Stephen Cocke Commercial Bank of Columbus v. Joseph Halsey

• Decision Date: 01 January 1842
• Citation: 16 Pet. 71,41 U.S. 71,10 L.Ed. 891
• Parties: STEPHEN COCKE, for the use of the COMMERCIAL BANK OF COLUMBUS, Mississippi, Plaintiff in error, v. JOSEPH A. HALSEY and others, Defendants in error
• Court: U.S. Supreme Court

41 U.S. 71

16 Pet. 71

10 L.Ed. 891

STEPHEN COCKE, for the use of the COMMERCIAL BANK OF

COLUMBUS, Mississippi, Plaintiff in error,

v. JOSEPH A. HALSEY and others, Defendants in error.

January Term, 1842

ERROR to the Circuit Court for the Southern District of Mississippi. On the 24th March 1838, James Carter & Company executed a deed of trust to William L. Moore, for the purpose of securing the payment of certain sums of money to the Commercial Bank of Columbus; by which they conveyed, among other things certain slaves, then in Lowndes county, Mississippi, in trust to sell the said property for the benefit of the bank in Columbus. This deed was presented for record to the officer of the clerk of the court of probate for Lowndes county, on the 24th day of March 1838, the day on which it was executed; and was indorsed, 'Received in my office for record, on the 24th day of March 1838, William P. Puller, clerk pro tem.' And it was afterwards certified to have been recorded on the same day, under his hand and seal, by William P. Puller, clerk pro tem.

At the time this record and certificate were made by William P. Puller, as clerk pro tempore, one Robert D. Haden was the clerk of probate for the county of Lowndes, duly elected, qualified and sworn. Haden was duly elected in November 1837, for two years, and entered upon the discharge of his duties some time in the month of February 1839. Haden visited the state of Tennessee on business, and did not return in time to perform the duties of clerk at the March term 1839. In consequence of his absence, Thomas Sampson, Esquire, judge of probates, upon the opening of the court of probate, at March term 1839, appointed William P. Puller to act as clerk pro tempore during the absence of Haden. This deed was recorded by Puller, during the absence of Haden, but after the March term of the court of probate, not while the said court was in session. Haden afterwards returned and resumed the duties of his office. The above-described property was, by the trustee, left in the possession of James Carter & Company.

At the May term 1838 of this court, judgment in the above-entitled case was obtained against the said James Carter & Company. Execution was issued upon this judgment, and was levied on the assigned negroes, in the possession of James Carter & Company. Upon the levy being made, the trustee came forward and claimed this property, and gave the necessary bond; and the issue was now before the court to try the right to the said salves. If the deed of trust was properly and legally recorded, then it was admitted, that the judgment in the above case was no lien upon said slaves, and that the trustee would be entitled to the same; otherwise, if the deed was not duly and legally recorded, the slaves were subject to the satisfaction of the said judgment.

The court adjudged, that the trust-deed was not duly and legally recorded; and that the said acts and proceedings of the said William P. Puller, as clerk pro tempore, in the recording of the said trust-deed, was without authority of law, and was altogether void; and so instructed the jury. To this opinion, the plaintiff excepted, and the jury having found a verdict according to the opinion of the court, the plaintiff prosecuted this writ of error to the judgment of the circuit court on the verdict.

The case was submitted to the court, on a printed argument, by Cocke, for the plaintiff; and was argued at the bar, by Key, for the defendant.

Cocke, in his argument, said:—The question involved in this case is, whether the deed of trust mentioned in the record, was properly recorded. This is to be determined, mainly, by the local laws of Mississippi. There are, nevertheless, some elementary principles involved.

The statute and constitutional law of Mississippi, which is supposed to bear upon this subject most directly, may be found as hereafter pointed out. By the act of 13th June 1822, deeds of conveyance were required to be recorded by the clerk of the county court of the proper county. Alden's Revision of the Laws of Mississippi, 297, § 1. This, by the same section, is declared to be in the county in which the land is situated. By § 4, p. 298, deeds in relation to personal property shall be recorded in that county in which such personal property shall remain. Same page, § 5, provides, that deeds of trust and mortgages shall take effect from the time they are delivered to the clerk to be recorded, and then only; but other deeds shall take effect from the time they were sealed and delivered, if recorded within three months: §§ 6-10 prescribe more in detail the duties of the clerk. By the act of the 28th June 1822, Alden's Revision, p. 183, § 7, this language is used: 'During the vacancy in the office of clerk of a county court, and during the unavoidable absence of the principal clerk and his deputies, if any he have, the court, in term time, or the presiding justice thereof, in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform the duties of a clerk, and during his continuance in office shall be entitled to all the fees thereof.' By the act of the 16th of February 1828, Alden's Revision, p. 194, the judge of probate of the county and the justices of the county court then in commission, constitute the court denominated the county and probate court; and the latter part of the same section provides, that the clerk of the county court then in office should be clerk of said court.

Thus the law on this subject stood, until the year 1833, when the revised constitution of Mississippi was adopted. At p. 39, Alden's Revision, will be found the revised constitution. § 4, title 'Schedule,' provides, that 'all laws then in force in this state, not repugnant to this constitution, shall continue to operate until they shall expire by their own limitation, or be altered or repealed by the legislature.' By art. 4 of the constitution (Judicial Department), § 19, Alden's Revision, p. 34, 'the clerk of the high court of errors and appeals shall be appointed by said court for the term of four years; and clerks of the circuit, probate and other inferior courts, shall be elected by the qualified electors of the respective counties, and shall hold their offices for the term of two years.'

By art. 5 of the revised constitution (Executive Department), § 13, Alden's Revision, p. 34, 'all vacancies not provided for in this constitution, shall be filled in such manner as the legislature may prescribe.' By the act of the 2d of March 1833, Alden's Revision, p. 198, § 70, 'all vacancies, either in the office of judge or clerk of the said court, shall be filled by election, at the several precincts of the county, to be held at such time as the board of county police may prescribe, and on such public notice as may be provided for by law.' By the same act of the second of March 1833, Alden's Revision, p. 199, § 73, it is provided, 'that in case the clerk shall be at any time unable, from sickness or unavoidable causes, to attend said court, it shall be lawful for the judge of probates to appoint a clerk, to act as clerk pro tempore, who shall take an oath faithfully to discharge all the duties of his office, and for services rendered by the said clerk he shall be entitled to the fees allowed by law to the clerk of said court.'

For the purpose of reversing the opinion of the circuit court, Mr. Cocke, for the plaintiff in error, contended: 1. That the deed of trust was properly recorded. 2. That the appointment of William P. Puller 'clerk pro tempore,' was in conformity with the laws of Mississippi, and valid. 3. That the regularity of his appointment could not be collaterally inquired into. 4. That it was competent for the probate court to make the appointment. 5. That as Puller was clerk de facto, by appointment, acting under color of office, his acts were valid as respects the rights of third persons and the community; whether he was clerk de jure or not. 6. That it is not competent for the federal tribunals to declare a state law, regulating her local and municipal police, void or otherwise unconstitutional; unless in conformity with the decisions of state tribunals, when the constitution of the United States is in no manner contravened. 7. That Puller's right to discharge the duties of clerk continued during the absence of Haden, and until Haden took the office, and resumed the duties of it.

To ascertain the intention of the legislature, laws on analogous subjects may be safely referred to. If this is allowable, we will find a similar provision in reference to the clerks of the circuit courts. Thus (Alden's Revision, p. 118, § 13), that 'during the vacancy of the office of clerk in any circuit court of law, and during the unavoidable absence of the principal clerk and his deputies, if any he have, the judge thereof, either in term-time, or in vacation, may appoint a clerk pro tempore, who, after taking the necessary oath of office, shall be authorized to perform the duties of a clerk, and, during his continuance in office, shall be entitled to all the fees thereof.' So, if, from any cause, there be a just exception to the sheriff, the coroner may act; or, if the cause extends to the coroner, then a justice of the peace may perform the duty. Alden's Revision, p. 334, § 15.

In the case before us, the agreement shows, that Haden, the clerk elected, was absent in the state of Tennessee. It is true, there was no vacancy. Haden was the incumbent elect and consequently, there could be no election under the law. His absence was, however, about to create a kind of interregnum in the discharge of the duties of clerk. To prevent this, the statute above cited appropriately interposed itself, and provided a clerk pro tempore. The power of the judge of probate to do this is the question. It is contended——

1. That the appointment of William P. Puller, clerk pro tem. of the probate court of...