Russell v. Ely, 67 U.S. (2 Black) 575
Case details
Bluebook Citation
Russell v. Ely, 67 U.S. (2 Black) 575
Full caption
Russell vs. Ely et al.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Miller (Justice)
Russell vs. Ely et al.
1. In Wisconsin the fee of mortgaged premises, rests in the mort gagee or assignee only after foreclosure and sale : not upon the mere default of the mortgagor.
2. A deed in fee, executed by the mortgagor, subsequent to the mortgage-deed, but prior to the foreclosure, passes the legal title.
3. But if the mortgagee is in lawful possession of the mortgaged premises, after condition broken, he will not be turned out until the debt is paid.
Possession obtained by the mortgagee through an arrangement with the tenant of the mortgagor whose lease has expired, without the consent of the mortgagor, is not lawful possession.
It is not necessarily error for a Court tc instruct the Jury, p. 576that if the testimony of a certain witness is believed it will establish a specified fact, leaving to the Jury to believe or disbelieve the witness.
6. The propriety of such instruction depends upon the fullness, certainty and clearness of the testimony of the witness upon the point in issue.
7. A bill of exceptions which alleges that the instructions of the Court laid too large a stress upon the testimony of a particular witness, should embody the testimony, at length, or so refer to it as to make it part of the record : otherwise a Court of error must presume that it justified the instruction.
Error to the District Court of the United States for the District of Wisconsin.
The facts are fully stated in the opinion of the Court. It was argued by
Jfr. Doolittle, of Wisconsin, for Plaintiff in Error.
Mr. Lynde, of Wisconsin, contra.
Mr. Justice MILLER. This was an action of ejectment in the District Court of the United States for the District of Wisconsin in which the defendants in error obtained a judgment against the plaintiff in error, for the possession of block 70, of the School Section of the City of Racine.
The legal title to this block was in David L. Barton, on the 24th April, 1851, and on that day he made a mortgage deed conveying said block to Floyd P. Baker, to secure the payment of a note for $1,400, due one year after date, and on the next day, the 24th of the same month, he conveyed it in fee to Clifford A. Baker.
The plaintiffs on the trial exhibited a regular chain of title from Clifford A. Baker to themselves, and the defendant proved himself to be the owner and holder of the note and mortgage above recited, and being in possession of the block sued for, claimed the right to hold it until the debt was paid. It appears further by the bill of exceptions, that plaintiffs traced their title through one Charles R. Dean, and testimony was given tending
to show that Charles R. Dean was a fictitious person, who never had any real existence. The only other fact shown by the bill of exceptions, necessary to an understanding of the case, is the statement of Thomas S. Baker, that from the summer of 1853, unti] the spring of 1856, he held possession of the property under a lease from plaintiffs, and then surrendered it to the defendant, without the knowledge or consent of plaintiffs.
The defendant on the trial excepted to the three propositions following, contained in the charge of the Court to the jury :
1. “If the defendant procured the possession and occupies it in pursuance of an arrangement, in the spring of 1856, with T. S. Baker, without the consent of the mortgagor, or of these plaintiffs, then he is not lawfully in possession.”
2. “If the testimony of Clifford A. Baker is believed, the deed” (to Charles R. Dean) “passed the title from him.”
3. “The legal title, in the opinion of the Court, on the face of the deeds, is in the plaintiffs.”
In examining the questions arising on these exceptions, it will be convenient to take up first, the one last mentioned. It is the province of the Court in trials by jury to construe instruments of writing and determine their legal effect, and if it was apparent that on the face of the deeds,—the legal title was in plaintiffs, it was not only the right of the Court, but its duty to so instruct the jury. Is it true, then, that the deeds read in evidence showed the title in plaintiffs ?
The plaintiff in error maintains, that by the mortgage deed of D. L. Barton, of July 23d, 1851, the legal title passed to Eloyd P. Baker, and that by the deed made July 24th, to Clifford A. Baker, nothing passed but the equity of redemption; and if he is correct in this the instruction was error.
Numerous authorities from English and American decisions are cited by counsel on both sides in reference to this point, but in the view which we take of the matter they become of little value, except those of the Wisconsin Court. These deeds were both made in Wisconsin, in reference to land lying in that State, and in their construction, must be governed by its laws. The Revised Statutes of Wisconsin, chap. 141, sec. 28, enact, vol. ii. 37 p. 578that “no action of ejectment shall hereafter be brought by a mortgagee, or his assigns, or representatives, for the recovery of the possession of the mortgage premises, until the equity of redemption shall have expired.” Chap. 154, sec. 11, provides, that “ in every case the mortgagor may retain full possession in trust for the mortgagee or purchaser of all premises mortgaged by him, until the title shall absolutely vest in the purchaser of such mortgaged premises, according to the provisions of this chapter.”
The Supreme Court of Wisconsin, in the case of Wood and Moon vs. Trash, (7 Wis. R., 512), speaking of these provisions, and perhaps others in pari materia, says: “ Our statute has essentially changed the rule of the common law, in relation to the position of the fee of the mortgaged premises, after condition broken. The fee does not vest upon default of the mortgagor, in the mortgagee, or his assignee. The fee only vests upon sale and foreclosure.” In Tallman vs. Ely, (6 Wis. R., 257), the same Court says: " Our statute provides that the mortgagee shall not bring his action of ejectment before foreclosing the equity of redemption; sec. 53, chap. 106, or in other words he must complete his title, before he shall be permitted to recover at law upon the strength of it.”
These expositions of the statutes of Wisconsin are to be followed by the Federal Courts as rules of construction, and from them it results that the legal title did not pass to Floyd P. Baker by the mortgage deed of July 23d, but did pass to Clifford A. Baker by the deed in fee made the day after.
The instruction was therefore correct.
The next error alleged is based upon that part of the Court s charge embraced in the following sentence: “ If the defendant procured the possession, and occupies it in pursuance of an arrangement in the spring of 1856, with T. S. Baker, without the consent of the mortgagor or of these plaintiffs, then he is not lawfully in possession.” The truth of this proposition would seem to be a necessary corollary from the one just discusse. Indeed it would seem to be a clearer deduction from the statu ,es cited, than that made by the Supreme Court of Wisconsin, in p. 579reference to the position of the fee; for if the mortgagee has no right to recover the possession by legal proceedings, it would seem that he should not be permitted in any other manner to obtain that possession against the consent of the mortgagee, or the person holding under him. We are, however, referred by counsel for plaintiff in error to the cases of Grillett vs. Eaton, (6 Wis. R., 30), and Tallman vs. Ely, (Wis., 257), as establishing a contrary doctrine. A careful examination of these cases does not sustain the proposition in favor of which they are cited, to an extent which will conflict with the instruction of the Court under consideration.
It is true, that in both of these cases, it is held that the mort gagee lawfully in possession cannot be turned out by ejectment brought by the mortgagor. In both the cases, the decision turned upon the fact that the mortgagees were lawfully in possession, and in both it is evident that the defendants originally entered with the consent of the mortgagor, either express or implied.
The language used in the second of the cases cited, namely, Tallman vs. Ely, a part of which has already been quoted in regard to the position of the fee, shows very clearly the distinction which was in the mind of the Court as to the lawfulness of the mortgagee’s possession. The Court says: “ Our statute provides that the mortgagee shall not bring his action of ejectment before foreclosing the equity of redemption, sec. 53, chap. 106, or in other words, he must complete his title before he shall be permitted to recover at law upon the strength of it. Still, if he w lawfully in possession after condition broken, he will not be turned out until his debt is paid.”
This leaves still undecided the question as to what is lawful possession, and we concur with the District Court, that if the defendant in this case, although he may have been the holder of the mortgage and the debt secured by it, obtained the posses-ion of the block in controversy, by an arrangement with the tenant of the plaintiffs, after said lease had expired, and without their consent, he was not lawfully in possession.
The remaining exception is to the charge of the Court, u that
Russell vs. Ely et-al.
if the testimony of Clifford A. Baker is believed, the deed ” (to Charles R. Dean) “ passed the title from him ” (Baker). In that part of the charge which immediately precedes the words objected to, the Court says: “ The deed of Clifford A. Baker to Charles R. Dean is alleged to be fraudulently executed by Floyd P. Baker in the name of Clifford A. Baker. That he used Clifford’s name without authority, and that Charles R. Dean was a fictitious person. The evidence of Botsford shows these facts prima facie'' It is manifest that if Charles R. Dean was a fictitious person, plaintiffs had no title, for they claimed under a deed from him. It is equally clear, that if the testimony of Botsford showed that fact p^ima facie, the testimony of any witness who proved the existence of Dean as a real person was very important, and required careful scrutiny; and the comments of the Judge on any such witness, or his evidence, should have been given with great caution, and should have left to the jury all that properly belonged to it. But we are unable to see from anything in this record that the Court exceeded its functions in the charge. It was certainly proper that it should call attention to Bakers testimony, as it had done to that of Botsford. Baker may have testified to facts, which if true, or if believed by the jury, made it so clear that the title passed from him to Dean, as to justily the Court in saying so. And if he did so testify, we cannot say that the conclusion thus stated by the Court, leaving as it did the right to believe or disbelieve the witness to the jury, was error.
It is true that this Court does not see anything in that part of Baker’s testimony embodied in the bill of exceptions which justifies such an inference. But the bill of exceptions does not purport to give all that he said, and according to a well-known rule, this Court, under such a condition of the record, is bound to presume that there was that in Baker’s testimony which justi fied the instruction. What purports to be the entire deposition of Baker is sent up by the Clerk of the District Court, and is printed in the record before us, and if properly before us might sustain the exception. But this deposition is not incorporate into the bill of exceptions, nor so referred to in it as to be ma e p. 581a part of the record of the case. It is only a useless encumbrance of the transcript, and an expense to the litigating parties. Clerks who certify transcripts to this Court should know what does properly constitute the record they are to send up, as it is a matter which has been often decided, and which may be readily learned with a little attention.
The judgment of the District Court is therefore affirmed.
The Ship Potomac —Simpson, Claimant; Baker, Libellant.
2
The claimant of a vessel libelled for repairs, cannot be permitted in this Court to contest the amount of libellant’s claim, except in so far as specific objections appear by the record to have been taken to it in the Court below.
3
Where a master found the amount due, but stated no account, and his report was excepted to as being excessive, not sufficiently proved, erroneous under the pleadings, and founded on illegal evidence, such general objections may justly be treated as frivolous, and if overruled and the case brought here on appeal, this Court cannot say that particular charges were wrongly admitted, or particular credits wrongly thrown out.
4
Where the libellant proved his demand by shop books, the Circuit Court might well consider the evidence in his favor stronger than the contrary opinion of experts taken exparte after the work was done.
5
The decree of the Court below .is presumed to be right, and a record showing that it may possibly be erroneous, or raising a doubt upon conflicting evidence is not enough to reverse it.
6
If the contract was made and the work done by the libellant, his right to recover, in his own name, cannot be defeated by showing that he had a partner interested in the contract. Appeal from the Circuit Court of the United States for the •southern District of New York. On the 23d of November, 1855, the libel in this cause was the possession of the plaintiff, but deny that he held the same as absolute owner in fee simple, and with the legal title thereto; and then set up title in themselves under the will of Andrew Ferris. This is the substance of the issue made between the parties It is very much amplified by the form of the pleadings adopted, which set out the evidence of the facts, instead of the facts themselves. The Court, however, look to the substance of the issue, and by that it appears that each party claimed title derived from the will of Andrew Ferris—the plaintiff claiming by devise through his wife, the only child of the testator; the defendants as his brothers and sisters, or their heirs. The title, whether in the one or the other, turned upon a construction of the will of Andrew Ferris, the common source of title. The Court, after consideration, held that the plaintiff took the legal title in the premises, and that the defendants had no title or interest in the same, and gave judgment accordingly; whereupon the defendants appealed to the District Court, which, on account of the case involving difficult and important questions of law, sent it to the Supreme Court for determination. That Court, after holding that no estate passed to the plaintiff under the will of Andrew Ferris and the devise of his wife, and that it passed to the defendants, the brothers and sisters, reversed the decision of the Court of Common Pleas and decreed a dismissal of the bill or complaint and remanded the cause to the District Court to have this decree carried into effect. It will be seen from the above statement of the issue that the precise question in the former suit between these parties, or those under whom they claim, was involved and decided that is presented in the present one; and, further, that the decision of the Court could not have been rendered in favor of the defendants in that suit without determining it. In the former suit the question turned upon the construction of the will of Andrew Ferris, which is the question again sought to be raised in the present one and clearly upon well settled principles this adjudi *ion by a Court of concurrent jurisdiction must be regarded as VOL. II. <0
The Ship Potowac.
filed in the District Court of the United States for the Southern District of New Vork, by Baker, a ship-wright and carpenter in rem. against the ship Potomac, to recover a bill of repairs The Potomac was a ship of more than five hundred tons, and. was engaged in tbe general freighting business. She had just returned from a foreign voyage and was about to sail for Australia. The libel stated that the repairs were necessary and that without them she could not proceed to sea and earn freight and passage-money ; that they were furnished on tbe credit of the vessel, and master and owners (the master was an owner); that the libellant had a lien upon her for them, and that the case was within the jurisdiction of the Admiralty.
The answer admitted the repairing the vessel, but not to the amount claimed, and did not deny the jurisdiction, the necessity for the repairs or the lien.
The District Court made a decree that the libellant recover the amount of his repairs, and referred it to a Commissioner to ascertain the amount. The Commissioner reported $3,996.18, including the interest. The claimant excepted to the report.
The Court overruled the exceptions, and made a final decree that the libellant recover the amount reported by the Commissioner.
The claimant appealed to the Circuit Court from the whole of the final decree.
The libellants moved the Circuit Court to dismiss the appeal on the ground that it had not been perfected. The motion was denied, on condition that the claimants deposit the amount of the decree in Court, which was done, and by order of the Court it was paid over to the libellants, on their giving a bond to obey the order of Court in the cause.
Much conflicting evidence was given upon the trial, u e libellant proving his demand for work and materials from die books and accounts kept by his clerks in the ordinary course o business, while the claimant brought persons, said to be ski e in the business of building and repairing ships, to show that t e amount expended upon the vessel, fell far short of that claime p. 583by the libellant. The Circuit Court affirmed the decree of the District Court and the claimant took this appeal.
Mr. Gdllet, of Washington City, for Appellant.
Mr. Benedict, of New York, contra.
Mr. Justice GRIER. When the counsel prepared their briefs of argument in this case, they could not have seen the report of the case of “ the Steamer St. Lawrence,” (1 Black, 525), or they would have considered it labor lost to argue the same question of jurisdiction on the very same facts again at this term. The opinion of the Court in that case was unanimous; the question was fully discussed and the opinion delivered by the Chief Justice, and needs no further remark.
The appellant, in his answer, admits that the repairs were made to his ship by the libellant, but takes issue on the amount and alleges an agreement that the repairs to be made should not exceed a certain sum, less by one-half than the bill finally presented.
But it appeared clearly from the evidence, that although the libellant made an estimate of what would be the probable cost of the repairs, he did not contract to do the work for any given sum. The contract was to supply the timber and materials at market prices, and to receive certain wages per diem for each person employed. When the vessel was stripped, it was found necessary to make repairs on a much larger scale than had been at first estimated. The amount of libellant’s bill of course far exceeded his original estimate. The report of the Master found the amount due, but stated no account. The exceptions to it were—1st “That it was for an amount far exceeding any amount of work performed.” 2d. “That the libellant had not proved any work performed for which he was entitled to a decree.” 3d. “ That the libellant was not, under the pleadings, entitled to any decree whatever in his favor.” 4th. “That Commissioner erred in admitting evidence,” &c.
If the respondent wished to contest any of the specific charges of the account, he should have had the report referred back to the Master, with direction to state an account. The account returned by the Master should report the items objected to and whether they were allowed, and the testimony or reasons justifying his decision. To such a report the party could make specific exceptions, and such general objections as those stated might well be treated as frivolous.
As the record stands this Court cannot know what items of the libellant’s account were allowed or disallowed, or excepted to; we cannot say that other credits should have been allowed, because we do not know whether they were allowed or not.
For anything that appears on the face of this record the judgment of the District and Circuit Courts are correct. The libellant proved his demand for work and materials furnished by the books and accounts kept by his clerks; and the Court may well have considered this better evidence than the opinions of experts, taken ex parte to undervalue the work and count the treenails, after the sheeting was replaced and the repairs covered with paint. It is not enough for the appellant merely to raise a doubt on conflicting testimony, that the judgment of the Court below may possibly be erroneous. But in this case he has not suceeded even in raising a doubt.
The judgment of the Court below is assumed to be correct till the contrary is made to appear. It is not sufficient to produce i record from which it does not appear whether it is right or wrong.
The objection that the libellant should have joined some unknown partner as a party to this libel has no foundation whatever.
The contract is proved to have been made and the work executed by the libellant. There is no evidence that he had a partner in any way interested in the profits of the contract; and if he had, it was not necessary to make him a party, as appeared by the case of Law vs. Cross, decided at last term. (See 1 Black, 533.)
Let the judgment of the Circuit Court be affirmed.