Vattier v. Hinde, 32 U.S. 252 (1833)
32 U.S.
252
7 Pet. 252
8 L.Ed. 675
CHARLES VATTIER, APPELLANT,
v.
THOMAS S. HINDE, JAMES B. HINDE and JOHN M.
HINDE, Infants, &c.
January Term, 1833
1
APPEAL from the Circuit Court of Ohio. This case was before the court at
January term 1828 (1 Pet. 241), on an appeal by the parties who are now
appellants. The court, at that term, reversed the decree of the circuit court of
Ohio, because a certain Abraham Garrison had not been made a party in that
court; and the cause was remanded, 'with insructions to permit the
complainants, the appellees, to amend their bill and to make proper parties, and
to proceed de novo in the cause, from the filing of such amended bill, as law
and equity might require.'
In the circuit court, an amended bill was filed, making Abraham Garrison a
party, and the parties proceeding to a final hearing, a decree was rendered in
favor of the complainants, from which decree, the defendants appealed to this
court.
The case was argued by Caswell, for the appellant; and by Ewing and Clay, for
the appellee.
MARSHALL, Ch. J., delivered the opinion of the court.
This suit was originally brought in the court of the United States for the seventh
circuit and district of Ohio, sitting in chancery, by Thomas S. Hinde and
Belinda his wife, for the conveyance of a lot of ground, in the town of
Cincinnati, designated in the plan of the town by No. 86. The bill alleges, that
Abraham Garrison, under whom all parties claim, sold and conveyed the said
lot of ground to William and Michael Jones, as is proved by his receipt in the
following words:
'Received, Cincinnati, 10th September 1790, of William and Michael Jones,
fifty pounds, thirteen shillings and three pence, in part of a lot opposite Mr.
Coun's, in Cincinnati, for two hundred and fifty dollars, which I will make
them a warrantee deed for, on or before the 20th day, this instant.
7
'Test.JACOB AWL.
(Signed) ABRAHAM GARRISON.'
That a deed was executed the succeeding day, which has been lost. That on the
26th of March 1800, William Jones, acting for and in the name of William and
Michael Jones, conveyed the lot to Thomas Doyle, Jun., then an infant; and that
his father, Thomas Doyle, took possession of it, in the name of his son, and
retained possession until his death; that the said Thomas Doyle, Jun., having
survived both his parents, died under age, in the year 1811, leaving the
plaintiff, Belinda, his sister by the mother's side, and heir-at-law. The bill then
alleges, that in the year 1814, the plaintiff, Thomas S. Hinde, in right of his
wife, took possession of the said lot, and placed a tenant on it; after which, in
the year 1819, he obtained a deed of confirmation from William Jones. The bill
further charges, that James Findley, Charles Vattier, Robert Ritchie, William
Lytle, George Ely and William Dennison, knowing the title of the plaintiffs, but
discovering that the deed from Garrison to William and Michael Jones was lost,
have procured a deed from Garrison, to some one of them, and have turned his
tenant out of possession. The plaintiffs have commenced an ejectment against
the tenants in possession, but are advised, that they cannot support it. They,
therefore, pray for a conveyance, for discovery, and for general relief.
10
The receipt of Abraham Garrison to William and Michael Jones, and the deed
of William, purporting to convey for Michael and himself, with the deed of
confirmation executed by Michael, are filed as exhibits. The record also
contains a deed of John C. Symmes, dated the 31st of July 1795, conveying the
lot to Abraham Garrison. The deed from Jones to Doyle is in the name of
William and Michael Jones, and is signed W. and M. Jones; but concludes, 'in
witness whereof the said William Jones hath hereunto set his hand and seal, the
day and year first above mentioned.'
11
James Findley answers, that having obtained a judgment for a large sum against
Charles Vattier, the lot No. 86, with other real property, to a large amount, was
transferred to him, in the year 1807, in satisfaction thereof, and possession of
the lot was given. In the year 1815, he was informed that Abraham Garrison
claimed the lot, and on searching the record, could find no conveyance from
him for it. He purchased it from Garrison for the sum of $700, on condition of
his conveying twenty-three feet, part thereof, to Abraham Garrison, Jun., the
son of the vendor. Conveyances were executed in pursuance of this contract.
Previous to this purchase, he understood, that Thomas Doyle was once the
owner of the lot, that it had been sold at a sheriff's sale, as his property, and
purchased by Charles Vattier. When he purchased, Garrison assured him, that
he had never sold the lot; and his inquiries among the old settlers, respecting
the sale to William and Michael Jones, were answered, by assurances that they
knew nothing more than report, that Thomas Doyle had claimed the lot, and
that it was sold by the sheriff as his property. Never heard that the plaintiff, T.
S. Hinde, had been in possession. In April 1818, on a compromise with Charles
Vattier, he conveyed to him all his interest in the lot. The deed from Findley to
Vattier is made in consideration of one dollar, and a final settlement of all
claims.
12
The answer of Charles Vattier states, that in the year 1800, the lot was
advertised by the sheriff of Hamilton county, to be sold under execution, issued
on a judgment he obtained againt Thomas Doyle, at which sale he became the
purchaser, at the price of twenty dollars. Neither the return of the sale, nor the
deed made to him by the sheriff, can be found. He has no other knowledge of
the title of Thomas Doyle, than that the lot was called his. He held possession
under the sale, until James Findley became possessed thereof, in 1807. In the
year 1818, James Findley conveyed the lot to him for a valuable consideration,
after which, he conveyed to William Lytle.
13
The answer of William Lytle states, that he purchased part of the lot No. 86
from Charles Vattier, in 1818, for $15,400. He had no knowledge of the claim
of Thomas Doyle, Jun. Some time before the purchase, he had heard that Mr.
Hinde had taken possession of some lots claimed by Thomas Doyle, deceased,
but does not recollect which lots.
14
The answer of Robert Ritchie states, that he is a purchaser for a valuable
consideration, without notice, of that part of the lot No. 86, which was
conveyed by James Findley to Abraham Garrison, Jun.
15
Sundry despositions were taken and exhibits filed, after which, the cause came
on to be heard, and the court decreed Charles Vattier and Robert Ritchie
severally to convey to the plaintiffs the parts they respectively held of the lot
No. 86. From this decree, the defendant appealed to this court. On a hearing the
decree, was reversed, because Abraham Garrison was not made a party; and the
cause was remanded to the circuit court, with directions to permit the plaintiffs
to amend their bill, and make Abraham Garrison a party, and to proceed de
novo.
16
On the return of the cause to the circuit court, the death of the plaintiff,
Belinda, being suggested, the suit was revived as to her heirs; and a bill or
revivor, and an amended and supplemental bill, was filed, making Abraham
Garrison a party. The bill, after reciting the matter of the original bill, and
stating the death of Belinda Hinde, without issue, whereby the plaintiff, T. S.
Hinde, became entitled to a life-estate, as tenant by the curtest, and the other
plaintiffs, who are infants, were entitled as the only issue and heirs of the said
Belinda, prays that the suit and all the proceedings in it may stand revived, and
be prosecuted by the said Thomas for himself, and for them, as their next
friend. The bill then charges, that James Bradford, Thomas Doyle and John
Bradshaw were brother officers; that Bradshaw executed a voluntary bond to
Thomas Doyle, the son of Thomas Doyle, binding himself to convey to him
two hundred and fifty acres of land, part of a large tract, which is very valuable.
This bond was delivered to Thomas Doyle, the father, for the benefit of his son,
who afterwards sold the land to Samuel C. Vance, for a large sum of money,
which he received. To indemnify his son, he procured the lot No. 86 to be
conveyed to him. Them intention was declared at the time. He was then
indebted, but not insolvent. Cincinnati then contained not more than one
hundred inhabitants, and this transaction was generally known. After the
execution of the bond to T. Doyle, the son, J. Bradshaw departed this life,
leaving a will, in which he devised his whole estate to T. Doyle, the elder. The
estate of the father descended to his son, and on his death, to his halfsister
Belinda, after which the plaintiff, T. S. Hinde, confirmed the sale to Vance.
17
After T. Doyle, the father, had taken possession of lot No. 86, for his son,
sundry lots in Cincinnati were sold as his property, under execution, some of
which were purchased by Vattier; but lot No. 86 was not among them. It
remained open and unimproved until 1814, when the plaintiff, T. J. Hinde, took
possession, and placed a tenant on it.
18
Vattier, erroneously supposing himself to have purchased this lot No. 86,
among others, examined into the title, and must have become fully apprised of
the title of T. Doyle, the younger, as the deed from Jones to him was on record,
and recites the deed from Garrison to Jones. In consequence of this, he took
depositions in perpetuam rei memoriam, to prove that the consideration of the
deed to the son moved from the father.
19
About the year 1807, Vattier, being largely indebted to Findley, transferred to
him a large quantity of property, among which lot No. 86 was supposed to be
included. It is understood, that no money passed on this arrangement between
Vattier and Findley, nor were the relations of the parties changed. Findley
examined into the title, and became acquainted with its history, from the
recorder, T. Henderson. He determined to acquire the legal title from Garrison,
which he did acquire, at the price of $700, and the conveyance of twenty-three
feet, part of the lot, to the son of the vendor. The lot was then worth $30,000. In
1818, Findley and Vattier readjusted their affairs, and lot No. 86, so far as
Findley retained the title, was reconveyed to Vattier. He sold to Lytle for
$15,000, who never paid any money; and the contract has been cancelled. The
bill prays for a discovery and for a conveyance.
20
The answer of Abraham Garrison acknowledges the sale and conveyance to
William and Michael Jones, and the receipt of the purchase-money. He admits
the receipt filed in the cause. He was induced to make the conveyance to
Findley, by the assurance that the equitable title was already in him. He
disclaims all title or interest, and prays to be dismissed. The defendant,
Garrison, having disclaimed all interest, and it appearing that he was a citizen
of Illinois; and the defendants, who purchased the twenty-three feet of land,
sold by Findley to Abraham Garrison, Jun., having filed their answers, denying
notice; and the plaintiffs admitting, the notice could not be fixed on them; the
court, with the consent of the plaintiffs, decreed that the bill be dismissed as to
them.
21
The answer of Charles Vattier states the amendment of the bill, by which
Garrison was made a party, and the subsequent dismissal of the bill as to him;
wherefore, he prays that the whole bill may be dismissed. He does not admit,
that Belinda Bradford was the heir-at-law of James Bradford, or that she was
born in lawful wedlock; nor does he admit the marriage of Thomas Doyle with
the mother of the said Belinda, or the birth of T. Doyle, Jun. He denies, that the
said Belinda was the heir of T. Doyle, Jun. He admits the conveyance of the lot
from John Cleves Symmes, in 1795, to A. Garrison, and that some contract was
made by Garrison with W. and M. Jones, and that W. and M. Jones sold their
equitable title to T. Doyle, who took possession in his own right, and not in
right of his son. The consideration moved from the father; consequently, if the
conveyance was made to the son, he held in trust for his father. The deed from
Jones was made, he says, to the son, fraudulently, for the sole purpose of
defrauding creditors; he denies that the father was indebted to the son. He
denies that the lot lay open and unimproved; it was in possession of the
defendant, who made some small improvements on it.
22
He obtained a jugement against the elder Doyle, in February 1801, upon which
an execution issued, which was levied on lot No. 86. An inquest summoned to
ascertain the value of the premises, returned, that Thomas Doyle was seised of
lot No. 86, and that its clear yearly value was twelve dollars. A writ of
venditioni exponas was issued, which was stayed by supersedeas; but the
judgment was affirmed; after which the lot was sold under execution, and the
defendant, Vattier, became the purchaser. There having been lots sold on the
same day, the sheriff conveyed to Mr. Barnet the lot sold to the defendant, and
to the defendant the lot sold to Mr. Barnet. The mistake was corrected by Mr.
Barnet, so far as his own interest was concerned, but was neglected by the
defendant. Some time after his purchase, he heard of the claim of young Doyle,
and on being told by Jones that the purchase-money was paid by the father, he
took depositions to perpetuate testimony. He denies, that Belinda, the late wife
of T. S. Hinde, was the heir of T. Doyle, Jun. He admits, that upon a final
settlement with Findley, the lot was reconveyed to him at the price of $15,000.
He also admits the sale to Lytle, and a reconveyance of the property, the
purchase-money not having been paid.
23
The same defendant afterwards filed an amended answer, in which he states,
that at the time of filing the original bill, belinda Hinde, the plaintiff, whose
right was asserted therein, had no title to the lot No. 86. That on the 5th day of
October 1814, she, with her husband, Thomas S. Hinde, executed and delivered
to Alexander Cummins, a deed of bargin and sale, whereby they conveyed the
sale lot to him in fee-simple, which deed was recorded in the court of Hamilton
county, a copy of which is exhibited with the answer.
24
In their replication, the plaintiffs admit the execution of the deed set forth in the
amended answer, but aver, that if the deed was sufficient in law to transfer the
estate of the said Belinda in the premises, which they do not admit, it was
intended to vest the same in the said Alexander, in trust to reconvey the same to
the said Thomas, to be held by him in trust for the use and benefit of the said
Belinda and her heirs; and for this purpose, the said Alexander did, on the 5th
day of October 1814, reconvey the said lot to the said Thomas. And afterwards,
in March 1815, did execute another deed for the same purposes, which lastmentioned deed was properly recorded in Hamilton county. The defendants
rejoin to this replication.
25
On a hearing, the court dismissed the bill as to Lytle and Findley, they
appearing to have no interest in the premises; and decreed, that Charles Vattier
do, within sixty days, release to the plaintiffs so much of lot No. 86 as was
conveyed to him by James Findley. From this decree, the defendant, Charles
Vattier, appealed to this court.
26
The counsel for the appellant assigns several errors in the decree. The first is,
that the court had no jurisdiction, the defendant Garrison being a citizen of the
state of Illinois. He contends, that the suits between citizens of the United
States, all the parties on one side must be citizens of the state in which the suit
is brought; and that the jurisdiction of the court depends on the state of parties
at the institution of the suit. In support of this proposition, he cites Nollan v.
Torrance, 9 Wheat. 537. In that case, a plea to the jurisdiction averred, that the
plaintiff and defendant were both citizens of the state of Mississippi. On
demurrer, this plea was held ill, because the jurisdiction of the court depended
on the state of the parties at the institution of the suit, and not at the time of the
plea pleaded. The same objection was made, and the same case cited in support
of it, in Connolly v. Taylor, 2 Pat. 556. In that case, the court said, 'where there
is no change of party, a jurisdiction depending on the condition of the party is
governed by that condition, as it was at the commencement of the suit.' But this
principle was not supposed to be applicable to a suit brought by or against
several individuals, whose names were stricken out during its progress. In the
case of Connolly v. Taylor, the plaintiffs were aliens and a citizen of
Pennsylvania. The defendants were citizens of the state of Kentucky, in which
the suit was brought, except one who was a citizen of Ohio. As between the
citizen of Pennsylvania and of Ohio, the court, sitting in Kentucky, could
exercise no jurisdiction. 'Had the cause,' said the court, 'come on for a hearing
in this state of parties, a decree could not have been made in it, for the want of
jurisdiction.' The name of the citizen of the United States, who was originally a
plaintiff, was, however, stricken out, before the cause came to a hearing, and
the jurisdiction was sustained.
27
This case is, we think, in point. A decree between all the original parties could
not have been made. Those plaintiffs who had a right to sue all the defendants,
had, in their bill, united with themselves a person between whom and one of the
defendants, the court could not take jurisdiction. By striking out his name, the
impediment was removed, and the jurisdiction between the other parties
remained as it would have stood, and his name never been inserted in the bill.
The court could perceive no objection founded in convenience or in law to this
course. It is impossible to draw a distinction, so far as respects jurisdiction,
between striking out the name of a plaintiff and of a defendant. The citizen of
Ohio may have been a more necessary party in the cause than the citizen of
Pennsylvania. Had it been otherwise, the same principle which sustained the
one alteration, would have sustained the other.
28
In the case of Cameron v. McRoberts, 3 Wheat. 591, John McRoberts, a citizen
of Kentucky, filed his bill in the court of the United States, against Charles
Cameron, a citizen of Virginia, and other defendants, without any designation
of their citizenship. The defendants appeared and answered, and a decree was
pronounced for the plaintiff. Upon a motion to set aside the decree, and to
dismiss the suit for want of jurisdiction, the judges were divided in opinion on
the following point, which was certified to this court. 'Had the district court
jurisdiction of the cause as to the defendant Cameron and the other defendants?
If not, had the court jurisdiction as to the defendant Cameron alone?' The
certificate of this court was, that if a joint interest vested in Cameron and the
other defendants, the court had no jurisdiction over the cause. If a distinct
interest vested in Cameron, so that substantial justice (so far as he was
interested) could be done, without affecting the other defendants, the
jurisdiction of the court might be exercised as to him alone. The other
defendants were represented, on the motion, to be citizens of Kentucky; but this
is of no importance, since the jurisdiction of the court was as much affected by
the omission to aver that they were aliens or citizens of some other state, as it
would have been by the averment that they were citizens of Kentucky. This
certificate applies to the state of parties at the time of the decree, and affirms
this principle. If the defendants have distinct interests, so that substantial justice
can be done, by decreeing for or against one or more of them, over whom the
court has jurisdiction, without affecting the interests of the others, its
jurisdiction may be exercised as to them.
29
If, then, when this cause came on for hearing, Abraham Garrison had still been
a defendant, a decree might then have been pronounced for or against the other
defendants, and the bill have been dismissed as to him, if such decree could
have been pronounced as to them, without affecting his interests. We perceive
no principle of reason or law which opposes this course. The incapacity of the
court to exercise jurisdiction over Garrison, could not affect their jurisdiction
over other defendants whose interests were not counected with his, and from
whom he was separated, by dismissing the bill as to him.
30
The second error assigned is attended with more difficulty. It is, that Abraham
Garrison is a necessary party, without whom a decree ought not to be made.
This objection derives additional force from the fact, that the former decree
was reversed, because he had not been made a party. Did the case now appear
under precisely the same circumstances as at the former hearing, the same
decree would undoubtedly be now pronounced. But it is insisted by the counsel
for the appellees, that circumstances have so changed, as to require a different
decision. It did not appear in the record, as formerly brought up, that Garrison
was not within the jurisdiction of the court. This circumstance is undoubtedly
entitled to great consideration, and has always received it. It is the settled
practice in the courts of the United States, if the case can be decided on its
merits, between those who are regularly before them, to decree as between
them; although other persons, not within their jurisdiction, may be collaterally
or incidentally concerned, who must have been made parties, had they been
amenable to its process, this circumstance shall not expel other suitors who
have a constitutional and legal right to submit their case to a court of the United
States, provided, the decree may be made, without affecting those interests.
31
In the case of Osborn v. Bank of the United States, 9 Wheat. 738, this point was
made and relied on by the appellants. A tax had been imposed by the
legislature of Ohio on the Bank of the United States, which had been forcibly
levied by the officer employed to collect it. A bill was filed against this officer,
and against the auditor and treasurer of the state, praying that the money be
restored to the bank, the act imposing the tax being unconstitutional. The
process was served, while the money was yet in the hands of the officer. The
court decreed the restoration of the money, and the defendants appealed. The
appellants insisted, that the state of Ohio was the party really interested; that
the treasurer, auditor and collecting officer were its agents; and that no decree
could be made, unless the principal could be brought before the court. This
court admitted the direct interest of the state, and added, 'had it been within the
power of the bank to make it a party, perhaps, no decree ought to have been
pronounced in the cause, until the state was before the court; but this was not in
the power of the bank.' The jurisdiction of the court was sustained, and the
decree affirmed.
32
This is a stronger case than that under consideration. The money in contest
would have been paid into the treasury of the state, had the bill been dismissed
for want of proper parties. The decree arrested the money in its progress to the
treasury, and restored it to the bank. All must admit, that the state ought to have
been made a party, had it been amenable to the process of the court. Yet this
direct interest did not restrain the court from deciding the merits of the cause
between the parties before it. In the case at bar, Abraham Garrison has no
claim, legal or equitable, to the property in contest. No decree could be made
against him, and he has filed his answer disclaiming all interest in the cause. It
is true, that his answer is not evidence as an answer, since the court had no
jurisdiction as to him. But in a question concerning himself onlyin a question
whether the court will abstain from exercising its jurisdiction between parties,
in some of whom the whole title in law and equity is vested, lest his interests
should be affectedhis disclaimer of all interest, appearing in the form in
which it appears, cannot be disregarded.
33
The rule that the court will proceed, although persons interested are not parties,
if those persons are not within its jurisdiction, has been adopted also by the
court of chancery in England. There, as here, the general rule is, that 'all
persons materially interested in the subject ought to be parties, in order to
prevent a multiplicity of suits, and that there may be a complete decree between
all parties having material interests; but this being a general rule, established
for the convenient administration of justice, is subject to some exceptions,
introduced from necessity, or with a view to practical convenience. 'Thus,'
continued Mr. Maddock (vol. 2, p. 142), 'where persons interested are out of the
jurisdiction of the court, and it is stated so in the bill, and proved, it is not
necessary to make them parties.'
34
Had the case on the former hearing appeared as it now appears; had it been
then known, as it is now known, that making Garrison a party would turn the
plaintiffs out of court, and that he disclaimed all interest in the cause; had these
facts appeared in the former record; we think the decree would not have
reversed, for the cause assigned for its reversal. We are, therefore, of opinion,
that the court committed no error in making their decree between the remaining
parties, after the bill had been dismissed as to Abraham Garrison.
35
There preliminary objections being removed, we proceed to consider the rights
of the parties. A question has been made respecting the admissibility of great
part of the testimony on which these rights depend. Before the original decree
was made, while the cause was depending in the circut court, the parties, by
their counsel, filed a consent in writing for the admission of all the testimony
which had been taken in several suits which were depending between some of
the same parties, relative to the same controversy, in all the suits both in law
and equity. Under this agreement, all the depositions were read, without
objection, at the hearing of the cause. When the decree then pronounced was
reversed, and the cause remanded, the counsel for Vattier objected to such of
the depositions as were not regnlarly taken; and now allege, in support of the
objection, that the consent was no longer binding. That the order to proceed de
novo was equivalent in effect to dismissing the bill without prejudice; and that
new parties are brought into the cause. The only really new party was Abraham
Garrison, and the testimony was never used for or against him. The bill, as to
him, was dismissed, before the cause came to a hearing. The new pargies
plaintiffs are the representatives of Belinda Hinde, an original plaintiff, and the
proceedings are revived in their names, by the order of the court, on their bill of
revivor. Under such circumstances, the settled practice is, to use all the
testimony which might have been used had no abatement occurred. The
representatives take the place of those whom they represent, and the suit
proceeds in its new form, unaffected by the change of name. The reversal of the
original decree cannot annul the written consent of parties for the admission of
testimony. That consent was not limited in its terms to the first hearing, but was
co-extensive with the cause. The words in the decree of reversal, that the
parties may proceed de novo, are not equivalent to a dismissal of the bill,
without prejudice; nor could the court have understood them as affecting the
testimony in the cause, or as setting aside the solemn agreement of the parties.
The testimony, therefore, is still admissible, to the extent of that agreement.
36
As the appellees claim under Thomas Doyle, Jun., the first inquiry is into the
validity of his title. It is derived, as is stated in the original bill, from Abraham
Garrison, who sold to William and Michael Jones. This sale is proved by the
receipt given for the purchase-money, which receipt also contains a stipulation
for a conveyance.
37
An objection is made to its admission in evidence, because it has not been
proved by the subscribing witness. Some affidavits were filed, which state, that
after diligent inquiries at his former place of residence, no intelligence could be
obtained respecting him, nor had he been heard of for many years. These
affidavits are also objected to, because not regularly taken on notice. The
validity of this objection need not be examined, because the receipt is more
than thirty years old, and is not only free from suspicion, but is supported by
other testimony. In such a case, the subscribing witness may be dispensed with.
Bull. N. P. 255; 1 Stark. on Evid. 342. This paper vests an equitable title in
William and Michael Jones. The bill alleges that a deed in pursuance of it was
soon afterwards executed, and there is much reason to believe, that the
allegation is true; but the deed is lost, and the proof of its existence is not
thought sufficient to establish it.
38
In March 1800, a deed was executed by William Jones, for and on behalf of his
partner Michael and himself, conveying the lot No. 86 to Thomas Doyle, Jun.
The appellants insist, that this deed is fraudulent; that the consideration moved
from Thomas Doyle, the father; and that the conveyance was made, at his
instance, to his son, then an infant, for the purpose of protecting the property
from the creditors of the father, who was then insolvent. The appellees insist,
that the money paid, was in truth the money of the son, then in the hands of the
father, and that the transaction was a fair one. They admit, that Thomas Doyle,
sen., was indebted, but not insolvent. The bill states that the money of the son
came to the hands of his father, in the following manner.
39
John Bradshaw, the intimate friend and brother officer of Thomas Doyle, being
an old bachelor, without near relations, executed a voluntary bond to the son of
his friend, for two hundred and fifty acres of valuable land, part of a larger
tract, which he deposited with the father, for the use of the son. This statement
is corroborated by the will of Bradshaw, in which he gives the residue of the
land, and all his other property to Thomas Doyle. What is denominated a bond,
is, in substance, a deed poll. It describes the tract of land, of which the two
hundred and fifty acres it purports to convey are a part; and then, for a valuable
consideration, bargains and sells the said two hundred and fifty acres to
Thomas Doyle, Jun., son of Major Thomas Doyle, a major in the service of the
United States. This bond or deed is attested by two witnesses, and bears date
the 7th day of January 1794. The handwriting of one of the subscribing
witnesses, who is dead, is proved; and a witness testifies, that he has heard
nothing concerning the other, though he has made inquiry for him. The
handwriting of Bradshaw is also proved.
40
On the 17th of May 1796, Thomas Doyle, the father, made the following
assignment of this instrument. 'In consideration of four hundred dollars to me in
hand paid, I sign over, in behalf of my son, Thomas Doyle, Jun., my right and
title to the within mentioned tract of land, and obligate myself in the penalty of
six hundred dollars, that when he becomes of sufficient age, that he will sign
over his right and title of the same, agreeable to law.' (Signed) Thomas Doyle.
The payment of the consideration money specified in the assignment is proved.
41
Thomas Doyle, then, was, in May 1796, indebted to his son for money received
to his use, in the sum of $400. Although the son might, when of age, have
refused to receive this money, and have asserted his title to the two hundred and
fifty acres, had the tract of which it was a part remained the property of his
father, the devisee of Bradshaw, or of a purchaser with notice, yet he was not
compellable to assert it; and, his title not being on record, he could not have
asserted it against a purchaser without notice. Thomas Doyle, the son, then was
a bon a fide creditor of his father, for the sum of $400. The circumstances
under which this debt was created, or the relationship between the parties,
cannot render it less sacred.
42
In March 1800, Thomas Doyle, being thus indebted to his son, directed the
conveyance of lot No. 86 to be made to him, declaring at the time, that it was
made in consideration of the debt he owed for his son's land sold to Vance. Had
this transaction been in favor of any other creditor than a son, its fairness could
never have been impeached. Had he, as guardian for any other person, secured
a debt, under the same circumstances, the helpless infancy of the ward would
not have tainted the transaction with fraud. The connection between the parties
may excite suspicion, may justify a more scrutinizing investigation of all the
circumstances; but if the result of this investigation be, as we think it is, that the
conveyance was in payment of a debt of the most sacred obligation, a debt
which a conscientious debtor ought to have paid, it is valid in law. The
consideration mentioned in the deed, is $350, and it is not suggested, that the
lot was worth more than that sum. This deed could pass only the interest of
William Jones. But it purported to convey the interest of both partners. The
presumption arising from the language of the deed, and the connection between
the parties, that the land was considered as an article of merchandise, and
supposed to be conveyed as such an article, is strengthened, if not confirmed,
by the deed of confirmation afterwards made by Michael Jones, the other
partner and joint-owner of the lot, and by his deposition, which states that the
purchase was made by William, the acting partner, who directed the
conveyance to be made to the firm.
43
This being the title of Thomas Doyle, Jun., we are next to inquire, whether it
has descended on Belinda, the plaintiff in the original suit, and his sister on the
part of the mother. The plaintiffs make two objections to her title. 1st. That she
was not born in lawful wedlock, and was, therefore, incapable of taking lands
by descent. 2d. That if legitimate, she could not inherit this from her halfbrother; because she is not of the blood of the first purchaser.
44
1. Belinda was the daughter of James and Margaret Bradford. Several witnesses
testify that they lived together as man and wife, acknowledged each other in
that character, and were reputed to be lawfully married. The will made by Mr.
Bradford, after being mortally wounded, bequeathes one-half of his estate of his
wife, Margaret Bradford, 'now pregnant;' and the other half to his child, 'of
which' she was then pregnant. To this testimony, the appellant opposes some
rumors that they were married by a military officer, a person not authorized to
perform the ceremony. We cannot hesitate on this question. Belinda Bradford,
the child mentioned in the will of her father, must, unquestionably, be
considered as legitimate.
45
2. It is alleged, that she could not inherit this lot, unless Thomas Doyle, Jun.,
died before the enactment of a law which limited the inheritable capacity of the
half-blood to the blood of the first purchaser; and the appellants insist, that this
fact is not proved. The court has not inquired into it, because Thomas Doyle,
Jun., is himself the first purchaser, and may transmit the lot to his half-sister,
whether on the part of the father or mother. The plaintiff Belinda then succeeds
to all the rights of Thomas Doyle, Jun., in the lot in controversy.
46
We are next to inquire, how those rights are affected by the title of the
appellants. Charles Vattier, the appellant, claims under a sale made in 1802, by
the sheriff of Hamilton county, by virtue of an execution issued on a judgment
obtained against Thomas Doyle, which he says was levied on lot No. 86. At
this sale, he alleges that he was the highest bidder, and, as such, became the
purchaser. The sheriff made the deed on the 14th of July 1828. The
consideration expressed is $90. The appellees do not admit the fact, that this lot
was really sold as the property of Thomas Doyle. The testimony, which would
seem to be conclusive, that this lot was sold, as alleged by Vattier, is repelled
by circumstances of great weight. But, admitting this fact to be completely
established, its influence in the cause is countervailed by the circumstance, that
Thomas Doyle had no semblance of title, in law or equity, to the lot on which
the execution was levied. The deed of William Jones, in the name of William
and Michael Jones, conveying the lot to Thomas Doyle, Jun., was recorded in
March 1800. If persons were not bound to notice this deed, because the title of
Jones did not appear on the record, still there was no trace of title from any
person whatever to Thomas Doyle. This sale, then, was totally unauthorized,
and could convey nothing; no title being in Vattier, he could convey none to
Findley. If then, at any time before the deed from Garrison to Findley, a
controversy had arisen respecting the title to this lot between the heirs of
Thomas Doyle, Jun., and Charles Vattier, or his vendee, each claiming a
conveyance of the legal title, the decision must have been in favor of Doyle's
heirs. They had, if not the legal right, a complete equitable title, to which no
single objection could be made.
47
Was the conveyance from Garrison to Findley made under circumstances which
ought to defeat this title? Charles Vattier having become largely indebted to
James Findley, this lot, with other property, is said to have been transferred to
him, in 1807, in part satisfaction of the debt. The conveyance, if any was made,
is not adduced; nor have we any satisfactory evidence, if one was made, that it
included this lot. It is not pretended, that any money was paid, in consequence
of this arrangement. Some considerable time after it, Findley, having become
fully apprised of the defect in his title, and of the conveyance to Thomas Doyle,
Jun., applied to Garrison, and in 1815, obtained a conveyance from him. He
afterwards conveyed this property to Vattier. If Vattier can now be deemed a
purchaser without notice, his title cannot be disturbed.
48
It is not alleged, that either Vattier or Findley was without knowledges of the
rights of the appellees, when the legal title was acquired. It is contended that
they acquired the property and paid the purchase-money, without this
knowledge, and might, therefore, conscientiously protect themselves, by getting
in the legal estate. Let this allegation be examined.
49
In 1802, Vattier purchased the title of Thomas Doyle, the elder, who had no
title whatever. Whether he knew that a conveyance had been made to Thomas
Doyle, the younger, or not, is immaterial. He could acquire nothing. The
principle caveat emptor is completely applicable. The rules respecting a
purchaser without notice, are framed for the protection of him who purchases a
legal estate and pays the purchase-money, without knowledge of an outstanding
equity. They do not protect a person who acquires no semblance of title; they
apply fully only to the purchaser of the legal estate. Even the purchaser of an
equity is bound to take notice of any prior equity. Vattier's original purpose,
then, cannot avail him, because he was bound to notice the equity of Doyle. But
there is, we think, much reason to believe, that he had actual notice of that
equity; or, at any rate, was informed of circumstances which ought to have led
to such inquiry as would have obtained full notice.
50
The title of Garrison, under whom Doyle was supposed to claim, is presumed
by the law to have been known to Vattier; he ought to have inquired into it. In
his answer, he says, 'he has been informed and believes, that some kind of a
contract was made by the said Abraham Gar rison with William and Michael
Jones, for the sale to them of the lot aforesaid.' He does not state the time when
this information was obtained, nor is there any reason to believe, that it was
subsequent to his purchase.
51
He also admits his information and belief, that W. and M. Jones sold their right
to Thomas Doyle, the elder, who paid them the full consideration for the same,
and took in his own right, and in the right of his son. He does not say, when this
information was obtained. He says, he had no other knowledger of the title of
Thomas Doyle to the lot than its being called his, and being sold as his. These
circumstances lead to the opinion, that this information was received anterior to
his purchase.
52
In so small a society as was then settled in Cincinnati, it is not probable that the
title of Thomas Doyle, the son, which was of record, should have been
unknown. It would, most probably, be the subject of conversation. But be this
as it may, a purchaser was bound to make inquiries from Garrison. Had the lot
been sold as the property of Garrison, full notice of the equity of Jones and of
Doyle would be required, to defeat the rights of the purchaser; but, being sold
as the property of Thomas Doyle, sen., the purchaser was bound to inquire into
his title. In making these inquiries, Vattier, if he then possesses a knowledge of
the sale of Jones (and if he did not, he ought to have been more explicit in his
answer), should have searched for a conveyance from Jones to Doyle. He must
have found one from Jones to Thomas Doyle, Jun. Under these circumstances,
Vattier ought to have taken notice of the prior equity of Doyle; if he did not, he
is chargeable with negligence.
53
But it has been argued, that Findley purchased what he supposed to be a legal
title, and might protect himself, after discovering his mistake. Several answers
have been given to this argument. The lot was understood to have been sold as
the property of Thomas Doyle, sen., and the sheriff's deed to Vattier stated it to
be sold as the property of John C. Symmes, under an execution against him.
Symmes had no title. If it was actually sold as the property of T. Doyle, sen., he
could show no semblance of title. James Findley, therefore was bound to know
that he received from Vattier a property to which the vendor had no other right
than was given in possession. He was, consequently, bound to take notice of all
existing equities, and could not maintain his possession against them. Had he
been about to make a purchase, he must have examined the title of Vattier, and
must have discovered that he had none. Upon such examination, the deed from
Jones could scarcely have escaped his notice. Findley had paid no money for
the lot. The character of the transaction between Vattier and himself is not
explained. A new arrangement of all their affairs appears to have taken place,
by which this lot was returned. Previous to this new arrangement, he had full
notice of the title of the appellees, and with this notice, purchased from
Garrison at a great undervalue. It is not alleged, nor can we presume, that he
was driven to this purchase as the only refuge to protect himself from loss. Had
such an allegation been made, it would require an examination of the contract
and transactions between himself and Vattier; but it is not made.
54
Upon a full consideration of all the circumstances under which Findley bought
from Garrison, we cannot consider him as entitled to that protection which a
court of equity affords to a man who purchases a legal title, and pays the
purchase-money, without notice of an equity existing against the property
which had been sold to him. At the time of acquiring the legal title, he had full
notice of the equity of the appellees; and we do not think, he has shown himself
to have been placed in a situation which would justify his procuring a
conveyance from Garrison. If he was not himself protected against the equity of
Doyle's representatives, he could communicate no protection to Vattier, who
had himself full notice. The conveyance to Lytle, and the reconveyance from
him, cannot affect the case, because no money was paid.
55
If, then, the case of the appellees had been correctly stated in their bill, we
should have thought them entitled to the relief for which they prayed. But it
was not correctly stated. The bill sets forth a title in Belinda, the wife of
Thomas S. Hinde, by direct descent from her brother to herself, and insists on
this title. The answer resists the claim, because the land had been conveyed by
the plaintiffs, before the institution of their suit, to Alexander Cummins. The
plaintiffs, in theis replication, admit the execution of the deed to Cummins, but
aver that it was made in trust to reconvey the same rights to the said Thomas, to
be held by him in trust for the use and benefit of the said Belinda and her heirs,
and to enable the said Thomas the more conveniently to manage, litigate and
protect the said rights; and that the said Alexander Cummins did, afterwards, in
execution of the said trust, make a deed to the said Thomas, which is recorded
in the proper county. The deed referred to is exhibited, but expresses no trust
for the wife and her heirs. Will the rules of the court of chancery permit this
departure in the replication from the statements of the bill?
56
It is well settled, that a decree must conform to the allegations of the party, as
well as to his proofs. The answer, supported as it is by the deed to Cummins,
would have put the plaintiffs out of court, had they not made a new case in their
replication. Ought not this case to have been made in their bill, and can the
omission to make it be supplied by averments in the replication? The act for
regulating processes in the courts of the United States (1 U. S. Stat. 276),
enacts, that 'the forms and modes of proceeding' in courts of equity and in those
of admiralty and maritime jurisdiction, shall be 'according to the principles,
rules and usages which belong to courts of equity and to courts of admiralty,
respectively, as contradistinguished from courts of common law;' subject,
however, to such alterations, &c. This act has been generally understood to
adopt the principles, rules and usages of the court of chancery of England. By
the principles, rules and usages of that court, the plaintiffs, in such a case as
this, must have amended their bill. 2 Madd. Ch. 275, 286; Mitf. Pl. 256. They
could not have been permitted to make a new case in their replication. The act
permits this court to prescribe rules for the practice of the circuit courts. Rules
have been prescribed in pursuance of this power, but they allow a special
replication to be filed only with leave of the court. This replication was filed
without leave, and is, consequently, not saved by the rule. We think it
obviously proper, that the real case should have been stated in the bill, and that
the decree ought not to have been pronounced, in the actual state of the
pleadings. For this fault, we are of opinion, that the decree ought to be reversed,
and the cause remanded, with directions to permit the plaintiffs to amend their
bill.
57
THIS cause came on to be heard, on the transcript of the record from the circuit
court of the United States for the district of Ohio, and was argued by counsel:
On consideration whereof, this court is of opinion, that to entitled themselves to
the decree which was pronounced in their favor, the plaintiffs in the circuit
court ought to have stated their case truly in their bill, as it now appears on the
record, and that after the amended answer was filed, showing the deed from
Thomas S. Hinde and Belinda his wife to Alexander Cummins, the plaintiffs
ought to have obtained leave to amend their bill, so as to introduce into it the
reconveyance from Alexander Cummins to Thomas S. Hinde, on the trusts
agreed on between the parties, instead of alleging this new matter in their
replication. This court is further of opinion, that the circuit court ought not to
have pronounced its decree, and that for this cause, the decree ought to be
reversed, and is hereby reversed, so far as it directs a conveyance to be made by
the appellant, Charles Vattier, and the cause is remanded to the circuit court,
with directions to permit the plaintiffs to amend their bill.
