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property then vested, in fee, in John M. Cuyler and in the heirs of his brother Teleman, in undivided halves, Teleman having died intestate anterior to the termination of the life estate; that complainant has been informed that during the late civil war, when all communication was interrupted, some of said. parties applied for a partition of said property, and under proceedings of which he knew nothing, to which he was not a party, and of which, at the time of filing the bill, he had no definite information, the said property was sold and purchased by John C. Ferrill aforesaid, who, as he has been informed, paid for the same in notes issued by the late Confederate Government; that if such proceedings were had, they were not binding on him; and, if intended to affect his rights, they were a fraud upon
and unlawful; and prayed for a commission to divide and allot the property, and for an account of the rents, income, and profits from the death of the last surviving daughter, on the — day of March 1863.
The answer of defendants, except Ferrill, admitted the facts set forth in the bill, and recited the proceedings for partition in the Superior Court of Chatham county, ending in the sale of the lots to Ferrill. The return of the commissioners to make partition set forth the sale and payment of one-half the proceeds to the heirs of Teleman Cuyler, and that they had a balance of $17,033 remaining in their hands, “which, under the will of the said Jeremiah Cuyler, is devised to Dr. John M. Cuyler, a surgeon in the army of the United States. Of this amount, these commissioners, under the exigencies of the Currency Act of the Confederate States, have invested $17,000 in 4 per cent. certificates, and have on hand $33.01 in currency of the Confederate States, issued prior to the 17th February 1864.” This return was included in the record of the proceedings for partition, all of which was maile a part of the answer of these defendants.
Ferrill, in his answer, did not deny the facts as to the will and complainant's title under it, &c.; admitted the payment of the purchase-inoney in Confederate notes, but denied any fraud on the rights of complainant in the sale and purchase of the lots aforesaid, and insisted that as a fair and bona fide purchaser, for a valuable consideration, he had a full title to said lots of land in fee simple, and that no partition could be decreed by this court.
To these several answers complainant filed his replications.
Mr. Fitch and Mr. Pope, for complainant, cited and commented on Code, $ 3922; 2 Spear 283; 6 Wend. 453; 5 Ga. 505; 7 Rich. Eq. 283; Story Eq. Pl. $$ 72, 82, 83; 1 Story Eq. Jur. § 556; 2 Atk. 380; 1 Story Eq. Jur. $$ 650, 651; 3 Br. Ch. 264; 1 Russ. & M. 284; 1 Sumner 504; 4 Dess. 287; 1 Speer's Eq. 542; Rice Eq. 340; 2 Sim. & Stu. 472; 4 Rich. Eq. 105; 2 Hill Ch. 367; 3 Atk. 304; Id. 814; Speir's Eq. 27; 4 Strob. Eq. R. 73, 74; 3 Atk. 124; 1 Story Eq. Jur. $ 655; 5 Mad. Ch. n. 363; 8 Wheat. 1; 1 Kent 67; 7 Peters 586; 9 Cow. 573; Ager v. Fairfax, 17 Ves.
Mr. Dougherty and Mr. Lloyd, for defendants, cited and relied on 8 Cranch 4,9; 1 Pick. 439; 2 Burr. 1009; 2 H. Blackstone 115; 1 Kelly 483; 2 Barb. Ch. 396; 3 Id. 608; 5 Id. 51; 9 Id. 516; Bunb. R. 322; 1 Johns. Ch. 111; 4 Barb. 493; Story Eq. Jur. $ 646; 9 Cowen 546, 573; Rich. Eq. R. 84; 2 Barb. 398; Code of Georgia.
ERSKINE, J.—(After stating the facts.)—The proceedings relied upon by the contesting defendant, Ferrill, in bar of the present suit for partition, were had, as it seems, under the Code of Georgia, SS 3896 to 3907, inclusive. These sections provide, among other things, here unnecessary to mention, that if the party called upon to answer the application for partition be absent from the state, or has not been notified, he must, within twelve months after the rendition of the judgment, move the court to set it aside, or he will be concluded. “ But in no event shall subsequent proceedings affect the title of a bona fide purchaser under a sale ordered by the court:” Code, $ 3907.
The property, as already noted, was sold in the summer of 1863, and the bill was filed in this court in the winter of 1867, nearly four years thereafter. But from the view which I entertain of this suit, the Statute of Limitations invoked is not a point for decision.
Among other defences, Ferrill assumed the position that if there was any irregularity in the proceedings of 1863, complainant must address himself to the Superior Court of Chatham county, that court alone having jurisdiction of the matter under the statutes of Georgia. And that view must be deemed correct unless there be circumstances peculiar to the alleged proceedings for the partition—which contravene some governing principle or policy of the common or positive law.
Another position taken by him was that he is a fair and bonâ fide purchaser for value of the entire property, at a judicial sale, and, therefore, that no partition can be inade by this court.
If this argument is sound, then the complainant must go elsewhere to seek redress; for this court has no jurisdiction except what is bestowed by the National Constitution and the laws of Congress enacted in pursuance thereof. This defence appears to be founded upon the concluding sentence of section 3907 of the Code, but the defence is not, in my judgment, proved by the evidence. To entitle Ferrill to the benefit of it (supposing the proceedings and sale to have been legal), the purchase-money—the $36,000—must have been paid in money; whereas the proof is that it was paid in “ Confederate notes :" Boone v. Chiles, 10 Peters 177.
Here it may be observed, that it was fully discussed at the hearing, whether the defence of bona fide purchaser can avail against a legal title; but the question seems not to be material to the determination of this cause.
If Ferrill is to be treated as a purchaser, it must be in a very limited sense of the term; he cannot be recognised as a purchaser who has paid, but as one still indebted; as, for example, a defendant in fieri facias would be after payment to the marshal in a worthless or depreciated currency: Griffin v. Thompson, 2 How. 244; Buckhannon v. Tinnin, Id. 258. See also 3 Id. 707. Therefore, if the court could abstain from making partition, it would do so on terms, and these terms will necessarily be, that Ferrill, as purchaser, pay to complainant his share-being onehalf of the purchase-money in legal tender notes, with interest. And even if the court should ultimately so decree, it would not go so far as to accept such performance in lieu of partition until after a return of the commissioners of this court, and not then unless by mutual consent of the parties; or, as the last resort, in case equity cannot otherwise be done.
Notwithstanding the contentment of those defendants who received and accepted payment of their respective shares in Confederate currency, or notes from their co-defendant Ferrill, under the authority and direction of their freely-chosen agent, still my mind fails to comprehend the process of reasoning by which it can be inferred, from such receipt and acceptance, that the rights of the complainant in this bill are in anywise affected, unless he was a party to the transaction, or the tribunal which rendered the judgment had judicial cognisance of the cause.
This court, in Williamson v. Richardson, April Term 1867, and the United States District Court for the Northern District of Georgia, in Dean v. Harvey, July 1867; and the same court, in Bailey, Trustee, v. Milner, 7 Am. Law Reg. 371, s. c. 2 Bleckley R. 330 (35th Ga.), ruled, that where parties, inhabitants of this state, had, during the rebellion, sold or otherwise disposed of their property for Confederate notes, and accepted them in payment or exchange for it ;—where such transaction was fully executed, and free from fraud, covin, misrepresentation, and undue influence,—the United States Courts for the state of Georgia would not, unless otherwise instructed by the Supreme Court of the nation, lend their aid to disturb or to set aside those acts, but would suffer them to remain entombed, and leave also the parties to their repose, where they had voluntarily placed themselves : Tolber v. Armstrong, 4 Wash. 296; Planche v. Fletcher, 1 Doug. 551; Bonch v. Lawson, Cas. Temp. Hardwicke, Lond. ed. 85, 89, 184.
The owner of property may dispose of it for what he pleases, or even give it away. But this court cannot recognise Confederate notes, or, as they are more commonly called, “ Confederate Treasury Notes,” as money or other thing of value.
And in Bailey v. Milner, supra, it was said by the court that these notes “were issued by a pretended government, organized in the name of certain states, by subjects and citizens of the United States, and who, at the very time, were in rebellion against their rightful government, and whose object and design was to dismember and destroy it:'” The Prize Cases, 2 Black 635.
Ferrill has made the record of the proceedings of 1863, and also the deed of conveyance, a part of his answer, and having adopted this mode of defence, he is bound by it, for he cannot contradict that which he has pleaded as a record, nor gainsay the conveyance or the recitals therein, and each shows that he had notice of the claim of complainant to a moiety of the property : Bowman v. Taylor, Scott 210; Van Ransselaer v. Kearney, 11 How. 297; Bush v. Ware, 15 Peters 93. And where a party has knowledge of the facts, he has notice of the legal consequence resulting from those facts.
In the argument in behalf of Ferrill, it was said by one of his counsel, that the Superior Court of Chatham county had jurisdiction of the subject-matter, and of all the parties in interest, and its judgment, even if erroneous, cannot be attacked collaterally; citing and commenting on Griffith v. Frazier, 8 Cranch 9; 1 Pick. 439; 2 Burr. 1009; 2 H. Bla. 415; 1 Kelly 487; 23 Ga. 186.
If the tribunal which entertained the proceedings for partition really possessed the powers ascribed to it by counsel, then the authorities quoted are apposite, and its judgment cannot be assailed collaterally. But if it had not such jurisdiction, then the judgment, so far at least as the rights of the complainant are involved (for I am not called on to notice any jurisdictional question which might, under other circumstances, affect those who applied for partition in 1863), is null and void.
And here the inquiry necessarily arises, had the court jurisdiction of the subject matter of the judgment ?
The national legal tribunals take judicial notice of the general enactments of the Congress of the United States, and the duly promulgated proclamations of the President thereof.
The late civil war being matter of public history-a fact impressed upon the whole country-is likewise judicially known to the courts. And from this general historical fact, they will also take judicial notice of particular acts which led to it, or happened during its continuance, whenever it becomes essential to the ends of justice to do so.
On the 19th of April 1861, proclamation of blockade was made by the President. This, of itself, was conclusive evidence that a state of war existed: The Prize Cases, 2 Black 635. Congress, on the 13th of July, in the same year, passed a law authorizing the President to interdict all trade and intercourse between the citizens of the states in rebellion and the rest of the United States. On the 16th of August following, he proclaimed the inhabitants of the revolted states, including Georgia, in insurrection; excepting, however, certain named localities. And on the 2d of April 1863, he reproclaimed them in insurrection; revoking the previous exceptions, but again making others. No part of Georgia fell within any of the exceptions. Congress by a joint