The Hawaiian gazette., 1872-02-21

In the absence of apparent fraud or mistake
haps the safer doctrine to hold concerning
judgments of Courts of general jurisdiction is,
that the recital in the record of facts giving
jurisdiction is conclusive, aud even that in the
silence of the record, the existence of those
facts will conclusiyely be presumed. But what
ever be the sound doctrine on this very unsettled
point of law, it can not conclusiyely be presumed
that party was ameuable to the jurisdiction Of
the Court when not only does the record fail to
show or aver that he was brought before the
Court by personal or substituted notice, but does
show an apparent failure of authority in the basis
of the entire proceedings. When an allegation
is made that there was fraud on the absentee
whose rights were thus apparently adjudcated, a
person may show il be can that the apparent
fraud was real, without impeaching the validity or
conclusiveness of the judgment within the mean
ing of the above rule, for, as Lord Coke says.
fraud is something which INITIATES the most
solemn judicial proceedings, ecclesiastical or tenn
poral." But it must be clear and apparent
case of fraud See Patch vs. Ward Eng Oh.
App, 206, Qs67)
In permitting the complainant to offer his evil
dence, the doctrine is not impugned that in order
to obtain reversal of the decree for foreclosure,
he must alfirmatively make out case of wilful
fraud, or mistake, in which do not enter his own
acts or failure to act in duly ascertaining the con-
duct Of his agent the condition of his property,
or his cupable failure to obtain notice of what a
reasonably prudent man should have known, and
also that he has received no benefit from his
agents acts, nor implicitly ratified them by silence
after they were brought to his notice. These are
matters for consideration after the testimony on
both sides shall have been presented, (3)
a. In Burlingame VS.. Hobbs, 10 Gray S62, there
was demurrer for nonj joinder oftbe plaintiffs bro
ther, for whose benefit the plaintiff had mortgaged
certain land, but the Court over-rued the demurrer
on the ground that the person sought to be made q
party "has no interest whatever in the subject
matter ofthe present suit However it is determined
he will neither gain nor lose"
In Earle VS.. Bckford, Allen, $50, the Court say
The general doctrine is that the grantee who takes
such deed (quit clam,) can not recover back the
consideration money in case Of failure of title"
And so in Earle VS.. De Witt, Ib 6S4, (Merrick, j.,
dssenting,) where there was mutual mistake as to
the title Kent admits that the law does not seem
to be clearly and precisely settled on this point
where there is no ingredient of fraud, but regards
it as the sounder doctrine which RENTS a party to
his express covenants, and gives him no right to
recover the purchase money on quit claim deed in
such cases. 2 Kents Comm, AL. That purchaser
is bound to inquire into defects in power of at
torney under which a mortgage is made, and that
there is no implied covenant of title in quit claim,
see also Rawle's Covenants of Titles, PIP. 40 473
ct paSsi1i, and Washburn's Real Prop, Title of I'm
piled Covenant; also Brush VS.. Ware, Is Pet, los.
(2) In Brush VS.. Ware, 10 Pet, l05 the defendant
held under United States Land Patent the Court
there, Mclean, j., say: "The question which should
first be considered is whether the Court can 90 be-
hind the Patent and examine the Equity in the
Bill" The Patent in this case was based on Land
Warrant assigned to the Patentee by an unauthor-
lied party being the executor Of the will of the party
to whom the Warrant was issued. The Court held
that they could look into the Equity of the title,
and that it was "not an unreasonable duty TO i'm
pose on the purchaser to examine both the Warrant
and the will, and to see what powers it conferred
rant by an executor was enough to put prudent
man on the inquiry for defects in title before pur
chasing So in Folks Lessee VS.. Wendal, Cr., 90,
the Court, Marshall, c. j., say, of Land Patent by
the State OF North Carolina: "But there are cases
in which grant is absolutely void, as where the
State has title to the thing granted" SO in Bod
ley VS.. Taylor, Cr., 19l, and in Miller Kerr,
Wheeler l, the Court held that legal title in land
conld not be made to yield to equity founded in
the mistake of ministerial officer" in issuing
land warrant So in Bouldin VS. Massie's Heirs, To-,
147; Hoofnagle vs.. Anderson, h., 212; City of New
Orleans VS.. Armas, Pet, 237.
The People vs.. Livingston, s Bart, 277, Pr Cir:
"If letters patent are absolutely void on their face
or the issuing of them was without authority, or
prohibited by Statute, the State had no title,
the decisions of the Courts very uniformly agree
that they may be impeached collaterally."
In Gladstone VS.. Earl of Sandwich, NJ & G. 1920,
it is said that the cases in which the Kings grant
has been held to be avoided by reason of any mis-
description mistake therein will be found to fall
under one of three classes: l. When the King by
grant has professed to give greater estate than he
had himself in the subject matter of the grant, as in
the case of Alton Woods, Il Coke 4S). 2 Where
the King has already granted the same estate to an
other, in which case the second grant would work
injustice, at all event great Inconvenience Such
was the case of Alcock vs. Cook Is Bing 346,) or g.
When the King has been deceived in the eonsdera-
ton expressed in the grant, as where the consdera
tion has been antruy stated, the subject Of the
grant has been recited to be of less value than it
really is, or where as in the case of Mead vs. South
well, e Roll Abr. 1897 the King recltes former
grant of an Office for life and surrender and then
grants the Office to J. s, whereas in truth the
King has rot granted the office for life or the Office
has not been surrendered. Here the grant would be
void because there was no such consideration as was
rected.
(3) In sibley vs. Waffle, 16 n. Y 100, an Admins
trators sale ofland made by order ofthe Court
but the order was made without any jurisdiction
der the Statute and was held to be void, the Court
saying that judge "could not acquire Jurisdiction
by deciding that he had it''
In Elliott VS.. Pisrsol, Peters $50, the Court say
that if Court "act without authority, its judg-
ments and orders are regarded as utilities They |
constitute no Justification"
Corwithe VS.. Grifing, 81 Barb. Is: If the defect |
Of Jurisdiction is apparent IN the record the udg-
nent may be inquired into by Court of Equity.
Woodcock vs. Bennett, 1 Cow. 795; Pr Cur:
q But there is a marked distinction between judg- 4
nents reversed from error and executions set aside
or rreguarty In the latter case the party is new
excused if the irregulary be such as renders the
process void. One case is the fault Of the party
himself, the other is considered the error Of the
Court"
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