Gunby v. Cummins

• Decision Date: 31 August 1854
• Docket Number: No. 16.,16.
• Citation: 16 Ga. 102
• Parties: Boston & Gunby, plaintiff in error. vs. Valinda Cummins, claimant, defendant.
• Court: Georgia Supreme Court

16 Ga. 102

Boston & Gunby, plaintiff in error. vs. Valinda Cummins, claimant, defendant.

No. 16.

Supreme Court of the State of Georgia

AUGUST TERM, 1854.

Claim, in Spalding Superior Court.Tried before Judge Starke, May Term, 1854.

This was a case, in which certain fi. fas. in favor of Boston & Gunby, against Francis D. Cummins, had been levied on certain negro property, as the property of Cummins; to which a claim was interposed by said Cummins, as trustee for his wife, Valinda Cummins.

The plaintiffs introduced their fi. fas., proved the levies, and that the property was in possession of defendant.

Claimant introduced a marriage settlement, executed in 1833, between F. D. Cummins, of the one part, Valinda Davis, afterwards Cummins, and Martha Davis, trustee, of the otherparts, by which certain property (proven to include the property now in question) was conveyed to the said Martha Davis, in trust, for the sole and separate use of the said Valinda, then about to be married to Francis D. Cummins.

This instrument was not recorded until June 26, 1852.The fi. fas. levied were on judgments obtained at November Term, 1852, on debts contracted in 1851.It was objected, on the part of the plaintiffs, that this conveyance was void, as against creditors, without notice, by the Act of 30th December, 1847, which provides that all marriage settlements, before that time executed, where the husband resides within the State, should be recorded within twelve months after the passage of the Act, or else be void, as against bona fide creditors, securities or purchasers, without notice.

The Court decided that this Act, in its application to past contracts, is unconstitutional and void; and this decision is alleged as error.

An exception was also filed by the plaintiff, to the refusal of the Court to admit, as testimony, the following extract from a letter of the defendant, F. D. Cummins, to them, dated February 16th, 1851, which was as follows: My property, at present prices is worth $5000, and there is not the scrape of a pen, in any Court, high or low, against me.I have concluded not to buy any more cotton, the market at home and aboard being so unsettled and uncertain.I rest confident you will do the best you can for me.The Jury having found the property not subject, the plaintiffs in fi. fa. excepted to said rulings of the Court.

Alford & Moore; Warner, for plaintiffs in error.

Green; McKinley, for defendant.

By the Court.—Lumpkin, J., delivering the opinion.

The Legislature, in 1847, passed an Act to require marriage settlements to be recorded.

Section I. enacts, "That all marriage agreements or settlements, heretofore executed, either within this or any other Stateor Territory, where the husband resides within the limits of this State, shall be recorded within twelve months after the passage and publication of this Act, in the Clerk\'s office of the Superior Court, in the County of the residence of the husband."

Section II."All marriage agreements or settlements, hereafter, made either in this State or any other State or Territory, where the husband resides in this State, shall be recorded within three months from the execution thereof, in the Clerk's office of the Superior Court of the County of the husband's residence".

Section III."If any such instrument be not recorded within the time prescribed by this Act, the same shall not be of any force or effect, against a bona fide purchaser, without notice or bona fide creditor, without notice, or bona fide surety, without notice, who may purchase or give credit, or become surety, before the actual recording of the same."(Cobb's Digest, 180.)

Is this Act unconstitutional, as applicable to marriage settlements, executed before its pasage?

I need not repeat, here, what has often been declared before by this Court, viz: that Acts of the Legislature are not only presumed to be constitutional, but that the authority of the Courts to declare them void, will never be resorted to, except in a clear and urgent case—one which is directly in the teeth of the Constitution—as if the Legislature were to vest the Executive power in a Standing Committee of the House of Representatives; one which requires no nice critical acumen to decide on its character, but which is as obvious to the comprehension of any person as an axiomatic truth; as, that all the parts are equal to the whole, or that two and two make four.

A judgment of the Court, and even a Statute, may be vacated for fraud.(Fermor's Case, 3 Coke, 77.)Can it be questioned, that but for the Rescinding Act of 1796, the celebrated Yazoo Act of 1795 would have been declared null and void by the Courts?

If the Courts have the power to sit in judgment upon a solemn Act of the Legislature, passed according to the forms prescribed by the Constitution, because the Statute has been procured and perfected through the instrumentality of fraud a fortiori, is the Judicial Department authorized to declare an Act unconstitutional?

Whenever this shall happen, from inadvertence or otherwise, it is manifestly the duty of every Court to protect the rights of the citizen from violation, and to vindicate the Constitution.The unconstitutional Acts of the Legislature, State or Federal, are not laws; and no Court will execute them, having a proper sense of its own obligations and responsibilities.

If the Act in question, then, impairs the force of contracts, or confiscates private, property, or disturbs any vested rights, we ought not to give it effect.But is this its character?

The distinction between ex post facto Laws, and retrospective Laws, is well understood, and has long been acted upon by the Courts of this country.Every ex post facto Law must, necessarily, be retrospective; but every retrospective Law is not an ex post facto Law.The phrase, ex post facto, in the Constitution, extends to criminal and not to civil cases.And under this head, is included—1st.Every law that makes an action done before the passing of the law, and which was innocent, when done, criminal, and punishes such action. 2d.Every law that aggravates a crime or make it greater than it was, when committed. 3d.Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed. 4th.Every law that alters the legal rules of evidence, and receives less or different testimony than the law required, at the time of the commission of the offence, in order to convict the offender.All these, and similar laws, are prohibited by the Constitution.

It is conceded that a law may be ex post facto even, and still not amenable to this constitutional inhibition; that is, provided it mollifies, instead of aggravating the rigor of the Criminal Law.

Mr. Justice Paterson, who was a member of the Convention that framed the Constitution of the United States, in Calder and Wife vs. Bell and Wife, says that he had an ardent desire to have extended the ex post facto provision in the Constitution, to retrospective laws, in general.He considered that there was neither policy nor safety in such laws, and that they neither accorded with sound legislation, nor the fundamental principles of the Social Compact.And Judge Chase, in the same case, remarked, that it was a good general rule, that a law should have no retrospect.

And while I concur with these eminent men, that every retrospective law which seeks to take away or interfere with vested rights, may be unjust and oppressive; still, I hold that there are numerous cases where retrospective laws operate for the benefit of the community.To repudiate them altogether, would be to obliterate a large portion of the Statute Law of this State.

The General Assembly of Georgia have passed Limitation Acts, requiring existing judgments to be enforced within a specified period; they have abolished joint-tenancies; and the Act for this purpose has been construed to apply to estates, where the execution of the deed creating them, was prior to its passage.They have altered the law respecting divorces, and it has been held to extend to cases prosecuted after its enactment, although the facts upon which the divorce should be obtained, were committed before.They have passed laws giving remedies, by attachment and garnishment, against existing corporations: indeed, our Digest abounds with retrospective Statutes, relating to these artificial bodies; requiring them to make periodical returns—imposing certain penalties, should they refuse to redeem their notes in specie, when demanded, &c.; priority of payment has been given to cestui que trusts, in certain cases of insolvency, whether the trust debt was contracted before or after those due to other creditors; thereby, it would seem, infringing the strict rights of the postponed classes.The Statutes exempting certain articles of property belonging to the debtor, from levy and sale, belong to thissame class.These and innumerable other instances might be adduced, to show the sense of our own people upon this subject, namely: that laws which were, in form and in fact, retrospective, have been either adjudged to be constitutional by the Courts, or uniformly acquiesced in; and thus, may be considered as having received the public sanction.

It is admitted, in the argument, and held as settled law, in all the Courts of this country, both State and National, that Registry Acts may be passed, requiring conveyances, already made, to be recorded within a reasonable time; and that an older grantee, failing to perform this duty, will be postponed to a junior grantee, who brings himself within the Statute.

Such has been the settled policy of this State, from 1755 to the present period, as the numerous Acts passed within that time will demonstrate.(SeeCobb's Digest, 159, 162, 171 and 175.)

It is insisted, however, that the principle of this species of legislation, does not apply to a marriage settlement; and that should the Act of 1847 be enforced, in this case, it...