# Bigler v. Waller (81 U.S. 297)

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United States Supreme Court
81 U.S. 297
Bigler v. Waller
APPEAL from the Circuit Court for the District of Virginia; the case being thus:
On the 2d April, 1853, Waller, of Virginia, made an agreement in writing with one Bigler, of New York, to sell to him for $30,000 an estate on the York River, Virginia, consisting of about 2400 acres, to be paid for in successive annual payments through a term of ten years. The agreement contained this covenant:
'Said Waller will allow said Bigler to sell such portion of the land as he may see fit, from time to time; the said Bigler paying over to said Waller such proceeds of sales as will afford ample security for the liquidation of the residue of the debt.'
On the 10th of May, 1853, Bigler paid $5000 of the purchase-money, gave his bond for the balance, $25,000, took a deed of the property, and at the same time took possession of the estate. On the 22d day of June following, he made a deed of trust or mortgage to one Saunders (like Waller, of Virginia) to secure the payment of the bond. This deed provided for the sale of the estate in default of payment according to the terms of the bond; but it provided also that in case of sale the trustee shall give sixty days' notice in newspapers in Richmond and in the city of New York. There was nothing said in either the deed of May 10th to Bigler, nor in the deed of trust to Saunders to secure the purchasemoney, of the covenant contained in the agreement of April 2d about Waller's allowing Bigler to sell any portions of the estate.
Bigler having taken possession, as already said, made improvements; wharves, mills, a hotel, store, church, schoolhouse, &c., and laid out a village. In the autumn of 1853 and spring of 1854 he had offers for portions of the estate (village lots), its most central and valuable part, and applied to Waller to release the mortgage lien; a matter which, in consequence of the opinion expressed by some persons whom he consulted, that the security might be impaired, Waller refused to do. Releases, however, of other and more considerable parts, situated less centrally, were given on the price of them being paid over.
Bigler fulfilled his agreement about annual payments until May 10th, 1861, at which date there remained $13,000 unpaid on the bond, of the original purchase-money. Subsequently to this, the war having now broke out, and Bigler having remained in the North, the rebel army, then in that part of Virginia, took possession of this estate; and about the 1st of March, 1862, Waller caused a sale of the estate to be made at public auction on the premises; the sale being in professed execution of the deed of trust and for nonpayment of the debt due on the purchase; but no notice of any kind having been in newspapers of either Richmond or New York. Waller bought it in himself for $17,000, and took a deed thereof from the trustee, Saunders, cancelled the bond ($13,000), and gave his notes for the balance of the $17,000 purchase-money. While the rebel army was in possession of the estate a certain Drake, one of its officers, burned two mills and a valuable wharf, and greatly injured the houses and orchards. This destruction occurred a month after Waller's purchase; but Waller was not attached in any way to the rebel Army of the Peninsula, was away at this particular time, and was not shown to have counselled or approved, or even known of what was done. Whether Waller went into actual possession, or whether he had ever been on the estate after the sale, or whether he ever received any of its rents or issues or profits, did not appear, and he denied that he ever was in such possession or ever had received any profits. But it appeared that he had settled with the Confederate government for the waste committed by them while they were in possession thereof, which damage amounted to more than thirty thousand dollars.
Though he sometimes spoke of himself as owner, he frequently declared that he held only to protect the property from seizure and confiscation, as Bigler's, a Northern man's, by the Confederate government; and that when the war closed he should offer the property again to Bigler; he paying the purchase-money.
On the suppression of the rebellion Bigler went to Virginia and resumed possession of his property. He saw its devastated condition and learned of the sale that had been made in professed execution of the trust. On the other hand Waller came North and sued Bigler in one of the New York courts for the balance, $13,000, which was due to him on the outbreak of the rebellion.
Hereupon Bigler filed a bill in equity in the court below. It set out the admitted history of the case as already given; that is to say, the agreement of April 2, 1853, for the sale of the land, the subsequent sale on the 10th of May, the execution of the deed of trust, the possession taken by the complainant, the improvements made, the abandonment of possession in 1861, and its resumption in 1865. It charged that the complainant made contracts for the sale of portions of the land, and tendered to Waller the proceeds of such sales sufficient to afford ample security for the liquidation of the part of the residue of the debt for the purchase-money then due, but that Waller declined to ratify the sales, in disregard of his contract, and greatly to the damage of the complainant; that about September 1, 1861, Waller authorized Saunders, the trustee, to sell the lands, and that a sale was then made to Waller himself, but without such publication as was required by the deed of trust; that out of the proceeds of sale the trustee satisfied the complainant's obligation, and failed to pay over the balance; that Waller then took possession, both of the land and of the personal property thereon, and applied the proceeds of the personalty to the payment of the complainant's debt; that he received large sums for rents of the real estate, and also received compensation from the Confederate authorities for the destruction of the property. The bill further charged the pendency of the suit in New York, and that Saunders, the trustee, was proceeding again to sell the property without advertising the sale sixty days in newspapers of the city of New York, as required by the deed of trust. It averred also that Waller was insolvent, that he and Saunders would confederate to cheat the complainant in the sale, and that if the sale should be made, the complainant would be unable to recover from Waller what was due to him, or to avail himself in the courts of Virginia of his just rights. The relief prayed was that Saunders, the trustee, might be enjoined against selling the land, and Waller against assigning his interest in the complainant's obligation, until the determination of the action in the State court of New York, or until the matter was referred to a master to take an account of the rents and sales made by him, and an inquiry of the damage done by Waller to the complainant's property; that whatever should be found due the complainant might be decreed to be paid him, and all his proper offsets be allowed. The bill also contained a prayer that all deeds and papers in the defendant's possession concerning the sales be decreed to be delivered up, and concluded with a prayer for general relief.
The answer of Waller denied that he was ever in possession after the deed of trust was made, denied that he sold or appropriated any of the personal property thereon, that he received any of the rents, issues, and profits, or that he committed waste, or induced the Confederate forces to do so.
The suit in New York having been discontinued, and the bill coming on to be heard in the court below on the pleadings and proofs, that court directed a master to state an account between the parties of what was due to Waller on the bond and of the offsets in the nature of waste, rent, and damages due from Waller to Bigler, and to make any recommendations. The master found $13,000 with interest, to be unpaid on the bond; $43,000 with interest, to be due from Waller to Bigler on account of damage, waste, and rent, and concluded with showing a balance of $26,186 due from Waller to Bigler, for which judgment should be entered in favor of Bigler. The report recommended that the bond be cancelled, and that Waller and Sannders execute a release deed to Bigler of all claims to the land.
During the pendency of the suit (it should be added) Waller died and the bill was revived against his administrator. Saunders also died, and a new trustee, Henry Coalter Cabell, was appointed, with his powers, in his place.
On a final hearing the Circuit Court, overruling the master's report, decided that Waller was not liable for the waste done to the premises, nor entitled to interest on the bond during the war; nor bound to pay damages for not releasing; that Bigler was liable for the amount of the bond, payable in coin, and entitled to recover $151.88 (this sum being $2000 Confederate money reduced to the specie equivalent), damages received by Waller of the rebel authorities, for the injury done the estate.
From this decree (which of course assumed that the foreclosure in 1862 was a nullity) Bigler appealed.
Messrs. E. L. Fancher and J. K. Hayward, for the appellants:
The court below proceeded on the assumption that Waller's foreclosure in 1862 was a nullity and that the property is now Bigler's. But this is an error. The estate does not belong to Bigler, but belongs to Waller under the foreclosure. Hence the bond has been satisfied by the sale under the trust, and there is even a considerable sum of the purchase-money under the foreclosure still due Bigler, for which Waller is liable.
But if the court will compel Bigler to retake title to the property, then what was Waller's relation to the estate during the interregnum, and what are his responsibilities, if any, growing out of that relation? It cannot be said that Waller's actual relation to the property was not sufficiently intimate to warrant his being said to be in actual possession. He regularly bought it, paid for it, and took a deed thereof. Possession follows the title. In fact he exercised all the acts of dominion over the property possible under the then condition of that portion of the country. Waller could have maintained ouster, eviction, adverse possession, and disseisin, as against Bigler, from April, 1862. The doctrine of the Federal courts as to what will constitute actual adverse possession is thus stated in Smith's Leading Cases, and cases there cited; especially in Robertson v. Norris.
'It may with safety be said that where acts of ownership have been done upon land which, from their nature, indicate a notorious claim of property in it, & c., such acts are evidence of an ouster of a former owner, and an actual adverse possession against him, if the jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held; and the continued claim of property has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and would not exercise over property he did not claim.'
If the plaintiff is compelled to retake the estate he should have releases from Waller's heirs; for if Bigler pays the bond he is entitled to have a clean record from Waller. Only Waller's heirs-at-law can make this reconveyance, and they were not made parties at the time the administrator was let in to defend.
Finally, in any view, since the reversal in the legal tender cases of Hepburn v. Griswold, the decree directing the payment in coin must be reversed.
Mr. Conway Robinson, contra.
Mr. Justice STRONG delivered the opinion of the court.

## Notes

* ↑ Vol. 2, p. 641, 643, m. 566, sixth Am. ed.
* ↑ 5 Jurist, N. S. 1238.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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