no jurisdiction. The President of the United States, in whose name the writ issues here, has no power to confer jurisdiction upon this court, as the king has in England, in whose name the writ issues there. Here it is given solely by the Constitution and laws. It is a mere instrument in aid of the revising and appellate power, but is not indispensable. Its sole purpose is to bring the record into court; and if the record is in court, or a copy properly certified and brought there by the party aggrieved by the judgment, with due notice to the other party, there can be no difficulty in proceeding to exercise the appellate power. In order to show that if a copy of the record be in possession of the court the mode of its removal will not be inquired into, it may be mentioned that a large portion of the cases brought here under the 25th section are brought without writs of error, viz., chancery cases and admiralty decrees, which are brought simply by a prayer of appeal with citation; and yet the 25th section requires a writ of error in all cases, decrees as well as judgments. In Martin v. Hunter, the State court refused to make return to the writ, and the plaintiff in error procured an exemplification of the record and brought it himself into this court. (1 Wheat., 349; 6 Wheat., 264.) If a writ of error is a mere mode of removing the record, and if the mode of removal is form and not substance; if it gives no jurisdiction to the court, but is a mere instrument to facilitate the exercise of the appellate power, then we contend that any defect in the writ itself, or any irregularity in issuing it, is immaterial. 1. It may be waived. The general rule is, that irregularities and defects in the process or pleadings may be waived.

A writ issued with an illegal teste, may be waived. (2 Pick., 592, and the cases referred to in p. 595.)

703*] *21 Pick., 535. The action was against a deputy-sheriff. The writ was served by a coroner; service bad, but cured by appearance. 1 Metc., 508. A motion to dismiss the action, or quash the writ, if not founded on matter of exceptions, which show want of jurisdiction of the court, comes too late after pleading to the action.

The

In this case the facts show a waiver. record was filed 24th October, 1842. There was an appearance. This is the third term the case has been here. There was a motion for certiorari at last term. All which make a strong case of implied waiver.

2. If not waived, the defect is cured by the 32d section of the Act of 1789, (1 Paine, 486.) But we contend that the writ was regularly issued. The record shows a petition signed by the counsel of the plaintiff in error, and addressed to the Supreme Court of Louisiana, assigning reasons why a writ of error would lie, and praying that it may be allowed. Upon which, that court issued the following order: "Let the writ of error be allowed according to law. The petitioner to give bond and security in the sum of five hundred dollars.

(Signed)

"F. X. Martin."

From these proceedings it is manifest that the State judge thought he had authority to issue the writ. (See dictum of Johnson, J., 1 Wheat., 379.)

There is nothing prohibitory in the section. It says "upon a writ of error." but does not say when or how it is to be issued. The provision respecting a citation shows that it was the design of the law to promote the convenience of suitors. To allow the suitor to apply to a State judge for a citation, and yet compel him to go to the Circuit Court for the writ, would conduce nothing to his convenience.

It may be said that our construction would lead to the anomaly of a court issuing a mandatory writ to itself. But, in fact, this is no anomaly in our legislation. By the Act of 1792, sec. 11 (1 Story, 260), the writ of error is directed to be issued out of the Circuit Court, under its seal, returnable to this court.

2d. The judgment is said not to be final. [Mr. Meredith's argument upon this point is omitted.]

3. As to the jurisdiction of this court. A classification of the cases in which jurisdiction is conferred, is made in 10 Peters, 398; 16 Peters, 285.

What appears, then, from the record, and the decision of the court?

It is apparent that McDonogh relied upon the confirmation of his title, by the report of the register and receiver, and the act of Congress. The district judge decided that his claim was not embraced by the act; that there had been no confirmation.

If the writ of error had been taken to this judgment, there could have been no doubt of the jurisdiction.

A construction of the act was direct- [*704 ly drawn in question; and the decision was against the right and title specially set up and claimed by McDonogh under the act.

The writ of error, however, is to the judgment of the Supreme Court.

It is apparent that in that court, also, McDonogh relied upon the confirmation of his title by the act of Congress.

What title?

A title to the whole extent of his claim, as established by the evidence of a survey before the register and receiver, and by them so confirmed.

act.

Whatever they reported was confirmed by the And in the absence of all evidence of a prior title out of the United States, the report and confirmation were conclusive. (Strother v. Lucas, 12 Peters, 410; Grignon v. Astor, 2 How., 319; Boatner v. Walker, 11 La. Rep., 582.) But the Supreme Court decided, that assuming the confirmation of the act of Congress, it was a confirmation of the bare title, without any ascertainment of location. And that although no title was shown by Rightor, they had a right to look beyond the confirmation, and ascertain the extent and boundaries of the claim.

Now here again, the construction of the act of Congress was drawn in question: for MeDonogh relied on it as a confirmation of his title for the whole quantity of land, claimed before the register and receiver.

But the court gave a different construction of the act; and therefore decide against the right and title specially set up under it by McDonogh. It is a case, then, clearly within the 25th section.

The question in the Supreme Court of Louisiana was one of boundary. The court passed on the grant to Dupard only, and not on the opposing claim; if the lines of the former did not open in their production from the Missis'sippi, towards Lake Maurepas, then the land claimed under Millaudon's title was not embraced by Dupard's grant, and no necessity existed for the examination of Millaudon's. Dupard's was made in 1769, "for thirty arpents of front to the river Mississippi, upon the whole depth that shall be found, unto Lake Maurepas, of the land where heretofore were two villages of the Collapissa savages; to take from the plantation of one Allemand, unto its junction with that of a person named Joseph Lacombe." The front being ascertained, the court below held that the extension back must be on parallel lines. As this construction excluded the land claimed by Millaudon, it ended the controversy in his favor.

Did this final judgment draw in question the construction of a treaty or statute of the United States; or of an authority exercised under the 705*] *same: and was the decision against the validity of either; or against the title, or right set up or claimed under either? If these questions are answered in the negative, it follows we have no jurisdiction to re-examine, or reverse the judgment under the 25th section of the Judiciary Act; as no other error is within the cognizance of this court.

1. The treaty with France, of 1803, gave no further sanction to the boundary of McDonogh's title than it had by the grant; in respect to its validity, the decision of the State court supported the claim to the same extent that the treaty protected it, and therefore the decision was not opposed to the treaty. A question partly involving this consideration was adjudged in The City of New Orleans v. DeArmas (9 Peters, 225), to which we refer.

2. Was the decision of the Supreme Court of Louisiana opposed to any act of Congress? Dupard's grant was completed as early as 1769, and presented to the register and receiver as a complete title; was thus reported on by them to the general land office, and by that department the report was laid before Congress; it is as follows: "No. 406.

"John McDonogh & Company claim a tract of land situated in the County of Acadia, on the east shore of the river Mississippi, sixteen leagues above New Orleans, containing thirtytwo arpents front, with a depth extending as far as Lake Maurepas.

"This tract of land has formerly been claimed before the board of commissioners, and, the depth extending beyond forty acres, rejected by them, for want of evidence of title; but the claimant has since produced a complete French title to the whole quantity claimed, in favor of Pierre Delille Dupard (under whom he claims), dated 3d day of April, 1769.”

day of November, 1816, and recommended in said report for confirmation, be, and the same are hereby confirmed, against any claim on part of the United States."

McDonogh's claim, No. 406, is of class first, species first, in the report, including twenty-one grants, of which the register and receiver say: "All the preceding claims, being founded on complete titles, are in our opinion confirmed by law." (3 Am. State Papers, 255.) This is explained in page 267, where it is again said: "Those claims which are found under species first of the first class, being founded on complete grants of former governments, we think are good in themselves on general principles, and, therefore, require no *confirmation [*706 by the government of the United States to give them validity."

Many incomplete titles were recommended for confirmation, and confirmed by Congress, but in these cases the former governments had not parted with the ultimate interest in the land, and the fee was transferred to the United States by the treaty, with the equity attached in the claimant, which equity was clothed with the fee by the confirming act. The perfect title of McDonogh being clothed with the highest sanction, and in full property, on the change of governments an assumption to confirm it would have been pregnant with suspicion that it required confirmation by this government, in addition to the general law of nations and the Treaty of 1803, which secured in full property such titles. That the grant stands recognized as complete and valid against the United States, and anyone claiming under them, by the proceedings had before the register and receiver and by Congress, we have no doubt; further than this, the government has not acted on it. In such sense similar titles have been treated, as will be seen by the two acts of May 8th, 1822-the first confirming lots in the town of Mobile and claims in West Florida; the second sanctioning the reports of the registers and receivers of the land offices at St. Helena Court House and at Jackson Court House, in the districts east and west of Pearl River; in regard to which reports Congress says: That all complete titles (reported on as such) be, and the same are recognized as valid and complete against the United States, or any right derived under them.

But in McDonogh's case, as in other similar ones referred to above, the recognition extended only to the boundaries the grants themselves furnished, according to their landmarks, and true construction under the local laws in virtue of which they were obtained.

If the fact assumed was true, that the plans and descriptions had been confirmed, and boundary given to the title according to them by the United States, then the decision would be opposed to the confirmation, and jurisdiction exist in this court.

There can be no doubt such plans and descriptions were filed and recorded in due time, but no evidence is found in the record that the register and receiver acted on them, or that they were presented to Congress even as documents accompanying the reports if they were, it is manifest that they were disregarded, for two 707*] reasons; *first, because Congress did not assume the power to deal directly with this title at all; and, second, because the report had reference singly to the face of the grant, regardless of private surveys made subsequent to its date, at the instance of the successive owners. The State court held McDonogh's title to be valid to every extent that it has been recognized by the United States, and only applied the local laws of Louisiana in its construction, so far as they had a controlling influence on the manner in which the side lines should be extended from the Mississippi River towards Lake Maurepas; and as, in so doing, neither the Treaty of 1803, nor any act of Congress, or authority exercised under the United States, was drawn in question, this court has no jurisdiction to revise the decision of that court; for which reason, the cause must be dismissed.

The clerk of the Supreme Court of Louisiana issued the writ of error, and one of the judges of that court signed the citation; and, on the ground that such writ could not remove the record, it was moved on a former day of the term to dismiss the cause. It has been here for two terms; a writ of certiorari has been sent down, at the instance of the defendant in error, in whose behalf the motion is made, to complete the record; he now moves to dismiss for the first time, and we think he comes too late. If errors had been assigned by the plaintiff here, and joined by the defendant, no motion to dismiss for such a cause could be heard; and as no formal errors are usually assigned in this court, and none were assigned in this cause, we think the delay to make the motion is equal to a joinder in error, even if the clerk of the Supreme Court of Louisiana had no authority to issue the writ, on which we at present express no opinion.

A law of the State of Indiana, directing "that real and personal estate, taken in execution, shall sell for the best price the same will bring at public auction and outcry, except that the fee-simple of real estate shall not be sold to satisfy any execution or executions, until the rents and profits for the term of seven years of such real estate shall have been first offered for sale at public auction and outery; and if such rents and profits will not sell for a sum sufficient to satisty such execution is not merely directory to the sheriff, but restrictor executions, then the fee-simple shall be sold," ive of his power to sell the fee-simple. ously offered the rents and profits, his deed is vold. If he sells the fee-simple without having previ

The law of Indiana, passed after the execution was issued, also required that the property should The sheriff's deed was not void, bebe appraised. cause of there being no appraisement.

This case came up on a certificate of division from the Circuit Court of the United States for the District of Indiana.

*The facts were stated by an agree- [*708 ment in the nature of a special verdict, and were as follows:

"On the twenty-fifth day of December, eighteen hundred and thirty-eight, one Jacob Linzee was indebted to Daniel W. Gantly, of the city of New York, in the sum of nine hundred and nine dollars and eighty-two cents; and, to secure the payment of the same, Linzee then executed to Gantly a mortgage on town lot numbered one hundred and seventy-nine, in Peru, Indiana, of which Linzee was seized in fee. At the time of the execution of the mortgage, Linzee was in possession of the mortgaged premises, and they were worth from one thousand to fourteen hundred dollars. Linzee made default in the payment, and Gantly, on the eighth day of September, eighteen hundred and forty, obtained a decree in the State court to foreclose the mortgage; and unless the money should be paid in sixty days, an execution was directed to be issued for the sale of the premises.

"In January, eighteen hundred and forty-one, an execution was issued, and on the thirteenth of February following, before the sale of the property, the appraisement law passed, and was published, the twenty-third day of February, eighteen hundred and forty-one; on the first of March, eighteen hundred and forty-one, the sher iff, having given due notice, sold the premises at public auction, to the defendants, for seventysix dollars, and executed a deed to them for the same; which deed was offered in evidence to support the title of the defendants. The property was not valued, nor were the rents and profits offered for sale by the sheriff. And the court was asked to instruct the jury that, as the rents and profits had not been offered, nor

Plaintiff, V.

the sheriff's deed was inoperative and void. And on this question the opinions of the judges were opposed; and on motion of plaintiff's

Defendants.

Indiana statute-sale of land on execution by sheriff-constitutionality of foreclosure law.

NOTE.-As to constitutionality of ex post facto laws, see note to Calder v. Bull, 1 L. ed. U. S. 654; and note to Sturges v. Crowinshield, 4 Wheat., 122. As to what laws are void, as impairing obligation of contracts, see same notes; also note to Dartmouth College v. Woodward, 4 L. ed. U. S. 629.

Court, under the act of Congress."

Messrs. Cooper and White for plaintiffs in error.

Mr. Hoban for the defendants in error. The argument on behalf of the plaintiff in error was as follows:

The acts of the State of Indiana, which have relation to the question, are certified in the record.

Now, as Linzee made default in the payment

of the money the mortgage was given to secure, Gantly foreclosed the mortgage in the State Court, under the provisions of the Revised Laws of Indiana of 1831, pp. 244 and 245, and issued his execution, as required by that statute, requiring "mortgaged premises to be sold as other lands are sold on execution." All the proceedings, up to the time of issuing the execution, were strictly in accordance with the provisions of the statute above mentioned. And as the defendants claim as purchasers under the execution, they waive all objections to the previous proceedings. (Cowper's Rep., 46.) 709*] *But I contend that the sheriff's deed to the defendants is inoperative and void, for the following reasons:

1. Because the sheriff sold the fee-simple of the land, without having first offered the seven years' rents and profits of the same.

2. Because he did not have the land appraised before the sale of the same.

not be bona fide purchasers; the very idea is repelled by the gross inadequacy of the price they bid and gave for the same. We cannot presume that the defendants supposed the rents and profits had first been offered, when the proof is positive that they had not been offered. Presumption can never outweigh positive proof. *The improper conduct of the sheriff [*710 in selling property may be inquired into, in an action of ejectment on his title, and the owner of the land would have a right to prove on the trial that it was known to the purchasers that the rents and profits had not been offered for sale by the sheriff. (4 Black., 228.)

In the present case, as the property was sold for a price grossly inadequate, and the sheriff never offered the rents and profits, as is proved on the trial, every presumption is against the defendants.

I now come to the second point, that the property had not been appraised before the sale was made.

Which appears to be a good and salutary law, enacted to prevent the sacrifice of the fee simple of real property, to the cupidity of a heartless set of speculators, who hang round sheriff's salos, for the sole purpose of speculating off the misfortunes of their fellow-creatures. In England the fee-simple of land cannot be sold under execution, but the judgment creditor can only take possession of the rents and profits, by a writ of levari facias, or take his extent under an elegit, but both of which remedies he could not resort to. A similar law I believe still prevails in Virginia. In New York, when the fee-simple has been sold under execution, the owner of the land is allowed a year from the time of the sale to redeem the land. In Ohio, lands are required to be appraised before they can be sold under execution. And I never have learned that either the constitutionality, or the policy, or the propriety of either of the laws of New York or Ohio have ever been questioned.

Then, to give a fair construction to the statote of this State last recited, it must inevitably appear that the offering of the rents and profits was made a condition precedent by the statute to the sale of the fee-simple of the land in controversy, and that a sale, without such previous requisition having been first complied with, is null and void.

Sheriffs in this State receive the whole of their power and authority from the statute laws of the State. They have no common law powers nor implied powers, and it would be dangerous to trust them with either. But, on the contrary, It has been said by the Supreme Court of this State that it may be safely presumed, by a bona fide purchaser at sheriff's sale, that the sheriff had done his duty in obeying the directions of the statute as respects the inquest, the advertisement and sale, &c. (1 Black., 210.)

But in the present case the defendants could

In the case of Tredway v. Gapin (1 Blackford, 299) "it was said by the Supreme Court, that from the time a statute is published in print, by authority, at any place within the State, it takes effect in every part of it, unless the act itself otherwise directs."

This statute being in force at and before the time of sale of the property in question, by the sheriff to the defendants, the defendants have no title to the premises, unless they show that it had been strictly complied with; the 6th sec tion of which statute is as follows: "That hereafter no real property shall be sold on execution for less than one half its cash value at the time of such sale." And the 7th section of the same law points out the form of the appraisement and return at the cash value at the time of the appraisement; which statute is not only directory to the sheriff, but it in positive and direct terms prohibits any sale of land under execution, unless the statute has first been complied with.

In the case of Tweedy v. Pickett (1 Day's Rep., 109) it was decided by the Supreme Court of Connecticut that, "in order to make out a title to land by the levy of an execution, it must be shown the appraisers were indifferent freeholders, and that they were sworn according to law." And in the case of Mitchell v. Kirtland (7 Conn. Rep., 229) the law is laid down to the effect following:

"The acquisition of title by execution being a proceeding in invitum, the requisites of which are prescribed by positive law, in derogation of the common law, a strict compliance with these requisites is indispensable to a transfer of the title." (Vide, also, the case of The United States v. Slade, 2 Mason, 70.)

And by the statute of Indiana, approved January 6th, 1821 (Laws of 1820, 1821, p. 4), it is enacted "that no real property shall be 711*] *sold for less than one half of its real value, by virtue of any execution which may hereafter issue on a judgment which has heretofore been rendered, or which may hereafter be rendered," &c.

Shortly afterwards the Supreme Court of Indiana were called on to give a proper construction to the last mentioned statute, and it decided that a bid and sale of land offered at sheriff's sale under execution under that statute, where the purchaser did not bid half the appraised value of the land, and a sheriff's deed under such a bid and sale, were void, and conveyed no title to the purchaser. (Vide Harrison et al. v. Doe, on the demise of Rapp, 2 Black., 1); which case, I think, clearly settles the construction of the recent appraisement law, and is in accordance with the cases cited in Connecticut, and the case in Mason's Reports. And they all go to establish the position taken, that, inasmuch as the land was not appraised before the sale, the sheriff's deed to the defendants is inoperative and void.

If the title to the defendants be good under this deed, they (the defendants) get the property for less than a tenth part of the value, and Gantly will have to lose nine tenths of the money Linzee has so long and justly owed him; which, I think, clearly shows the sale by the sheriff to the defendants to be fraudulent and void.

In the third resolution in Fermor's case (3 Co. Rep., 78) the court said that "the common law doth so abhor fraud and covin, that all acts, as well judicial as others, and which of themselves are just and lawful, yet being mixed with deceit, are in judgment of law wrong and unlawful."

The question whether a deed be fraudulent and void as to creditors, may be examined and decided in an action of ejectment. (2 Black. Rep., 230.)

It would be unnecessary to produce further authority in support of the second objection to the deed of the sheriff in this case.

It has, however, been contended by the counsel for the defendants that the appraisement law of our State, of 1841, is unconstitutional, and, therefore, that the lessor of the plaintiff has no right to complain of its violation; and the case of Bronson v. Kinzie et al. (1 How., 311) is by them referred to to support their position. But I am wholly at a loss to find out the least spark of resemblance between the cases. If Gantly (the lessor) had bought the property in question for a nominal price, without the same having first been appraised, and Linzee commenced a suit against him to recover the property, it might have raised a different question to that now before your honors. But, in the present case, the defendants bought the land at sheriff's sale in violation of the appraisement law, after the same was in force. The appraisement law, at the time of the purchase, was the law of the land, entered into and became a part of the contract between the defendants and the 712*] sheriff, and if it was unconstitutional, it would make the argument so much the strong er for setting aside the sale.

A law may be constitutional in its application to some cases, and void as to others. (8 Peters, 94.) The law might have been unconstitutional between Gantly and Linzee, and constitutional between the defendants and the sheriff.

Mr. Hoban, for defendants in error, after stating the case, proceeded as follows:

From the above statement, which is taken word for word from that of the plaintiff in error, it appears that the title of the defendants in error to the premises in dispute is admitted, unless the sheriff's deed is inoperative, and the deed is assailed upon these grounds: first, because the sheriff sold the fee-simple of the land without first having offered the seven years' rents and profits of the same and this is supposed to be required by the Act of the Legislature of Indiana of 1831, sections 3 and 18. It must be premised that this law is prior in date to that of the mortgage, which was in 1838. It will appear from the law itself that it applies only to executions on judgments at law; section 18 applies to decrees in equity, which provides that sales under them are to take place at public vendue to the highest bidder, as on execution on judgments at law. In the nature of things a law of this kind could not apply to a chancery decree, which orders a specific thing to be done in a manner by the law itself expressly declared to be, as the court may determine "in the premises between the parties, as may be right and just." I do not deem it necessary on this point to do more than to refer the honorable court particularly to section 18 of the law, where the sale of the land and the making of an unincumbered deed to the purchaser are spoken of, but no mention of a valuation of the land, or restriction of the court, first to order the sale of the rents and profits for seven years, before decrees of the unconditional sale of the premises.

The second objection is, that the land was not appraised pursuant to the Act of the Legislature of Indiana of February 13, 1841, which requires, as it appears, that land shall not be sold on execution, except after being appraised, and then only after more than half the value is bid.

The first answer to this is, that the law applies to sales on executions, which, in Bronson v. Kinzie (1 Howard, 311), is admitted not to apply to sales under mortgage foreclosures.

But if the law be admitted, and be particularly framed to apply to a case of this kind, still it is clearly unconstitutional. The law of Indiana is of 1841; the date of the mortgage 1838. I shall refer your honors only to Bronson v. Kinzie (1 Howard, 311), where the leading cases are referred to on this subject (Green v. Biddle, Sturges v. Crowningshield, Ogden v. Saunders);

these cases, as laboriously and

*ably argued as any on record, decide [*713 this general principle, that a State law which materially varies the well ascertained remedy upon a contract, is as to contracts in existence at the time of its passage, in the sense of the amendment of the Constitution, a law impairing the obligation of a contract, and which in consequence no State has a right to pass. Bronson v. Kinzie (1 Howard, 311) applies this principle specifically to a case of the very character