Mo., Kan. & Tex. Ry. Co. v. Dinsmore, 108 U.S. 30 (1883)

The case is in some particulars different from that of the St. Louis, Iron Mountain de Southern Railway Company v. The Southern Express Company, just decided, but in our opinion the differences do not materially affect the present question. p. 31The decree in this case, as in that, requires the railway company to carry for the express company, and fixes the rate of compensation, “ until the further order or decree of this [circuit] court.” In this case, the reference to the master “ to take and state an account between the parties as to the compensation that should be and has been paid during the litigation, and up to the final termination thereof,” was entered before or at the time of the decree from which the appeal was taken. Still, in this, as in that, the reference is in respect to matters affecting the administration of the cause, and does not involve the merits. The reservation of power to change the rates operates only on the future, and was evidently intended for the purpose of enabling the court to act in case a change should be required. As the decree stands, the express company can require the railway company to carry at the rate which has been fixed.

This was an action for the possession of real estate in Illinois, involving title. The plaintiffs claimed under a sale on execution in a judgment recovered by the United States against one Duncan. Duncan’s title was derived from a deed from one Dunbar to one Prout, dated January 6th, 1818, and p. 33recorded October 29th, 1838. The defendants claimed under a deed from Dunbar to one Frank, also dated January 6th, 1818, and entered for record June 18th, 1870.

J/arZm, 66 Ill. 13. II. The certified copy of the deed from Dunbar to Prout was improperly admitted in evidence. No proper foundation was laid for it. The deed was not properly acknowledged, and was not entitled to record. Carpenter v. Dexter, 8 Wall. 513; Semple v. Miles, 2 Scammon, 315; Choteau n . Jones, 11 Illinois, 300, 320; Buckmaster v. Job, 15 Ill. 328. And the clerk’s certificate to the copy, not being authorized by law, was no evidence. III. The copies of the depositions were improperly admitted. No proof was offered showing that the witnesses were dead, nor any reason or excuse given why the witnesses could not be produced, or why their depositions had not been retaken. In the absence of such preliminary proof, it was incompetent to prove what the depositions contained. Cook n . Stout, 47 Illinois, 530, 532; Aulger v. Smith, 34 Illinois, 530; Stout v. Cook, 57 Illinois, 386; Hutchins v. Corgan, 59 Illinois, 70. IV. The testimony as to the taxes was improperly admitted. Tax receipts are subject to contradiction and explanation. Elston v. Kennicott, 52 Ill. 272. V. The evidence as to the deed from Dunbar to Prout did not entitle it to be admitted in evidence. Proof of the handwriting of the subscribing witness should have been accompanied by proof of the identity of the grantor. Phillips on Evidence, 490 to 505; 1 Greenleaf on Evidence, § 575; 1 Wharton on Evidence, § 701; Wiley v. Bean, 1 Gilman, 302; Mariner v. Saunders, 5 Gilman, 113. VI. The deed was not admissible as an ancient deed. Jackson v. Blanshan, 3 Johns. 292; Smith v. Ra/nkin, 20 Ill. 14. No accompanying possession was shown. Clarke n . Courtney, 5 Peters, 319, 344; Fell v. Young, 63 Ill; 106; The certificate of the recorder to the copy of the record did not prove the deed and indorsement, or the fact that they were ancient. Smith v. Rankin (supi); Younge n . Cuilbeau, 3 Wall. 636; see also Whitman v. Heneberry, 73 Ill. 109. VII. The deed having been improperly acknowledged, the certified copy was incompetent to prove a recording. Smith v. Rankin, 20 Ill. 14. Frank’s deed and Prout’s deed bear the same date, and are to be presumed in law, in the absence of rebutting evidence, to have been made and delivered on the same p. 35day. Deininger v. McConnell, 41 Ill. 227, 232; Harden n . Osborne, 60 Ill. 93; Jayne v. Gregg, 42 Ill. 413. The defendant below being in possession, and the Prout deed not having been properly recorded, the burden was on the plaintiffs below to show the priority of the Prout deed. The Frank deed has priority of record. VIII. The Prout deed lacked the indispensable certificate of magistracy. Hence its record was defective, and no constructive notice.

Disregarding the order in which the testimony was p. 36introduced, and arranging it chronologically, the plaintiffs below, to prove title in themselves, offered the following evidence:

The court admitted as evidence tending to prove the death of William B. Morris, the original plaintiff, the duly certified copy of his will and of the probate thereof in the Probate Court of the County of Suffolk, in the State of Massachusetts, p. 38and of the letters testamentary issued thereon, and the court charged the jury, in effect, that this evidence, uncontradicted, was sufficient to show the death of Morris. The admission of this evidence and the charge of the court thereon are assigned for error.

The suggestion of the death of Morris, the sole plaintiff, was made in this case, as the record shows, by counsel for the devisees, both parties being present, and the court made the order, without objection, that the» devisees be made plaintiffs in this case. We think that this suggestion, made without objection, and the order of the court thereon, settles prima facie, for the purposes of this case, the fact of the death of the original plaintiff. The statute provides upon whose suggestion of the death of a sole party plaintiff, the court shall make his heir or devisee, &c., plaintiff in his stead. It certainly cannot be the fair construction of the statute that a party may stand by and see the suggestion of the death of the opposing party entered of record and his heir or devisee substituted in his stead, and p. 39upon final trial require further proof of the death, at least without some notice of his purpose to raise that particular issue. The death of the plaintiff, after the order of the court, may be considered as settled between the parties for that case, unless some motion is made or issue raised on the part of the defendant, by which the fact of the death is controverted. We have been referred to no decision of the Supreme Court of Illinois where a different rule has been announced. In the case of l\fiUiken v. Martin, 66 Ill. 13, cited by counsel for defendant, the court merely decided that where a party plaintiff had died and his heirs were substituted in his place, they must prove that the person under whom they claimed was seized of the title and they were his heirs. But the report of the case clearly shows that the point now under consideration was neither decided nor touched. We think, therefore, that the ruling and charge of the court below did not prejudice the defendant.

“ In witness whereof I have hereunto set my hand and affixed the seal of our said court, at office in the city of Edwardsville, p. 41this 3d day of February, a . d . one thousand eight hundred and seventy-five.

• C., to which the defendant below objected. It was admitted t at the depositions had been correctly copied by an attorney in t e cause from the original depositions on file in the case ; that t e original depositions, with the other files and records of the p. 42court, were burned up in the fire at Chicago of October, 1871; that no order of the court had ever been made authorizing the filing of said copy as a substitute for the original depositions, and that no proceedings under any statute had been had for the purpose of restoring said original, but that after said fire the plaintiffs’ counsel had procured said copy from the counsel of defendant, and, with his consent, had placed it on file in this cause as a copy of the original depositions.

The general rule of evidence is, if a party intended to use a p. 44deed or any other instrument in evidence, he ought to produce the original if he has it in his possession, or if the original is lost or destroyed, secondary evidence, which is the best the nature of the case allows, will in that case be admitted. The party, after proving any of these circumstances, to account for the absence of the originals, may read a counterpart, or if there is no counterpart, an examined copy, or if there should not be an examined copy, he may give parol evidence of its contents.”

As the witnesses to the deed were shown to be dead, the method pointed out by law to establish the execution of the deed was by proof of the handwriting of the witnesses to the deed. Clarke n . Courtney, 5 Pet. 319; Cooke v. Woodrow, 5 p. 45Cranch, 13. And when there was more than one witness, proof of the handwriting of one was sufficient. 1 Greenleaf on Evidence, sec. 575; Adams v. Kerr, 1 B. and P. 360; 3 Preston on Abstracts of Title, pp. 72, 73.

The rule invoked to exclude copies of the depositions is, that in the absence of evidence that the witness who testified in a former trial is dead or incapable of testifying, or that his deposition p. 46cannot be retaken, it is not competent to show what his testimony in -the former trial was; and that when the deposition of a witness which was read upon a former trial is lost, its contents cannot be proved except after proof of the death of the witness whose. testimony it contained. Cook v. Stout, 47 Ill. 530; Aulger v. Smith, 34 Ill. 530.

It was further objected to the admission in evidence of the proof relating to the deed of John J. Dunbar to Prout, that as p. 47the testimony to establish its execution was the proof of the handwriting of subscribing witnesses, it was necessary to prove the identity of the grantor in the deed: that is to say, that the John J. Dunbar by whom the deed purported to be executed was the same John J. Dunbar named in the patent for the lands in controversy.

We are, therefore, of opinion that the deed from John J. p. 48Dunbar to William Prout, which formed a link in the title of the plaintiffs, was sufficiently proven and was properly admitted in evidence by the circuit court. The other muniments of title put in evidence by the plaintiffs were admitted without objection, and established prima facie their title to the lands in controversy. t

By an act approved July 21st, 1837, Purple’s Real Estate Statutes, 496, 497, it was provided that the recording of any deed . . . whether executed within or without the State, p. 49by the recorder of the county in which the lands intended to be effected are situated, shall be deemed and taken to be notice to subsequent purchasers and creditors from the date of such recording, whether said writing shall have been acknowledged or proven in conformity with the laws of the State or not, and that the provisions of the act shall apply as well to writings heretofore as those hereafter admitted to record. This law is still in force. See Hurd’s Revised Statutes, 1880, page 271, sec. 31.

We are of opinion, therefore, that the fact that the deed of p. 51Dunbar to Prout was recorded on June 23d, 1818, was proved by competent evidence, and that it therefore follows that the title of the plaintiffs was better and superior to that of defendants, who claimed under a deed for the same lands not recorded until June 18th, 1870, more than fifty years after its date, and long after innocent purchasers had bought the lands and paid a valuable consideration for them.

en to judgment creditors, is a rule of property obligatory upon the federal p. 52court, it is competent for the latter by rules to prescribe the mode in which redemption from sales under its own decrees may be effected.

The local law, in force when the mortgage was given, provided that upon a sale of lands or tenements under execution, the officer should give to the purchaser a certificate showing the property purchased, the sum paid therefor, or, if the plain, tiff was the purchaser, the amount of his bid and the time when the purchaser (unless the property be redeemed as provided in the statute) would be entitled to a deed. A duplicate of such certificate, signed by the officer, was required to be filed by him p. 53in the office of the county recorder within ten days from the sale. Within twelve months from sale, the defendant, his heirs, executors, administrators, or grantees could redeem by paying the purchaser, or the officer for his benefit, the sum bid by the former, with interest thereon at the rate of ten per cent, per annum from date of sale. Whereupon the sale and certificate became null and void. After the expiration of twelve, and at any time before the expiration of fifteen months from the sale, a judgment creditor (even one who became such after the expiration of twelve months from the sale, could redeem by suing out execution, placing the same in the hands of the proper officer (whose duty was to indorse thereon a levy upon the property to be redeemed), and by paying to such officer, for the use of the purchaser, his executors, administrators, or assigns, the amount for which the premises were sold, with interest at the rate of ten per cent, per annum from the date of sale. The officer, having filed in the county recorder’s office a certificate of the redemption by such judgment creditor, was required to advertise and offer the property for sale under the execution. The judgment creditor, thus redeeming the property, was considered as having bid at the execution sale the amount of the redemption money paid by him with interest from the date of redemption to the day of sale. If no larger bid was offered, the property was to be struck off and sold to such judgment creditor, who became entitled to a deed.

“ Third. Any defendant in the. suit in which such decree is rendered, his heirs, administrators, or assigns, or any person interested through or under the defendant in the premises so sold, may, within twelve months from said sale, redeem the real estate so sold by paying to the purchaser thereof, his heirs, executors, or assigns, or to the clerk of this court for the benefit of such purchaser, his executors, administrators, or assigns, the sum of money for which said premises were sold or bid off, with interest at the rate of ten per cent, per annum from the date of such sale, and in case such redemption is made by payment of the money to the clerk, the person so redeeming shall also pay an additional sum of one per cent, on the amount so paid in as the clerk’s fee for receiving and disbursing said redemption, and the clerk on p. 55receiving said redemption money shall at once deposit the same in the registry of this court, and file a certificate among the papers in the cause in which said decree was entered, stating that said real estate has been redeemed.

“ And the clerk of this court shall thereupon make and file in the office of the recorder of the county where said premises are situate, a certificate of such redemption, and the officer in whose hands said execution shall have been placed, and who shall have made said levy, shall proceed .in the manner required by the twentieth and twenty-first sections of chapter seventy-seven of the Revised Statutes of Illinois, entitled “ Judgments, decrees, and executions.” After the first redemption, made as aforesaid, any other judgment or decree creditor who shall have the right under the laws of this State to redeem said premises from the rst redeeming judgment or decree creditor, may apply to this court for leave to redeem said premises from the creditor first p. 56redeeming the same, and the court will make such order in regard to further redemption as the rights of the parties under the law shall seem to require.

On the 3d day of November, 1880—these rules being in force and no redemption having been made by the mortgagor or by any one claiming under him—a judgment by confession on a warrant of attorney was entered in the court below for $10,150 in favor of Henry S. Monroe against W. H. Cushman, the grantee of the mortgagor. An execution on that judgment, sued out November 9th, 1880, was placed in the hands of the marshal of the United States for the Northern District of Illinois, who indorsed thereon a levy, as of that date, on a portion of the lots purchased by the insurance company. Monroe, on the succeeding day, deposited with the clerk of the federal court the sum of $12,741.95, which covered as well the agg^- p. 57gate amount of principal and interest, as the commissions and fees allowed to the clerk. R. S. § 828. Thereupon, on the next day, the clerk, under his hand and seal of office, issued a certificate of redemption for the lots so levied on.

I. A. An act of Congress providing for any method of disposing of property drawn into adjudication in the national courts is valid, however different that method may be from the methods provided by State law. Brine v. Insurance Company, 96 U. S. 627; Allis v. Insura/nce Compamy, 97 U. S. 144. B. The rules adopted by the Circuit Court in the Northern District of Illinois are authorized by and are in conformity with the laws of the United States (Revised Statutes, sections 917 and 918), and they are in perfect harmony with section 995 Revised Statutes, requiring all moneys paid to officers of the court to be placed in some public depository. They, therefore, have the same force and effect as if they had been embodied in an act of Congress. C. The State law speaks only to the officers of the State. It cannot speak to any others. The national law speaks to the courts and officers of the United States, and as to them its voice is sovereign. D. It is admitted that Congress cannot establish a rule for the transfer of property in a State as a rule of private conduct. But it is submitted with entire confidence that Congress has power, in the establishment and regulation of the judiciary of the United States, to provide for the method and fact of the disposition of any kind of property concerning which the United States courts have (as in this case) a controversy and suit properly depending before them. E. In cases like this the court has, pursuant । to the law of Congress, prescribed methods of practice and administration merely, to effectuate with the greatest possible safety, as between its own suitors, the very substance of the rights that the law of the State gives when cases arise in her courts. It is only a p. 60variation of formal means to the very same end. II. A. At the time the mortgage was given, the law of the State allowed a contract rate of interest up to ten per cent. The contract rate on the debt was nine per cent. The State law allowed six per cent, on judgments and decrees. It provided for sales on foreclosure decrees at public auction to the highest bidder. It provided that redemptions from such sales by the debtor or his execution creditor might be made on paying the sum bid and paid by the purchaser, with ten per cent, interest. Before the decree offoreclosure and sale the State changed its law of interest on such redemptions, and required the payment of only eight per cent, interest. B. There is no conceivable legal or equitable privity of contract between the purchaser at such a sale and the payee or holder of the obligation secured by the mortgage. The purchaser as purchaser is an entire stranger to the contract of debt, and he would hold the land sold evdn if the decree should be reversed, and the whole debt claimed be held fraudulent. It follows, therefore, that a change in the law of the interest payable to the purchaser, cannot impair the obligation of the contract of debt between the original parties. And, as it was enacted before the purchaser acquired any interest, it cannot impair the obligation of any contract of his. See Wood v. Kennedy, 19 Ind. 68 ; Bank n . Dudley, 2 Pet. 492. III. If it be possible to suppose there is any doubt on the foregoing question, the redeeming creditor paid the purchaser his money with eight per cent, interest, in obedience to the express command of the sovereign power of the State, in good faith, meaning to pay all that was due. He then, if in error, acted under a power apparently valid and under a mistake as to its validity, and while the case and the estate were still in court, he tendered the other two per cent. In such a case, it is confidently insisted that the mistake (if there were one), whether it were of law or fact, or both, may be relieved against in the court of equity having judicial domain of the whole subject.

In Brine n . Insurance Company, 96 IT. S. 627, it is decided p. 61reversing the practice which had obtained for many years in the Circuit Court of the United States sitting in equity in Illinois— that the State law giving to a mortgagor of real estate the privilege, within twelve months after a decree of foreclosure, and to his judgment creditors within three months thereafter, of redeeming the premises, is a substantial right, and constitutes a rule of property to which the circuit court must conform.

However this difference may be regarded in the courts of Illinois when administering the statutes by which they are created, and their jurisdiction defined and limited—Littler v. The People, 43 Ill. 188; Stone n . Gardner, 20 lb. 304; Turley v. Davis, 69 lb. 133—we entertain no doubt of the power of the federal court to adopt its own modes or methods p. 62for the enforcement of the right of redemption given by the local law. The substantial right given, first, to mortgagors, their representatives and grantees, and then to the judgment creditors of such mortgagors or their grantees, was to redeem the property sold within the time specified. Whether the redemption is by the one or the other class, the money is for the benefit of the purchaser at the decretal sale. When the amount going to him is secured by payment into the hands of some responsible officer, the object of the law, both as respects the purchaser at the decretal sale and the party redeeming, is fully attained. Redemption is effected when, by payment of the redemption money into proper hands, the purchase at the decretal sale is annulled, and the way opened for another sale. The federal court, as indicated by its rules, preferred that the money, if not paid directly to the purchaser, should, by payment through its clerk, come directly under its control for the benefit of the purchaser. Where the sale of mortgaged premises is under a decree of the federal court, and the execution of the judgment creditor seeking to redeem is from a State court, there is an evident propriety in requiring the money going to the purchaser at the decretal sale to be paid through the clerk of the federal court into its registry. The necessity for such a regulation is not so urgent where the judgment creditor’s execution is from the federal court; but we perceive no objection to extending the regulation to. that class of cases. Under the operation of the rules in question the records of the federal court will, in all cases, show whether the right of a purchaser to a deed has been defeated by redemption. Can it be said that the mode prescribed by the federal court for securing the money going to the purchaser impairs his substantial rights ? Is he less secure than he would be if the money is paid to the officer having the execution ? Clearly not. The substantial right given by the statute to the purchaser is that the redemption money be secured to him before the benefit of his purchase is taken away, and the substantial right given to the party redeeming is that the redemption become complete and effectual upon payment by him of the required amount. The particular mode in which the money is paid or

The next question to be examined is whether there could be an effectual redemption except by payment of the amount bid, with interest at ten per cent., the rate prescribed by statute at the date of the mortgage. Redemption was made upon the p. 64basis of the amendatory act of 1879, reducing the rate of interest, in such cases, to eight per cent. The contention of the company’s counsel is that that act cannot be applied without impairing the obligation of its contract. What was that contract ? In what did its obligation consist ? By the contract between the mortgagor and mortgagee, the former became bound to pay, within a certain time, the mortgage debt, with the stipulated interest of nine per cent, up to final decree, if one was obtained, and with six per cent, thereafter as prescribed by statute when the mortgage was given. R. S. Ill. 1874, p. 614. Certainly the obligation of that contract was not impaired by the act of 1879, for it did not diminish the duty of the mortgagor to pay what he agreed to pay, or shorten the period of payment, or interfere with or take away any remedy which the mortgagee had, by existing law, for the enforcement of its contract.

The statute in force when the mortgage was executed, prescribing the rate of interest which the amount paid or bid by the purchaser should bear, as between him and the party seeking to redeem, had no relation to the obligation of the contract between the mortgagor and the mortgagee. The mortgagor might, perhaps, have claimed that his statutory right to redeem could not be burdened by an increased rate of interest beyond that prescribed by statute at the time he executed the mortgage. But, as to the mortgagee, the obligation of the contract was fully met when it received what the mortgage and statute in force when the mortgage was executed, entitled it to demand. The rights of the purchaser at the decretal sale, if one was had, were not of the essence of the mortgage contract, but depended wholly upon the law in force when the sale occurred. The company ceased to be a mortgagee when its debt was merged in the decree, or at least when the sale occurred. Thenceforward its interest in the property was as purchaser, not as mortgagee. And to require it, as purchaser, to conform to the terms for the redemption of the property as prescribed by the statute at the time of purchase, does not, in any legal sense, impair the obligation of its contract as mortgagee. It assumed the position of a purchaser, subject p. 65necessarily to the law then in force defining the rights of purchasers.

vol . cvin—i p. 66shows that the company, as mortgagor, has received all that it was entitled to demand. The reduction of the rate of interest by the act of 1879 was by way of relief to the mortgagor and his judgment creditors, and, in no sense, an injury to the mortgagee. When that act waB passed there was no person to answer the description or to claim the rights of a purchaser; consequently, no existing rights were thereby impaired. That the reduction of interest to be paid to the purchaser would lessen the probable number of bidders at the decretal sale, and thereby diminish the chances of the property bringing the mortgage debt, are plainly contingencies that might never have arisen. They could not occur unless there was a decretal sale, nor unless the mortgagee became the purchaser; and are too remote to justify the conclusion, as matter of law, that such legislation affected the value of the mortgage contract.

“The defendant, the evidence shows, married the bankrupt Medsker some thirteen years ago. During the last ten years her husband came into possession of moneys belonging to her, proceeds mostly of lands, inherited from her father, amounting in the aggregate to $5,600. She expressly testifies that he agreed o return it to her, and she always claimed that he was her debtor to that amount. Under the evidence, I think there is no doubt she was a creditor at the time of the conveyance. I think the evidence shows that he was insolvent also at that time, t ough not that she knew it. I think the conveyance was made p. 68and accepted to prefer her to other creditors. Under the evidence as to the value of the land, which is conflicting, I cannot find that his indebtedness to her was not a reasonable consideration for the conveyance of the land, or that there is such great disparity between the land and the debt it was conveyed to satisfy as to indicate bad faith and a purpose to defraud other creditors.”

This is a bill in chancery, brought by Bonebrake, as assignee p. 69in bankruptcy of John R. Medsker, against said Medsker and his wife.

“ On that day, to wit, August 2d, 1876, within four months of the time of filing said petition in bankruptcy, the said John R. Medsker, being the owner, in his own right, of the real estate above described, and being indebted as aforesaid, with the fraudulent intention of defeating the operation and effect of the bankrupt law, and with the fraudulent intention of preventing his property from being distributed and applied in payment of his debts as provided for in the bankrupt law, and with the intention of preferring, in violation of the provisions of the bankrupt law, a pretended claim of the defendant Elizabeth Medsker, which claim your orator says was unjust and incorrect, and not a valid and legal claim against said John R. Medsker, the said John R. Medsker, together with his wife, the defendant Elizabeth Medsker, did execute, without any consideration whatever, to one C. J. McCole, who was a party to such fraudulent purpose, a deed of conveyance of said real estate, and the said grantee, C. J. McCole, in pursuance of the previous understanding and agreement, and for the purpose of carrying out the fraudulent intent before expressed, did convey said real estate to p. 70the defendant Elizabeth Medsker, wholly without any consideration, on the 4th day of August, 1876.

In the one case it is voluntary and in the other compulsory. p. 71It is not a voluntary bankruptcy if the man is forced into it against his will by his partner, any more than by any one else; and it is compulsory and involuntary if he refuses to join in such case and is forced into it, as much as in any other enforced bankruptcy.

4. The master, who was present and heard Mrs. Medsker testify, and couid see her manner, and is therefore better able to determine the weight due to her testimony, says he has no p. 73doubt she was a creditor, and was in ignorance of Medsker’s insolvency. Dean v. Pearson, 102 Mass. 101.