New Orleans v. Christmas

This is a bill filed by Myra Clark Gaines against the city of New Orleans to recover the amount, with interest, of the fruits, revenues, and value for use of certain lands in the city of New Orleans, containing about 135 arpents, which the complainant had recovered from various persons claiming title under the city. The charge is that the city is liable as grantor of the land, as well as guarantor of the title, and ought to respond for all the rents and revenues of the property actually received by itself or its grantees, or which might have been received by a judicious and provident use of the property. The bill was filed August 7, 1879, and on the 5th of May, 1883, a decree was rendered in favor of the complainant for the sum of $1,925,667.83, with interest on $950,110 from January 10, 1881. From that decree the present appeal is taken.

A brief outline of the history of this litigation will conduce to a better understanding of the case. Daniel Clark, a prominent citizen of New Orleans, of large wealth and possessions, died there on the 16th of August, 1813, without leaving any known heirs at law nearer than his mother, who was residing at Germantown, near Philadelphia. A will was found among his papers, sealed up in a package bearing the following inscription in his own hand: 'This is my olographic will. New Orleans, 20th May, 1811. [Signed] DANIEL CLARK.' The will was short, containing only the following words, to-wit: 'In the name of God, I, Daniel Clark, of New Orleans, do make this my last will and testament: Imprimis. I order that all my just debts be paid. Second. I leave and bequeath unto my mother, Mary Clark, now of Germantown, in the state of Pennsylvania, all the estate, whether real or personal, which I may die possessed of. Third. I hereby nominate my friends Richard Relf and Beverly Chew my executors, with power to settle everything relating to my estate, [Signed] DANIEL CLARK.' This my estate. [Signed] DANIEL CLARK.' This testamentary were granted to the executors named therein. The executors proceeded to take possession of the estate, and disposed of a large part of it. There were some outlying lands in the suburbs of the city, bordering on St. John's bayou, that were not disposed of until 1821; among others the lands now in controversy. Relf and Chew, e sides being executors of Clark's will, held a power of attorney from Mary Clark, his mother, dated October 1, 1813, by which, styling herself to be heir, devisee, and legatee of Daniel Clark, she appointed them, (Relf and Chew,) naming them as merchants of New Orleans, and executors of the will of Daniel Clark, jointly and severally, as her lawful attorneys, for her and in her behalf, to take possession of the real and personal estate of Clark; to manage, sell, let, occupy, and sue for the same, or any part thereof; to collect moneys, debts, and effects belonging to her as sole legatee, devisee, or heir at law of said Clark; to make all necessary and proper acts and deeds for conveying any of the property, and generally to do everything that she could do in the premises. This power was deposited of record with John Lynd, a notary public of New Orleans, on the 22d of April, 1817. By an act of sale dated 30th of October, 1821, Relf and Chew, in the name of Mary Clark, and by virtue of said power of attorney, after having put up the property at auction, sold and conveyed to one Evariste Blanc, the highest bidder, for the sum of $4,760, a piece of land described as situated on the Bayou St. John, containing about 135 superficial arpents, (equal to 114 acres,) adjoining the road of the Navigation or Carondelet canal, the lands of E. Cauchoit, the Broad street and Bellechasse street, etc., in conformity with a plan drawn by Joseph Pili e, city surveyor, on the 20th of August, 1821; and they subrogated the purchaser to all the rights of property that Mary Clark had in the land, with right of seisin in the same.

On the 26th day of September, 1834, Evariste Blanc sold and conveyed the same and other adjoining lands, amounting in all to 240 arpents, (equal to nearly 203 acres,) to the city of New Orleans for the sum of $45,000, making the cost of the property in question about $25,000. This purchase was made by the city for the purpose of controlling the laying out of the streets and other public improvements in that district, in conformity with the general plan of the city, and more for the public advantage. No one at that time had any serious question about the validity of the title. Mrs. Gaines, then Mrs. Whitney, it is true, had, with her husband, in June preceding, filed a petition in the probate court in a pending proceeding on the part of a creditor of Daniel Clark, claiming to be his daughter and heir, and Relf had been cited to answer it; but it was regarded as a visionary claim, and made no public impression. The city reserved four or five blocks of this purchase for public purposes, (the erection of drainage works, etc.,) and in March, 1837, sold off most of the balance in building lots. This happened at a time when real estate in New Orleans had suddenly risen to the most inflated and fictitious prices. The real estate craze, indeed, had infected large portions of the country. These sales were afterwards mostly annulled for defects of title, or never carried out, and it would probably have been impossible for the purchasers to have responded for the extravagant prices agreed to be paid. In some cases they were six or seven times the normal value of the property. According to the proces verbal of the auctioneers, the adjudications amounted to the enormous sum of over $600,000, and the sales of the lots and squares involved in the present case amounted to $553,460; but, as before remarked, the whole transaction, except with regard to a few parcels, fell through, and the property came back into the city's hands. Yet the amount of these sales forms the basis of the exceedingly large decree in this case. The same property, afterwards, about 1848, was again put up at auction, and the property now in question brought only about $100,000, including some of the original sales not annulled,-being less than one-fifth of the nominal amounts bid at the first sale. This property afterwards, by a long process of litigation, was recovered by Mrs. Gaines as h e heir and devisee of Daniel Clark under a late discovered will, and the tenants were ousted, and this suit was brought, as before stated, to recover from the city the entire rents and revenues of the property from the time of its purchase from Evariste Blanc. The decree in the case, where there was no proof of actual rents and revenues received by the city or its grantees, (as was the case wherever, and as long as, the particular property was unimproved,) charges the city 5 per cent. per annum on the amount of the sales of 1837, from that time to the date of the decree, (46 years,) and interest on that yearly at 5 per cent. from the time it accrued, making the amount of revenues in many cases more than 400 per cent. of the said sales. In this way the amount of rents and revenues on unimproved property, with the interest thereon to the 10th of January, 1881, is figured up at $1,348,959.91; in addition to which the decree awards the complainant the sum of $576,707.92 for the revenues of the improved property, while in the hands of grantees of the city; making a total decree of $1,925,667.83, with interest to accrue from January 10, 1881, on the sum of $950,110 (the assumed principal) until paid. The master had allowed but 70 per cent. of the amount of the sales of 1837 as the basis of calculation, but the court in its final decree deemed it proper to add on the other 30 per cent.

The connection of Mrs. Gaines with this property arose as follows: In the early part of the present century one Samuel B. Davis, generally known as Col. Davis, resided in Mew Orleans, and in 1812 removed to Philadelphia, and afterwards to Wilmington in the state of Delaware. In the war of 1812 he had some command in the defense of the Delaware coast. One of the members of his family was a young girl, named Myra, who passed as his daughter; but some of Daniel Clark's intimate friends, including Col. Davis, were aware that the girl was acknowledged by Clark to be his daughter,-natural daughter, as generally supposed. She had been born in New Orleans in 1805 or 1806, and placed in Devis' family, who was an intimate friend of Clark. Her mother was nee Zulime Carriere, but at the time of the child's birth was called Madame Des Grange, having been married to a man of that name. In 1802 she had had a previous child by Clark, named Caroline, who was born in Philadelphia, and educated there and in Trenton, at Clark's expense, his partner and agent in Philadelphia, Mr. Daniel W. Coxe, having charge of her. This daughter afterwards married a man by the name of Barnes. After the birth of her first daughter, Zulime, or Madame Des Grange, returned to New Orlens, and Myra was born there. This child was taken into the family of Col. Davis, as before stated, and passed as his daughter. On the 13th of September, 1832, she was married to Mr. William Wallace Whitney at Delamore Place, state of Delaware, (Col. Davis' residence,) as the daughter of Col. Davis. Mr. Whitney having died in 1837, she afterwards, in 1839, married General Edmund P. Gaines. She always asserted that, up to the time of her marriage to Whitney, she was wholly ignorant of her true paternity. Her claim to be entitled to the property of Daniel Clark rests on two grounds: First, that she was his legitimate daughter; second, that he made a will shortly before his death in 1813, (which, however, was lost or destroyed,) in which he declared her to be his legitimate daughter, and bequeathed to her all his estate, subject to the payment of certain legacies. The first claim-that she was the legitimate daughter of Daniel Clark-was based on the allegation that he was married to her mother, Zulime Carriere, or Madame Des Grange, at Philadelphia, in 1802 or 1803. This supposed marriage is testified to by Zulime's sister, Madame Despau, who says that Mr. Clark desired it to be kept secret, because Zulime's husband, Des Grange, was still living. This was true; but against that it is alleged that he (Des Grange) had another wife living when hem arried Zulime, so that his marriage with her was void. Proceedings were undertaken in the ecclesiastical court, at New Orleans, in September, 1802, to convict Des Grange of bigamy, but they failed, and he was discharged. The validity of Zulime's marriage to Clark, therefore, in the last of 1802, or beginning of 1803, (if they were married,) depended on the fact of Des Grange being a married man when he married Zulime, which was in 1794. On this point considerable evidence of a conflicting character was taken. Meantime Deniel Clark, in 1806 or 1807, paid his addresses to a Miss Caton, of Baltimore, and in August, 1808, Zulime married a Dr. Gardette, of Philadelphia; proceedings, both, which seemed to many persons inconsistent with the marriage of Clark and Zulime in 1803. Her sister's explanation, however, was that Zulime was indignant that Clark delayed to acknowledge her, and that he paid his addresses to another lady. This is the general result of the allegation of Zulime's marriage with Daniel Clark. It is clear from the evidence of some of his confidential business friends that they gave it no credence. But a majority of this court, in Gaines v. Hennen, 24 How. 553, and Gaines v. New Orleans, 6 Wall. 642, were satisfied from the evidence that they mere married in 1802 or 1803, and that Zulime was free to marry at the time. Of course, we are bound by that decision in this case, as the city of New Orleans was a party or privy in those cases.

The other ground on which Mrs. Gaines' claim rests is the supposed will which Daniel Clark made shortly before his death, in 1813. No copy of such will was ever found; but the testimony of certain persons intimate with Clark was adduced, to the effect that they saw such a will in his hands, and knew it to be in his handwriting, and either read it or heard him state the contents of it, and heard him declare that he intended it to be his last will; and from this testimony the will on which the whole claim of Mrs. Gaines really turns was reduced to writing and admitted to probate in the state courts of Louisiana, and the courts of the United States considered themselves bound by that decision. It is true that the Louisiana courts have since decided against the will, and revoked the probate; but their decision has been set aside by this court, because Mrs. Gaines had applied to have the cause removed to the United States circuit court, and the court of the state had refused to allow such removal. The case was afterwards tried by the circuit court of the United States, and that court made a decree confirming the probate of the will. This decree was made on the 30th of April, 1877, at the same time with decrees in two other cases against various possessors of the property in question, which will be noted hereafter. All this was the outcome of a long series of litigation on the subject of Mrs. Gaines' claim. Her first appearance in the courts, and the first notice that any one had of her claim, was her filing a petition with her husband, W. W. Whitney, as before stated, on the 18th of June, 1834, (21 years after Clark's death,) in the probate court of New Orleans, in a certain proceeding instituted by one Shaumburg, a creditor of Clark, against his executors, for not executing the will and settling up the estate. In this petition she claimed to be the child and only heir of Daniel Clark, and prayed that the will of 1811 might be annulled and set aside, and that she might be declared the heir of Clark, and that the executors of the will of 1811 might be decreed to deliver up to her the possession of all the property belonging to the estate. She alleged that Clark had made another will making her his sole heir, but made no application concerning it. After some litigation the plaintiff, Shaumburg, was nonsuited in June, 1836, and that proceeding was ended. In July of the same year (1836) Myra and her husband, Whitney, filed a bill in the circuit court of the United States for Louisiana against Relf and Chew, the executr § of the will of 1811, and against the heirs of Mary Clark (Daniel's mother,-who had died in 1823) and against the occupants of the various tracts of land of which Clark died seised, among others, against the city of New Orleans as occupant of the Blanc tract of 135 arpents; and praying for the establishment of the will of 1813, which she alleged had been made and left by Mr. Clark, and had been destroyed; and that it might be decreed that the will of 1811 revoked by the will of 1813, and was void; and that it might be further decreed that she (Myra) was the legitimate child of said Clark, and that he (Clark) was the lawful husband of her mother, Zulime Carriere; and that all the sales of real and personal property and slaves of said Clark made by Relf and Chew were null and void; and that the occupants and possessors of the real estate and slaves should deliver up the same to the complainant, with all the rents, profits, and issues thereof; and for an accounting, etc. This suit was pending in the circuit court and in this court until 1852. Different phases of it will be found reported in 13 Pet. 404; 15 Pet. 9; 2 How. 619; 6 How. 550.

The circuit court in the case of Gaines v. Chew, 2 How. 619, was divided in opinion on three points: (1) Whether the bill was multifarious or not; (2) whether the court had jurisdiction of the case without probate of the will of 1813; (3) whether the case was one of equity or law. This court held (1) that the bill was not multifarious, being against the executors, Relf and Chew, and those who claimed under them; (2) that no claim could be based on the will of 1813 until it was admitted to probate, and the probate of the first will was revoked, and that the circuit court had no jurisdiction for this purpose; (3) that the discovery sought by the bill was sufficient to give the court of chancery jurisdiction. This decision was rendered in 1844. Meantime Mr. Whitney had died in 1837, and Myra was married to General Edmund P. Gaines in 1839, who died in June, 1849; the suit being revied as occasion required. Proceedings were carried on separately against one of the defendants, named Patterson, in the circuit court, and a decree was obtained there in 1840 in favor of the complainants, requiring Patterson to surrender the property claimed by him. On appeal to this court the decree was reversed, and a decree was made establishing, as against Patterson, the validity of Clark's marriage with Zulime Carriere, the legitimacy and heirship of Myra, and her title as forced heir to four-fifths of the property held by Patterson, notwithstanding the will of 1811. The other defendants have always insisted that this case was collusive one. The Decree of this court was rendered early in 1852, and the case is reported as Patterson v. Gaines, 6 How. 550. Thus far-39 years after Clark's death-only one piece of property had been recovered; but declarations of the majority of this court were made that gave the complainants great encouragement to continue the litigation. As none of the parties except Patterson were bound by the decision against him on the legitimacy question, and as it was a question attended with some difficulties, it was deemed important by Mrs. Gaines and her counsel, if possible, to have the will of 1813 established by probate proceedings in Louisiana. The next move was in that direction. In January, 1855, a petition for that purpose was filed by her in the proper probate court in New Orleans. In March following, judgment was rendered against the will, and denying probate. But in December, 1855, a decision was rendered by the supreme court of Louisiana, on appeal, establishing the will in the form contended for by Mrs. Gaines, and a decree was entered to that effect on the 25th of February, 1856. This was more than 42 years after the death of Mr. Clark. The decree of probate thus obtained was of limited effect. It bound none but those who were parties to the proceeding. The city of New Orleans and Relf, surviving executor f the will of 1811, applied for leave to intervene in the case, but leave was refused. An attorney was appointed to represent the absent relatives. But the probate of the will enabled Mrs. Gaines to take her stand upon it in the courts of the United States, and to avail herself, until it was successfully assailed, of the status which it gave her, by express declaration, as the legitimate child and sole heir and legatee of Daniel Clark. Immediately after probate of the will was thus obtained, new litigation was started against the parties in possession of the property of Daniel Clark, all the suits being bills in equity. First, a bill was filed by Mrs. Gaines against Francois Dusnan de la Croix to recover the slaves left by Clark, which were purchased by De la Croix from the executors. Next, a bill was filed December 22, 1856, by Mrs. Gaines against the city of New Orleans and four other persons, charging the city as possessed of the whole 240 arpents before mentioned, being the entire tract sold to the city by Evariste Blanc, including the 135 arpents now in question. Lastly, a bill was filed March 27, 1857, against Lizardi, Egana, Slidell, Hennen, and 14 others, as possessors respectively of the several lots contained in a square between Poydras and Perdido streets in New Orleans, but not embracing any of the Blanc tract. The bills in these three cases were dismissed by the circuit court by simultaneous decrees rendered by Judge MCCALEB, on the 17th of April, 1858. These decree were appealed to this court, and were severally reversed, and the claim of Mrs. Gaines was sustained by a majority of the court.

In the last case-that of Gaines v. Lizardi and others, decided in January, 1861, and reported in 24 How. 553, under the name of Gaines v. Hennen-Chief Justice TANEY and Justices CATRON and GRIER dissented. In the other two cases-Gaines v. New Orleans and Gaines v. De la Croix, decided in January, 1868, and reported in 6 Wall. 642, 719-Justices GRIER, SWAYNE, and MILLER dissented. In consequence of the absence of a justice of the supreme court at the circuit court holden at New Orleans, and the district judge being interested, the judgments were not entered there on the mandates until May, 1871. The lands recovered were generally surrendered, and where no settlements were made references were ordered to ascertain and take account of the rents and revenues; but only five squares of the Blanc tract were recovered, being all that remained in the possession of the city. The circuit court, following the declarations of the supreme court, held that the defendants were possessors in bad faith; that is, that they were chargeable with notice of Relf's and Chew's want of authority to sell the lands in question, and that this deprived them, under the law of Louisiana, of the benefit of prescription, and made them accountable for all the rents and revenues from the time their respective possessions commenced. This operated as a great hardship; for, although technically possessors in bad faith, the defendants really and in truth supposed their titles to be valid. The circuit court also decided, in the case against the city, that the latter was not responsible for rents and revenues except while in actual possession of the property; and, as the city had sold off the greatest portion of the Blanc tract, and had only retained possession of the square on which the drainage machine was located and four other vacant squares, a reference was ordered to ascertain the amount or rents and revenues derived from those portions and from the residue of the whole tract while it remained in the city's hands. The master estimated the rents and revenues derived from the drainage machine in several different ways, resulting in different amounts, the lowest being $2,400 a year for the preceding 35 years, which, with interest, and after deducting expense of repairs, amounted to $125,266.79. He further reported that no rents or revenues were derived from the four vacant squares, or from the residue oft he property while in the city's possession. A decree was rendered for the amount reported, and was afterwards affirmed by this court in the case of New Orleans v. Gaines, 15 Wall. 624. The principle established in that case-that the city was not responsible for rents and revenues except during the time of its actual possession-will have a bearing on one of the branches of the present case hereafter considered.

After the settlement of Mrs. Gaines' general claim in her favor in the cases of Gaines v. Hennen, Gaines v. New Orleans, and Gaines v. De la Croix, she commenced other suits against the actual possessors of the property of Daniel Clark. On the 22d of November, 1865, she filed a bill against P. H. Monsseaux and over 190 other persons alleged to be in possession of various lots that belonged to said Clark, including portions of the Blanc tract sold to the city as aforesaid. On the 12th of February, 1870, she filed another bill against P. F. Agnelly and over 300 other persons alleged to be in possession of other lots belonging to said Clark, including other portions of the Blanc tract. On the 30th of April, 1877, decrees were entered in these suits in accordance with the previous decisions, and references were made to a master to ascertain the amount of rents and revenues due from the various parties. In the former case rents and revenues were reported to be due from 103 different parties occupying lots on the Daniel Clark portion of the Blanc tract, amounting in the aggregate to $471,836.54. In the latter case rents and revenues were reported due from 38 different parties occupying lots on said tract, amounting in the aggregate to $45,212.80. The total of both was $517,049.34. These sums included interest to the time of the accounting in each case at different dates in the years 1877, 1878, and 1879. The property was generally improved property, and the parties were charged for the time they occupied it the full amount of rents and revenues received or that might have been received. These amounts, with interest, continued to January 10, 1881, were included, without alteration, in the decree in the present case. They were regarded as in the nature of res judicata. There was another suit determined by the circuit court at the same time with those just referred to. This was the case of Joseph Fuentes and 74 other persons, including the city of New Orleans, against Mrs. Gaines, instituted May 27, 1869, in the probate court of New Orleans, to revoke the will of 1813, and to recall the probate thereof. Mrs. Gaines applied to remove the case to the circuit court of the United States, but the state court, as before stated, refused to relinquish jurisdiction, and on the 4th of December, 1871, rendered a decree revoking the probate of that will. This decree was affirmed in February, 1873, in a very elaborate opinion, by the supreme court of Louisiana, (25 La. Ann. 85,) but the decree of that court was reversed by this court in March, 1876, on the ground that the case should have been removed, (Gaines v. Fuentes, 92 U.S. 10.) The circuit court afterwards, on the 30th of April, 1877, rendered a decree to the effect that the will was duly probated by the Lousiana court, in 1855, and upon sufficient legal and truthful testimony. Finally, the present suit was commenced by a bill filed August 7, 1879, as before stated, nor the purpose of compelling the city of New Orleans to respond for all the rents, fruits, revenues, and profits of the whole 135 arpents of Clark's land purchased of Evariste Blanc in 1834, from the time of such purchase until the time of bringing the suit, except those which had been accounted for in the suit of Gaines v. New Orleans, before referred to.

Henry C. Miller and J. R. Beckwith, for appellant.

[Argument of Counsel from pages 203-207 intentionally omitted]

''Alfred Goldthwaite, Thos. J. Semmes and John A. Campbell'', for Gaines' heirs.

''Wm. Reed Mills'', by leave of court, for appellees.

BRADLEY, J.