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resolution, on the 8th of February 1865, declared that “the inhabitants and local authorities” of Georgia and ten other states “rebelled against the government of the United States, and were in such condition on the 8th of November 1864:" 12 Stat. 1262; 257; 13 Id. 731 ; 567.
In Bailey, Trustee, v. Milner, supra, the court said: “During the latter part of the year 1860 and the early part of 1861, South Carolina, Georgia, Louisiana, Virginia, and other states, by simi-. lar modes, called on the people to send delegates to meet in convention. Accordingly the conventions assembled, and each passed an ordinance of secession, as it is generally termed, by which ceremony these conventions severally adventured to withdraw the states from the Federal Union, and to release the people from their subjection to the laws of the land, and their allegiance to the nation. The constitutional state governments were thrown and superseded by spurious and revolutionary governments. The setting up of a pretended central or general government, styled “ The Confederate States of America,' followed, and soon thereafter, open rebellion and war of portentous magnitude burst upon the nation. The Prize Cases.
“ In the seceded states (so-called), the sovereign authority being, for the time, displaced, consequently there ceased to be, within any of them, a government under the Constitution of the United States.” Vide 1 Bishop's Crim. Law, 3d ed., $ 129; and Mauran v. Insurance Co., 6 Wall. 1.
In 1863 and 1864, the complainant was in the discharge of his duties as a surgeon in the national army; and whether he had knowledge of the pendency of the alleged proceedings for partition, is a matter quite immaterial. He, however, in his bill avers that he knew nothing of them; but admits that he has some indefinite information that the property was sold and was purchased by John C. Ferrill, and was paid for in Confederate notes. But, suppose notice-actual or constructive-came to him; still, he could not be charged with laches, for, had he responded, it would have been ipso facto a breach of his allegiance to the United States: Hanger v. Abbott, 6 Wall. 532. And in that case Mr. Justice CLIFFORD, in giving the opinion of the court, said: “War, when duly declared or recognised as such by the war-making power, imports a prohibition to the subjects or citizens, of all commercial intercourse and correspondence with citizens or persons domiciled in the enemy country.'
In a subsequent part of the same opinion, that eminent judge,while remarking on the temporary cessation of common-law and statutory limitations during war,-used the following language: " But the exception set up in this case stands upon much more solid reasons, as the right to sue was suspended by the acts of the government, for which all the citizens are responsible. Unless the rule be so, then the citizens of a state may pay their debts by entering into an insurrection or rebellion against the Government of the Union, if they are able to close the courts, and to successfully resist the laws, until the bar of the Statute of Limitations becomes complete, which cannot for a moment be admitted.”
The last quotation forcibly illustrates the maxim, that no one ought to be allowed to take advantage of his own wrong; a maxim applicable to the case now before this court; not so much, however, in a positive, as in a circumstantial sense; yet falling within the principle, that no one shall entitle himself to enforce a defence by reason of acts adopted or acquiesced in by him, after full knowledge of their nature and legal ulterior consequences.
If Mr. Ferrill were a bona fide purchaser, who purchased and paid his money for the property, confiding in the judgment of a tribunal of competent jurisdiction, then this court would decline to take cognisance of this suit,—notwithstanding irregularities in the original proceedings,—if the tribunal which assumed to entertain them had jurisdiction of the subject-matter and of the rights of the complainant in this bill.
Indeed, the most that can be said against complainant's title is that it is not free from doubt, but all the doubt there is concerning it is raised by the sale under a pretended judgment of partition, and the validity of that sale depends upon the validity of the judgment.
It is a principle governing all courts of judicature that a judgment of a tribunal which has no jurisdiction of the parties and subject matter, is absolutely void, and must be so treated when the record is offered in evidence or used for any other purpose: Buchanan v. Rucher, 9 East 192; Borden v. Fitch, 15 Johns. 121; Newdigate v. Davy, 1 Ld. Raym. 742. In that case, Sir
Richard Newdigate gave a donative to Davy, and afterwards removed him and put in S. Davy, in the time of James II., cited Newdigate before the high commissioners, who restored Davy and made Newdigate pay to him all the arrears he had received. After the Revolution of 1688, Newdigate brought indebitatus assumpsit against Davy for money as paid to his use. The court gave judgment for the plaintiff, because it was money paid in pursuance of a void authority.
My conclusion is, that the proceedings for partition, by the pretended Superior Court of Chatham county, in 1863 and 1864, so far as the rights of the complainant are concerned, were utterly void.
The main question being adjudged adversely to John C. Ferrill, still it seems to be necessary to notice another matter which was pressed with great earnestness. It was said on the part of Ferrill that adverse possession is a bar to a proceeding for partition both in equity and at law. “If,” said the counsel, “the bill states an adverse possession, it should be dismissed without prejudice.” Citing 2 Barb. Ch. 398; 3 Id. 608; 4 Id. 493; 5 Id. 51; 9 Id. 516; Hoff. 560; 1 Johns. Ch. 111; 9 Cow. 516, 573, and Richd. Eq. 84. These authorities uphold the doctrine contended for.
In addition to those authorities counsel also relied on the case of The Bishop of Ely v. Kenrick, Bunb. R. 322. There the bill for partition was dismissed, because the title was denied. Without questioning the law of that decision, it must be deemed somewhat novel; for by it, every defendant in a suit for partition who chooses to deny title, holds the complainant at his mercy.
Courts, as eminent for their decisions as those referred to in argument, have of late progressed beyond this ancient technical rule of chancery practice. In Howy et al. v. Goings, 13 I. R. 95, Mr. Justice TRUMBULL, in delivering the opinion of the Supreme Court of the state of Illinois, said: “There can be no doubt, however, that a bill in chancery lies for partition, notwithstanding an adverse possession, unless it has been continued sufficiently long to bar a recovery under the Statute of Limitations, which is not pretended in this case.” Citing Overton v. Woodfolk, 6 Dana 374.
I carefully looked into the bill in the present case, and have
found no allegation of adverse possession, nor is it set up in the answer, or proved by the evidence.
It is said that in a bill for partition, the averment of possession is not sufficient, there must be an averment of title: 2 Atk. 882; Amb. 236. And the reason of this rule is plain, for it is upon the title that courts of equity act; and to render the title of each complete, they compel the parties, when the several portions are allotted, to execute conveyances according to the partition, and the execution of these conveyances draws to them the possession.
If there is no relaxation of the rule which obtained in the English Chancery and in the Chancery Courts of several of the older states of the Union, then, where a bill is filed for partition, and an adverse possession is interposed, or where the legal title is disputed, or suspicious circumstances darken it, it is usual for the court to make a decretal order arresting the proceedings, until the parties disputant settle the title in a court of law: 1 V. & B. 552; 3 Johns. Ch. 303; 4 Id. 276. But in some of the states, owing in part at least to the peculiar manner in which the tribunals of justice are there constituted, by the blending of the offices of chancellor and common-law judge in the same person, the rigid chancery doctrine has been greatly modified.
In Georgia, for example, these offices—distinguishable, in some degree, in a judicial sense—are exercised by the same person. And such, indeed, is likewise the case in this court. See Act of September 24th 1789, § 11, 1 Stats. 78.
The Supreme Court of the United States, in Parker v. Kane, 22 How. 1, speaking of chancery practice in suits for partition, said: “In Great Britain a chancellor might have considered this a case in which to take the opinion of a court of law, or to stay proceedings in the partition and cross-suits until an action at law had been tried to determine the legal title: Rochester v. Lee, 1 McN. & G. 467; Clapp v. Bronaghan, 9 Cow. 530. But such a proceeding could not be expected in a state where the powers of courts of law and equity are exercised by the same persons.” But, in my opinion, this case has not thus far presented any question of fact upon which an issue could be framed for the determination of a jury; the evidence in the cause is unassailed, uncontradicted, and in no way conflicting. John C. Ferrill, the contesting defendant, stands upon the record of the proceedings of 1863 and 1864, and if it be tried it must be done by inspection, and this is the province of the court.
Partition and account decreed accordingly.
Supreme Court of Pennsylvania.
PITTSBURGH, FORT WAYNE, AND CHICAGO RAILROAD CO. r.
SIIAEFFER ET AL.
Mere forbearance by a creditor to the principal debtor, however prejudicial it may be to the surety, will not have the effect of discharging him from his liability.
The case of the sureties of a railroad officer, charged with the receipt and disbursement of money, is within the rule; and the company is not bound to dismiss the officer as soon as any default becomes known, and to give notice to the sureties that they may take measures to secure themselves by proceedings against the principal.
Where an officer of a corporation violates his duty, knowledge on the part of other officers of the corporation of the default, or even connivance in it, does not discharge the sureties.
ERROR to the District Court of Allegheny county.
W. H. g. Jas. Lowrie, for plaintiffs in error.
Acheson f. Koethen, for defendants.
The opinion of the court was delivered by
SHARSWOOD, J.—The rule is well settled that mere forbearance by the creditor to the principal debtor, however prejudicial it may be to the surety, will not have the effect of discharging him from his liability: United States v. Simpson, 3 Penna. Rep. 437. That this is the general principle was admitted by the learned judge in the court below, but he thought that the sureties of a railroad officer, charged with the receipt and disbursement of various sums of money, formed an exception, and that in such a case it was the duty of the company to dismiss the officer as soon as any default became known, and to give notice to his sureties in order that they might take measures to secure themselves by proceedings against the principal.
But no authorities are to be found in the books sustaining any