Baker v. Whiting

STORY, Circuit Justice.

The petition in this case involved some novelty, as well as some nicety, as to the practice of courts of equity, in regard to the rehearing of a cause, and the introduction of new evidence after the cause has been argued, and an interlocutory degree has been pronounced, but before a final decree has been entered; and on that account we were desirous to take a little time to consider it, before we delivered our judgment.

It is plain, that a rehearing alone, without the introduction of the new evidence, would be utterly useless, since (as the learned counsel admit) they could not hope to change the opinion of the court upon the actual posture of the facts, originally in the cause. The main scope of the argument has, therefore, been addressed to the consideration of the new evidence. And it seems to us, that if it would have furnished a sufficient ground for a bill of review, or a supplemental bill in the nature of a bill of review, if a final decree had been pronounced, then it is competent for the court, in the present stage of the cause, to order a rehearing, and to direct the new evidence to be taken and brought before the court at the rehearing, as a part of the proofs in the cause. In this way complete justice may be done between the parties. But to compel the petitioner to wait until a final decree, and then to apply for a bill of review, or a .bill in the nature of a bill of review, would not only occasion great delay, but also great expense.to the parties, which ought, if practicable, to be avoided. The only other mode, by which the new matter can be brought before the court, is by a supplemental bill; but this course does not seem to us absolutely indispensable in a case, exactly circumstanced, as this is. See Story, Eq. Pl. §§ 337, 393, 890, and the authorities there cited; Gilb. Forum Rom. 49; Patterson v. Slaughter, 1 Amb. 292, 293. Indeed, the objection in this form has not been made at the bar; and the argument has proceeded upon the implied understanding, that, if the new evidence be admissible at all, the parties are content, that it should be received at the rehearing as more convenient, as well as less dilatory to them, than a more formal proceeding. In Standish v. Radley, 2 Atk. 177, Lord Hardwicke, upon a petition of the defendant, directed a rehearing of the original decree (it not being enrolled), and allowed the defendant to file a supplemental bill to bring before the court, at the rehearing, proof of certain releases, not before in issue, or known until after the decree. In Norris v. Le Neve, 3 Atk. 26, 32, 33, a petition for a rehearing, and to bring a bill in the nature of a bill of review, where the original decree had been made upon a bill and cross bill, was preferred before Lord Hardwicke by the defendant, partly upon new proofs, which were not before known, and partly upon new matters, which were not before in issue, after an interlocutory decree, and before the final decree. Lord Hardwicke was of opinion, that all the matters were sufficiently before the court upon the original hearing, upon the allegations in the original bill and cross bill, in the cause; and, therefore, that the defendants did not need a bill of review to bring the equity fully before the court. He also thought, that the new proofs offered were not new discoveries; and, therefore, he denied the petitioner. In Earl of Portsmouth v. Lord Effingham, 1 Ves. Sr. 430, upon the petition of the defendant, Lord Hard-wicke allowed a bill of review to be brought upon new matter discovered since the decree, going to the title originally in issue. See Patterson v. Slaughter, 1 Amb. 293. In Attorney General v. Turner, 2 Amb. 587, the same great judge allowed a rehearing and a supplemental bill upon matters not before in issue, and newly discovered, upon the petition of the defendant. These seem all to have been cases, where a final decree had been pronounced by the court. But in Barrington v. O’Brien, 2 Ball & B. 140, and Blake v. Foster, Id.'457, Lord Manners allowed a rehearing, and a supplemental bill to be filed by the defendants upon newly discovered facts, after an interlocutory decree. The doctrine of these cases was fully recognized by Mr. Chancellor Kent, in Wiser v. Blachly, 2 Johns. Ch. 488, and Livingston v. Hubbs, 3 Johns. Ch. 124, and by the circuit court in Rhode Island in Dexter v. Arnold, [Case No. 3,856.] It is dear, therefore that the defendant would be entitled to relief by a rehearing, upon fifing a supplemental bill, under the direction of the court, stating the new evidence, if it be of such a nature, and under such circumstances, as that he might have relief apon a bill of review, or a bill in the nature of a bill of review; but not otherwise. The rule, I take to be clear, that such a rehearing, and such a supplemental bill, will be granted only, when the party could entitle himself to relief upon a bill of review, or a supplemental bill, in the nature of a bill of review, after a final decree.

The questions then properly before the court are, first, whether the defendant, Whiting, had knowledge, or could, by reasonable inquiry and diligence, have acquired knowledge of the facts stated in Cooper’s deposition, (for the other affidavits are merely explanatory, and of little consequence without that,) before the publication of the evidence, or before the hearing, which was a year afterwards, so that he might have availed himself of it before the decree. If he had such knowledge, or could by reasonable inquiry and diligence have obtained it, then it is clear upon the authorities, that he is not now entitled to any relief. The cases before cited, as well as Young v. Keighly, 16 Yes. 348, and Partridge v. Usborne, 5 Russ. 195, are directly in point. See, also, Story, Eq. PI. § 414, and cases there cited. Secondly, whether, supposing the former point to be ■decided in favor of the defendant, Whiting, the evidence of Cooper is of such stringency and force, and relevancy, as that it justly might, and ought to entitle him to a reversal of the decree, by overcoming the former evidence in the cause, as well as the receipts, now produced by the plaintiffs from Whiting, by one of which he acknowledges himself to have received in April, 1816, from Jacob. Tidd, $26.91 for his proportion of taxes on township No. 12, (the land in controversy,) for 1814 and 1815; and by the ■other to have received from Samuel Stimp-son, in October, 1817, the sum of $5.57 in full of taxes on the same township for 1816 and 1817, which receipts certainly point very distinctly to an agency in the land by Whiting for those, under whom the plaintiffs •claim title.

As to the first point. The great object of the new evidence is to establish, that Cooper was, in fact, the agent of Stimpson & Tidd, and Tidd’s heirs, as to their interest in the township No. 12; and thus to repel the allegations of the bill, that Whiting was their agent, and to support his answer, denying such agency; and further, to show, that, upon notice from Cooper in 1821 of the sale •of the lands for taxes, Stimpson declined to redeem the same; and thereby to raise a presumption, that Tidd, or Tidd’s heirs, had knowledge of the sale, and acquiesced in the same manner without intending to redeem. The presumption certainly applies with no force to Tidd, who was at that time dead, or to Tidd’s heirs; for his heirs were all at that time under age, and incapable of waiving or affecting their own rights in the lands.

Upon the actual posture of the evidence, it

seems difficult to assert, that Whiting had not full knowledge, before the cause was at issue, that Cooper was the agent of Stimpson & Tidd, and other non-resident proprietors. Whiting in his affidavit admits, that he knew, that Cooper was agent for several nonresident proprietors of the township, at least from 1816 or 1817 up to the time of the sale, he himself having become a proprietor, under a levy in execution, of a large interest in the same township, as early as 1813.. But he adds, that he did not know, that Cooper was the agent in special (without explaining what he means by these words) of Tidd & Stimp-son, and of the heirs of Tidd, as Cooper has stated in his affidavit, for their land? in the township. Now, this last allegation must be received with the qualification, which Whiting has in another part of his affidavit referred to, viz. that he (Whiting) was informed by Baker (the plaintiff), in 1835, that Cooper had been formerly the agent for nonresident proprietors in certain townships generally, and among them he believes Baker mentioned, of Stimpson & Tidd, for Township No. 12. Now, this must have been nearly or quite three years before the publication of the testimony, and four years before the hearing of the cause, at May term, 1839. It is difficult, under such circumstances, to resist the conclusion, that Whiting was thus put upon inquiry and the exercise of diligence, as to the agency of Cooper; for, if Cooper was, at the time of the sale, and for years before, the known and active agent of Stimpson & Tidd, it would be most important evidence to repel the presumption, that he was himself also their agent.

What strengthens this conclusion, and, indeed, establishes it almost beyond controversy, is the fact, stated by Whiting in he same affidavit, that at the time, when his counsel was preparing his answer to the bill, he mentioned the circumstance of Cooper’s agency to the counsel; but he was then informed, that it was not material, who was the agent of Stimpson & Tidd, if he (Whiting) was not. Certainly, as matter to be put into the answer, it was not material; but as matter of evidence to disprove Whiting’s own agency, it was and must have been very material. That at the moment, when the answer was drawing, it did not strike the counsel with its true force, does not reflect any discredit upon his judgment, because that was not the stage in the proceedings, in which it was required to be weighed and considered. But when the evidence was largely gone into, at a subsequent period, to establish the agency of Whiting, in support of the allegations of the bill, if Whiting had used even ordinary diligence in bringing it to the view of counsel, it is scarcely credible, that it should have then been passed by with indifference. It went to the very pith of the controversy.

But, then, it is said, that Whiting was misled by the language of his counsel; and that he ought not to be made a sufferer therefor. But, I apprehend, that no court of equity has ever felt itself at liberty to grant an application of this sort upon the suggestion of an error 0f judgment, or a mistake of law by counsel, as to the pertinency or force of evidence to be used in a cause. In Norris v. Le Neve, 3 Atk. 36, speaking of new discoveries, which would entitle a party to a bill of review, it is sáid; “If they (the facts) were known to the parties’ counsel, or to their attorney and solicitor, or agents, it is sufficient to rebut such an application, or there would be no end of suits. How many parties are there, that know not the merits of their own cause; but rely on the skill of their counsel or solicitor; and therefore, what counsel or solicitors know, must be allowed to be the knowledge of the parties.” And, certainly, it would not do to allow clients to have a rehearing or review of a cause, simply because their counsel have not fully appreciated the merits of their cause, or even have overlooked the importance of certain points of evidence, and therefore have omitted to have it taken for the cause. I am very far from imputing to the learned counsel in this cause the slightest blame. What I wish to state is merely the general rule, which cannot be broken in upon without manifest danger to the interests of all the adverse parties in controverted suits; and it will certainly not do to lay down a new rule for this cause only.

There is another consideration, arising upon Whiting’s affidavit. He states, that his acquaintance with the business and concerns of the township, commenced about 1816 or 1817; and he adds; “I then understood, that said Cooper was the agent of a considerable number of the proprietors of said township, and I supposed the major part of them. General Cooper gave numerous permits, on behalf of those proprietors, for whom he acted, without objection from me; and he knew and made no objection to those, which I granted, which was done with his consent.” Now, this declaration clearly shows, that Whiting was well acquainted with Cooper’s agency for many of the proprietors, as early as 1816 or 1817; and there is no pretence to say, that, being apprized of that fact, he was not put upon inquiry, as to the particular persons, for whom Cooper was agent, as soon as the present bill was brought. It was most natural, that he should actually have made such inquiry; and if he had, Cooper would at once have informed him, that he was the agent of Stimp-son & Tidd, as well as of other persons. The very circumstance, that Cooper was the known agent of a large number of the proprietors, whose names were not known to Whiting, ought to have awakened in him a spirit of diligence. There was a still more impressive fact, to which I shall more particularly allude hereafter, which ought to have led him to make the inquiry; and that is, that he and Cooper, in managing the affairs of the township, mutually advised and acted in concert. “Neither of us (says Whiting) intended, as I believe, to exceed our respective rights, or those, for which we acted, or to exercise them in such a maimer as to interfere with each other. I acted with his advice and consent on the part of those, for whom he acted as agent, in giving permission to Baymond & How .to erect a saw-mill at the Orange Kips.” Now, if Whiting himself was not the agent of Stimpson & Tidd in acts like this, which affected intimately the interests of all the proprietors, it would seem an almost irresistible conclusion, that he deemed the interests of Stimpson & Tidd to be represented by Cooper. It is not a little remarkable, also, that in this very paper, signed by Whiting, and giving the permission to Baymond & How, Whiting states himself expressly to be “the agent of the said township” (No. 12); thus, in effect, assuming to act as the representative of the proprietors.

And, here, it may be as well to dispose of that part of Whiting’s petition, which complains of surprise, if not of fraud, in the introduction of that paper, as a part of Kay-mond’s testimony. We think the complaint utterly groundless. That paper was properly introduced under the interrogatory addressed to Baymond for the production of all papers relative to permits to cut timber; and the counter paper, now offered by Whiting to explain the transaction, is in exact coincidence with the conclusion, deducible from the very language and objects, professed on the face of the former. And, if Whiting thought otherwise, after publication of the testimony, for one whole year before the hearing, he might have applied to have had it suppressed, or for leave of the court to introduce the counter paper at the hearing. See Whitelocke v. Baker, 13 Ves. 511. He did no such thing; and his present complaint must be deemed a mere afterthought, upon feeling the full pressure of the evidence at the argument.

But let us see, what is the new evidence relied upon of Cooper, and how far it establishes an exclusive agency in him foi Stimpson & Tidd. Cooper, in his deposition, in answer to the first interrogatory, says; “That he acted as agent for John Peck, Esq., the principal owner in township No. 12, by verbal and written request, and by power of attorney, from 1794 to 1813 or 1814; and for Samuel Parkman, Thomas L. Winthrop, George and Thomas Odióme, and Messrs. Jacob Tidd and Samuel Stimpson, who held under said Peck, by their verbal and written request, up to and including 1820. I was authorized to take a general supervision of their respective interests in said land.” In answer to the second, he says; “That from about 1816, the general concerns of the township No. 12 were managed by Timothy Whiting (the defendant), who became the largest owner in 1813, and, considering me as the agent for the non-resident proprietors, above named, consulted me on all measures proposed for the general benefit. But no special communication with said Jacob Tidd or Samuel Stimpson, or any other of the above named proprietors or their heirs, was either made or received, other than before mentioned, as in my first answer; and no particular power was given or accounts settled, except that of the general agency of said township, unless where the proprietors redeemed their lands, and had them set off in severalty.” In answer to other interrogatories, he says, that Whiting, to his knowledge, never assumed to be the agent of Tidd or Stimp-son, or either of the before named non-residents; or to the best of his remembrance, ever undertook to act on account of any other than himself, and in his own right, except with his advice, given as agent of the said non-resident proprietors. That he considered himself as acting for the non-resident proprietors generally; and, as Whiting managed the general concerns of the township, he occasionally informed him (Cooper), as agent for the non-resident proprietors, of his proceedings, that he might make the necessary communications to them. That he (Cooper) paid the taxes of the non-resident proprietors of the township No. 12, until 1820. That he never had any written power, or authority to act as agent for Tidd & Stimpson, in relation to township No. 12; but so acted by their verbal request. That he had a special power in 1803, from them to act in their behalf, under the direction of John Peck, for township No. 11. That he had no letters from Tidd & Stimpson to himself, and no copies of any letters to them. That he considered his agency for Tidd and Stimpson at an end, when they neglected or refused to redeem their land. That in the winter of 1821, and the fall following, he was in Boston, and had personal interviews with Stimpson respecting his and Tidd’s land in the township No. 12; and Stimpson utterly refused to redeem, and gave him to understand, that Tidd’s heirs also refused to redeem, stating as a reason, that the land was not worth redeeming; that in the winter of 1821, Tidd was too sick to be seen, and that in the fall he had deceased.

This is the substance of Cooper’s testimony. And the first remark, which is called for, is, that it is merely' cumulative to the issue made in the original pleadings, that of the agency of Whiting, and is supposed, by affirming the agency of Cooper, to negative that of Whiting. We shall presently see, how far that conclusion is justified. Now, it seems to be a general rule, perhaps not strictly a universal ride, in proceedings of this sort, not to allow a rehearing and a supplemental bill upon new discovered evidence, which is merely cumulative to the litigated facts already in issue. ■ Such was the opinion of Mr. Chancellor Kent, in Livingston v. Hubbs, 3 Johns. Ch. 124, and it was in some measure recognized in Dexter v. Arnold, [Case No. 3,856.] But waiving this consideration, another remark, which strikes the mind upon the first blush of the deposition, is, that it distinctly and unequivocally shows, that as early as 1816, and from thence upwards, Whiting had the most thorough knowledge of Cooper’s agency for the non-resident proprietors, that he advised with him in all the concerns of the township, and acted under his advice in all measures, which respected the general interests of the proprietors^ Cooper expressly asserts, that from about 1816, the general concerns of the township were managed by Whiting, with his advice and consent, as agent of the non-resident proprietors; and among these were Stimpson & Tidd. So that, in fact, according to this very aspect of the case, Whiting was a sub-agent, as to the whole affairs of the township for those proprietors, and acted as such up to the very time of the sale. Now, a sub-agent is just as much disqualified, as an agent is, to make a purchase in opposition to the rights and interest of his principal.

But it is said, that Whiting did not, in fact, know, that Stimpson & Tidd were nonresident proprietors, for whom Cooper was “in special” an agent. Be it so. But how does that help the matter? He had the means of knowing, if he chose to inquire; and he undertook to act under Cooper for all for whom Cooper was agent. Nay, it appears to me, that Cooper’s testimony justifies the court in saying, that Whiting understood, that Cooper acted as agent for all the proprietors, except those, for whom Whiting undertook to act, as agent, in managing the general concerns of the township. It is not even shown, that there were any other proprietors of the township, except Whiting and those for whom Cooper purported to act. There are some twenty receipts and permits between 1816 and 1821, in which Whiting acted and signed “for the proprietors,” or authorized acts to be done, affecting the interests of all the proprietors, such as the cutting of logs on the township, besides the Orange Rip contract, where he describes himself “as agent of the township.” Besides; it is perfectly clear from the receipts now offered as new evidence, that Whiting positively knew, that Stimpson & Tidd were nonresident proprietors; and he actually received from them the taxes on their lands in the township, in 1816 and 1817. Now, at that time, he either acted as their direct agent, or as their sub-agent under Cooper in the payment of these taxes; and therefore, in either view, there is difficulty in presuming, that he did not know, whether Cooper was acting “in special” for them or not.

But the other part of the conclusion attempted to be drawn from Cooper’s testimony, that he was the exclusive agent, is also incumbered with many difficulties. Cooper may have been an agent of Stimpson & Tidd, and not exclusively their agent. We have seen, that in the receipts and permits already referred to, Whiting acted as agent for the proprietors generally, and not for a part thereof. He nowhere signs, as sub-agent under Cooper. The receipts given by Whiting to Stimpson & Tidd, for the taxes in 1814, 1815, 1816, and 1817, profess no such sub-agency; but are apparently acts done by a primary agent. If Cooper means to affirm, that he always paid the taxes during his agency, until 1820, for Stimpson & Tidd, these receipts seem to contradict that suggestion. And it is not a little remarkable, that Cooper produces not a scrip of paper of any sort, touching his agency for Stimpson & Tidd, during its whole existence. No letters, no written receipts, no written charges, no written payments are produced. Every thing rests in general oral statements, after the lapse of more than twenty years.

But what presses upon my mind with peculiar force, is this, that from the written documents it is clear, that Whiting during the period assumed to act for the proprietors generally. Can he now be permitted, in order to justify himself in the sale for taxes, to disclaim that agency, and set up an adverse interest? If he can, ought the evidence to be admitted, unless it is perfectly clear, and fortified by written proofs, not dependent upon the frail memory of man? How can such a disclaimer consist with the language of the above receipts for the taxes of 1814, 1815, 1816, and 1817?

These last remarks are properly applicable to the second question, whether the evidence, if admitted, is of such stringency and force and relevancy, as justly to call for a reversal of the decree. To say the least of it, I entertain the most serious doubts upon that point. The most that the evidence properly establishes is, that Cooper acted as the agent of Stimpson & Tidd (not as an exclusive agent) by verbal authority; and Whiting may also have acted in the general concerns of the township for Stimpson & Tidd, by a like general authority, especially after he removed to the township, or managed its general concerns. But upon the other question, that Whiting either knew, or might by reasonable diligence have known, the facts, to which Cooper now testifies, as to his agency, there seems to me to be no just ground for doubt. Cooper’s evidence on this point, in no proper sense, comes within the rule for the admission of new discovered evidence, according to the doctrine of courts of equity.

In respect to that part of Cooper’s testimony, which states, that he communicated to Stimpson, in 1821, the tax sale, and he declined to redeem, it is a fact, that is not put in issue in the cause, and therefore, could be brought forward only by a supplemental bill. If it were admitted, it could not affect Tidd’s heirs, but Stimpson only, for the reasons already stated. But there is this additional consideration, that if the cause were to be decided upon this ground, it would be upon the testimony of a single witness speaking to facts after twenty years, and to a confession, incapable, it may be, of being rebutted, after such a lapse of time. Besides; what is very material, is, that it does not appear, that Cooper ever communicated to Stimpson, that Whiting was the purchaser at the tax sale, or to Whiting, that Stimp-son declined to redeem. These would be highly important ingredients if the defence had originally proceeded upon the ground, that Whiting was constructively, or expressly the agent of Stimpson & Tidd, and that they by their long acquiescence in his purchase, had waived the agency and right to redeem. But, if Whiting’s defence, as now made, is to stand, that there never was any agency whatsoever for them, it does not seem practicable to give him the benefit of any such fact.

Upon the whole, our judgment is, that the petition ought not to be granted, and therefore, that the interlocutory decree already pronounced ought to stand.