Berrett v. Oliver

Dorsey, Judge, delivered the opinion of the court. The preliminary question which the appellees have raised, predicated upon the idea, that this is a bill of review, seeking the reversal of the Chancellor’s decree, on the ground of error in law patent on the face of the decree, denies to the appellant the privilege of prosecuting this appeal, upon the principle, that this decree of dismissal, whether right or wrong, does not materially prejudice or conclude any of his valuable rights. In that innocent, immaterial light, we cannot regard it, but believing that it does foreclose and settle rights, highly important to the interests of the appellant, we deem it a fit subject for revision, in an appellate tribunal. Several incidental questions have been discussed, which we will advert to, before we proceed to the examination of the main points in the cause. It has been urged by the appellees, that the appellant cannot obtain the relief she has asked for, because of the insufficiency of the averments in her bill. That if she seeks to vacate the decree of 1815 on the ground of fraud, mistake, or surprise, such fact must distinctly appear in the statements of the bill. To this it has been replied, that by the act of 1832, ch. 302, sec. 5, all objection to the sufficiency of averments of the bill, shall be made by exceptions filed in the cause, and no point shall be raised, noticed, determined or acted upon in the court of Appeals, unless it shall plainly appear in the record, that such point had been raised by exceptions, in the court of Chancery, and that the exceptions in this respect filed by the appellees, were so general and indefinite, that they should be wholly rejected, as in no wise complying with that particularity and — 201 — certainty, which it was the design of the Legislature, that such exceptions should assume. We should feel no hesitation in so regarding these exceptions, if taken to a bill in Chancery in the ordinary form. But to the present bill, which its advocate has refused to class under any definite head of bills in Equity; but has assigned to it, as many characters as the chameleon assumes colors, it would be unreasonable to require exceptions more discriminating and specific, than those used on the part of the appellees. In support of this bill it has been insisted, that it may be regarded as an original bill, seeking to remove a void or voidable incumbrance or conveyance, hanging as a cloud over the title of the appellant; or as an amended bill, or as a supplemental bill; or as a bill of review without leave, or as an original bill seeking to avoid certain deeds of conveyance, and a decree of the court of Chancery, as being obtained by fraud, or by mistake, or by surprise. If this bill be so peculiar in its structure, so multifarious in its character, as that it may be viewed in all the various aspects which have been ascribed to it; more specific exceptions, to the insufficiency of its averments, than those which have been taken, could not in reason be demanded of the appellees. Had the bill been unequivocal in its character, and distinctly disclosed the grounds on which its claim to relief was predicated, then according to the spirit and true intent, of the act of 1832, would the question of the sufficiency of the averments in the bill be excluded from our consideration, and the appellees would have lost the benefits contemplated by their exceptions, except those which relate to the mortgage debt claimed by Inloes’ representatives. In relation thereto, the exceptions to the averments in the bill are sufficiently pointed. A similar objection has been taken to the appellees exceptions to the sufficiency of the evidence adduced in support of the allegations in the bill. But on this score, the appellant has no reason to be dissatisfied; nor have the appellees los* any thing from the want of greater particularity. The act of Assembly makes it neither the interest nor the duty of the — 202 — appellees, to raise exceptions to the sufficiency of the evidence on the part of the appellant. Instead then, of regarding the exceptions in this case as uncandid, and evasive, they ought rather to be viewed as the gratuitous and friendly suggestions, of a frank and liberal adversary, pointing out to his enemy the assailable point of his position, that before the battle commenced, he might take measures to fortify and strengthen it. The act of 1832, ch. 302, although it does not require any exception to the want or insufficiency of evidence, does restrain parties in this court, from making any objection to the competency of witnesses, or the admissibility of evidence, unless the point were raised by exception in the court below. No exception was, in this cause, taken to such competency or admissibility, and consequently the objection here taken, to the admissibility in evidence, of the schedule of property, and list of debts due to James Inloes, the insolvent petitioner, cannot avail the appellees. Nor would a general exception in the court below to the competency of the appellant’s witnesses, and the admissibility of his evidence, better their condition. To render such exception available, it must be sufficiently definite to apprize the opposite party of the particular witnesses, or evidence designed to be excepted to. An attempt has been made to shut out the proof and defence opposed by the appellant, to the mortgage debt of James Inloes (the payment whereof is insisted on by his heirs, trustee, and administrator) on the ground, of a want of averment in the bill, that the debt has been satisfied or paid, or is not still due and owing. And this objection we think well founded, as far as concerns the heirs of James Inloes. A part of the relief prayed for is, that the deed of 1813, from Berret and wife, and Sarah Chew O’Donnell to James Inloes, be cancelled. To obtain it, some allegation of its payment or discharge, is indispensable. The exceptions to the averments in the bill, pointed with sufficient certainty to this defect, and therefore, all the proof taken and relied on by the appellant as a bar to that claim, must be considered as out of this case; being evidence of a fact not in issue in the cause. As curing — 203 — .this obvious imperfection in the bill, in respect to all the appellees, it is stated that the amended bill contains this necessary allegation. But that amended bill, it must be remembered, has never been answered by Inloes’ heirs, and consequently as to them, can produce no such effect as has been imputed to it. The attempt, however, of the heirs of Inloes, to exclude from the court the investigation of the merits of this claim, can avail them nothing. In the eyes of a court of Equity, they are mere nominal parties, having no beneficial interest in the subject. Against the trustee and administrator of James Inloes, the only party substantially interested in contesting this matter, the requisite allegation has been made in the amended bill, and the equity and validity of this claim is now fairly submitted for determination to this court. Is this alleged mortgage debt, if unpaid, a subsisting lien on Mr. Berrett’s real estate ? is the next question to be examined. It originated under the deed of 1813 from Berrett and wife, and Sarah Chew O’Donnell, to James Inloes. What estate in the realty of Mrs. Berrett passed by that deed, is first to be ascertained. If it be true, as stated in the bill, that Berret, and Mary E. O’Donnell were, at the time of the execution of the deed to John Oliver in 1809, under the age of twenty-one years, and the deed of marriage settlement on that account voidable, (of the correctness of which conclusion however, we mean to express no opinion) then the deed of 1813, transferred to Inloes during the life of Berret, the legal title to the real estate conveyed to John Oliver ; hut by reason of the defect as to privy examination in the acknowledgment of that deed, which prevented its operation at law as a legal conveyance, and thereby avoiding in toto the deed to John Oliver, it passed no legal estate in the reversion to Inloes, and left the same in John Oliver, subject to the trusts specified in the marriage settlement. According to those trusts, Mrs. Berrett was entitled to the property as her separate estate; on which as such, to the extent of her beneficial interest therein, James Inloes had in equity, a specific lien for the debt, intended — 204 — to be secured by the deed of 1813. See Brundige and al, vs. Poor and wife. 2 G. and J. 1. Has this lien been paid since or discharged, is the next enquiry? Upon this subject we entertain no doubt. We think that abundant evidence, that this claim has been satisfied, is to be found in the proofs, and circumstances of this case; and particularly in the testimony given by Ephraim Smith, Robert R. Richardson, John Elder, and Catharine McDowell; in the great length of time this claim has been permitted to sleep, the large amount of money subsequently received by James Inloes for Mrs. Berrett; and in the intrinsic evidence furnished by his list of debts, filed with his petition in 1818, when he applied to Baltimore County court, for the benefit of the insolvent laws of Maryland. This pretended mortgage debt of Inloes, therefore, furnishes no obstacle to the relief sought by the appellant. Looking to the appellant’s bill as seeking relief against the decree of the Chancery court of 1815, on the ground of fraud, it cannot for a moment be sustained. It is utterly destitute of the most essential ingredients of such a bill; it neither charges fraud, nor states facts from which an imputation of fraud could possibly arise ; and if it did, there is not a shadow of proof to sustain it. There is also a total absence of ¿11 proof, that this decree was procured by either mistake or surprise. So far from these grounds of impeaching the decree being inferrible (as has been contended) from the fact of the property’s being settled on Mrs. Berrett for life only, and on her children after her death; it is one of the strongest circumstances that could be adduced, to recommend it to the favour and protection of this court. It is a settlement in this respect, bearing on its face intrinsic evidence of its correctness, wisdom, and expediency, and conforms to the letter, to that settlement of the property of a feme covert, which a court of Equity always makes, where its powers over the subject are brought into action, by the husband’s seeking through its aid, the recovery of the wife’s property. Nay, so strict is the chancery rule in England, on such an occasion, — 205 — that the court will not lend its assistance in securing and settling the wife’s property on herself, unless she consent that it be secured to her children after her death. Johnson vs. Johnson, 1 Jacob and Walker 455. Has the appellant a right to the relief she seeks, viewing her bill, as a bill of review without leave, asking for the reversal of the chancellor’s decree for error of law appearing on the decree itself? is the next question we propose to examine. The act of 1816 ch. 157, entitled, “an act for the relief of Mary E. Berrett of Baltimore county,” it is insisted by the appellant’s solicitors, has opened the door for such a bill of review, and rendered it the appropriate mode of seeking the relief they desire. Is such the effect of this act of Assembly? Was it so designed by its framers? It contains but a single section, and is in these words: “ Be it enacted by the General Assembly of Maryland, that the deeds which were executed by Mary E. Berrett and Joseph S. Berrett her husband (upon their marriage) to John Oliver, of the city of Baltimore, and after their marriage to the said John Oliver and Sarah Chew O’Donnell, and also to James Inloes ; making a settlement of the estate real and personal of the said Mary E. Berrett in trust, for the uses and purposes therein mentioned; and also the several decrees of the chancellor of Maryland, and the County court of Baltimore county, in and upon the premises, and appointing successively James Inloes, and finally Gabriel Paul, trustees in the premises, in the place of the said John Oliver, and Sarah Chew O’Donnell, be and the same are hereby declared to be null and void; so far as the same extend to vest the property of the said Mary E. Berrett in trust, and that all the estate of the said Mary E. Berrett, which has not been sold and disposed of by virtue of, and under the authority of the decree aforesaid, and which is now vested in said Gabriel Paul in trust, be, and the same is hereby vested in the said Mary E. Berrett in the same manner, and under the same •conditions, and none other, as married women can and do, by the laws of this State, hold and enjoy property of the same — 206 — description, Provided, and it is hereby expressly declared, that nothing in this act, shall in any way or manner, affect the right of any other .person in and to any part of the said property, and that this act be construed only to render void and annul the trust now existing as aforesaid, and to leave the said Mary E. Berrett, with respect to that part of her property now held in trust, in the same manner as if no such trust had ever existed.” Construing this act of Assembly as all other Legislative enactments must be construed; according to the declared will and obvious design of the Legislature; can the human mind be brought to the. conclusion, that the intention of the General Assembly in passing that law, was to authorize the filing of a bill of review, for the purpose of reversing the decree referred to ? Is there a sentence or word in the law, which could suggest the idea; that in passing it, the Legislature intended, or contemplated, any subsequent judicial proceedings, to try the validity of the decrees and deeds which it mentions? If there be, it requires keener optics than we possess, to discern it. To us their design is too manifest to admit of a momentary doubt. They intended to do what their language unequivocally imports ; by legislative enactment, to vacate and annul the deeds and decrees on which they were acting; and to divest the rights and title, of the other persons by them named in the real and personal estate held by Mary E. Berrett before the date of said deeds and decrees, and to reinvest the same in her in the same manner, as if those deeds and decrees had never existed ; subject to the proviso, contained in the act of Assembly. Can the Legislature exercise such a power? Unquestionably not. This act of Assembly, is so direct and obvious a violation of our declaration of rights (a part of the constitutional code of Maryland) which declares, “ that the legislative, executive, and judicial powers of government ought to be forever, distinct from each other,” and of the 10th section of the constitution of the United States, which provides, that no State shall pass any laAV impairing the obligation of contracts, that to prove its unconstitutionality needs neither argument, illustra — 207 — tion, or authority. We regard, therefore, this act of Assembly as utterly null and void; and wholly inoperative, upon the deeds, decrees, and rights of the persons mentioned therein. But suppose there could be ascribed to it, that qualified effect, which has been imputed to it, by the appellant, viz: that it only operated upon the remedy, by which the rights of the parties were to be adjudicated; and so far removed from Mrs. Berrett and her husband, the conclusiveness of the decree of 1815, as to authorize its reversion, by such a bill of review as that now under consideration. Within what time must that bill have been filed ? In nine months after the passage of the act of Assembly, if preferred by Berrett and and wife; and within nine months after the death of Berrett, or the knowledge of that event had reached her, if filed by Mrs. Berrett after discoverture; that being the time fixed by the act of Assembly, limiting appeals from decrees and orders of the court of Chancery. The present bill was filed more than two years after information of Berrettts death was communicated to the appellant. It is alleged,that this objection does not arise in this case; the appellees not having relied on it in their answer. This suggestion, if entitled to any weight, is answered by the fact; that this proceeding is in part against infants, and it is the duty of a court of Equity, to see that their rights are not prejudiced or abandoned, by the answers of their guardians. But there is nothing in this objection. It is not the ordinary case of limitations or presumptive bar from lapse of time; the determination of which may depend upon the proofs in the cause. But is a case, where a plaintiff’ comes before you, asking for relief, and shews upon the face of his bill, that you have no jurisdiction over the subject. Against the influence of such a defect, you cannot shut your eyes, whether the defendant rely on it as a defence, in his answer, by plea, or on demurrer, or not. It is a matter of law, of which the court must judicially take notice. It admonishes them not to proceed in the trial; that they have no jurisdiction over the subject matter thus illegally attempted to be brought before — 208 — them. And they dispose of the question in precisely the same manner, that an appellate court would do, if a case were brought before them, in which the appeal had been taken, long after the time limited by law for the granting of such appeals. In a proceeding like the present, the Chancery court is in fact an appellate tribunal, called on to review its own decree, in a case where the application for its aid, shews the absence of all appellate power in the court. Edwards vs. Carroll, 5 Bro. P. C. 466; Foster vs. Hodgson, 19 Ves. 180; and Mitf. P. C. note (e) 212. The views we have taken of this case, render it unnecessary for us to examine the several grounds urged in the argument, for the reversal of the decree of 1815. Looking to the appellant’s proceeding, as a bill of review without leave (and in no other character, more favourable to her can it be regarded) we cannot do otherwise than affirm the Chancellor’s decree, dismissing the bill, with costs in both courts. DECREE AFFIRMED WITH COSTS IN BOTH COURTS.