Page images
PDF
EPUB

court has no power to review its decisions whether at law or in equity. A final decree in chancery is as conclusive as a judgment at law: Martin v. Hunter, 1 Wheat. 355; Hopkins v. Lee, 6 Id. 113, 116; Sibbald v. United States, 12 Pet. 492; Norton v. Boyd, 3 How. 426. Both are conclusive of the rights of the parties thereby adjudicated.” This court is the dernier ressort, in causes like the one presented, and we have no greater power in this cause than the supreme court of the United States can exercise in causes there presented. It is contended in argument that this cause is not within the rule laid down by the supreme court of the United States, for the reason that no mandate has issued from the supreme court of the territory to the district court, therefore the cause is completely within the control of the appellate court, and may be reheard. This view is not entertained in the decisions cited. The principle settled is, that where an appellate court of last resort has made and entered of record its final judgment or decree the rights of the parties are concluded, and the court has no power to rehear the cause. It is also insisted that this court is not the court of dernier ressort in this cause; that other claims against the appellant, than than the one really in dispute in the cause resting upon the samo basis, are alluded to in the complainant's bill. The real amount claimed by the complainant, and for which a decree is asked in this cause, is much less than one thousand dollars, and we are clearly of opinion that an appeal does not lie to the supreme court of the United States. By the organic law the sum or amount in controversy, and which may be settled by the decree made, fixes the character of the cause as to whether an appeal lies or not to the supreme court of the United States. Clains incidentally alluded to in the bill and not brought in controversy to be decreed on, do not influence the question in the least.

The case of Green v. Biddle, 8 Wheat. 1, where a rehearing was granted, is not in point. That cause was taken to the supreme court, on a decision of opinion of the judges of the circuit court of the United States in the state of Kentucky, on two questions. The defendant did not appear by counsel, and no argument was heard in the supreme court on that side of the qostion. Before the opinion was certified to the court below, on the second or third day after the argument, a motion was submitted by Mr. Clay (as amicus curiæ) for the reason stated, and the further reason that the rights and interests of a great number of possessors and improvers of land in Kentucky would be irrevocably determined by the decision in the cause, to with.

a

[ocr errors]

hold the certificate of opinion from the circuit court and permit
the cause to be fully argued, which was granted. The circuit
court applied to the supreme court for advice and its opinion
upon the questions submitted and certified, in order that a proper
judgment might be entered upon the merits in the circuit court.
This advice or opinion has no force or influence until sent forth
to the circuit court, and indeed does not exist until certified in
form to that court. The questions are therefore always before
the supreme court for argument until they have finally settled
upon and certified their opinion. If so, the supreme court

.
might withhold the certificate for further argument and full
opinion. We do not think this like a cause wherein the su-
preme court is required to pronounce a full and final decree or
judgment. In such causes the supreme court has never granted
& rehearing. With this view of the application for a rehearing,
it is unecessary to say anything on the merits of the final order
or decree made in this cause at the last term of this court.

The motion for rehearing upon the petition presented is over-
ruled.

[ocr errors][ocr errors]
[ocr errors]

APPELLATE COURT Has No RichT TO GRANT REHEARING upon a writ of error, after a final judgment pronounced in that court, and regularly settled and encered of record: People v. Mayor etc. of New York, 35 Am. Dec. 669, end note. As to power of appellate court over its own judgments, see Legg 1. Overbagh, 21 Id. 118, and note.

[ocr errors][ocr errors][ocr errors][ocr errors]

MOFFATT V. SHEPARD. SHEPARD V. MOFFATT.

[2 PINNEY, 66.]
RESULTING TRUST is CREATED IN FAVOR OF PRINCIPAL IN LANDS pur.

chased by his agent, with money intrusted to him to be used for an.
other purpose, where the deed is taken in the name of the agent, or in
that of another acting for him; and a purchaser of such land from the
agent, with notice of the manner in which it was acquired, takes subject
to such resulting trust.
Bill in equity. The opinion states the facts.
Randall and Ogden, for the appellee.
Finch and Lynde, for the appellants.

By Court, IRVIN, J. This case is brought here on an appeal
from the decree of the district court of Milwaukee county, and,
inasmuch as it is intimately blended with another case (brought
here also by appeal), a bill of review in the same court, by the
defendants Shepard and Bonnell against Moffatt, the complain-

[ocr errors]

a

ant, it is thought most expedient to examine the two cases together, so far as it may be done.

It appears that some time previous to the commencement of either of the cases brought to the attention of the court by the parties, William B. Moffatt, the complainant, placed in the hands of John M. W. Lace certain property and effects to dispose of as his agent; that said Lace afterward purchased the lot in question and partly paid for it with the said property and effects, and procured a deed of it to be made to John W. Whiting; that afterward the said Moffatt commenced a suit in equity in the court aforesaid against said Whiting, to secure to himself the benefit of the resulting trust; upon which suit, not only was issued and served on the said Whiting the process of subpæna, but also an injunction enjoining and restraining him and his agents and attorneys from selling, or in any manner incumbering said lot; that after the service of said process, and during the pendency of said suit, Lace, by a power of attorney from Whiting, conveyed by deed the premises to the defendants Shepard and Bonnell; that afterward, before the court in vacation, the said Moffatt and Whiting agreed between themselves that Moffatt should take a decree for the whole of the premises and then convey back to Whiting twenty-three feet thereof, which agreement being produced before the chancellor, and all things therein being complied with, it was so decreed accordingly. Afterward the said Moffatt, in order to remove the cloud and clear up the doubt which hung over his title by reason of the deed from Whiting (by his attorney Lace) to Shepard and Bonnell, filed the bill in this cause against them to have the said deed declared null and void, and they be decreed to release the premises to him, which, upon the hearing of the case, was decreed; that previous to said decree, and about the time when said Shepard and Bonnell answered, they filed a bill of review in the case of Moffatt v. Whiting. The court refused to review that case, and decreed accordingly. Upon these proceedings, both cases are brought here, and in this connection are to be examined. In relation to the last bill and decree, it is insisted that the complainant's bill ought not to be entertained, for the reason that they, Shepard and Bonnell, brought themselves voluntarily into the interest which they assert and claim, not only with a knowledge of the pendency of the suit between Moffatt and Whiting, but in open violation and contempt of the injunction issued therein. That they had a knowledge of the pendency of that suit, and of the existence of the injunction, we can not for a moment doubt, and they can not be relieved from the stringent application of the law in such cases. That Moffatt, judging from what appears in the cases before us, was entitled to the benefit of the resulting trust, there can be no doubt; and that he might elect, under the circumstances, to hold the premises as a security for his interest, or take the proper part in discharge thereof, there is little doubt: 2 Story's Eq. Jur., secs. 1258–1262; Philips v. Crammond, 2 Wash. C. C. 441.

Shepard and Bonnell having voluntarily placed themselves in the interest which they assert in the face of the suit then pending, and in contempt of the injunction, can claim no protection therein, and must necessarily have the review refused and their bill, so far as it relates to Moffatt, dismissed at their costs, which is so ordered. In the case of Moffatt v. Shepard and Bonnell, prosecuted by Moffatt to clear his title acquired under the decree of the court in the case of Moffatt v. Whiling of the doubt which the defendant had thrown over it, the court is clearly of opinion that the facts and circumstances authorize the relief asked for, and among others, for the same reason given for refusing the review sought by the defendants. We are, however, of opinion that the district court, in granting relief, went too far in the decree, to no other extent, however, than a seeming inconsistency of one part of the decree with the other, in this. the decree rendered null and void the deed from Whiting by John M. W. Lace, his attorney, to Shepard and Bonnell, dated April 30, 1845, and then required of them to execute a deed for a part of the premises included in the deed thus declared null and void, to the said Moffatt. The court should not have declared the deed void, but it should have decreed a conveyance of all the interest which Shepard and Bonnell had acquired by that deed in the premises, to be made to the complaint Moffatt (so far as it affects his interest), with a special warranty, and it must now be so done. And it is decreed accordingly.

“This cause having come to a hearing on the pleadings and the proofs (having been argued by the counsel), and the court having duly considered the same, with the stipulation on file, it is adjudged and decreed that the said Clarence Shepard and James Bonnell do, within thirty days, execute and deliver to the said complainant, William B. Moffatt, a proper deed of con. veyance, properly executed, witnessed, and acknowledged, with special warranty against their own acts, and all persons by. through, or under them, or either of them, of twenty-two feet, undivided, in the said lot number four, in block number four, in the third (formerly east) ward of the city of Milwaukee, and that they pay the costs of this suit.”

[ocr errors]

RESULTING TRUST, WHEN ARISES: See the prior cases in this series cited in note to Bank of Tennessee v. Hill, 51 Am. Dec. 698, and Dow v. Jewell, 45 Id. 371. Where one person takes a conveyance in his own name, but the purchase price is paid by another, a resulting trust arises in favor of him who paid the consideration, and such trust may be shown by parol: Williams v. Hollingsworth, 47 Id. 527; Smitheal v. Gray, 34 Id. 664.

VENDEE OF LAND Wuo BUYS WITH NOTICE OF TRUST THEREIN takes subject to the same: Talbott's Ex’rs v. Bell's Heirs, 43 Am. Dec. 126; Naples v. Medlin, 3 Id. 687; Jackson v. Matsdorf, 6 Id. 355; Shepherd v. McEvers, 8 Id. -561; Lagow v. Badollet, 12 Id. 258; McCants v. Bee, 16 Id. 610; Smith v. Daniel, Id. 641; Kinloch v. I'On, 26 Id. 196.

Rich v. JOHNSON.

(2 PINNEY, 88; 1 CHANDLER, 19.) MEASURE OF DAMAGES IN ACTION FOR BREACH OF COVENANT of seisin is

the amount of the consideration expressed in the deed, with interest

thereon for six years from the time of the breach. Action for breach of a covenant of seisin. The opinion states the facts,

E. W. Erans, for the plaintiff in error.
Chatfield, for the defendant in error.

By Court, Stow, C. J. We do not think it necessary to examine the numerous points made on the argument of this writ of error, as we are of opinion that the judgment must be reversed on a ground not involving the principal questions in the

Under the direction of the court below, the jury in assessing the damages, added to the consideration expressed in the deed, interest from its execution to the day of trial, being a period of something more than ten years. In giving this direction, we think the learned judge, before whom the cause was tried, erred. Though the measure of damages in actions on covenants of seisin and warranty, is not uniform throughout the United States, the prevailing, and we think the better rule is, to allow but six years' interest, or interest for the time for wbich mesne profits are recoverable: Bennet v. Jenkins, 13 Johns. 50; Bender v. Fromberger, 4 Dall. 441; Cox v. Strode, 2 Eibb, 273 (5 Am. Dec. 603]; Lowther v. Commonwealth, 1 Hen. & DI. 202; Wallace v. Talbot, 1 McCord, 466; Evans v. Kingsberry, 2 Razd.

case.

« PreviousContinue »