Williamson v. Berry/Dissent Nelson

Mr. Justice NELSON.

I am unable to concur in the judgment of a majority of the court in this case, and shall, therefore, proceed to state the grounds of that dissent, with as much brevity as the nature and importance of the questions involved will admit.

I shall confine the examination to those grounds which I regard as decisive in the determination of these questions, without stopping to discuss several other points made upon the argument, and which have a more remote bearing upon the case.

The will of Mary Clarke, made and published April 6th, 1802, lies at the foundation of this controversy; and it is necessary, therefore, to recur for a moment to its provisions.

She devised to three trustees and their heirs, a part of her farm at Greenwich, called Chelsea, then situate in the vicinity of the city of New York, now a part of it, embracing some forty acres of land, together with a dwelling-house in town, in trust, to receive the rents and profits, and pay the same to Thomas B. Clarke, a grandson, during his life; and after his decease, to convey the estate to his children living at his death; and if he should leave no children, then, in trust, to convey the same to Clement C. Moore, and his heirs.

Thomas B. Clarke, the tenant for life, was married in 1802, and in 1814 had a family of six children, the eldest eleven years of age; and on the 2d of March of that year, applied to the Legislature of New York for relief on the ground that the property devised was, in its then condition, nearly unproductive, and incapable of being improved so as to yield an adequate income for the maintenance and support of himself and family.

The trustees, and C. C. Moore joined in the application.

On the 1st of April, 1814, an act was passed for his relief, authorizing the Court of Chancery to appoint trustees in the place of those named in the will, and providing for a sale of a moiety of the estate by the trustees, under the direction of the Chancellor; the proceeds to be invested in stocks or real security, upon the trusts in the will, and the income to be applied to the maintenance and support of the family of Clarke, and the education of his children. Nothing was done under this act.

On the 21st of February, 1815, Clement C. Moore, the ultimate remainder-man under the will, released and quitclaimed all his interest in the estate to Clarke; and on a second application to the Legislature for relief, a supplemental act was passed, on the 24th of March, 1815, reciting in the preamble the release, and substituting Clarke as the trustee of the estate in place of those provided for in the previous act; and authorizing a sale by the trustee of a moiety of the estate, with the assent of the Chancellor, and providing for the investment of so much of the proceeds in Clarke, as trustee, as the Chancellor should direct; the income of the investment to be applied to the maintenance and support of the family, as in the previous act.

On an application to the Chancellor, under this and the previous act, on the 28th of June, 1815, an order of reference to one of the masters in chancery was made, directing him to inquire into the debts of Clarke, distinguishing between those contracted for the maintenance of his family and the education of his children; and into the then condition of the estate devised under the will, and the means possessed by Clarke to maintain and support his family, other than from the rents and profits of the estate; which report was made accordingly. And on the coming in and filing of the same, the Chancellor, on the 3d of July, ordered a sale of a moiety of the estate, together with the house and lot in town; and that so much of the proceeds as might be necessary for the purpose be applied, under the direction of one of the masters of the court, to the payment and discharge of the debts then owing by Clarke, and to be contracted for the necessary purposes of the family, to be proved before the said masters; and the residue to be invested and the income applied as therein provided by the order.

Nothing was done under this order except the sale of a few lots, the sales having been superseded by the master for want of bidders, at the request of the trustee, to prevent the sacrifice of the property. And on application to the Legislature, another act was passed, on the 29th of March, 1816, authorizing Clarke, as trustee, under the order already granted by the Chancellor, or any subsequent orders that might be granted, either to mortgage or sell the premises which the Chancellor had permitted, or might permit him to sell; and to apply the proceeds to the purposes required, or that might be required, by the Chancellor, under the previous acts of the legislature.

On the 15th of March, 1816, on an application, the Chancellor ordered that Clarke be authorized to mortgage or sell the moiety of the estate, as provided for in the several acts, as might be deemed most beneficial to all parties concerned; and also to convey any part of it in payment and satisfaction of any debt owing by him, upon a valuation to be agreed on between him and his creditors, provided that every sale, and mortgage, and conveyance in satisfaction, that may be made by him, shall be approved by one of the masters of the court; and that the certificate of such approval be indorsed on such deed or mortgage that may be made in the premises. And further, that he apply the proceeds to the payment of his debts, and invest the surplus in such manner as he may deem proper to yield an income for the support and maintenance of his family. been questioned collaternally,-the under this order of the court, sold and conveyed the lot in question, among others, to George De Grasse, for the consideration on the face of the deed of $2,000. No approval of the master appeared to have been indorsed on the deed.

The defendant holds through intermediate conveyances from De Grasse, and is admitted to be a bon a fide purchaser.

I have thus stated the material facts out of which the important questions involved in this case arise: and I have done so for the reason, that, in my judgment, the statement itself presents a history of legislative and judicial proceedings, which demonstrate that the legal title to the premises in controversy is in the defendant, upon well established principles of law,-a title derived under a judicial sale, made in pursuance of an order or judgment of one of the highest courts in a state, in the exercise of its general jurisdiction.

This plain proposition is manifest on the face of the record. Every order made by Chancellor Kent was made in his court according to the established forms of proceeding, and rules of the court.

The Chancellor had previously determined, (In the Matter of Bostwick, 4 Johns. (N. Y.) Ch., 100,) that a proceeding of this character could be properly instituted by petition instead of by bill, as he found it to be in conformity with the established practice of the Court of Chancery in England.

The practice there had not been uniform, depending somewhat upon the amount of the estate; and a distinction had been made, at one time, between real and personal estate; but the later authorities had generally concurred in allowing the institution of the proceeding by petition. (2 Story Eq., § 1354, p. 582, and cases there referred to; Macpherson on Infants, ch. 22, § 1, and cases.)

In every instance, the application took the usual course of a reference to one of the masters of the court, directing him to inquire into the truth of the allegations in the petition, and report thereon; and upon the coming in and filing of the report, the order was entered.

All the powers and machinery of the court were used in conducting the proceedings; and which, while they facilitate the orderly despatch of business, at the same time enable the parties to present their case in the fullest and most authentic form, for the judgment of the court.

Even if a bill had been filed in this case,-and we have seen that it might have been, in which event, it would hardly have been pretended the order or decree of the court could have been questioned collaterally,-the forms of the proceeding could not have been more strictly observed. Indeed, the petition in the particular case is nothing more than a substitute for the bill, as affording a more speedy and economical mode of instituting the proceedings.

Originally it was supposed that a bill was indispensable, (Fonbl. Eq., Book 2, part 2, ch. § 1, note d,) as it still is in England, where the estate of the infant is large, or it is doubtful as to the fund. (15 Ves., 445; Macpherson on Infants, p. 214, and cases.)

Any party interested in the order had a right to appeal from the decision of the Chancellor to the Court for the Correction of Errors, as appeals may be taken from interlocutory, as well as final decrees, according to the laws and practice in New York.

That an appeal might have been taken in the case is the established practice, and would be doubted by no lawyer there; and which, of itself, would seem to be decisive of the nature and character of the jurisdiction exercised by the Chancellor.

Being, therefore, a judicial sale under the judgment of one of the highest courts of the state, the principle is fundamental, that the regularity of the proceedings cannot be inquired into in this collateral way.

The general impression of all the cases on this head, says Lord Redesdale, is, that the purchaser has a right to presume that the court has taken the steps necessary to investigate the rights of the parties, and that it has on investigation properly decreed a sale (1 Sch. & L., 597.) And says Mr. Justice Thompson, in delivering the opinion of this court, in Thompson v. Tolmie, 2 Pet., 168,-'If the purchaser was responsible for the mistakes of the court in point of fact, after it had adjudicated upon the facts, and acted upon them, these sales would be snares for honest men. The purchaser is not bound to look farther back than the order of the court. He is not to see whether the court was mistaken in the facts.'

The defendant in that case held the title under a judicial sale, ordered by the court in a case of partition, where the commissioners had reported that partition could not be made without loss. The suit was brought by the heirs, who set up, as invalidating the title of the defendant, that neither of the children of the intestate was of age at the time of the sale. The statute expressly forbade it, until the eldest became of age. The other ground was, that the sale had been confirmed only conditionally. The court held the parties concluded by the order and sale.

I shall not pursue the examination of this branch of the case farther, as the principle upon which it rests has become incorporated into the very elements of the law. I have referred to these two cases, simply to illustrate the strength and force of the principle, in protecting the title of a bon a fide purchaser, standing in the relation of the present defendant.

But it has been argued, that Chancellor Kent, while sitting in his court, administering the law under these acts of the Legislature of New York, has misconstrued or misapprehended the nature of his jurisdiction; and that, instead of sitting as a court, he was acting in the subordinate character of a commissioner, or as an individual outside of his court; that it was an extraordinary power, conferred upon him by a special statute, prescribing the course of proceeding; and that any departure therefrom, or error in the proceedings, rendered the order null and void, and of course all acts done under it.

It was even intimated, though not argued, that the statutes themselves were unconstitutional; that it was not competent for the Legislature to authorize the sale of the real estate of infants for their maintenance and support, or for their education or advancement in life.

We suppose this power will be found to exist in every civilized government, that acknowledges a superintending and protecting power over those of its citizens or subjects who are disabled through infancy or infirmity from taking care of themselves; and that, where they possess the means of themselves, they will be applied, under the direction of the proper authority, to their support and nourishment.

No one doubts the power of the government to take the property of the citizen to support the paupers of the state; and, surely, it can hardly be regarded as a very great stretch of power to provide for the application or it to the maintenance and support of the owner or proprietor himself or even to the support of the members of the same family.

But I shall not go into this question; for whatever may be the objections to the exercise of the legislative powers, we are not aware of any on the ground of repugnancy to the Constitution of the United States, or, if made, that there is any foundation for it; and as to the state of New York, where the question alone must be determined, no doubt is entertained there in respect to it, by any department of the government.

But to recur to the jurisdiction of the Chancellor.

The Court of Chancery possesses an inherent jurisdiction, which extends to the care of the persons of infants so far as is necessary for their protection and education; and also to the care of their property, real and personal, for its due management, and preservation, and proper application for their maintenance.

The court is the general guardian, and, on the institution of proceedings therein involving rights of persons or property concerning them, they are regarded as wards of the court, and as under its special cognizance and protection; and no act can be done affecting either person or property, or the condition of infants, except under the express or implied direction of the court itself; and every act done without such direction is treated as a violation of the authority of the court, and the offending party deemed guilty of a contempt, and treated accordingly. (2 Story Eq., §§ 1341, 1352, 1353; 3 Johns. (N. Y.), Ch., 49; 4 Id., 378; 2 Id., 542; 6 Paige (N. Y.), 391, 366; 10 Ves., 52; Macpherson on the Law of Infants, p. 103, App'x, 1; Hughes v. Science, 3 Atk., 601, S.C..)

If the father is not able to maintain his children, the court will order maintenance out of their own estate; and the inability need not depend upon the insolvency, but inability, from limited means, to giv the child an education suitable to the fortune possessed or expected. (Buckworth v. Buckworth, 1 Cox, 80; Jervoise v. Silk, Coop., 52.) The allowance will be made, although the devise or settlement under which the property is held contains no direction for maintenance (Ib.), but even directs the income to accumulate. (5 Ves. 194, 195, n. 197, note; 10 Id., 44; 4 Sim., 132; Macpherson, ch. 21, § 2, p. 223.)

It is also settled, that where there are legacies to a class of children, for whom it would be beneficial that maintenance should be allowed, though the will does not authorize it, but directs an accumulation of the income, and the principal, with the accumulation, to be paid over at twenty-one, with survivorship in case any should die under age, the court will direct maintenance (11 Ves., 606; 12 Id., 204; 2 Swanst., 436); but if there is a gift over, it will not be allowed without the consent of the ultimate devisee. (14 Ves., 202; 5 Id., 195, n.; Ward on Legacies, 303; Macpherson, pp., 232, 233, 234.)

So the court will break in upon the principal, where the income is insufficient for maintenance and education (1 Jac. & W., 253; 1 Russ & M., 575, 499); and will break in upon it for past payments (2 Vern., 137; 2 P. Wms., 23); and where the father is unable to maintain his children, and has contracted debts for this purpose, or for their education, the court will direct a reimbursement out of children's estate (6 Ves., 424, 454; 1 Bro. C. C., 387; Macpherson, sec. 9, p. 246); and will, if the father or mother is in narrow circumstances, in fixing the allowance, have regard to them, increasing it for the benefit of the family. (1 Ves., 160; 2 Bro. C. C., 231; 1 Beav., 202; 1 Cox, 179.)

The management and disposition of the estates of infants, which I have thus referred to and briefly stated, with the authorities, are among the mass of powers upon this subject which belong to the original and inherent jurisdiction of the Court of Chancery. They relate to their personal, and the income of their real, estate, the court having no inherent power to direct a sale of the latter for their maintenance or education; that power rests with the legislature. It will be seen, therefore, that the only additional authority conferred upon the Chancellor, by the acts of the legislature in question, was the power to direct the sale of the real estate,-to convert it into personalty for the purposes mentioned. It was but an enlargement, in this respect, of the existing jurisdiction of the court; placing the real estate, for the purpose of maintenance and education, upon the same footing as the personalty. With this exception, every power conferred or exercised under the acts in question, in the management and application of the fraud, as we have been, belonged inherently to its general jurisdiction; and its exercise in the particular case was as essential for the proper management and preservation, and application, as in any other that might come before the court.

We can hardly suppose that it was the intention of the legislature to confer authority upon the Chancellor in one capacity to sell, and in another to manage and apply the proceeds for the benefit of the children. And yet such must be the conclusion, unless we suppose it was intended that the fund itself should be administered out of court, and under the direction of the Chancellor as a commissioner.

I must be permitted, therefore, to think, that Chancellor Kent, familiar to his mind as were the powers and duties belonging to his court over the estates of infants, as well as in respect to every other branch of equity jurisprudence, did not mistake or misapprehend the nature of the powers and duties enjoined upon him under the acts in question. And that he might well conclude, that the authority to sell the real estate of the children, for their maintenance and education, was but an enlargement of his general jurisdiction in the management and disposition of their property for the purposes mentioned. Indeed, the very objects of the sale pointed directly to this jurisdiction. How apply the fund for maintenance and education,-as commissioner, or chancellor? Certainly, he could not doubt as to the intent or objects of the acts in this respect. It was a fund to be brought into the court, and the children were to become wards of the court, to be cherished, and protected by its powers.

In addition to the judgment of Chancellor Kent himself, we have also the judgments of the two highest courts in New York, in the case of Clarke v. Van Surlay, 15 Wend. (N. Y.), 436, and Cochran v. The Same, 20 Id., 365, S.C..

That was a suit involving the same title, brought by one of the heirs of Thomas B. Clarke, and depending upon the same evidence. It was first decided in the Supreme Court of that state in 1836, and in the Court for the Corporation of Errors in 1838.

It was determined by both courts, that the title of the purchaser was valid, on the ground, that he held under a judicial sale directed by the Chancellor in the exercise of his general jurisdiction; and that, having jurisdiction of the subject-matters, if any error was committed, either in his construction of the acts of the legislature or in the application of the funds, it was not inquirable into in a court of law. The order was conclusive, till set aside, upon all the parties.

No member of either court that expressed an opinion entertained a doubt about the nature of the jurisdiction. The judgment had the concurrence of Chancellor Walworth, his learned successor, who has presided in that court with distinguished ability for the last twenty years, and is familiar with its organization and powers. If it is possible, therefore, for a judicial question involving the construction of state laws to be settled by learning or authority in its own courts, it would seem that the one before us has been.

But there is another view of this branch of the case, which, in my judgment, is equally decisive of the question; and much more important, on account of the principle involved. Where are we to look, for the purpose of ascertaining the jurisdiction of the Court of Chancery of the state of New York? To the judgment of this court, or to the laws and the decisions of the courts of the state?

It should be recollected, that, in the trial of titles to real property held or claimed under the laws of the state, the Federal courts sitting in the state are administering those laws, the same as the state courts, and can administer no other. They are obliged to adopt the local law, not only because the titles as founded upon it, but because these courts have no system of jurisprudence of their own to be administered, except where the title is affected by the Constitution of the United States, or by acts of Congress.

It has been held, accordingly, that we are to look to the local laws for the rule of decision, as ascertained by the decisions of the state courts, whether these decisions are grounded on the construction of statutes, or form a part of the unwritten law of the state. The court adopts the state decisions, because they settle the law applicable to the case. Such a course is deemed indispensable in order to preserve uniformity; otherwise, the peculiar constitution of the judicial tribunals of the states, and of the United States, would be productive of the greatest mischief and confusion,-a perpetual conflict of decision and of jurisdiction.

In construing the statutes of a state on which land titles depend, say the court, infinite mischief would ensue should this court observe a different rule from that which has been established in the state; and whether these rules of land titles grow out of the statutes of a state, or principles of the common law, adopted and applied to such titles, can make no difference; as there is the same necessity and fitness in preserving uniformity of decisions in the one case as in the other. This court has repeatedly said, speaking of the construction of statutes, that it would be governed by the state construction where it is settled, and can be ascertained, especially where the title to lands is in question. (12 Wheat., 167, 168; 6 Pet., 291.) In the case of Nesmith et al. v. Sheldon et al., 7 How., 818, decided at the last term, involving a question upon the statutes of Michigan, the court say,-'It is the established doctrine of this court, that it will adopt and follow the decisions of the state courts in the construction of their own constitution and statutes, when that construction has been settled by the decision of its highest judicial tribunal.'

Now what can be more peculiarly a matter of local law, and to be ascertained and settled by the state tribunals, than the character and extent of the jurisdiction of their courts, and the effect to be given to their own orders and judgments.

I suppose it will not be denied but that each state has the right to prescribe the jurisdiction of her courts, either by the acts of her legislature, or as expounded by the courts themselves; and that, if that jurisdiction is settled by a long course of decision, or, in respect to the particular case, by the authority which has a right to settle it, this court, professing to administer the laws of the state as they find them, and acting upon their own principle, as well as the principle of the thirty-fourth section of the Judiciary Act, cannot disregard the jurisdiction as thus settled.

It is no answer to this view to say, that the question here is the construction of a private statute of New York. That assumes the very point in controversy. The point is, Can this court reach the question involving the construction of the statute? That depends upon the prior one, whether Chancellor Kent acted in the exercise of the jurisdiction of his court in expounding the statute. If he did, the question upon its construction is concluded; and whether the construction be right or wrong is a matter not inquirable into in this collateral way.

The case, therefore, comes down to a question of jurisdiction,-a question which Chancellor Kent himself settled in this very case in 1815, which settlement has since been confirmed by the highest tribunals in the state, and about which no one of them there could be brought to entertain a doubt.

I must be permitted to think, therefore, that, looking at the question as an original one, Chancellor Kent was right in the jurisdiction that he exercised in administering the acts in question; and that, whether so or not, it belonged to the courts of that state to expound and settle the limit of his jurisdiction; and that, when so settled, it becomes a rule of decision for the Federal courts sitting in the state, and administering her laws; and that therefore the order of the Chancellor in question was conclusive upon the matter before him, and is not inquirable into collaterally in a court of law.

But were we compelled to go behind the order, and to re-examine the case, as upon an appeal, we perceive no difficulty in sustaining it.

When Clarke applied to the legislature, in 1815, for relief, he was the owner of the life estate, and of the ultimate remainder in the premises, the residue belonging to the children; and for this reason, doubtless, the act which was passed at that time left it discretionary with the Chancellor to determine the portion of the proceeds that should belong to Clarke, individually, and also as trustee for the children.

And under this provision of the law, before any order was made for the disposition of the proceeds, the court ordered a reference to the master to ascertain the amount of his debts, and what portion of them had been contracted for the maintenance of the family and education of the children.

The interest of Clarke in the proceeds was properly applicable to his own debts, as well as to the debts contracted for the support of the family; and after the coming in of the report which exhibited the amount of the debts, and for what purposes contracted, the order for the application of the proceeds was made. This is the order referred to and confirmed by the act of 1816.

It, in effect, applied what was regarded by the Chancellor as the interest of Clarke in them to the payment of his own debts; the amount of that interest, as we have seen, having been left to be ascertained by him in the exercise of his judgment in the matters. That Clarke had a considerable interest is apparent, having united in himself two portions of the estate. That the Chancellor erred, in the exercise of his judgment in dividing the proceeds of the estate between Clarke and his children, according to their respective interests, does not appear, nor can it be shown from any thing to be found in the record; much less can a want of power to act, or an excess of power in acting, be predicated of the exercise of any such discretionary authority.

Then, as to the application of a portion of the fund belonging to the children for the maintenance of the family, as well as their own education.

From the cases already referred to on that subject, we have been that this is within the acknowledged powers of the Court of Chancery, and of which it is in the habitual exercise, in cases where the parents are in narrow circumstances, and unable to furnish the means of support. The application is made for the benefit of the children, that they may have the comforts and enjoyments of a home, with all the wholesome and endearing influences of the family association.

Even beyond this, small annuities have been settled upon the father and the mother, in destitute circumstances, out of the estates of the infant children.

It was a knowledge of these principles, which were familiar to the mind of Chancellor Kent, as was the whole system of the powers and duties of his court over the persons and estates of infants, that dictated the granting of the order in question; and, in my judgment, so far as the power and authority of the court was concerned, which is the question here, it requires but an application of these principles to the facts before him to enable us to see that it was well warranted.

Again, it is said that the children were not parties to the proceedings. The same may be said concerning the exercise of all the powers of the Court of Chancery over the estate of infants.

The answer is, the proceeding is not an adversary suit. The estate is regarded as a fund in court, and the infants as wards of the court; the Chancellor himself, as the general guardian, exerting his great power, either inherent or vested by positive law, over a class of persons specially committed to his care, for their own benefit, for the proper management of their estates, real and personal, for their maintenance and support, for their education and advancement in life.

It is a proceeding in rem, the property itself in custodia legis; and if a guardian had been appointed, it would have been but a desecration of the power of the court, which, in the proceeding before us, was exercised by the court itself, through the agency and instrumentality of its officers.

The rule in respect to adversary suits against infants, requiring the appointment of a guardian, pendente lite, has no sort of application to the proceedings in question.

It has also been argued, that the order of the Chancellor, authorizing Clarke to sell and convey the premises in question, required a certificate of the approval of one of the masters of the court to be indorsed on the deed; and that no such certificate has been given or indorsed thereon.

The deed to De Grasse was executed on the 2d of August, 1821; and on the next day it appears that the master was a witness to prove the execution before the commissioner who took the acknowledgment.

It further appears, that on the same day, the master, having had the life estate of Clarke in the premises previously conveyed to him, in trust, in order to complete the title, indorsed on the back of the deed, and executed under his hand and seal, a release of this life interest to the purchaser, and duly acknowledged the same, that it might be recorded in the register's office along with the deed. This was done, as the master recites in the release, at the request of the trustee, and for the purpose of completing the title.

One can hardly conceive of a more effectual approval, than is to be derived from these acts of the master; for without the release of the life estate, which he held in trust, the title could not have been perfected, and the sale must have fallen through. The release enabled the trustee to complete it, and invest De Grasse, the purchaser, with the fee.

But the courts of New York in the case already referred to have held, that, upon the true construction of the order, the approval of the master was not necessary, as the direction in that respect was limited to conveyances by the trustee in satisfaction of debts. Even if this construction should be regarded as doubtful, or that requiring the approval was thought to be the better one, inasmuch as this construction has been given by the highest court of a state upon this very title, in a case in which its judgment was final, the habitual deference and respect conceded by this court to the decisions of the state courts upon their own statutes and orders of their courts. would seem to render it conclusive.

This view was directly affirmed, and acted on, in the case of The Bank of Hamilton v. Dudley's Lessee, 2 Pet., 492. That, as is the case before us, was an action of ejectment by the heir, to recover a tract of land situate in the city of Cincinnati. The defendant held under a deed made by administrators, upon a sale under an order of the Court of Common Pleas for the County of Hamilton, which possessed the powers of an Orphans' Court.

The title depended upon the effect to be given to the order under which the sale took place. It was made at the August term, and entered as of the May term preceding. It was alleged that, though granted at the May term, the clerk had omitted to enter it. The law conferring the powers of the Orphans' Court upon the Common Pleas had been repealed between the May and August terms; and the question was whether the order was a nullity, or valid until set aside.

The sale had taken place at an early day, and the property had become of great value. The case was most elaborately argued. The action of this court, independently of the principle decided in the case, is worthy of remark.

Chief Justice Marshall, in delivering the opinion, observed, that the case had been argued at the last term, on the validity of the deed made by the administrators; but as the question was one of great interest, on which many titles depended, and which was to be decided upon the statutes of Ohio, and as the court was informed that the case was depending before the highest tribunal of the state, the case was held under advisement.

The state court held, that the order of the Court of Common Pleas, entered at the August term as of the preceding May term, was coram non judice, and void; and that the deed under which the defendant derived title was, of course, invalid.

This court held, that the judgment of the Supreme Court of Ohio should govern the case. I will give its language.

'The power of the inferior courts of a state,' said the Chief Justice, 'to make an order at one term as of another, is of a character so peculiarly local, a proceeding so necessarily dependent on the revising tribunal of the state, that a majority consider that judgment as authority, and we are all disposed to conform to it.'

I will simply add, that the Court for the Correction of Errors in New York possessed a revising power in all cases over the orders and decrees of the Chancellor, and that that court has held, upon this very title, not only that the order in question was an order entered by him acting as a court, but, in expounding it, that the deed of conveyance given to De Grasse under it did not require the approval of a master. Further comment to show the identity of the two cases would be superfluous.

But I forbear to pursue this branch of the case farther,

The validity of the execution of the deed to De Grasse by the trustee, as it respects the alleged want of approval, stands,--

1. Upon the acts of the master in the execution of it, as a substantial approval within the meaning of the order; and,

2. Upon the decision of the highest judicial tribunal of the state, whose laws we are administering, that, upon a fair interpretation of the terms of the order, and approval was not essential.

It has also been argued, that, according to the true construction of the order, the sale should have been for cash, and that here it was otherwise.

But this is an action at law; and the deed on the face of it shows a cash consideration of $2,000. The nature of the consideration was not inquirable into, and should have been excluded at the trial. If the complainant had sought to invalidate the proceedings on that ground, he should have gone into a court of equity, where the question could have been appropriately examined, and justice done to all the parties. That it was not examinable in a court of law is too plain for argument. The recital of the considerations can no more be varied by parol proof than any other part of the deed. (2 Phill. on Ev., 353, 354, 2 Cow. & Hill, n. 289, and cases there cited; 1 Id., n. 228, p. 384; 7 Johns. (N. Y.), 341; 8 Cow. (N. Y.), 290; 2 Den. (N. Y.), 336; 4 N. H., 229; 1 J. J. Marsh. (Ky.) 388, 390.)

I have thus gone over the several grounds relied on for the purpose of impeaching the title of the defendant to the premises in question; and, although in the minority in the judgment given, have done so, not so much on account of the magnitude of the interest depending, which is great of itself, as of the importance of the principle involved; and upon the application of which the judgment has been arrived at.

Notwithstanding several questions have been brought within the range of the discussion, there are but two, in reality, involved in the determination of the case. 1. The effect to be given to the order of Chancellor Kent made on the 15th of March, 1817; and 2. The execution of the conveyance by Clarke, the trustee, under this order.

If the order was made by the Chancellor in the exercise of his jurisdiction as a court, his judgment was conclusive in the matters before him; and there is an end of that question. It affords an authority to sell and convey, that cannot be controverted in a court of law. And the validity of the deed executed under it stands upon an equally solid foundation.

The title of the defendant, therefore, would seem to be beyond controversy, were it not for the principle against which we have been contending, and which imparts to the case its greatest importance, namely, the right claimed for this court to inquire into the nature and character of the jurisdiction exercised by the Chancellor in making the order coming before us collaterally; and as this court determines that jurisdiction to be general or special, to refuse or consent to go behind his judgment, and re-open and rejudge the merits of the case; and according to the opinion entertained upon that question, to affirm or disaffirm the validity of all acts and proceedings that have taken place under it. And this, too, in a case where the jurisdiction thus exercised by the Chancellor has been settled by himself in his own court, under the state laws, and affirmed by the judgment of the highest judicial tribunals of the state.

It is apparent that, if this principle becomes engrafted upon the powers of this court, and is to be regarded as a rule to guide its action in passing upon the judgments of the state courts coming up collaterally, a revising power is thus indirectly acquired over them in cases where no such power exists directly, under the Constitution or laws of Congress. For, if the right exists to inquire into the kind and character of the jurisdiction, without regard to that established by the laws and decisions of the states; and to determine for itself whether the jurisdiction is general or special, and if the latter, to go behind the judgment to see whether the special authority has been strictly pursued, there is no limit to this revising power, except the discretion and judgment of the court.

The principle will be as applicable to every state judgment coming before us collaterally, as to the one in question. It denies, virtually, to the states the power, in the organization of her courts, to prescribe and settle their jurisdiction, either by the acts of her legislature, or the adjudication of her judicial tribunals.

I cannot consent to the introduction into this court of any such principle, and am, therefore, obliged to refuse a concurrence in the judgment given.