Swift v. Tyson. 16 P.

It is observable that he here uses the words "valid consideration," ɔbviously intending to make the distinction, that it is not intended to apply solely to cases where a present consideration for advances of money on goods or otherwise takes place at the time of the transfer and upon the credit thereof. And in this he is fully borne out by the authorities. They go further, and establish that a transfer as security for past and even for future responsibilities, will, for this purpose, be a sufficient, valid, and valuable consideration. Thus, in the case of Bosanquet v. Dudman, 1 Starkie 1, it was held by Lord Ellenborough, that if a banker be under acceptances to an amount beyond the cash balance in his hands, every bill he holds of that customer's, bona fide, he is to be considered as holding for value; and it makes no difference, though he hold other collateral securities, more than sufficient to cover the excess of his acceptances.

*The same doctrine was affirmed by Lord Eldon in ex parte [ 22 ] Bloxham, 8 Ves. 531, as equally applicable to past and to future acceptances. The subsequent cases of Heywood v. Watson, 4 Bing. 496, and Bramah v. Roberts, 1 Bing. New Ca. 469, and Percival v. Frampton, 2 Cromp. Mees. & Rose, 180, are to the same effect. They directly establish that a bonâ fide holder taking a negotiable note in payment of or as security for a preëxisting debt, is a holder for a valuable consideration, entitled to protection against all the equities between the antecedent parties. And these are the latest decisions which our researches have enabled us to ascertain to have been made in the English courts upon this subject.

In the American courts, so far as we have been able to trace the decisions, the same doctrine seems generally, but not universally to prevail. In Brush v. Scribner, 11 Conn. R. 388, the supreme court of Connecticut, after an elaborate review of the English and New York adjudications, held, upon general principles of commercial law, that a preëxisting debt was a valuable consideration, sufficient to convey a valid title to a bona fide holder against all the antecedent parties to a negotiable note. There is no reason to doubt, that the same rule has been adopted and constantly adhered to in Massachusetts; and certainly there is no trace to be found to the contrary. In truth, in the silence of any adjudications upon the subject, in a case of such frequent and almost daily occurrence in the commercial States, it may fairly be presumed, that whatever constitutes a valid and valuable consideration, in other cases of contract, to support titles of the most solemn nature, is held à fortiori to be sufficient in cases of negotiable instruments, as indispensable to the security of holders, and the facility and safety of their circulation. Be this as it may, we entertain no doubt that a bonâ fide holder, for a preëxisting

Watkins v. Holman. 16 P.

debt, of a negotiable instrument, is not affected by any equities between the antecedent parties, where he has received the same before it became due, without notice of any such equities. We are all, therefore, of opinion, that the question on this point, propounded by the circuit court for our consideration, ought to be answered in the negative; and we shall accordingly direct it so to be certified to the circuit court.

[ * 23 ] * CATRON, J., said: Upon the point of difference between the judges below, I concur, that the extinguishment of a debt, and the giving a post consideration, such as the record presents, will protect the purchaser and assignee of a negotiable note from the infirmity affecting the instrument before it was negotiated. But I am unwilling to sanction the introduction of a doctrine into the opinion of this court, aside from the case made by the record, or argued by the counsel, assuming to maintain that a negotiable note or bill, pledged as collateral security for a previous debt, is taken by the creditor in the due course of trade; and that he stands on the foot of him who purchases in the market for money, or takes the instru ment in extinguishment of a previous debt. State courts of high authority on commercial questions have held otherwise; and that they will yield to a mere expression of opinion of this court, or change their course of decision in conformity to the recent English cases referred to in the principal opinion, is improbable; whereas, if the question was permitted to rest until it fairly arose, the decision of it either way by this court, probably, would, and I think ought to settle it. As such a result is not to be expected from the opinion in this cause, I am unwilling to embarrass myself with so much of it as treats of negotiable instruments taken as a pledge. I never heard this question spoken of as belonging to the case, until the principal opinion was presented last evening; and therefore I am not prepared to give any opinion, even was it called for by the record.

2 H. 426; 3 H. 464; 8 H. 470; 12 H. 139; 19 H. 393.

RICHARD J. WATKINS, Plaintiff in Error, v. THE LESSEE OF OLIVER HOLMAN et al.

16 P. 25.

The vendee is not estopped from disputing the title of his vendor.

The deposit of earth upon a water lot below high-water mark, so as to fit it for occupation and use, followed by the erection of a wharf and warehouse thereon, together with the possession of the adjacent upland lot for more than forty years, present a strong ground to presume a true title.

Watkins v. Holman. 16 P.

A volume of state papers published by authority of congress, is admissible evidence of the genuineness of the papers it contains.

A license granted to an administratrix in Massachusetts, by the supreme court of that State, to sell lands of the intestate in Alabama, is merely void.

Though a person having the legal title to land in one State, may be decreed by a court of equity in another State, to convey the land, yet neither the decree, nor any conveyance by virtue of it, by one not having the title, can operate beyond the jurisdiction of the court. It is not a defence to an action of ejectment, that the defendant holds a bond of the vlaintiff, conditioned to convey the land to him. He must resort to a court of equity.

It is sometimes difficult to draw the line of division which separates executive, legislative, and judicial powers; but a special act of the legislature, authorizing an administratrix to sell land and apply the proceeds to the payment of debts, is not an exercise of judicial power.

Such an authority may be conferred without notice to heirs, who take the lands of their ancestor subject to the payment of his debts, and to the remedies, general or special, which the legislature may provide for creditors in that behalf.

THE case is stated in the opinion of the court.

Ogden and Legaré, for the plaintiff.

Crittenden and Key, contrà.

*M'LEAN, J., delivered the opinion of the court.

This cause is brought before this court by a writ of error

[ *51 ]

to the circuit court of the United States for the southern district of Alabama.

The heirs of Holman commenced an action of ejectment against the plaintiffs in error, to recover possession of a certain lot in the city of Mobile. On the trial, the lessors of the plaintiffs proved that, before the year 1785, one Geronio was in possession of a lot in the city of Mobile, at the corner of St. Francis and Royal streets, which he continued to occupy until his death. Previous to his death he devised the lot to Lucy Landry, whose father, Simon Landry, took charge of it for his daughter until she became of age, when she occupied it as her own property. In 1818, she conveyed the lot to M'Kinsie and Swett, by deed, in which the eastern boundary was stated to be the Mobile River, and it is admitted that the deed embraced the lot in dispute.

M'Kinsie and Swett conveyed the premises on the same day to Oliver Holman; and in 1818 he took possession of the lot in controversy, erected houses and a wharf on it, and continued to occupy it as a merchant, in copartnership with one Charles Brown, who lived in Boston, Massachusetts, until December, 1822, when Holman died. He left, as his heirs, the lessors of the plaintiffs.

There was no proof of any paper title in Lucy Landry or her father, except the will above stated. Her possession commenced in the year 1800, or prior to that time; and it was proved that her

Watkins v. Holman. 16 P.

inclosure extended on Royal street, the whole distance claimed in the declaration, and on the east it followed the high-water mark of the Mobile River.

It was proved that Water street, which runs parallel with Royal street and the Mobile River, was an irregular bank, reaching from St. Francis street southerly, the length of the city, formed by a deposit of shells and earth, and was higher than any land east of it, or any land to which the water extended. This land was not subject to inundation, though in many places the water ran across it. [ *52 ] * Until the improvements by Holman, the lot in controversy was not susceptible of occupancy. Water street was laid out in 1817 or 1818, and the lot in dispute lies east of that street and east of the high land above described. The ridge or high land was protected by the Spanish authorities; no person was permitted to remove the earth or improve on the ground. It was called the king's highway and landing-place. And after the American authori ties took possession, the general impression seemed to be that the ground east of Water street did not belong to the proprietors of lots west of it. But these proprietors in some instances made entries on this ground; and in others, entries were made by the corporate authorities of the city.

Under this state of doubt, the act of congress of the 26th of May, 1824,' was passed. Holman, it seems, built a wharf and warehouse on the lot in 1819 or 1820, and these were among the earliest improvements made east of Water street.

The defendants proved that, since the year 1823, they or those under whom they claim, have had the exclusive possession of the lot; and that they made valuable improvements thereon. They gave in evidence copies of deeds from Lucy Landry to M'Kinsie and Swett, and from them to Oliver Holman. They also exhibited in evidence a title-bond, dated the 29th of September, 1821, from Holman to Brown, for half of the land conveyed to him by M'Kinsie and Swett, excepting certain parts described. The deed was to be executed in two years. A map was also in evidence, purporting to have been made in 1760, by a French surveyor. The map represented the land lying near the river as divided into oblong squares bounded by streets, and that the vacant space between the river and the front line of the square had the word "quai" written upon it. But it is not shown by what authority this map was made, or that it governed in the sale of lots. Until the year 1817, the king's wharf was the only one in the city.

To explain the nature and extent of Lucy Landry's claim and

14 Stats. at Large, 66.

Watkins v. Holman. 16 P.

possession, certain documents from the land-office at St. Stephen's, Alabama, were offered in evidence; and also an act of the legislature of Alabama, passed the 21st of December, 1823, authorizing the administratrix of Oliver Holman to sell the real estate of which he died seised in the city of Mobile. It was proved that Hol

man's estate was insolvent, and it was admitted that the [53] attorneys of the administratrix, named in the act, had given the bond required before the premises in question were sold. The deed made in pursuance of the sale under the act of the legislature, was read; also a record of certain proceedings in the supreme court of Massachusetts, wherein a license to the administratrix was given to make a deed in pursuance of the title-bond to Brown, and the deed that was made under this authority.

The court instructed the jury that the act of Alabama was unconstitutional and void, and that no title passed under it; and that the proceedings in the Massachusetts court were inoperative, and did not authorize the administratrix to convey the title.

The court also overruled, as evidence, the documents above offered, contained in a volume of state papers published under the authority of congress.

Exceptions were taken to the rulings of the court, and to their instructions to the jury; and on these, the questions for consideration arise.

The plaintiff in error asks a reversal of these judgments on two grounds.

1. Because the lessors of the plaintiff showed no legal title. 2. Because the defendant established a title in himself.

On the part of the defendant's counsel it is contended that, as the plaintiff in error claims under Holman, he cannot question his title; and in support of this position the cases of Jackson ex dem. v. Bush, 10 Johns. 223; Jackson ex dem. Bowne v. Hinman, 10 Johns. 292, 293, are relied on. But these are cases in which the lessors of the plaintiff claimed under sheriff's sales; and the defences set up were under the defendants in the judgments. The court say: "The rule excluding a defendant against whom there has been a judgment and execution from defeating the purchaser's recovery of his possession, by setting up a title in some third person, is founded on justice and policy; and the reason of the rule equally applies where such defendant has, in the mean time, delivered up his possession to another." The case of Brant ex dem. Cuyler et al. v. Livermore, cited from the same volume, 358, arose between landlord and tenant. And the decision relied on in Schauber v. Jackson, 2 Wendell, 13, does not sustain the ground assumed.