administered according to law; or, if they
are not disposed to return it, they ought not to object to paying, according to
their contract, as this is the only indemnity which the administrator or
executor can have in the event of his being held liable by those interested in
the distribution of the estate. Judgment affirmed, as the result is right.
--------------------------------------------------------------------------------
Mississippi Supreme Court
October Term 1856
Corbin v. Cannon et al.
James J. Corbin V. Balus E. Cannon et al.
1. Pleading : Ejectment: Tenants In Common.—It seems to be settled under the
common law system of pleading, that joint tenants and parcerners could unite in
an action of ejectment, but that tenants in common could not so unite. Adams on
Ejectments, 209.
2. Pleading: Ejectment: Tenants In Common.—The fictions which encumbered the
action of ejectment under the common law system of pleading, have been abolished
by the Statute of 1850, and tenants in common may now unite in an action of
ejectment.
3. Ejectment: Ouster.—A tenant in common may maintain an action of ejectment
against his co-tenant, or those holding under him, upon proof of ouster.
4. Same : Ouster :—Actual ouster does not imply an act accompanied by force, but
may be inferred by the jury from the circumstances.
5. New Trial : Instructions.—If the verdict of the jury be clearly in
accordance with the law and the evidence, it will not be disturbed, although the
court improperly refused to give a legal instruction.
In error from Circuit Court of Kemper county. Hon. John Watts, judge.
The facts of the case are sufficiently detailed in the opinion of the court.
Freeman and Dixon, for plaintiffs in error, Cited 4 Kent, Com. 369, 370. T.
Reavis and J. S. Hamm, for defendants in error.
1. Tenants in common may join in an action to recover real property, or each may
bring a separate action. 27 Ala. R. (new series,) 359; 18 lb. 417; 11 Pick. R.
269; 12 lb. 34, 120 7 Mass. R. 135; 1 Root, 246; 13 Johns. R. 286; 15 lb. 479 2
Bay, R. 457, 461, 462, 539; 1 M'Cord, R. 161; 4 Cranch, 165 7 Blackf. R. 442; 1
Bailey, R. 307; 26 Ala. R. 426, (new series) 23 lb. (new series,) 781; 22 lb.
396; 21 lb. 741; Jackton v. Sidney, 12 Johns. R. 185; Stevenson v. MkCreary, 12
Smedes & Marsh. R. 9.
2. One tenant in common may recover against another, on proof that he holds and
claims the whole property adversely. v. James, 7 Smedes & Marsh. R. Ill; Hubbard
v. Wood, 1 Smeeds, (Terra.) R. 279; 9 Dana, R. 385; 15 Verm. R. 552; 2 Dev. &
Batt. R. 97; 3 Conn. R. 191.
3. A sale of land, by parol, is void, both at law and in equity. Hutch. Code,
637, art. 1, § 1, p. 605; 3 Cushm. R. 58; 2 lb. 488; 13 Smedes & Marsh. R. 93; 9
lb. 207.
4. Under the Act of 1850, Sess. Acts of that year, p. 61, § 9, the rents and
profits of land may be recovered in the same action in which the land is
recovered.
Smith, C. J., delivered the opinion of the court.
This was an action, instituted in the Circuit Court of Kemper county, by the
defendants in error against the plaintiff, for the recovery of seven-elevenths
of certain tracts of land alleged to be held adversely by the said plaintiff in
error.
The complaint alleged that Benjamin Cannon died intestate, seised and possessed
of the lands in controversy, which descended to the plaintiffs, and to Virgil M.
Cannon, Harriet Cannon, Adebiza Cannon and Huldah Barksdale, jointly, as the
heirs at law of the said BeDjamin Cannon, deceased. That the plaintiffs, seven
in number, are entitled, as such heirs at law of the said deceased, to seven
shares or seven-elevenths of the said lands; that the defendant, James Corbin,
who was in possession of the said lands at or about the time of the death of
Benjamin Cannon, received a quit-claim deed from
Virgil M., Harriet and Adebiza Cannon, and Huldah Barksdale, for their shares,
that is, for four-elevenths of the lands, and by that means became, with the
plaintiffs, tenants in common of the same; and that the defendant has received
and appropriated to his own use, the whole of the rents and profits, and denies
the title of the plaintiffs to said lands, holding and claiming possession of
the whole of the premises in question adversely to his co-tenants.
A demurrer was filed in the court below, in which the defendant assigned, with
other special grounds of demurrer, that tenants in common could not maintain a
joint action to recover possession of the land; but were compelled to sue
separately. The demurrer was overruled, the cause submitted to a jury upon the
defendant's answer, which contained a general denial of the allegations in the
The demurrer was overruled, the cause submitted to a jury upon the defendant's
answer, which contained a general denial
of the allegations in the complaint, and a verdict was rendered for the
plaintiffs. A motion was then made for a new trial, upon the ground that the
verdict was contrary to law and evidence; and that the court erred in refusing
certain instructions prayed in behalf of the defendant. This motion was
also overruled; whereupon the defendant excepted and sued out his writ of error.
The Act of 1850, regulating the forms of pleading, has rendered inapplicable
many of the principles which governed the actions of ejectment as it theretofore
existed under our law. But in determining the questions raised by the demurrer,
in this case, that is, whether tenants in common can sue jointly to recover the
lands, or whether each is not bound to bring a separate action, we may with
propriety consider the reasons upon which the rules, under the former practice,
regulating the joinder of parties in the action of ejectment, were based.
It seems to have been settled under the former practice, in the action of
ejectment, that although the demise declared on by the plaintiff be fictitious,
it must, nevertheless, be consistent with the title of his lessor; that is to
say, such a demise must be supposed to be made as would, if actually made, have
transferred the right of possession to the lessee. Thus, where there are
several lessors, and a joint demise by all is alleged, such a title must be
shown at the trial, as would authorize each of them to demise the whole. For if
any one of the lessors should not have a legal interest in the whole of the
premises, he could not, in law, be said to have demised them. Adams on Eject.
209.
For this reason, under the English practice, it was held that joint tenants and
parceners could, but that tenants in common could not, make a joint demise of
the whole premises. Joint tenants and parceners being seised per my et per tout,
deriving from one and the same title, and having a joint possession; whereas
tenants in common have several and distinct titles and estates independent of
each other, so as to render the freehold several.
But the plaintiff, in ejectment, may declare upon separate demises from two or
more tenants in common ; or they must join in a lease to a third person, and
state the demise to the plaintiff to have been made by their lessee; and the
plaintiff, at the trial, may give in evidence the separate titles of the several
lessors to separate parts of the premises in question, and recover accordingly.
Adams on Eject. 211; Jackson ex dem. Roman et al. v. Sidney, 12 Johns. K. 185.
The fictions which encumbered the action of ejectment have been abolished by the
statute. The owner or claimant, without the intervention of a nominal plaintiff,
sues directly for the recovery of the premises to which he claims title. There
seems, therefore, no reason founded upon any analogy which exists between the
present mode of procedure and the former action of ejectment, which renders it
improper for tenants in common to join in the same action for the recovery of
the land. If tenants in
common, upon the assumption that separate demises were made to a fictitious
plaintiff, or that a joint lease was made by them to a person who made a demise
to the nominal plaintiff, could recover possession of the unexpired term, there
can be no sensible reason why the same parties may
not jointly sue directly for the recovery of the land. No good reason exists
against their showing a separate title in each to a distinct part.
In the case at bar, and in no case, could this course subject the defendant to
any inconvenience, or operate as a surprize upon him; and the costs to which he
may be made liable, on a recovery against him, will be much less than if seven
separate actions were brought. This course prevents multiplicity of suits, and
should, for that reason, be encouraged. We think, therefore, that the demurrer
was properly overruled.
The next objection arises upon the charges which were requested by the defendant
and refused by the court.
The only instruction requested by the defendant, and withheld, which we deem it
necessary to notice, is the fourth or last one. That charge is somewhat
obscurely expressed. We presume, however, from the argument of counsel, that it
was designed to raise the question whether the plaintiffs, being tenants in
common with the defendant, of the lands in controversy, could recover their
portion of the same: in other words, whether one tenant in common, can recover
from his co-tenant his undivided moiety of the land.
One tenant in common cannot maintain an action of ejectment against his
co-tenant or those claiming under him, without proof of ouster by such
co-tenant. But upon proof of ouster, all the authorities hold that this may be
done. The term actual ouster, does not imply an act accompanied by real force;
and an actual ouster may be inferred from circumstances, which circumstances are
matter of evidence to be left to the jury. Clark v. Vaughn, 3 Conn. R. 191;
Leonard et al. v. Leonard, 10 Mass. R. 283; Valentine v. Northrop, 12 Wend. R.
494; 7 S. & M. Ill; Adams on Eject. 55.
No exception is taken to the judgment of the court on the motion for a new
trial, upon the ground, either that the jury were erroneously instructed, or
that the evidence does not sustain the verdict. It is proper, however to state,
that there was error in the refusal to give the third charge requested by the
defendant. Proof of ouster was essential to entitle the plaintiffs to
recover; and the court should so have instructed. But as the verdict is clearly
right on the law and the facts, it will not, for that cause, be disturbed..
Judgment affirmed.
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Mississippi Supreme Court
April Term 1856
William L. Cole, Adm'r, &c. v. Walter P. Leak and Wife.
1. Executor : Distribution: Res Adjudicata.—If in a plenary proceeding by the
heirs, or one of them, against the administrator, for distribution of the
estate, the accounts of the administrator be litigated and a decree rendered,
settling the contested items, and ascertaining and fixing a balance due for
distribution, it trill not be competent for the administrator afterwards, on
final settlement, to claim credit for items then settled against him, or to
demand allowance for credits which then existed in his favor, and which he might
then have presented and had allowed.
2. Executor: Final Account : Res Adjudicata.—A plea interposed by the
distributees to the final account of an administrator, that the matters and
things therein contained had been adjudicated, or might have been adjudicated in
a proceeding for distribution of the estate, which had theretofore taken place,
is not good, as a technical bar to the audition and allowance of the account,
but is valid as an exception to such credits claimed by the administrator in the
account, as had been adjudicated, or might have been adjudicated, as stated in
the plea.
3. Executor: Refunding Bond: Nature And Effect Of.—The refunding bond required
by law, of the distributees, when distribution is ordered before final
settlement, binds them to refund only their due proportion of debts and the
costs attendant on their recovery, which may thereafter appear against the
intestate ; hence an administrator will not be entitled to claim, on final
settlement, credit for debts due to him at the time distribution was made; it
was his duty, if any then existed, to have presented them for allowance in that
proceeding.
Appeal from the Probate Court of Kemper county. Hon. William G. Gill, judge.
T. Reams, for appellant,
Filed an elaborate brief, and cited and relied on the following authorities.
Hutch. Code, 665, §§ 91, 92; 1 Cushm. 563; Keith v. Jolly, 4 Cushm. R. 131;
Steen v. Steen, 3 Cushm. 514; Hutch. Code, 669, § 184; Hardy v. Ghohon, 4 Cushm.
70; Robbing v. APMUan, 4 lb., 434; 3 Phil. Ev. (by C. & H.) 826, 955.
D. C. Glenn, for appellee,
Cited Leak v. Cole, 5 Cushm. 767.
Pisher, J., delivered the opinion of the court.
The appellant, as administrator of the estate of Peter H. Cole, Cole v. Leak et
ux. deceased, presented his final account to the Probate Court of Kemper county
for allowance, and asked to be discharged
as such administrator. The account shows the estate to be indebted to the
administrator in about the sum of dollars. The appellees being distributees of
the estate, appeared in court, and interposed as a plea in bar to the allowance
of the account, a decree of the court, made at a former term, in a contest
between the said distributees and the administrator, in which it is alleged, the
matters embraced in the account were either put in issue and then adjudicated,
or ought to have been put in issue and settled by said decree. This plea being
set down for hearing, was by the court sustained, and the account accordingly
rejected. From which decree this appeal is prosecuted.
It appears from the record, that the appellees filed a petition in said court,
for the purpose of compelling the administrator to account for certain property
and assets of the estate, for which it was alleged that he had failed to
account, and to have decreed to them their distributive share of said estate,
upon their executing such refunding bond as is required by the statute; that the
administrator answered the said petition, and did not then make known any claim
against the estate, or set forth any debt, which it then owed him; on the
contrary, the court corrected his former account, if such it could be termed,
and compelled him to return to the estate about the sum of five hundred dollars,
being the amount by him retained on account of an excess of interest, accrued on
certain debts, which the estate owed, and which had been paid by agreement of
the parties in slaves, at their appraised value. The administrator was not only
charged with this sum, but was decreed to pay it over to the distributees. The
account presented on final settlement, embraces many items of debts alleged to
be due to the administrator long before the decree above-named was pronounced;
and the question is, whether having failed then to bring these matters before
the court, in that proceeding, he is now precluded from having the same allowed.
It is almost impossible for an administrator of ordinary intelligence to mistake
his duty under the law, especially in regard to the matters involved in this
controversy. The administrator was reCole v. Leak et ax. quired to make annual
settlements of his accounts with the Probate Court, or to furnish the court with
sufficient reasons for failing to do so.
In the proceeding for distribution, therefore, we must suppose, in the absence
of a showing to the contrary, that the annual settlements, if made, were
considered by the court, or if they were not in fact made, it was because the
administrator had no accounts to settle. Whatever therefore should have been
brought to the knowledge of the court by an annual settlement, or should have
been brought forward upon the proceeding for distribution, we have no hesitation
in saying, should not be made the subject of litigation, after the decree for
distribution, for the plain reason that the distributee is only bound under the
law, and by the very terms of his refunding bond, to refund a due proportion
of any debts or demands which may afterwards appear against the intestate, and
the costs attendant on the recovery of such debts. Hutch. Code, 655, § 91.
The administrator is not permitted to say, that claims which he held before the
decree was pronounced, are debts which have since such decree appeared against
the estate. He had already been allowed claims exceeding seven thousand dollars
against his intestate, and the presumption is, that he brought forward at the
same time his entire demand; and if it was not all allowed, it was because he
failed to establish it to the satisfaction of the court.
As to credits which could not be allowed or adjudicated in the proceeding for
distribution, or in a previous annual settlement, we are of opinion that the
plea, considered merely as an exception to the account, ought not to be
sustained.
Our conclusion, therefore, upon the whole case is, that while the plea, as a
technical plea in bar, cannot be sustained, yet, as an exception taken to so
much of the account as ought to have been considered in the proceedings for
distribution, is good, and as such ought to be sustained. As to matters accruing
since said proceedings, we are of opinion that the Probate Court ought to
proceed to consider the same, and either allow or reject the account as to such
items, according to the proof.
Decree reversed, and cause remanded, to be proceeded in according to this
opinion.
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MS Supreme Court
April Term 1856
Hull, Robinson & Co. v. Garner, Neville & Co.
1. Partnership: Power Of Co-partner To Confess Judgment For The Firm.—A partner
cannot bind his associate, without his assent, by a warrant of attorney, to
confess a judgment, or a cognovit actionem, executed by him in the firm's name ;
but if it appear by the record that the cognovit, Ac, was proved to have been
executed by all the defendants, and that process had been served on all of them,
a judgment rendered by confession on the cognovit, will be good and valid as to
all.
2. Record—Partners Bound By Statement In.—A statement in the record that a
cognovit actionem, signed in the partnership name by one of the partners, was
proved to have been executed " by the defendants," will be construed to mean
that all the partners who were served with process assented to and authorized
the execution of the instrument.
In error from the Circuit Court of Kemper county. Hon. John Watts, judge Garner,
Neville & Co., sued J. W. Hull, P. H. Gully, and J. B. Robinson, as partners
under the firm name of Hull, Robinson & Co., upon two notes executed by
defendants in their partnership name, and payable to plaintiffs. A summons was
issued and personally served on each of the defendants. At the return term
of the writ, being the March term, A. d. 1855, of the court, the following
judgment was entered:—"Garner, Neville & Co.v.Hull, Robinson & Co. "And now, on
the 5th day of March, 1855, came the plaintiffs, by attorney,
and proved in open court the execution of an agreement made by the defendants to
plaintiffs, in vacation, in the words and figures following, to wit: ' We, Hull,
Robinson & Co. waive all exceptions to the sufficiency of service in this case,
and consent that judgment be had and entered at the next March term, 1855, of
said court, for the amount of the two notes declared on, with eight per cent.
interest thereon from the maturity of the notes, they having been made in
Alabama and payable in said State— that is, for $3,070 44, and costs of suit. It
is also agreed, that there be included with said two notes, another for $730 82,
due the plaintiffs on the 5th day of February, 1855, on which there will be due
on the 5th day of March, 1855, the sum of $735 68, making, together with the
other two notes, $3,806 12; for which sum judgment may be entered at said next
term, to carry interest at eight per cent., reciting that the said several notes
were made, and payable in the State of Alabama, and that that was shown to be
the legal rate of interest in said State, and for costs.
Said judgment may be entered upon confession, and with release of all errors;
and execution to be stayed until the 1st of May, 1855. (Signed,) Hull, Robinson
& Co.' Whereupon it is considered by the court, that the plaintiffs do have and
recover of the said Hull, Robinson & Co., the aforesaid sum of three thousand
eight hundred and six dollars and twelve cents, so by them confessed as
mentioned in the agreement aforesaid, with interest thereon at the rate [Hull et
al. v. Garner et al.] of eight per cent. per annum, until paid; together with
the costs in their behalf expended, for which execution may issue. And the said
defendants release all errors in the judgment herein. And it is further ordered
that execution be stayed until 1st day of May, 1855, in pursuance of said
agreement."
From which judgment, Hull, Robinson & Co., prosecuted this writ of error.
Jarnagin and Rives, for plaintiffs in error, Cited Hutch. Code, 884; lb. 877, §
94; 1 Wend. R. 811; 9 lb. 437; Story on Partn. §§ 114-120; 4 S. & M. 261.
George L. Potter, for defendants in error, Cited Collyer on Partn. 260; Bissell
v. Covilli, 6 Ala. 503;
Crane v. French, 1 Wend. R. 311.
T. Jleavis, on same side.
1. A writ of error will not lie upon a confessed judgment, whether the judgment
be erroneous or not. Hutch. Code, 931, art. 4r see. 4; lb. 877, sec. 94; 12 S. &
M. 641. Besides the statutory release of errors consequent upon a confession of
judgment, in this case there is an express release. If the judgment be
erroneous, the error cannot be corrected by means of a writ of error. It must be
done by application to the court which rendered the judgment, or by bill in
chancery.
2. If it be true, that one partner cannot bind another by a voluntary confession
of judgment, the principle cannot affect this case, for it does not appear that
this judgment was confessed by any number of the partners less than all. The
record shows, that the plaintiffs proved that the agreement for confession was
executed by the defendants. "The defendants" are the individuals named in the
summons, each of whom was in court by the service of the summons. This recital
in the record
excludes any presumption that the agreement for confession was executed by any
number less than all "the defendants." On the contrary, it must be presumed that
it was executed by all, from the facts, that the summons was executed upon all,
and none made any defence. They must have known that judgment would go by
default, if they made no defence. It is buy reasonable, therefore, to inferthat
the reason they made no defence was, because they had executed, or consented to
the agreement for confessing judgment.
3. Even if it appeared, or could be presumed from the record, that the agreement
was executed by only one of the partners, still, all the partners being in court
by the service of the summons upon each one, a confession of judgment by one, in
the name of all, is valid, and binding upon all. This is expressly decided in
Crane v. French, 1 Wend. R. 311; and in Grazebrook v. M'Creedie, 9 lb. 439. See
also, Witherell v. Holmes, 20 lb. 609.
4. At least one of the partners executed the agreement. As to that one the
judgment is binding, and will not be reversed, nor set aside in any other way.
See the cases last cited, and Green v. Beales, 2 Caines, 254. If only one
executed it, the record does not show which one did it. Each of the defendants,
therefore, fails to show any error of which he alone, or jointly with the
others, can complain. Such an error must be shown before this court will
reverse; for it is a rule of this court, that a party complaining of error must
show it affirmatively, as all presumptions are in favor of the correctness of
the judgment. Henderson v. Guyot, 6 S. & M. R. 209; Green v. Oreighton, 7 lb.
197; The State v. Farish, 1 Cush. R. 484; Davis v. Brown, 5 lb. 265.
5. If it be a fact, whether shown by the record or not, that only one of the
plaintiffs in error executed the agreement, in pursuance of which the judgment
was rendered upon confession, a writ of error is not the proper remedy of the
others for obtaining redress. 2 Caines, 254; and the cases cited in support of
the third point.
6. The form of the judgment is sufficient. It is in strict conformity with the
agreement; and though against "the said Hull, Robinson, & Co.," is good by
reference to the complaint and sumsums, which show the name of each defendant
composing the firm.
7. The agreement is not, and was not intended to be, the foundation of an office
confession of judgment; nor is it a power of attorney to confess judgment,
within the meaning of the statute. Hutch. Code, 877, sec. 94. It is simply a
waiver of defence to the action, and a consent that the court should render
judgment in the action,
for a specific amount. It is not material, therefore, whether all the notes
embraced in the judgment, were originally embraced in the action or not. The
parties had a right to consent, that the note not originallv sued upon should be
embraced in the complaint, and that judgment should be entered upon it. By
reference to the complaint, it will be seen that it is so embraced.
8. The record recites, that " the defendants release all errors in the judgment
herein." All presumptions being in favor of the correctness of the judgment, it
must be presumed, there being nothing in the record to the contrary, that the
defendants made the release personally, in open court. If this view be correct,
it alone is decisive that the judgment should be affirmed.
Smith, C. J., delivered the opinion of the court.
The defendants in error brought suit, to the March Term, 1855, of the Circuit
Court of Kemper county, against the plaintiffs in error, upon three promissory
notes, alleged to have been made by three parties in their firm name of Hull,
Robinson & Co. A summons was issued and executed, personally, upon each of them.
At the return term, the defendants in error filed in court, an agreement in
writing, signed " Hull, Robinson & Co.," by which they waived all exception to
the sufficiency of the service of the summons, and consented that a judgment by
confession should be entered against them upon the notes sued on, with release
of errors; execution to be stayed until the first of May following. No defence
was made to the suit; and the defendants in error having proved " the execution
of the agreement by the defendants" below, a judgment by confession, in
conformity with the terms of the agreement, was entered against them. To revise
the judgment thus rendered, this writ of error is prosecuted.
A judgment on confession is equivalent to a release of errors. Hutch. Dig. 877,
§ 59. The question to be determined, therefore, is not whether the judgment is
simply erroneous, but whether it is absolutely void.
It is evident that the character of the agreement for a confession of the
judgment, must determine this question. If the agreement was either valid as a
power of attorney to confess judgment, Hull et al. v. Garner et al. or
sufficient as a cognovit actionem, it is clear that the judgment was not void.
There is no pretence for saying that the agreement ought to he regarded as a
warrant or power of attorney, by which the defendants in error or any one else,
was authorized to confess judgment upon the notes in suit.
The agreement under consideration was executed in the name of the firm, and not
by the persons constituting the co-partnership. And hence, it is insisted that
the agreement was invalid as to the partners who did not join in the execution ;
and as a necessary consequence, that the judgment was void.
It is the settled law, that one partner cannot bind another without his assent,
by bond or warrant to confess a judgment. Nor can one partner make a voluntary
confession of judgment in the name of his partner.
But the application of these principles to the case before us, will not avail
the plaintiffs in error. The record shows that the agreement was proved to have
been executed " by the defendants," that is, by Hull, Robinson and Gully, the
partners in the firm, and whose co-partnership name was subscribed to the
agreement. It is true that it does not appear by which of the partners the name
of the firm was affixed to the agreement. This was wholly unimportant. The fact
material to be established was, that the instrument was executed by all the
members of the firm, or which would amount to the same thing, that they were
present and assented to its execution. This is the fair, in fact, the only
construction which can be put upon the statement in the record. We must,
therefore, consider the agreement,
although executed in the firm name, as the act of each of the partners, and, as
such, binding upon them individually.
The court had jurisdiction of the subject-matter of the writ. The parties were
before it by its process. From an entry in the record, the presumption exists
that they were present, in person, when the judgment was rendered. And as they
interposed no objection, we may infer that it was done with their assent. Under
these circumstances, we think the agreement may well be regarded as equivalent
to a cognovit actionem ; and consequently, that the judgment was neither
erroneous nor void. Judgment affirmed.
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MS Supreme Court
April Term 1856
John C. Holmes V. Edward Herndon.
Practice : Garnishee : Judgment Against.—If the answer of a garnishee to the
writ of garnishment, be stricken out as insufficient, it will be error to enter
final judgment against him. Judgment nui should be entered, as if no answer had
been filed.
In error from the Circuit Court of Kemper county. Hon. John Watts, judge.
The defendant in error, having recovered a judgment against one Pierce, procured
the plaintiff in error to be summoned as a garnishee. The answer of the
plaintiff in error to the summons was, on motion of Herndon, stricken out, and a
judgment final was rendered against Holmes, for the full amount of the judgment
against Pierce, and costs. From this judgment this writ of error is prosecuted.
Jarnagin and Rives, for plaintiff in error.
No counsel appeared for defendant in error.
Per Curiam.—The court rejected the answer of the garnishee, and rendered a final
judgment against him for the amount of the judgment. This was error; the court,
on striking out the answer, could only render such judgment as could be rendered
if no answer had been filed.
Judgment reversed; cause remanded.
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MS Supreme Court
April Term 1856
James H. Brittain V. William Bethany et al.
Ins-keeper: Sale Of Spiritous Liquors.—The statute (Hutch. Code, 267, J 18,)
which prohibits
inn-keepers from selling to any one person on a credit, spiritous liqnors, to a
greater amount than five dollars, does not apply to retail grocers.
In error from the Circuit Court of Kemper county. Hon. Jno. Watts, judge.
The case is fully stated in the opinion of the court.
Freeman and Dixon, for plaintiff in error,
Insisted that the charge of the court was erroneous; that the Ladner et al. v.
Ogden et al. statute (Hutch Code, 267, § 18,) did not apply to retail grocers,
but only to inn-keepers.
No counsel appeared for defendant in error.
Fisher, J., delivered the opinion of the court.
The account sued on consists mainly of items for spiritous liquors, sold by
retail to the defendant.
The account was established by sufficient evidence. The proof also showed that
the plaintiff was a retail grocer.
Upon this state of the case the court charged the jury, that the plaintiff could
not recover more than five dollars; credit beyond that sum, for spiritous
liquors sold by retail, being prohibited by the statute.
The statute applies only to inn-keepers, and not to persons engaged in keeping a
retail grocery. Hutch. Code, 267, 5 18. Judgment reversed, and cause remanded.
--------------------------------------------------------------------------------
MS State Supreme Court
April Term 1956
James F. Bohannon et al., Plaintiffs in Error, v. Madison and William Fulton,
Defendants in Error.
The purchaser of a slave from an executor cannot avoid the payment of the
purchase-money therefor, upon the ground that the sale was illegal and void, and
that he derived no title, unless he instantly return, or offer to return the
property to the possession of the executor.
In error to the Circuit Court of Kemper county. Hon. John Watts, judge.
The defendants in error sued the plaintiffs in error, in the Circuit Court of
Kemper county, on a promissory note for eleven hundred and sixty-five dollars.
The defendants, among other pleas, answered, "that the promissory note sued on
was given for a certain slave, named Daniel, which was sold by plaintiffs as
administrators with the will annexed, of Samuel Fulton, deceased, on the 7th day
of December, 1852. and purchased by defendant, Bohannon; that the slave thus
sold, and which was the sole consideration of the note sued upon, was, with
several other slaves, bequeathed by said testator, Samuel Fulton, deceased, to
his children viz, David, John, Samuel, Hiram, Madison, William Green and
Elizabeth, to be equally divided among them; that a decree for the sale of all
of said slaves, was made by the Court of Probate of Kemper county, in the State
of Mississippi, at the November Term, 1852, upon the application of the said
administrators with the will annexed of Samuel Fulton, deceased, made to the
said court at said November term, 1852, who represented to the court that they
wished to sell said slaves, (together with other property,) for the purpose of
paying legacies and effecting a
division among said legatees. That the said decree was made without notice to
the legatees under said will, and that the sale of the slave, Daniel as above
stated, which is the sole consideration of said note sued upon, was made by
virtue of, and in execution of the said decree . that the said decree was a
nullity, and no title passed under a sale made pursuant to it. And so defendants
say that the consideration of said note has failed."
The other facts are sufficiently stated in the opinion of the court.
T. Reavis and J. S. Hamm, for plaintiffs in error, Cited Joslin v. Caughlin, 24
Miss. R. 141; 2 Lomax Ex'r 179, sect. 3; Turner v. Ellis, 24 Miss. R. 179;
Gelstrop v. Moore, 26 D>. 206; Shattuck v. Young, 2 S. & M. 37; Gwinriv.
MCarrell, 1 lb. 351; Graves v. Williams, 2 Tb. 286; Prentiss v. Mellon, 1 lb.
521; Enos v. Smith, 7 lb. 85; Hutch. Digest, 661 §82.
Freeman and Dixon, for defendants in error,
Contended, that the plaintiffs in error could take no advantage of the alleged
invalidity of the sale, admitting it to exist, without an offer to return the
slave.
Fisher, J., delivered the opinion of the court.
The defendants in error were sued in the Circuit Court of Kemper county, upon a
promissory note, which they had given to secure the purchase-money of certain
slaves, sold by the plaintiffs as executors, &c. The defence set up was, that
the executors sold the slaves under ah order of the Probate Court, made without
notice to the legatees under the will, or to the heirs of the deceased. The
court overruled a demurrer to the plea, setting up this defence. But upon a
trial upon the merits, a verdict and judgment were rendered for the plaintiffs
below.
We have deemed it unnecessary to notice the bill of exceptions, as the
defendants below could do no more than prove the truth of their plea; and
proving it true, it is still insufficient. It may be conceded, for the sake of
the argument, that the slaves were sold under a void order of the Probate Court,
yet the defendants might be liable upon their note. By their purchase they
acquired possession of the slaves; and if the sale was void, they should
instantly return the property to the executor, to be administered in due course
of law. The executor stands chargeable with the estate, and, to rid himself of
responsibility, he must show a legal administration. If he should fail to
account to the legatees for these slaves, he may be held liable for their value.
Parties, therefore, who set up the illegal action of an executor or
administrator, as a defence for not performing their contract, ought either to
return or to offer to return the property, which they admit that they have
acquired in violation of the rights of others. Their defence proceeds upon the
ground, that the representative of a deceased person should conform to the
requirements of the law in disposing of the estate in his hands Knowing such to
be his duty, and that he has failed in his duty in this respect, every principle
of justice and common honesty ought to admonish them to return the property to
the representative, that it may be administered according to law or, if they are
not disposed to return it, they ought not to object to paying, according to
their contract, as this is the only indemnity which the administrator or
executor can have in the event of his being held liable by those interested in
the distribution of the estate. Judgment affirmed, as the result is right.
--------------------------------------------------------------------------------
United States Supreme Court
December Term, 1849
George S. Gaines, Francis S. Lyon and his Wife, Sarah Lyon, James M. Davenport
and his Wife, Alethan Davenport, GoodMan G. Griffin and his Wife, Willey Ann
Griffin, George Frederick Glover, Ann Gaines Glover, Louisa Davenport Glover,
Mary Thompson, and Mary A. Glover, Appellants, v. Isaac W.Nicholson, Powhatan B.
Thermond, Lewis B. Barnes, John T. Moseley, S. M. Goods, and John Hilman.
9 H. 356.
The question whether the title of a township to the sixteenth section reserved
for school lands by the acts of March 3, 1803,(2 Stats. at Large, 233,) and
April 21, 1806, (2 Stats. at Large, 401,) shall prevail against the title of a
Choctaw Indian, under his actual occupancy and the relinquishment to him of the
ultimate title of the United States by treaty, is a question of law, and a court
of equity should not pass upon it in a bill foi that purpose only.
The case is stated in the opinion of the court.
Lawrence and Badger, for the plaintiffs.
Inge, contra. [ * 361]
Nelson, J., delivered the opinion of the court.
This is an appeal from a decree of the circuit court of the United States for
the southern district of the State of Mississippi.
The bill was filed by the appellees in the court below against the defendants,
to enjoin proceedings in an action of ejectment brought to recover possession of
the sixteenth section of town[ * 362 ] ship * twelve, range eighteen east,
county of Kemper, State of Mississippi.
By the 12th section of an act of congress, passed March 3, 1803, entitled " An
act regulating the grants of land, and providing for the disposal of the lands
of the United States south of the State of Tennessee," 2 Stats. at Large, 233,
the sixteenth section in each township was reserved and appropriated to the
support of schools within the same. And by the 6th section of an act of
congress, passed April 21,1806, entitled an act in addition to the act
aforesaid, 2 Stat. at Large, 401, it was provided that whenever the 16th section
should fall upon land already granted by congress, or claimed by virtue of a
British grant, the secretary of the treasury should locate another section in
lieu thereof for the use of schools within the township. And by an act of
congress, passed January 9, 1815, entitled " An act to provide for leasing
certain lands reserved for the support of schools in the Mississippi territory,"
3 Stats. at Large,163, it was provided that the county court of each county in
the territory should appoint agents, who were empowered to lease these reserved
sections for the purpose of improving the same, or for an annual rent, as they
might think best; and to apply the proceeds to purposes of education within the
township.
The act also provided for laying out the sections into convenient farms, of not
less than one hundred and sixty, nor more than three hundred and twenty acres
each; for the removal of intruders and trespassers; and also for the punishment
of all persons cutting timber or committing other waste upon the tract.
The last section provided that the leases granted by virtue of the act should be
limited to the period of the termination of the territorial government, and
should cease after the 1st of January next succeeding the establishment of the
state government.
It is admitted that the appellees are the trustees of schools and school lands
in township No. 12, duly elected and qualified under the laws of the State of
Mississippi; and that they are charged with the care and management of the same,
How. & Hutch. Dig. p. 125, et seq.; and also, that John Hilman, the defendant in
the ejectment suit, was in possession under a lease from the said trustees.
They had taken possession of the section as early as 1834. The suit in ejectment
was brought in 1841.
The premises lie within the territory formerly belonging to the Choctaw nation
of Indians, and which was ceded to the United States, by treaty, at Dancing
Rabbit Creek, 27th [ * 363 ] September, 1830, 7 Stat . at Large, 333.
By the supplementary articles of that treaty, (p. 340,) certain reservations
were made to Indians by name, and among others the following : " Also, one
section is allowed to the following persons, to wit, Middleton Mackey, Wesley
Train, Choclehomo, Moses Foster, D. W. Wall, &c., to be located in entire
sections, to include their present residence and improvement, with the exception
of Molly Nail and Susan Colbert, who are authorized to locate theirs on any
unimproved unoccupied land."
D. W. Wall, one of the reservees, on the 27th of August, 1832, assigned all his
right and title under the treaty to George S. Gaines and Allen Glover, who
procured a patent for the sixteenth section to be issued to them, in pursuance
of this claim under the treaty, by the President, on the 7th of December, 1838.
The former, and the heirs of the latter, compose the plaintiffs in the ejectment
suit in the court below, claiming under the patent and the defendants in the
bill filed to enjoin that suit by the schoo trustees, claiming under the acts of
congress above referred to.
The court below granted a preliminary injunction on the filing of the bill,
staying the proceedings at law, and on the final hearing decreed a perpetual
injunction; and also, that the defendants relinquish all their right and
interest in the section to the school trustees and their successors in office.
The clause in the treaty reserving to Wall, among others, a section of the land
ceded, upon a strict construction of its terms, would seem to confine the
reservation to a tract, not exceeding a section, on which he resided and had
made improvements at the date of the treaty; but a more liberal construction has
been properly given to the clause by the officers of the government, and which
was inculcated by the eighteenth article of the treaty itself, by which the
reservee is allowed a section, although not a resident at the time, and without
having made any improvements upon the particular tract In cases of residence and
improvements, the location must be such as shall include them. •
Wall, it seems, was a minor, and resided with his father at the date of the
treaty, and therefore was not within its terms, so that locality could be given
to any particular section by a reference to residence or improvements. But under
the liberal construction mentioned, the right to a section, notwithstanding,
existed; a [ * 364 ] right, however, to no particular tract or section, * but at
large, to be located upon some portion of the ceded territory ; what, in common
parlance, is denominated a float.
The deed to Gaines and Glover does not profess to convey any particular section,
but only his right, generally, to that amount of land reserved to him under the
treaty. A location, therefore, became necessary before the issuing of the patent
by the President.
The bill charges that the grantees, Gaines and Glover, in order to induce the
President to issue the patent to them for the sixteenth section of township No.
12, which, it is claimed, had been appropriated, by the acts of congress already
referred to, for the use of schools, falsely and fraudulently represented that
Wall resided upon the same at the date of the treaty, and had made improvements
thereon ; thus bringing the application for the particular parcel of land within
the strict terms of the treaty, and presenting a case upon which the right to it
was, confessedly, paramount to any that could
be pretended in the State or township, as a school reservation.
This is the ground set forth by the complainants upon which to invoke the
equitable interposition of the court to set aside and annul the patent, and
remove the incumbrance from their title, and to stay the proceedings at law. And
undoubtedly, if the facts thus charged have been established by the pleadings
and proofs, a right to such equitable interposition for the relief sought has
been made out, and the decree of the court below should be upheld.
But, on looking into the answer and proofs in the record, there does not appear
to be any evidence of the fraud or imposition alleged; nor any thing to rebut
the presumption, which we must assume till the contrary is shown, that the
patent was issued with a full knowledge of all the circumstances upon which the
complainants rely to invalidate it.
Fraud is not to be presumed, and the burden, therefore, lay upon the
complainants to establish it; and having failed, all ground for the equitable
relief failed also ; and the court below should have dismissed the bill, leaving
the parties to the settlement of their rights in the action at law. In the
absence of fraud or imposition in the issuing of the patent, the question was
one of conflicting title under the treaty on one side, and the acts of congress,
appropriating every sixteenth section in the townships for the benefit of
schools, on the other; a question purely of law.
The State of Mississippi acquired a right to every sixteenth section, by virtue
of these acts, on the extinguishment of the Indian right of occupancy, the title
to which, in respect to the * particular sections, became vested, if vested at
all, as [ * 365 ] soon as the surveys were made and the sections designated. No
patent was necessary, or is ever issued, for these school sections. And the
question presented is, whether the general right reserved to Wall under the
treaty, to select a section of land in the ceded territory, operated to suspend
the vesting of the title in the State, till a selection could be made and patent
issued, under the direction of the President; or whether the selection in
respect to
these general floating rights, that bound no particular parcel or section, must
be made in subordination to the right acquired by the State.
The question, as before said, is one of law, and should have been left to the
trial at law in the action of ejectment pending between the parties.
There is no doubt but that all persons in whose behalf reservations were made
under the treaty, and who were residents upon any particular tract, and had made
improvements thereon at its date, were entitled to the section, including their
improvements, in preference to any other right that could have been previously
acquired under the government; because the land embraced within the section was
so much excepted from the cession. No previous grant of congress could be
paramount, according to the rights of occupancy which this government has always
conceded to the Indian tribes within her jurisdiction It was so much carved out
of the territory ceded, and remained to the Indian occupant, as he had never
parted with it He holds, strictly speaking, not under the treaty of cession, but
under his original title, confirmed by the government in the act of agreeing to
the reservation.
But the question here is, whether the reservation of a right, not to any
particular parcel or section of the territory ceded, but a right, generally, to
have that quantity of land out of it, and to be located under the direction of
the President, stands upon the same footing, and has the effect to cut off the
right claimed by the State to have attached under the acts of congress to the
school section previous to the location made by the President.
We forbear expressing any opinion upon it, as the question is not now properly
before us, and as it belongs to the action at law, the trial of which should not
be anticipated or the case prejudged.
We shall therefore reverse the decree, and remit the proceedings to the court
below, with directions to dissolve the injunction and dismiss the bill of the
complainants. 14 H. 268: 18 H. 173.
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