In the marginal note it is stated: "For , however, that before the determination of the this is to punish an unlawful act; but rela- ejectment suit the logs had been skidded uptions shall never devest any right legally on adjoining land, would the ownership or vested in another between the death of the right of possession depend upon which party intestate and the commission of administra- first reached the skids? As is said in the tion."

Busch Case, as between the wrongdoer and an administrator has likewise been held, the true owner of the land, the title to what by relation, to have such constructive right is severed from the freehold is not changed of possession in the goods of the intestate be- by the severance, whatever may be the case fore grant of letters as to be entitled to main as to strangers. If the true owner may keep tain an action of trespass. Tharpe v. Stall- his own property when he gets it, why may wood, 5 Mann. & G. 760, and cases there not he get it if another has it?" cited. And, in Foster v. Bates, 12 Mees. & Many decisions of this and other courts il. W. 226, Parke, B., said (p. 233):

lustrate the application of the doctrine to “It is clear that the title of an adminis- various conditions of fact. Thus, where one trator, though it does not exist until the has claimed land under a donation act, or grant of administration, relates back to the has entered upon land under homestead or time of the death of the intestate; and that pre-emption statutes, the legal title subsehe may recover against a wrongdoer who has quently acquired by patent has been held to seized or converted the goods of the intestate relate back to a prior period, to quote the lanafter his death, in an action of trespass or guage of this court in Gibson v. Chouteau, 13 trover. All the authorities on this subject | Wall. 100 [20: 536), “so far as it is neceswere considered by the court of common sary to protect the rights of the claimant to pleas, in the case of Tharpe v. Stallwood, 12 the land, and the rights of parties deriving LJ.C. P. N. S. 241 (a), where an action of their interests from him.” trespass was held to be maintainable. The Among the cases recognizing and applying reason for this relation given by Rolle, C. the doctrine *that the legal title when ac-[229) J., in Long v. Hebb, Style, 341, is, that other. quired may be held, for certain purposes, to wise there would be no remedy for the wrong relate back to the inception of an inchoate done."

right in the land, which, however, was in no The title of an assignee in bankruptcy was sense an estate in the land, may be cited the also early held to relate back, for the purpose following: Ross v. Barland, 1 Pet. 665 [7: of maintaining trover, to the time of the com- 302); Landes v. Brant, 10 How. 348 [13: mission of the act of bankruptcy. See the 449); Lessee of French v. Spencer, 21 How. subject reviewed in Balme v. Hutton, 9 Bing. 228, 240 [16: 97, 100); Grisar v. McDowell, 471, particularly pages 524, 525, where Tin. 6 Wall. 363 [18: 863); Beard v. Federy, 3 dal, C. J., observed that in Brassey v. Daw- Wall. 478 [18: 88); Lynch v. Bernal, 9 Wall. son, 2 Strange, 978, Lord Hardwicke, then 315 (19: 714); Stark v. Starrs, 6 Wall. 402 chief justice of the King's bench, stated this [18: 925); Gibson v. Chouteau, 13 Wall. 92, relation to be a fiction of law, but that, sub- 100 (20: 534, 537]; Shepley v. Cowan, 91 U. sequently, when chancellor, in Billon v. Hyde, S. 330 [23: 424); Heath v. Ross, 12 Johns. 2 Ves. Sr. 330, he seemed to be of opinion that 140; and Musser v. McRae, 44 Minn. 343. As the terms of the bankrupt act, by necessary was said in Gibson v. Chouteau, supra, 13 construction, imported that such relation Wall. 101 [20: 537], the doctrine of relation was intended.

is “usually” applied in this class of cases, but Another illustration of the application of is so applied "for the purposes of justice.” [228]the doctrine is *where a grantee or mortga. I submit it is clear that the inchoate rights

gee ratifies an unauthorized delivery of a in land held in the cases above cited to be conveyance or mortgage to a third person, in sufficient to warrant the application of the which case it is held that the title may relate doctrine of relation were of no greater legal back to the unauthorized delivery, except as or equitable merit or efficacy than the interto vested rights of third persons. See a re- est or expectant right in land with its inciview of numerous authorities in Rogers v. dents reserved to the United States by virtue Heads Iron Foundry Company, 51 Neb. 39 of the granting act of 1856 here consid(37 L. R. A. 429). See also Wilson v. Hoff- ered, and this it strikes me is patent when it man, 93 Mich. 72, where it was held that a is borne in mind that it is conceded that the successful plaintiff in ejectment might main-interest of the United States in the land was tain an action of trover for logs cut by the such that, if the timber had been cut by the defendant from standing timber and restate, the United States had the better right moved from the land during the pendency of to the avails, and might, by an action for the suit, and while in possession of the land treach of covenant,

under a bona fide claim of title adverse to from the state. But if the state, which held
the plaintiff. In that case the court said the legal title subject to an express trust,
(p. 75):

can be held to account by way of damages “In the present case the true owner brings in an action of covenant for timber cut untrover against the party who cut the logs, der its authority, why "for the purposes of under a bona fide claim of title adverse to the justice” should not the doctrine of relaowner, after the title to the land has been de- tion be applied in favor of the United States, termined in favor of the plaintiff.

at this time when, otherwise, a naked tres. If in the present case the logs had been upon passer, who had no title of any kind, and the land when the ejectment suit was deter. whom the state, while it was trustee, chose mined, that determination would have estab- not to sue and cannot now sue, will escape lished the title in the plaintiff. Suppose,' liability and the United States be defrauded



of the value of its property? To deny relief | ber from the land. Liford's Case, 11 Coko, under such a state of facts is, I submit, to 466, 48a; Ward v. Andrews, 2 Chitty, 636; S. hold that if A conveys land in fee to B in C. 4 Kent, Com. 120; United States v. Cook, trust, to be held for C until the happening 19 Wall. 591, 594 [22: 210, 211]; Burnett v. of a certain event, and, after the contin- Thompson, 51 N. C. (6 Jones, L.) 210, 213; gency has happened, and the land has been Mathers_v. Ministers of_Trinity Church, 3 conveyed to C and the trust thus terminated, Serg. & R. 515 [ 8 Am. Dec. 663), and cases the former cestui que trust discovers that cited; Moores v. Wait, 3 Wend. 104, 108;

the land had been stripped of all its timber Gordon v. Harper, 7 T. R. 13; 1 Chitty, (230) by a trespasser and rendered practically Plead. 16th ed. 217, star paging 168; 1

valueless, he is without remedy, and must en Wash. Real Prop. 5th ed. 498, note 7, star dure the pecuniary injury without com- paging 314; and the same principle applies plaint.

to whatever is part of the inheritance and If, as it seems to me is clearly the fact, the is wrongfully severed and removed from the state of Michigan held title to the timber land. Harrant v. Thompson, 5 Barn. & Ald. merely as an incident to the land, and could 826, 828. only exercise such powers with respect to the To summarize, therefore: The state of timber as it was entitled to exercise as re- Michigan was not the beneficial owner of the spects the land itself, it results that the state land from which the timber in question was did not stand in the attitude of a gran- severed, but held the legal title merely as a tee of land upon condition subsequent, trustee, though, by virtue of being vested to whom an absolute conveyance had been with the legal estate, the state was entitled made, for its sole use and benefit. Authori. | to enforce, for the henefit of the real owner, ties, therefore, to the point that in the case such remedies as the latter inight have reof such a conveyance, the only right of the sorted to had he held the legal title. But grantor is to receive back, upon re-entry, the if the owner, the United States, is not pergranted land in the condition in which it mitted to maintain the present action, it might then exist, have no pertinency in a loses property which it had a clear right to case like the present, where the grant was to receive, and the wrongdoer goes unpunished. the state, not as absolute owner, but as a These circumstances present all the elements mere trustee So, also, I submit' that deci- which justify resort to the fiction of law by sions which hold that upon the commission of which a person who, in equity and good cona trespass upon land where the legal title and science, was the real owner at the time of an possession is in the real owner, or upon an unlawful conversion, is to be regarded, as infringement of a patent the legal title to against the wrongdoer, to have had the legal which is in the real owner, a right of action title and possession, by relation, in him at the to recover damages for the trespass or in- time of such conversion, and therefore as fringement immediately vests in such owner having had such a title and possession as, and becomes personal to him, so as not to when his disability to assert his rights no pass upon a subsequent conveyance of the longer exists, will entitle him to maintain land or assignment of the patent, have no an action of trover, relevancy in cases like that at bar, where at Indeed, it seems to me that in reason it is the time of the trespass or infringement com- impossible to deny the right of the true plained of the legal title and the possession owner to recover the timber, without involvwere held by one who was a trustee for an ing the mind in irreconcilable propositions other, and had no real, beneficial interest in and in addition making use of a complete the land.

nonsequitur, that is to say, first, that there Nor can I see the appositeness of the cita- was no trust, and yet that rights existed tion of authorities holding that, during the which could only arise by reason of a trust;[232) existence of a trust, the trustee, and not the and second, that the trustee alone could sue cestui que trust, is the proper person to sue. during the existence of the trust, therefore, This is readily conceded, and such was the on the termination of the trust, the same decision of this court in Schulenberg v. Har doctrine applies. Reduced to its last analyriman and in Lake Superior Ship Canal, R. sis, the doctrine now announced is, I submit, & 1. Co. v. Cunningham. The question here really this: That the United States could is not, Who may sue during the existence of the trustee must assert the right, and that

not recover whilst the trust existed because the trust? but, What are the rights of the it likewise could not recover after the tercestui que trust when the power of the trus. mination of the trust, and, hence, could not tee has ended and the property has reverted recover at all. The result in effect concedes under the terms of the trust?

the existence of a right of property, but holds The decisions are uniform, that even where that it cannot be protected because the law

land is in the possession of a lessee, upon an affords no remedy. The maxim, Ubi jus, ibi [231]unauthorized severance of *growing timber, remedium, lies at the very foundation of all

the title and right of possession to the sev. systems of law, and, because, as has been ered timber is at once vested in the owner of stated at the outset, I cannot believe that the the land, or, as it is sometimes expressed, the common law departs from it, I refrain from owner of the inheritance; and the latter may giving my assent to the conclusions of the resort to the appropriate remedies against court, and express my reasons for dissenting one who unlawfully removes the severed tim-' therefrom. 172 U. S.



WILLIAM GRANT, Receiver of the Estate to the grantees their shares in the property of Oliver J. Morgan, Piff. in Err., as the heirs of his wife, and secondly, to make

a donation from himself. He died in 1860. JOHN A. BUCKNER.

In 1872 certain creditors of Morgan, credit-(-434)

ors of him individually, and not of the com(See 8. C. Reporter's ed. 232-239.) munity, brought suit in the circuit court of

the United States to set aside the convey. Date of pre-cxisting right-set-off of rent- ance and subject his interest in the property

suit in state court by receiver appointed to the payment of their debts. Their conten-
by Federal court-allowance of set-off. tion was sustained by the circuit court, and

its decree was substantially affirmed by this 1. An adjudication that a party is entitled court. 111 U. S. 640 (28: 647). Thereaf

under a conveyance to one half the estate is a ter, and in May, 1884, the circuit court ap-
determination of a pre-existing right which pointed a receiver to take charge of all the
dates from the time of the conveyance.

property conveyed by Morgan. Melbourne 2. One half the rent pald to a receiver by one plantation was at the time in the possession

who took a lease from him rather than be dls of the present defendant in error, claiming
possessed, but who is subsequently adjudged under the conveyance made by Morgan in
to be the owner of one half the estate, may
be set off against the rent thereafter accruing 1858. After the appointment of the receiver

for the half that is subject to the receiver, the defendant in error, rather than be dis8. A recelver in a Federal court who volun. possessed, leased from him the plantation.

tarlly goes into a state court cannot ques. The litigation continued, and, new parties
tion the right of that court to determine being named, came to this court again in
the controversy between himself and the 1891. 139 V. S. 388 [35: 199). It was
other party.

then decided that one undivided half of the 4 A counterclam or set-off comes within the Melbourne plantation belonged to the defend

spirit of the act of Congress of August 13, ant in error, and that only the remaining
1888, allowing receiver of a Federal court
to be sued in a state court without leave of half was subject to the debts of Morgan.
the court appointing bim.

The language of the decree was: “The said

heirs are entitled to have and retain a cer. [No. 89.]

tain portion of said Oliver J. Morgan's es

tate free from the claims of his creditors, as Submitted November 29, 1898. Decided De- follows, to it: fifths of the four plancember 19, 1898.

tations, Albion, Wilton, Westland, and More

gana, are directed and decreed to be reserved ERROR to the Supreme Court of Louis- for the benefit of the heirs of Julia Morgan, affirming a judgment of the District Court tion is directed and decreed to be reserved of the Seventh Judicial District for East for the benefit of the heirs of Oliver H. Kel. Carroll Parish, Louisiana, in favor of the lam, Jr., deceased; and that the remaining defendant, John A. Buckner, allowing his set interest in the said plantations is decreed off for rent to the claims of William Grant, and adjudged to be subject to the payment receiver of the estate of Oliver J. Morgan, and satisfaction of the debts due to the ad. plaintiff in an action brought by him to ministrator of said William Gay," etc.; and recover one half the stipulated rent of the further, after providing for other matters, Melbourne plantation in that state. Af- "but if the heirs shall not desire a firmed.

ance of their portions, then the whole propSee same case below 49 La. Ann. 668. erty to be sold and they to receive their reThe facts are stated in the opinion. spective portions of the proceeds, but no alMr. J. D. Rouse for plaintiff in error.

lowance for buildings. Any moneys in the Mr. Thomas Marshall Miller for de hands of the receiver, after paying his exfendant in error.

penses and compensation, are to be divided

between the creditors and heirs in the pro[233] *Mr. Justice Brewer delivered the opin. portions above stated, applying the amount ion of the court:

due to the heirs, so far as may be requisite, This case comes on error to the supreme to the costs payable by them." court of the state of Louisiana. It is per- thereafter the interest of *Morgan in the[235] haps the last step in a litigation which has plantation was sold in accordance with the been going on for a quarter of a century, and terms of the decree. The defendant had paid which has twice appeared in this court. to the receiver the rent of the entire plantaJohnson v. Waters, ili U. S. 640 (28: 547]; tion from 1884 up to the decree in 1891, but Mellen v. Buckner, 139 U. S. 388 (35: 199]. paid nothing thereafter. This action was In those cases the full story of the litigation coinmenced by the receiver in the district is told. For the present inquiry it is suffi- court of the seventh judicial district for East cient to note these facts: Prior to the late Carroll parish, Louisiana, to recover one half civil war Oliver J. Morgan was the owner of the stipulated rent of the Melbourne plantafive plantations in the state of Louisiana. tion for the years 1891 and 1892, as well as His wife died intestate in 1844, leaving two one half of the taxes thereon for those years. children as her sole heirs. The property The defendant answered, not questioning his standing in his name was community prop- liability for the matters set forth in the peti. erty: In 1858 he conveyed the plantations tion, but alleging that between 1884 and to his children and grandchildren. The pur- 1891 he had paid the receiver rent for the pose of this conveyance was, first, to secure entire plantation, one half of which had been 430


172 U. S.

Two years


finally adjudged to be his property, and not | Gay, Administrator, v. Morgan, Executor, subject to the claims of creditors of Morgan, et al., but the careful reading and consideraand prayed to set off the one half of the rent tion which we have given the opinions and wrongfully collected between 1884 and 1891 decrees of the supreme court, and particuagainst the one half due for the years 1891 larly the supplemental decree in all the cases and 1892, and for a judgment over against consolidated, give us the firm impression the receiver for any surplus. The trial court that the court intended to hold and declare sustained his defense so far as to decree a full that the portions recovered by said heirs set-off to the claims of the receiver. The were theirs of right, and that they were to supreme court of the state affirmed the trial have them, not only free of the claims of court in this respect, but amended the judg. creditors of the estate of Oliver J. Morgan, ment SO “as to reserve the defendant's but free from all costs and claims except as right to demand of and recover from the in the several decrees adjudged, and as thereplaintiff the residue of the amount of the after might be necessary in effecting partirents he has collected in excess of the sum ac- tion.” And in the decree it was among tually due by the defendant, after a suffi- *other things adjudged that "so much of said[237 ciency thereof has been used to extinguish by decree of June 2, 1893, as the same is of reccompensation the demands of said receiver in ord herein, as charges or attempts to charge this suit.” 49 La. Ann. 668. Whereupon the said John A. Buckner and Etheline Buck. the receiver sued out this writ of error. ner as the owners of one half of Melbourne

Two questions are presented: First, Was plantation, or that attempts to charge their the defendant entitled to set off against the said one half of said Melbourne plantarent unquestionably due for the undivided tion with lien privilege to contribute or to half of the plantation for 1891 and 1892, one recuse the contribution of the sum of seven half of the amount paid by him for rent be thousand three hundred and forty-seven tween 1884 and 1891, on the ground that it .30 dollars to the payment of costs, disburse. had been finally adjudged that he was the ments, and solicitors' fees allowed by the owner of one undivided half of the planta court in and for the prosecution of the bill tion, and therefore that the receiver had im- and action in case No. 6612 of the cases properly collected the rent therefor and, sec. herein consolidated, be, and the same are, ond, if he was entitled to such set-off, was he canceled, abrogated, annulled, and taken precluded from obtaining the benefit of it from said decree, and that the said John in the state courts by the fact that the re- A. Buckner and Etheline Buckner, be, ceiver was an officer of the Federal court, or and are now decreed to take and hold

by any proceedings had in that court? said one half of the said Melbourne plan[236] *The contention of the receiver is that the tation allotted to them free from said

defendant's right to one half of the planta- charge and liability for said costs, disburse-
tion dates from the decree in 1891, while the ments, and solicitors' fees charged against
defendant insists that it dates from the con- them in said decree of June 2, 1893, as con-
veyance in 1858, and that the decree only tribution to the expenses of the prosecution
determined a pre-existing right. We concur of said cause No. 6612 and of the causes
in the latter view. As a rule courts do not herein consolidated.” Obviously, the effect
create, but simply determine rights. The of this last decree was to materially modify
adjudication that the defendant was enti- the terms of prior orders and decrees, and to
tled to an undivided one half of the planta change the relations of the defendant as the
tion was neither a donation nor an equitable owner of one half of the Melbourne planta-
transfer of property in lieu of other claims. tion to the receivership.
It was a determination of a pre-existing The provision in the decree of this court
right, and that right dates and could only in reference to the division between the cred-
date from the conveyance in 1858.

itors and the heirs of the moneys in the hands The conclusions of the circuit court of the of the receiver after paying his expenses and United States, as expressed in an opinion compensation is one evidently applicable in and passed into a decree,-a decree not ap- case of the sale of the entire property, and pealed from, and therefore final between the cannot be construed as charging against the parties,--are to the same effect. Such opin. defendants, the heirs of Mrs. Morgan, any ion and decree appear in the record. In the share of the costs incurred by the creditors opinion, which was announced after the de- of Mr. Morgan, in their efforts to subject his cision of this court in 139 U. S. 388 [35: property to the payment of their debts. 199), it was said: “From this last opinion Rents follow title, and the owner of the and decree of the supreme court in the mat- realty is the owner of the rent. So that from ter, we are forced to conclude that the por- 1884 to 1891, and while the question of title tions of lands set off and adjudged to the was in dispute, the defendant was paying to heirs of Julia Morgan and heirs of 0. H. the receiver rent for an undivided half of the Kellam, Jr., were so set off and adjudged to plantation, property which was absolutely them as the owners thereof in their own his own, and which the receiver ought not to right as the heirs of Julia Morgan and 0. H. have had possession of. The rent thus col. Kellam, Jr., who were the heirs of Narcisse lected belonged to defendant, and could not Deeson, the wife of Oliver J. Morgan, and not be taken *by creditors of Morgan or appro[238] to them in any way as the heirs of Oliver J. priated to pay the cost of their lawsuits. So Morgan or as creditors or claimants of his it is that the receiver, having in his possesestate.

The heirs of Julia Morgan sion money belonging to the defendant, to and Oliver H. Kellam, Jr., participated in wit, the rent of one half the property from the fund recovered in the original case of 1884 to 1891, now asks a judgment which


shall compel defendant to pay him a further | 1. A state statute giving to residents of that sum. This cannot be. This is not a case state a priority over nonresidents in the dis in which a defendant indebted to an

tribution of the assets of a foreign corporatate which is insolvent and can therefore

tion which, by filing its charter or articles pay its creditors only a pro rata amount

of association in the state is deemed a cor

poration of that state, is, so far as it disseeks to set off a claim against the estate in

criminates against citizens of other states, in absolute payment of a debt due from him to

violation of U. S. Const. art. 4, giving equal the estate, thus obtaining a full payment privileges and immunities to the citizens of which no other creditors can obtain. For the several states. here one undivided half of the plantation was 2. The constitutional guaranty of equal privl. never the property of the estate vested in the leges and immunities to citizens forbids only receiver. It was wrongfully taken posses- such legislation affecting citizens of the resion of by him. The rent therefor all the

spective states as will substantially or pracwhile belonged to the defendant, and the re

tically put a citizen of one state in a condi. ceiver holds it, not as money belonging to the

tion of alienage when he is within or when estate, but to the defendant. To allow him

he removes to another state, or when assert

ing in another state the rights that common. to keep that money, and still recover an ad

ly appertain to the people, by and for whom ditional sum from the defendant, would be

the government of the Union was established. manifestly unjust.

3. A corporation is not a citizen within the It is said in the brief that the court first

meaning of the constitutional provision that acquiring jurisdiction has a right to continue "the citizens of each state shall be entitled its jurisdiction to the end. We fail to see to all privileges and immunities of citizens the application of this. The receiver volun- of the several states." tarily went into the state court, and, having 4. A corporation of another state cannot involuntarily gone there, cannot question the

voke the constitutional guaranty of equal right of that court to determine the contro

privileges and immunities of citizens in case versy between himself and the defendant.

of a discrimination against it in favor of the

residents of a state, in respect to participa. A similar proposition was often affirmed in

tion in the assets of an insolvent corporation. cases of bankruptcy, although by $ 711, Revised Statutes, the courts of the United States 5. A corporation of another state is not de

prived of property without due process of are given exclusive jurisdiction "of all mat

law by denying it equality with residents of ters and proceedings in bankruptcy.” Mays the state in the distribution of the assets of v. Fritton, 20 Wall. 414 [22: 389); Win. an insolvent corporation. chester v. [leiskell, 119 U. S. 450[30: 462], 6. A corporation not created by the laws of a and cases cited in the opinion. The same state, nor doing business in that state unrule applies here. The question presented is, der conditions that subject it to process from not how the estate belonging to the receiver the courts of that state, is not within the shall be administered, but what is the estate

jurisdiction of that state, within the meanbelonging to him. The two questions are en

ing of the constitutional provision that no

state shall "deny to any person within its tirely distinct. Further, the right to sue a

jurisdiction the equal protection of the laws." receiver appointed by a Federal court with

7. The Tennessee statute of March 19, 1877, out leave of the court appointing him is

80 far as it subordinates the claims of private granted by the act of August 13, 1888, chap. business corporations of other states, who are 866, § 3, 25 Stat. at L. 436. A counterclaim creditors of a corporation doing business in or set-off comes within the spirit of that act. that state under that statute, to the claims And certainly no objection can be made to agalnst the latter corporation of creditors

the allowance of a set-off, when, as here, it residing in Tennessee, is not a denial of the [239]is *simply in harmony with the decrees of the "equal protection of the laws," secured by Federal court, and in no manner questions

the 14th Amendment to the Federal Constitu. their force or efficacy.

tion to persons within the jurisdiction of the

The jurisdiction of the state court is there-
fore clear, and the judgment of the Supreme

(No. 6.)
Court of Louisiana is affirmed.

Submitted November 8, 1897. Decided Do

cember 12, 1898.
and Hull Coal & Coke Co., Piffs. in Err.,

state of Tennessee to review a judgment CALVIN M. MCCLUNG, William P. Smith, of that court adjudging that the Tennessee William B. Keener, Franklin H. McClung,

law of March 19, 1877, was constitutional, Jr., and Charles J. McClung, Jr., Partners and that creditors of an insolvent company, as C. M. McClung & Co., et al.

residents of the state of Tennessee, are en

titled to priority of payment out of the as. (See S. C. Reporter's ed. 239-269.)

sets of said company over all other creditors

of said company, who do not reside in said State statute, when unconstitutional-equal state, etc. Affirmed as to the Coal & Coke

privileges and immunities to citizens-cor. Company, and reversed as to other plaintiffs,
poration, when not a citizen--participa. citizens of Ohio, and cause remanded for fur.
tion in assets-due process of law-corpo- ther proceedings.
ration, when not within jurisdiction of

The facts are stated in the opinion.
state-l'ennessee statute of March 19, Messrs. Heber J. May and Tully R.

Cornick for the plaintiffs in error. 432

172 U. S.


« ForrigeFortsett »