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Vol. I.]

UNDERWOOD v. McVEIGH.

(No. 6.

without number. These principles, which form the very foundation of the common law, have been announced by the ablest and most distinguished jurists as maxims of natural justice and universal application : by Lord Brougham, when he said, in Earl of Bandon v. Becker, 3 Clarke & Fin. R. 479, 510, “ You may at all times, in a court of competent jurisdiction, competent as to the subject matter of the suit itself — where you appear as an actor — object to a decree made in another court, upon which decree your adversary relies; and you may, either as actor or defender, object to the validity of that decree, — provided it was pronounced through fraud, contrivance, or covin of any description, or not in a real suit; or if in a real and substantial suit, between parties who were really not in contest with each other ;” by Parke B., in Chapel v. Child, 2 Cr. & Jer. R. 558, when he declares that, “no judicial proceeding could deprive a man of any part of his property without giving him an opportunity of being heard ;” by Judge Bronson, in Bloom v. Burdick, 1 Hill N. Y. R. 130-140, when he said " It is a cardinal principle in the administration of justice, that no man can be condemned or divested of his right until he has had the opportunity of being heard ; and if judgment is rendered against him before that is done, the proceeding will be as utterly void as though the court had undertaken to act where the subject matter was not within its cognizance;” by Mr. Justice Story, when he declared in his admirable work, Conflict of Laws, that “ the common justice of all nations requires that no condemnation should be pronounced before the party had an opportunity to be heard ;” by Chief Justice Marshall, when, in The Mary, 9 Cranch U. S. R. 126–114, he announced the same principle, as "a maxim of natural justice and universal application ;” and by Mr. Justice Swayne, when he said, in the very case we are now considering, that to deny the respondent a hearing would be “ a blot upon our jurisprudence and civilization, and would be contrary to the first principles of the social compact and of the right administration of justice.”

And yet this plaintiff in error, holding a high judicial station under the government of the United States, in violation of these great principles, known everywhere as maxims of natural justice, not only denied the respondent a hearing in his court, but, on the very day on which he committed that judicial act, which the supreme court of the United States characterized in the strong language of Mr. Justice Swayne, as “a blot upon our jurisprudence and civilization,” he entered the order of condemnation and sale upon twenty days' notice, and himself became the purchaser at a price so grossly inadequate as to shock the moral sense of every honest man. And now when the owner, who has been thus deprived of his estate under the forms of law by a judicial fraud, comes into a court of justice to assert his rights, in an action of ejectment against the man, who, acting as judge, denied him a hearing in his court, and entered a decree of condemnation and sale of his property, he is met by that very decree of condemnation and sale, entered by his adversary, in violation of every principle of law and natural justice ; and the court is gravely asked to instruct the jury, that the decree of condemnation and sale, thus obtained, “ has divested the plaintiff in ejectment of his legal title to the property in controversy, and that they must find for the defendant.”

[No. 6.

Vol. I.)

UNDERWOOD v. McVeigh.

In other words, the court was asked to instruct the jury, that although the very record upon which the defendant, Underwood, relied as a muniment of his title conclusively showed, as it did show, that McVeigh had been denied a hearing in his court, by ordering that his “ appearance, answer, and claim be stricken from the files" of his court; which judicial act was declared by the supreme court of the United States “to be contrary to the first principles of the social compact and the right administration of justice," yet that the title of McVeigh was divested by this judicial fraud, and that he could not assert his rights in an action of ejectment.

The court properly refused this instruction. The decree of condemnation and sale entered under such circumstances was not valid for any purpose. It was the merest nullity. In the language of Judge Bronson, in Bloom v. Burdick, above cited, “ the proceedings were as utterly void as though the court had undertaken to act when the subject matter was not within its cognizance.” The general principle is not at all affected by the allegation in the order denying a hearing, that McVeigh was “a rebel living in the rebel lines.”

The supreme court of the United States, by its unanimous opinion (11 Wall. 267, above cited) has put that question forever at rest, when it says : “ It is alleged' that he (McVeigh) was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there he could defend there. The liability and the right are inseparable. A different result would be a blot on our civilization and jurisprudence. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.”

We are, therefore, of opinion, that the said corporation court of Alexandria did not err in refusing the said first instruction asked for by the plaintiff in error.

We are now to consider the second assignment of error, which is, that the court refused to give the second instruction asked for by the plaintiff in error ; which instruction is in these words : “ That the said judgment and order in the said attachment suit, and the said sale and conveyance of the premises in the declaration mentioned, made by the sheriff, divested the plaintiff of the legal title to said premises; and that the jury must, therefore, find the issue joined for the defendants.”

The court refused to give this instruction, but gave the following: “ That the judgments and orders in the said attachment suits, and the sale and conveyance of the premises in the declaration mentioned, made under authority thereof, by the sheriff, divested the plaintiff of his legal title to said premises; and that the jury must, therefore, find for the defendants, unless they find that the said sale was fradulently made, and the confirmation thereof was procured by fraud ; and that the defendants or either of them were privy to such frauds, or had notice of the same, or of such circumstances as would put a prudent bonâ fide purchaser upon the inquiry in respect thereto.”

“If the jury believe from the evidence that the defendants, or either of them, combined with John B. Alley and others to purchase the property claimed in this suit, at the attachment sale, at a sacrifice ; and if (No. 7.

Vol. I.]

UNDERWOOD 0. MoVEIGH.

they shall further believe that the said defendants, or either of them, in pursuance of such combination, so acted as to prevent competition at said sale, or to prevent the said property from realizing a fair value, then such combination and action was fraudulent; and the jury must find for the plaintiff.”

The granting of these two last instructions, and the refusal to grant the second instruction of defendant, in lieu of which these last were given, constitute the second, third, and fourth assignments of error, which will be considered together, as they raise the same legal questions, involving the consideration of principles common to all.

It is undeniably true, as contended by the able counsel for the plaintiff in error, as a general proposition, that a sheriff's deed conveying property which has been duly levied upon and fairly sold under a valid judgment rendered by a court of competent jurisdiction, passes the legal title to the purchaser. But it is equally true, that if the sale made by the sheriff was fraudulently made, and the order of confirmation of said sale was procured by fraud, and the purchaser was a party to that fraud, the deed of the sheriff shall avail nothing for or against the parties affected by it.

These two propositions are undeniably true; they are independent of each other, and stand well together.

The proposition, that a sheriff's deed for property sold under a valid judgment of a court of competent jurisdiction passes the legal title, is, as a matter of course, subject to the qualification that all the proceedings are regular and bona fide, and free from the taint of fraud. If fraud be shown, either in the proceedings or sale, or in the judgment confirming the sale, the whole proceedings are vitiated. The proceedings of a court of justice establishing rights, or fixing liabilities, must always be founded upon the fact that they are carried out bona fide, and without the taint of fraud. If fraud be shown the very fountain is poisoned, and all the proceedings are null and void. Courts of law and courts of equity have concurrent jurisdiction to suppress and relieve against fraud. If a case of fraud be established, the courts will set aside all transactions founded upon it, by whatever machinery they have been effected, and notwithstanding any contrivance by which it may have been attempted to protect them. It is immaterial whether such machinery and contrivance consisted in a decree in equity and a purchase under it, or of a judgment at law, or of other transactions between the actors in the fraud. Kerron Fraud & Mistake, 44; 1 Johns. Ch. 401; 5 How. R. (Miss.) 365; 1 New Hamp. R. 535; 1 P. Wms. R. 736; 12 Ves. R. 324; 7 Com. Bench N. S. 321 ; 32 Law Jour. Exch. 241.

A judgment or decree obtained by fraud upon a court does not bind such court or any other; and its nullity on this ground, though it has not been reversed or set aside, may be alleged in a collateral proceeding. Kerr on Fraud & Mistake, 293 ; 11 How. 437 ; 5 Cal. R. 406; 63 Penn. R. 408; 62 Penn. R, 481, and other cases cited by Mr. Kerr. In Rex v. Duchess of Kingston, 20 How. St. T. 355, 544 (2 Smith's L. C. 687), De Grey, C J., said : “ Fraud is an extrinsic, collateral act, which vitiates the most solemn proceedings of courts of justice. Lord Coke says it avoids all judicial acts, ecclesiastical and temporal. In applying this rule, it matters not whether the judgment impugned has been pronounced by

VOL. I.

shown, citar and bona subject to the jurisdiction Property

19

[No. 7.

Vol. I.)

UNDERWOOD v. MoVEIGH.

an inferior court, or by the highest court of judicature ; but in all cases alike it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud.” Kerr on Fraud & Mistake, 294.

In the language of Lord Brougham, in Earl of Bandon v. Becher, be fore referred to : " It is not an irregularity, it is not an error, which is here complained of, but it is that the whole proceeding (after the judgment) is collusive and fraudulent; that it cannot therefore be treated as a judicial proceeding, but may be passed by as availing nothing to the party who sets it up."

We are, therefore, of opinion that there was no error in the court below in refusing the instruction in the form in which it was presented, and in saying to the jury that the defendant in error, McVeigh, was divested of the legal title in the premises by the sale and deed of the sheriff ; unless they should find “ that the said sale was fraudulently made, and the confirmation thereof was procured by fraud, and that the defendants, or either of them, were privy to such fraud," &c.

The case of Lessee of Cooper v. Galbraith, 3 Wash. C. C. R. 546, is one exactly in point on this question. It was an action of ejectinent (as is the case before us), and on the merits of the case it was contended that the lessee of the plaintiff was the presiding judge of the court in which the judgment was rendered ; and it appeared in evidence that he purchased an interest in that judgment, and was concerned with the nominal purchase of the land in controversy, under the execution; that this conduct amounted to a breach of official duty; and, in short, that the whole transaction was tainted by such marks of fraud, imposition, and misconduct as ought to invalidate the purchase.

The whole question of judicial misconduct and fraud, in acquiring title to the property on which the action was founded, was submitted by Mr. Justice Washington to the jury.

So, also, in the case of Martin v. Raulett, 5 Rich. Law R. 541, which was an action of trespass to try the title to real estate, in which one party claimed under a sheriff's deed, the jury was instructed, among other things, “ that all sales at auction should be open to full and free competition," and that “the purchaser must do no act the effect of which was to destroy fair competition.” Judge Withers, delivering the opinion of the court, said : “ The jury, applying the standard presented to them, have affirmed that Gary's conduct did contravene such rule of law and vitiate the sale by the sheriff to himself. In this they have differed from the presiding judge. . ... Without undertaking to form any opinion ourselves, in the present case, we must allow that when such a question does arise in a cause, there is no other arbitrament to which it can be submitted but that of the jury.” So we say in the case before us, that the question whether the sale was fraudulently made, and the confirmation thereof was procured by fraud,” was properly submitted by the court to the arbitrament of the jury, who in an action at law are the sole judges of the facts which constitute fraud. They have decided that question in the affirmative, and we cannot trench so far upon the province of the legal triers of fact as to reverse their decision, especially in a case where no motion is made for a new trial upon the ground that the verdict is contrary to the evidence.

Vol. I.)

UNDERWOOD v. McVEIGH.

(No. 7.

The prince this court lied on byn, - that aidence, ona ich matters claimed

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The principles herein announced are not at all in contravention of the decisions of this court in Taylor v. King and Harris v. Harris, 6 Munf. 358, 367, so much relied on by the learned counsel for the plaintiff in error. Those cases simply affirm, “ that a party or privy to a deed cannot avoid it, in a court of law, by parol evidence, on the ground of want of consideration, for he is estopped from averring such matter against a specialty.” Taylor v. King was a case in which both parties claimed under the same grantor, Charles Lewis, who conveyed the property in controversy to Edmundson, trustee, to secure certain creditors who assigned their debt to Taylor. After the execution of the trust deed to Edmundson, and of course subject to that deed, Lewis sold the land to King, and put him in possession. There was a sale under the trust deed, and Taylor became the purchaser, and the deed was made from the trustee to Taylor. This of course invested. Taylor with the legal title. In an action of ejectment brought by Taylor v. King, who was in possession, this court held that King, who purchased the land of Lewis after he had conveyed to Edmundson, trustee, held it subject to the deed to Edmundson; and that claiming under the same grantor, he, King, was estopped from showing in a court of law, by parol, anything to impeach the deed of the grantor under whom he, as well as Taylor, claimed title.

Now, it is insisted that in the case before us the legal title to the land in controversy, which was in McVeigh, passed by the sheriff's deed, under the sale in the attachment proceedings, just as the legal title in the case of Taylor v. King was passed by the deed of the trustee, and that McVeigh cannot, in a court of law, impeach that deed. It is true, as before observed, that a sheriff's deed for property sold under a valid judgment, passes the legal title ; but this proposition must always be subject to the qualification, that the proceedings are free from the taint of fraud. If the sale be fraudulent, or the judgment be obtained by fraud, then the deed of the sheriff conveys nothing, and is a mere nullity.

The distinction is plain between this case and that of a deed of trust. In the one case the grantor voluntarily parts with the legal title, when he conveys to a trustee. It is gone from him forever, and no party or privy to that deed can assail it; but is estopped in law from impeaching the legal title thus vested in the trustee. But when the legal title is transferred by judicial proceedings, those proceedings must be regular, and free from fraud. If fraudulent they have no operation, and a deed under them, fraudulently made, or for property made at a fraudulent sale, conveys nothing, and will be treated in every court where this can be shown as a nullity.

This is the plain result of all the authorities referred to. We are therefore of opinion that there was no error in the instruction of the court below, which charged the jury that the sheriff's deed under the attachment proceedings “ divested McVeigh of the legal title, and that they must therefore find for the defendant; unless they should find that the said sale was fraudulently made, and the confirmation thereof was procured by fraud,” &c.

Nor did the court err in instructing the jury that “if the defendants combined with others to purchase the property at a sacrifice, and in pursuance of such combination so acted as to prevent competition at said

tion is plains nothing ment be obten the taint subject to th

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