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The question as to what is the position of an Indian who maintains his tribal relations in respect to the laws of the United States, and what the status of the offspring of intermarriage between Indians and whites, was recently passed upon by the United States District Court for the Western District of Arkansas, in the case Ex parte Reynolds, in which application was made by habeas corpus for the release of an Indian charged with murder, committed in the Indian territory, on the ground that the court did not have jurisdiction to try the case. The court held that Indians who maintain their tribal relations are the subjects of an independent government, and as such, not in the jurisdiction of

the United States. The Indian tribes are treated as sovereign communities, but when the members of a tribe scatter themselves among the citizens of the United States, they become merged with the people, owe complete allegiance to the government, and are entitled to equality with other citizens. When there is offspring from a union between an Indian living with his or her people in the tribal relation, and a citizen of this country, the status of such offspring is that of the father. The rule partus sequiter patrum which is adopted by the common and civil law, and by the law of nations, governs in such a case. The case of the United States v. Sanders, Hempstead, 486, holds that the status of the mother governs that of the offspring. This is the rule when applied to the offspring of freemen and slaves, upon the principle of the civil law, that the owner of a female animal is entitled to her brood, but it is reversed when applied to the offspring of two free persons. See Ludlum v. Ludlum, 31 Barb. 486, where it is said that "the universal maxim of the common law being partus sequiter patrum it is sufficient for the application of this doctrine, that the father should be a subject, lawfully and without breach of his allegiance, beyond sea, no matter what may be the condition of the mother."


The right of trial by jury does not apply to every If a lawyer fails to pay over moneys collected in a suit for his client, the court may summarily order him to do so, and if he claims a lien on the moneys, for services rendered, he cannot ask for a jury to determine the question, but it must be settled by a reference. That is the decision of the New York Court of Common Pleas in the case Matter of Fincke, 6 Daly, 111, where an attorney, who had received $2,665.08 on a partition suit, refused to pay any part of the same over to his client, claiming that he had 'performed services for her worth that amount. The court, upon the application of the client, issued an order to show cause why the amount should not be paid over, and upon the appearance of the attorney ordered a reference of the matter. The referee reported that the attorney had performed services worth $1,314.10, and

the court ordered him to pay his client the balance, $1,350.98. This disposition of the case is in accordance with Bowling Green Savings Bank v. Todd, 52 N. Y. 489, where it is held that an attachment may be issued against an attorney who retains money that belongs to his client and refuses to pay it over, and that even good faith is no exemption from such remedy, as the court, in that case, says: "The law is not guilty of the absurdity of holding that, after a client has spent years in collecting through his attorney a lawful demand, he shall be put to spending as many more to collect it from his attorney, and if that attorney should not pay, then try the same is said by the Supreme Court of the United States, track again." And in Re Paschal, 10 Wall. 491, it that for refusal by attorneys to pay money collected for their client in a suit, "the court may entertain summary proceedings by attachment," "and may, ment, or discharge them from the functions of their in its discretion, punish them by fine and imprisonoffices, or require them to perform their professional or official duty under pain of discharge or imprisonment." 4 Blackst. Com. 288. See, also, Barry v. Whitney, 3 Sandf. 696; Grant's Case, 8 Abb. Pr. 357; Hess v. Joseph, 7 Robb, 609; Ex parte Ketcham, 4 Hill, 564; Saxton v. Wyckoff, 6 Paige, 182; Wilmerdings v. Fowler, 14 Abb. Pr. (N. S.) 249; Merritt v. Lambert, 10 Paige, 352.

In Grosz v. Jackson, 6 Daly, 463, chairs were furnished to a theatre of a pattern that had to be made with special reference to the size, shape, and plan of the auditorium of the theatre in which they were to be placed, and were screwed to the floor, as they could not stand alone. The court held that they formed a part of the building, and that a mechanic's lien could be filed and enforced against the building by the one furnishing them. In Potter v. Cromwell, 40 N. Y. 287, 297, and Voorhees v. McGinnis, 48 id. 278, three tests are given whereby the question whether a given article has become by annexation a part of the freehold: 1. To give to articles, personal in their nature, the character of real estate, the annexation must be of a permanent character. There are exceptions to this rule in those articles which are not themselves annexed, but are deemed to be of the freehold, from their use and character, such as mill stones, statuary, and the like. Capen v. Peckham, 35 Conn. 88; Teaff v. Hewitt, 1 McCook, 511. 2. A second test, but not so certain in its character, is that of adaptability to the freehold. Voorhis v. Freeman, 2 W. & S. 116; Pyle v. Pennock, id. 390. 3. A third test is that of the intention of the parties at the time of making the annexation. See cases above cited, and Murdock v. Gifford, 18 N. Y. 28; Winslow v. Merchants' Ins. Co., 4 Metc. 306; Swift v. Thompson, 9 Conn. 63. The English cases go further than the American in the direction of the principles stated. Walmsely v. Milne, 7 C. B. (N. S.) 115; Boyd v. Shorrock, L. R., 5 Eq. 72; Climie v. Wood, L. R., 3 Exch. 257, and 4 id. 328. See, also, Ford v. Cobb, 20 N. Y. 344; Cresson v. Stout, 17 Johns. 116; Vanderpoel v. Van Allen, 10 Barb. 157; Swift v. Thompson, 9 Conn. 63; Walker v. Sherman, 20 Wend. 636; Taffe v. Warnick, 3 Blackf. 111; Tobias v. Francis, 3 Vt. 425; Gale v. Ward, 14 Mass. 352; Hutchinson v. Kay, 23 Beav. In Re Dawson, 16 W. R. 424. Also Pierce v. George (108 Mass. 78), 11 Am. Rep. 310, and note at page 314, where the various authorities are collated.


be seeking to overreach and defraud his child. Whereas, the presumption ought to be, in the absence of all proof tending to a contrary conclusion, that the advancement of the interest of the child was the



T is a well-established if not a beneficent principle of equity jurisprudence that gratuitous bene

cumstances conducing to that result. ** The natural and reasonable presumption, in all transactions of this kind, is that a benefit was intended the child, because in the discharge of a moral and parental duty.”

fits, as between persons occupying certain confi-object in view; and to presume the existence of cirdential relations to each other, are to be deemed constructively fraudulent, and only supported by the clearest proof of equity and good faith. The relations to which equity applies this doctrine are those of guardian and ward, trustee and cestui que trust, principal and agent, attorney and client, physician and patient, clergyman and parishioner. These, it will be perceived, are all relations of a conventional character. Whether the same doctrine is applicable to the natural relation of parent and child has been somewhat mooted, and it is our present purpose to examine this question.

Story, in his Equity Jurisprudence, section 311, in speaking of a transaction between attorney and client, thus lays down the general rule: "The burden of establishing its perfect fairness, adequacy, and equity, is thrown upon the attorney, upon the general rule that he who bargains in a matter of advantage with a person, placing a confidence in him, is bound to show that a reasonable use has been made of that confidence; a rule applying equally to all persons standing in confidential relations with each other. If no such proof is established, courts of equity treat the case as one of constructive fraud." It will thus be seen that Story makes no distinction between the cases of conventional and those of natural relations. The English cases universally apply this doctrine to cases of gifts from child to parent. There are many dicta, also, to support this idea, and yet there would seem to be a reasonable ground of distinction, and for the application of that author's further inculcation, in section 309 of the same work, that "we are not to indulge undue suspicions of jealousy, or to make unfavorable presumptions as a matter of course in cases of this sort."

The same doctrine is enunciated in the celebrated case of Hunter v. Atkins, 3 M. & Keene, 113, which was a case of confidence arising merely from intimate friendship. In this case Lord Brougham recognizes the distinction between the conventional and the natural relation. In regard to the former, he observes: "If a person standing in these relations (of attorney, guardian or trustee) to client, ward, or cestui que trust, takes a gift or makes a bargain, the proof lies upon him that he has dealt with the other party, the client, ward, etc., exactly as a stranger would have done, taking no advantage of his influence or knowledge, putting the other party on his guard, bringing every thing to his knowledge which he himself knew." In regard to confidential relations, other than the conventional ones, he says: "the party seeking to set aside the deed may not be called upon to show direct fraud; but he must satisfy the court by the circumstances that some advantage was taken of the confidential relation."

In support of this latter quotation the author cites the case of Jenkins v. Pye, 12 Pet. 253, where the Supreme Court of the United States declare that they would "not be disposed to adopt or sanction the broad principle contended for, that the deed of a child to a parent is to be deemed prima facie void." In that case the court say: "It is undoubtedly the duty of courts carefully to watch and examine the circumstances attending transactions of this kind, when brought under review before them, to discover if any undue influence has been exercised in obtaining the conveyance. But to consider a parent disqualified to take a voluntary deed from his child, without consideration, on account of their relationship, is assuming a principle at war with all filial as well as parental duty and affection, and acting on the presumption that a parent, instead of wishing to promote the interest and welfare, would

This distinction, so far at least as regards gifts from parent to child, has never to our knowledge been dissented from in England or America, although there has been some contrariety of opinion as to the converse case of gift from child to parent. And even in that case, we think it will be difficult to find a decision, as distinguishable from mere dictum, holding an opposite doctrine to that of Jenkins v. Pye. Except in cases where the evidence shows a probability or the certainty of unfair dealing and overreaching, the general rule of the burden of proof seems to be as in ordinary cases of fraud the person alleging it must prove it. Such we believe to be the result of the New York cases, as for instance the case of Sears v. Shafer, 6 N. Y. 268, where it is said: "A court of equity will set aside a deed obtained by persons standing in such relation to the grantor as to give them a controlling or very strong influence over the conduct of such grantor, upon slight evidence of the improper exercise of such influence."

In Whelan v. Whelan, 3 Cow. 538, it was held that where a grant is made by an aged father to his children with whom he lives, who have the management of his property, and in whom he reposes particular confidence, if a court of equity sees that any arts or stratagems, or any undue means, or the least speck of imposition, or the least scintilla of fraud

entered into the bargain, it will avoid the grant. It is true that there are many expressions to the contrary in Comstock v. Comstock, 59 Barb. 453, a case of a deed from a child to a parent, but there was ample proof in that case to raise the presumption of fraud and undue influence. See page 470.

Similar expressions by Mr. Justice Hunt, in Nesbit v. Lockman, 34 N. Y. 167, are entirely obiter. The gift was sustained by the court on the finding of the referee, that it was made without the exercise of any fraud, deceit or undue influence, which finding, the court say, "must settle the question for us." Besides, this was a gift to the clerk of the donor's attorneys.

Bergen v. Udall, 31 Barb. 9, was a case where a daughter, on coming of age, was induced by undue persuasion to make a voluntary conveyance to her father, and the facts clearly showed undue influence and overreaching.

Brock v. Barnes, 40 Barb. 521, was a case of attorney and client, where the former obtained from the latter, an aged, infirm, and feeble man, in 1859, a grant of an annuity extending back in its operation to 1836, the instrument not being in the client's writing nor witnessed, and there being also evidence of a settlement between the parties in 1858.

Powers v. Powers, 48 How. 389, was a case where the plaintiff, just on coming of age, conveyed to his mother, for $5,000, his interest in his deceased father's estate, and evidence of misrepresentation | was disclosed. Even in this case, the court say, at page 395: "The courts in this country have not gone so far as they have in England to establish any presumption of law against the validity of such transfers, but they will not sustain such a transaction, where it appears that any advantage has been taken of the inexperience of the child, or of the confidence naturally reposed by a child in the suggestions, advice, and judgment of a parent."

Brice v. Brice, 5 Barb. 533, was a case of a deed from an old and feeble father to his son and confidential agent, for the mere consideration of a support for life. It affirmatively appeared that the son "had acquired great and controlling influence" over the father, and that the son and a brother-inlaw procured the deed by representing to the old gentleman that he was old and foolish, and alluded to his having signed improper papers, thus "artfully appealing to his fears, and betraying the childlike confidence he reposed in them."

These are the principal New York cases bearing upon this question, and it will be noted that in every one of them there was affirmative evidence on the part of the person seeking to avoid the gift or obligation, of fraud, deceit, bad faith, or undue influence in obtaining it.

In Massachusetts we find an instructive case in Howe v. Howe, 99 Mass. 88. There the grantor, be

ing eighty-three years old, and sick of a fever at the time, executed deeds of all his property to his children, excluding the son of a deceased child, contrary to his previously declared intention. The following instructions, among others, were requested: "2. That the circumstances attending the execution of the Holman deed the facts that Holman at the time had charge of the grantor's affairs; that he helped to carry the chain; that he accompanied the grantor to Stephen Morse's house, and remained present while the deed was written and executed, and accompanied him back; that the memorandum of the courses and distances was given to his daughter, and that the grantor's wife did not sign the deed raise a presumption of fraud and undue influence. 3. That the circumstances attending the execution of the deeds to the three sons at Elbridge's house the facts that the documents were prepared by Elbridge's dictation, by an attorney employed by him, and who never saw the grantor nor communicated with him; that they were executed in Elbridge's house in the presence of himself and his family; that Elbridge brought the justice to his house, who only stayed long enough to put the formal questions and receive a nod or word in reply; that they were not read over to him; that the grantor's wife did not execute the deeds; that they embraced all his real estate; and that there was executed at the same time a bill of sale of all his personal property; that Elbridge had charge of the grantor's affairs at the time under a power of attorney; and that the transaction was contrary to the grantor's previous declarations of his intention that the petitioner should be remembered in the disposition of his estate, and have the Berlin wood lot - raise a presumption of fraud and undue influence."

The court remark: "The facts set forth in the second and third prayers for instructions were submitted to the jury as evidence of fraud and undue influence. There is no legal presumption arising from them, but only a presumption of fact, etc." "Influence properly gained, although used for a selfish purpose, and to obtain an unfair and unjust advantage, will not avoid a deed thereby obtained, unless there is fraud or duress, or the influence is exerted by a stronger mind over a weak one, in such a manner and to such a degree as to substitute the will of the person exerting the influence in place of that of him upon whom it is exerted, so that the latter is no longer a free agent."

In Sanfley v. Jackson, 16 Tex. 584, the court, after conceding the general rule of the burden of proof, in case of confidential relations, proceed: "But it is clear that this rule was never applied, either qualified or unqualified, to a deed or gift from a parent to a child; and the reverse of such principle has always been sustained; and there is not believed to be a single exception to the principle that a deed

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from a parent to a child is always regarded with a favorable eye, and every presumption is in favor of its validity."

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a necessary duty; and when a father discharges that duty, this court will not presume a fraud. If, therefore, fraud is alleged, it must be proved in the ordinary way. In this case no fraud has been shown, and I must, therefore, dismiss the bill, so far as it seeks to have the lease set aside."

"A settlement made by a parent on a child, so far from being regarded with jealousy, will always be presumed to be free from suspicion; because it is the natural course for property to take. One of the main objects of the acquisition of property by the parent is to give it to his child; and that child in turn will give it to his, and in this way the debt of gratitude we owe to our parent is paid to our child-plying the stringent rule where that relation exists ren." Page 581. by nature as well as where it is created by convention.

This case explains the true reason for the distinction between cases of gift from child to parent. In the latter class the relation of guardian and ward exists, and there is some semblance of reason in ap

The same doctrine has received an authoritative sanction in the English case of Beauland v. Bradley, 2 Smale & Giffard, 339, decided in the year 1854. In that case the testator was 85 years old; deaf, and alleged to be weak and infirin in mind and body, and very much under the influence of the defendant, Ann Bradley, his housekeeper, and it was alleged that eight days before his death, for an inadequate rent, he executed a lease, through the procurement of Ann Bradley, to his grandson, and his son-in-law (Ann Bradley's husband) without any advice from a solicitor. There was no evidence of any undue influence by Ann Bradley or the lessees.

The Vice-Chancellor says: "The bill alleges that when the lease was executed by the testator, he was confined to his bed; that Ann Bradley had much influence over him, and that he was induced by her to execute this lease just eight days before his decease, and without professional advice, in favor of his grandson and his son-in-law, the husband of Ann Bradley. If the allegations of surprise and undue influence had been proved, there would be no difficulty in granting the relief sought by this bill; but the plaintiff fails in proof of what is the foundation of his case the undue influence and surprise.

It is said that the lessor, being the grandfather of one of the lessees and father-in-law of the other, there existed such a confidential relation, between him and those he intended to benefit, as to throw upon them the onus of proving the absence of undue influence. It is a new doctrine, that a parent cannot by a deed, only a few days before his death, benefit a child or grandchild. The case which has been cited in support of it, Hoghton v. Hoghton, is very different. That was a case in which a son, having just attained twenty-one, gave up property for the benefit of his father, who was his natural guardian, and was, therefore, within that rule of the court which protects a person under the influence of others from having that influence abused. There is, however, no rule of this court which prohibits a man by a voluntary deed from bestowing a benefit upon his son, or grandson, or son-in-law, even although only a few days before his death. To provide for his children or grandchildren is, or may be,

In short, we think, upon principle, as well as upon authority, that the editors of White and Tudor's Leading Cases in Equity (one of the most excellent of law books) are justified in saying: "In order to avoid a grant, on the ground of undue influence, it must be shown that the influence existed, and was exercised for an undue and disadvantageous purpose. The former point may be inferred from the relative or actual position of the parties; but the latter must be determined by an examination into the nature and results of the transaction which is called in question. Both these points must concur to produce the effect of avoidance."

As the law stands, therefore, in cases of natural relationship, the law does not apply the doctrine of constructive fraud, and impose on the claimant the burden of showing the fairness and good faith of the transaction.

Fraud is implied in law only when the confidential relation is of the conventional character above mentioned, or where the circumstances in proof indicate a probability of bad faith or undue influence.

If this question were new, we should hope to have the law laid down in a more reasonable form concerning conventional relations. It seems extremely severe and inconvenient to assume, in every case of such relations, that fraud must be assumed from the mere existence of the relation, without any proof whatever of any extrinsic probability of fraudulent practice. In criminal law the contrary presumption prevails, even in spite of proof that may strongly point toward guilt. It is the true office of equity to protect the helpless, confiding and inexperienced against the wrong practices of those holding relations of trust and confidence toward them, but it is the actual wrong practice, and not the mere suspicion of wrong practice, against which the vigilance of the law should be directed. In many of these cases the age and experience of the parties affords the strongest natural presumption against the probability of fraud, but the artificial presumption remains the same. The lamb is frequently called on affirmatively to convince the court that he did not muddy the stream above from which the complaining wolf was drinking.


But the doctrine of constructive fraud is probably exist, and that such custom was unreasonable and too ancient and deep-seated to be easily uprooted. It is quite in keeping with the idea, so long prevalent, that men are not fit to be trusted as witnesses upon oath in their own behalf. We must continue to take it for granted, we suppose, that an attorney will clear his confiding client, a trustee defraud his ignorant cestui que trust, a guardian overreach his inexperienced ward, an agent impose on his careless principal, a physician over persuade his dependent patient, and a clergyman deceive his dying parishioner, because we have so long been taught to believe that such is human nature; but we are really gratified to learn, contrary to the tradition of our profession, and to the carelessly uttered dicta of many judges, that there is no legal presumption that a child will take advantage of the generosity of his parent, however much disagreement there may be as to gifts from child to parent.

In conclusion, we are led to remark, that as gifts between parent and child are generally privately bestowed, and are rarely investigated until after the death of the donor, it seems rather hard measure to insist that the survivor shall give affirmative evidence of the entire fairness of the transaction, and yet at the same time effectually prevent him from doing so by closing his mouth as a witness.




A custom that the outgoing tenant of a farm shall look exclusively to the incoming tenant, where there is one, and not to the landlord for compensation for the seeds, acts of husbandry, tillages, etc., is so unreasonable, uncertain and prejudicial to the interests of both landlords and tenants as to be bad in law.

SPECIAL case from County Court. The action was

brought by the trustee in bankruptcy of one Davies, who was a tenant of defendant, for seeds, sowing, harrowing, and other acts of husbandry and tillage on the leased farm. Before the crops had grown for the benefit of which these acts had been performed, the tenancy of Davies expired and another tenant came in. At the trial evidence was given on the part of the plaintiff that the custom of the country was for the landlord to pay the outgoing tenant for the seeds, acts of husbandry, tillage, etc., unless there was an agreement between the outgoing and incoming tenants that the incoming tenant should pay for the same.

For the defendant it was contended that he was not liable, and that by the custom of the country when there was an incoming tenant who entered on the farm at the expiration of the tenancy of the outgoing tenant, he and not the landlord became liable to pay the outgoing tenant for the seeds, acts of husbandry, tillages, etc., and that the landlord was only liable when there was no incoming teuant.

By way of reply, it was contended that no such custom as that set up by the defendant could in fact

The learned judge entered a verdict generally for the defendant upon the facts and evidence before him. He found that, by the custom of the country, the incoming tenant, and not the landlord, was liable to pay for the seeds, acts of husbandry, and tillages.

The questions for the opinion of the court are: 1. Whether such a custom as that set up by the defendant can in fact exist? 2. Whether, if such a custom can in fact exist, it is a good custom? 3. Whether, upon the facts stated, the landlord or the incoming tenant is liable to the plaintiff for the seeds, acts of husbandry, and tillages, etc.?

Jelf, for plaintiff.

J. D. Sim, for defendant.

LINDLEY, J. It appears to us that, if the custom found to exist in this case can be supported in point of law, there is nothing in the lease under which the plaintiff held inconsistent with the custom, so as to exclude its application to him when his tenancy determined. It is very true that when he went in he agreed to pay the outgoing tenant's valuation "in exoneration of the landlord;" but there is no provision in the lease to the effect that the landlord should compensate the plaintiff on his going out; and apart from custom no obligation so to do can be implied. The expression "in exoneration of the landlord" shows that the landlord was (or might be alleged to be) liable to compensate the plaintiff's immediate predecessor in the occupation of the farm; but whether such liability was by reason of some custom or some contract is not stated, and is not known to us; and even if it were by reason of some supposed custom, the existence of such custom is inconsistent with the custom found in fact to exist. The custom here found to exist in point of fact is to the effect that the incoming tenant, if there be one, is the only person liable to compensate the outgoing tenant: the custom as found exempts the landlord from liability altogether. Such a custom will be found on examination to involve the following consequences: 1. That the outgoing tenant has imposed upon him for his sole and exclusive debtor a person in whose selection he has no choice, and with whom he has made no contract at all. 2. That the incoming tenant has to make compensation to the outgoing tenant irrespectively of the purposes for which he (the incoming tenant) may work the land; and whatever the terms between him and his landlord may be, and whether the incoming tenant takes the land for a week, a month, a year, or a long term. 3. That the outgoing tenant can make no arrangement with his landlord as to his valuation, unless the incoming tenant is a party to it and assents to it. 4. That in the event of a letting and undertaking it is (on the custom as stated) uncertain who is to pay, viz., the immediate lessee from the landlord or the ultimate tenant who takes possession. 5. That such a custom would lead any prudent tenant to run his farm out as much as by law he could, and to leave as little as possible for the incoming tenant to pay for. A custom having such consequences as these appears to us so unreasonable, uncertain and prejudicial to the interests both of the landlords and tenants as to be incapable of being supported in point of law. The argument that it is to the interest of the landlord to secure a sol

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