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THOMPSON V. TOLMIE, 27 U. S. 157 (1829)

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U.S. Supreme Court

Thompson v. Tolmie, 27 U.S. 2 Pet. 157 157 (1829)

Thompson v. Tolmie

27 U.S. (2 Pet.) 157


It was assumed on the argument by the counsel on both sides that the Circuit Court of the County of Washington in the District of Columbia is vested with the, same power in relation to intestate's estates in that county that is possessed by a county court in Maryland over lands lying within the county.

When the proceedings of a court of competent jurisdiction are brought before another court collaterally, they are by no means subject to all the exceptions which might be taken to them on a direct appeal. The general and well settled rule of law in such cases is that when the proceedings are collaterally drawn in question and it appears on the face of them that the subject matter was within the jurisdiction of the court, they are voidable only. The errors and irregularities of any suit are to be corrected by some direct proceeding either before the same court to set them aside or in an appellate court if there is a total want of jurisdiction, the proceedings are void and a mere nullity, and confer no right and afford no justification, and may be rejected when collaterally drawn in question.

The act of the Legislature of Maryland relative to a devise of the real estate of intestates in certain cases, in directing the commissioners when to give deeds to purchasers, has this general provision that the commission and proceedings thereon shall be recited in the preamble of the deed. It certainly could not have been intended that the commission, and all the proceedings, should be set out in haec verba. If the substance of the proceedings is recited, it is sufficient.

The law appears to be settled in the states that courts will go far to sustain bona fide titles acquired under sales made by statutes regulating sales made by order of orphans' courts. Where there has been a fair sale, the purchaser will not be bound to look beyond the decree if the facts necessary to give the court jurisdiction appear on the face of the proceedings.

The decision of this Court in Elliott v. Piersoll, 1 Pet. 310, was not intended to decide anything at variance with the principles established in this case.

When the jurisdiction of the court on the subject under whose authority lands have been sold appears on the face of the proceedings, its errors or mistakes, if any were committed, cannot be corrected or examined when brought up collaterally.

This case came up by appeal from the Circuit Court for the County of Washington in the District of Columbia, where a verdict was take for the appellees, subject to the opinion of the Court upon the following agreed case.

"The plaintiff, to prove title to the premises (Lot No. 14 in Square No. 290, in the City of Washington) showed a title in Robert Tolmie, regularly deduced by sundry admitted mesne conveyances from David Burnes, one of the

Page 27 U. S. 158

original proprietors of city property, duly executed and acknowledged and recorded to the said premises, accompanied by possession thereof and payment of taxes thereon by the several grantees according to the titles down to the year 1805, when the said Robert Tolmie, the last grantee in whom the said title had vested, departed this life intestate, leaving Margaret, Alice and James Tolmie, his only three children and heirs at law, infants at the time of his death, under the age of 21 years; that the said infants continued in possession of said premises until sometime in the year 1814; that Margaret was the eldest of said infants, and that in the year 1812 she intermarried with one Francis Beveridge, and has since died, leaving three children, to-wit, Margaret Beveridge, Hannah Beveridge, and James Beveridge, who are named among the lessors of the plaintiff; that James Tolmie aforesaid also died after the death of said Margaret, his sister, intestate, under age and unmarried, prior to the commencement of this suit, leaving Alice aforesaid his sister and the said three children of Margaret his heirs at law. And the plaintiff also proved that the said Margaret Tolmie was 17 years of age at the time of her said marriage, which was in 1812, and was an infant under the age of 21 years at the time of the sale made by the commissioners hereinafter named; that her husband, the said Francis Beveridge, some time in the year 1814 or 1815, went away, leaving his family residents of the City of Washington; that after some time he returned and lived with his family, and again went away and has never since returned, and is generally believed to be dead by his family and friends; about three or four years age he was heard of and was then sick, and has never been heard of since."

"The defendant has had possession of the premises since 1814, when she became the purchaser thereof (by her then name Julia Kean) at a public sale made by certain commissioners appointed under the Act of the Assembly of Maryland of 1786, c. 45, to direct descents. She entered in pursuance of that sale, claiming the lot under it, and produced in evidence, the proceedings of the commissioners, which are made part of the case agreed. "

Page 27 U. S. 159

That record contains a petition in the usual form for partition of the real estate of Robert Tolmie, which purports to be the joint petition of Francis Beveridge and Margaret his wife and of Alice Tolmie and James Tolmie, infants, by Margaret Tolmie, their guardian, mother, and next friend. It states that Robert Tolmie died seized, leaving Margaret his widow, and also the following children, his heirs at law, viz., "Margaret, since intermarried with Francis Beveridge, said Alice Tolmie and James Tolmie, which said Alice and James are infants under the age of 21 years." This petition was filed on 15 June, 1814, and a commission issued on the same day. On 17 June, 1814, the commissioners reported that the estate consisted of a single lot, and could not be divided without loss, &c., and valued the same at $1,400. Whereupon, at June term, 1814, the court ordered the property to be sole at public auction on ten days' notice, one-fourth part of the purchase money in cash, and the residue at three, six and nine months, taking bond with good security to the heirs according to their several interests. On 5 July, 1814, F. Beveridge and wife, and Alice and James Tolmie by their mother, gave notice in writing that they did not elect to take the property at the valuation. On 3 July, 1818, the commissioners reported that they had sold the property on 30 July, 1814, to the appellant for $1,105, on a credit of three, six, and nine months, one-fourth being paid in cash, and that she gave due security for the payment of the purchase money, all which has been duly paid; they therefore requested that the said sale might be ratified, and that they might be directed to distribute the proceeds, and make a conveyance to the purchaser. On the same 3 July, the court

"ordered that the report of the commissioners returned and filed in this cause be, and the same is hereby ratified and confirmed, so soon as proper receipts of the parties are produced before one of the judges of this Court, and that then the commissioners or a majority of them make a sufficient deed in fee to the purchaser."

On 13 June, 1816, the majority of the commissioners made a deed to the appellant which recites that by a decree of the circuit chanroblesvirtualawlibrary

Page 27 U. S. 160

court, sitting as a court of chancery, David Appler, &c., were appointed commissioners, and they or a majority of the/a>

court, sitting as a court of chancery, David Appler, &c., were appointed commissioners, and they or a majority of the/a>

court, sitting as a court of chancery, David Appler, &c., were appointed commissioners, and they or a majority of them were authorized and empowered to sell said lot, the real estate of Robert Tolmie deceased, and that in pursuance of said decree, the said Appler, &c., did, on 30 July, 1814, sell the same to the appellant for $1,070; that the said purchase money had been paid, and that the said Appler, &c., were authorized and empowered by said decree to execute a conveyance of the same, and accordingly the said Appler, &c., conveyed said lot to the appellant and her heirs.

The statutes are the Acts of Assembly of Maryland of 1786, c. 45, s. 8; 1797, c. 114, s. 6; and 1799, c. 49, s. 3, 4.

This ejectment was brought by Alice Tolmie, and by the three infant children of her sister, Margaret Beveridge, who, since the death of the said Margaret and of the said James Tolmie, have claimed to be entitled to the lot, as heirs of the said Robert Tolmie. The defendant entered under and relied on the commissioners' sale above, which the lessors of the plaintiff contended was void 1. because none of the heirs of Robert Tolmie had arrived at age at the time of the sale; the act of 1786 expressly prohibiting a sale until the eldest was of age; 2. because the sale was never ratified by the court; 3. because bonds for the purchase money were not taken payable to each representative, according to his proportional part of the net amount of sales; and 4. because the deed does not recite the commission and all the necessary proceedings thereon to show a good title. chanroblesvirtualawlibrary

Page 27 U. S. 162

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