Summary
ERROR to the circuit court of Rhode Island.
This case came before the Court upon a bill of exceptions tendered by the plaintiff in error, they having been defendants below, on the trial of the cause in the circuit-court. In that court the defendants in error instituted an ejectment for the recovery of a- lot of ground called “ The Swamp Lot,” lying in North Providence in the state of Rhode Island-; which lot of ground was, with other lands, devised by Jonathan'Jenckes of Winchester in the state of New Hampshire, by his last will and testament, dated the 17th of January 1787, to his daughter Cynthia Jenckes; subject to a life estate thérein of his sister Lydia Pitcher, who was then in .possession of the. same, and so .continued until her death on the-10th of August 1794.
Jonathan Jenckes was also seised of other lands in north Providence and in Smithfield, Rhode Island; and also of real éstate in New Hampshire and in Vermont,, most of.‘which were devised to liis daughter Cynthia. A small part of his New Hampshire lands was de.vised for- the payment of bis debts. Cynthia Jenckes-his wife, and Arthur Fenner of-Providence, Rhode Island, were appointed the executors of his will. .Cynthia Jenckes, alone, qualified as executrix. The testator died at Winchester in New Hampshire, on the 31st of January 17S7, a few days after making his will.
' No probate of the will of Jonathan Jenckes was made in the state of Rhode Island.
The plaintiffs in the ejectment are the heirs of Cynthia Jenckes, and-claim the .premises under the devise to her, she having’afterwards intermarried with Joel Hastings.
The title of the plaintiff in error was as,follows:
Cynthia Jenckes the widow .and executrix of Jonathan Jenckes, having been qualified in New Hampshire to act as executrix, on the -18th of August 1790, returned to the probate court of the county of Cheshire, an inventory of the real u,nd personal estate"iíi'New Hampshire and Vermont, amounting to £1792 12s. 9&. A commission of insolvency Was afterwards granted by the probate-court, and on the 3d of January 1792, the.Commissioners reported the whole amount of debtsdue by the estate; of which 6920 19s. were due.to citizens of Rhode Island. In February 1792, the executrix settled her-account in the probate court, and. a balance of £15 7s. Id. remained in her hands, “ the guardian of the heirs appearing and consenting’kto the .settlement.
On the 22d of July. 1790, a license to sell the real _oiate pf Jonathan Jenckes, to páy and discharge the debts of the éstate, was granted by the probate court of.Cheshire county; and on the 12th day of November 1791, Cynthia Jenckes, as executrix of Jonathan Jenckes, sold and conveyed by deed to Moses- Brown and Oziel Wilkinson, the reversion of the three acre Swamp lot-, the, premises in dispute. The other real estate in Rhode Island was also sold and conveyed by her at the same time.
On the day the sale was made, Cynthia Jenckes executed a bond to the purchasers, reciting that by virtue of the licensej and. in pursuance of its directions, a ■gale had been made of all the estate which belonged to the testator in the towns of Providence, Smithfield, and North Providence, in the county of Providence, and slate of Rhode Island, and that sh’e-hadreceived pay for the same; “'and whereas some doubts may arise whether a sale ■ and conveyance so made, by. virtue of the license of the judge of probate, in the state of New Hampshire,, will give a good and sufficient title-to lands and1 tenements lying in the state ofRho.de Island, and Próvidence plantations; now, for the clearing of all doubts respecting the.premises, I, the-said Cynthia Jenckes, in my said capacity, do covenant, .and engage for myself, my heirs, executors and administrators, to and with the said. Moses Brown, Ozifel Wilkinson and Thomas. Arnold, their, heirs, executors and administrators, that I-will' procure -an act to •be passed by the legislature of the state ;-of Rhode- Island, ratifying and confirming the title by ,me granted and conveyed as ¿foresaid, to them and their heirs and assigns forever ; ór in failure thereof, t*Jt I will repay the párchase money which I have received for the same, with lawful in- ' terest, and such reasonable costs and. damages which they may or shall thereby sustain, as shall .sufficiently indemnify,. •Stid save them frée from loss in the premises, to all • intents and.purposes.”.
At the June sessions of the legislature, Cynthia. Jenekes, by her attorney regularly constituted,-petitioned the legislature of the state of Rhode Island, representing, “ that the per-? sonal estate of the said Jonathan Jenckes, being insufficient to pay his debts, your petitioner obtained authority from the honourable. John Hubbard, judge of probate'fdr tl]e county of Cheshire, in said state of New Hampshire, where the said Jonathan last lived, to make sale of so much of the real estate of the said. Jonathan Jenckes, as should, be sufficient for the purpose of paying his debts; that your petitioner, in ' ursuance of said authority, sold and conveyed' a part.of said eeased’s estáte, situate in this state.; that for the said, estate our petitioner received a part of the consideration money,., and the. residue thereof is to be paid when the deed executed by your petitioner-shall be-ratified by'this assembly; your petitioner would further show, that the' residue of the said pufcl' ,se money is absolutely necessary to pay the debts due from said estate, and'which are now funning in interest. She therefore humbly prays, your honours will’be ffieased to ratify and confirm thé sale aforesaid, being by a deed made by your petitioner unto Moses Brown and others, on- the 12th day of November; A. D. 1791, for the consideration of five hundred .and fifty dollars; whereby your petitioner conveyed the right, of redemption to a certain mortgaged estate, and also other lands in,said deed mentioned, situate in Smith'field and North Providence.”
Whereupon the legislature -passed the .touowing act:
State of Rhode Island, sc.
At June session of the General Assembly, AVD. 1792. ■
Whereas, Cynthia Jeñckes, late of Winchester, in the state of New Hampshire^ now of the state of Vermont, executrix of the last will and testament of Jonathan Jenckes, late' of Winchester aforesaid, deceased, preferred a petition and. represented untó this assembly, that his personal estate being insufficient for the payment of his debts, she obtained auth.o-,, rity from. the honourable John Hubbard, esq., the judge of probate for the- county of .Cheshire, in the state of New Hampshire aforesaid, where the said Jonathan last lived, to make sale of so much'of the real estate of the. said Jonathan Jenckes, as should be sufficient to pay’his debts; that by virtue of said authority she made salé to Moses Brown ; and others, of part of the said real estate, situate within this .state; that she hath received part of the consideratioñ'mo-ney, and the remainder is to be paid when the sale aforesaid shall be ratified by this assembly; and that the residue of •said purchasé. money is necessary for the payment-of said debts; and thereupon,.the said Cynthia prayed'this assembly to ratify and confirm the sale aforesaid, which was made by a deed executed by her on the 12th .day of November last past, for the. consideration of five hundred and fifty dollars, whereby she conveyed the right of redemption to a certain mortgaged estate, and also other-lands irt the said deed merr^ tioned, situate in Smithfield and Norih Providence’,
On due consideration whpreof, i.t is enacted by .this general assembly, and. by the authority thereof, that the prayer of the said petitioner be granted, and that the said deéd be, the same is hereby, ratified and confirmed, so far as respects the conveyance of any. right or interest in the estate mentioned in said deed, which belonged to . the said Jonathan Jénckes at the time of his decease.
A judgment pro forma, for the plaintiffs, was entered in the circuit court, arid this writ of error was sued out>
The case was argued by Mr Whipple, and Mr Wirt, for the plaintiff in error;, and by Mr Webster, with whom was Mr Hubbard, for the deferidants..
aftpr stating the facts.of the case,.proceeded to say, that the-whole cáse before the Court, turns upon .the constitutional validity of the act of the legislature of Rhode Island.
' All the lands of Jonathan Jenckes,- in the state of New Hampshire, were sold for the payment, of debts. A large amount of debt was due iri Rhode Island; and it is admitted that the proceeds of the sale of the swamp lot were applied to the payment of the debts of the testator. . It is alsoadrnit-ted that all the personal estate had been absorbed by the payment'of debts in New Hampshire. The question arising from these facts of the case, is, whether a de.ed of land in Rhode Island, made by a New Hampshire executor, qualified if) New Hampshire, and not. ih Rhode Island, the sale being fairly,made for the payment of-debts, and the.deed being' subsequently ratified., and confirmed by the legislature of. Rhode'Island, constitutes a valid conveyance.- It is contended that it does: and if is- at the same time conceded, that, such'a deed -without such confirmation- is kbsolutely void,This-view of the case presents necessarily the question of thepower.of the legislature, ..to. pass the'law.
Noother limit to.the power of the legislature of Rhode Mamdis.Known, than thiat which is marked.out by the constitution .of the United States. Jf any clause in that instru-m'e'nt is expressly or virtually infringed, by the confirmatory act pf 1792, such a violation would render the act a nullity. The national constitution being the only limitation, the Court has nó right to pronounce , a law of Rhode Island void, upon any other ground. It has been said in- England, that an • aet of pthliarojant, contrary, to the principles Of natural justice, Would'be void. Such.an .opinion, in reference to a.law of a .state, has never been intimated iii'this Court.
Butj suppose th^'people, to make ah express grant, autho-rising the legislature to- appoint á man a judge, in ,his own case; or to pass any-láw contrary to natural justice: so long as none pf the prohibitions Of the constitution are violated, what.right has this Court -to interfere 1
What was done in the case before the Court, was with the full knowledge, concurrence,..and assent of Ahé people of ^hode Islands Acts authorising foreign executors to sell real estate, and ácfs confirming void deeds, have been passed evei; since the settlement of .the state. Having.no written constitution, is .the law of Rho,dp Island. The papers in. the case clearly show that the legislature of that state al: ways has exercised supreme legislative, executive, and judicial power (a). There is an executive magistrate, but. he is totally destitute of executive power. He cannot pardon the slightest offence,; he has no veta on ie ;slation; and he cannot appoint a single officer in the- state ; all the executive powers áre exercised by the legislature.
So of \.is.judicial powers; We have courts acting under standing laws-; but one of those standing laws authorizes the legislature upon ¿-petition for a new trial to set aside judgments at its pleasure. Originally, the legislature was the only court in the state. It exercised common law, chancery, probate, and ádmiralty jurisdiction. Its chancery jurisdiction it has never parted with. It is thé best court of chancery to ¿He world. Its probate power; though conferred upon inferior courts, has always been .exercised concurrently with them. Accordingly, we find frequent instances of. wills proved, and administo^itidn granted; by the legislature".
The po.wer of granting-license to sell real estate, of proving wills and'of confirming void'deeds, has been so long and so'-frequently exercised, that it has been known by almost every man in the state. The people,'knowing this usage, have acted under if, and there is hardly an,acre, of land in Rhode Island which, in some period or other, has not .been sold-by executors,administrators or guardians licensed by the general assémbly; or conveyed by void deeds, confirmed by that body. To draw into question the validity of such conveyances, would shake.,almost every title in the state. -
Resort however to the extraordinary powersoi the Rhode Island legislature to protect the present conveyance, is unnecessary. Every legislature in the union possesses similar authority, unless expressly restrained by its local constitution. The subject matter of the conveyance was land lying within the state; and, consequently, exclusively within the jurisdiction of the state. How the land shall pass fr„om one man to another, whether by deed under seal, or by' mere delivery ; how it shall be appropriated to the payment of debits whether by attachment and sale, or by mesne or final process ; or whether it shall be totally exempted from attachment; what form shall be observed by executors and administrators, selling for the payment of debts; How they shall be qualified, and from whom they shall obtain a licerise; whether-the deed shall precede the license, or the license precede the deed; are all questions to be decided by. he legislature : and their decision is conclusive upon all mankind. Whether they decide by .a general law or a special act. is matter exclusively of legislative discretion.
It is however considered unnecessary to attempt to ascertain the extreme limits of state power in regard to its domain. . All the power over that subject, whatever may be its measure; is in the states, A very small portion of it was exercised in the present case. The principles of natural justice were not violated, unless it is unjust to appropriate the property of a debtor to the payment of his debts. No. vested rights were disturbed, because_ Cynthia Jenckes, the devisee,'took the estate subject to the debts of the testator. The .general law of .Rhode Island fiirnished the creditors with various direct remedies against the estate itself.' It was liable in an action against the devise to have been attached on an originé! writ and sold upon execution. A creditor might have taken administration, and petitioned the supreme court for a license to sell. The right of the devisee, therefore, was-subject to such remedies as had been previously provided by the general law, arid also to such remedies as the legislature chose subsequently to provide. The application of the general or the special remedy, would alter but not impair' the rights of the parties. Previous to the sale; the right of the creditor was to obtain payment either from the devisee or the estate. The right of the devisee was to hold the, estate subject to this elder right of-the creditor.- It was at her election to discharge the debts voluntarily, and remove the incumbrance, from the - estate; or to allow the creditor • to proceed uiídér the best- remedy he could obtain. The deed of the exécutrix and the act of the legislature, constituted a cheap and-summary-remedy for the enforcement of the rights of.the creditor. Tf the estate, had not come to the hands of the devisee loaded with the: lien of' the creditors, it might have been -difficult to have considered the act as mferely remedial; for it would have bestowed'new rights upon the creditor and heaped new Obligations ujibn the devisee.
Three propositions then may safely.! be-advanced .in. relation to this act. I. That np' injustice was done. 21 That vested rights were not disturbed. Aad 3'. That .the obligation of contracts was not impaired.
. The power of the legislature to furnish remedies in favour of existing rights, was. exercised to a much greater extent in the. cases, of Calder vs. Brill, 3 Dolt. 386; Underwood vs. Lilly, 10 Serg. & Rawlé,^7y and Foster.vs; The Essex Lank, 16 Mass. Rep. 245, than in; the case before the Court.
It may be urged, that.no notice was given to the devisee; that her title was divested by the void deed of' an unauthorized executrix, sonfirrned by an act to “which she was riot a party, arid the existence of which she was ignorant of üñtil her estate was taken from her.
. If notice was necessary, it iriay safely be presumed, at the end of thirty six years. 15 Mass. Rep. 26. But notice was not necessary. .It was not an adversary proceeding. If the creditors had petitioned for a remedy against the estate, common justice would have required -notice to the devisee. But the petition was by the legal representative of the estate; the legal representative, in Rhode Island as well as in New Hampshire. The power of an administrator is confined jo the state for which he is appointed.. He is not the representative of. the intestate in" any otheir state; But the-power of an executor is coextensive with the estate of the testator. He derives his power from the vnii, and he has. an exclusive right to administer wherever any estate^ may be found. The moment the .testator died, the power of his exe-. cutrix' over his estate in Rhode -Island was’ precisely-the same ,as over his estate, in Nqw Hampshire. It was complete in both states, except as to the bringing actioris and thé sale, of-real estate. She could bring no action in either, until she qualified by giving bond. ‘ She could not sell real -estate in. .either, until she had obtained a license. In ail other respects her power was the same in both states. The will gave her the exclusive right to administer in both states. She had a right to apply for a probate of the will; - and for. license to sell ■ .in both states. The will was the . power. The executrix was the attorney; and every apt which the power átfthorize.d her to do, she could, rightfully perform without notice. There is no difference, in this respect,-between a will apd any other power. The executrix in petitioning the legislature.bf Rhode Island for power to sell, was acting as .the representative o'f.Jonathan Jenckes,, was taking ¿ step.she had a right to.take without consulting heirs or -devisees,' an,d ■ without giving' them notice. • The. general law of Rhode Island authorized an executor to pe-. tition the supreme court for a \i; snse, ‘without .giving hotice. Why should she give .potree when she petitioned the legislature
-. .There, is á widé difference between the right to sell,, and the. right to apply for a license to sell. The former is derived from the decree of a court or legislative act. The latter is from the will itself. These positions are fully sustained in. Toller, on Wills, 41.'65, 66. 70; Lord Raym. 361; Strange’s Rep. 672•; 1 Dane’s Jibridg. '558; Burnley fvs. Duke, 1 Rand. lOS) Jackson vs. Jeffries,. 1 Marshall,- 88 / and Rulluff’s case, 'l Mass. 240¿Rice vs.- Parkman, 16 Mass. 326.
/ It must be adniitted then, that as this act.of thé legislature impaired no contracts, and interfered'with no vested rights, that they had the constitutional power to pass it. ( It must also bé admitted that the executrix had a right to apply for a license to sell, wherever'real estate could bé found, until the-debts were paid; and that there was no more necessity of giving the heirs notice, of such an application in Rhode Island, than there would have been upon a similar application in New Hampshire.
The.:cases in 2> Dallas, 386, 12. Wheaton's Rep. 378,. 9 Mass. Rep. 151,360, 4 Conn. Rep. 209, and 16 Mass. Rep. 260, also show, that it is .no objection to the act that it is retrospective and private.
These constitute all the objections that are anticipated against the legal validity, of. the act. The principal if not the only objection that will be much relied upon, relates to its legal effect rather than to the power of the legislature to pass it. .
The grounds that-will be mainly contended for, it is suppose^ will be these 5 that admitting.that the legislature had sufficient power .to have authorized the executrix to make- a fubwe sale, yet instead of this, they, undertook to confirm a previous sale; that they passed an act in June 1792 confirming auoid deed made in November 1791.. As the executrix in November 1791 acted under, the license ,of.the court of probate in Néw Hampshire, and had obtained no authority to sell from any court in fthode Island, rt is very clear that the. deed, without such authority, was a mere nullity. The bond entered into by the parties, providing that unless the executrix obtained a ratification of the sale by the legislature, is satisfactory evidence that the parties considered the deéd of no validity.
The act of the legislature then confirms a vóid deed, and the' old principle of the common law, that a deed of. confirmation willnot, validate a previous void deed, will be relied upon. In. Co. IAtt. 295, 6, it is said “ a'confirmation doth not. strengthen á void estate, for a confirmation may make a voidable or defeasible estate good* but.it cannot work upon an estate that is void in law.” This is the uni-, form language,of the ancient books, and the reason of the principle is. found in Gilbert’s Tenures, 75. .78. “ A confirmation passes nó nevo estate to the grantee: it is the assent of the corifirmer,. that'the grantee may- hold the estate previously granted.”
This being the rulé between parties to conveyances, it is supposed that a confirmation by the legislature', is tp be construed by the same rule. Cynthia Jenckes, the executrix, in November TÍ91, made a deed of all the right, title and interest of Jonathan Jenckes the testator in the demanded premises. Having obtained no previous license,.the deed was, voiu. The argument is that a deed of confirmation by Cynthia Jenckes the devisee, would have been of no force, and that therefore a confirmation by the legislature was equally void.
Two answers may be given to this very plausible reasoning.. li We deny "that a confirmation by the devisee of the void deed of the executrix' would-have been, invalid; and if it would, we deny,. 2. That it necessarily follows that a confirmation by the legislature, is of the same character.
- Would, a confirmation by the devisee have been binding1? It is. admitted that in general a confirmation of a void deed' is .inoperative. An examination, of the reason of the rule, however, will show its inapplicability to this case. It applies to a deed void for vvánt of estate, in the first grantor. As for ínstancé, A. is tike, owner 'in fee of a lot of land. B. having no title, makes a deed to C. which is a mere nullity;, Afterwards A. confirms to C. the deed'of B. What does this amount to*? - Why, in the'language of,the books, “ to the. assént of-the confirmer, that C.may hold the estate conveyed by B.” Wh.at .was that estate1?. The title of B. If Cynthia, the mother, had conveyed to Brown and Wilkinson her title to the land of Jonathan Jenckes, a ^confirmation of such a, deed, upon strict principles, would have been inoperative. But she acted as executrix; she conveyed "not her own, but the title of. Jonathan Jenckes. A confirmation by the de-visee, would have been, an assent thpt. the grantee should hold “ the estate” conveyed by the Heed. Whose estate1? Why the estate of the grantor. Who was the grantor"? Jonathan Jenckes, by his agent Cynthiá Jenckes. A confirmation of a deed, is a confirmation 6f the title professed to be conveyed by that deed. Had Cynthia Jenckes conveyed her title, a confirmation would have established her, title. ' As she conveyed the title of Jonathan Jenfckes, it established his title in the grantee. The, deed .of the executrix'was void for want of authority, not for want oí estate; and a subsequent confirmation of avoid authority is .equivalent to a previous grant.
It is therefore denied that a confirmation by the devisee, of such a deed, would have been inoperative. But suppose it wóüld; does the consequence drawn from that position necessarily follow, that a Confirmation by the legislature must share the samé fate ? Is an act of the' legislature to be construed by technical rules..of conveyances, or by its main- scope and design,? What was the sole object of applying to the legislature ?’ The answer must be., to authorize the executrix t6 convey the title of Jonathan. Jenckes to the grantee; The language of the1 petition and the act are very pointed to this éflfect.
The whole doctriné of confirmation, however, is. applicable only to deeds which contain no other than technical words of. confirmation. Whenever .an, intention is manifested Jó enlarge the estáte of the grantee, such intention shall prevail. . Co. Litt. 296, a,.
■ Without any further refining upon obsolete rules however,it is enough for our purpose,' that éven in England none of these rules ever applied to a, confirmation by .act of parliament.
.One other view may be taken of the case,-which will relieve it-of all objections arising frona.' its retrospective and confirmatory character.
This view is to consider the deed, the bond, and-the act of the legislature, as one conveyance,.having a preseni-ope-jration. The parties knew that-the deed was void;, they knéw that no title passed to the grantee. . How then could they intend that it should - operate until after the act was, obtained ? It-would be idle to contend that the parties meánt a deed to. operate, which they themselves declare to ■be inoperative arid- void. The deed was executed and. delivered in November 1791, but the deed was , only a part of the conveyance. The act of the legislature was.contemplated as anpfher essential part;- and when the act was obtained, it was in its legql effect a license .to sell the estate, and the deed was given subsequent to, and under the license. The authorities fully sustain this-position.
“ ,In the -execution of a power, .in order that, the deficiency of an instrument may be supplied by the-sufficiency of another, it must appear that the parties intended they should operate conjointly.”., 3 East’s Rep. 410, 438; Earl of Leicester’s ,case, 1 Pentris, 278; -Herring vs. Brown, Carthew, 22.; 3 Mass. Rep; 138; 1 John. Vh. Rep. 24Ó.
If, however, there, had been originally an incurable defect in this conveyance, an acquiescence oí thirty six years estops the parties from’ now making their claim.
“ Yet even heirs and. creditors are. concluded after a long acquiescence; and a legal presumption of the regular exercise of authority is accepted instead of proof.” 15 Mass. Rép. 26.
The history of the case is,' that there' lived a man of the name of Jenckes, who had acquired real estate in Rhode Island; he made his will in 1774, in which he devised his estate to his daughter Lydia for life; and the reversion to jiis son Jonathan Jenckes. Lydia survived Jonathan Jepckes, who, eight year's after the • death of his father, made his will, and gave the reversion of the estate to his daughter Cynthia Jenckes.- At this time Jonathan Jenckes Jived at Winchester in New Hampshire, where he died in 1787. He appointed his wife, whose name was Cynthia, the executrix of his will,' with another person who never' acted.
The will provided for the payment of debts;-and if there was a deficiency in-the personal' estate, that specific portions of the real-estate should be sold for the purpose. Unhappily the executrix entrusted a person who was employed by-her’, and who took' upon himself' to. do every thing. He acted as agent, commissioner, and pu-rchaseT. He also got an agreement for her dower, and sent her to Vermont, where she died. It also .happened that'a large estate, at'that time, turned out to leave but £15 7a. 6d. The minors came of age; by good conduct they raised themselves from' penury, and have brought their case before this Court.
There is no dispute down to the will, of the elder Jonathan Jenckes, or-o'f his son. The plaintiffs below claim under thei will.. .The will was proved and admitted, and the question-is,, whether the plaintiffs in error are . entitled to hold the-property. First, it was pleaded, that the plaintiffs below were barred by the statute of limitations',- but this has been overruled. They had a title by devise and inheritance, and the question is, whether any one-has derived a title from their ancestor which can take it away.,
, The question turns only on the validity of the title of the plaintiffs in error; who say they are puoNasers under Moses Brown and Oziel Wilkinson. That the la;. ’ in controversy went out of the family; Jonathan Jenckes, the ancestor,, having, died leaving debts, and the .executrix having made sale of the lánds for their payment.
The will of Jonathan Jenckes was proved in New Hampshire in 1787 : the debts there were all paid.
The defendants in.ihe circuit-court produce a deed from Cynthia-Jenckes to Moses Brown and Oziel Wilkinson, of November 12, 1791, and a confirmation by the assembly of Rhode-Island. W^at is the character, and what are the, powers of the legislature of Rhode Island, will be examined in the course of the argument. The deed purports to pro-eéed by the authority of a license, granted by the'judge of probate of New Hampshire. It is npt material now to show tliat all the proceedings in New Hampshire were void ;- they •were all contrary to the law of the state. If the land laid there,- the deed would be declared void.
One-view is. to be taken of this question, which is not to. be .lost sight of. The laws of the New England states make lands subject to debts. What is the- nature of this liability1? Where is the title of the land, until it shall 'be known that it will be wanted for the payment of debts ? It is in the heir or the devisee, and the personal representative has qothing but -a power to sell it for- the payment of debts. He has a power to sell only on the arrival of certain events; and he who is to exercise that power, must show that those events have arisen.
This power does not exist until the event happens to make it necessary to sell the land..
Every, principle of law requires that'when this power is exercised, it shall be'proved that the case exists to. require its employment.
The cases decided'ip. the coürts of Massachusetts upon the statute of that state, which is like the statute of New Hampshire, show, that the. party claiming under a deed for lands sold for the payment of debts, must show that the event on which, the power to sell depended had occurred.
By the law? of New Hampshire the heirs are always to have notice when the estate is to be sold. They also require an inventory of the estate and an order to sellin this case there was nothing of that kind; there was only a license .to sell without any other proceedings. No account was filed in New Hampshire which took any notice of the debts or property in Rhode Island. Cases cited, 11 Mass. 511 .12 Mass. 503. 6 Mass, 149.. 3. Mass. 259. 1 Mass. ’40, 46. •
It will be seen, from the record, that the will was proved in March, and the license to sell, was granted in July, without an inventory and account being made out. The cases cited show, that the judge of probate has no jurisdiction unless it appear that there was occasion to sell. It is contended that if the. proceedings in New Hampshire could give ho authority there, they could, give, none in the state of Rhode Island.
-There Were no proceedings in Rhode Island except the fiat of the legislature. It is not pretended that thefe were any proceedings in Rhode Island required by the' laws of New Hampshire.
’ Then the first proposition is, that the deed from Cynthia Jenckes to Brown and Wilkinson was a nullity. It created no right in law or equity. It was. as the act of a'stranger, to grant land-which did.not belong to Him.
This follows, because, 1st, the deed would have been void in New Hampshire. '•
2d. Because proceedings to divest rights to land," must be according to the law of the land.
It is contended that the powers of the legislature of Rhode Island are uhlimited and unrestrained, that they transcend all the powers of the other branches of the government. It is not sufficient' to. show that the power to divest .this property would be limited in England, for- the powers of the legislature of Rhode Island are beyond those of the English parliament. It would be well to consider how Rhode Island cari be a member of this union, with such a form of government as is asserted to exist there: By the constitution.of the United States, every state must be a republic, every sítate must have a judiciary, legislature and executive, or it is has no constitution.
It is said that Rhode Island has no constitution; that she has grown up without a constitution. Jf her government has no form; it cannot be a republic, arid- has no right to come into th'e unit. . But it will be found that Rhode Island has a constitution. The. charter of Charles H. contains all the provisions for the organization of a government with, legislative, judicial and executive branches. It declares that courts of justice shall be established, and thus to them is given the exercise of judicial functions. The legislature is established by the .same charter, and its functions cannot be judicial. The powers of a court and.of a legislature cannot be. blended; nor are they properly under the charter referred to.
If the legislature of Rhode Island has judicial powers, why\ does not a writ of error lie frem this Court to its judgments1? Writs of error go from; this Court to the highest judicature of the states; but it is not denied that Rhode Island has courts of judicature separate from the legislature^ taking cognizance of all cases for judicial decision. The legislature therefore in assuming the powers of a court, which was done .when they authorized the sale of the land for the payment .of the debts, did what; even under the Rhode Island constitution, they could not do.
A long list of instances of legislative interference has been exhibited by the counsel for the appellees. ,:Some of these cases prove too much. . Authority is given in one of them to sell lands in- New Hampshire.
It is necessary for the plaintiffs-in error to shqw that the power has been exercised agáinst the bill, in invitum. Parliament, in England, never proceeds upon any private bill, without notice to all the parties; and there is no case in. which parliament exercises its authority to dispose of land, without the consent, in-writing,, of every one who is interested. .
The consent of the heirs of Jonathan Jeiickes is not recited in the act of the legislature of Rhode Islánd. To establish a usage for .legislation off this kind, it should be shown, that there have been a series of proceedings against the will e, parties interested, and without. notice.
There is but one of the cases referred to, in which the legislature of Rhode Island has undertaken to act in reference to private rights,' which shows that they have given authority to sell lands out of the state. The power must be exercied legislatively, ox judicially. Is the resolution of 1792 an act, or a decree “? Is it .a_ decree of a -probate court “N if it is, then' it.should be shown that the parties were before the court, or that notice was' given to them.
, It is immaterial. which it is. The case -will always be, that the devisees of Jonathan Jenckes had this land _until the deed; and that deed -is, by the counsel Of the. plaintiffs, ádmitted to be void. . '-It remained, therefore, with the heirs, until the resolution or act of the legislature.
• Even taking the land to be public domain, the deed would not pass it. It is not operative. It contains no.terms of grant, or language of transfer.
The resolution only establishes'.the deed in its form. There are no- words giving, grántirig, vesting; or divesting - of the estate; all that, is done is to ratify and confirm-the deed.’ If the confirmation -contained words- of grant, it would enure as a grant; but this is not the fact.
If the' preceding act, that of making the deed for the land to Brown &-Wilkinson, was void, there are no words in’the law to give it validity.
From Bracton down, it has been law, that a.confirmation cannot help a void deed. 2 Thomas’s Coke, 516. Gilbert oh , Tenures, 75. 78.
If there is no precedent éstate, the confirmation is void. 4 Dahv. Abrid. 410. There is no .case where confirming words go further .than to apply to the thing itself.
The deed was a nullity; to confirm, it in its then state, was to keep it such. At that'moment it was void; to confirm it was to render it void permanently.
It is as if A. a creditor of B. should go to the legislature and ask that B.’s property be transferred to himj. without a trial. It is a condemnation without a. hearing, a confiscation of property in time of peace. There is no case in whiefi such legislative proceedings have stood the test of this Court. It is a. case where land was vested, in those who claim-it, and has been taken from them. There was no application to the legislature Of Rhode Island by the creditors; no evidence that the interference of the legislature Was-claimed by them- What then are the facts of the case The lands descended to the heirs of Jonathan Jenckes. The heirs, weré in New Hampshire. No creditors applied for the aid of.the legislajxire. There* was no notice to the heirs. The deed of the executrix was" entirely void; and there is no pre-. tence for saying, that the interests of the heirs were in any manner regarded in the course of the proceedings. Under these factá the law was passed; and whatever words were used, if could not have any effect, for want of power in the body which enacted it.
This is a private act; and upon every principle and rule of legislative proceedings, all the parties to be affected by it, should have had notice, and should have consented to it. This is the course of legislation in the British parliament. 3 Blaék. Com. 345.
It is of no importance to the question before the Court, whether there are restrictions or limitations, to the power, of the legislature of Rhode Island, imposed by .the constitution. Jf at this, period* there is not a general restraint on legislatures, in favour of private rights, there is an end to private properly.
Though there may be no .prohibition in the constitution, the legislature is restrained from committing flagrant acts, from acts subverting the great principles of republican liberty, and of the social compact; such as giving the property of A. to B. . Qited 2 Johns. 248; 3 Dali. 386; 12 Wheaton, 303; 7 Johns. 93; 8 Johns. 511.
In this case it may be considered that the legislature'^ave the act, but they did not guaranty its validity. They gave it because it was asked for, but subject to all-exceptions.' They put it in the power of the persons who were interested in its operation, to make it valid by obtaining the assent' of the devisees, and of doing all other acts which were necessary to give it validity.
It is said, that were the state of Rhode Island under the restrictions- of a written constitution, like other states, the power to pass such a law might not exist; but there the legislature acts by the sovereign authority of the people; who may build up and destroy. This is denied. Rhode Island must be a republican .state, and the government must be divided into departments,' and' must be a government of laws. These departments may exist, although the same body exercises the functions of both. This is done in New York. But where a legislature acts judicially, it proceeds according to the forms, and upon the principles which regulate courts. In this case, the legislature áeted legislatively. The language is, Resolved: judicial tribunals deere§,~ adjudge.
As to the precedents which have been referred to, from the proceedings, of-the legislature of Rhode Island, it may be well observed, • that the same irregularities will be found in the early proceedings of the governments of'all the states, before the principles of government were understood or applied. The answer to them is, that the rights of property were, not then well understood.
Or if.we consider the words operating not on the instrument, but on the title ; if they had been, “ confirm and ratify the title set forth in the deed;” still it passes no title. There was nothing in the grantees to confirm. Confirmation, •to enable it to operate, requires privity;
Where was tl>e, fefe in the property from November 1791 until Í7.92 ? It was with the heirs; and from them it cbuld not be talien but by a course of judicial proceeding.. The legislature, by no form of words, could have divested the land out of the .heirs, and vested it in'the purchasers.
The general ground assumed by the' defendants in error is,- that the act of the legislature is inoperative, because it does not. divest their’rights;"for the legislature of .Rhode Island had no. right to- pass such a law. The law itself is intended ás a. remedy* and was no more. Its. purport is to establish .'a sale made, for the paympnt of debts, and its terms import no Wore.
It is said, that no interest in the land existed in the de-visees of Jonathan Jenckes, because. .they took the estate loaded with the debts of the devisor. ■ This inference is. incorrect; that* their estate might be . made subject to these debts, did hot prevent its vesting in the claimants, and those under whom they make title. It iá agreed that this estate might bo divested; but only by judicial proceedings. The argument is, that the' property Could- hot be takpn away, without proceedings of a judicial character,
It is said, the statute gave a .remedy, because the creditors had a right to be paid put of .the estate, and that this, was an interference for their benefit. : If it had been a proceeding1 to bring rights into adjudication, it would be so; but in, this case the1 rights of the devisees were adverse to those of the executors', and to the claims of the creditors.
It is a matter of surprise how the strongest minds will err ■when they look through the misjt of prejudice. Nothing more has been done in this, case than Is done by the courts of probate in Vermont and Massachusetts, . What is the monster that. the gentleman has created1? It is that the legislature has authorized an executrix to sell'lands for the payment of debts; “ This.is the very head and front of their offending.*’ It was a mere act-of common justice, due and performed in the course of justice in all the states of . the union. The facts .of the case maybe briefly stated from the bill of exceptions. Jonathan Jénckes died, in 1,787, seised of the. lands, subject to a life estate to. Lydia his sister. That estate was devised to his daughter, subject to the life estate. Cynthia Jenckes, his wife, was executrix, and qualified. At the time of his death there were debts which absorbed all. his personal estate, and ultimately all his real estate but a small' portion. The judge of probate, after examination, gave a license to.sell the real estate. * It was sold by the executrix to those under whom the plaintiff in error claims, the sale to be confirmed by an act of the legislature of Rhode Island where the lands laid. The legislature passed a con-, firming act, and the purchase money was paid, and the debt's of Jonathan Jenckes were discharged.
The purchase was made oh the faith of the law. of Rhode Island; the money paid.upon the. faith of that law; and all this was done, thirty-four years before the ejectment was brought in the circuit court of Rhode Island. In the mean time other ,bona fide purchasers have become. possessed of the land : and who come forward now to claim it1? — nob other bona fide purchasers^ but the heir§ of Jonathan Jenckes.
The attempt here is, to make/the lands fulfil two purposes, 1. ‘The payment of. the debts of .their father by- the sale;' and 2. Then to recaí that sale, that the lands may suppo'rt-the heirs of the debtor. The claim is against all the pofifc'y, and the.coursé of proceeding in New England.'
The case comes here under a pr,o forma judgment of the., circuit court. The inquiry is, whether .the court erred in giving the instructions asked for ; in saying that the conveyance and proceedings, by which the title was'intended to be vestedi in the purchasers, did- not divest tiie. legal estate of the heirs of Jonathan Jenckes.
In Massachusetts and Rhode Island all the estate real and personal of the deceased, is subject to the payment of debts. All the statutes of the northern states, .although they vary in detail, contain this principle. Bigeloio's Digest,. 350. 4 Mass. 354. 18 Mass. 157. 4 Mass. 654. • 3 Mass. 258. 1 Mass. 340.
By a reference to these authorities, it “will appear that in order to justify a. license to sell in either of those states, nothing more'is- necessary but to satisfy the judge that the personal éstate is not sufficient to discharge the debts of the deceased. No form of proceeding is required. It is done by presenting the account of the debts and- personal estate, and the judge then gives the license.
Objections have been- made by the counsel for the defendants iq error, to the proceedings in New Hampshire. It is said they were a nullity; that' they were irregularly granted.- , This is- denied, and no authorities haVe been shown in support of the objections. .' It has been urged that notice should'have been giveiuto the heirs. There has been no case cited in Massachusetts which looks to the necessity of notice to the heirs of the application for. a license to the judge of probate;
The regularity of the proceedings is to be presumed, after . so- long a lapse of t-ime.^ If notice is -required; if evidence ■ different from that which” js shown to have been exhibited before the. judge' of probate was necessary; it is, and ought to be Considered that-it was-furnished. .
In legal-contemplation, both the real and personal éstate of a deceased person, go intp the hands of the executor for the payment of debts. 4' Mass. 364. 18 Mass. 157. Exe-.
cutors have no right' to take possession of-the'lands, but it is often done with the approbation of courts.
To show how córnpletelyjarids are in .the hands of executors, where a judgmeni is obtained. against executors for the' debt pf the testator, the plaintiff may issue his execution against the lands, in the hands- of the heir.. 3-Mass. 258.
■ ■ It is true the title-descends to the heir, but it descends .subject to the debts. The heir takes the lands; liable tó their being taken'from him when the debts require it; without proceedings against him, and Without notice to him. JBige-r low's Dig. 355/ Nor is it only in the hands oCthe heir they are thus liable, they continue so when they have passed to his alienee.
Such is the law .of vested estates, with which it-is said the legislature has interfered. The estate upon, which the law-.operated, was held by the heirs, subject to- the exercise of the very power by which it was taken from the heirJ
The law of New Hampshire is the sam^s as that of Massachusetts. In New Hampshire, the proper tribunal to autho-rise the sale of the land was. applied to; and'thus the acts done by thé.executrix were those which the testator., who directed a sale of his real estate for the payment' of his debts-, authorized her to do.
But if these proceedings were irregular, it would not affect the case. It is not meant to contend that the licenseáto sell, given by the judge in New Hampshire, authorized the . sale in Connecticut. What was the power of the executrix under the will 1 As an executrix, she had the power'to do all and every thing an executrix could do by law. In some. of the states, executors who have been qualified in one.sfate,. can act in all. This is the law of Pennsylvania, and of North Carolina, and of Mississippi. Under the will of her husband, Cynthia Jenckes could do any thing in Rhodé Island, which she could do in New Hampshire. She entered Rhode Island as the regular agent, to pay the debts due by the testator. The probate, of the will only was necessáry. In this character she made a sale of a portion of th'e estate, having- no authority to'do so; this is admitted. In order to induce'the purchase, she gave her bond, by'which'it was stipulated that she would obtain an act of the legislature to make the sale valid, and this was done. Thus the principles of the laws of Rhode ■ Island were applied, and the estate became the means "of discharging the debts of the testator. .
By a-.comparison of the acts of the courts of other states, w.e shall see how far the act of Rhode Islan'd exceeded the ■powers1 exercised by them. It is said that this is a case of a trial without notice; a confiscation! In no-case where .proceedings against executors are resorted toj for the purpose of making lands a fund to pay debts, is notice given to heirs, — not in the courts of other states, — but in the court of •probate.in.Rhode Island, or New Hampshire, The reproaches-which; have been, cast upon the ácts. of Cynthia Je:nckes, apply,- therefore,, with .equal right ..to all proceedings of this description; nor is there any. reason why notice should be given to .the heirs; they take-the>estate as has been stated, subject to-the debts of thfesuncestor.
It has been said that in the proceedings there was fraudj that the legislature were deceived. This is denied: but if it were So,1 would this Court set aside*the law; the remedy in such a case would be by an application to the sovereign who had been deceivéd. .
The legislature passed the law for the purpose of giving validity to an act; which'all knew without'it would not pass the estate.
- The petition of Cynthia Jenckes was not that they should rátify th’e deed, but the. sale.; that is, thpt the sale should be effectual to convey the estate of the testator.
• Who is the sovereign that can give validity to measures which are intended, to pass the title'to lands within the state? . Is it hot the-legislature of.the .state, and are not its acts ef-,. fectuál to do this, unless they come in contact with the great principles’of the social compact? What power has this Courtto say this deed shall riot pass tue estate? With which of the principles of the. constitution of the United States, is it in conflict ? Where is- the provision; which i,t opposes ?. Ii is not an, ex post facto law. The prohibition in the constitution in reference to ex-post" facto laws applies to criminal enactments. ' Is.it a law .which impairs the obligation rifa contract? It affirms a contract. It is said tp be incompatible with a republican government.
: It denied-that legislative; executive, and judicial poWers must'be.in different fiánds' to constitute a republican form of government; That this-should be so is a grea’t and important principlej but it is noi a test of republican government.. There is nothing which prohibits the. exercise of all the powérs of government by a legislature'. If the guarantée of a republican form of government' by the United States was violated by the government of jtbode Island, why had . nót the United States interfered?
The charter of the government of Rhode' Island is a ské letón'; it does not form the government. It. is the- usages of -Rhode Island that compose the constitution. The people say th.eir legislature shall have certain powers, and' be unlimited ; this is.-therefore the form of government with which they are satisfied.- Politicians may protest, and orators may declaim; but this does not affect the case. This Court will not take away from them What they have said they will have.
The references, which have been made to the proceedings of the legislature, show that it exercises all kinds of power, •It is said this.is.a new-case; suppose it is so, is it necessary tó show the1 authority for the first law ?. The authority is that 'of the people/. The legislature, always , has acted as the emergency presented; Whom do they injure ? They do hot, infringe their own constitution; and when they do so, it is for the' people of the state to interfere. They.do nothing, which is contrary to the constitution of the United'States.
If the legislature of Rhode Island, possessed .the-power to order a sale, why not have power to confirm the sale? -There is no exercise of á greater power here. A court of probate might not do it, but that court is limited in its powers. A subsequent. ratificatiori is equivalent to a prior, authority.
It is said that the stale has done whát parliament could not have done, BlaCkstone has been: referred to, to show, that private acts do not pass without notice. . Parliament cuts the knot and destroys contracts, and therefore notice is necessary.
> There is no violation of contract in this act; the law only supposes an omitted cáse;, and gives a remedy where the principles of law require it.
It is contended that the confirmation has no effect, because it operates on a void deed.. A reference to authorities will show the error of this assumption. 1 Roll. Ah. 483, Ld. Rayrn. 292. 297.
Cannot parliament confirm a void deed? . They can do so, and the right has néver been questioned.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
