Marshall v. Vicksburg

• Decision Date: 01 December 1872
• Citation: 15 Wall. 146,21 L.Ed. 121,82 U.S. 146
• Parties: MARSHALL v. VICKSBURG
• Court: U.S. Supreme Court

82 U.S. 146

21 L.Ed. 121

15 Wall. 146

MARSHALL v. VICKSBURG.

December Term, 1872

APPEAL from the Circuit Court for the Southern District of Mississippi, on a decree given by that court on a bill filed by Charles Marshall against the city of Vicksburg. The facts of the case can be gathered from different parts of the opinion given below.

Messrs. P. Phillips and R. M. Corwine, for the appellant; Messrs. J. M. Carlisle and J. D. McPherson, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

On the 21st of November, 1851, the parties mutually executed an indenture, whereby Marshall conveyed to the city certain real estate therein described, and the city released to him certain other real estate also therein described. The premises conveyed to the city, embraced the city landing for steamers and other water-craft on the Mississippi River. It was stipulated that Marshall should receive all the wharfages and rents accruing from the premises conveyed by him from the date of the instrument, and for the term of ten years, to commence three months after the removal of a wharf-boat known as the 'Governor Jones.'

The wharfages collected from steamers were to be according to the rates specified in a lease from Marshall to Thomas Porterfield, and those from all other water-craft were to be such as should be fixed by the mayor and council of the city. The latter were not to be less than was then customary.

The city reserved the right to levy such tax on goods, wares, and merchandise coming to the landing as the mayor and council might deem proper. The indenture contained also the following clauses, which lie at the foundation of this litigation, and must control the rights of the parties:

'It is expressly agreed by the parties hereto, that if the right to collect wharfage be suspended for any period by the intervention of third parties, the time of such suspension shall be added to the said term of ten years, it being the intention of these parties that the said Marshall, his representatives, and assigns, shall actually receive the rents and wharfages accruing in ten years altogether, and no more.

'And in case the right to collect wharfage or rents shall be interrupted or defeated permanently, through the instrumentality or with the aid of the said mayor and council of the city of Vicksburg, all the property above conveyed by said Marshall and wife, shall immediately revert to him, his heirs, and assigns, and be as fully and absolutely his as if this deed had never been executed.'

As filed, the bill asked for an enforcement of the forfeiture provided for. It alleges that the enjoyment of Marshall's wharf rights were interrupted by quaranties established by the city in the years 1853, 1854, 1855, and 1858, which subsisted for periods, amounting in the aggregate to about ten months, and claims that his term of ten years should be elongated to that extent. It claims also under these clauses compensation for the interruption of the navigation of the river to his injury by the civil war, and for several alleged breaches by the city of the agreement.

The city demurred. The court sustained the demurrer so far as it related to the forfeiture, and overruled it as to the residue of the bill. The complainant amended the bill in conformity to the opinion of the court. The defendant answered, and testimony was taken on both sides. The court decreed in favor of the complainant for the sum of $7600.67. The complainant thereupon appealed to this court. No appeal was taken by the city.

The court was right in the view which it took of the prayer for a decree of forfeiture. Equity never, under any circumstances, lends its aid to enforce a forfeiture or penalty, or anything in the nature of either.¹ Nevertheless it was an error to sustain the demurrer in part. That cannot be done. Where there is a single demurrer, it must be wholly sustained or overruled.² But the defendant not having appealed, is foreclosed from making the objection, and indeed it was conclusively waived by both parties; by the complainant, by the amendment which he made to his bill; and by the defendant, by answering. The question of forfeiture is therefore withdrawn from the case.

The first of the clauses relates to the acts of third persons. Under this clause, the only claim asserted is one growing out of the diminution of wharf charges accruing to Marshall by reason of the war. The language of the clause is, 'if the right to collect wharfage is suspended for any period,' &c. He was allowed to collect the wharfages as long as he claimed the right to do so; and then voluntarily delivered up the possession of the landing according to an understanding between him and the city authorities. This is proved by the testimony of Lindsay and Auter.³

Auter, who called upon him as chairman of the landing committee of the city council, says:

'He told me that his term had expired, and that he had no more to do...