Brooks v. Marbury

• Decision Date: 10 February 1826
• Citation: 11 Wheat. 78,24 U.S. 78,6 L.Ed. 423
• Parties: BROOKS v. MARBURY
• Court: U.S. Supreme Court

24 U.S. 78

6 L.Ed. 423

11 Wheat. 78

BROOKS v. MARBURY.

February 10, 1826

ERROR to the Circuit Court for the District of Columbia.

This is the same case which is reported ante, vol. VII. p. 566. The judgment of the Court below was then reversed, and a venire de novo awarded. At the new trial, exceptions were taken to the instructions given by the Court to the jury; and the cause having again been brought before this Court for revision, was argued by Mr. Jones and Mr. Coxe, for the plaintiff,^a and by the Attorney General and Mr. Key, for the defendant.^b

Feb. 10th.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This case depends on the validity of a deed executed by Richard H. Fitzhugh on the 31st of December, 1319, purporting to convey to the defendant, for the use of certain enumerated creditors, his slaves, goods, and debts, which deed

^a They cited 6 Harris & Johns. Rep. 234. Hamilton v. Russell, 1 Cranch's Rep. 310. Hildreth v. Sands, 2 Johns. Ch. Cas. 35. Edwards v. Harlin, 2 Term Rep. 587.

^b They cited Marbury v. Brooks, 7 Wheat. Rep. 556. Wheaton v. Sexton 4 Wheat. Rep. 503. Astor v. Wells, 4 Wheat. Rep. 466. Sands v. Hildreth, 14 Johns. Rep. 493 was recorded in the record book for the county in which the parties resided, on the 3d of January, 1820. Immediately after executing this deed, the said Fitzhugh absconded; and on the 10th of February thereafter, the plaintiff sued out an attachment to attach his effects in the hands of the said Marbury. The garnishee denies that he has any effects of the said Fitzhugh in his hands which can be affected by the attachment, the same not being sufficient to satisfy the creditors enumerated in the deed which has been mentioned. The plaintiff contests the validity of that deed. The jury found a verdict in favour of its validity, upon which the Circuit Court rendered a judgment against the plaintiff, which he has brought before this Court by a writ of error. In the course of the trial, exceptions were taken by the counsel for the plaintiff to some opinions given by the Court, and to its refusal to give others for which they applied. The correctness of the opinions given, and of the refusal of those not given, will now be considered.

On the trial, the garnishee offered to read from the record books of the county, the memorial of the deed which has been mentioned, to which the plaintiff objected, and insisted that the original ought to be produced. The Court overruled this objection, and the copy was read. To this opinion of the Court the plaintiff's counsel excepted; and he now insists, that there is no law of the State of Maryland which directs a deed of the description of that of which a copy was read in this case, to be recorded; and that, if there were such a law, still the original ought to be produced, if within the power of the party claiming under it.

The act of 1729, ch. 8. enacts, 'that from and after the end of this session of Assembly, no goods or chattels whereof the vendor, mortgagor, or donor, shall remain in possession, shall pass, alter, or change, or any property thereof be transferred to any purchaser, unless the same be by writing, and acknowledged before one provincial Justice of the county where such seller, mortgagor, or donor, shall reside, and be within twenty days recorded in the records of the same county.'

The counsel for the plaintiff insists, that this law directs the recording of those deeds only which convey property of which the donor remains in possession, and that the possession in this case must be supposed to have passed with the deed, unless the contrary be shown.

This objection is not without its weight. It, however, does not appear to have been suggested at the trial, and probably did not occur to the Court or the parties at the time, or it might have been shown that in point of fact the possession was not immediately changed. Since, however, the admission of the evidence was not made to depend on the circumstance of possession, this objection cannot be overlooked.

It has been, also, contended by the plaintiff, that if possession did not accompany and follow the deed, it is void as to creditors under the authority of the case of Hamilton v. Russel, (1 Cranch's Rep. 310.) On this point, it may be proper to observe, that in Hamilton v. Russel, the deed purported to convey the property to the vendee for his own immediate use, and the subsequent continued possession of the vendor was incompatible with the instrument. This is a deed of trust, not for the benefit of the person to whom it is made, but for the benefit of certain enumerated creditors. The continuance of the possession with the donor until the trust can be executed, may not be so incompatible with the deed as to render it absolutely void under all circumstances. The Court does not mean to express any opinion on this point, farther than to say, that it is not supposed to be decided in Hamilton v. Russel.

Should the act of 1729 be considered as applying to this case, the question would then arise, whether the copy of a deed be admissible where the original is in the power of the party offering the copy. This would be contrary to the great principle, that the best evidence which the nature of the case admits of ought to be required. But, it has been said, in answer to this objection, that the Courts of Maryland have so decided. This Court will certainly respect the decisions made in the State; but we are not satisfied that the principle is settled. In the case cited from 6 Harris & Johnson, 234. the question arose on the conclusiveness, not on the admissibility, of the evidence. The suit was on an administrator's bond, and Mr. McGruder said, in argument, that the law requires such a suit to be brought on a copy of the bond. Of course, such copy must be admissible. It is true, that in deciding against its conclusiveness, the Court said, generally, that a copy is prima facie evidence in all cases where the law directs an instrument of writing to be recorded. This is the assertion of a general principle, not the construction of a particular act, and we understand that the Courts of Maryland have not adhered uniformly to the principle thus laid down. There is some contrariety of opinion on this point; but the majority of the Court conceives that the copy should not have been read, without showing that the original was not in the power of the party.

Although the judgment of the Circuit Court must be reversed for error in admitting improper testimony, yet, as the record presents other points which must again arise, and which have been fully argued, this Court will proceed to indicate its opinion on those points.

The deed having been admitted, its validity came on to be discussed.

Richard H. Fitzhugh had made notes to a very considerable amount, and had forged the names of endorsers thereon; after which, he had discounted them in the banks of Georgetown, and of this city. The proceeds of the deed were to be applied, in the first instance, to the payment of these forged notes; after which, the residue was for the benefit of the creditors generally. It is understood that there is no residue; and that if the deed be valid, the debts due to the favoured creditors will be paid to the exclusion of all others; if it be invalid, the whole proceeds must be paid to the attaching creditors in the order in which they stand, to the exclusion of those for whose benefit the deed was made, and of those attaching creditors also for whom nothing shall remain after satisfying prior attachments. It is, then, a mere question of legal preference, unmixed with any equitable considerations whatever.

It is contended by the plaintiff, that the deed is void, because the consideration is illegal, it being given for the purpose of suppressing a prosecution for a felony.

The testimony in the cause was abundantly sufficient to justify the jury in drawing the inferences, that the deed was executed by Fitzhugh in the hope that payment of the forged notes would enable him to escape a prosecution; and that the same hope was entertained by Marbury. It is not doubted, that had there been any previous communication with the banks which led to this hope, or any evidence that the prosecution was not instituted in consequence of the notes being paid, or that their payment was to depend on a forbearance to prosecute, the deed would have been against the policy of the law, and utterly void. But, the evidence stated in the case, and the opinions which were given, as well as those which were refused by the Court, present the question whether assuming the entire innocence of the favoured creditors, the deed to Marbury is annulled by any hope which might have lurked in the bosoms of both the grantor and grantee, that the payment of the notes it was intended to secure, might save Fitzhugh from a prosecution.

This case has once already been before this Court, on a writ of error to a judgment of the same Circuit Court, made in favour of the attaching creditor, which judgment was reversed.^c But, although the facts were the same, the opinions on which the case depended were essentially different from those which are now to be considered. The case wears a new aspect in many respects, and stands on principles which are not absolutely the same. Although any point already determined, will not be changed lightly or inconsiderately, yet, we think, that the decision in the former case does not positively determine this.

The first exception is to an opinion given on the prayer of the defendant. The Court instructed the jury, 'that if they believed, from the evidence, that Richard H. Fitzhugh executed the deed in question, and William Marbury accepted the same, without the concurrence or knowledge of the banks mentioned in the deed; and that the said banks assented to the same without any engagement, express or implied, to suppress or forbear the prosecution of the said Fitzhugh, then the plaintiff...