Rowan v. Lamb

Opinion ly C-iasuxu, J. Petition for partition, filed by W. Lamb, against Julia II. Eotvan and Henry McKee. Petitioner claims Litio io ¡Lo undivided throe-fourths of certain lands and loin in Leo corns iy, and iliatlicJIco owned tlia oilier fourth. Liso petition f vero that Julm If. itowan claimed to be tlio owner of the came lands and lota ; that Mo claim io unLmidcd and unjust, no to the ilneo-iourths claimed by petitioner, and questionable as to the oilier fourth. Petitioner prays for partition, and that his title may bo quieted. Sovan’s an&nor (Ionios tlio right of Lamb to the lands described in the petition, and claims the entire litio in himself. In support oi' Ms liilc lie exhibits: 1. The judgment of partition of the half breed lands of Lee couniy, made by tlie district court in 1841, by winch tlio lands and lots — 470 — in question were allotted to Henry McKee. 2. A suit by attachment, instituted by W. A. Clark, against said McKee, under which the lands and lots were levied upon, and after judgment, transferred by sheriff’s deed to Thomas Breeze and Lewis B. Beeves. 3. Conveyances from said Breeze and Beeves to Bowan. The answer calls upon petitioner to produce his title. Petitioner replies, and admits McKee as the source of his title, but denies that Bowan has any interest in the lands by virtue of the attachment proceedings and the conveyances made by those claiming under them; that if Bowan did acquire any right, under the attachment suit, they are invalid as against petitioner, and those under whom he claims, because purchased without notice of said proceedings and conveyances, and because the proceedings in attachment and the sale were fraudulent and illegal; that Bowan purchased with notice of those irregularities; that he was a mere volunteer under Ins brother, of the firm of Bowan and Brown, the assignees of the attachment judgment and sale, and for whom said lands were held by said Breeze and others, until conveyed to defendant, by direction of his brother, for the puiposo of keeping the lands from his creditors. The replication exhibits petitioner’s title, commencing with the judgment of partition under McKee. 2. A deed from McKee to George Collier and "William Glasgow. 3. Conveyances from them to petitioner. The rejoinder reaffirms the averments of the answer, denies fraud, and denies being a mere volunteer, as charged in the replication. It reaffirms his title under these pleadings and the title papers referred to. Under these pleadings the case was submitted to the court. We learn from the bill of exceptions, that after the petitioner filed his title papers, with the replication, they being all the evidence offered to sustain the issue on' his part, the defendant moved for a non-suit. The motion was overruled. The defendant then offered his evidence, consisting of the records and title papers referred to, as exhib — 471 — ited with his answer. This was all the evidence introduced, as we must infer from the bill of exceptions, by either party. The court thereon rendered a judgment of partition, giving to Lamb three-fourths, and to Kowan one-fourth of the real estate described in the petition. We will, in the first place, briefly consider a preliminary point, urged by appellee in support of the decree below. It is strongly urged that the record does not disclose all the evidence, and that consequently this court must presume that the evidence adduced was sufficient to justify the decree as rendered,.and that unless the transcript gives all the evidence introduced by complainant, it must be presumed that the motion for non-suit was correctly overruled. This would necessarily be the case if the transcript did not contain all the evidence, But in this particular the bill of exceptions is sufficiently explicit. After describing in detail, the exhibits and title papers introduced byplaintiff, the bill of exception states : “ being all the evidence offered by the plaintiff to sustain the issite on his part,” &c. From this we conclude that all the evidence is before us upon which the application for a non-suit was overruled, and that wo are therefore sufficiently in possession of the case to review the decision upon that motion. 1. It is urged that the court below erred in overruling defendant’s motion for non-suit, on the ground: 1. That plaintiff derived his title from Glasgow and Collier, who were only grantors of a mortgage, with power of sale, and that the ex parte evidence introduced, does not legally show that the power of sale had been executed. 2. That the mortgagee and his assigns or grantees, without possession or entry upon foreclosure, are not owners, so as to maintain the action of partition. The ex parte evidence obj ected to as illegal, are the affidavits of the newspaper publishers that the notice of sale was duly published. But as these affidavits were admitted without objection in the — 472 — court below, they evm.>.<>•. now bo questioned. They show a 3nbs’.r.ntial C‘«n »lv.mo with ibo directions given in tlio m<trigi,g-\ iv; :i> ib.) uriiUi'is of mating ibo culo. Even if valid, ¡he objection should G Ahove, been presented to (be court below. On line point, ¡heWA'c, we cannot disturb the ruling of ibo court egoimx a ¿notion for a non-suit. .Out it Is objected that the exhibits do not, sho,.' plaintiff to bo owner of tbo lend, no alleged in Ibo petition. Tbo mortgage to Glasgow and Collier, with the power of calc, possessed all ibo virtues of a deed of trust, and vested in them ¡bo legal title, as bus toce, and heneo, a deed from ilicm would convoy ¡be legal litio to il.e, pnrelwror. The iiregrds'.iities of ¡bis ralo, as mged by appellee's counsel, are not ssteh a.c could barre been coneidejed by 'ho court, on a moro mo!ion for non-suit. This could or.!/ bo done in a direct char.eery proceeding, in which all concerned should bo made pr.i'ics. .Pri-nv-facie., qLdnduV,exhibits showed hum to be an owner of ¡lio proper ty. Eo claimed title under llclbeo by vi-fuc of a deed of bust, executed in Augast, 1GÍ.3, lo Glasgow end Collies, for tbo boner Í of James ITamcoxi, a creditor. Under those trustees, who wore not only vested wiih power ¡o so!!, bat also vviih the legal iiflc,the plaintiff appears bp- bis exhibí'-, in ¡be light of an innocent pure!»?cor. Where ¡rus'cc-s are ¡bus vested will) ibo iiilc w v/oll as ¡he power, it is not necessary to chow ¡hat siiic: conipliauc/j vAh ibo directions of ¡be power, as it would be, if ibo power was not coupled with the title.. As plaintiff connect» bio light vbh ¡hose who had the title, as well as the power to cell, Ins ¡1 lo can only be divested by a direct proceeding in chancery, raid can only bo overcome by a paramount antecedent title. Wo aro thcrcibiO of opinion that ¡he court did not err in overruling tlio moiion. 2. Tbo second error assigned is, that the judgment on the merits should have been for defendant’s ¡lile to all the — 473 — land. It is claimed that defendant’s title is anterior and paramount to plaintiff’s. The defendant’s title is derived, under a judicial sale, made by virtue of a judgment in a suit in v.ireh a writ of altaclnnent was issued, and levied on tho land in question, in April, 1843, four months before the deed of trust, was executed. If, therefore, the. atíachinent levy was valid, the defendant’s title must necessarily prevail. This qucsl'ou we approach with great relncAnec, and with a realising sense of tho responsibility involved. "We must either come in conflict with the carefully adjudicated case of Tiffany v. Glover,(a) or else in conflict villi our own convictions of the law and justice of this cv-c. Tw, ¡lie opinion in Tiffany v. Glover, was sunebuned by two of the judges only, but the highly rt-epccied author of ¡hat opinion has since given place to anoiher incumben;, end this eircumstaneo hierooucs our hesitation to disturb the ruling in that ease. Besides, wo are fully impressed with the importance of stability and uniíoiiíiüy in judicial decisions. Such a case should not be ove/ruled for unimportant or doubtful reasons. It should only be done to avoid greater wrong;;; or when justified by decidedly greater weight of authority. In Tiffany v. Glover, tho court held that “Tho sheriff, should have returned, that the properly abashed, was tho property of the defendant,” that “in no o<her wry could the court, legally know the fact, and until this fact, was before the court, could the court proceed against the land as tho land of defendant;” that, “As tho fact that it was attached as the property of the dofendurf, v;;s cseoniial to constitute a levy, such fact could not be established by extraneous evidence do hors tho return,” that tho attachment and sheriff’s return became monuments of title &c. Thus the technical accuracy of the sheriff’s return, is — 474 — made essential to the jurisdiction of the court over the land, and essential to the validity of the levy and attachment proceedings. In the case at bar, as in that of Tiffany v. Glover, the sheriff neglected to state in his return, that “ The property attached, is the property of defendant.” Should this omission be adjudged fatal to the levy and proceedings in attachment ; or should it be considered sufficient to take all power from the court and render the proceedings eoram non judice ? The majority of the court, feel themselves constrained to adopt the principle laid down in the dissenting opinion of Tiffany v. Glover. In that case, as in this, the attachment proceedings were collaterally attacked, and not in a direct proceeding. The question arises then, is the objection one of jurisdiction, or of mere irregularity. Is it void, or only voidable % If the. former, Tiffany v. Glover, should be sustained. If the lattei’, it should, on prixxciple and authority, be overruled. The writ of attachment was issued by a court of general jurisdiction. It was issued, not as an original proceedin g but as auxiliary and incident to other proceedings, in which the court was invested with general jurisdiction; hence the auxiliary process might be defective, and the principal cause not so. It was issued upon the requisite affidavit, and served by levy, as commanded, “upon the defendant’s property, in Lee county, Iowa.” The sheriff returned on the back of said writ, “Served the within attachxnent, by attaching ” &c., certain property desci’ibed in the retara. The sheriff was commanded by the writ, to attach the property of defendant in Lee county. It is obvious, that the power of the sheriff, was limited to the property of the defendant within the county of Lee; and that he could levy upon no other property, without violating the commands of the writ, and his oath of office. Will it be presuxned that an officer has violated his commands, trampled upon his official obligation, and trespassed — 475 — upon the rights of others ? Can any decision be legally sound that rests alone upon such negative presumptions? There is no legal maxim so free from exception, as omnia, gresumuntur rite et solemnitur esse acta dom probitur in eontrarium. Every thing is presumed to be legally and duly performed until the contrary appear. This is especially the case when the acts are of an official nature. There is no presumption of law more frequently indorsed by authority, than, that judges, jurors or sheriffs, do nothing carelessly, maliciously or without authority; that the decisions of courts of competent authority, are well founded, and that a court will not intend facts, inconsistent with the returns of a writ, in order to divest rights acquired under it. It will rather presume a levy to have been duly made in order to support those rights; 11 John 517. The authorities are uniform in support of the rule, that an officer will be presumed to have done his duty, as commanded, till the contrary is shown. C. Litt, 232; 3 East, 192; 10 ib., 216; 1 T. R. 503; 3 Black. Com., 371; 2 Black R. 852; 19 John, 347; 6 Peters, 729; 9 ib., 134; 10 ib., 478; 12 ib., 437 and 438; and other cases cited in the dissenting opinion of Tiffany v. Glover. But it is claimed that the jurisdiction of the district court in attachment proceedings, is inferior and limited, and that nothing can be intended in favor of its jurisdiction but that which is expressly alleged. It is true that a court of inferior or limited jurisdiction, either in fact, or in subject matter, must show in its records or its judgments that it has jurisdiction. But it need not detail all the facts and particulars which confer that jurisdiction. The jurisdiction of such a court should appear, but there is no particular form in which it should bo made to appear. If it appear upon the face of the proceedings that such a court had jurisdiction, it will be inferred that its proceedings were regular; but unless it so appear, or in other words, if the proceedings show affirmatively or inferrentially, that the inferior court had no jurisdiction, — 476 — no snch inteudmeni as to irregularity will bo made. Now, evon admitting tbo district court to be one of inferior and limbed jurisdiction as to attachment proceedings, does it follow that a defective return of ilio writ shows a want of jui’isdielioii ? Wo fully agree with a majority of the court, in Tiffany v. Glover, ilmt ilio jurisdiction of an inferior court over the proper iy attached, would depend entirely upon the legality of the levy. True, as-stated, it is the levy that gives iho court jurisdiction over the property. But the objection in this case, as in that, is not to tho levy. It is not protended in c'lhcr caso that the levy was defective ; nor that- tho property levied upon vac not ilio property of the defendant., but only that the shoriif neglected to state {hatillo: in his return. Where then is the defect? surely not hi the levy. The objection then, is only applicable to tho ivtu.n, and no one will pietend that the return ga-vc jurisdiction over the property. If defendant had no title in the land, it will not he protended that the sheiib'b return vofld. vest'the title in him. In this case, the title was in fact in defendant, Iflit the rerun) does not cr.prcscly state the fact. Can it therefore be inferred that the tiilo was in some one else? Unit ilio officer had violated the command of ilio writ, and subjected himself to an action of trespass, by levying .upon laud,; over which ¡he writ gave him no power? kliudy, such an intendment v>oi.ld do \lolencc to every ir.lc of presumptive evidence. No comt, eh her of general or special jm-iodicium, can be justified in p.esurning, without evidence, that one cf its officers lias been guilty of eidp; ble neglect of duty. Under the mW limited view of the powers of the dirt.IB temí in uitrohnient proceedings, when a writ appears prima ftu-is to have been so ¿cguhuly sued out, levied and returned, as was the writ In tho the present, case, it must be presumed that any minor details not specified in the returns or proceedings, were duly per formed. If, in a dhcet pioceeding, it had been alleged that an officer had violated an important duty entrusted to him, such direliction of duty could not — 477 — be presumed. The party alleging would have to prove tbe fact. 9 Peters, 134; 12 ib., 433. How then can it be presumed, in a collateral proceeding like tlic present, when no snch allegation is made, and when die very records of the case before the court show the feet that the sheriff did levy upon the property or the defendant as instructed ? In Tiffany v. Glover, wo think the court reversed the established order of presumption, by presuming, without any evidence, or circumstances to justify it, that the sheriff had not done his duty; that he had not levied upon the property of defendant. The principle is universal in its application that presumptions are allowed, where the facts to ho presumed are consistent with the duty, trust or power authorised, and tend to subserve the purposes of justice. But when the act would he unauthorised by the trust or cilice, or contrary to the duty of the party assuming the power, no such presumption can be admitted; 2 Comstock, 42; 3 Denio., 119; 5 Barb., 610. How then could the court in Tiffany v. Glover, presume that the writ was not served as directed; that, the sheriff’s return agreeably to the command of the writ is false, and that ho had violated. a known duty? This mus; have been presumed, or else the majority of the court must justify the decision, by assuming that the w ordo, “Tlie property of the defendant,” in attach! 'm.it returns are evsoniial ©lemon's to the jurisdiction of the court in attachment cases. But the court say that “Tire jurisdiction depends entirely upon a legal levy.” It cannot, be, then, that technical precision in the return could be regarded as a vital jurisdiction'll deuderatum. If the omission, complained of in the rcku'u, ; fe" hi bo deemed essential fo jurisdiction, we full; wh fet that the defect could not he supplied by prcs.n ipfioii alono. /«Ivory vital jurisdictional fact must be appai out, and while we cannot mei’ely presume the oxisVucc of such 0. fact, it follows with equal force, ih.4 - m cannot piotvnne against — 478 — it — even to divest an inferior court of jurisdiction; 4 Comstock, 378. So in the present case ; a levy being a vital jurisdictional fact, a court' could not properly resort to presumption alone to establish the fact of a levy; but as that fact is fully established by the sheriff’s return, without the aid even of presumption, and as the court was thus invested with jurisdiction, it might call in the aid of presumption to support a mere detail or incident connected with the levy. The essential fact being established that the levy was made, it. will be presumed that the sheriff obeyed the directions of the law in making that levy. When the law required service in the township, and the summons was silent as to the place of service, it was held that it would be presumed to have been served in the right township; 12 Mo., 143. So it has been held, that when the law requires process, to be read to defendant, or a copy to be delivered or delivered and certified, it will be presumed that they were done, although the return be silent in these particulars ; Barb., 525. Clearly, the defect in the case at bar, is not jurisdictional. It could not affect the powers of the court over the parties, the subject matter, or the property. It was a mere omission in the return, that might be amended on motion, or corrected according to the fact by the sheriff. The defect was not void, but at most only voidable, and although subject to correction in a direct proceeding, it is obviously not sufficient to invalidate rights and divest titles, when collaterally assailed ; 2 Hill., 518. To this conclusion, we arrive, even if it be conceded that the district court, under which the attachment proceedings were pending, was of limited and inferior jurisdiction. But that court was not thus limited in power. The general jurisdiction of the district court of Iowa has never been seriously questioned. What is there in a proceeding by attachment that should render the jurisdiction quoad hoe limited? Although exclusively statutory and severe in its provisions, still it is merely auxiliary to other — 479 — proceedings over which the jurisdiction of the court is in all cases general; and as antecedent to an attachment, there must be an indebtedness — a cause of action — in which the jurisdiction of the court is not limited. The writ of attachment is issued in aid of that jurisdiction. It is not the object of the writ to curtail and limit'that general power, but rather to augment and mate it more efficient and secure. It is intended to give a creditor a remedy in fact, as well as in form. Without this auxiliary process, the creditor could obtain a judgment, and subsequently an execution. But, with this additional power in the court, he can also secure himself against the fraudulent attempts of the debtor to remove his property beyond the control of an ordinary remedy. 1. We conclude then, that an attachment proceeding does not curtail or limit the jurisdiction of the court before which it may be pending ; and if before a court of general jurisdiction, as in this case, the same general intendments apply, in regard to the exercise of official duties, as apply to any other case of general jurisdiction ; and that as there appears to have been a writ, founded upon'the requisite affidavits, and as the officer appears to have complied with the mandate of that writ, by mating the required levy, that levy gave the court jurisdiction over the property attached. 2. That when a legal levy has in fact been made, as shown by the returns of the writ and the records in this case, a mere omission in the returns to state all the particulars connected with that levy, will not impair the levy itself, nor affect the jurisdiction of the court over the property attached. 3. That when such a writ commands an officer to attach the property of defendant, in a given county, and the officer proceeds accordingly, and shows by his returns that he attached certain property, describing it, but without calling it the property of defendant, it will be presumed, in the absence of proof or claims to the contrary, that the property attached was the property of defendant, and was bound — 480 — ■under the proceedings from the service of the writ. ¥e therefore conclude that the court below erred in not sustaining the title of Rowan under the attachment proceedings. Gao. Q. Dixon, for appellants. Reaves and Miller, for appellee. These conclusions are, we think, abundantly sustained by reason and authority, and as the authorities are sufficiently elaborated in the dissenting opinion in Tiffany v. Glover, it would seem unnecessary to refer to them more in detail, in this opinion Judgment reversed. Footnotes [(a)] See 3 9. Greene, 385.