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U.S. Supreme Court

Lessee of Livingston v. Moore, 32 U.S. 7 Pet. 469 469 (1833)

Lessee of Livingston v. Moore

32 U.S. (7 Pet.) 469


The titles to lands under the acts of the Legislature of the State of Pennsylvania providing for the sale of the landed estate of John Nicholson in satisfaction of the liens the state held on those lands, and the proceedings under the same, are valid.

These acts, and the proceedings under them, do not contravene the provisions of the Constitution of the United States in any manner whatsoever.

The words used in the Constitution of Pennsylvania in declaring the extent of the powers of its legislature are sufficiently comprehensive to embrace the powers exercised over the estate of John Nicholson.

In the circuit court, the plaintiffs in error instituted an ejectment for a tract of land in the County of Franklin in the State of Pennsylvania. They showed title to the land, as the heirs of John Nicholson, who was seized of the same at the time of his death under a warrant, survey, and return of survey and payment of the purchase money to the state.

The title of the defendants was regularly derived from a sale of the lands of John Nicholson made under authority of the State of Pennsylvania towards satisfying the lien claimed by the state for the debts due by John Nicholson arising from his defalcation as the comptroller general of the state. The constitutionality and validity of that lien were denied by the plaintiffs.

On 13 April, 1782, John Nicholson was, by an act of the Legislature of Pennsylvania, appointed comptroller general of the state and was entrusted with large powers for the collection of the debts due to the state, the settlement of public accounts, and the management of the funds of the state. Mr. Nicholson acted as comptroller for twelve years, during which time he was impeached, tried, and acquitted. He afterwards, on 19 April, 1794, resigned the office.

By accounts stated, on 19 November, 1796, large

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balances were found to be due by Mr. Nicholson to the State of Pennsylvania. On an account, No. 1, headed, "Dr., John Nicholson, account in continental certificates with the State of Pennsylvania, Cr.," the balance was $51,209.22, and on another account, No. 2, headed "Dr., John Nicholson, account, three percent stock, in account with the State of Pennsylvania, Cr.," the balance was stated to be $63,731.06. The original accounts were given in evidence on the trial in the circuit court, and also counterparts of them, signed by the respective officers, upon which were endorsements, one in the handwriting of Mr. Nicholson, the other in that of his counsel, in a suit instituted against him for the recovery of the debts due to the state.

A suit was commenced in the Supreme Court of Pennsylvania by the state against John Nicholson, to September term, 1793, for the loss sustained by the state on certain certificates which it was alleged he had improperly subscribed, and a verdict was obtained against him on 18 December, 1795, for �42,08l 8s. 10d. No execution was ever issued on this judgment.

To September term, 1795, another suit was instituted by the State of Pennsylvania against John Nicholson, being an action of trover for certain continental certificates and funded stock of the United States. Judgment was entered in this suit on 20 March, 1797, on the following agreement, signed by the attorney general of the state and by the counsel for the defendant.

"21 March, 1797: By agreement filed, the judgment is for the sum of $100,390.89, rating the stock as follows, six percent at sixteen shillings and nine pence in the pound; three percent at ten shillings; militia certificates at fifty percent; and that, in the setoff, the defendant be allowed three months to point out any errors to the satisfaction of the comptroller and register-general, such errors to be deducted from the sum for which

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judgment shall be entered. Certificates and receipts to be credited also with the charges of the funded debt. Errors against the commonwealth, if any, also to be corrected. The sum for which judgment is now entered, to be altered by the subsequent calculation of the comptroller general alone. Supreme court costs taxed at $35.35."

Executions were issued on the judgment in the year 1798, and afterwards, in 1803, to many counties in the state, and proceedings to condemn the lands of the defendant took place. Between 8 March, 1796, when the first settlement of the accounts of John Nicholson was made, and 21 March, 1797, when the state judgment was entered, many judgments were obtained by the private creditors of Mr. Nicholson which remained unsatisfied on the records. On some of these judgments executions were issued and levies made on the real estate of the defendant prior to the executions levied by the state on the same lands. Mr. Nicholson was arrested under executions by private creditors, and died in prison in December, 1800. His heirs were then minors, and they all left the state prior to 1804.

The Legislature of Pennsylvania passed, at different periods, laws for the settlement of accounts and the collection of debts due to the state. By an act passed on 18 February, 1785, it was provided

"That the settlement of any public account by the comptroller, and confirmation thereof by the supreme executive council, whereby any balance of sum of money shall be found due from any person to the commonwealth shall be deemed and adjudged to be a lien on all the real estate of such person throughout this state in the same manner as if judgment had been given in favor of the commonwealth against such person for such debt in the supreme court, and if, after an appeal from the said settlement of accounts by or award of the said comptroller general and confirmation thereof by the supreme executive council, the said settlement shall be confirmed, the said supreme court shall award interest thereon from the date of the confirmation of the said settlement of account by the supreme executive council, and costs to be paid by the

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By the sixth section of this act, if the governor is dissatisfied with a settlement or of opinion that a legal discussion will tend to the furtherance of justice, he may direct a suit, which shall be proceeded in as in other civil actions. By an act passed 1 April, 1790, the office of register general having been created, all accounts were first to be settled by him, and afterwards examined by the comptroller general, and then transmitted to the executive council for its approbation. And by the fifth section, all settlements under this act shall have the same force and effect and be subject to the same appeal as those made formerly by the comptroller general. After the passage of these acts, the constitution of the state was changed and the executive power was vested in a governor instead of the executive council. On 14 January, 1791, an act was passed by which all duties directed to be done by the president and executive council shall be done by the governor. This act was limited to the end of the session.

On 13 April, 1791, the Act of 1 April, 1790, was continued to the end of the then session, but with a proviso that in all cases where accounts examined and settled by the comptroller and register or either of them have heretofore been referred to the executive authority, to be by it approved and allowed or rejected, the same shall only in future be referred to the governor when the comptroller and register shall differ in opinion; but in all cases where they agree, only the balances due on each account shall be certified by the said comptroller and register to the governor, who shall thereupon proceed in like manner as if the said accounts had been referred to him according to the former laws on the subject, and provided always that in all cases when the party or parties shall not be satisfied with the settlement of the accounts by the comptroller and register, or when there shall be reason to suppose that justice has not been done to the commonwealth, the governor may and shall, in like manner and upon the same conditions as heretofore, allow appeals or cause suits to be instituted, as the case may require. By the Act of 28 March, 1792, this law was continued until the end of the next session. By two other acts it is continued to the end of the session of 1793-1794.

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An act was passed 22 April, 1794, reciting that under the old constitution, acts were passed vesting powers in the executive council or president, and that it was expedient such powers should be vested in the governor, which enacts

"That in all cases where, by the laws of the commonwealth, the supreme executive council, or the president or vice-president thereof, is mentioned as having power and authority to carry the same into effect, the governor for the time being shall be deemed and taken to be in the place and stead of the same supreme executive council, or the president or the vice-president thereof, and shall have and exercise all the powers in them, or any or either of them, vested, unless such powers have been and are by law vested in some other officer or officers, person or persons, or shall be inconsistent with the provisions contained in the existing constitution of the commonwealth. By this act, all accounts are in the first instance to be submitted to the register, who shall adjust and send them to the comptroller, who, if he approve the settlement, shall return the same to the register. But if he disapprove and they cannot agree, shall transmit the same to the governor, who shall decide, provided that in all cases where the parties shall be dissatisfied with the settlement of their accounts, an appeal shall be allowed."

On 31 March, 1806, an act was passed by the Legislature of Pennsylvania entitled "an act for the more speedy and effectual collection of certain debts due to this commonwealth." The following is a summary of the first ten sections of that act.

Sec. 1. Commissioners appointed with powers to procure copies of deeds and other writings relating to the real estate of John Nicholson.

Sec. 2. The commissioners to receive, on application, copies of all necessary papers, from the land officers, without fees.

Sec. 3. To ascertain as near as may be the quality and extent of the estate of John Nicholson in each county, subject to the lien of the commonwealth.

Sec. 4. To average the demand of the commonwealth on the several estates subject to the lien and make report to the governor, who shall cause the same to be sold, &c., on the payment of the sum assessed on any particular estate by any person claiming an interest therein, the commissioners empowered to convey to such persons the estate or lien thereon.

Sec. 5. Where the commissioners shall

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be authorized to compromise with individuals or the managers of land companies.

Sec. 6. In what cases the commissioners may purchase in the property for the use of the state.

4th, 5th and 6th sections repealed and supplied.

Sec. 7. Commissioners to take oath or affirmation for the faithful discharge of their duties.

Sec. 8. Their compensation.

Sec. 9. Empowered to recover, by due course of law, books and papers, &c.

Sec. 10. Commissioners of the several counties prohibited from selling any of the lands of John Nicholson for taxes.

Sec. 11. And be it further enacted that in any case where the said John Nicholson, in his lifetime, had or held lands in partnership or in common with any other person or persons, the said commissioners, or a majority of them, are hereby authorized to cause partition to be made of the said land, by writ of otherwise, in order to ascertain the respective interests of the said part-owners, as well as the separate interest of the said John Nicholson, and if it shall be necessary to make said partition by writ, in case of disagreement between the parties, the said commissioners or a majority of them, shall be made parties to such writ, either plaintiffs or defendants, and such partition, so made, shall be as available in law as if the same had been made by the said John Nicholson in his lifetime, and the costs thereof shall be paid equally by the parties, as in other cases, and the said commissioners shall be allowed for their part of such costs in the settlement of their accounts.

Further legislating on this subject, on 19 March, 1807, an act was passed entitled "A supplement to an act, entitled An act for the more speedy and effectual collection of certain debts due to this commonwealth.'"

"Sec. 1. Be it enacted that the commissioners appointed under the act to which this is a supplement shall make report of their proceedings to the governor, who, on approbation thereof, shall issue one or more process to the said commissioners, commanding them or a majority of them to sell such lands or interest in lands, as the said commissioners may specify in their report as the property of the late J. Nicholson, and in all cases of sales to be

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made by the commissioners, or a majority of them, at least twenty days' notice shall be given of the time and place of sale, by advertisement in the newspaper printed in the county where the lands respectively lie, if any be there printed, and if not in the newspaper printed nearest to such county, and also in two papers printed in the city of Philadelphia, provided that nothing contained in this section shall operate to abridge the powers of compromise vested in the said commissioners by the fourth section of this act."

"Sec. 2. In all cases of sales under this act, the purchaser or purchasers shall pay the amount of the purchase money into the state treasury, and the payment of no part of the purchase money shall be deferred for a longer time than four years, and whenever any part shall be deferred for any length of time within that period, which is hereby referred to the discretion of the commissioners or a majority of them, immediately superintending any sale, such deferred payments shall carry interest from the time of the sale and shall be secured by bonds given by the purchaser or purchasers, with surety approved by the commissioners or a majority of them as aforesaid, payable to the treasurer of the commonwealth and delivered to the said commissioners or a majority of them at the time of sale, and the said commissioners or a majority of them shall, on the receipt of the bonds aforesaid, deliver to every purchaser a certificate of the property sold to him, the time and place of sale, and the bonds received, and shall also deliver into the hands of the treasurer, within two months from the time of sale, all bonds received for or on account of such sales, and within the same time make a particular return into the office of the secretary of the commonwealth, to the process of the governor, of the quantity of land sold, the situation thereof, the price at which it was sold, and how paid or secured, which said process and return shall be carefully registered and filed by the said secretary, who is hereby required, upon the application of any purchaser or purchasers or any person on his or their behalf, on production of the certificate aforesaid and the treasurer's receipt for the consideration of the purchase, to make and execute a deed or deeds to the purchaser or purchasers for the property sold to him or them as and for such estate as the said John Nicholson had or held the same at the

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time of the commencement of the liens of the commonwealth against the estate of the said John Nicholson, which said conveyances, or copies of the records thereof, shall be prima facie evidence of the grantee's title, provided that the respective bodies or tracts of land sold under this act shall be subject to the payment of the purchase money thereof."

"Sec. 3. The said commissioners or a majority of them are hereby authorized and empowered to expose any body of lands late the property of the said John Nicholson, late deceased, which are subject to the lien of the commonwealth to sale under and by virtue of the process to be issued by the governor as aforesaid, either in gross or by separate tracts as to them or a majority of them may appear most advisable."

"Sec. 4. The said commissioners or a majority of them shall have full power to settle, by compromise or otherwise, with any person or persons who in any manner may allege title to any of the lands late the property of the aforesaid John Nicholson, deceased, on such terms as to them may appear most eligible, and their proceedings therein shall be final and conclusive on the commonwealth, and upon any compromise made with any person or persons, the said commissioners or a majority of them, at the request of the party and upon his or their paying the consideration money into the state treasury or securing the payment of the same may and shall execute and deliver an assignment under their hands and seals of so much of the liens of this commonwealth against the estate of the late John Nicholson as may be equivalent to the consideration paid or secured to be paid as aforesaid by such party, and from the date of such assignment, the whole amount thereof shall be principal, bearing legal interest, and the holder or holders of such assignments, or his or their assigns may at any time proceed upon the liens of this commonwealth to sell the lands which may constitute the subject of such compromise."

"Sec. 5. If the commissioners, or a majority of them, should be of opinion that it would be more to the advantage of the commonwealth to purchase any of the property to be offered to sale under this act for the use of the commonwealth than to suffer the same to be sold for a sum less than the estimated value thereof, they or a majority of them are hereby empowered so to do, and in this as in cases of sales to individuals, the

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commissioners are enjoined to make a special return into the office of the secretary, who shall, as in other cases, register the return, which shall vest in the commonwealth all the title to the property so purchased, which the said John Nicholson had therein, at the date of the commonwealth's liens, and the lands so purchased shall be disposed of in such manner as shall hereafter be directed by law, provided that no purchase, either directly or indirectly, shall be made in behalf of the commissioners aforesaid in their own right, nor shall any of the property of John Nicholson be vested in them otherwise than as in trust for the commonwealth. The succeeding sections have no application to the questions in this case."

The court charged the jury:

"1. That the accounts between John Nicholson and the commonwealth or some of them were so settled and adjusted that the balances or sums of money thereby found due to the commonwealth were good and valid liens on all the real estate of John Nicholson throughout the State of Pennsylvania."

"2. That the judgments rendered by the supreme court of the state in favor of the commonwealth against John Nicholson also constituted good and valid liens upon all his real estate throughout the state. That the several acts of the General Assembly of Pennsylvania, passed on 31 March, 1806, and on 19 March, 1807, are not repugnant to nor in violation of the Constitution of the United States or of Pennsylvania, but that they are good and valid laws and a rightful exercise of the powers of the Legislature of Pennsylvania; that the whole law of the case is therefore in favor of the defendants."

The defendants were purchasers of the land for which this suit was instituted under the provisions of these laws.

The case was tried in October, 1828, and a verdict and judgment under the charge of the court were rendered for the defendants. The plaintiffs excepted to the charge of the court

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on the points stated at large in the arguments, and in the opinion of the court. Exceptions were also taken during the trial to the ruling of the court in matters of evidence, which also sufficiently appear in the arguments of counsel and the opinion of this Court.

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