ERROR to the Circuit Court for the Western District of Texas, in which court Henry Williams brought trespass to try title against one Cornett, to settle the question of ownership of a certain league of land in Bastrop County, in the said State, which had formerly belonged to Samuel Williams.*fn1 The plaintiff claimed under a sale made by an administrator of the estate of the said Samuel, through the proper court, for payment of debt; the defendant through deeds from his heirs at law. The more particular case was thus: Samuel Williams, of the said Bastrop County, and engaged in business there, having become indebted to his brother Henry, resident in Baltimore, Maryland, the said brother brought suit against him, and on the 20th June, 1850, obtained a judgment against him in the District Court of the United States in Texas for $26,736; and on the 12th July, 1858, to keep alive the evidences of the debt, brought a second suit on this judgment so obtained, and recovered judgment on it for $43,936. These facts were testified to by W. B. Ballinger, Esq., a member of the bar of Texas of high standing; his 'office registry' being produced as the evidence of the dates and amounts of the two judgments; the judicial records, as hereafter mentioned, having themselves been destroyed. Soon after the entry of the second judgment Samuel Williams died, leaving this league of land, and some other lands; and not long afterwards–about the year 1859–Henry being in Texas, applied to Mr. Ballinger for counsel as to what further steps, if any, he had best follow to secure his debt against the estate of his brother now lately deceased. Mr. Ballinger told him to get a certified copy of the judgment, make affidavit to it, and present it to the administrators of the estate of Samuel Williams; and supposed, as he testified, that he would do this. This advice of Mr. Ballinger was founded apparently on what seems to be the law of Texas,*fn2 under which any claim against the estate of a deceased person, in order to be ranked as a just debt against it, must be duly sworn to and presented to the administrator for allowance, and to the chief justice (who is the probate judge) for approval. It did not appear that Mr. Ballinger over saw this certified copy, such as he had directed Henry Williams to get and present; but another witness (F. W. Chandler), a member of the bar, testified that he had had in his possession such a copy of the judgment; that J. H. Williams (the son of Henry Williams) had made several copies of it in his presence; and that the original (that is to say, the copy officially certified) had been lost in the mail in crossing Cummins's Creek. One of the copies thus made was sent to Mr. Ballinger; but Mr. Ballinger could not say that the copy was accurate, and noted that the amount found due by the clerk and that for which the judgment was given varied; Mr. Ballinger's own memorandum, as found in his office register, agreeing in amount and date with the latter. The copy thus sent to Mr. Ballinger, and which was received in evidence under objection, set forth that the clerk of the court in which the judgment was had, had assessed the damages at $43,966.34; and that it was, therefore, considered by the court that the plaintiff recover of the defendant $43,936.34. In 1861 the civil war broke out, lasting till the spring of 1865. In 1862 all the original records of the Federal courts in Texas were burned. Early in the war, J. H. Williams, a son of Henry, already mentioned as of Baltimore, went to Texas, and with his cousin H. H. Williams, a son of Samuel, bought out the right of the other heirs of Samuel to this league of land, and went on it to live. Having done this the two cousins formed partnership, built a cloth factory, and made a contract with a the Confederate government to supply to it military cloth for the Confederate troops. J. H. Williams stated in testimony that he was at the time aware of the incumbrance of his father's judgment on the land, but considered the estate of his uncle so wealthy 'that any idea of the land being needed to pay a debt of the estate never occurred to him but as a possibility too remote to be worth consideration.' While the cousins, J. H. and W. H. Williams, were engaged in manufacturing military cloths for the Confederate troops, under their contract, already mentioned, with the Confederate government, a certain Cornett appeared, in October, 1863, in Texas, with a large number of slaves, some mules, and a wagon. Cornett had been a resident and a slaveholder in Missouri, disaffected to the Federal government; and the testimony tended to show that in the autumn of 1861, that State being in a very disturbed condition, owing to the war, and the government troops gradually driving out those of the Confederate States, a son of Cornett said to his father that the Federal army was approaching; that if they did not remove their slaves soon they would lose them all; that thereupon Cornett got his slaves together, and handcuffing or tying with strings some who hid themselves and did not want to go, set off for the South, and after about five weeks of forced journeyings, following the Confederate troops night and day, arrived in Texas; that he hired some of his slaves out for short times, sold certain ones, and in the autumn of 1863 sold all the rest (the bulk of them), and the mules and wagon, to the cousins Williams, they having made the purchase, as one of them testified, 'for the purpose of enabling us to comply with our contract with the Confederate government;' a thing,' continued the witness, 'which the said Cornett knew at the time of our purchase and must have known before, it having been matter of common notoriety; and he having further known it from our own statements made to him at the time.' By way of payment for the negroes, mules and wagon, the cousins Williams executed, in February, 1864(though the sale was in the autumn of 1863), their note to Cornett for $9600 (the $9000 having been the price of the negroes and the $600 the price of the mules and wagon), and to secure the payment of the note conveyed the league of land that they had bought from the heirs of Samuel Williams to one Wildbahn, in trust to secure their note to Cornett, and with power in the trustee to sell if the note was not paid. In the spring of 1865 the supremacy of the Federal arms became complete; slavery was abolished, and the slaves bought by the cousins Williams of no more value to them. Henry Williams, the father of J. H. Williams, who was still alive and had been during the war at the North, constituted, in 1865, his son, J. H. Williams, yet in Texas, his general agent there; and peace being now restored and intercourse between all parts of the country, the son (who, as already mentioned, had with his cousin mortgaged the league to Cornett, to secure the purchase-money of the slaves), acting as his father's agent, at the January Term, 1866, applied through counsel, Mr. Mott, to the County Court of Galveston, for an order that the administrator of Samuel Williams be cited to appear and show cause why 'he should not make application to the court for an order to sell enough of the property of said estate to pay a judgment obtained by the said Henry Williams against the said Samuel, to the amount of $40,000; which said judgment was allowed and approved as a valid claim against said estate, in October, 1859, with eight per cent. interest per annum,' &c. The application thus made to the court was under and in pursuance with the 1315th article of Paschal's Digest, which declares that when an administrator shall neglect to apply for an order to sell sufficient property to pay the claims against the estate that have been allowed and approved, or established by suit, such executor shall be required by the chief justice, on the application of any creditor whose claim has been allowed and approved, or established by suit, to present a statement, &c.; and on proof that a necessity exists for a sale to pay debts, &c., it shall be the duty of the chief justice to order such sale to be made, having jurisdiction of the case by application made. The administrator appeared at the same term, and, answering, admitted it to be true that the said Henry, on the 28th of June, 1850, did recover a judgment in the United States District Court at Galveston, against the decedent, for $26,736; that it was not paid at the death of the decedent; that it was presented for allowance against the estate with the usual affidavit and allowed; that he could not say whether it was approved by the chief justice of Galveston County; that it had never been paid, and that the reason he had taken no measures to pay it was that the plaintiff had told him that, being against his brother, he did not intend to enforce it. The court thereupon, at the same term, made an order as follows: 'On this day came on to be heard in this cause the motion of Henry Williams, by his agent, J. H. Williams, asking that the administrator be required to sell sufficient property of the estate to pay a certain judgment obtained by the said Henry in the United States District Court, on the 28th day of June, A.D. 1850, for the sum of $26,736, with interest from date of rendition; and it appearing to the court that this claim has been duly allowed, and that the administrator has no funds in hand whatever to pay the same, it is ordered that he make sale of sufficient property in pursuance of the prayer of the motion. And the administrator having designated the following piece of property, it is ordered that he shall make public sale of one league of land, situated,' &c. The premises in controversy (being the same that the son had with his cousin conveyed to Cornett) were then described, the mode and time of advertising, and the place and terms of the sale were prescribed, and the administrator was directed 'to make due report of his action in the premises to the court.' On the 15th of March, 1866, the administrator reported that, pursuant to the order of the court, after due notice according to law, he had offered the premises for sale at public auction, at the time and place required by law, and that they were struck off and sold to Henry Williams, for the sum of $60,000, on a credit of twelve months, secured by a vendor's lien; that Williams was the highest and best bidder, and that the price was a reasonable one. At the March Term the court confirmed the report and ordered the administrator to make a deed to the purchaser upon his complying with the terms of the sale. On the 15th of April, 1866, the administrator gave a receipt to the purchaser for $60,600, being the amount of the purchase-money with ten per cent. interest, and by the same instrument released his vendor's lien. On the same day he executed a deed of conveyance to the said Henry. It recited all the proceedings touching the sale upon which it was founded. On the 2d of January, 1868, the administrator executed to the said Henry another deed for the same premises. It recited more fully the proceedings relative to the sale, and set out that there were certain clerical errors of dates in the former deed, and that the second deed was made to correct them. The consel (one Mott), who, as counsel, attended to getting this order of sale, and was examined as a witness for the plaintiff, was asked whether in getting the order he had before him 'the claim' of Henry Williams, on which the order was based. He replied: 'I have not before me the claim alluded to. I presume it is among the papers in the matter of the administration of Samuel Williams, deceased, on file in the county clerk's office, in Galveston County.' He testified further, in reply to other interrogatories:
The opinion of the court was delivered by: 'The administrator contested my application for order of sale, and the matter was referred to the court upon the proof. The matter was one of minor importance, as far as I was concerned, and my recollection of the facts is not clear. My impression is that the proof was mostly oral. I proved by one or two witnesses that judgment had been obtained in the United States District Court by Henry Williams against Samuel Williams, and also proved the destruction of the United States court records by fire. And upon the proof the chief justice adjudicated the matter and gave me the order of sale.'
J. H. Williams–the son of Henry, and who had acted as his agent in procuring through Mr. Mott this sale–was also examined, and was asked on a cross-interrogatory:
'How did it happen that, as agent for your father, you managed to have your own homestead sold by order of the Probate Court of Galveston County? Explain particularly why you permitted its sale, when you had warranted the title of it to Cornett, and knew that the sale would injure him?'
'My father, for the first time, in 1865, constituted me an agent for the management of his affairs in Texas. I had the interests of my mother and brother to consider as well as my own. I was an enthusiastic believer in the Confederacy, and never expected to see its fall, and I entered into the transaction with Cornett in good faith at the time. The fall of the Confederacy came, however, and with it the destruction of the value of the property I was to have held from Cornett, and a totally new set of laws, of which I had to take the evil, and felt it nothing more than right to extract from them, in return, whatever of good I could. I did not regard the trade as legally binding upon me. My uncle's estate was nearly bankrupted by the results of the war, and this league of land was the only piece of property belonging to the estate. The administrator seemed glad to avail himself of my offer and thus get rid of a large claim, the settlement of which in any stricter way would have ruined all the parties concerned in the estate, and have seriously embarrassed the payment of other debts due by it. I knew that in any event, my interest in the land was gone. My sympathies were of course with the rights of my father, mother, and my brother. I knew the judgment through which, or to satisfy which, my father's title to the league of land in question was obtained was a judgment for a just and bon a fide debt, while I did not feel that Cornett was morally entitled to anything more than a fair rate of hire for his negroes for the time we held them, which was offered him and refused.'
In this state of things–that is to say, the trustee Wildbahn having sold the land, and the title derived from the heirs of Samuel Williams having become vested in Cornett,–Cornett, on the 7th of December, 1867, brought a suit (trespass to try title) against the cousins J. H. and W. H. Williams, still in possession; and a writ known in Texas as a writ of sequestration–by which the marshal takes possession of the land and holds it in his official capacity until one party or the other give a bond and replevy it was issued, under which the marshal took possession of the league of land. To this suit Henry Williams did not interplead as a defendant.
The statute of Texas on the subject of a landlord's interpleading is:
'When a tenant is sued for lands of which he is in possession, the real owner or his agent MAY enter himself on the proceedings as the defendant in the suit, and SHALL be entitled to make such defence as if he had been the original defendant in the action.'
On the 19th of February, 1868, Cornett replevied the land.
On the 19th of February, 1868, Henry Williams brought the present suit against Cornett, alleging in his declaration 'that he was, on the 1st day of January, 1868, and a long time before that date and still is owner,' &c., and that the defendant, 'on the 1st day of January, 1868, with force and arms entered,' &c.
On the 19th of June, that is to say, after the present suit was brought by Henry Williams against Cornett, Cornett recovered judgment against the cousins W. H. and J. H. Williams, on his suit against them.
In the present case two depositions of Henry Williams, the plaintiff in the case, were read under objection; one had been taken in June, 1868, the other in January, 1869. Both were taken, as respected general formalities, under the thirtieth section of the Judiciary Act of 1789, prescribing the mode of taking depositions generally in the Federal courts; and, though the depositions of the plaintiff himself, were considered by the plaintiff's counsel as coming within the provision of the act of July 2d, 1864, authorizing parties to a case to testify;*fn3
an act in these words:
'SECTION 3. The sum of $100,000 is hereby appropriated . . . for the purpose of . . . bringing to trial and punishment persons engaged in counterfeiting treasury notes, bonds, or other securities of the United States. Provided, That in the courts of the United States there shall be no exclusion of any witness on account of color, nor in civil actions because he is a party to or interested in the issue tried.'
One provision of the thirtieth section of the Judiciary Act of 1789, under which the depositions were taken, after prescribing the mode in which the magistrate, taking them, is to take them, says:
'And the depositions so taken shall be retained by such magistrate until he deliver the same, with his own hand, into court; or shall be . . . by him, the said magistrate, sealed up and directed to such court, and remain under his seal until opened in court.'
The substance of the testimony of Henry Williams was that the deed of trust made by his son and nephew of the lands to Wildbahn for the security of Cornett, had been made wholly without his knowledge or authority, and that he had never in any way ratified what they had done.
The court charged inter alia thus:
'1. With regard to the trust-deed, I instruct you, that if you believe that Cornett brought the salves from Missouri in August or September, 1861, during the war, for the purpose of disposing of the same, being a citizen of Missouri, that it was an unlawful act on his part, contrary to his duty as a citizen of the United States and of Missouri, and that his sale of the salves here was a transaction void in law, and cannot be enforced in the courts; and if the consideration of the trust-deed was illegal and void, the deed itself was void, and no title can be derived under it by Cornett.
'2. It is argued by the defendants that the plaintiff, Henry Williams, is concluded by the sequestration suit, because the defendants were tenants under him, and one of them was his general agent in Texas. But I instruct you that he is not concluded. He was no party to the suit, and did not undertake the defence of it. A landlord may, if he chooses, come in and defend an action brought against his tenant for the land, but he is not bound to do it. The tenant may be under such complications that the landlord's defence would be prejudiced thereby. The landlord, if he prefer, may await the event of the action, and if his tenant is ousted may then bring his own action, as has been done here, and try his title on its own merits, unembarrassed by the peculiar complications in which his tenant may have been involved.
'3. To the title of the plaintiff, it is objected by the defendant, that the judgment-debt of Henry Williams was not duly presented, allowed, and approved, and that the order of sale was, therefore, void, and that the deed executed by the administrator was also void.
'But the validity of the order of sale cannot be questioned in this collateral way. This is not a revisory proceeding for examining the regularity or legality of that order. This court cannot set it aside nor inquire into any errors committed by the Probate Court in making it, if there were any. All it can do is to ascertain whether the Probate Court had jurisdiction of the matter. Of this I have no doubt. It is conceded that the court had jurisdiction of the succession of Samuel Williams, of which matter this order of sale was a part. But if that was not sufficient to support the order, we have the fact proved that there was a subsisting judgment; that it was duly presented to the administrator for allowance, and sworn to, and admitted, and registered by him; that the plaintiff applied to the court for an order calling upon the administrator to show cause why he should not apply to have the land sold to pay the judgment, alleging that it had been duly presented, allowed, and approved; that the administrator appeared and answered the application, and that a hearing was had thereupon, and the order made for a sale of the land; that the sale was made, reported, and confirmed, and a deed ordered to be given, which was given accordingly. . . . Having jurisdiction of the case by the application made, it was the duty of the Probate Court to ascertain whether the exigency existed which justified or required an order of sale to be made. It will be presumed, when brought up collaterally, that the court did its duty, and its judgment will be accepted and received without further question.
'4. I therefore instruct the jury that the administrator's deed was good and valid to convey, and did convey, to the plaintiff the title which Samuel Williams had in the land, unless it was rendered void by fraud on the part of the plaintiff in obtaining it.
'If the plaintiff obtained the deed for the purpose of defrauding the creditors of W. H. and J. H. Williams, and especially Cornett, then the plaintiff cannot recover. This is the principal question for you to decide, viz., whether the order of sale made by the Probate Court was procured by the plaintiff, in combination with W. H. and J. H. Williams, for the purpose of defrauding Cornett out of his debt. In deciding this question, you will assume that the judgment of the plaintiff against his brother, Samuel Williams, was a good and valid one. If they agreed to it, none but the creditors of Samuel Williams can question its validity. It cannot be assailed in this suit.
'You are also to assume that the judgment was duly presented to the administrators of Samuel Williams, and allowed by them, and approved by the proper judge of the Probate Court. These points must have been decided, and are concluded by the action of the Probate Court on the application for an order of sale.
'You are also to remember that the plaintiff, having a valid and legal claim against the estate of Samuel Williams, had a right to have any portion of the latter's estate applied to the payment of it, and whoever purchased any part thereof purchased subject to that right.
'You are also to remember the rule of law that fraud must be proved, and cannot be presumed. If, however, it be proved to your satisfaction that either the plaintiff or his agent (for he is bound by the acts of his agent), in collusion and combination with W. H. and J. H. Williams, or with the administrator, procured the order of sale to be made in order to defraud ...