Thaw v. Falls
The plaintiff also introduced evidence tending to show that his mother, Eliza V. Thaw, died in February, 1866; and, for the purpose of showing a severance of the joint tenancy, claimed to have existed between himself and his sister Columbia Thaw in these lots, put in evidence a deed, dated May 16, 1848, from his sister and one Henry Walker, of their interest in these lots to Agricol Favier; a deed, dated October 22, 1874, from a trustee appointed in a suit in equity for the partition of Favier's real estate after his death, purporting to convey the whole of these lots to one Ingersoll; a deed of the lots, dated May 24, 1878, from Ingersoll to Mary J. France; and the will of Mrs. France, admitted to probate in January, 1881, devising all her real estate to the defendant.

It was admitted that the real estate sought to be recovered was worth more than $12,000, and that the defendant was in possession thereof, claiming title adversely to the plaintiff. The defendant claimed title under a deed of the two lots to Favier from Eliza V. Thaw, dated March 17, 1848, purporting to be executed pursuant to an order of sale made, upon her petition, by the orphans' court for the county of Washington, in the District of Columbia, and approved by the circuit court of the United States of the District of Columbia, sitting as a court of chancery. In support of this defense, the defendant offered in evidence, and the court admitted, against the objection and exception of the plaintiff, the following maters:

(1) From the office of the supreme court of the District of Columbia, a book entitled 'Chancery Rules No. 4,' of its predecessor, the circuit court of the United States of the District of Columbia, containing this entry: 'No. 344. Eliza V. Thaw, guardian, to Columbus and Columbia Thaw, infant children of Jos. Thaw, dec'd. Petition, exhibit, decree of orphans' court. 1844, Oct. 12. Decree affirming decree of orphans' court.'

(2) From the same office, the only paper on file there in said case No. 344, certified by E. N. Roach, register of wills, under date of April 29, 1844, to be 'a true copy from an original filed and recorded in the office of the register of wills for Washington county aforesaid,' and consistingof  a petition addressed to the judge of the orphans' court for that county, dated March 29, 1844, signed by Eliza V. Thaw, and having annexed to it a certificate of a justice of the peace to her oath that 'the facts contained in the within petition are true, to the best of her knowledge and belief, together with the order of the orphans' court thereon, which petition and order were as follows:

'To the Hon. N. P. Causin, Judge of the Orphans' Court of Washington County: The petition of the subscriber respectfully represents that she has paid all the debts due by her deceased husband, Joseph Thaw, and that the property left by the deceased is insufficient to support her and the children provided for in the will of the deceased; and a portion of the estate belonging to the deceased consists of two vacant and unimproved lots of ground situate, lying, and being in the city of Washington, in the District of Columbia, to-wit, lots numbers one and four, in square number one hundred and sixty. Your petitioner respectfully prays that the court will deem it expedient, and cause the said lots to be sold for the purpose of relieving the immediate wants of the petitioner, and for the support and education of the children named in the will of the said Joseph Thaw, deceased, and that an order may be granted for the sale thereof at as an early a day as practicable; and, as in duty bound, will ever pray, &c. Eliza V. THAW. 29th March, 1844.'

'Orphans' court of Washington, D. C. In the case of the petition of Eliza V. Thaw, executrix and guardian to Columbia and Columbus Thaw, minor children of Joseph Thaw, deceased. This case coming on to be heard in the orphans' court on the petition, exhibits, accompanying proofs, and representation of said Eliza V. Thaw, in her capacity as guardian and executrix aforesaid, the same were by the court read and duly considered; and thereupon it is by the said court, this 29th day of March, 1844, ordered, adjudged, and decreed, provided that the circuit court of the district of Columbia for the county of Washington, sitting as a court of chancery, shall, by its proper order in the premises, approve thereof, that the said guardian, for the petitioner's minor children of said Joseph Thaw and herself, be, and she is hereby, authorized and empowered to sell the said real estate mentioned in said petition at public or private sale, after such notice by advertisement as she shall deem reasonable and sufficient, on the following terms, viz., either for cash or on credit, at the option of the said guardian, and on the full payment of the purchase money and interest, and on the ratification of the sale by this court, to execute to the purchaser, his heirs or assigns at his or their cost and request, a valid and sufficient deed of conveyance in fee-simple of the said premises, with all the right and estate therein of the said Columbia and Columbus Thaw, minor children aforesaid: Provided, that the said guardian, before proceeding to act hereunder, shall file with the register of wills her bond, with security, to be approved by the judge of this court, in the penalty of seven hundred and fifty dollars, with the usual condition for the due and faithful performance of the trust reposed in her as guardian of said children, and immediately after making said sale to report the same under oath to this court. NATH'L POPE CAUSIN.'

(3) Certified copies of two bonds, each executed by Eliza V. Thaw as principal, and Henry Walker and John Walker as sureties, to the United States. One of these bonds, dated March 22, 1844, was in the penal sum of $725, and upon the condition that if 'the above-bounden Eliza Van Tyler Thaw, as guardian to Columbia and Columbus Thaw, orphans of Joseph Thaw, of Washington county, deceased, shall faithfully account with the orphans' court of Washington county, as directed by law, for the management of the property and estate of the orphans under her care, and shall also deliver up the said property agreeably to the order of the said court or the directions of law, an shall in all respects perform the duty of guardian to the said Columbia and Columbus Thaw, according to law, then the above obligation will cease. It shall otherwise remain in full force and virtue in law.' The other bond, dated May 17, 1845, was in the penal sum of $750, and upon this condition: 'Whereas, Eliza V. Thaw, by a decree of the orphans' court of Washington county aforesaid, and confirmed by an order of the circuit court of the District of Columbia for the county of Washington aforesaid, has been appointed trustee to sell the real estate of the late Joseph Thaw, mentioned in said order, for the support and maintenance of Columbia and Columbus Thaw, minors, as will more fully appear by the said decree, reference being thereto had: Now, the condition of the above obligation is such that if the above-bounden Eliza V. Thaw do and shall well and faithfully perform the trust reposed in her as trustee aforesaid by the said decree, or that may be reposed in her by any further decree or order in the premises, then the above obligation to be void; otherwise in full force and virtue in law.'

(4) A book of records from the office of the register of wills for the District of Columbia, entitled 'Guardians' Docket No. 2,' containing numerous entries relating to proceedings of guardians in the orphans' court from 1818 to 1860, but no proceedings of the court relating to the sale of real estate, and the only entry in which relating to Eliza V. Thaw's guardianship was as follows: 'Eliza V. Thaw, guardian to Columbia and Columbus Thaw, orphans of Jos. Thaw. Bond, March 22, 1844, $725; H'y Walker, Jno. Walker, sureties. Trustee bond, 17 May, 1845, $750; H'y Walker, E. Walker, sureties.'

(5) Another book of records from that office entitled 'Liber E. N. R. No. 2, Proceedings 1846 to 1861,' the entries in which appeared to be consecutive, and which was the only record in that office of proceedings between those dates relating to sales of real estate, and was made by binding up loose scraps of paper in the handwriting of E. N. Roach, register of wills during those years, previously kept in portfolios, and contained the only record to be found in the office relating to the real estate of Joseph Thaw, namely, among the proceedings of the orphans' court on Friday, January 21, 1848, the following: 'Sale of real estate of Jos. Thaw, dec'd, filed. Order of approval filed,' (or 'for,' the last word being indistinct and uncertain.)

(6) Testimony of the assistant clerk of the supreme court of the District of Columbia, and of persons who had served or had made searches in the registry of wills, that there was great confusion in the records, both of the circuit court of the United States of the District of Columbia, and of the orphans' court, before the organization of the supreme court of the District of Columbia in 1863, under act March 3, 1863, c. 91, (12 U.S. St. 762.)

(7) Docket entries in a great number of other cases on the chancery side of the circuit court of the United States of the District of Columbia before and after October 12, 1844, and between 1823 and 1863, and on the equity side of the supreme court of the District of Columbia between 1863 and July 8, 1865, showing that the practice and forms of proceeding in such cases during those periods were similar to the practice in said case No. 344; and also many later cases in the orphans' court before 1881, in which the practice and forms of proceeding were similar.

(8) The deed executed by Eliza V. Thaw to Agricol Favier, dated and acknowledged March 17, 1848, and recorded March 7, 1867, containing this recital: 'Whereas, a decree was passed on the twenty ninth day of March, in the year one thousand eight hundred and forty-four, by the orphans' court for the county of Washington, in the District of Columbia, upon the petition of Eliza V. Thaw, guardian of her infant children Columbus and Columbia Thaw; and whereas the said Eliza V. Thaw was thereby appointed a trustee to sell lots numbered one and four, in square one hundred and sixty, in he  city of Washington, which decree was on the twelfth day of October, in the year one thousand eight hundred and forty-four, confirmed by the circuit court for the county of Washington, sitting as a court of chancery; and the said Eliza V. Thaw having, in conformity with said decree, filed a bond with sureties, which was approved by the said orphans' court, and having, in like conformity with said decree, sold said lots above mentioned, and reported the same to said court, which report was by said court, on the twenty-first day of January, in the year one thousand eight hundred and forty-eight, duly approved, ratified, and confirmed; and whereas, the said Agricol Favier was the purchaser of said lots from her, the said Eliza V. Thaw, the trustee as aforesaid, under the power vested in her by the said decree.' By the terms of this deed, 'the said Eilza V. Thaw, for and in consideration of the sum of _, lawful money of the United States, to her in hand paid by the said Agricol Favier at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged,' conveyed to Agricol Favier, in fee, these two lots, 'and all the estate, right, title, interest, claim, and demand whatsoever, legal and equitable, of her, the said Eliza V. Thaw, as guardian and trustee as aforesaid, and as well as in her own right as of the said infant children, Columbus and Columbia Thaw, to the same.'

(9) A deed of partition of other lands between the plaintiff and his sister Columbia, dated March 1, 1871, which recited that 'their said mother, after disposing of the real estate acquired by said will, and investing the proceeds thereof in other real estate,' died intestate.

The plaintiff requested the court to instruct the jury as follows: '(1) Under Joseph Thaw's will, during the life of Mrs. Thaw, his widow, she held the legal title to the real estate devised thereby for her life, in trust for herself and the two children, Columbia and Columbus, according to the terms prescribed in the will. The interest which Columbus Thaw took in the real estate under his father's will during the life of his mother was a remainder in fee after the termination of her life, and was not an estate in possession until after the death of his mother. The orphans' court had no power during Mrs. Thaw's life to decree the sale of the estate in remainder of Columbus Thaw. Her deed, therefore, purporting to convey said estate, is void. (2) The Maryland act of 1798 (chapter 101, subc. 12, § 10) did not apply to remainders; and such estates of infant's were not subject to sale on petition of the guardian to the orphans' court, with the approval of the court of chancery, as provided in said act. (3) The alleged entry in the records of the orphans' court, purporting to be of the date of January 21, 1848, in these words: 'Sale of real estate of Jos. Thaw, dec'd, filed. Order of approval for,'-is indefinite, uncertain, and insufficient to authorize Mrs. Thaw's deed, inasmuch as it does not state what sale, or what real estate was sold, nor by whom, to whom, or for what consideration the sale was made, and inasmuch as no report of sale is shown, and no guardian's account, and no record evidence of any payment whatever, and the deed itself does not recite any consideration. (4) The act of congress of March 3, 1843, entitled 'An act to provide in certain cases for the sale of the real estate of infants within the District of Columbia,' repealed the Maryland act of 1798 so far as concerned the sale of the real estate of infants, and since that act of congress was passed the real estate of infants could only be sold upon a bill filed therefor as prescribed by said act of congress; and, as no such bill was filed in reference to the real estate in question, the deed of Eliza V. Thaw to Agricol Favier did not convey the interest of Columbus Thaw therein. (5) The orphans' court of the District of Columbia, at the date of the proceedings therein relating to the sale of the real estate by Eliza V. Thaw, guardian, was one of limited jurisdicton,  and a party claiming title to real estate under its proceedings must show affirmatively that it had jurisdiction; and, that not having been shown in this case, the deed from Mrs. Thaw to Agricol Favier did not convey the interest of the plaintiff in the real estate in question.' But the court refused so to instruct the jury, and directed a verdict for the defendant. A verdict and judgment were rendered accordingly, and the plaintiff excepted to the refusal and direction. The court in general term, Justices HAGNER and JAMES sitting, reversed the judgment, for the reasons stated in an opinion delivered by Mr. Justice HAGNER, and reported in 4 Mackey, 347, 358-390. Upon the defendant's petition a reargument was ordered before the whole court, and the original judgment was affirmed, for the reasons stated in the opinion delivered by Mr. Justice Cox, and reported in 5 Mackey, 200-228; Mr. Justice HAGNER dissenting. The plaintiff sued out this writ of error.

F. P. Stanton and S. R. Bond, for plaintiff in error.

[Argument of Counsel from pages 528-537 intentionally omitted]

Geo. F. Appleby, for defendants in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court. 

Notes
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