Dousman v. Hooe

3 Wis. 466 | Wis. | 1854

By the Oourt,

Smith, J.

This is an appeal from an order of the Circuit Court of Crawford county in equity, after final decree, upon the petition of the defendant Emilie Ilooe for a re-hearing, granting leave to file a supplemental bill in the nature of a bill of review, &c.

The order made in this case must be reversed. This was a petition for a rehearing, and upon such a petition the circuit judge made an order granting the defendants leave to file a supplemental bill in the nature of a bill of review. Whether or not such an order could be made upon a petition for rehearsing merely, this petition does not authorize it. A supplemental bill in the nature of a bill of review, can only be filed to bring in new matter, discovered since publication in the original cause, where the decree has not been enrolled. Story's Eq, Pl. § 425, 426. The facts newly discovered must be material and pertinent, and must be set out- in the petition, so that the court may judge of their materiality, and perti-nency. But the petition in this case does not state any newly discovered evidence upon which it is based-All the causes or reasons which it presents, are for alleged errors appearing on the face of the record.

A supplemental bill in the nature of a bill of -review can only be filed before enrollment of the decree, and the petition should state whether the decree has been enrolled or not. Story's Eq. Pl. 325, et. seq.

After a decree has been enrolled, it can only .be modified .of reversed upon a bill of review, and a supplemental bill in the nature of a bill of review, or a bill in the nature of a bill of review cannot be permitted.

All of these bills can only be filed on leave of court for that purpose granted.

For these reasons, it is apparent, that the order made in this case, is not in conformity with the practice in a court of equity, and cannot be sustained.— But as we understood the parties to desire the opinion and decision of this court upon the right of the defendant Emilie Hooe, to a rehearing in any mode, or by any proceeding, and as the case was argued with that view, we have proceeded to consider that question upon the merits, as set forth in the petition.

The petition is based upon errors apparent upon the face of the decree, and the first error assigned, is:

“It does not appear in, and by said decretal order, that the said District Court considered any particular thing proved, upon which said decree is founded, nor doth said decree set forth any fact upon which the same is based.”

It is not the practice in many of the states, to set in the decree the matters proved on which the (jecree nor to recite the pleadings and pro of. jg p. practice of the courts of the United States. Story's Eq. Pl. 321. Dexter vs. Arnold 5 Mason 303. Whiting vs. Bank U. S. And this practice is now sanctioned by express rule. The pleadings and proofs are now considered matters of record, and the necessity for such recitals in the decree no longer exists, and therefore are of no practical utility.

The next objection is, “It appears on the face of the decree, that some of the defendants named in said bill, viz: Joseph Rolette, Jr., John H. Manahan, and Jean F. Rolette, are not parties to, or named in said decree.”

The decree is very brief. None of the defendants in the suit are particularly named in it, but the decree vests the title to lot 3 in the complainant, and then proceeds to declare “the defendants” to be “forever barred <fec. Talcing the decree as only part of the record, of which the pleadings, and other proceedings also help to make up a part, the term “defendants” in the decree must be held to comprise all those who are made parties as such to the suit, and as the persons named in the assignment of errors are thus made parties, we think the objection un tenable. •

To the third error assigned, to-wit, that the prayer of the complainant for an amount of the rents, &c., is not passed upon, it is sufficient to say, that, if the complainant waives it, the defendant is not injured thereby, an$ it is no gro und of error.

The fourth error assigned is in these words, “It is apparent upon the face of the said decree, that Hercules L. Dousman is named as one of the complainants in said cause, whereas by the record of said cause it no where appears that the said Hercules L. Dousman was one of the complainants, but that he appears to be named in said decree by reason of his intermarriage with the said Jane, whereas by the law of the land the said Hercules L. could only have been made a co-plaintiff by bill, subsequent to the said bill, and subsequent to the said marriage.”

It appears from the papers returned here as the record in this cause, that at the time of the com-mencemet thereof, the complainant Jane F. Rolette, was a femme sole, and, that during the pendency thereof, she intermarried with the said Hercules L: Dousman.

The suit was commenced at or before the April Term of the court, A. D. 1843. At the May term, A. D. 1854, on the 5th day thereof, there is the following entry of record:

“This day came the complainant by her solicitor, and gave the court here, to understand and be informed, that since the last term of this court she has intermarried with Hercules L. Dousman. And thereupon the said Hercules L. Dousman, the husband of the said complainant by his solicitor, moves the court to be admitted as a party to prosecute this suit with his wife, the said complainant, in like manner as if he had originally joined in the said suit, which motion is continued for argument.”

And it further appears from the record, that on the next day, to-wit on the 6th day of said term of May 1845, the following entry was made: “And now comes the said defendants by their solicitors, and give the court, here to understand, that since the last term of this court the said Jane F. Rolette, who was the gQ|e compiaxnant in this suit, has intermarried with one Hercules L. Dousman, and by the laws of the land regulating proceeding in chancery, the said suit was abated. The said defendants now move the court for a rule on the said plaintiff to file a bill of revivor, to revive the said suit, in the name of the said Hercules L. Dousman and Jane F. his wife as par - ty plaintiff by the day of next, or in default thereof, that the said suit may be dismissed.”

Argument was heard upon these motions, and the same were continued under advisement until the 9th day of the said term of May, 1845, when the following entry was made:

“ This day come the parties aforesaid, by their solicitors, and it is ordered by the court, that' the motion of Hercules L. Dousman, the husband of the said complainant, heretofore made herein, to be admitted as a party to prosecute this suit, be sustained ; and it is ordered by the court that the said Hercules L. Dousman be admitted as a party to prosecute the said suit, with the said complaiuant, in like manner as if he had originally joined in the suit,” <fcc.

It must be acknowledged, certainly, that this is a novel mode of reviving a suit in chancery. But it is probable that the party and the court construed the statute for the revival of suits at law, to extendió the practice in equity. But, however this may be, the order was made, admitting the husband as a party, and the defendants afterwards appeared, and proceeded in the suit, and made the same defence that they would have made, if the cause of abatement had not occurred. We do not say that this was a waiver of the objection, bat it was a matter of abatement merely, and. as such is not ground for a bill of review, or a supplemental bill in the nature of a bill of review, or for a re-hearing. Story's Eq. Pl. § 44; Milf. Pl. by Jeremy 85 ; Cooper's Eq. Pl. 95 ; 6 Bro. Parl. R. 289.

Another error assigned is, “That said decree is variant from the case made by the bill, and is also variant from, and not in conformity to, the prayer in said bill ” Without' recapitulating here the case made by the bill, and the decree rendered, after a full examination thereof, we do not perceive any variance which affects the validity of the decree. The decree is’not as full and comprehensive as the prayer of the bill, but the material objects are accomplished by it, and in no respect can the petitioner be injured by any omission therein.

To the 7ih error assigned, it may be answered that the alleged inconsistency of the decree with itself is not apparent. The language of the decree is, “ that the fee simple of and in farm lot No. 8, as the same is set forth and designated on the connected map of private land claims of Prairie du Chien, in the county of Crawford, Wisconsin Territory, containing,” &c., “ be and the same is hereby vested in the said complainant, Jane F. Dousman, and her heirs,” <fcc. ■ The succeeding portion of the decree proceeds to divest the defendants, and all other persons claiming under them (the defendants,) by virtue of the patent issued the 12th day of October, 1820, of all right, title, estate, cfcc., in or to the said farm lot,- No. 3.

The right of the complainant is based upon several acts of Congress, the first of which necessary to be noticed is, an act entitled “An act to revive the powers of the commissioners for.ascertaining and deciding on. claims to land in the District of Detroit, an(j f01. settling the claims to land at Green Bay and Prairie du Chien in the territory of Michigan" approved May 11, 1820. U. S. Stat. at large, Vol. 3, p. 572.

' This act authorized and empowered commissioners appointed for that purpose, to examine and decide-on claims to lands in the districts aforesaid, and made, it their duty to transmit a report and transcript of their decisions to the Secretary of the Treasury, by him .to be laid before Congress.

The commissioners appointed under this act, made their report to the Secretary of the Treasury as required by the act before mentioned, awarding said lot No. 3, to Jane F. Rolette, the wife of Joseph Ro-lette, and by an act of Congress approved February 21, 1823, the report was confirmed. This proceeding of Congress must be regarded as the source of title. By it all the title of the United States was conveyed to-Jane F. Rolette. The plain construction of the act confirming' the report of the commissioners is, that Congress intended to confirm the title to lot No. 3, in Jane F. Rolette. Uut the patent issued to Joseph Rolette, her husband, and this raises the question whether the act of confirmation of the report oí the commissioners, by Congress, vested the title to the land, or whether the same vested by virtue of the patent subsequently issued by the President.. This is a question which may be considered as settled, by the adjudications of the courts of the United States, to whose jurisdiction it may be considered as more peculiarly addressed.

In the case of Grignon's Lessees vs. Astor et al., 2 Howard U. S. Rep. 319, this same question arose? under the same acts of Congress as those onwhich this title of the complainant is based. In that case the court say, “ It has been contended on the part of the plaintiff’s counsel, that the sale in the present case is not valid, because Peter Grignon had not such an estate in the premises as could be sold under the order of the County Court, it being only an equitable one, before the patent issued in 1820 ; but the title became a legal one by its confirmation by the act of Congress of February. 1823, which was equivalent to a patent. It was a higher evidence of title, as it was the direct grant of the fee which had been in the United States, by the government itself, whereas the patent was only the act of its officers.” This same question has also been determined by the Supreme Court of Missouri, by language quite as strong as that used in the case before quoted. Harrold and wife vs. Simonds, Baily, 9 Missouri R. 323. Other cases might be cited if necessary, all of which establish the doctrine, that the legal, not the equitable title, vests by the act of confirmation or grant by Congress.

If this doctrine be. true, and we believe it is sustained by the clearest principles of law and equity, the patent which was issued to Joseph Rolette, for farm lot No. 3, was hostile to the title theretofore confirmed by Congress in Jane F. Rolette, and of course must yield to the superior title in the said Jane F., vested by the act of continuation. Hence the decree in divesting Joseph Rolette and his representatives^ of all title or interest derived through’ the patent to him, is not inconsistent with the declaration of the title in Jane F. Rolette and her heirs. ,

This view of the case also disposes of the position assumed, that the title of Jane F. Ilololte, w¿u f'i equf A A nune!; , a mmv eb<-c i;? ac-imi, md pacv.A to her husband, Joseph Bnh'tío, op inu* )»;’!■- riage with Iiirn. ‘the proof shows tool Amo entered the hind, and. proved her elf.irn before the commissioners as tiielr r/p-at, multbaf iho haul, w. í awarded toiler, and £’,& coAb-iued by (A.ogress, wSbch confirmation nossed tfr^ legal bite, he; « ad tac iulbre eoi<-irol of ibes gmas mianf or Id id .to; la! «nido/.:, or A ether weals, conveyed o ti 'Is whist no iiitiro patent could d'-f. eg

Another error assigned ip ‘‘that the decree - ¡ com trary to lb-. atitworc of Alexander ü.Iíoeonnd Kmiiin Hooe, and the o.bLiNtri, m-ocih or evidence at Uio hearing” _ Wo will not undertake to recapitulate the evidence In thin tuco. Eat if wi’ll he nuffick-.it to say, that after a carer Vs l c;:aa¿tuation- of the bill, «rawero, exhibits and pi-u^ib, wo are-impel lea' to the c inclusion that the doe reo I: not vniuai from a proper and duo consideration of them. On an application of tide kind, the evidence is not to be reviewed. An improper epplivndo.i of the proof!* is no gmimd for a. bill of review, or a supplemental bill is; the nature of a bill of review. Story's Pl. 407 ; 13 Pet. Rep. 13-14; 13 Ves. 178, But we have looked into the proofs carefully, and cannot avoid the conclusion that the decree was right upon the merits of the case. We have done so, because the first impression upon reading the petition would lead to the belief that the defendants had been deprived of the right of appeal, from the manner in which the decree in this case is alleged to have been placed on record. But it does appear from the decree, that the counsel or solicitor of the petitioner was present when it was announced. The petition does not negative tliis fact. It states that the petitioner was not aware of it, but does not state that her counsel were not present and cognizant oí its annunciation. It lias been pronounced a good .and valid decree by a former adjudication of the Supreme Court of this State, and upon a careful examination of all the errors alleged, as well as of the merits disclosed by the pleading:! and proofs, we are unable fo perceive any tenable grounds on which we would he justified in opening the door to further litigation.