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This will do away with the acquisition of title fully provides for protection in all interests by adverse possession. Squatters are given no that cannot be brought forward within five quarters under the act. No new offices are years, such as contingent remainders, revercreated if we except examiners of titles, who sionary interests, and the like. are deputies of the registrar. The recorder is “One of the prominent features of the act, ex officio registrar of titles in his county, and which it is thought will protect the rights of the offices of the recorder and registrar are, infants, is that there can be no dealings with kept together. No person is compelled to the real estate of the deceased person till the register his title, but may do so at his option. heirship is proved in the probate court, and the A title once registered must continue under the court has found the rights of the several heirs system.
or devisees and has entered an order for the “The most difficult questions which the act
transfer of the title to them. On the filing of has to deal with, are those pertaining to first that order with the registrar, and the surrender registration—the effect to be given the first cer- of the certificate of title, he registers the title tificate of title. In Australia, England, Prussia, in the heirs or devisees pursuant to the order. Canada, etc., where the system is in operation, If any interested party is dissatisfied with the there is no difficulty about giving the certificate order of the probate court, he can appeal, but conclusive effect immediately upon its being when the title is once registered pursuant to granted, but in this country that cannot be the order of the court that is final, and anyone done. The Constitution of the United States, who wishes to deal with the property can thereand of the several States, render it impossible after do so safely. The policy of the act may to divest one of his interest in property excepl | be likened to that with reference to negotiable by due process of law, and the act does not at instruments, which enables one to deal in them tempt to violate this principle. The registrar with safety so far as latent cquities are conis not made a judicial officer, and the granting cerned, and with the least expense or delay." of the certificate of title is not a judicial act. The certificate is not by its own vigor conclu Part of the argument made by William D. sive. By the terms of the act, the registration Guthrie, Esq., on the rehearing of the income of this certificate starts the running of the tax cases is printed in the American Lawr statute of limitations contained in the act. It and is so scholarly and affective that we pubis this statute of limitations running upon this lish it. Mr. Guthrie said in part: matter of record, which concludes
May it please the court: No one could be inclaims, and not the finding of the registrar. different to the responsibility of opening this The time given in which one may claim ad argument, nor fail to be almost awed by the versely to the registered certificate is five years. consciousness of the great importance, to the
“In other words, no one can gainsay a cer whole people, of the questions about to be distificate who does not come forward with his cussed. It must be i subject of regret that claim within five years after the first certificate the generosity of Mr. Seward has prompted him is registered. This limitation cuts off all claims to push his junior forward when he would, so of every nature, whether in favor of infants, much more satisfactorily, have presented the lunatics, or other persons. But the law pro- results of his scholarly research. So, 100, of vides for an indemnity fund, out of which any our associates, Gen. Bristow and Mr. Wilcox. body, whose interest is cut off by this limitation We cannot consider the merits of this conor by any mistake or wrong of the registrar or troversy or seek for the true interpretation of anybody else, may obtain the value of such in the words“ direct taxes " found in the Constituterest. The registration becomes effective at tion of the United States without realizing how once as to all persons dealing with the land intimately connected and interwoven are the after it is bought under the act. It is only science of government and the principles of taxathose who may possibly have an interest and- tion. The most essential attribute of the soververse to the registered title who have the five eignty of the union is the taxing power; and when years to bring forward their claims. The act we discuss it, we enter the realm of national
statesmanship. As civilization is but the art of But, if your honors please, we felt that a great governing the peoples of the earth, so political constitutional controversy, involving questions thought and activity constitute one of the su of vital and transcendant interest to the whole preme interests of man.
History, philosophy, country ought not to be permitted to resolve ethics, the nobler truths of religion itself, in a itself into a rivalry of shrewdness or a problem word, all the highest thoughts of mankind, be- of tactics. Advocates at this bar, inspired by come mere guides and ministrants to the ser its traditions, we could not for a moment vice of politics in its grandest signification. imagine ourselves released from the responsiEach new day has needs and difficulties of its bility and obligation of patriotism. According own; new emergencies constantly arise incident to our conception of duty, it was incumbent to new modes of thought and new ways of life. upon us, as well as upon our adversaries, to The problems of to-day require for their solu- bring about a speedy determination of these tion that intellectual integrity and moral important questions, to put an end, if possible, courage which are ever so much rarer and to litigation, in the interest of the republic nobler than even the loyalty and bravery of the itself, to lay the facts before your Honors as battlefield.
fairly and as clearly as we could, leaving you to The Constitution is the political creed as analyze their significance and to adjudge the well as the embodiment of the conscience of the truth. nation; and as this court shall preserve it in We signally fail in making our motives clear tact, according to its spirit and its letter, or if we create the impression that we are seeking permit error to affront and darken its light, so the vain and empty satisfaction of a personal will our future be progress or decline, happi-triumph, or desire the worthless honor of sucness or misery, glory or shame.
cess in the obscurity of doubt, through the lotIn presenting our petition for a rehearing, wetery of health, or by accident or technicality. anticipated and faced the censure and criticism
If your Honors please, we are not challengit invited on the part of many who were op- ing the power of Congress to reach by direct posed to the enforcement of the income tax taxes all the real and personal property of the provisions of the law of August 28, 1894. Ac-country, but we insist that the procedure and cording to ordinary methods, and practice, it method of the assessment and levy of this tax was obviously inexpedient to risk reopening are unconstitutional. Doubt as to the method questions already decided in our favor. The in which Federal taxes should be laid ought to mandate of the court was about to issue upon be removed at the earliest opportunity. Months an opinion which, the Government would be were about to elapse before the Court would compelled to conclude, logically excluded from again convene. We contemplated that in these the operation of this particular law, because days, when events follow each other with such not apportioned, the tax upon all the real estate startling rapidity, an emergency might suddenly of the country as well as its invested personal arise requiring the prompt and decisive exerproperty: Yetmany questions were left still cise of the taxing power of the Federal Governundetermined, probably because not adequately ment; and that as matters now stood, Congress presented, although unlimited time was allotted. might be embarrassed or hampered by the sugIt was certain that the tax would be paid by gestion that there was doubt, not as to the all under protest, or the collection of it con power, but as to the method of laying taxes; tested in the courts. The Department of Jus- not as to the power of Congress to reach pertice would be overwhelmed with litigation. sonal property — all the personal property of the Nor were suggestions wanting that the decision country - but as to the method in which Conof any circuit judge in our favor might be gress should tax it. There were also questions affirmed by a divided court. Even when we unanswered as to whether or not the Constitudid file our petition, no aid was furnished by tion required equality in taxes; as to whether the Government, but simply the intimation that or not the Constitution permitted Congress to it a rehearing became inevitable, then and then discriminate in favor of individuals and partonly it would ask to be heard anew on the nerships and against corporations; and, above questions already definitely decided.
all, as to whether or not Congress could arbi
trarily exempt from taxation certain classes of chains ? When Franklin stood at the bar of the favored corporations holding vast accumulations English Commons ought he to have been satisof real and personal property.
fied to abandon the claims of the colonists beWe thought, therefore, that there ought to be cause the school of Mansfield, Thurlow, Eldon a rehearing at the earliest opportunity, not and Boston-born Copley could have demonmerely for our clients' sake, but for the sake of strated to him that precedent upon precedent the Government, for the sake of the court, for fully sustained the right and power of Parliathe sake of the people. The decision in these | '
ment to tax the colonists without giving them cases will settle one of the most important con- representation ? stitutional questions ever passed upon in this
The rule of precedent and stare decisis precourt. The rule announced should unfold a supposes error, and closes the door on reason standard of truth as to the interpretation of our
and on truth. The most technical work in the organic law, not for a party and a day, but for common law, Fearne on Contingent Reminders, all parties and all times, thus meriting the is cited to sustain the claim that an obedience and respect of men. We took it interpretation of the Constitution must be perupon ourselves, so far as it lay in our power, to petuated. We can answer in the language of see to it that the decision of this court, as soon our great historian: Woe hangs over the land as it was delivered, should not be impaired or where the absolute principles of private rights nullified or undermined by the suggestion, in are applied to questions of public law, and the court or out of court, that the questions decided effort is made to bar the progress of the unhad not been fully argued, or that the Govern- dying race by the despotic rules which ascertain ment had not been prepared, or that its repre- the property of evanescent mortals." sentatives had not had the fullest opportunity to be heard.
A person who signs an instrument without We, therefore, invite, here and at this time, reading it, when he can read, cannot, in the abreinvestigation and reargument upon all points. sence of fraud, deceit or misrepresentation, Let us have every view, every suggestion, every avoid the effect of his signature, because not historical fact, every argument, tending in any informed of the contents of the instrument. way, even in the slighest degree, to meet our The same rule would apply to one who cannot contention and to convince the court that it has read, if he neglects to have it read, or to inmisconveived the true purpose and intention of quire as to its contents. This well-settled rule the framers of the Constitution and of the peo- is based upon the sufficient reason that in such ple who voted to adopt it. Our adversaries case ignorance of the contents of instruments need have no misgivings and no apprehensions. is attributable to the party's own negligence. The courage and patriotism of the opinions But the rule is otherwise, where the execution which have thrilled us with confident hope in of an instrument is obtained by a misreprethe living strength of our institutions, will not sentation of its contents; where the party hesitate to confess and correct error, if any can signed a paper he did not know he was signing, be shown.
and did not really intend to sign. It is immaIf your Honors please, no statute and no terial, in the latter aspect of the case, that the decision inconsistent with the Constitution can party signing had an opportunity to read the be allowed to stand. it century of error should paper, for he may have been prevented from not overrule the Constitution. The people are doing so by the very fact that he trusted to the not to be deprived by erroneous precedents of truth of the representation made by the other inherited rights, imbedded in the Constitution. party with whom he was dealing. Those rights may slumber, but, nevertheless, This is the clear-cut manner in which the they live and breathe. Where would we be Supreme Court of Alabama, in the case of Beck to-day if the rule of precedent had controlled & Pauli Lithographing Co. v. Houppert et al. our forefathers? Is the Constitution to be en-|(16 So. Rep. 522), reiterates the wholesome slaved by any such technical doctrine its stare doctrine that a person cannot take advantage decisis and thus manacled with parchment I of his own wrong or negligence.
OPERATION OF FOREIGN GENERAL AS-Wall. 610.) In this case an assignment was made
SIGNMENTS AS AFFECTED BY A CON- by the owners, residents of Massachusetts, of the FLICT OF LAWS.
ship“ Arctic," while the ship in question was on ROBABLY there is no feature of the law of
the high seas. She sailed into port at New York general assignments for the benefit of creditors city, where she was attached by creditors, residents more confusing, as well as interesting, than that
of New York. The United States Supreme Court concerning the validity and effect of a foreign held that the assignment executed in Massachusetts general assignment as effected by a conflict of laws.
carried with it the title to the ship and thus deThe decisions of the various States are not all
feated the lien of the attachment. agreed, and in endeavoring to lay down the general difficult to determine their exact situs; but under
Regarding choses in action we find it more principles we are confronted not only by a conflict of law but with a conflict of decisions as well.
general jurisprudence they follow the person of the
or creditor and have their situs at his Much confusion arises because of the variety of
domicile. And a transfer valid where made will interest represented; the assignment may be exe
be recognized as valid everywhere although not cuted in one State, the property situated in another,
valid by the law of the debtor's residence. In a the creditors may be residents of either of those States or of another, and the litigation may arise leading case in this state the court laid down subin still another State.
stantially this rule, to wit: That personal property And with the extraordinary diligence on behalf of creditors to reach the estate
follows the person of the owner and has no other of their failing debtor this subject becomes an in-situs, and a transfer valid according to the law of portant and practical one.
the situs would be valid everywhere, unless the The question at once arises, assuming there is a
corpus of the property is situated in another State conflict of laws, by the laws of what State are the
and the transfer is invalid according to the law of
that State. rights of the parties to be determined? Can the
And this is a general rule. In other law or adjudications of one State have any opera
words, the law of the place of transfer governs untion in another State ? In other words, can thie law
less it is in conflict with the law of the situs, in
which event the law of the situs controls; and as a of one State be extended beyond the limits of that State into the jurisdiction of another State and
rule the situs of the debt and the debtor's domicile
are the same. control the decisions of its courts? Hence in deciding a particular case four questions must be con
But this general rule is not invariable, and sidered, to wit: 1. The legal situs of the property. always yields where the law or public policy of the 2. The nature of the assignment, whether voluntary State, where the corpus of the property is actually or in voluntary. The nature and policy of the situated, has provided a different rule of transfer law of the situs. 4. The domicile of the creditors from that of the State where the owner resides, invoking the law of the situs. And these will be ( Kelly v. Paine, 107 N. Y. 83 ) ; and so local laws discussed in their order.
may fix the situs of the debt at the domicile of the
debtor for the purpose of subjecting it to legal REGARDING THE LEGAL Situs OF PROPERTY.
remedies provided by the statutes of the State of Regarding the legal situs of property the rule the debtor's residence, such as attachment, garnishdiffers as to real and personal property,
It is no
ment, execution, etc. (Williams v. Ingersoll, 89 N. longer a question of dispute or doubt that the Y. 508 ; O'Neil v. Nagle, 15 St. Rep. 358 ; s. c. 19 validity of an assignmenr or other transfer to dis- | Abb. N. C. 399, and Note ; Connor v. Hanover, 28 pose of lands depends entirely upon the law of the Fed. Rep. 549 ; Matter of Estate of Romaine, 127 State or country where the land is actually situated N. Y. 80.) at the time. This is an invariable rule; and an as In ()'Neil v. Nagle, il well considered case, the signment in order to invest a valid title in the facts were that a voluntary general assignment was assignee, in any event, must be executed in all made in New York, containing preferences, part of respects to satisfy the law of the situs. (Nicholson the property included in the assignment being v. Leavitt, 4 Sandf. 252; Chapman v. Peabody, 159 | debts owing to the assignor by merchants residents Mass. 420; Moore v. Church, 70 lowa, 208.)
of New Jersey. The New Jersey statute provided And of course in case of tangible personal property for the attachment and garnishment of the debts, as well as real estate the legal situs is where the and also proliibited preferences of any kind. Now property is actually situated, except in case of ships applying our first proposition we see that the debt at sea, which, by a fiction of the law, are supposed followed the person of the owner and had its situs to remain a part of the territory of the State from in New York, but by applying our second proposiwhich they sail while on the high seas, and hence tion we find that the New Jersey statute has fixed have their situs in such State. (Crapa v. Kelly, 16
the situs of the debt in New Jersey for the purpose
of attachment, and hence the assignment, being in and one Schofield was appointed trustee of the firm conflict with tho law and policy of New Jersey, property, which, according to English law, vested could not operate to piss title to the assignee as in him the legal title to all firm property wherever against the attaching creditor a resident of New situated. Waite continued to act as assignee of Jersey
Ilaynes & Sanger, appropriating to himself under The tendency of the decisions is to do away with 'the preference to Pendle & Waite the sum of the fiction of thic law that personal property has no $14,000. The American creditors of his firm bad situs away from the person of the owner, and to i been fully paid. Upon his accounting as assignee, substitute the truth in its stead, where, in a specified Schofield appeared by attorney and claimed said case, there is any good and equitable reason for sum as trustee of Pendle & Waite by virtue of the doing so ; and the power of the State to fix its situs - English bankruptcy proceeding. Waite's counsel for a specified purpose, such as attachment, taxil- argued that the bankruptcy proceeding could have tion, etc., can hardly be doubted. (Matter of no extra-territorial force as against a resident of Estate of Romaine, supril ; O'Neil v. Nagle, supra.) New York State, and hence that liis title was paraNATURE OF THE ASSIGNMENT.
mount to that of Schofield. The Court of Appeals The fact that the situs of the property is deter-, decided against this contention. Earl, J., writing mined does not settle the question, and we must
the opinion, said: "No principle of justice, no pubinquire into the nature of the assignment. And
lic policy requires the courts of this State to ignore here we notice a marked distinction between rolun- the title of this assignee (Schofield) at the instance tary general assignments and assignments executed
of one of the bankrupts. No injustice will be done under bankruptcy and insolvency laws; the former ; to Waite if this money is taken to pay his creditors, is the voluntary and the latter the involuntary act of and public policy does not require that the courts the assignor. The one has the universal effect of a
of this State should protect him in his efforts to contract, the other the territorial effect of a statute.
cheat his creditors or his partner." After a careful As the foreign statute which gives life to the in
consideration of the decisions on this question, the voluntary assignment can have no estra-territoriul learned judge stated the following rules, to wit: effect of its own vigor, so it is a general rule that
1. The statutory title of foreign assignees in banksuch assignments have no effect on property outside ruptcy can have no recognition here solely by virtue the jurisdiction of the State where it was executed.
of the foreign statute. 2. But the comity of naOne State has no power to dictate to another State
tions allows a certain effect to titles so deriver, and the terms of administration and distribution of its the title of foreign statutory assignees will be recogproperty. A State by its sovereign power has the nized and enforced here when they can be without exclusive prerogative of determining the status of prejudice to the rights of creditors pursuing remeits citizens and their property within its borders. dies under our statute; provided, also, that such As to at State's power over its citizens, see l'ole titles are not in conflict with the law or public polCunningham, 133 Ľ. S. 107.
icy of our State. 3. Such assignee can appear and, A few leading cases will serve to illustrate this subject to the proceeding rules, maintain suits in distinction:
our courts against lebtors of the bankrupt whom The leading case in this State is the matter of they represent. Waite, 99 N. 1. +33, which reviewed the contlict These principles were reasserted by the Court of ing authorities and settled a long mooted question. Appeals in the late case of Barth v. Backus, 140 The facts were as follows: The firm of Haynes al N. Y., 2:30. In this case the contest arose between Sanger, doing business in the city of New York, on the assigner of a Wisconsin corporation and attachOctober 15, 1887, made it general assignment to ing creditors residents of New York, pursuing their Charles Waite, ia member of the firm of Pendle & remedy in New York. These creditors were asWaite, who were doing business both in New York signees of claims formerly due Wisconsin creditors city and London. Waite was il citizen of New agaivst the corporation, and took their title subseYork and Pendle il citizen of England. The ils quent to and with full knowledge of the Wisconsin signment contained a preference in favor of l'enlle assignment. Thereafter they procured attachments & Waite for about $14.000. Subsequently Pendle & against personal property of the Wisconsin corporWaite failed, suspending business in London in ation situated in the State of New York. The February, 1885, and Waite went to England, and Wisconsin statute governing the assignment prothey filed a petition in the London Court of Bank- vided that the assignor “may be discharged from ruptcy for a composition with creditors; but the his debts as a part of the proceedings under such composition failed. Then upon an application by assignment, upon compliance with the provisions of their creditors, which was opposed by Waite, the this act," and that every creditor who should acfirm of Pendle & Waite were declared bankrupts, Icept a dividend out of the assigned estate, or in