Livingston's Executrix v. Story/Dissent Baldwin

BALDWIN, Justice. (Dissenting.)

When this case was before the court at a former term, I dissented from the judgment then rendered, being of opinion, that the case ought to be decided by the law of Louisiana, not the code of equity adopted from the English system into the jurisprudence of the United States, as the court then decided. As the civil law was admitted to have been in force in that province, before its cession to the United States, and remained afterwards the basis of the jurisprudence of the state, with only such modifications as were made by their local laws; I felt it to be the duty of this court to administer it, as it does the law of other states, 'precisely as the state courts should do.' 2 Pet. 656; 5 Ibid. 400. It is admitted, that in the code of the civil law, there is no discrimination between the law and equity jurisdiction of its courts, either in the principles or mode of proceeding; the process and rules of judgment are the same, without regard to the nature of the right asserted or the remedy sought. This contradistinction exists only in the jurisprudence of England, and the states which have adopted it; nor can it exist elsewhere, unless the common law prevails. The jurisdiction of courts of equity, separately from those of common law, is a necessary part of the common law; though the forms of proceeding are borrowed from the civil law, yet the principles and rules of decision are those of the law of England, by which the judge is as much bound as in a court of law. By the adoption of its forms, an English court of chancery no more adopts the civil law, as a code of system of jurisprudence, superseding the common law, than it does the decrees of the Emperor, in place of acts of parliament. Both systems remain as distinct, as if the modes of proceeding differed as much as the two systems; and though the civil law forms are better adapted to equity proceedings than those of the common law, there is another incompatibility between the two systems. The separation of cases in law from those in equity, is a necessary incident of the common law; one part of the system cannot be engrafted on the civil law, without the other: of consequence, the introduction of the equity part of the common law into a state which has adopted the civil law, necessarily displaces it; and introduces a system of jurisprudence wholly at variance therewith. This conclusion is the result of the opinion and reasoning of the court, which is applied to all civil causes in the courts of the United States, in that state (9 Pet. 656-7); for if the English system of equity is in force, because there is no court of equity; the whole common law is also in force, because there is no court of law, contradistinguished from equity; on this ground alone, my objections to the former decision were insuperable.

By the third article of the Louisiana treaty, the inhabitants are guarantied 'in the free enjoyment of their liberty, property and the religion which they profess.' (8 U.S. Stat. 202.) 'That the perfect inviolability and security of property is among these rights, all will assert and maintain. (9 Pet. 133.) 'An article to secure this object, so deservedly held sacred in the view of policy, as well as of justice and humanity, is always required, and is never refused. (12 Wheat. 535; 6 Pet. 712; 8 Ibid. 86-8.) 'According to the established principles of the laws of nations, the laws of a conquered or ceded country, remain in force, till altered by the new sovereign.' (9 Pet. 747.) This principle was recognised by congress by the 11th section of the act of 1804, organizing the government of Louisiana; the 4th section of the act of 7th March; and the 9th section of the act of 3d March 1805. 'The laws in force in the said territory, at the commencement of this act, and not inconsistent with the provisions thereof, shall continue in force until altered, modified or repealed by the legislature.' (2 U.S. Stat. 286, 322, 332.) Congress extended none of the provisions of the judiciary or process acts to Louisiana; and instead of reserving to themseves the power of altering the local laws by those acts, expressly declared that power to be in the local legislature. These were solemn pledges, which the legislative power of the United States had never attempted to violate; nor, in my opinion, could violate, without disregarding the faith of the treaty; to my mind, a guarantee of property is inconsistent with the abrogation of the laws under which property is acquired, held and regulated, and the consequent substitution of a code, to which the people were utter strangers. Satisfied, that if there could be a power to change the laws of a ceded country, it was in the legislative, and not the judicial department of the government, I considered these provisions of the acts of congress to be as imperative on this court, as any other laws were, or could be.

A reference to the terms of the process act of 1792, will show, that it could not apply to a state in which the civil law prevailed; for it directs the modes of proceeding 'in suits at common law,' and 'in those of equity, and maritime and admiralty jurisdiction, according to the rules,' &c., which belong to courts of equity, and to courts of admiralty, as contradistinguished from courts of common law. (1 U.S. Stat. 276.) These terms necessarily exclude its application to a system, in which there was no such contradistinction; but in the act of 1824, the term is peculiarly appropriate to the law of Louisiana: 'That the mode of proceeding in all civil causes, &c.' (4 Ibid. 62.) The reason was obvious; there was but one mode of suing, whatever may be the cause of action. Congress thus declared, that the laws of the state regulating the practice of their courts, shall be the rule in the courts of the United States therein; so it had been for twenty years, and the state practice was confirmed, subject to such rules as the district judge might make. So it was construed and declared by this court in 1830. 'If no such rule had been adopted, the act of congress made the practice of the state the rule for the court of the United States. Unless then, such a special rule existed, the court was bound to follow the general enactment of congress on the subject and pursue the state practice.' Parsons v. Bedford, 3 Pet. 445; S. P. Parsons v. Armor, Ibid. 424. In Duncan v. United States, the court, after reciting the act of 1824, are still more explicit. 'This section was a virtual repeal, within the state of Louisiana, of all previous acts of congress which regulated the practice of the courts of the United States, and which come within its province. It adopted the practice of the state courts of Louisiana, subject to such alterations as the district judge might deem necessary to conform to the organization of the district court, and avoid any discrepancy with the laws of the Union. 7 Pet. 450. 'As the act of 1824 adopted the practice of the state courts; before this court could sanction a disregard of such practice, it must appear, that by an exercise of the power of the district court, or by some other means, the practice had been altered. On a question of practice, under the circumstances of the case, it would seem, that the decision of the district court as above made, should be conclusive. How can the practice of the court be better known or established, than by its own solemn adjudication on the subject?' Ibid. 451-2.

The act of 1828 is still more conclusive, when taken in connection with the decision of this court on the process act of 1792. 'In order to understand the bearing which the instruction moved for, has upon the cause, it is necessary to remark, that the state of Ohio was not admitted into the Union till 1802; so that the process act of 1792, which is expressly confined in its operation to the day of its passage, in adopting the practice of the state courts into the courts of the United States, could have no operation in that state. But the district court of the United States, established in the state, in 1803, was vested with all the powers and jurisdiction of the district court of Kentucky, which exercised full circuit court jurisdiction, with power to create a practice for its own government.' 1 Pet. 612.

This decision was made in 1828; and the same view was taken five years afterwards, in Duncan v. United States. 'Nor did the act (of 1792) apply to those states which were subsequently admitted into the Union. But this defect was removed by the act of the 19th of May 1828, which placed all the courts of the United States on a footing in this respect, except such as are held in the state of Louisiana.' 7 Pet. 451. This act uses the same terms as the process act of 1792, in referring to cases in law, equity and admiralty; and so would not be applicable to Louisiana. Congress however, did not leave this matter open to any doubt; the fourth section is peremptory: 'That nothing in this act ocntained, shall be construed to extend to any court of the United States, which is now established, or which may hereafter be established, in the state of Louisiana. (4 U.S. Stat. 282.)

There is no phrase so potent as this, 'nothing in this act shall be so construed:' it has not only the effect of an exception, a limitation or proviso; it is a positive and absolute prohibition against any construction by the judicial power, by which the thing prohibited shall be sanctioned. The effect of these words, in the 11th amendment of the constitution, has been adjudged by this court to annul all jurisdiction over cases actually pending therein, past, present and future; though the constitution had expressly given jurisdiction in the very case. 3 Dall. 382-3; 6 Wheat. 405-9. 'A denial of jurisdiction forbids all inquiry into the nature of the case.' 9 Wheat. 847. 'The constitution must be construed, as it would have been, had the jurisdiction of the court never been extended to it.' Ibid. 858; S. P. 9 Ibid. 206-7, 216; 12 Ibid. 438-9.

No construction, therefore, can be put on the act of 1828, which will make it applicable to the practice of Louisiana; how, then, this court could apply the act of 1792, in direct opposition to the subsequent acts of 1804, 1805, 1824 and 1828, was, and is, to me, a matter of most especial surprise. The provisions of the acts of 1792 and 1828, so far as they refer to the rules, & c., of courts of law, and of equity jurisdiction, as contradistinguished from each other, are identical; it was, therefore, perfectly nugatory, to exclude Louisiana from the operation of the act of 1828, and leave the act of 1792 in force within that state. It was worse than idle; it it was a solemn mockery, a legislative farce, a trifling with the people of that state, after a uniform course of legislation for twenty-four years, on a subject upon which all people are peculiarly sensitive-their local laws, usages and customs.

Accustomed to the civil law, the first settlers of Louisiana, their decendants and emigrants thereto, cling to it, as we of the old states do, and our ancestors did, cling to the common law, as a cherished inheritance. Had congress declared, in 1804, what this court did in 1835; or had there been a fifth section to the act of 1828, enacting that the process act of 1792 was in force in Louisiana, it may well be imagined, what would have been the state of public opinion. No such imputation rests on the legislative department, as would be fastened on its faith, if, in either their first or last act, in professing to maintain and protect the people in their property, according to the plighted faith of the treaty of cession, had been to deprive them of their laws, and force a foreign system upon them. Nor for more than forty years after the act of 1792, and thirty years after the acquisition of Louisiana, had there been an intimation from this court, that that act applied to the courts of the United States within it, either as a territory, or a state of the Union; the contrary had been declared and adjudged. In 1828, it was decided, that this act applied only to the states then composing the Union. 1 Pet. 612. The declaration was repeated in 1833 (7 Ibid. 451); and to leave no room even for discussion, this court, at the same time, held, that the act of 1824 was a virtual repeal of all previous acts of congress on the subject. Ibid. 650. When this case came up, in 1835, it had been decided by this court, that the act of 1792 never was in force in the new states, and that it was repealed as to Louisiana; the act of 1828, which applied to the other new states, was expressly prohibited from being applied to Louisiana; yet the act of 1792 was declared to be in force them.

If I am capable of comprehending this decision, it repeals five acts of congress; directly overrules three previous solemn decisions of the court; revives an act which had been repealed; extends to Louisiana a law which never applied to any other new state; and overthrows everything which carries with it legislative or judicial authority. As a precedent, it is of the most alarming tendency; no question, in my opinion, can be settled, if this was an open one in 1835. Congress may legislate, and this court adjudicate in vain, if the acts of the one, and the judgments of the other, are thus to be contemned. My respect for both, forbids my assent to such a course, or my acquiescence in a principle which must absolve judges from their obligation to follow the established rules of their predecessors, in the construction of laws, and the settled course of the law.

Having entirely dissented from a rule laid down by this court in Green v. Lessee of Neal, 6 Pet. 299, wherein the majority of the court put and answer the question, 'Would not a change in the construction of a law of the United States by this tribunal, be obligatory on the state courts? The statute, as last expounded, would be the law of the Union; and why may not the same effect be given to the last exposition of a local law, by the state court?' That the principle of 'legis posteriores priores contrarios abrogant,' is sound, when applied to legislative acts, all admit; but it is an innovation upon all rules, to apply it, as a general rule, to the exposition of statutes, which have received a settled construction by a court of the last resort. It is an assumption of legislative power, and a reversal of the established principle, that judges cannot amend or alter the law, but must declare what it is; and from the very nature of such a rule, as is laid down in Green v. Neal, the law can never be settled, so as to be binding on the judges of this court; as is most clearly illustrated in this case.

In 1835, there had been three solemn decisions, either of which was conclusive, that the act of 1792 was not in force in Louisiana; and there had been an uninterrupted course of practice in the district court of the United States, sanctioned by acts of congress and this court, for more than thirty years. One judge only dissented, in the case of Parsons v. Bedford; but it was, because, in his opinion, the court did not adhere, with sufficient strictness, to the state practice. 3 Pet. 452. In the cases in 1 Pet. 612, and 7 Ibid. 450, the court appear to have been unanimous; all the judges had then concurred in opinion on the very point which arose at the former argument; and the act of 1828 was a direct legislative sanction of the judgment of the court in the former case, being adopted to cure the defect of the non-application of the act of 1792 to the new states. There were but five judges present, who took part in the former decision, two of whom dissented; so that the case was determined by only three judges. I do not mean to assert, that the effect of a judgment depends on the mere number of judges who concur in it; but I do assert, most distinctly, that such a decision does not settle the law, in opposition to three previous solemn and unanimous adjudications. If the question, thus decided, remained open, there is, to my mind, neither reason, precedent nor principle, to sanction the doctrine that any judge is bound by the last decision, when he is not bound by former ones. When three last decisions can be overruled, it is strange that one cannot be. The decision of 1833 was the last, before another was made. The act of 1792 was then declared to have been repealed, and never to have been in force in Louisiana; yet no respect was paid to it, or the one in 1830 or 1828; neither of them were thought deserving of even a passing notice, or the most remote reference to them. The act of 1828 was treated in the same manner, as alike unworthy of attention. Had any other department or officer of the government, any circuit or district court of the United States, or any state court, thus drawn a sponge over these acts of congress, and our repeated decisions upon them, it would have been justly deemed a disregard of the constituted authorities.

I freely admit, that a court may and ought to revise its opinions; when, on solemn and deliberate consideration, they are convinced of their error. It is often done, though never without the fullest investigation; even then, one decision does not settle the law; when they are contradictory, the matter is open for future research. There is no more certainty that a last opinion is more correct than the first. Generally speaking, a construction of a law, nearest the time of its passage, is most respected, and is adhered to, though there may be doubts about it, on the principle of 'stare decisis.' But it is believed to be unprecedented, to consider a subsequent decision that omits any reference to prior ones, and from some cause overlooks them, though they are in point, and by a court of the last resort, as having settled the law. If, however, such is the rule, it necessarily follows, that it can only remain until another last decision shall be made, restoring the old law, or making a new version of it.

A judge who, in 1835, was at liberty to make a last construction of a law, is certainly as free in 1837, as he was two years before. The very principle of this case is, that prior decisions, though unanimous, are not binding; the next, in point of time, by a divided court, can then be of no more authority; and a fortiori, one such opinion cannot outweigh three contrary ones, unless every last decision has the same effect, whenever a present majority may think fit to make one. To such a principle, I can never yield assent, unless in the last judgment of this court, all prior ones have been fully considered; the more especially on such a subject as is involved in this case, in which we were called on to repudiate the laws of a state of this Union, and substitute therefor, by judicial power, a system equally repugnant to the habits, the customs and the choice of the people. In introducing into Louisiana that part of the law which constitutes the law and practice of courts of equity, the other part of the same system, being commitant, cannot be excluded; if it is to be done, or can be done, it is only by the legislative power.

These were my reasons for dissenting from the judgment heretofore rendered in this cause; they still operate on my mind, in their full force; they are, indeed, strengthened by the judgment now given; which seems to me as repugnant to the former, as that was to all former ones, and the existing laws.

The controversy between these parties is respecting real property of great value; the plaintiff claims it, subject to a payment of a certain sum of money; the defendant claims it as his own absolutely, by purchase from the plaintiff, pursuant to several contracts made according to the forms of the law of Louisiana. The suit was commenced by a bill in equity, according to the form of process adopted to such courts; and contrary to the practice of the district court, from the first organization of a territorial government in Louisiana, in 1804, till the filing of the bill in 1834. A demurrer was put in, assigning two causes. 1. That plaintiff had not set out such a case as entitled him to any discovery or relief, in any court of equity in the state. 2. That by the bill, it appeared, that the transaction complained of, was between the plaintiff on one side, and the defendant and one Fort on the other, whose heirs were not made parties (9 Pet. 6, 36); that this was necessary by the law and practice of Louisiana, was admitted. It was not a matter of mere form or practice, that the heirs of Fort should be made parties; the transaction was a joint one. Story had purchased from Fort, and paid him a large sum of money for his interest in the property. To Story, therefore, it was highly important, that when the original transaction was to be unravelled, he should not alone be held answerable to the plaintiff, and be compelled to reconvey, without his partner being compelled to contribute. By the law of the state, he had a right to this protection; it was equitable too, that the plaintiff should be compelled to call into court all the parties who had been concerned; to the defendant, it was but justice, that he should not be put to his remedy against his associate, and the consequences be visited on him alone. This right to have the heirs of Fort brought in, was absolute, had the plaintiff sued in the mode prescribed by the law and practice of the state; it was a substantial benefit to Story, of which he could have been deprived in no other way, than on abrogation of the established course of proceeding, then in force in the state. This was done by the court, in overruling the demurrer on both points; they declared that the process act of 1792 applied to the case; and as the defendant, at the time of filing the bill, was the only person claiming or possessing the property, none other need be made a party. 9 Pet. 658-9. By the terms of this act, 'the forms and modes of proceeding in suits in equity, &c., which are to be pursued in the federal courts, is not confined to the mere process employed;' it is to be 'according to the principles, rules and usages, which belong to courts in equity,' &c. (1 U.S. Stat. 276.) When it is recollected, that there is no statute in England which defines the jurisdiction of these courts, or prescribes their course, the whole law or code of equity jurisprudence is necessarily made up of its own 'principles, rules and usages,' which make it a system, as contradistinguished from that which prevails in courts of law. When, too, we look to its adoption by the judiciary and process acts, it is at once apparent, that its effects go far beyond forms and practice; if it is in force in Louisiana, it does not stop at substituting an English bill, for a civil-law petition; the whole law of equity, as a distinct code, necessarily accompanies it, by the very words of the act of 1792. So it must have been understood by the court, or they would have directed the heirs of Fort to be made a party to 'a bill of equity;' as they must have done, had the proceeding been by petition. On this point, their language is most explicit, in using the very words of the act of 1792. 'And that in the modes of proceeding, that court was required to proceed according to the principles, rules and usages, which belong to courts of equity, as contradistinguished from courts of law.' 9 Pet. 655. So again, 'as the courts of the Union have a chancery jurisdiction in every state, and the judiciary act confers the same chancery powers on all, and gives the same rules of decision, its jurisdiction in Massachusetts' (and of course, in Louisiana), 'must be the same as in other states.' Ibid. 656. And if no such laws and rules applicable to the case exist in Louisiana, then such equity powers must be exercised according to the principles, usages and rules of the circuit courts of the United States, as regulated and prescribed for the circuit courts in the other states of the Union. Ibid. 660. There can, therefore, be no mistake, in considering, that the whole system of English equity jurisprudence henceforth is the law of Louisiana, both in form and substance (see p. 659), if the judgment first rendered in this case is the settled law of the land.

In its present aspect, then, the suit must be taken as a bill in equity, to be decided on, and by, the same principles, rules and usages, which would form the law of equity in a circuit court of any other state. In so viewing this case, there seems to be insuperable objections to the relief prayed for in the bill, even on the plaintiff's own showing, and the documents referred to.

The first contract between the parties was, in form, an absolute sale, in July 1822, for the consideration of $25,000; of even date there was a defeasance or counter-letter, stipulating for a reconveyance, on payment of that sum, in February 1823, and in case of non-payment, the property to be sold. In March 1823, an agreement was made, extending the time till June, stipulating the terms. The sale was postponed, at plaintiff's request, and a new agreement made, whereby he was to pay Fort & Story $27,830, on the 5th of August, otherwise the property was to be absolute in them, and the defeasance to be cancelled, so as to bar any equity of redemption; the declared intention being 'to vest in Fort & Story a full title, in fee-simple, for ever.' The plaintiff not paying the money, the defeasance was cancelled; and Fort & Story remained in the possession and enjoyment of the property. In his bill, the plaintiff alleges, that the original transaction was a loan of money, for the security of which the contracts were executed; and rests his whole case upon that allegation; he avers no fraud or unfairness on the part of Story or Fort, no ignorance of his rights, or of any fact or matter in any way material to him, when the subsequent agreements were made. His only equity is, in averring, that the property was worth more than the sum he had received, his inability to repay it, owing to the great pressure for money in 1822 and 1823, the non-application of $7000, which sum was to have been expended in improvements on the property; and that it was worth $120,000 at the time of suit brought in 1834. In such a case, a court of equity would look for the equity of the case, in the acts of the plaintiff, in March, June and August 1823; and if not satisfied that the release of all right of redemption, and the agreement that the right of Fort and Story should become absolute in fee-simple, was made in ignorance by the plaintiff, or by fraud or imposition by the defendant, the plaintiff could have no standing in court. Admitting the first contract to have been a mortgage, the parties voluntarily changed its nature, on the application of the plaintiff; his object was to avoid a sale, and to gain time till the pressure subsided; but finding it continuing, he preferred making the transaction an absolute sale, rather than expose the property to a public sale, during the pressure.

If better terms could have been obtained than were offered by Fort & Story; or if the averment in the bill, that it was worth $60,000, in 1823, was true, it is incredible, that the plaintiff should have been so desirous of keeping it out of the market; or that he would have entered into the agreement of June, if he could have obtained a better price from others. Be this, however, as it may, the mere inadequacy of price is of no consequence in equity; courts will never set aside a contract on this ground, if it is free from all other objections: the agreements of March and June were solemn, deliberate and executed according to the solemnities of the civil law; and were binding by all the rules and principles of the English system of equity. By that law, Mr. Livingston was not a minor, deemed incapable of managing his own affairs; neither is ignorance of the law or facts of his own case, imputable to him; and he shows in his bill no reason why he should not be bound by his contracts, or why he should have them annulled.

As a mortgagor, in the first instance, a court of equity would protect him against any unfair release of his equity of redemption to the mortgagee; yet, if fairly made, it would be as valid as if he had conveyed it to a third person. So far from any equity arising to him from the rise in the value of the property from 1323 till 1834, it is, in my opinion, a strong circumstance in favor of the defendant, who advanced his money, during a severe pressure, when he could have purchased this property at auction, at a rate below its estimated value, proportioned to the demand for money, or have purchased from others. This ground of relief, however, entirely fails, when we consider the answer of the defendant; he denies the whole equity of the bill, as well as every allegation on which it rests; the answer is responsive to the bill, is full and explicit; and the plaintiff has not disproved one fact or averment contained in it; nor proved any one matter averred in his bill. It is distinctly denied, that the original transaction was a loan; that the property was worth more than the sum to be paid for its reconveyance, or to prevent a sale; the non-application of the $7000 is accounted for in a manner which throws on the plaintiff all its consequences; and shows it to have been by his own acts, and those of the person for whom he was surety to the defendant. These circumstances alone, would take from him any standing in a court of equity, in England, or any circuit court of a state.

Another view of the case is equally conclusive, on an inspection of the bill, answer and exhibits. The plaintiff did not rest his case on the documentary evidence; he averred the transaction to have been different from what was expressed in the written agreement; and called for the aid of a court of equity to compel the defendant to disclose the real nature and character of the original contract, and the true intention of the parties, on his oath. By this, he made the answer to the bill and interrogatories evidence; it is directly responsive, full and positive, and supported by evidence of the most satisfactory kind; the written application of the plaintiff's agent to Fort & Story, on the 13th July, preceding the first agreement. See ante, p. 360. No attempt was made by the plaintiff, to prove the averment, that a loan was intended; so that there was nothing in the case which could vary the terms of the writing. The only original contract, was, then, the conveyance; and the defeasance or counter-letter in connection, as one agreement, the terms, of which show its legal character to be a conditional sale, and not a mortgage, when tested by the rules of equity as recognised by this court.

To make such a transaction a mortgage, it is indispensable to show that the party receiving the money was bound to repay it; unless it clearly appears, from the evidence, that a loan was intended; and that the form of a sale was adopted as a cover for usury. The principal and interest must be secure; there must be a remedy against the person of the vendor or the borrower, and clear proof that he was liable. 7 Cranch 236-7; 9 Pet. 445-54. If it is not proved by extrinsic evidence, that a loan was intended, and the party bound to repay it, it matters not how extravagant the terms of repurchase may be; the redemption must be on the day stipulated; or the estate vests absolutely, if the principal was at hazard. Ibid. 455, 459. Inadequacy of price is not a circumstance which will convert a conditional sale into a mortgage (7 Cranch 241); and if the party makes no claim to the property, while the other is in possession, making valuable improvements on it, without any notice of an intention to assert a right of redemption, a court of equity will not aid him. Ibid. 240.

In the counter-letter, Mr. Livingston is not bound to repay the money; Fort & Story had no remedy against him; had the property sold for, or been worth, less than the sum advanced, the loss was theirs. There is an averment in the bill, that the plaintiff was liable; but it is expressly denied by the answer, and the plaintiff has not offered a spark of evidence to contradict it; the protest made in August was not to found an action; but was made as authentic evidence of the fact of non-payment, and to silence the pretensions of the plaintiff, as is expressly sworn to in the answer. It is also positive, as to the value of the property as the time, and afterwards. 'This deponent was repeatedly offered, after 1823, by John A. Fort, the half of the property, at cost and charges; which he refused, considering the property not worth it. It has been only the rise of all property in that part of the city where it is situated, that has saved them from loss.'

Should it be thought worthy of inquiry, why they should pay for the property more than it was worth, in 1822 or 1823, the answer is at hand. By the contract, $8000 of the money was to be expended in improvements, which would have been so much added to the value of the property; the plaintiff was security that this sum should be so applied by Rust: trusting to this guarantee, Fort & Story advanced the $8000 to Rust, who misapplied it in the manner stated in the answer to the interrogatories of the bill. In the answer, it is also stated, that plaintiff represented that a quantity of joists and iron-work had been found for the buildings then erecting; but, on inquiry, defendant found, they had not been paid for, and he and Fort had been compelled to purchase them at a cost of $1370. This sum, added to the $7000 misapplied by Rust, was a diminution of the value of the property more than $8000 below what it would have been, if the plaintiff had fulfilled his guarantee, and made good his representation; and the work done would be worthless, unless the buildings had been made tenantable. Fort & Story had no option but to submit to this loss, inasmuch as they had confided in the plaintiff, that he would do what he was engaged to, without holding him personally bound to repay them the $25,000; $8300 of which was lost to them in the manner stated. To save themselves, they were thus compelled to advance this sum, to put the buildings in the state they were stipulated for, when they made the agreement. Under such circumstances, no court of equity could have considered the transaction a mortgage, or the plaintiff as entitled to any relief.

On another ground, the plaintiff's case was divested of all semblance of equity. He had laid by eleven years, after he had voluntarily cancelled the counter-letter, and surrendered the property, by an absolute title in fee-simple, during which time he had given no notice of any claim on his part, or any intention to assert a right of redemption; when Fort & Story, to his knowledge, were making costly improvements, under the full belief that they owned it; as the plaintiff had solemnly engaged that they should own and hold it. He waited till all risk was out of the question, when the speculation was a certain great one; and, in his own good time, comes into a court of equity, demanding a re-conveyance, and offers to allow to Story five per cent. per annum for the use of his money: but refusing even to make the heirs of Fort a party; though the plaintiff knew, and stated in his bill, that Story, relying on his contract, had purchased out his interest at a large advance. For this delay, the bill assigns no reason or excuse, nor can any be found in the whole record; none has been offered in argument, none can exist to which any court of equity would listen, while it respected the principles laid down by this court, at the same term in which this cause was first before it.

'A court of equity, which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, where the party slept upon his rights, or acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith and reasonable diligence. When these are wanting, the court is passive, and does nothing: laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was always a limitation of suits in this court. The same doctrine has been repeatedly recognised in the British courts, as will abundantly appear from the cases already cited. It has also repeatedly received the sanction of the American courts, &c. And it has been acted upon in the fullest manner by this court, especially in,' &c. Piatt v. Vattier, 9 Pet. 416-17.

With submission, then, it must be asked, why this principle should not be applied to this case? There can be none which calls more loudly for it; it is a fundamental rule by which all courts of equity act; it is an essential part of that system of equity, which in this very case, this court, two years ago, held to be in force in Louisiana; as well in the principles and rules of decision, as in matters of practice, furnishing the law of the case, in place of the local law which was then suppressed. In Louisiana, ten years is a positive bar, by limitation, when the law is applied; the principle of analogy, therefore, would apply to a shorter period than in other states, where the time of limitation is twenty years. In such a case, and circumstanced as this case is, the lapse of eleven years, wholly unaccounted for, would be as fatal to the plaintiff's claim in any court of equity, in England, in any of the states, or in this court; as if it had continued for any period, however long. The same question may be put as to the rules and principles on which equity acts, or would act, in annulling contracts like those of March, June and August 1823; also as to the established rules in deciding on what is a conditional sale or a mortgage, as likewise declared at the same time. 9 Pet. 445, &c.

One answer has been given to all questions which can be put, if this case is to be decided by the English system of equity jurisprudence, as adopted by the process act of 1792, and declared to be a part of the law of Louisiana in 1835. It is now most solemnly adjudged, that this case is not to be determined by 'the principles, rules and usages of courts of equity, as contradistinguished from courts of law;' that it depends on, and is governed by the Louisiana law of antichresis or mortgage; by which no length of possession, no amount expended in improvements, no laches of a mortgagor, however incompatible with every principle of common justice or English equity, can bar a redemption, without a sale. Nay, this law, by the decree as now made, declares Mr. Livingston to be a minor, under a pupilage so strict, that his contracts, in relation to this property, are mere paper and pack-thread; and his pledged faith, that Fort & Story should hold and enjoy it, idle wind; because no sale was made, on account of his repeated and most urgent efforts to prevent it. He, too, the distinguished jurist who revised and compiled codes for Louisiana, and was deeply versed in all the details of its laws, asks this court to give him the benefit of this law of antichresis, as the only ground on which it can give him a decree for property, without irretrievably compromitting that which he deemed far more valuable-his character.

Fort & Story did not intend to pay their money on such a contract as an antichresis. Mr. Livingston did not intend to mislead or deceive them, by persuading them to waive a sale, which, under such a contract, was indispensable to bar his right of redemption; he did not cancel the counter-letter, and pledge himself that his equity of redemption was for ever extinguished, knowing that the law incapacitated him from doing it. Fort & Story never contemplated that their only right to the property, was only a pledge upon it, for their money and legal interest; nor could it have entered into their minds, that by indulging Mr. Livingston, in avoiding a public sale, they were thereby giving him the sole benefit of their capital, expended in the purchase and improvements, as well as the appreciation in value of the property, That an antichresis was ever in their minds, cannot be pretended; or that he knew that the contract was of that nature, and intended to avail himself of it, if a change of times should make it his interest to do so, when the property rose to a sufficient value, while he held out to Fort & Story that their title was perfect-is incredible. He must have been as ignorant of the law as they were, and both have intended the transaction as a conditional sale; in such a case, a court of equity would so reform the contract, as to make it conform to the real intention of both parties.

On the other hand, if they intended the contract to be a conditional sale, and he intended it to be a mortgage, there is a fatal bar to this case. It was laid down by this court, in 1835, that where the contract was in terms a conditional sale, it would not be turned into a mortgage, or the money be deemed a loan; unless the intention to do so was mutual. 9 Pet. 450. That it was not so in this case, is manifest from the conduct of the defendant, and his positive oath in his answer; which decidedly negative any mutuality of intention.

There are, then, the following distinct grounds of defence, on equitable principles, to the plaintiff's bill. 1. He has failed in adducing any evidence, competent to vary the terms of the original contract. 2. He has shown no ground for annulling the subsequent contracts, or why they are not binding on him in equity. 3. All the averments in the bill are positively denied by an answer, directly responsive, which remains uncontradicted, without an attempt to disprove any part of it, or to support the bill. 4. The plaintiff was never bound to repay the money; and the defendant incurred the whole risk of a depression in the value of the property. 5. The defendant never intended to enter into a contract of loan or mortgage. 6. The plaintiff is barred by the lapse of time and acquiescence, without notice.

If then the decree of this court, at this term, had been rendered in accordance with those 'principles, rules and usages of a court of equity,' which they adjudged two years before, to be the law of the case, the decree of the court below must have been affirmed; yet is now reversed, because the local law, which was wholly repudiated then, is applicable now. Herein there seems to me an utter discrepancy between the two decrees of this court. In 1835, the practice and law of Louisiana was displaced by the practice and law of equity; by the rules of which the demurrer was overruled, when it must have been sustained, if the act of 1792 had not been in force in that state. In 1837, the forms and modes of proceeding in equity are retained; which deprive the defendant of the benefit of the law of the state, compelling a plaintiff who sues for the redemption of mortgaged property, according to the law of antichresis, to join all the original parties; in consequence whereof, the plaintiff retained his standing in court, which he must otherwise have lost. The law of equity, having thus performed its appointed office, is, in its turn, displaced by the state law, and ceases to be a rule of decision; the law of antichresis is then brought in, to perform the final office of annulling the contracts of the parties; taking the property from the defendant, and awarding it to the plaintiff. Now, if the law of antichresis must govern this case, it is by sheer, dry, legal right; as destitute of any equity as it is contrary to its most sacred principles, when applied to such a case as this; by every rule of its action, equity calls on the plaintiff to show 'conscience' in his claim; 'good faith' in his conduct; and reasonable diligence in pursuing his rights, before it moves one step. Let the record answer how these calls have been met.

In his bill, the plaintiff holds the defendant to the most strict rules of accounting, as a trustee or agent; he offers to pay legal interest (which is five per cent.) on the money due in August 1823; say $28,000; which, for eleven years at the time of filing the bill, amounts to $15,400: so that defendant would be entitled to a credit, in account, of $43,400, from which must be deducted $29,700, he had received for rents up to 1829; and at the rate stated, he would be indebted to the plaintiff in 1834. The plaintiff would then regain a property, stated in his bill to be worth $120,000, and by Mrs. Fort to be $200,000, and by the use of the defendant's money; while Story is left to seek his remedy against her for the $50,000, paid her in 1832, for her share. In his offer, the plaintiff omits any credit to the defendant, for taxes on the property, or compensation as his bailiff and receiver, for collecting the rents of the buildings erected with his own money, as it now seems, for the plaintiff's use, on an interest of five per cent. in New Orleans. This is the conscience of the case. Its good faith can be ascertained by the stipulations and solemnly declared intentions of the plaintiff, in the contracts of March and June 1823; the cancellation of the counter-letter; and after an utter silence for eleven years, then, for the first time, asserting the contract to be an antichresis; with a perpetual right of redemption, till a sale was made by its authority. Reasonable diligence would seem to consist in the plaintiff's pleasure; eleven years must be held not to be 'a great length of time,' under the circumstances of this case; or the utter silence, and want of notice for this period, must be held not to be an 'acquiescence' in the defendant's right. It has been a truly fortunate result for the plaintiff, that with a case not substainable by either the practice or law of Louisiana, or by the rules and principles of a court of equity, separately, he has been able to attain his object at one term, by one law, and at another term, by the other; so happily applied, as to meet the exigencies of his case at both terms. Had the one law been made the rule of decision on the whole case, I might have acquiesced in the result; as it is, I am constrained to dissent from the whole course of proceeding; as, in my settled judgment, in direct conflict with the acts of congress, as well as the repeated and most solemn adjudications of this court.

I have not examined into the law of antichresis in Louisiana, for the want of the necessary books; conceding, however, that it is as the court has considered it, it gives the plaintiff a sheer legal right, for the violation of which a court of equity is not the proper forum to resort; the right being in contravention of the fundamental principle of such courts, the remedy must be in a court which decides by the rules and principles of the civil law; to which code alone such a contract is known.

There is one other matter, on which I also dissent from the opinion of the court; which has too important an effect on the rules of pleading and practice in suits in equity, to be passed unnoticed; and is in my opinion, a dangerous innovation, unsupported by principle or precedent. From the preceding view of this case, it is apparent, that if Mr. Livingston had been a citizen of Louisiana, he could have sued only in the court of the state; his proceedings must have been according to its practice and laws, by which he must have made Mrs. Fort a party. Admitting his right to the property to be what this court have held it, it would have placed the defendant in a very different position from that in which he now stands, without the least injury or inconvenience to the plaintiff. Mrs. Fort would have been compelled to refund the rents she had received, which, by the decree, the defendant must pay; together with the $50,000 she received from him, with the accruing interest; as well as the loss sustained by receiving only five per cent. on their capital; and probably, paying to banks eight or ten per cent. as is usual in Orleans. See 3 Wheat. 146. By suing in a court of the United States, the plaintiff, by the aid of the process act of 1792, has protected Mrs. Fort, and thrown the whole loss on Mr. Story; leaving him the chances of a suit with her, in place of the certain remedy that a state court would give him. To him, it was no matter of form, practice or mode of proceeding, whether he was sued in the one or the other court; it may be, that his whole indemnity from Mrs. Fort depended on it: to the plaintiff, it mattered not, so that he obtained the benefit of the law of antichresis, which the state court was bound to administer, as much as the court below was. The measure of justice to him was the same in both courts. It was by being a citizen of New York, that this court enabled the plaintiff to overrule the demurrer; by the application of the process act of 1792, the law of the case was changed; so that it was a most important fact in its bearing on the merits of the cause, not one affecting the form of proceeding in the suit. It was averred in the bill, that the plaintiff was a citizen of New York: the defendant, in his answer, says, 'that he does not admit, but if it be the fact, requires proof that the complainant is a citizen of the state of New York; that at the time of the transaction mentioned in the bill, and for a long time thereafter, he was a citizen of the state of Louisiana, and one of her senators in the congress of the United States; and if he has ceased to be a citizen of that state, the defendant knows not when, or how, and calls for proof.' To this part of the answer, an exception was made, because the objection came too late, after a demurrer had been overruled. The exception was overruled, and the general replication was filed. On the hearing, one deposition was read on the part of the plaintiff, to prove the fact; but in my opinion, it failed to do so. This, however, was not deemed material by the court; who held, that the averment of citizenship could be controverted in no other way then by a plea in abatement: and that not having done so, the defendant was too late in reserving the denial till he answered; applying to the case the same rule which prevails as to pleas to the jurisdiction of a court of equity.

Had this been a suit by petition, according to the practice of the state, a denial of the citizenship or alienage could have been made in the answer, after a plea in bar, and the cause ordered for trial; it was so decided by this court in 1833, declaring, that 'the courts of Louisiana do not proceed by the rules of the common law;' 'their code § founded on the civil law, and our inquires must be confined to its rules.' 7 Pet. 429. This plea was offered, after issue joined on a plea in bar, and after the argument had commenced; the court might admit it, and the court might also reject it; it was in the discretion of this court to allow or reject this additional plea. Ibid. 432. In 1 Pet. 612, it was decided, that a district court in a new state had 'power to create a practice for its own government.' The practice of the state courts, adopted by the district judge of Louisiana, has been always recognised by this court, and acted on. 6 Pet. 198; 7 Ibid. 429-30; 8 Ibid. 303. In Brown v. Keene, this very objection was taken in the answer, and considered by the court. 8 Ibid. 112, 115.

Such being the established practice of the court below, sanctioned by this court, and the act of 1824, the plaintiff would have been bound to prove this averment, and considered himself so bound by the attempt to do it; but this court has relieved him, by expunging the state practice, and substituting what they assume to be the equity practice of courts of chancery in England. The consequence of which is, that the defendant is not allowed to deny by his answer, a fact averred in the bill, unless by a plea in abatement, in which he takes on himself the burden of disproving it: of course, if he fails in doing so, the averment must be taken to be true, without any proof offered by the plaintiff to sustain it. That this decision of the court is as repugnant to its own principles, often declared, and to the rules of pleading in equity cases, as it is to the recognised practice of the court below, is clear to my mind. By the 18th rule prescribed by this court, 'for the practice of the courts of equity of the United States;' 'the defendant may, at any time before the bill is taken for confessed, or afterwards, with the leave of the court, demur or plead to the whole bill, or part of it; and he may demur to part, plead to part, and answer to the residue,' &c. 7 Wheat. xix. By the 23d rule, 'the defendant, instead of filing a formal demurrer or plea, may insist on any special matter in his answer; and have the same benefit thereof, as if he had pleaded the same matter or had demurred to the bill.' Ibid.

When this case was before this court, two years ago, this was their language: 'It is an established and universal rule of pleading in chancery, that a defendant may meet a complainant's bill by several modes of defence. He may demur, answer and plead to different parts of a bill.' 9 Pet. 658. Such were the rules of equity then. There must have been a great change in equity practice since, if a defendant may not now deny in his answer any averment in the bill, or call for proof of any fact averred, as to which he has not sufficient knowledge, to be safe in admitting or denying it. When he answered this bill, there was no rule of this or any court of equity, by which the averment of citizenship was exempted from the special rules of this court, or 'the established and universal rule of pleading in chancery:' it was not a privileged allegation, but like all others material to the plaintiff's standing in court, he was bound to prove it, when called on by an answer, which did not admit, or put it in issue by a denial. It is hard, indeed, on the defendant, that he suffers under the adoption of a rule unknown to the law or practice of equity; when he put in his answer, his counsel looked to the existing rules, after he found that the rules of the state practice had been superseded; and must have felt safe in following those which had been laid down as universal, in that opinion which fastened the equity code of England on the state and people of Louisiana. They had a right to confide in its future administration, according to the rules and principles promulgated by that tribunal, which, by its own power, imposed it on them. It has been held by this court, for more than forty years, that an express averment of citizenship is necessary to enable a citizen of one state to sue in the federal court of another; that it is a special privilege, conferred by the constitution and the judiciary act, to which the plaintiff must show his right by the record; that the averment must be positive, and not in the alternative (8 Wheat. 112); that it must be in the body of the bill, and does not suffice that it is in the title or caption; that it is not only a fatal defect after a final decree; but it is deemed so important that the judges feel bound to notice it, though counsel do not. 8 Pet. 148.

When the whole action of a court of equity on a bill, which does not, in its body, contain this averment in positive terms, is thus a mere nullity, and a final decree does not cure the defect, it is a most strange conclusion, that it cannot be denied by the answer, or the plaintiff be put to its proof; that as one of the allegata of the bill, it is indispensable, while as one of the probata, it is immaterial. As the defect goes to the jurisdiction of the court, it would seem consonant to reason, as well as to law, that if the averment of the fact was material, its truth was equally so; yet if the doctrine of the court is sound, the defendant cannot put the plaintiff on proof of it, or make it a matter in issue, on which he can adduce negative evidence. By putting the defendant to his plea in abatement, the court seem to me to have overlooked its requisites. Such a plea must be on oath; and it must give the plaintiff a better writ or bill, by pointing out how he ought to sue: such are its requisites in a suit of law or equity. 1 Day's Com. Dig. 151; 1 P. Wms. 477; Beames 92-3; 1 Ves. sen. 203-4.

The requisites of all pleas in equity are also overlooked. A plea must set up matter not in the bill; some new fact as a reason why the bill should be delayed, dismissed or not answered; or the plea will be overruled. Mitf. 177-9; Beames 2-7; 2 Madd. 346 (Am. ed.).

The nature and effect of a plea to the jurisdiction of a court of equity, are also wholly misapprehended. It does not deny the plaintiff's right to relief, or that the bill does not contain matter proper for the cognisance of a court of equity; but it is made on the ground, that the court of chancery is not the proper one to decide it; it admits the jurisdiction of equity, but asserts that some other court can afford the remedy. Mitf. 180; Beames 57. This must be done by matter set up in the plea; because the court of chancery, being one of general jurisdiction in equity, an exception must be made out by the party who claims an exemption, in order to arrest its jurisdiction. Mitf. 186; Beames 57, 91; 1 Vern. 59; 2 Ibid. 483; 1 Ves. sen. 264. This objection must be by plea, and cannot be taken by demurrer; it must show what court has cognisance of the case; that it is a court of equity, and can give the plaintiff a remedy; if no circumstance can give jurisdiction to the court of chancery, then no plea is necessary; a demurrer is good. Mitf. 123-4; Beames 100-1; 1 Atk. 544; 1 Saund. 74; 1 Dick. 129; 3 Bro. C. C. 301; 2 Ves. sen. 357.

From this view of a plea to the jurisdiction of the court of chancery in England, it must be manifest, that there is and can be no analogy between its jurisdiction and that of a circuit or district court, sitting as such; the former, being general, attaches to every case not brought within an exception, by matter specially pleaded, showing that the case is cognisable in some inferior court of equity, competent to give the relief prayed; the latter is special, and limited to the cases specially enumerated, within which the plaintiff must bring himself, by averment and proof of the necessary fact. A denial of this fact does not oust an existing general jurisdiction; it puts in issue the only fact which can give the court cognisance of the case: no fact or matter, not in the bill, is set up by way of avoidance or delay, or as a reason for not answering; nothing is put in issue but the truth of the allegation, in which the plaintiff claims a right and privilege denied to the citizens of Louisiana. He has claimed, and the court have granted him, a much higher privilege than that of merely suing in a federal court; he is exempted from the obligation of suing, according to the law and practice of the state; the benefit of the equity code of England is given to him, and the defendant deprived of the right secured to him by the law of the state, that of having the heirs of his former partner made a party. The plaintiff's privilege is the defendant's oppression; the plaintiff is a favored suitor; not because he is a citizen of New York, in truth or in fact, but merely because he says in his bill that he is; and the defendant must submit to all the consequences of the averment being true, unless he will also consent to undergo the perils and inflictions of a plea in abatement. We have seen what its requisites are: now let them be applied to this case, and the consequences of such a plea. It must be on oath, the fact is not within his knowledge; he swears to a negative of a fact asserted in the bill, whereby he is compelled to incur the risk of perjury. As pleas in abatement in the court of chancery are governed by the same rules as in a court of law (1 Ves. sen. 203; Beames 89-90), there is another rule worthy of notice: 'If the plaintiff take issue on a plea in abatement, and it be found against the defendant, then final judgment is given against him.' 2 Saund. 111 a, note 3, and cases cited. He must, therefore, incur the danger of a final decree against him, if he does not make out his negative issue; his plea must be overruled, because it sets up new matter not in the bill. He must give the plaintiff a better writ or bill, by showing that some other court of equity has cognisance of the case; this is impossible, in Louisiana, in which there is no such court: his plea is then bad, because he cannot comply with the requisites, unless it is incumbent on him to do it, in the only possible way left him. He can set up new matter, by averring that the plaintiff is a citizen of some other state than New York or Louisiana, and thus give the plaintiff a better bill; for then the same court would have jurisdiction, so that the plea would be nugatory, and subject the defendant to all the consequences which he sought to avoid. The reason given for the rule of pleading, in chancery, shows its entire inapplicability to a suit in a federal court. 'The reason of this is, that in suing for his right, a person is not to be sent everywhere to look for a jurisdiction; but must be told what other court has jurisdiction, or what other writ is proper for him, and this is matter of which the court, where the action is brought, is to judge.' 1 Ves. sen. 203. The plaintiff knows his own residence.

It would be the most perfect anomaly in pleading, to draw up a plea to the jurisdiction of the court of chancery, in the English form, and apply it to a bill in equity in a circuit court of the United States, so as to meet the averment of citizenship of the plaintiff, according to the present decision of this court. Its exhibition to an equity pleader in Lincoln's Inn, who would read our constitution, the judiciary act, the rules and decisions of this court, would not fail to cause him to admire it as an improvement in the science of pleading. For myself, I am utterly unable to comprehend, that the denial of an averment of a fact in a bill, can be deemed a plea of any kind, unless it is the general issue, or a special issue on that fact; to be a plea in abatement, or in bar, every rule of pleading in law or equity requires that it should set up some matter not in the bill. And I can imagine no greater departure from the practice and principles of equity, than to deprive a defendant of the right of denying a fact stated in the bill, unless by exposing himself to the perils, and incurring the consequences of a plea in abatement. If the decision now made, remains the law of the court, the rule must be carried out to all its consequences. Equity pleading is a science; its settled rules form an admirable system; but an innovation upon them would produce the most crying injustice. To my mind, there cannot be a case which can more forcibly illustrate the dangerous effects than the present, when the record is examined, and its judicial history compared, throughout its progress to its present state, with the acts of congress, the rules of practice, and decisions of this court.

For these reasons, I feel constrained to express my dissent to the whole course of the court in this case; whether it is tested by the practice and law of Louisiana, or the English system of equity, it is an entire departure from both, if I can understand either. The transition from the one system to the other, in the different stages of the cause (each operation to the manifest prejudice of the defendant), tends, in my opinion, to the worst of all consequences-utter uncertainty in the administration of the law in Louisiana. If the legislative or judicial authority of the Union could command any respect, the process act of 1792 never did or could apply to that state; if both are overruled by one decision, it cannot be expected, that the solemn adjudications of this court will hereafter be deemed better evidence of its rules of practice, or the principles of equity, than they have been in their bearing on the present case.

My opinion on the general equity and merits of the case is as much at variance with that of the court, as it is on the subjects to which my attention has been mainly directed; I have forborne an examination of this part of the case, for obvious reasons. Whether the property in question, however valuable, shall be held by the plaintiff, or defendant, is a matter of small concern, compared with the consequences which must follow from the decrees rendered, if the opinions and reasoning of the court must henceforth be taken as the established law.