Livingston v. Jordan

15 F. Cas. 675

Opinion

CHASE, Circuit Justice

(charging jury). This is an action of trespass upon the case to try title. There is very little in it for you to pass upon. The question of fact lies within a very narrow compass. The only question of importance in the case is a question of law. It is very clear that this contract made between Mr. Moses and Mr. Robertson did not bind the plaintiffs. It was a contract without authority from them. No person has a right to intervene as a volunteer for a minor child, and make a contract for the sale of a minor’s estate. This is so clear that it needs no argument. If, however, as apparently in this case, a person does intervene and make such a contract, it may become binding by subsequent assent of the parties on arriving at full age, or through proper p' in a court of equity.

There is no allegation in this case, that we have heard, of any such subsequent consent of these parties. You have heard the testimony of Chief Justice Moses. He stated distinctly there was no intercourse between him and these minor children in relation to this contract. It was made solely at the instance of their mother and stepfather. So far as their consent goes, therefore, it may be laid out of the case. The next question is whether there is any jurisdiction in a court of equity of the state of South Carolina to make a decree confirming the contract, or for the sale of the minor’s estate. Upon that point we entertain very serious doubts. Undoubtedly an infant may bring suit by next friend in a court of equity; and the court has Jurisdiction in such a suit to make an order giving authority to sell the estate of the infant. There is no question upon that point. In this case, however, the suit was brought by the stepfather, representing himself as next friend of the minors; but he himself resides in Maryland, beyond the jurisdiction of the court in ■which the suit was brought. Though represented as the guai'dian of the minors, he was not such in fact. He had ceased to be the guardian of one under the laws of Maryland for more than two years, and of the other for nearly two. And one of the heirs became of age, according to the laws of South Carolina, within four days after the suit was brought, and the other long before the final decretal order under which the defendant claims title; and neither was ever brought formally into court.

As we have already said, we doubt upon the question of jurisdiction; but for the purposes of this case will rule that jurisdiction to confirm this contract made in behalf of the minors, or to pass the final decretal order under which the title was conveyed, did not exist. The defendant, if dissatisfied, may move in arrest of judgment, or for a new trial.

Under this ruling, gentlemen, your verdict must be for the plaintiff; for, if there was no jurisdiction in the court, the defendant can not protect himself by its decree.

It is proper to say, further, that although -we have put this case, for the present, upon the absence of jurisdiction in the state court to confirm or order the sale, there is another objection to the defendant’s title equally fatal.

The jurisdiction of the state court over the plaintiffs, whatever it was, terminated when the Civil War broke out. Upon that point we entertain no doubt. As between parties residing in the stare of South Carolina, and parties residing in the states which adhered to the national government, between whom war made intercourse impossible, there could be no jurisdiction in the courts of South Carolina while the war continued, by which the rights of non-residents could be injuriously affected. This ruling, indeed, applies only to the orders made during the war; it is decisive, however, of this case.

We charge you, gentlemen, that the courts of South Carolina had no jurisdiction of these plaintiffs, and no jurisdiction to make any order prejudicial to their rights during the war. These instructions, gentlemen, leave nothing for your determination but the question of damages. The measure of damages must be the amount of net profits made by the defendant from the plantation. The defendant in this ease is Mr. Jordan, not the original purchaser, Mr. Robertson. If you have heard any evidence of profits made by him, you will give damages to that extent.

The jury returned a verdict for plaintiff, but gave no damages. [Damages one cent, on which the court entered judgment, and issued a writ of habere facias possession-em.] ²

2 [From 10 Am. Law Reg. (N. S.) 53.]