Cocke Ex Rel. Commercial Bank of Columbus v. Halsey

delivered the opinion of the Court.

This cause comes before this Court upon a writ of error to the Circuit Court, of the United States, for the southern district of Mississippi.

The statement of the. case upon which the questions presented here for decision arise, is, as agreed by the parties upon .the record, substantially the following:

On the 24th of March, in the year 1838, James.Carter and Lewis Grigsby, merchants, executed a deed of trust to one William L. Moore, as trustee, to secure the payment of certain sums of money to the Commercial Bank of Columbus. This deed was regularly acknowledged by the grantois/before a justice of the peace, on the' 29th of March, 1839, and delivered to one William P. Puller, who had been appointed clerk pro tempore of the Probate Court of the. county of Lowndes; in said state, and who recorded the deed in the office of the clerk of probate for said, county, and endorsed thereon a certificate of record, signed Wil *82 bam P. Puller, clerk, pro tempore.. That at the time this record and. certificate were made by Puller, as clerk pro tempore, One Robert Haden was the clerk of probate for the county of Lowndes, duly elected, qualified, and sworn: that Haden was elected in November, 1837, for two years, and entered on the discharge of his duties in the month of February, 1838; that .Haden' visited the .state of Tennessee on business, and did not return in time to perform the duties of clerk, at the March term of 1838. In consequence of his absence, the judge, of probate, upon commencing the Court of Probate of the March term .of 1838, appointed Puller,to act as clerk during the absence of Haden. The deed of trust to Moore was recorded by Puller during the absence of Haden,' but after the March term of the Court. Ha-den afterwards returned and resumed the duties of his office.

The original trustee, William L. Moore, having died, the Superior Court of Chancery; of the state , of Mississippi, at the January term; 1839, duly appointed Stephen Cocke, the plaintiff in error, trustee in lieu of. Moore.

.. At the May term of the Circuit Court of the United States for the southern district of Mississippi, the defendants in error-obtained a judgment against James Carter and Company. Execution- was sued out upon this judgment, and levied by the marshal on the property mentioned in the trust-deed, in the possession of Carter and Company. Upon the levy being made, Stephen Cocke, the trustee, claimed the property, gave the. bond required in such cases by the -law of Mississippi; and an issue was duly made to try the right to-the property. Upon the trial of this issue, the following question was submitted to the Court for its opinion thereon, viz.: That if the deed of trust Was properly and legally recorded, then it was admitted that the judgment in question was not a lien upon the property conveyed by the deed, and the. trustee was. entitled to the same; otherwise, if the deed was hot legally recorded, the property was subject tó satisfaction of the judgment. - Upon this question, the Court below adjudged that the trust-deed was not duly recorded; that the acts of Puller, as clerk pro tempore, in recording the deed, were without authority of law and altogether void; and so instructed the jury. To this opinion of the Court, thus given, the plaintiff in error excepted; and brings that opinion before this Court for examination.

*83 The fourth article of the constitution of Mississippi, thirty-first section, declares, that “ the judicial” power of that state shall be vested in one High Court of Errors and Appealsyand such other Courts of Law and Equity as shall be afterwards provided for in that constitution. The same article, after authorizing and ordaining various superior tribunals in which the judicial powers shall be vested, at length, in the eighteenth section, declares, that there shall be established in each county in the state a Court of Probates, the judge whereof shall be elected by the qualified electors of the county, for a period of two years. The nineteenth section of the same article declares, that the clerks of the Circuit, Probate, and other inferior Courts, shall also be elected by the qualified electors of the county, for the period of two years. See Laws of Mississippi, by Howard and Hutchinson, 24, 26.

The legislature of the state, in organizing their judiciary, as it was indispensable they should do, (as the constitution had limited its own action to the direction that'the Courts therein named should be established; leaving their organization and distribution to the legislative authority,) by a s- .iute passed in March, 1833, and by sections 1, 2, and 3, of that statute, established a Court of Probates in each county of the state; provided for the election of judges and clerks of the several Courts; prescribed to them the oath of office they should take, and to the clerks the bonds they should ex mte, before assuming their official functions. Laws of Mississippi, 469.

By the eighth section of the statute, the legislature declared, that in case the clerk of probate “shall be at any time unable from sickness, or other Unavoidable causes, to attend said Court, it shall be lawful for the judge of probate to appoint a person to act as clerk- pro tempore, who shall take an ©ath faithfully to discharge all the duties of his office,” &c.; vide p. 470, Laws of Mississippi. By the fifth section of the same statute, vacancies in the offices of judge and clerk are to' be filled as the original appointments were made; viz., by election.

By. the fifth section of another statute of Mississippi, concerning real estate and conveyances, passed June 13, 1822, it is declared, that deeds of trust and mortgages shall be valid as to subsequent purchasers for valuable consideration without notice, and as to all creditors, .from the time when such deeds of trust or *84 mortgages shall have, been acknowledged, proved, or certified, and delivered to the clerk of the proper Court to be recorded, and from that time only. From this provision the question of priority arises.

In support of the decision of the Circuit Court, it has been insisted that the' power of the judge of the Probate- Court to appoint a clerk of probate pro tempore, is limited 'to the term of the Court, and to the exigences and necessities of the term; and dops not extend'to a period beyond the term, nor to any acts performed by the person so appointed out of Court.

From this position, claimed by counsel as a legitimate deduction from the statute, it is argued that the clerk, having been appointed by an exercise of power wholly illegal and void, nay, even without colour of authority, his acts, too, must be merely voi,d, and nof entitled to the effects properly-attributable to the acts of one who may be considered as an officer de facto', in contradistinction to him whose commission and qualification are in all respects regular, and who therefore may be called an officer de jure and de facto.

In reasoning -from the language of the statute, it would seem difficult to perceive any thing in it which limits .the appointment pro tempore, to the session of the Court. The expression in the law is, from sickness or unavoidable causes;” now, it is quite as probable that these causes would operate beyond, as well- as during the continuation of the Coun. The only fair inference deducible from the words of the law is%that the causes requiring an appointment, should, like the appointment itself, be temporary; so that the provision of the statute should not' be perverted to cover a permanent disqualification of the regular clerk, and thereby prevent his removal or the election of a successor, under proper circumstances. The precise duration of that temporary cause, it could hardly have been the intention of the lawmakers to define. To ascribe to them an intention to restrict the duties - of a clerk pro'tempore to the session of the. Court, would be imput-ing to them an act of utterly useless legislation; since none can fail to perceive, on looking into the law, that the duties of the clerk of probate are as extensive and as important, during vacation, as they are during term-time; if, indeed, they are not more so.

Several authorities have been cited in argument, some from *85 the English and some from the American cases, in order to, show that the recording,of the trust-deed in, question by .the clérkof probate 'cannot be supported even as the act of the clerk de facto. These authorities, however, do not establish the position they have been brought to maintain; and‘in some, instances, they operate directly against it, The first case relied on (and it is a leading case) is that of he King v. Lisle, Andrews, 163, 174. This was a quo warranto to remove a burgess of Christ Church, on the ground that he had been nominated by one Goldwire, calling himself mayor of the corporation, when he had never been appointed mayor. The Court say, the nomination by Gold-wife could not be supported, because he was not even by any colourable title or pretext mayor of the corporation; evidently putting hfi act on the same footing with an attenapt at usurpation by any other private person There is a remark by the Court in delivering its opinion, which is regarded as not without its .bearing, upon the present caseand that remark is this, “that supposing Goldwire was mayor.de facto, yet the acts here found fo be performed by him are not good ; because they were not necessary for the preservation of the corporation.’? In these cases the Court say, “the proper distinction is-between such acts as are necessary and for the good of the body, which comprehend judicial and ministerial acts, and such as are arbitrary and volun-. tary.” The second case from the English books is that of Knight and Wife v. The Corporation of Wells, 1 Lutwyche, 509, 519. This was an action of debt .against the corporation, upon their -bond to the wife of the plaintiff; and the objection taken to the recovery wás, that the person who put the corporate seal to the bond, was not qualified by the charter to be mayor. He had been elected to the office of mayor, however. .The case seems to have been much considered, for it was twice argued; and it was resolved by all the Court, that .although- the mayor might not be qualified according to the chapter, yet he-had been elected, and, in virtue of his election¿ was mayor de facto, and that therefore all judicial and ministerial acts performed by him were good.

The cases of the People v. Collins, 7 Johns. 549, and of McKinstry v. Turner, 9 Johns. 135, are in strictest accordance with the authority from Lutwyche. In the. People Collins, the *86 Court say, in- speaking of the poweiS exercised by the officers whose acts were impeachéd;’“ They were commissioners de facto, since they came into office by colour of title; and it is a well settled principle of law, that the acts of such persons are valid when they concern the public, or third- persons who have an interest in the acts done; and this riile is adopted to prevent the failure of public justice. Thedimitation of this rule is as to such acts as-are arbitrary and voluntary, and do not affect the public utility. The doctrine on this subject is to be found at large in the ease of The King v. Lisle, Andrews, 263.” So, too, in 15 Mass. 173, Bucknam v. Ruggles, this matter is very fully -treated. The Court say that, although the officer did not comply with the .requisites' of the constitution, yet, having, been appointed, and thus having; colour of title, his acts are valid in respect to third persons who may be interested in such acts: that such a rule' is necessary to prevent a failure of justice. Besides, the. officer’s title to his .office ought not to be determined in a collateral way. In ádditión to other authorities to this point, is quoted 3 Cru. Dig. tit. Officer, sec. 71, 75, for the principle that, by- the test and corporation acts in England, all persons are disabled in law to all intents and purposes to hold certain offices, unless they take the oaths required; yet, notwithstanding this disabling clause, it has been held, that the acts of officers not qualified by those statutes may be .valid as to strangers. The case of Williams et al. v. Peyton’s Lessee, cited for the.plaintiff in error, from 4 Wheat. 77, is thought to have no application to the question now under consideration; ajl that was ruled in that case was this, that where a title depends upon the acts of a ministerial officer to be performed in pais, proof of the performance of those acts is necessary to sustain such title,.: a principle' which none perhaps will dispute; but, whether affirmed or denied, cannot apply to the present case. So, too, the case of Davidson and another v. Gill, cited from 1 East, 64, having been ruled exclusively Upon a provision of the statute 13 Geo. 3, c. 78, requiring that certain proceedings of justices, should, in relation to closing and opening ways, in order to give them validity, appear on the face of those proceedings, in á prescribed schedule or form set forth in the statute; is considered as wholly inapplicable.

If then the appointment and the acts of the clerk of probate *87 depended for their validity upon the principles'which apply to the acts of officers de facto, a just interpretation of the authorities adduced inbehalf of the plaintiff in error, gives validity to both. That the judge had power to appoint a clerk pro tempore, seems never to have been questioned; that he did appoint is equally indisputable the irregularity alleged is in the failure to limit the apr pointment to the term of the Court. Admit, for the present, that the appointment should have been thus limited, and .that the clerk has admitted the deed to probate after the term; yet, in his character of clerk, was he not within the very definition of the authorities, and within the concessions of the counsel, clerk de facto, acting colore officii; .and must not his acts therefore be valid so far as regards third persons who are interested in them? An affirmative answer to this inquiry is unavoidable.

But the appointment of this officer, and his acts when so appointed, rest upon a foundation still broader arid firiner than that which sustains the actings of an officer de facto. By the law of Mississippi, the judge had the power to appoint, pro- tempere, whenever from sickness or unavoidable causes the clerk could not attend.

By the investiture of that power, it remained with the judge, in the exercise of judicial discretion, to decide upon the propriety and necessity for the execution of the power: .he did decide upon them; and he-must be presumed to have decided properly.

The correct legal principle applicable to such proceedings is this: That in every instance in which a tribunal has decided upon a matter within its regular jurisdiction, its decision must be presumed proper, and is binding until it shall be regularly reversed by a superior authority; and cannot be affected, nor the rights of persons, dependent upon it be impaired,-by any collateral proceeding. This principle has been too long settled to admit of ■doubt at this day, and"has been repeatedly and expressly recognised in this Court, as in the cases of Thompson v. Tolmie and others, 2 Peters, 157; The United States v. Arredondo, 6 Peters, 720; Voorhees v. The Bank of the United States, 10 Peters, 473, and The Philadelphia and Trenton Rail Road Company v. Stimpson, 14 Peters, 458. It cannot then be permitted, in this collateral ' inquiry, to insist that the judge has either misapprehended or transcended his authority: he has exercised the discretion vested *88 in him by the statute; that discretion has led him to the conclusion, that the necessity for an appointment was coextensive with the absence of the ordinary clerk, an absence deemed by him unavoidable; and the discretion of the judge pro hac vice, at any rate must be conclusive. But beyond these legal presumptions, this Court, upon a review of the constitution and statute of Mississippi, are satisfied that the appointment of the clerk of probate pro tempore, was fully warranted in the manner and to the extent in which it was made. They therefore decide that the decision of the Circuit Court for the Southern District of Mississippi is erroneous, and accordingly do revérse the same.

This cause came on to be heard .on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by Counsel. On consideration whereof, It is now here ordered and adjudged by this Court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs'; and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions for further proceedings to be had therein, in conformity to this opinion, and according to law and justice..