Gaines v. New Orleans

73 U.S. 642 (____) 6 Wall. 642

GAINES
v.
NEW ORLEANS.

Supreme Court of United States.

Messrs. McConnell and Taylor, for the appellants, relied largdy on Gaines v. Relf; Messrs. Cushing and H.D. Stone (with a brief of Mr. Stone), contra.

Mr. Justice DAVIS delivered the opinion of the court.

It was supposed, after the decision in Gaines v. Hennen,^[*] that the litigation, pursued in one form and another for over thirty years, by the complainant, to vindicate her rights in the estate of her father, was ended. But this reasonable expectation has not been realized; for other cases, involving the same issues and pleadings, and supported by the same evidence, are before us; and we are asked to review the principles of law and questions of fact, on which the Hennen decision was pronounced, and thus reopen the whole controversy. The legal principles, on which that case was decided, are no longer open for consideration. They were fully and finally settled, and are controlling in all future disputes relating to the same subject. But these defendants insist they have a right to be heard on the issues of fact presented in this case, even, if they are the same as those decided in the Hennen case.

It can serve no useful purpose to discuss the point how far the decision in Gaines v. Hennen is res judicata, as to the city of New Orleans and others in like position; for we shall examine this case, as if the questions of fact, decided in the former case, were still open questions to these defendants and others, whose cases are now before the court. Nevertheless, it is proper to say, when this court, in a real contest, has decided questions of fact on the most careful investigation, and after full argument by able counsel, it will be presumed a correct conclusion was reached, and before a decision thus rendered will be reversed, it must very clearly appear that error was committed.

The legitimacy of Mrs. Gaines is the turning-point of this controversy; for, since the probate of the will of 1813, if legitimate, she cannot be deprived of the estate of her father by any of the defences interposed in this suit. These defendants claim, as a question of proof, from the record, that she is an illegitimate child — adulterous bastard of Daniel Clark — and cannot take the estate of her father, either as heir or legatee, under the will of 1813. This court decided, in the Hennen case, that by the law of Louisiana she was entitled to a legal filiation as the child of Daniel Clark and Marie Julie (Zulime) Carriere, begotten in lawful wedlock. Was that a mistaken judgment?

To this question we will first direct our attention, considering, afterwards, the objections made to a recovery by her, even if her legal filiation is established. We shall not attempt to give the history of the litigation, which, it is to be hoped, will be closed by this decision; for the profession is familiar with it by the repeated adjudications of this court. It is enough to say it has been pursued by the complainant through a third of a century, with a vigor and energy hardly ever surpassed, in defiance of obstacles which would have deterred persons of ordinary mind and character, and has enlisted, on both sides, at different periods, the ablest talent of the American bar.

This case seems to have been defended on the idea, that every presumption was against the legitimacy of Mrs. Gaines, and the inclination of courts would be so to decide. But, as she was declared legitimate by her father in his last will and testament, common justice, not to speak of legal rules, would require that such a declaration should only be overborne by the strongest proof; and yet detached portions of evidence, scattered through the record here and there, are invoked to destroy the dying declarations of an intelligent man, that a beloved child was capable of inheriting his property.

The influence of the probate of the will of 1813, in deciding the civil status of Mrs. Gaines, cannot be over-estimated. Without the evidence which it furnishes, her legitimacy might be questioned; but with it, in connection with the other evidence in the record, it is hard to see how it can longer be doubted. The circumstances under which this will was recognized are peculiar, and entitle the court which pronounced it valid to the tribute of our admiration. It was proved by the memory of witnesses, forty-three years after it was made, in the height of the litigation instituted by Mrs. Gaines to obtain possession of her father's estate; but, notwithstanding the effect of the probate of it was to recall the will of 1811, and endanger titles acquired under it, so strong was the proof of its authenticity, and so complete the evidence of its contents, that a court, administering justice in the midst of a people claiming rights hostile to it, did not hesitate to order it to be recorded and executed as the last will and testament of Daniel Clark.

This will, thus allowed to go to probate, contains the following clause: "I do hereby acknowledge that my beloved Myra, who is now living in the family of Samuel B. Davis, is my legitimate and only daughter; and that I leave and bequeath unto her, the said Myra, all the estate, whether real or personal, of which I may die possessed, subject only to the payment of certain legacies hereinafter named." The will was made only a short time before the testator died, and is to be taken as his dying testimony that he believed the declarations in it to be true. And no one can read the evidence on which it was established, especially the evidence of Harriet Harper, Boisfontaine, and Bellechasse, without being convinced of the unbounded affection of Daniel Clark for his child, his sensibility as to her being declared legitimate, his pride in the position she would occupy as heir to his large estate, and his belief that he had secured the estate to her. Nearly his last words were about this child, and the necessity of taking care of the will on her account.

The inquiry naturally arises, what motive had he to declare his child legitimate if he knew the fact were otherwise? He was a man of superior intelligence, and long residence in Louisiana, and necessarily knew by the laws of the State he could secure to his child enough of his large property to make her rich, if she were illegitimate. Is it conceivable that such a man would risk a declaration of legitimacy, which he knew to be false, and thus jeopard the estate, which he insisted with so much confidence he had secured to his child, and in the security of which he said "he would die contented?"

It is argued that the conduct and letters of Clark, for years before this, are inconsistent with the idea of Myra's legitimacy. Conceding this is so, and yet it in nowise disproves the good faith and sincerity of Clark when he made his will. The conduct of Clark is susceptible of easy explanation. He had contracted an unfortunate marriage, and, in many respects, a disreputable one, having married a person with whom he had previously lived improperly, who, without a divorce, had married again. Possessed of commanding influence and high position, and mingling in social intercourse with the best society of the country, it was natural, while in strong health and the full tide of prosperity, he should be desirous of concealing such a marriage; but when sickness overtook him, and he necessarily reviewed his past life, it was just as natural he should wish to repair the consequences of his folly (to use no harsher term) by a deliberate acknowledgment that the child born of that marriage was legitimate, and could, therefore, inherit his estate. He was intelligent enough to know that, if he died without giving his child the status to which she was entitled, she would in all probability pass through life with a stain upon her birth, and be unable to enjoy his property, for he had taken uncommon pains to conceal his marriage.

The difficulty of acknowledging the marriage to Zulime was greatly increased by her subsequent marriage to Gardette. Clark could not acknowledge it to the world without injuring her, which no right minded man under the circumstances would wish to do. According to the testimony of Baron Boisfontaine, Clark considered her blameless, and would have made his marriage with her public if it had not been for the obstacle interposed by the Gardette marriage. It is easy to see the struggle in the mind of Clark on this subject. He had sustained improper relations with a woman of uncommon personal attractions, to whom he was passionately attached. This woman he afterwards married, and lived with in secret for several years. Estrangement took place, and he separated from her. She had repaired to Philadelphia to procure evidence of her marriage; but being unable to get it, and advised of its invalidity, had married another man with whom she was quietly living. Two children were the result of the intercourse between them — one born before and the other after marriage — the latter the legitimate heir of the father, if he married the mother, believing in good faith she was capable of contracting marriage. To acknowledge a marriage with such surroundings was to lose social caste, and put in peril a woman whom he once loved and still professed to respect. Not to acknowledge it was to bastardize a child for whom he had great affection, and to see a large part of his estate go to others, who had no claims on his bounty. There were thus presented to his mind conflicting motives. Duty to himself and society, and affection for his child, prompted him to proclaim his marriage, while pride, the fear of social degradation, and the natural desire not to inflict additional injury upon Zulime, impelled him to a contrary course. That he yielded to the influence of unworthy motives, and lived for years a life of deception, only proves that his baser nature during that time got the control, and that he acted as other men in similar circumstances have acted before him. But, before he died, the better nature of this man of lofty pride and sensitive honor was aroused and gained the ascendency. He atoned in some measure for the errors of his past life; for he not only made a public acknowledgment, in the last solemn act of his life, that his child was legitimate, but a short time previous to his death frequently repeated the declaration to Mrs. Harper, who had nursed the child in infancy, and to Boisfontaine, who managed his plantations, and was with him when he died.

Testimony like this outweighs the evidence furnished by the conduct of Clark, when, governed by bad influences, he was even willing to leave a stain of dishonor on the birth of his child, rather than make known a marriage which would tend to degrade him in the estimation of his friends and the public. If the evidence of Mrs. Harper and Boisfontaine is true (and who can doubt it since the action of the Supreme Court of Louisiana?), it confirms the declarations of the will, and shows a willingness, nay, more, an anxiety on the part of Clark to talk about a subject the nearest his heart, and one which of necessity must have awakened his conscience. To whom would he be so likely to communicate the information that Myra was born in lawful wedlock as to the woman who nursed her and the man who remained with him, at his request, during his sickness, and until he died?

But the will itself, in another clause, furnishes corroborating evidence of Mrs. Gaines's legitimacy. A legacy of five thousand dollars is left to Caroline Des Granges, with a suitable annuity until her majority. The person thus designated was the natural child of Clark by Zulime, and yet he avoids calling her his child, gives her the name of the ostensible husband of her mother at the time of her birth, and recognizes Myra as his legitimate and only daughter. Many reasons may have influenced Clark to pursue this course. Delicacy to the mother may have induced him to reveal no more than was necessary to accomplish his purpose; or an unwillingness, by his will, to affix a brand of reproach on this child, who was lawfully entitled to bear the name of Des Granges, may have been the motive; or a wish that Myra, the object of his greater affections and superior bounty, might never know the wickedness of his life, may have prompted his course. It is not necessary to inquire whether these considerations, singly or together, constituted the reasons for the peculiar wording of the legacy. It is enough to know from the legacy that Clark had both children in his mind when he drew his will. If so, and he knew both were illegitimate, why discriminate so largely in favor of one and against the other? No answer can be given to this question on the assumption he knew the birth of both to be dishonorable; but it is easily answered, if one was legitimate and the other not, for it is the experience of the world (and it is well it is so) that every person owning property desires his legitimate children to have the greater share of it.

The attempt to impeach the validity of this will shows the importance attached to it by the defence in determining the issue we are now considering. But the will cannot be attacked here. When a will is duly probated by a State court of competent jurisdiction, that probate is conclusive of the validity and contents of the will in this court.

But why, if the will is invalid, has the probate of it rested for twelve years unrecalled, when express liberty was given by the Supreme Court of Louisiana for any one interested to contest it in a direct action with complainant? If, with this clear indication of the proper course to be pursued, the probate of the will still remains unrevoked, the reasonable conclusion is, the will itself could not be successfully attacked. Be this as it may, while unrevoked it is the law of this case, and so this court held in Gaines v. Hennen.

But it is said the probate of the will in dispute cannot stand, because there was no direct action by the Louisiana court annulling the probate of the will of 1811. This was not necessary. The probate of the will of 1813, by the mere fact of its probate, necessarily annulled the will of 1811, so far as its provisions were inconsistent, and so far as the estate was not legally administered under it. And this precise point was decided in the Hennen case.

We will proceed now to consider the question of actual marriage, and whether Clark, in good faith, contracted it. Madame Sophie Despau swears to the solemnization of a marriage between Clark and Zulime, by a Catholic priest, in Philadelphia, in 1802 or 1803. If this witness is to be believed there is an end of the case, for no amount of negative testimony that Clark could not have made the marriage will weigh down the testimony of an unimpeached witness, who was present and witnessed the ceremony. But why does she not tell the truth? Is it because she was the sister of Zulime? Who so likely to be present at a private marriage, designed to be concealed from the world, as a near relative of one of the parties? Clark knew he was contracting a marriage which would lessen his standing in society, and might not want any very dear friend or relative present. Not so with Zulime. She was marrying a man of rank and position, with whom she had lived in unlawful intimacy, and what so natural that she should take with her to Philadelphia, as a witness of her happiness, the same sister who had witnessed her previous disgrace when Caroline was born. Is she not to be believed because she speaks of Caroline as one of the children born of the marriage of her sister with Des Granges, when she must have known she was the child of Clark? It is doubtless true she knew Clark to be the real father of the child; but she certainly did not falsify in stating Caroline was born of the Des Granges marriage. This was true, and yet Clark had seduced the wife and was the father of the child. But is she to be condemned and her evidence discarded because she does not disclose the frailties of her sister, and instead of answering plainly that Caroline was the child of Clark, speaks of her as born of the marriage with Des Granges? Des Granges was, in the eye of the law, the father, though Clark was, in fact, the father; and although Madame Despau knew the real parentage of Caroline, we cannot say she did not believe she was answering properly the cross-interrogatories propounded to her. At any rate, we cannot say her testimony in this regard casts suspicion on the evidence given to establish the marriage. We concede something to the infirmity of human nature. This aged witness, testifying forty-six years after events which must have indelibly fixed themselves on her memory, and when concealment of anything, no matter how unpleasant, would do harm rather than good, still shows pride of family, and studiously avoids the condemnation of her unfortunate sister, for she can speak of her sufferings, but not of her frailties. All this may prove weakness of character, but does not tend to prove she told a falsehood when she testified to the marriage of Clark and Zulime. But she is corroborated by Madame Rose Caillavet, an elder sister, who was eighty-three years of age in March, 1849, when her deposition in this cause was taken. She testifies the marriage was arranged in New Orleans; that Zulime wrote to her from Philadelphia that it had taken place; that Clark afterwards acknowledged it, and frequently stated that Myra was his lawful and only child. There is nothing in this record worthy of notice to impeach this testimony. It was given by one whose life was nearly ended, and who could have no motive, as far as we can see, to tell an untruth. Like Sophie Despau, she was the sister of Zulime, and equally anxious to vindicate her good name, but this furnishes no good reason to discredit her.

In support, then, of the issue that there was a marriage between the father and mother of complainant, we have the testamentary disposition of the father; his declarations at the time of his death, and shortly before it, to Mrs. Harper and Boisfontaine, that Myra was legitimate; similar declarations at other times to Madame Caillavet, with an acknowledgment to her of the marriage; and, superadded to all this, the evidence of Madame Despau that the marriage ceremony took place in her presence; with the admission of Clark to Boisfontaine that he would have made it public but for the subsequent conduct of Zulime in marrying Gardette.

To disprove the fact of marriage, the evidence is of a negative character and wholly inferential. Concede it is true that Clark behaved so as to cause his most intimate friends to disbelieve the fact of marriage; that he held himself out to the world as a single man, and by public repute, after the time of the alleged marriage, lived with Zulime, ostensibly not as his wife, still the case of the complainant is not weakened. It was the fixed purpose of Clark to conceal this marriage, as is clearly shown by the evidence; and a man of his mental resources would be likely to use every means calculated to accomplish his purpose; and these things, instead of proving the marriage did not occur, only prove how effectually it was concealed.

But it is argued with earnestness and ability there was no marriage, because those who knew Clark intimately swear to their belief that one of his proud nature would never marry a person with whom he had previously lived unlawfully. Opinions of witnesses on such a point can have no weight in determining the issue we are trying. Men of equal position and equal pride with Clark have married those with whom they were living unlawfully, and why should not Clark do the same thing? No good reason can be given why he should not act in a matter of this kind as other men, just as sensitive and proud, have acted before him. If he seduced Zulime and could lawfully marry her, it was his duty to do it; and can we say he was too proud to marry her, and thereby repair the wrongs she suffered at his hands? To say so would be to reflect upon his memory more than is necessary.

In denial of the marriage it is said, if Clark had not been free to do so, he would never have written a letter, stating if he could secure the affections of Miss Caton he would offer himself to her. This letter was written after his estrangement from Zulime and separation from her, but before her intermarriage with Gardette. It cannot be denied the writing of it was a base and inexcusable act, and in itself affords an additional proof, if any were necessary, how easy the descent, when a man, with a fixed purpose, is leading a life of deceit. Clark, for years, had been imposing himself on the world in a character different from his real one, and when his affections were weaned from Zulime he attempted to do what, if he had succeeded in doing, would have blackened his memory forever. But fortunately, before he died, his line of conduct was changed. Affection for his child and uncertain health, doubtless subdued him, and induced him to disclose what, as an honorable and honest man, he should never have wished to conceal. In resolving the issue of marriage or no marriage, the effect of this letter is unimportant when opposed to the direct testimony that there was a marriage, on which we have offered sufficient comments. Without pursuing the subject further, it is our conclusion from the whole record, as a matter of fact, that the father and mother of complainant were married.

Did Clark contract that marriage in good faith? If this inquiry can be answered in the affirmative, the legitimacy of Mrs. Gaines is no longer an open question. The fact of marriage being proved, the presumptions of law are all in favor of good faith. To disprove the good faith in this case "there should be full proof to the contrary, and the law will not be satisfied with semi-plena probatio."^[*] Chief Justice Martin, in Clendenning v. Clendenning,^[†] in discussing the question of the extent of the proof required to overturn the presumption of good faith, says, "the proof must be irrefragable." Testing this case by these rules, the question is of easy solution. Zulime, when quite young, was married in New Orleans to Jerome Des Granges, from whom she was not divorced at the time of her marriage with Clark. It is in evidence that Clark was a single man; and the inquiry therefore is, did he believe Zulime had the capacity of contracting marriage with him? If in good faith he believed she was free to marry him on account of the invalidity of her marriage with Des Granges, and with a bona fide belief of this did marry her, then, by the laws of Louisiana, such a marriage has its civil effects, and the child born of it is legitimate, and can inherit her father's estate.

We do not propose to discuss the question, whether Des Granges was or was not guilty of bigamy in marrying Zulime? That he was accused of it is very clear, and that there is evidence in the record tending to show it was true, is equally clear; but where the weight of the testimony leaves the point in dispute, the purposes of this suit do not require us to decide.

Clark had been criminally intimate with Zulime before his marriage, and on one occasion sent her, secretly, to Philadelphia, where she gave birth to a child, of which he acknowledged himself to Daniel W. Coxe as the father. Whether these improper relations were continued after the return of Zulime to New Orleans we are not informed by the record; but, in the absence of proof to the contrary, the fair presumption would be they were. It is asked why Clark should marry her if he could live with her without it? The natural answer would be, he loved her, and wished to terminate the existing disreputable connection; for we have no right, unless there is clear proof it is so, to ascribe a bad motive for a good act. It may be Zulime was unwilling longer to continue the connection, and Clark, rather than part with her, married her. But whatever were the controlling motives with the parties, there was nothing to induce Clark to enter into a marriage contract, unless he thought he had a right to do it. He was a man of high intelligence, and knew what every man of ordinary intelligence knows, that he subjected himself to a criminal prosecution and absolute disgrace, if he married a woman who was lawfully the wife of another. Is it to be supposed for a moment — considering the political and social position he occupied, on which so much stress is laid by the defence — that he would expose himself knowingly to the penalties provided everywhere against the crime of bigamy? Clearly not.

From the very nature of the case, Clark must have believed he had a right to marry Zulime. But we are not without testimony to prove his good faith. Madame Despau swears it became known in New Orleans that Des Granges had another wife, who was living when he married Zulime, and upon this she separated from him and returned to her family. It was then arranged that Clark should marry her; but before doing so, it was thought best to procure record evidence of the first marriage of Des Granges, which was said to have taken place in New York. For this purpose she went to New York in company with Zulime, but found the registry of marriages of which she was in search was destroyed. Failing in their object they repaired to Philadelphia, where it was appointed Clark should meet them, and while there Gardette told them he was a witness to the marriage of Des Granges in New York, and the wife was then living in France. Upon this communication Clark said to Zulime, "You have no longer any reason to refuse to marry me;" to which she assented, and the marriage was solemnized. If this testimony is true, and we have said in a previous part of this opinion there is nothing to discredit this witness, then the good faith of Clark in contracting marriage with Zulime is established. And who can doubt Zulime was in equal good faith? But the determination of that point is not essential in settling the rights of the complainant in this suit. No better evidence could be furnished Clark of the invalidity of Zulime's prior marriage, and her right to marry again — short of a pronounced divorce by a decree of court — than the testimony of a witness who was present at the marriage in New York, and who knew the woman to whom Des Granges was there united was living in France. The registry of marriages, if in existence, would only have proved Des Granges had been married before he married Zulime, but would have failed to prove whether the wife of the first marriage was living or dead.

But Madame Despau also testifies that Des Granges admitted his crime, and it is fair to presume, although her testimony is silent on the point, she communicated this admission to Clark. The fact that Des Granges was charged with bigamy was known to Clark, and it is reasonable to suppose, while in New Orleans, he had informed himself of the evidence to sustain it; and if he had an interview with Madame Benguerel he must have been convinced of it, for she testifies she and her husband were intimate with Des Granges, who, when charged with his baseness, admitted it, but excused his conduct on the ground that he had abandoned his first wife, and never intended to see her again. But whether Clark saw Madame Benguerel or not, he could not have failed, before he left New Orleans, to collect all the evidence in his power on this subject, and his mind was, therefore, well prepared to receive the evidence of the bigamy of Des Granges, and of Zulime's right to marry him, which Gardette furnished.

The testimony of Madame Despau is fortified, in many important particulars, by that of Madame Caillavet. If, however, the evidence we have been considering falls short of proving the good faith of Clark in contracting marriage with Zulime, the testamentary recognition by him that the issue of the marriage was legitimate relieves the question of all doubt. The child could not be legitimate unless the father married the mother in the full belief he had a lawful right to do so, and this a man of the intelligence of Clark could not help knowing. The disposition of property to take effect after death is one of the most solemn acts in the life of a man, and in itself is the highest evidence of good faith. The influence of the will of 1813 in settling the question of good faith is so far conclusive, that to overturn it there must be full proof to the contrary. There is no such proof in the record. What there is relates to the inconsistencies in the conduct of Clark on which we have commented, and which it is unnecessary here to repeat. We find, therefore, as a further fact in this case, that Daniel Clark contracted marriage with Zulime Carriere in good faith. As Clark was in good faith when he married the mother of the complainant, it follows that she can take the estate under the olographic will of 1813.

It is conceded the property in dispute, and which the defendants admit they were in possession of, is a part of the estate of Daniel Clark left at his decease, and devised to complainant in his last will. She is, therefore, entitled to the relief sought by her bill, unless prevented by some of the special defences interposed, which we will now proceed to notice.

It is claimed as a question of law, that the decree of this court in Gaines v. Relf,^[*] is res judicata both as to the present claim for the property and the civil status of the complainant; but this precise point was met and disposed of adversely in the Hennen case, and will not be further considered.

Two defences have been prominent throughout this litigation, and as they are both applicable to some of the cases now before the court, and as one opinion will in fact dispose of all the cases, we will consider in this case all substantial defences to the recovery by Mrs. Gaines of her father's estate.

In bar of the claim of the complainant, titles acquired under Relf and Chew, as executors of the will of 1811, are set up. But these titles cannot avail the defendants, because Relf and Chew, as executors of the will of 1811, had no authority to make the sales, and could, therefore, pass no interest to the purchasers. There is no question in this record of the effect of the probate of the will of 1811, while unrevoked, upon property legally sold by the executors; because the very foundation of the bill in this case is, that there was no legal sale of the property. In Louisiana, by the law in force when these sales were made, the power of executors to make sales without the order of court terminated at the end of a year from their appointment. This is not only clear from the law itself, but also from the judicial decisions of the State. Chief Justice Martin, in Donaldson v. Hull,^[*] says, a sale by executors, without an order of court, and by private contract, is void; and to the same effect is the case of Lanfear v. Harper.^[†] The defendants having failed to prove that any order of court was ever given to make these sales, they are nullities, and confer no titles. And this is the decision in Paterson v. Gaines,^[‡] which is reaffirmed in Gaines v. Hennen.^[§] It is useless to discuss the point further, as we see no reason to question the correctness of the conclusion at which the court arrived in those cases.

It is insisted the defendants are protected by reason of conveyances from Relf and Chew, as attorneys of Mary Clark, the universal legatee under the provisions of the will of 1811. The invalidity of this defence has been also sustained by this court in the cases just referred to. But even if the power of attorney, on which these conveyances were predicated, was not defective, and the other proceedings were regular, still, by the law of Louisiana and the decision of her highest court, Mary Clark, as sole instituted heir, could give no title as against the real and paramount heir. The effect of the probate of the will of 1813, if Myra Clark Gaines is legitimate, and that we have found to be true, is to make her sole heir of Daniel Clark, and, as a consequence, Mary Clark could in law have no title as heir, and could convey none. Although French jurists have differed on this subject, the question is set at rest by the decision of the Supreme Court of Louisiana, in Ripoll v. Morina.^[†] Sebastian Ripoll died, in 1836, in New Orleans, and left by will a large estate to Teresa Morina, his universal legatee, who was, also, his natural daughter. She was put in possession of the estate by the judgment of the Probate Court as testamentary heir. The will was contested by two sisters of Ripoll, who represented they were the only heirs of their brother; but long before the contest commenced, and while Teresa was the apparent heir, and in the undisturbed enjoyment of the property, she sold part of the real estate at its full value to bonâ fide purchasers. One of the questions in the case was, whether those who purchased property from the apparent heir or universal legatee, in possession of the estate as such heir or legatee, could defend against the claim of the legal and actual heir, and the court decided they could not. In discussing the question they say: "Our code, art. 2427, declares that the sale of a thing belonging to another is null," and that the purchasers of the property in dispute can, under no circumstances, acquire any greater right or any better title to it than their vendor had. As to the defence of good faith, the court decide, "that all the law has done in favor of a purchaser in good faith is to give him the benefit of the limitation by prescription, though the property so purchased may belong to another person," and refer in support of their position to the Civil Code, arts. 3442, 3450, 3451. That case is decisive of this on the point we are considering, and goes further than the necessities of this case require, because Mary Clark was never recognized by the Probate Court as heir, or put in possession of the property.

It is argued with earnestness that the estate of Daniel Clark was insolvent, and the real heir cannot have it until the debts and legacies are paid. If this defence were true in fact, which it is not (but we do not care to discuss the evidence in order to show it), it cannot avail these defendants. They are concerned to show a better title than the complainant, and if they cannot do it, are not at liberty to make a collateral issue by proving the estate in debt more or less. If the executors rightfully sold the property in controversy they are protected; but they cannot substitute themselves for the creditors of the estate, and use them as a means to get protection.

A kindred defence to this is, that the Probate Court of New Orleans, in 1841, duly approved of the sales made by Relf and Chew as executors, and that this homologation is binding upon the complainant. This court in the Hennen case said, "We do not think the accounts of Relf and Chew are put in issue by the bill of complainant, or the answer of the defendants, particularly as Relf and Chew are not parties to this proceeding."

But the objection to this defence lies deeper than this; for if it were true the accounts were duly homologated, these defendants are not benefited by it, because the Probate Court could not by a subsequent order give validity to sales made by executors, which were null and void by the law of the State when they were made. It is, however, not true that the executors' accounts were duly homologated, as the court, in its order of confirmation, say, "they are confirmed in all respects in which they are not opposed." As the opposition of Mrs. Gaines (more interested in the matter than any other person) has never been withdrawn, but is still active, the question is an open one in the Court of Probate.

Although the legal title to the property in dispute was in Daniel Clark at the time of his death, yet it is said there is an outstanding equitable title in Relf and Chew to two-thirds of it, by virtue of a partnership agreement between them and Clark, of the date of 19th of June, 1813, which will defeat, pro tanto, the recovery the complainant seeks to obtain by her bill.

This defence is provocative of more comments than we have time to make, or the necessities of this suit require us to make. It is extraordinary, if the agreement relied on was a valid and executed contract at the time of Clark's death, those interested to know it should have remained in ignorance of it for a period of twenty-five years. During this long time it is equally concealed from creditors, purchasers of property, and the Court of Probate. Why was no title asserted under it when the estate was inventoried? Why were not creditors informed of it, who were interested to know the extent of the estate to which they had to look for the payment of their debts? Ante motam litem, nothing is heard of it; but when Mrs. Gaines attempts to "unkennel" the fraud by which she was deprived of her just rights, it sees the light. If Relf and Chew were the real owners of two-thirds of every piece of property which they sold, why not recite the fact of joint ownership in the conveyances which they made? Why sell all the property either as executors of the will of 1811, or as attorneys of Mary Clark? No satisfactory answers can be given to these questions, or reasonable explanation to the conduct of Relf and Chew, on the theory that the agreement thus attempted to be set up to defeat this suit was a completed contract when Clark died.

If, however, it was, and there is an outstanding equitable title in Chew and Relf to the property in litigation, the defendants cannot plead the fact in bar of the right of complainant to recover. The defendants, equally with the complainant, claim title from the same common source. This is clear from the pleadings and proof. If, therefore, both parties claim title from the same person, neither is at liberty to deny that such person had title. On this point the Louisiana authorities are uniform.^[*] The rule is the same in equity as at law, and is well stated in Garrett v. Lyle.^[†] The court in that case say: "We do not deny in equity as well as at law the plaintiff must recover upon the strength of his own title; but because this is the rule it does not follow he must show a good title against all the world; it is enough that he shows a right to recover against the defendants. And there are many cases in which he has this right, although another person must recover it from him."

The defendants, as a further defence to this action, say they are purchasers in good faith for value without notice, or have acquired titles from those who were, and will, therefore, be protected by a court of equity. We cannot see, in view of the discussion already given to this case, how this plea can be true; but as it cannot avail the defendants if true, it is unnecessary to discuss the evidence further in order to ascertain whether it is true or false. For the question at issue in this case is only on the legal title. The complainant insists she has that title, and if so, her right to enforce it is very clear. On the contrary, the defendants, conceding that Daniel Clark, the father of complainant, had the title when he died, say it has been divested by sales made under the will of 1811, either by the executors or Mary Clark, the instituted heir, and that they now hold it.

In deciding the issue thus presented, the defence, that although the sales were irregular, those who bought the property did it in good faith and without notice, and are protected, cannot avail the defendants unless accompanied by the plea of prescription. As we have said in a previous part of this opinion, all that the law of Louisiana has done to protect one who has bought property in good faith, although it shall turn out the property belongs to another person, is to give him the benefit of the bar of time prescribed by the code.^[*] If the complainant was endeavoring to establish an equitable title, this court, if it saw proper to do so, could refuse to her the use of the peculiar powers of a court of chancery in aiding to establish it against the purchaser of the legal estate who had acquired it fairly and honestly. As she is not doing this, but is contesting her right to the legal estate, we cannot see how either in a court of law or equity she can lose that right because the defendants have purchased in good faith what they supposed was the legal title.

This brings us to the only remaining defence which we shall notice, and that is the bar by prescription. In this connection the question of good faith is always important. The law in its liberality so far protects every honest and fair buyer of real estate, that it limits the time in which actions shall be brought against him to oust him of his possession. But the title of complainant is not barred by prescription according to the law of Louisiana. This defence was made in the case of Gaines v. Hennen, so often referred to, and disposed of adversely to the defendant, and is no longer an open question in this court. The prescription relied upon by the defendants, in this case, is the same that was relied upon by the defendant in that, and as the proofs are common to both, it follows, as the plea of prescription was not available in the one, it is not in the other.

Courts, in the administration of justice, have rarely had to deal with a case of greater hardship, or more interesting character and history, than the one we are now considering. Daniel Clark, a prominent citizen of Louisiana in its early history, died in New Orleans in 1813, leaving by will his large estate to the complainant, then a child of tender years, who has never enjoyed it, but is now, after the lapse of fifty-five years from the death of her father, struggling to get it. Clark wrote this will with his own hand; lodged it as he supposed in a safe place, to be confided to one of his executors, who was also the selected tutor for his child; explained its contents, and expressed his solicitude about it to several friends, and died in the belief he had secured to his child his estate; and yet, after his death, the will cannot be found, and no reasonable mind, from the evidence in the case, can doubt that it was purloined and destroyed. Another will, written two years before, with different disposition of property, is allowed to go to probate, unchallenged by the friends of Daniel Clark, in place of the one thus destroyed, and the estate is administered under it for a period of twenty-five years, without account of administration rendered to the Court of Probate. In the meantime, the complainant remained where she was placed by her father, in the family of Samuel B. Davis, until she was married. Davis, as he swears, maintained and educated her at his expense. When he left New Orleans for the North, with the child, about a year before the death of Clark, he retained in his hands, at the instance of Clark, twenty-three hundred and sixty dollars (for which he gave his note), the interest of which was to go towards the education of the daughter. This sum of money, small as it was, was withdrawn from him by proceedings instituted against him by the executors shortly after Clark's death, and the child lost the use of it, although these executors, intimate friends and partners in business with Daniel Clark, must have known that Clark was the father of the child, and must also have known her necessities.

To the discredit of the friends of Daniel Clark, this child grew to womanhood in utter ignorance of her rights and parentage, and did not ascertain them until 1834 (then not fully); since which time she has been endeavoring to obtain her rightful inheritance. Owing to the lapse of time, it was difficult to reach the truth, and, necessarily for many years, she groped her way in darkness; but finally she was able to show the great fraud perpetrated against her; for, in the judgment of the Supreme Court of Louisiana, she established the validity of that very will, which, forty-three years before, her father had executed in her favor. This action of that court settled what was before doubtful — her civil status — and removed the difficulty she had formerly encountered in pursuit of her rights. The questions of law and fact applicable to those rights were determined in the case of Gaines v. Hennen. After argument by able counsel, and on mature consideration, we have reaffirmed that decision. Can we not indulge the hope that the rights of Myra Clark Gaines in the estate of her father, Daniel Clark, will now be recognized?

The decree of the Circuit Court for the Eastern District of Louisiana is REVERSED, and this cause is remanded to that court, with instructions to enter a decree for complainant

IN CONFORMITY WITH THIS OPINION.

GRIER, SWAYNE, and MILLER, JJ., dissented.

NOTE.

At the same time with the preceding case of Gaines v. New Orleans, was decided another appeal in equity, from the same circuit with it, and depending in the main upon the same issues; the difference between the two cases being, that in the last case the controversy concerned the sale of slaves belonging to the succession of Clark, while in Gaines v. New Orleans it related to real estate. The case just named must be read in order to understand the one now reported, of an adjectitious character.

NOTES

[*] 24 Howard, 553.

[*] Gaines v. Hennen, 24 Howard, 591.

[†] 3 Martin, N.S., 443.

[*] 12 Howard, 472.

[*] Martin, N.S., 113.

[†] 13 Louisiana Annual, 548.

[‡] 6 Howard, 550.

[§] 24 Id. 553.

[†] 12 Robinson, 560.

[*] Crane v. Marshall, 1 Martin (N.S.), 578; Bedford v. Urquhart, 8 Louisiana, 239; Cobton v. Stacker, 5 Louisiana Annual, 677; Girault v. Zuntz, 15 Id. 686.

[†] 27 Alabama, 589.

[*] Repoli v. Morena, 12 Robinson, 560.