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JULIA THOMPSON, TENANT, APPELLANT v. ALICE TOLMIE AND OTHERS

January 1, 1829

JULIA THOMPSON, TENANT, APPELLANT
v.
ALICE TOLMIE AND OTHERS, APPELLEES.



THIS case came up by appeal from the circuit court for the county of Washington, in the district of Columbia; where a verdict was take for the appellees, subject to the opinion of the Court, upon the following agreed case. 'The plaintiff, to prove title to the premises, (Lot No. 14 in Square No. 290, in the city of Washington,) showed a title in Robert Tolmie, regularly deduced by sundry admitted mesne conveyances from David Burnes, one of the original proprietors of city property, duly executed and acknowledged and recorded to the said premises, accompanied by possession thereof and payment of taxes thereon, by the several grantees, according to the titles, down to the year 1805; when the said Robert Tolmie, the last grantee in whom the said title had vested, departed this life intestate, leaving Margaret, Alice and James Tolmie, his only three children and heirs at law, infants at the time of his death, under the age of 21 years; that the said infants continued in possession of said premises until some time in the year 1814; that Margaret was the eldest of said infants, and that in the year 1812 she intermarried with one Francis Beveridge, and has since died, leaving three children, to wit: Margaret Beveridge, Hannah Beveridge, and James Beveridge, who are named among the lessors of the plaintiff; that James Tolmie aforesaid also died after the death of said Margaret, his sister, intestate, under age and unmarried, prior to the commencement of this suit, leaving Alice aforesaid his sister and the said three children of Margaret his heirs at law. And the plaintiff also proved that the said Margaret Tolmie was 17 years of age at the time of her said marriage, which was in 1812, and was an infant under the age of 21 years at the time of the sale made by the commissioners hereinafter named; that her husband, the said Francis Beveridge, some time in the year 1814 or 1815, went away, leaving his family residents of the city of Washington; that after some time he returned and lived with his family, and again went away and has never since returned, and is generally believed to be dead by his family and friends; about three or four years age he was heard of and was then sick, and has never been heard of since. 'The defendant has had possession of the premises since 1814, when she became the purchaser thereof (by her then name Julia Kean) at a public sale made by certain commissioners appointed under the act of the assembly of Maryland of 1786, c. 45, to direct descents. She entered in pursuance of that sale, claiming the lot under it, and produced in evidence, the proceedings of the commissioners, which are made part of the case agreed.'That record contains a petition in the usual form for partition of the real estate of Robert Tolmie, which purports to be the joint petition of Francis Beveridge and Margaret his wife, and of Alice Tolmie and James Tolmie, infants, by Margaret Tolmie, their guardian, mother, and next friend. It states that Robert Tolmie died seised, leaving Margaret his widow, and also the following children, his heirs at law, viz. 'Margaret, since intermarried with Francis Beveridge, said Alice Tolmie and James Tolmie, which said Alice and James are infants under the age of 21 years.' This petition was filed on the 15th of June 1814, and a commission issued on the same day. On the 17th of June 1814, the commissioners reported that the estate consisted of a single lot, and could not be divided without loss, &c. and valued the same at $1400. Whereupon, at June term 1814, the court ordered the property to be sole at public auction on ten days' notice, one-fourth part of the purchase money in cash, and the residue at three, six and nine months, taking bond with good security to the heirs according to their several interests. On the 5th of July 1814, F. Beveridge and wife, and Alice and James Tolmie by their mother, gave notice in writing that they did not elect to take the property at the valuation. On the 3d of July 1818, the commissioners reported that they had sold the property, on the 30th of July 1814, to the appellant for $1105, on a credit of three, six, and nine months, one-fourth being paid in cash, and that she gave due security for the payment of the purchase money, all which has been duly paid; they therefore requested that the said sale might be ratified, and that they might be directed to distribute the proceeds, and make a conveyance to the purchaser. On the same 3d of July, the court 'ordered that the report of the commissioners returned and filed in this cause be, and the same is hereby ratified and confirmed, so soon as proper receipts of the parties are produced before one of the judges of this court, and that then the commissioners or a majority of them make a sufficient deed in fee to the purchaser.' On the 13th of June, 1816, the majority of the commissioners made a deed to the appellant, which recites, that by a decree of the circuit court, sitting as a court of chancery, David Appler, &c. were appointed commissioners, and they or a majority of them were authorised and empowered to sell said lot, the real estate of Robert Tolmie deceased; and that in pursuance of said decree, the said Appler, &c. did, on the 30th of July 1814, sell the same to the appellant for $1070; that the said purchase money had been paid, and that the said Appler, &c. were authorised and empowered by said decree to execute a conveyance of the same, and accordingly the said Appler, &c. conveyed said lot to the appellant and her heirs. The statutes are the acts of assembly of Maryland of 1786, c. 45, s. 8; 1797, c. 114, s. 6; and 1799, c. 49, s. 3, 4. This ejectment was brought by Alice Tolmie, and by the three infant children of her sister, Margaret Beveridge; who, since the death of the said Margaret and of the said James Tolmie, have claimed to be entitled to the lot, as heirs of the said Robert Tolmie. The defendant entered under, and relied on the commissioners' sale above, which the lessors of the plaintiff contended was void. 1. Because none of the heirs of Robert Tolmie had arrived at age at the time of the sale; the act of 1786 expressly prohibiting a sale until the eldest was of age. 2. Because the sale was never ratified by the court. 3. Because bonds for the purchase money were not taken payable to each representative, according to his proportionable part of the net amount of sales. And 4. Because the deed does not recite the commission and all the necessary proceedings thereon to show a good title. Mr Wilde and Mr Jones, for the appellant, argued: 1. That the sale of the property of Robert Tolmie, was a judicial proceeding; made in a court of competent jurisdiction, acting as a court of chancery, and proceeding in rem, in the proper exercise of its authority; and was, therefore, conclusive upon all the world. Gelston vs. Hoyt, 3 Wheaton, 246. But if it were otherwise, the law is, that a sale made under an erroneous judgment is always deemed valid; and in Maryland, it has been held, that a decree in equity for the sale of lands, to pay debts, or for distribution, is a proceeding in rem, and cannot be questioned, 6 Harris & Johns. 23. The principle of law is, that if the jurisdiction of the court attaches to the subject matter, the proceeding cannot be examined in a collateral manner in another court. If error exist in the proceedings, by the ministerial acts of those who are the agents of the court in the same; although it is admitted those acts should not be strictly conformable to the law of the proceeding, those errors can only be examined before the tribunal from which the authority of the agents emanated. So far as the purchaser of an estate is concerned, it is entirely immaterial whether the agents of the court did their duty; the only remedy is by application to the court. 8 Johns. 361. 1 Cowen, 622. 13 Johns. 97. In those states where the sales of estates of intestates are under the authority of the courts of probate, the proceedings of such courts have been held conclusive. 2 Doug. 312. 1 Connecticut Rep. 469. 4 Day, 221. The purchaser is entitled to claim that all the proceedings shall be presumed to be regular; and if any were not so, proof of the irregularity should be given. When the court ratified this sale, the conclusion is, that before the same was done, all the intermediate steps had been examined, were approved, and were regular. Mr Key, for the defendant, stated that the title set up by the plaintiff, was derived from particular statutes of Maryland, and the validity of the sale depended on the conformity between the proceedings, and the requisites of the law. This had not been the course in the case before the court. He denied that the sale was by a judicial decree of a court; but by commissioners, under the special statute. The sale having been irregular, was therefore invalid, on the authority of the cases in 4 Wheaton, 79. 3 Cranch, 331. 2 Wash. 382. The proceedings did not derive their authority from the general powers of the court; and the circuit court acted in this case under the special limited powers granted by the Maryland law. It was therefore necessary that all the facts upon which the power was exercised should appear. Cowper, 528. 5 Harris and Johns. 42. 130. 1 Peters, 340. 6 Harris and Johns. 258. But if the commissioners had power to make the sale, the ratification of the same by the court is essential. No ratification was given, no receipts of the purchase money produced; for the proper evidence of these, is their recital in the deed of conveyance.

The opinion of the court was delivered by: Mr Justice Thompson delivered the opinion of the Court.

This was an action of ejectment brought in the circuit court of the district of Columbia, in the county of Washington, to recover possession of lot No. 14 in square No. 290, in the city of Washington. Upon the trial, the lessors of the plaintiff produced, and proved by sundry mesne conveyances, a title to the premises in question, from David Burnes, one of the original proprietors of city property, to Robert Tolmie, who in the year 1805 died intestate. And it was also proved that the lessors of the plaintiff, are the heirs at law of Robert Tolmie.

The defendant claimed title to the premises in question, under a purchase made at a commissioners' sale, by virtue of certain proceedings, had in the circuit court, pursuant to the provisions of the laws of Maryland relative to a division of the real estate of intestates in certain cases. Objections were made to the validity of these proceedings, and a verdict taken for the plaintiff, subject to the opinion of the court upon a case agreed. The court below decided that the commissioners' sale was void, and rendered judgment for the plaintiff for two thirds of the premises in question, and the case comes now before this court upon a writ of error.

The case, in the circuit court, turned entirely upon questions arising upon the proceedings under which the sale was made. It was assumed on the argument by the counsel on both sides, that the circuit court in which these proceedings were had, was vested with the same powers in this respect, in relation to intestates' estates in the county of Washington, that is possessed by a county court in Maryland on this subject, over lands lying within the county.

The exceptions taken to the proceedings were,

1. Because none of the heirs of Robert Tolmie were of age at the time of the sale.

2. Because the sale was never ratified by the court.

3. Because bonds for the purchase money were not taken, payable to each representative, according to his proportional part of the net amount of the sale.

4. Because the deed does not recite the commission and all the necessary proceedings thereon, to shew a good title.

The counsel for the defendant in error have, in the argument, considered these proceedings open to the same examination and objections, as they would be in an appellate court, on a direct proceeding to bring them under review. This, however, is not the light in which we view the questions now before us. These proceedings were brought before the court below collaterally, and are by no means subject to all the exceptions which might be taken on a direct appeal. They may well be considered judicial proceedings; they were commenced in a court of justice, carried on under the supervising power of the court, and to receive its final ratification. The general and well settled rule of law in such cases is, that when the proceedings are collaterally drawn in question, and it appears upon the face of them, that the subject matter was within the jurisdiction of the court, they are voidable only. The errors and irregularities, if any exist, are to be corrected by some direct proceeding, either before the same court, to set them aside, or in an appellate court. If there is a total want of jurisdiction, the proceedings are void and a mere nullity, and confer no right, and afford no justification, and may be rejected when collaterally drawn in question.

The first inquiry therefore is, whether it sufficiently appears, upon the face of these proceedings, that the court had jurisdiction of the subject matter. The law of Marryland under which they took place, (act of 1786, ch. 45, head 8) declares that in case the parties entitled to the intestate's estate cannot agree upon the division; or in case any person entitled to any part be a minor; application may be made to the court of the county where the estate lies, and the court shall appoint and issue a commission to five discreet men, who are required to adjudge and determine whether the estate will admit of being divided without injury and loss to all the parties entitled; and to ascertain the value of the estate. And if the estate can be divided without loss or injury to the parties, the commissioners are required to make partition of the same. And if they shall determine that the estate cannot be divided without loss, they shall make return to the county court of their judgment, and the reasons upon which the same is formed; and also the real value of the estate. And if the judgment of the commissioners shall be confirmed by the county court, then the eldest son, child, or persons entitled, if of age, shall have the election to take the whole of the estate, and pay to the others their just proportion of the value in money; and on the refusal of the eldest child, the same election is given in succession to the other children, or persons entitled, who are of age; and if all refuse, the estate is to be sold under the direction of the commissioners, and the purchase money divided among the several persons entitled, according to their respective titles to the estate. But if all the parties entitled shall be minors at the death of the intestate, the estate shall not be sold until the eldest arrives to age, and the profits of the estate shall be equally divided in the mean time.

The principal objection raised to the title of the defendant below, and indeed the only one that presents any difficulty is, that upon the trial of this cause it was proved, that none of the heirs of Robert Tolmie had arrived at age when the sale was made; and how far this will affect the sale will depend upon the question, whether the proceedings on the partition, when brought up in this collateral way, were open to an inquiry into that fact. Did the jurisdiction of the court over the subject matter of the proceedings depend upon that fact; or if true, was it matter of error, and to be corrected only on appeal?

It is to be borne in mind, that no such fact appears on the face of these proceedings; but on the contrary, from what is stated, it may reasonably be inferred that it appeared before the court, that one of the heirs was of age. The petition presented to the court for the appointment of commissioners, and which was the commencement of the proceedings, in setting out the parties interested states, that Robert Tolmie died intestate, leaving the following children and heirs at law; viz. Margaret, since intermarried with Francis Beveridge, and Alice Tolmie, and James Tolmie, which said Alice and James are infants, under the age of twenty-one years. Why specially allege that these two were minors if Margaret was also a minor? Every reasonable intendment is to be made in favour of the proceedings; and their allegation in the petition will fairly admit of the conclusion, that the petitioners intended to assert, that Alice and James only were under age. The age of the heirs, was, at all events, a matter of fact upon which the court was to judge; and the law no where requires the court to enter on record the evidence upon which they decided that fact. And how can we now say, but that the court had satisfactory evidence before it that one of the heirs was of age. If it was so stated in terms, on the face of the proceedings, and even if the jurisdiction of the court depended upon that fact; it is by no means clear that it would be permitted to contradict it, on a direct proceeding to reverse any order or decree made by the court. But to permit that fact to be drawn in question, in this collateral way, is certainly not warranted by any principle of law.

But, independent of these considerations, the jurisdiction of the court over the subject matter of the proceedings sufficiently appears. It did not depend on the fact that one of the heirs was of age. But according to the express terms of the act, it attaches when the ancestor dies intestate, and any of the persons entitled to his estate is a minor. The petition states that Robert Tolmie, late of the county of Washington, died intestate, seised in fee of lot No. 14 in square No. 290, leaving Alice Tolmie and James Tolmie, two of his children, and heirs at law, under the age of one and twenty years. And whether Margaret Beveridge, his other child and heir, was of age or not, was immaterial, as it respected the jurisdiction of the court. That fact could only become material, in case the land was not susceptible of a division, without injury or loss to the parties. If it could be divided without injury, the commissioners were required to divide it, although all the heirs were minors. The materiality of the inquiry, whether any one of the heirs was of age, was altogether contingent, and might ...


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