Marquette University Law School

Werner, Edgar V.

English

Service by Publication, an Exparte Proceeding

Anonymous

Marquette Law ReviewVolume 6Issue 2 Volume 6, Issue 2 (1922) Article 2Defenses Against a Holder in Due CourseAnonymousFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationAnonymous, Defenses Against a Holder in Due Course, 6 Marq. L. Rev. 71 (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol6/iss2/2MARQUETTE LAW REVIEWDEFENSES AGAINST A HOLDER IN DUECOURSEHow far can the maker of a negotiable instrument go inattacking its illegality in the hands of a transferee, by reasonof (a) nondelivery, (b) fraud, (c) illegality?The question of the right of a holder in due course of anegotiable instrument which has been stolen is commencing tocome up in trial courts very frequently of late because of twopeculiar circumstances. The activities of a great number of so-called investment courses dealing in commercial paper and tradeacceptances obtaining negotiable instruments by fraud and evenby theft and due to the fact of the so-called "liquor ring"having dealt in paper to cover whisky transactions. The publicand banks in particular, have been flooded with instruments onwhich payment has been refused when presented and to which,on suit being brought, defences ranging from nondelivery toillegality and fraud in the inception have been interposed.Although the precise question of the right to recover on abill or note stolen before delivery is not a novel one, it is sub-mitted by way of apology that on account of the increasing fre-quency of combinations of circumstances such as indicated abovea re-examination and re-statement of the elementary propositionsof law involved in this question might be pertinent at this time.A promissory note is, of course, a chose in. action. It is amercantile chose. At Common Law there was, of course, apolicy against the alienability of choses in action, and choses inaction were divided in (i) parol choses and (2) specialty andmercantile choses. Strictly, at Common Law the mercantile .chosewhich was a sealed instrument had no more particular dignitythan a parol chose but later, by the custom of merchants, itattained a dignity equal to the specialty chose. The history ofthe development of the right to transfer specialty choses andlater on the development of the doctrine of the right to transfermercantile choses, is very interesting and occupies a very promi-nent place in the history of the Common Law. The real reasonfor the doctrine of the inalienability of choses in action was not,in reality, the objection of maintenance but was with referenceto the idea of a debt, "that the credit being the personal rightof the creditor, the debtor, being obliged toward that personcould not by a transfer of the credit which was not an act ofMARQUETTE LAW REVIEWhis, become obliged toward another";' or as Ames expressed it,"A chose in action always presupposes a personal relation be-tween two individuals. But a personal relation in the very natureof things cannot be assigned. Even a relation between a personand a physical thing in his possession as already stated cannotbe transferred. The thing itself may be transferred, and, by con-sent of the parties to such transfer, the relation between thetransferor and the thing may be destroyed and replaced by anew but similar relation between the transferee and the res.But where one has a mere right against another there is nothingthat is capable of being transferred. 2In the time of Coke a specialty chose which evidenced anobligation could be transferred but it was considered that it wasnot the chose that was transferred but merely the paper whichevidenced a chose.3 "It is implied that if a man hath an obliga-tion though he cannot grant the thing in action yet he maygive or grant the deed, viz., the parchment to another who maycancel and use the same at his pleasure." This distinction wascarried out in England as late as 1876, and the usual way inwhich a chose in action was attempted to be transferred was bythe giving of the thing which evidenced the debt to another,coupled with a power of attorney in the name and place of thatother to enforce the chose. The custom of merchants wherebya foreign bill of exchange could be assigned by the payee to athird person making that third person the legal owner of thebill as well as the equitable owner was recognized in Englandby the law courts as early as the I4th century and in the 17thcentury the same custom with reference to an inland bill as re-gards its transferability was recognized.4 Promissory notes wereput upon the footing of inland bills by the statutes of 7 Anne.The Common Law theory, apart from considerations of pro-cedure, looked even with mercantile choses to the title to thepaper. Even when, by the passage of the Judicature Act andby the statutes in various states, the real party in interest or theassignee of a claim was allowed to sue in his own name, alldefences available against the assignor before notice of the as-signment of the debt were destroyed.'2 Spence: Eq. Jur., 850; See also Polock, Contracts, 5th ed. 206;Holmes Common Law, 340-341; Maitland, 2 Law Quarterly Review, 495.'Select Essays on Anglo-American History, Vol. III, page 58o.'Fol. 232 b 377 cited in Farrell. The Passaic Water Co., 82 N. J. 97.'Clut. Bells Section IO.MARQUETTE LAW REVIEWThe necessities of trade and commerce and the custom ofmerchants built up a doctrine of negotiation as opposed to assign-ment. The fundamental policy of the Common Law in referenceto title, not only true as to real, but to chattels and to specialtychoses in action was, that a wrongdoer could pass no title, anda transferee under the common law theory could never obtainbetter title to a thing than that of his transferor. The customof merchants, however, and the theory of mercantile usageswas to protect a purchaser for value and in good faith in theusual and ordinary course of business. In the gradual growthof importance of commercial transactions and in the growth oftrading there came to be a clash between the common law theoryand the mercantile theory. The custom of merchants was recog-nized by the English Law Courts and the theory of negotiation asopposed to assignability became recognized and that theory hasbeen adopted in the present negotiable instrument law. Underthe theory of negotiation a transferee of commercial paper obtains,if he is a bona fide purchaser in due course and before maturityand for value, a fresh title not dependent on the title of histransferor even if such title were defective unless he knew ofthe defect or unless the title of his transferor was absolutelyvoid. Still, however, even under that theory, the title to theinstrument itself had to be acquired. It would be impossible toconstitute a transferee an owner of a negotiable instrument whichwould not exist as an instrument unless it were delivered inten-tionally.What then is the situation where a negotiable instrument isexecuted and stolen before delivery? In general there is nocontract completed and there is not title in the payee becauseof no delivery. Suppose, however, that after the payee hasstolen it or, while in the hands of the payee and indorsed byhim it were stolen, that it reached a bona fide purchaser forvalue, where is the title to the instrument? In this country priorto the passage of the negotiable instrument act there were twolines of authority, one line of authority5 holding that a bona fideholder is entitled to recover under such circumstances. Thereason for such holding does not clearly appear in some cases,being put on the theory of negligence in letting the paper getout of one's possession although there is not any particularquantum of evidence demanded to prove negligence; and another"Mass., Tex., Minw. III., and La.MARQUETTE LAW REVIEWtheory which it is submitted is really the theory, that in theinterests of society and business generally it is better to protectthe bona fide purchaser than the unfortunate maker. This theorydoes not seem logical because the ordinary doctrine of equity isthat "where the equities are equal the legal title prevails" andthere is no title in the bona fide holder even in the paper; becausedelivery is essential to give the instrumental legal existence.The other line of authority previous to the negotiable instru-ments act was that the bona fide holder could not have title,the theory being either that delivery was necessary or that apurchaser from a thief was not a bona fide holder. There aredicta in accordance with this view expressed in Andrews v.Thayer,6 and the question with this view was squarely decidedin line with this authority in Roberts v. McGrathT and Dodd v.Dunne." In that case (Dodd y. Dunne) on the question of whetherthere had been delivery and no negligence, the Supreme Courtheld that there could not be recovery even by a bona fideholder.Under the negotiable instrument act it is provided that aninstrument is negotiable by delivery if payable to bearer; ifpayable to order, by the indorsement of the holder completedby delivery.9 And in a notation to this section in the pamphletannoted negotiable instrument law published under authority ofthe Secretary of State and which until recently was obtainable,the statement is made, "A valid delivery is absolutely necessaryeven against a holder, otherwise in due course." That this isnot true would seem apparent by a reading of Section 1675-16,part of which reads, "but where the instrument is in the handsof the holder in due course, a valid delivery by all parties priorto him so as to make them liable to him is CONCLUSIVELYpresumed." And see section 1676-28 "in the hands of anyholder OTHER than a holder in due course a negotiable instru-ment is subject to the same defences as if it were negotiable"which under the rule expressio unius est exclusio alterius andread with the section 1676-16, would indicate, it is submitted,a legislative intent to change the Wisconsin rule.In the case of Hodge v. Smith 10 the question before the court030 Wisconsin 228.038 Wisconsin 52.'1I Wisconsin 578.'See section 1676, Wisconsin Statutes.1i3o Wisconsin 326.MARQUETTE LAW REVIEWwas the effect of conditional delivery as between the parties,and the rights of a bona fide purchaser where not directly beforethe court as to this question of delivery. The court said, however,on page 333, "the authorities are not all in harmony with theforegoing. Dodd v. Dunne" is an example, but. by the negotiableinstrument law'2 the principle thereof was incorporated into thewritten rules of this state in these words,"... , quoting thesection. The learned justice (Marshall) assuming that this sec-tion had changed the rule as expressed in Dodd v. Dunne, it wouldseem that in Wisconsin under the negotiable instrument act aspassed by our legislature, the fact of delivery or nondelivery inthe hands of a bona fide purchaser is not available as a defenseagainst him. That delivery is essential would seem to be recog-nized by the introduction of the fiction which finds it necessaryto deem it "conclusively presumed" but whether delivery existedin fact, in the hands of a holder in due course, it is submittedis now immaterial. It is not the purpose of this summary todefine what constitutes a holder in due course. Assuming, how-ever, that one is a holder in due course of an instrument stolen,or negotiated through fraud, or originally given for an illegalpurpose it is submitted that nondelivery is not a defence.The act provides "that absence or failure of consideration isa matter of defence as against any person NOT A HOLDERIN DUE COURSE"' 3 so under the familiar rule of constructionit would be no defence in the hands of a holder in due course.It is elsewhere provided (1676-25 Wisconsin Statutes) "thetitle of such person (who negotiates an instrument) is absolutelyvoid when such instrument or signature was so procured froma person who did not know the nature of the instrument andcould not have obtained such knowledge by the use of ordinarycare." It is the settled rule in Wisconsin that if the maker'ssignature is procured by false representations as to the characterof the paper, he being ignorant of the true character and beingnot negligent in being so ignorant, that the paper is void inthe hands of a bona fide purchaser.It is likewise the settled rule in Wisconsin established by theearliest decision in this state that illegality will not defeat ann"i Wisconsin 578."1i675-x6 Chapter 356, Laws of z899.ni674-54 Wisconsin Statutes.MARQUETTE LAW REVIEWaction upon a note by a holder in due course having no noticeof the defect."4In reference to forgery the act itself provides that where asignature is forged or made without the authority of the personwhose signature it purports to be, it is wholly inoperative unlessthe party against whom it is sought to enforce such right is pre-cluded from setting up the forgery or want of authority. 5Therefore, it is submitted, that the only defence against aholder in due course of a stolen note or one obtained throughan illegal or fraudulent transaction, is absolutely forgery or suchfraud which establishes that the maker did not know the natureof the instrument which he signed and could not have obtainedsuch knowledge by the use of ordinary care.In other words a negotiable instrument has two necessaryformal requisites, one execution and the other delivery. Underthe present state of the law in Wisconsin it is submitted thatin the hands a holder in due course the only advantage that canbe taken of the absence of the formal requisites is of that whichdeals with its execution and no advantage can be taken of theabsence of that requisite which deals with its delivery.'I Wisconsin 378.i675-23.

Defenses Against a Holder in Due Course

Search, Mabel

Marquette Law ReviewVolume 6Issue 4 Volume 6, Issue 4 (1922) Article 6Women's Rights in WisconsinMabel SearchFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationMabel Search, Women's Rights in Wisconsin, 6 Marq. L. Rev. 164 (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol6/iss4/6MARQUETTE LAW REVIEWWOMEN'S RIGHTS IN WISCONSINBy MABEL SEARCH, A.B., '26Wisconsin is the first state in the union to give women equalrights with men under the law. The equal rights bill was passedJune 12, 1921, after a campaign by the Wisconsin branch of theNational Woman's Party, which, after the passage of the federalsuffrage amendment, inaugurated a movement to remove legaldisabilities of women.Following is a statement by the National Woman's Party re-garding the law:Wisconsin was the first state in the union to take the pioneer step ofgranting complete equality before the law to its women. It stands in rela-tion to this new phase of the woman movement in the same position asWyoming, the pioneer suffrage state, stood toward suffrage.Under the laws of Wisconsin today, women stand upon the same basisas men, freed from the ancient discriminations and disabilities which stillfetter them in other states. Centuries of legal precedent and tradition,built upon the conception of women as inferior beings, and sanctioningwith the majesty of the law the subjection of one-half of the race, havebeen overturned by Wisconsin with one clean stroke.The above leaves no doubt as to the interpretation of the meas-ure in general terms by its sponsors.The Wisconsin law,.Chapter 529, Laws of 1921, follows:SECTION 1. Women shall have the same rights and privileges under thelaw as men in the exercise of suffrage, freedom of contract, choice ofresidence for voting purposes, jury service, holding office, holding andconveying property, care and custody of children and in all other respects.The various courts, executive and administrative officers shall construethe statutes where the masculine gender is used, to include the femininegender unless such construction will deny to females the special protec-tion and privileges which they now enjoy for the general welfare.The courts, executive and administrative officers shall make all neces-sary rules and provisions to carry out the intent and purposes of thisstatute.SECTION 2. Any woman drawn to serve as a juror, upon her request tothe presiding judge or magistrate before the commencement of the trialor hearing, shall be excused from the panel or venire.No effort was made by the sponsors of the law to have priorstatutes dealing with the rights of women repealed, or to revisethese statutes to conform to the new policy. And, since the lawis general in terms-its sponsors call it a blanket measure-itremains to be seen which of the prior statutes are repealed byMARQUETTE LAW REVIEWimplication. Therefore to apply the law specifically is a matterwhich only time and experience will settle definitely.The rights bestowed on unmarried women are chiefly those ofholding office and performing jury service. Previous legislationhad given them freedom of contract. Married women weredenied this right on the theory of protecting the wife's separateestate.For example, it was impossible heretofore for a wife to sign asher husband's surety on a bond or note. The contention was thatby persuasion or through duress the wife might become theguarantor of her husband's debts. Her separate estate would bedecreased or possibly wiped out in the event of his creditors' press-ing the claims. The new law gives married women the right tocontract freely and also ends this protection. Whether the newcondition will work more hardships than benefits remains to beseen.It has been suggested that the phrase "special protection andprivileges" might limit the scope of a married woman's right offreedom of contract as a means of protecting her separate estate.However, since the law gives women equal rights with men infreedom of contract, it would seem impossible to abridge this righteven for the benevolent purpose of extending to her under the newlaw a privilege which she formerly had."Special protection and privileges" can mean nothing but theshield thrown about women under the police power of the state,such as minimum wage laws, limiting hours of labor, excludingwomen from certain hazardous occupations, etc., the law specify-ing that the protection and privileges women enjoy for the generalwelfare shall not be taken from them in the process of equalizingthe legal status of men and women.Whether this special protection will be challenged by employerson the basis of the new law is a matter for the future. The chair-man and secretary of the Wisconsin Industrial Commission statethat no attempt has been made in nearly a year since the law hasbeen on the statute books to nullify these measures, and that noneis anticipated.Wisconsin's record as a state in which labor legislation applyingto women is generally upheld may be the basis for this confidence.F. M. Wilcox, chairman of the commission, says:. . . as to the effect of Chapter 529, Laws of 1921, upon the lawswhich have been enacted for the protection of women employees, . ..165MARQUETTE LAW REVIEWthis commission believes that this chapter has no effect whatsoever. Chap-ter 529 is entitled "An act . . . to remove discriminations againstwomen and to give them equal rights before the law." The laws whichWisconsin has had on its statute books for some time for the protectionof women employees, such as the hours of labor law and the minimumwage law, do not "discriminate against women," but rather protect andgive them special privileges.This commission has enforced the laws which give a special measureof protection to women employees since Chapter 529 became effective inthe same manner as heretofore. A considerable number of employershave been called to account for violations of these laws. No employer orhis attorney has ever urged, however, that Chapter 529 has set aside thewomen's hours of labor law or the minimum wage law. This fact wethink significant, especially in view of the fact that articles have appearedin the east which claim that the women's rights bill has swept away allspecial legislation for the protection of women. This is a claim whichonly people who know nothing of our laws have urged.The National Consumer's League-an organization devoted tothe betterment of working conditions for women, is not sosanguine. Its secretary, Florence Kelley, discussing generally thenational movement for women's rights laws, and giving specificattention to the Wisconsin law, says:If women are subject to the same freedom of contract as men, will notwomen wage-earners lose the statutory eight-hour day, rest at night, andone day's rest in seven, which they now have under statutes that, pro tanto,limit their freedom of contract? Could women get for themselves aneight-hour law or a minimum-wage commission- in a state where thesedo not yet exist, and where working men do not care to get them becausethey prefer for themselves negotiations backed by organizations andstrikes ?Why should wage-earning women be thus forbidden to get laws fortheir own health and welfare and that of their unborn children? Whyshould they be made subject to the preferences of wage-earning men?Is not this of great and growing importance when the number of womenwage-earners, already counted by millions, increases by leaps and boundsfrom one census to the next? And when the industries involving exposureto poisons are increasing faster than ever? And when- the overwork ofmothers is one recognized cause of the high infant death-rate? And whenthe rise in the mortality of mothers in childbirth continues?If there were no other way of promoting more perfect equality forwomen, an argument could perhaps be sustained for taking these risks.But why take them when every desirable measure attainable through theblanket bill can be enacted in the ordinary way?SEc ON 3. This act shall not affect laws regulating the employment ofwomen in industry. [The wording of this clause differs from state tostate in the blanket bill.]Concerning legislative innovations, the important point is not thepromises made by the advocates but what the bill itself says and what166MARQUETTE LAW REVIEWexperience has taught the people who will be affected by it to expect. Untilthe items of the blanket bill have been passed upon by the courts, whatgreater value than patent-medicine advertisements can any claims for thesafe-guarding clause have?The proponents point to the Wisconsin law enacted a year ago as hav-ing wrought no harm. But new laws are not like bombs. They do notexplode. Women cap-makers can never forget that the Sherman law hadbeen on the statute books for years and wage-earning men and women hadbeen assured that it could never apply to them. In the end, however,under a decision of the United States Supreme Court, that anti-trust lawwas the cause of the loss of the homes of hundreds of working-classfamilies in a single state and a single industry.For women new to the field of legislation, however, the term "safe-guarding clause" has an attractive sound. They do not know that in theprocesses of enactment, slow and circuitous (or like a lightning flash inthe closing hours of the session), nothing is more easily lost than a safe-guarding clause.In Maryland the blanket bill recently passed the house of delegateswithout a repealing clause. If the bill were so enacted, would it (by im-plication) amend or repeal other laws? Opponents of the bill wouldargue that any attempted amendment of the existing law is futile withouta clear statement of the laws to be changed and their wording as amended.Until the courts had spoken, who could know what the law actually was?On the other hand, if the blanket bill with its sweeping repealing clauseshould pass unchanged, sooner or later the courts would have to decidewhether any laws had been nullified and, if so, which ones. If it shouldthen be held in spite of the safeguarding clause, as might readily hap-pen, that the wage-earning women's protective laws had been repealed, insome states the constructive work of years would be undone. The policepower it is true would remain, but fresh legislation would be required togive it life. The police power does not act spontaneously. As a part ofa blanket bill, the effect of a sweeping repealing clause is incalculable.The following are possible questions which will be presented tothe courts for solution as the efforts to adjust the law to conditionsprogress:May a husband, dependent on his wife for support, obtainalimony in case of divorce?Where husband and wife have separated or are divorced, is themother jointly responsible with the father for the support ofchildren, since women now have equal rights with men in the careand custody of children?Can the father still claim the earnings of a minor child or dothey belong jointly to father and mother? Must father and mothersue jointly for injury to a child?Since the wife now has the right to choose her residence forvoting purposes, has the husband still the right to fix the familyMARQUETTE LAW REVIEWdomicile? If the wife chooses one voting district and the husbandanother, is he obliged to maintain her during the time she isdomiciled in her district? Can he sue for separation or divorceif the wife chooses a domicile other than his?Does freedom of contract give her the right to contract withreference to her dower rights? May she contract with herhusband with reference to such right? Just how far does thisclause go?Will the clause "holding and conveying property" make anychange in the wife's property rights?Following are comments on the law made by Wisconsin ex-ecutive and judicial officers at the request of the NationalWoman's Party:Gov. James J. Blaine said:You ask in your letter of January 12 that I give you my opinion as tothe value of the Wisconsin equal-rights law, present and prospective, inthe light of our experience ...There are two ways by which discriminations against women may beremoved and by which equal rights before the law may be conferred. Onemethod is by a general enactment, such as the law to which I refer, andthe other method is by amending a multiplicity of special statutes on avariety of subjects treated in the statutes. The first method is simpleand direct; the second is cumbersome, complicated, and inconsistent withthe amendment to the federal constitution granting full privileges andrights by the fundamental law.Our experience, therefore, convinces us that the general enactment isin complete harmony with the federal amendment, and directly effectivein establishing full equality of men and women before the law.C. H. Crownhart, justice of the state supreme court, said,prior to his appointment:... . This law works no revolution, but rather an evolution wherebywomen gradually come into their own.They are beginning to serve on juries with satisfaction to the publicgenerally. There are no disturbances in the home or in marriage rela-tions because of the law. As the law becomes more generally known itwill be beneficial in its operations. The women make the home and thislaw will help them establish and keep a home. It is a relic of barbarismthat leads some to believe that a husband, no matter how great a tramphe may be, should start out on a vague quest and call upon his wife likea squaw to pack her papoose on her back and follow.The law will bring about a greater and fairer understanding of domesticrelations both by the parties and by the courts. The Wisconsin law hasproved that we usually suffer more from the fears of what may happenthan we do from anything that really does happen. It is a good law.Time may improve it.MARQUETTE LAW REVIEWCircuit Court Judge Oscar M. Fritz, Milwaukee, says:No litigation involving the Wisconsin equal rights law has been broughtto my attention. I see no reason why the law should not accomplish theresults desired by its sponsors. Its general terms are preferable toattempts at detailed specification.Circuit Court Judge E. Ray Stevens of the Ninth JudicialDistrict of Wisconsin says:I have had no occasion to apply the Wisconsin equal rights law, asidefrom having women on our jury panel. I was pleased to note that womenmade very attentive and careful jurors, being the peers in every way ofthe men on the panel. They were as readily accepted as jurors as werethe men.I believe that a general statute like our Wisconsin act is better thana law which attempts to amend all existing statutes affecting women. Inevery such attempt at amendment, it would be well nigh impossible to findand properly amend every provision of statute that should be amended tomake a complete and harmonious statute. By enacting a single law clearlyevidencing the legislative intent, it must be held that all conflicting actsexisting at the time of the passage of such general act are either repealedor amended so as to bring all existing laws into harmony with the legis-lative intent expressed in the general act.

Women\u27s Rights in Wisconsin

Lang, Willis E.

Marquette Law ReviewVolume 6Issue 4 Volume 6, Issue 4 (1922) Article 5Finality of Orders and Decrees of the CountyCourts of Wisconsin in Probate MattersWillis E. LangFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationWillis E. Lang, Finality of Orders and Decrees of the County Courts of Wisconsin in Probate Matters, 6 Marq. L. Rev. 159 (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol6/iss4/5MARQUETTE LAW REVIEWFINALITY OF ORDERS AND DECREES OFTHE COUNTY COURTS OF WISCONSININ PROBATE MATTERSBy PROFESSOR WILLIS E. LANG, B.Litt., LL.B., of the MarquetteCollege of LawIt is the purpose of this article to discuss briefly the finality ofthe orders and decrees of the county courts of Wisconsin so far asthey relate to matters of probate of wills and the administration ofestates. However, it may not be out of place, in this connection, tostate the origin of the probate jurisdiction of our county courts.Jurisdiction Vested by the Constitution. The Wisconsinconstitution by Article VII, Section 2, provides:Judicial Power Where Vested. Section 2. The judicial power of thisstate, both as to matters of law and equity, shall be vested in a supremecourt, circuit courts, courts of probate, and justices of the peace. Thelegislature may also vest such jurisdiction as shall be deemed necessaryin municipal courts, and shall have power to establish inferior courts inthe several counties, with limited civil and criminal jurisdiction, and byArticle VII, Section i4, it is provided:Judges of Probate. Section 14. There shall be chosen in each county,by the qualified electors thereof, a judge of probate, who shall hold officefor two years and until his successor shall be elected and qualified, andwhose jurisdiction, powers and duties shall be prescribed by law. Pro-vided, however, that the legislature shall have power to abolish the officeof judge of probate in any county, and confer probate powers upon suchinferior courts as may be established in said county.The sections above quoted give the legislature the power toestablish inferior courts in any county, confer probate jurisdictionupon them, and abolish the office of probate judge in that county.This in effect gave the legislature the power to establish courtsin the various counties inferior to the circuit court, with suchjurisdiction as was thought necessary to meet the requirements,but the legislature was obligated to maintain in each county, acourt of probate jurisdiction.Probate Jurisdiction Conferred on County Courts. Shortlyafter the adoption of the constitution, the legislature accordinglyestablished the county courts and provided for their jurisdiction.(See Chapter 86 R. S. 1849.) By Section 3 of that chapter, it wasprovided that these courts should have the powers and jurisdic-tion then by law conferred on the judges of probate, and that theMARQUETTE LAW REVIEWjudges thereof should perform all the duties of the judges ofprobate in the manner provided by law.By Section 4 of that chapter the office of judge of probate wasabolished and the judges of probate were directed on January i,i85o, to turn over all books, records, and papers belonging to theiroffices, to the county judges of their respective counties, who fromthat time were vested with full and exclusive probate powers.Section 5 of the same chapter gave county courts the usualpowers of courts of record under the common law, except so far aslimited by statute, and full power to issue all legal process, properand necessary to carry into effect their jurisdiction.The legislature has from time to time changed the jurisdictionof the county courts, but they still have full and exclusive probatejurisdiction. (See Chapter 114 R. S. i92i.)Judgments of the County Court within the General Rule ofFreedom from Collateral Attack. The general rule, familiar toevery lawyer, that a judgment rendered by a court having juris-diction of the parties and the subject-matter, unless reversed orannulled in some proper proceeding, is not open to contradiction orimpeachment, in respect to its validity, verity, or binding effect, byparties or privies, in any collateral action or proceeding, as statedin 23 Cyc. 1055, is applicable to the judgments of the countycourts in Wisconsin. Barker vs. Barker, 14 Wis. 131 at 147.Direct Attack upon Orders and Decrees of County Courts.The orders and decrees of the county courts are of course subjectto reversal and revision upon appeal to the circuit court, in countieshaving a population of less than fifteen thousand, and thence tothe supreme court, while in counties having a population of fifteenthousands, or more, such orders and decrees are subject to revisionby appeal direct to the supreme court (see Section 4031 R. S.1921.) provided said appeal is taken within sixty days after theentry thereof. But the expiration of that time does not cut off theright to appeal, for Section 4035 R. S. 1921 provides that,If any person aggrieved by any act of the county court shall, from anycause without fault on his part, have omitted to take his appeal accordingto law the county court of the same county may, if it shall appear thatjustice requires a revision of the case, on the petition of the party aggrievedand upon such terms and within such time as it shall deem reasonable,allow an appeal to be taken and prosecuted in like manner and with thesame effect as though done seasonably; or the county court may in itsdiscretion reopen the case and grant a retrial of the matter complained of.No such appeal or retrial shall be allowed without reasonable notice toMARQUETTE LAW REVIEWthe party adversely interested, nor unless the petition therefor shall befiled in the office of the clerk of the county court within one year afterthe act complained of. Whenever the county court shall allow or disallowan appeal, or retrial, as provided in this section, the party aggrieved mayappeal therefrom.From a reading of this statute it will be seen that after theexpiration of the sixty-day period and within the year the courtcan allow an appeal or a retrial of the matter if it shall be madeto appear that "justice requires a revision of the case." Thiswould seem to place the matter entirely within the discretion ofthe court to determine whether such relief should be granted, butthe fact that such determination is expressly made appealable bythe closing lines of the section, it would seem that the court mustact cautiously, and grant the relief in every case that justice re-quires and only in such cases, otherwise, its determination ingranting, or refusing to grant the relief, whichever the case maybe, would be subject to revision upon appeal. It therefore seemsthat the effects of this statute is to extend the time for appeal fromorders and decrees of the county courts to the full period of oneyear, for in order for the appellate court to determine the appealfrom the order granting or refusing to grant the appeal or retrial,whichever the case may be, it must determine whether or not"justice requires a revision of the case." In order to determinethis question, the court must pass upon the merits of the originalcase, for, the appellate court will never disturb a determination ofa lower court unless justice requires it.To construe the statute otherwise would lead to this absurdity:An appeal is taken to the supreme court from the order of thecounty court refusing to allow an appeal after the expiration ofthe sixty-day period. The supreme court determines that thecounty court was in error in this refusal and remands the record tothe county court with directions to allow the appeal. The countycourt would then be obliged to obey instructions and send therecord back to the aupreme court. When the record arrivedthere, the supreme court would be compelled to examine the verysame record as was before it upon the previous appeal and thensend it back again to the county court with directions to grant aretrial or such other relief as justice might require. It cannot beexpected that our court would indulge in any construction of thestatute that would lead to this result.We may then safely say that after the expiration of one yearfrom the entry of an order or decree of the county court, it is freeMARQUETTE LAW REVIEWfrom revision or annullment in so far as the record upon which itis based is concerned. It being so free from liability to change,anyone may rely upon its validity unless he has knowledge of factsoutside the record that would impeach its validity, or unless he isa party to the record. This leads us to a consideration of theeffect of fraud in the procuring the entry of such an order ordecree.Effects of Fraud upon the Finality of an Order or Decree ofthe County Court. It is a fundamental principle that fraudwhich induces the entry of an order, judgment, or decree of acourt renders it voidable by the party injured, but that the judg-ment will not be set aside for fraud inducing its entry, where todo so would prejudice the rights of innocent purchasers for valuewithout notice of the fraud.The Staab Will Case, 166 Wis. 587 is a good example of thevacation of an order induced by fraud upon the court. In thatcase the proponents of a will introduced testimony of the testi-mentary capacity of the testatrix, when they in fact knew that shewas wholly incompetent to make a will, the testimony thereforebeing perjured. Upon application of one of the heirs of the allegedtestatrix, the court set aside the order admitting the will to probate,and granted administration of the estate. The supreme court, inaffirming this determination of the county court in part said,The mere fact that the year had gone by in which a formal appeal mightbe taken from the order admitting the will to probate, or that interestedpersons, knowing the facts, concealed or withheld them from the court,does not alter the position of the county court itself, having, as here, thematter of the estate still before it to take the proper steps on its ownmotion to determine whether or not there has been such fraud perpetratedupon it under the guise of regular proceedings. While the estate is stillbefore the court for administration it is still before it to have its pro-ceedings purged of fraud, and the mere passing of the time within whichparties might appeal to another tribunal is immaterial.It is to be noted that the rights of no innocent purchaser forvalue was involved in this case, and the court expressly limits theapplication of the rule to those cases in which the innocent pur-chaser's rights are not involved, and to those cases in which therights of the innocent purchaser can be protected.The Reeves Case, 186 N. W. 736 recently decided by thesupreme court, is interesting from the standpoint or rather lack offinality of the decree of the county court. In this case it wassought to set aside guardianship proceedings in county court andMARQUETTE LAW REVIEWbe retrieved from a stipulation with the guardian, upon a showingthat there was no ward in fact and that the alleged ward was animpostor. The court purged its records of the alleged guardian-ship proceedings. And the supreme court in sustaining thisposition held that a decree of the probate court may be subse-quently annulled when clearly shown to be without foundation inlaw or fact.In order to perpetrate the fraud upon the court in the guardian-ship proceedings, the supposed mother of the imposed ward al-lowed an order of the county court, prejudical to her interest, to beentered, and the supreme court relieved her from this order.The court, however, points out that the vacation of the decreeof the county court must be sought in that court because of itspeculiar and broad equity powers resting upon the proposition thatthe deceased person who has disposed of his property, is always asilent party to the proceedings, and it is the supreme duty ofcourts of probate to carry his wishes into effect wherever they arenot inconsistent with law and public policy.A reading of the cases mentioned, to say nothing of cases fromother jurisdictions in accord with them, will show that a decree ororder of the county court has no finality where fraud lurks andwhere the question is raised directly. In fact, so potent is thepower of the county court to set things right that relief will begranted to the very person who has fraudulently procured theorder to be entered.

Finality of Orders and Decrees of the County Courts of Wisconsin in Probate Matters

Schoetz, Dean Max, Jr.

Marquette Law ReviewVolume 6Issue 3 Volume 6, Issue 3 (1922) Article 4Law: Nature, Source and ClassificationDean Max Schoetz Jr.Follow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationDean Max Schoetz Jr., Law: Nature, Source and Classification, 6 Marq. L. Rev. 122 (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol6/iss3/4MARQUETTE LAW REVIEWLAWNATURE, SOURCE AND CLASSIFICATIONLecture delivered by Dean Max Schoetz, Jr., of Marquette College ofLaw to The Citizenship Study Club, a Woman's Organization of Milwaukee.A few months since I received from the officers of this cluba request that I give a course of ten lectures on legal topics.My appreciation of this honor was such as to tempt me in spiteof many engagements to accept the privilege.The subject matter of the lectures being left to my judgmentI have been not a little embarrassed in determining the characterand scope of this brief course.The object of lectures upon the law may be two-fold. First,with the primary view of imparting instruction. Second, toawaken and stimulate a real interest-to set the hearer thinking-to inspire enthusiasm in the study of law to the end that thehearer may be incited afterwards to pursue the subject uponhis own motion. In the limited time allotted I have decidedto adopt the latter course and to open the door so to speak tothat vast field we designate as Law, and then to dwell particu-larly upon such subjects in the Law as will be of special interestto this club.The importance of legal study cannot be overestimated. SirWilliam Blackstone in his introduction to his famous commen-taries states that "the science of law should in some degree bethe study of every free citizen." If this was true in his dayand generation, how much more occasion is there for women inthis country, and at this time, to seek some knowledge of theLaw. Everywhere, and on every hand, women's rights are ex-tended, so much so that women today have been given rights equalto those of men. They have been, so to speak, raised to thestatus of free citizens; that this occasion is being recognizedby the women, is evidenced by the fact that in every Law Schoolof this country a growing proportion of the student body ismade up of women, who are taking up the law courses withsuch enthusiasm and strenuous application that the male studentbody is made to work all the harder in order to keep up withthem.My first lecture will be devoted to a discussion of Law ingeneral. What do I mean by the expression "Law"? Simple122MARQUETTE LAW REVIEWas it seems, this is a most important inquiry. It lies at thethreshold-it is the very foundation of all legal studies scien-tifically conducted.What is meant by "Law" will be made more clear by firststating negatively what is not meant. By the phrase "Law" isnot meant the moral law, on the contrary I mean to excludeit so far as moral law stands distinguished from Civil or Mtmi-cipal. Law.As soon as the development of man's intellect enables him todistinguish right from wrong, he inevitably comes under thesway of what is termed "Moral Law," and thenceforth it isimpossible for him to do any act, however momentous or minutehaving a moral quality of which that Law does not take cog-nizance. Conscience is a universal judge sitting in judgmentupon every act and every omission partaking of a moral qualityto condemn or to approve.Much confusion arises from failure to distinguish betweenwhat is called moral law and technical or positive law. If arule of conduct is merely moral, either in the sense of beingright according to generally accepted notions of what constitutesvirtue or goodness, or because it is in harmony with the naturalor revealed law, it differs from actual or positive law in thatthe power of the state cannot be appealed to in case it is dis-regarded. The phrases, law of nature, law of God, divine law,law of reason or right reason, natural justice and natural equityare sometimes used, but these phrases are employed to describethose rules or precepts which meet with the general approvalof mankind, because they satisfy what we call the conscience ormoral sense. All laws are either human or divine accordingas they have man or God for their author. Divine laws are oftwo kinds: Natural Law and Revealed Law. Natural Law or theLaw of nature is the rule of human action prescribed by theCreator and discernible by the light of reason, or as it has beensometimes defined natural law is a rule which so necessarilyagrees with nature and state of man, that without observing itsmaxims the peace and happiness of society cannot be preserved.Revealed law on the other hand is the law of nature impartedby God Himself. As heretofore stated we shall not enter intoany discussion of this phase of the law. We are concernedonly with the law in its technical or positive sense-the law ofthe courts and lawyers.MARQUETTE LAW REVIEWBy the phrase "The Law" I do not mean to include what maybe called the science of politics or government although this alsostands closely related to law and in many points in direct con-trast with it. Strictly speaking, the science of politics or ofgovernment falls within the domain of the statesmen or legisla-ture.By "Law" we mean what the Great Charter calls the law ofthe land-the law of the land as it actually exists in distinctionfrom what in the view of the law reformer or of the legislature orof the jurist it is conceived or believed it ought to be. The workof consciously judging the law from what it is to what it oughtto be is the work of the legislator.One might think it were easy to define law. Whoever hasstudied this subject feels an overpowering sense of its difficulties-difficulties which seem to be beyond the reach of the mostenlightened and trained intellects, and to overwhelm them witha consciousness of their own insufficiency. Volumes have beenwritten upon this precise subject but no definition has as yetbeen formulated which is at once comprehensive and accurate.As the student or lawyer has to deal with it, "Law" is concernedonly with legal rights and by "legal rights" are meant only suchrights as are recognized and enforced by the state. For all pur-poses, therefore, save that of strictly philosophical inquiry, the"law" may be taken to be the sum of rules administered by courtsof justice, or to use the words of Professor Thayer of HarvardLaw School, by "law" we mean "a rule or standard which it isthe duty of a judicial tribunal to apply and enforce." ProfessorHolland defined "law" as "a general rule of external humanaction, enforced by a sovereign political authority." Blackstone'sdefinition of "law" as "a rule of action prescribed by the supremepower of a state commanding what is right and forbidding whatis wrong" is familiar. There are numerous other definitions, butas said by Professor Woodruff of Cornell these definitions ob-viously refer only to Municipal Law, which regulates the inter-course of a state with its subjects and the intercourse of thosesubjects with each other.The thing to remember is that coercion by the state is the es-sential quality of law distinguishing it from morality or ethics.Nothing is a legal right, unless it implies a capacity residing inone person of controlling, with the assent and assistance of the124MARQUETTE LAW REVIEWstate, the actions of others; and that which gives validity, or atleast effect if not existence to a legal right, is in every case theforce which is lent to it by the state. Duty is the correlativeof right, and duty in a legal sense implies a sanction which is thefunction of the judicial tribunals to apply and enforce. Whateverrights and duties they thus recognize and enforce are legal rightsand duties and for practical purposes none others fall within thedomain of law so far as lawyers and courts are concerned. Amoral right, if disregarded, will be viewed with public censureor disapprobation but that is all; a legal right, however, if dis-regarded will be enforced by the public will of the organizedsociety which is called "the state."From the distinctions drawn we must not understand that thelaw in its technical sense has no ethical or moral basis. It islargely the reflection of popular convictions, not only of whatappears morally just and proper but of what seems reasonable,convenient and expedient in view of circumstances of climate,habit, occupation and surroundings. The positive law, however,does not define and enforce all moral duties, both because theyare often very difficult to ascertain and because of the practicalimpossibility of their enforcement by state authority. Thus,the moral law requires us to be charitable, the positive or municipallaw does not; the moral law demands that he who promises shallperform, but the municipal law enforces only such promises as arebased upon a consideration and thus I might illustrate the distin-guishing elements.We may, therefore, say for our purpose "Law" is a rule ofcivil conduct prescribed and enforced by the supreme power ina state regulating the intercourse of the state with its inhabitants,and of those inhabitants with each other.Law in this sense is either international or municipal. Inter-national Law is described as law only by courtesy, since the rightswith which it is concerned cannot properly be described as legal.It has sometimes been denied to be positive law at all, because thereis no international tribunal to which a nation may appeal if itsrights are invaded by another. This may be all changed with theestablishment of the League of Nations. Municipal law, on theother hand, is not prescribed by the common consent of nations,but by the supreme power in a particular state or nation. It iswithout binding force outside its territorial limits except so farMARQUETTE LAW REVIEWas other states or nations see fit in exceptional cases to recognizeand apply it.Considered with reference to its sources, the law as thus definedfalls into two general classes: the written or statute law, and theunwritten or common law. The use of the terms written andunwritten to describe the two classes of the law is, however, moreor less inaccurate, while it is probably true that at one periodthe common law was actually unwritten, since the time of theyearbooks (1292) the common law administered by the courtshas been to a greater or less extent written law. The written orstatute law has its origin in legislative enactments and withus consists of (i) constitution, (2) statutes, (3) treaties. Theunwritten or common law, on the other hand, has its origin inancient customs, expressive of legal rights, which have been trans-mitted into positive law by decisions of courts of justice. Thislaw-the common law-was transplanted in the United States bythe English colonists. Custom was the earliest form of lawmaking, and a large share of the law which governs us today hadits origin in usage, or the general and long continued observanceof a certain course of conduct among the English. The customsout of which the common law originated were founded largelyin reasons of expediency and convenience, and in popular con-ceptions of justice and moral and religious truth and propriety.Originally enforced by public opinion or private vengeance, thestate finally by its judges recognized these customs and assumedthem to be law, and they thus acquired the free or positive law, thesame as statutes or express acts of the legislature.The Wisconsin Constitution provides that the common law ofEngland up to the time of the revolution, except in so far as thesame has not been changed by the legislature of Wisconsin, shallbe the law of this state.The process of finding out what is meant by the term "law"would be incomplete unless we also marked out what is meant bythe word "jurisprudence." Law, as I have shown, is the collectiveand appropriate name for the entire body or system of rules,regulations, principles and enactments which are recognized andprotected by the state and which the state will compulsorily en-force when required. Jurisprudence is concerned with the wholebody of the law and signifies the science of law, or the scientificknowledge of jural relations and the legal principles, doctrines andrules which govern such relation.126MARQUETTE LAW REVIEWBy the phrase "The Law" I have referred always to the Englishand American system of law as distinguished from all otherlegal systems, and particularly from the Roman or Civil Law.It is a most remarkable fact that if one casts his eyes over the mapof the enlightened world he will find but two systems of law orjurisprudence-the one of England, the other of Rome. Thelegal systems of the nations of the continent of Europe and ofthe South American States are based upon the Roman Law; butthe Roman Law never obtained controlling authority in or amongany people who speak the tongue of England. None of the greatnations founded on the continent of Western Europe, after thefall of the Roman Empire, has constructed an independent legalsystem of its own. France, Italy, Austria, Germany, Holland, andSpain have every one of them adopted the Roman Law as a verygeneral or common law and have only departed from it so far asparticular occasions might require. Every gap not filled up byspecial legislation or special recognized custom has been suppliedfrom the Roman Law and even modern codes to a very largeextent only contain the ideas of the Corpus Juris in the twentiethcentury dress.From the storm floods that made wreck of the Roman Empirethere emerged defaced, but not broken, the solid fabric of RomanLaw not by any command or ordinances of princes but by theinherent powers of its name and traditions. The Roman Lawrose again to supremacy among the ruins of Roman dominion and-seemed for a time supreme in the civilized world.In only one corner of Europe it failed, this was in Englandwhere the Roman Law was unobserved and despised and a home-grown stock of laws and a home-grown type of legal institutionssprang up. Roman conceptions, Roman classification, the Ro-man understanding of legal reason and authority found no placein England, and it was there in England that the common lawwhich was planted in this country by the colonists began slowlyto be formulated. This common law of England is the basis ofour law in America. The existing body of the English commonlaw has been mainly the work of judges and lawyers extendingin almost unbroken reach through several hundred years. It isnot the work of any single brain. It is not the product of anydeterminate number of minds but it has been the slow work ofages constantly growing and ever changing. The English com-MARQUETTE LAW REVIEWmon law, therefore, in the shape in which we have it is thusessentially a growth, and of historical development.These fundamental principles which we call the English Com-mon Law have been inherited or adopted in this country and wehave in our constitutions, federal and state, placed them beyondthe range of legislative power, beyond the courts, beyond Con-gress, beyond the states, thus giving them a scope, a legal security,a solidity, theoretically at least, greater than they have in England.

Law: Nature, Source and Classification

Marquette University

Marquette Law ReviewVolume 6Issue 4 Volume 6, Issue 4 (1922) Article 10Index to Volume 6Marquette UniversityFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationMarquette University, Index to Volume 6, 6 Marq. L. Rev. (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol6/iss4/10INDEXAutomobile, Liability of the Father, for Torts Committed by theSoni While Using the Fathers, L. E. Vaudreuil ............. 178Avoided Contract, Right of Infant to Sue to Recover Back MoneyPaid Under, Opinion of Judge Reid ....................... 77Chief Justice R. G. Siebecker, In Memoriam ................... 81Commissions, Courts and Thos. E. Lyons ..................... 5Common Law Marriages in Wisconsin, J. A. C. Lightner ........ 82Community Property, Dean Max Schoetz, Jr ................ 28Contracts of Wisconsin Municipal Corporations, Lee H. Cranston 58Courts and Commissions, Thos. E. Lyons ....................... 5Danger Ahead? Is There, Gilbert E. Brach .................... 152Defenses Against a Holder in Due Course, John McD. Fox ...... 71Economics and Jurisprudence, (Concluded), Justice W. H. Timlin 34Editorials ................................... pp. 3, 65) 95, and 145Ethical Aspect of Professional Education, The, Dean MaxSehoetz, Jr .............................................. 148Exparte Proceeding, Service by Publication on, Hon. Edgar V.W erner ................................................ 97Finality of Orders and Decrees of the County Courts of Wiscon-sin in Probate Matters, Willis E. Lang .................... 159Holder in Due Course, Defenses Against a, John Mo D. Fox ..... 71Impairment of Contract Obligations and Vested Rights, ElmerW . Roller .............................................. 129.Infant, Right of, to Sue to Recover Back Money Paid UnderAvoided Contract, Opinion of Judge Reid .................. 77Is There Danger Ahead? Gilbert E. Brach .................... 152Jurisprudence, Economics and (Concluded) Justice W. H. Timlin 34Law, Nature, Source and Classification, Dean Max Schoetz, Jr... 122Liability of the Father for Torts Committed by the Son WhileUsing the Father's Automobile, L. E. Vaudreuil ........... 178Marriages in Wisconsin, Common Law, J. A. C. Lightner ........ 82Marshall; In Memoriam, Roujet de Lisle ...................... 158Municipal Corporations, Contracts of Wisconsin, Lee H. Cranston 58Performance of "What One Is Already Bound to Do" as a Con-sideration in Wisconsin, Joseph Witmer ................... 85Probate Matters, Finality of Orders and Decrees of the CountyCourts of Wisconsin in, Willis E. Lang .................... 159Professional Education, The Ethical Aspect of, Dean MaxSchoetz, Jr .............................................. 148Property, Community, Dean Max Schoetz, Jr .................. 28Publication, Service by, an Exparto Proceeding, Hon. Edgar V.W erner ................................................ 97Right of Infant to Sue to Recover Back Money Paid UnderA voided Contract, Opinion of Judge Reid ................... 77Roujet de Lisle Marshall; In Memoriam ....................... 158Service by Publication, an Exparte Proceeding, Hon. Edgar V.W erner ................................................ 97Siebecker, Chief Justice R. G., In Memoriam .................. 91Stockholder's Right to Sue for Wrongs to Corporation Com-mitted Prior to His Acquisition of Stock, James T. Kro .... 170Torrens System, The, Joseph Herron Crowley ........... 4 ...... 114"What One Is Already Bound to Do," as a Consideration in Wis-consin, The Performance of, Joseph Witmer ............... 85Women's Rights in Wisconsin, Miss Mabel Search .............. 164Wrongs to Corporation Committed Prior to His Acquisition ofStock, Stockholder's Right to Sue for, James T. Krocjc ..... 170

Index to Volume 6

Boileau, G. J.

Marquette Law ReviewVolume 7Issue 1 Volume 7, Issue 1 (1922) Article 1Editorial CommentsG. J. BoileauFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationG. J. Boileau, Editorial Comments, 7 Marq. L. Rev. 3 (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol7/iss1/1Aarquette IC eruiePublithed Quarterly during the School Year by the Marquette Law StudentsSubscription Price, $1.50 per year 50 cents per numberEDITORIAL BOARDGERALD J. BOILEAU ................................. Editor-in-ChiefJAMES T. KRocK, ALVIN H. SCHUTZ, EDWARD G. MINOR, AssociatesWILLIAM J. McCAULEY ......................... Advertising EditorV. W. Di'rMAN, CARL REUTER, JOHN PALK, HAROLD J. PORTER, AssistantsJOSEPH WITMER .................................. Business ManagerFRANK P. HEm, EARL L. KENNEDY, JOHN J. O'FAmm.LL, AssistantsCLEMENT W. DWYER ........................... Circulation ManagerHERMAN KNOELLER, JOHN MELESKI, JOHN CANNON, AssistantsJOHN McDILL FOX .................................. Faculty AdviserEDITORIAL COMMENTSThe power of the courts to declare legislative acts unconstitu-tional has recently been the subject of unfavorable comment frommen who are prominent figures in our nation's politics. In thisissue of the MARQuETTE LAw RE ViEW there are two articles deal-ing with this subject, which justify the court's power to declarelegislative acts unconstitutional, both from the viewpoint of -thepower being granted under the constitution, and from the view-point of sound policy. The first of these articles is contributedby Justice F. C. Eschweiler, of the Wisconsin Supreme Court,and is entitled, "The Veto Power of the Judiciary." The otherarticle by Professor Albert K. Stebbins is entitled, "Courts of theUnited States Under the Constitution."Dean Max Schoetz, Jr., of the Marquette Law School,discusses "The Industrial Commission of Wisconsin and itsAdministration of the Workmen's Conpensation Act." In thistreatise he discusses the legal status of the Industrial Commission,the purpose, the construction, and extra territorial effect of theWorkmen's Compensation Act, the exclusiveness of the remedy,the procedure before the commission, the findings and effect of thecommission's decisions, the appeal from the decision of the com-mission, and the review by the Wisconsin Supreme Court."Congested Dockets in the Federal Courts Menace to Justice,"by Harry M. Daugherty, Attorney-General of the United States,MARQUETTE LAW REVIEWis a very interesting dissertation. Mr. Daugherty outlines theefforts of the Department of Justice to relieve the jammed con-ditions of the federal dockets, and declares that much of thecongestion is due to the new "police" litigation. He also assertsthat the United States' marshals are without sufficient authority."The Wiscofsin Doctrine of Implied Trusts, Resulting Trustsand Constructive Trusts," is a very difficult and technical proposi-tion of law, and is discussed in a scholarly manner by ProfessorJohn McDill Fox, of the Marquette Law Faculty.G. J. BO1LEAU, Editor-in-chief.

Editorial Comments

Crowley, Joseph Herron

Marquette Law ReviewVolume 6Issue 3 Volume 6, Issue 3 (1922) Article 3The Torrens SystemJoseph Herron CrowleyFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationJoseph Herron Crowley, The Torrens System, 6 Marq. L. Rev. 114 (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol6/iss3/3MARQUETTE LAW REVIEWTHE TORRENS SYSTEMBY JOSEPM HERRON CROWLEY, A.B., LL.B.,Member of the Cleveland Bar, and Associate Member of the Cleve-land Real Estate Board[EDIToR's NoTE: This treatise presents, separately, the two sides of theTorrens System. First, it presents the viewpoint of the Title Companieswho announce the System as "an unnecessary innovation." In the secondpart of the article the arguments of the Torrens League are presented,wherein the Torrens System is called "a great constructive reform." Ournext issue will contain an article entitled "The Torrens System-Con-clusions of a Dispassionate and Unbiased Inquirer into the System."Released from The Paper Book.-G. J. B.]I. AN UNNECESSARY INNOVATIONFrom a perusal of the material on the Torrens System in theaverage library one would conclude that the millenium was athand and that all title difficulties were at an end. The utterabsence of criticism and opposing literature would lead one tosuppose that this system must represent the last word in per-fection of title registration, but to one who disbelieves in un-mitigated good and to whom panacea is anathema, it serves butas an impetus to his critical examination.The first natural inquiry is what is wrong with our presentsystem and why the need of change. Lawyers, conveyancers,and title men have built up in this country a system of landtransfers and a recording machinery, under which litigation isrelatively small, title certain and secure, mortgage investmentssolid, frauds and errors few and certain of discovery and easilycorrected. This present system is American in spirit, growth,and development, and is a product of the ideals which formu-lated our constitution. It is the result of conservative thoughtand sound business judgment, covering a long period of time,adapted to our needs, and while not perfect, as no human agencyis perfect, it has served us well. Why substitute for a growthof the soil a foreign system adapted to a form of governmentdifferent from ours?The theory of the Torrens System is, in effect, that when atitle is registered, neither a purchaser nor a mortgagee needsto look any farther than the registrar's roll, and he can relyabsolutely on a clear title shown there. But is this certificatefinal and conclusive, or is it any better than the decree of courtMARQUETTE LAW REVIEWon which based? Mr. Charles E. Jones of the Department ofJustice in Washington is quoted as saying, "There is no certaintyof a Torrens certified being good; at best it is but prima facieevidence of title. It must be accompanied by an abstract oftitle and a certified copy of all court proceedings under whichthe certificate was issued." Necessarily, the Torrens Systembreeds litigation, since the initial registration involves litigation,and the subsequent interpretation of the certificate gives rise tofurther contention. In effect, the courts have said that a persontaking a Torrens certificate does so at his peril, the same as onewho bought worthless stock without proper inquiry.The Torrens System is opposed to the spirit of our constitution,and the basic principles of our jurisprudence, and is in directconflict with the XIVth amendment, which guarantees due pro-cess of law. The registrar must be given absolute and unlimitedpower in order to operate this system successfully. This powermay be given in a country where no such guaranty exists, butnot even the president himself can be given so arbitrary a powerunder our constitution. The Torrens System assumes to bindall parties whether made defendants or not, under the name of"All whom it may concern," but under our constitution no manmay be deprived of his property without his day in court, andif a man is known and his name can be ascertained, he cannotbe bound under the description of "All whom it may concern."It is a compulsory dual system of registration because theremust first be a complete abstract of title made and then aninitial lawsuit. Further, there is compulsory contribution toan indemnity fund.Since the abstract is necessary there is no saving in time ormoney, but on the other hand, the proceeding is very expensive;the court costs alone are estimated at about $94.o in an initialsuit, plus the cost of the abstract, ordinarily about $25.oo. Atleast 9o days are ordinarily required for initial transfers and forsubsequent transfers usually ten days are required-vastly moretime than is required for a policy of title insurance.Banks and other investors will not loan on Torrens certificatesunless accompanied by abstracts and legal opinions.The type of men selected for registrars and assistants has notbeen such as the advocates of the system would like to have usbelieve. Ordinarily they are politicians with no specialized train-u15MARQUETTE LAW REVIEWing or real qualifications such as should fit them for the dutiesimposed on them by this utopian scheme.If it is a proper governmental function to issue certificatesof title superseding the policy of title insurance why is it notproper for the government to undertake fire and theft insurance?The recollection of the government management of railroads istoo fresh in the minds of most of us at this time to think ofincreasing the functions of governmental activity.The indemnity fund is wholly inadequate because a county orstate has no right to enter into the business of guaranteeing orinsuring titles, and a guaranty fund can Gnly be built up by tax-ing one man to pay a possible defect in another's title. Beforea defrauded property owner can maintain suit to recover fromthe fund he must first establish the fact that he has sued theparty directly responsible and has been unable to recover.Further such suit must be brought within a limited time afterthe wrong was committed, and failure to learn of such wronguntil after the time limit has expired would completely bar anyrecovery. Ordinarily the total amount in such an indemnityfund is insufficient to satisfy the loss in any single case.No provision is made for owners less than in fee, and equitableinterests not subject to registration are wholly unprotected. Theright of adverse possession is wholly destroyed and all posses-sory interests are jeopardized. The certificate is of no morevalue where there are forged or invalid deeds than a mere quit-claim deed.It lowers land values because valid restrictions against ob-jectionable occupants and offensive businesses are evaded withoutknowledge of the court or the property owners interested. TheTorrens certificate shows free and clear of all encumbrances,conditions and restrictions, although under the recording systemcertain things have been expressly prohibited.The system although in effect in nineteen states has not provedpopular. While in 1918-1919 there were 1,476 court cases, 2,795applicants, 9,651 parcels of property, under Torrens proceedings,in 1920-1921 there were 748 court cases, 1,846 applicants, 5,121parcels of property, and in the six months from Jan. 1921 toJuly 1921 there were 335 court cases, 431 applicants, and 942parcels.MARQUETTE LAW REVIEWSummarizing; the defects most patent seem to be, the cer-tificate is ndt final nor conclusive, it compels a dual system ofregistration, it is in flagrant violation of the XIVth amendment,an abstract is necessary and there is no saving of time nor ex-pense, there is no protection to grantees under forged or un-delivered deeds, the indemnity fund is insufficient, banks will notloan on certificate, the system breeds litigation, it is not properlya governmental function, the men in charge are not fitted byexperience or training, it depreciates property values, and lastly,and most important of all there is no demand for it as there is nonecessity for it.I. A GREAT CONSTRUCTIVE REFORMIt might be well, at this point, to give a brief explanation ofjust what the Torrens System is, and what it seeks to do. TheTorrens System is a scheme of title registration devised by SirRobert Torrens, for whom it is named, whereby a unit of prop-erty is first placed on the registry with reference to the landitself, and the title is registered and established as good byjudicial proceedings. The entry of transactions on the registeris essential to their validity, and the original registration andentry of subsequent transactions operates as a warranty of titlein the registered owner and as a bar to adverse claims. Anofficial examiner of the Court examines thoroughly the title, upona written application filed by the owner, accompanied by suchusual evidences of title as are required by the Torrens law,before any decree of registration is made. When satisfied thatthe title is good, the Court enters a decree of registration, anda certificate of ownership is issued by the County Recorder tothe owner, in duplicate, the original appearing on one page ofthe Recorder's Register, on which are entered the incumbrancesupon the property. The subsequent transfer of title is accom-plished by deed or entry on the owner's duplicate certificate, ac-companied by an entry of the fact in the Registrar's office. Onepage of the record in the Recorder's office discloses the ownerand the incumbrances at a glance, and at any time.In short, then, the Torrens System is a plan of conveyancingwhich substitutes certificates for abstracts, and registration formere recording of deeds.MARQUETTE LAW REVIEWThat there is need for the Torrens reform can be learnedfrom a consideration of the defects of the present system.In the first place the Recording System fails to protect pur-chasers in the case of undelivered deeds. infancy of grantor,and in cases where, although the grantor has been declared inthe deed to be single, he was in fact married and had a husbandor wife living entitled to curtesy or dower. Further, there isno protection for purchasers where the owner of land died in-testate and proofs of heirship were made upon his death.Secondly, and a more serious difficulty has been the ever-in-creasing cost of transfers. Foreclosures, partitions, quiet titleproceedings, transfer by devise or intestacv make abstracts oftitle very expensive. Chains of title have grown long and in-volved and have entailed the necessity of examination by com-petent and skilled attorneys at increased expense. The RecordingSystem causes an accumulation of an ever-increasing mass ofpublic records of deeds and liens affecting land which tends tocreate delay and expense in the examination of titles.The Recording System has necessarily given rise to the Ab-stract Company and the Title Guaranty Company, whose businesshas tended to become a monopoly occasioning in many cases ex-cessive charges. In the event the Title Guaranty company makesa fatal mistake the owner's recovery is limited to the face valueof his policy, usually much less than his actual loss. Ordinarilythe amount of time required to close a real estate transferthrough a title company is considerable. There is also, usually,a gap between the date of the company's opinion and the date ofpassing deeds and purchase money, because of which the sellereither has to take the chance of subsequent conveyances or in-cumbrances or else stand the expense of an escrow charge. Solong as the owner still has the right to file all sorts of papers,becoming involved in litigation, die intestate or leaving a com-plicated will, between the date of one title policy and another,the necessity of an expensive search may arise for a singletransfer. Further, title may be found so defective that it wouldnecessitate a quiet title action before the title company wouldinsure the title. Titles may thus become a matter of the judg-ment or caprice of the title officer, and the mere indemnityagainst actual loss provided by a title insurance policy can nevermake a defective or doubtful title marketable.xz8MARQUETTE LAW REVIEWIt is frequently charged that the Torrens System is un-Ameri-can and diametrically opposed to the fundamental law of theland. In American Land Co. vs. Zeiss, 219 U. S. 47, the lateChief Justice White said,"To argue that the provisions of the statute are repugnant tothe due-process clause, because a case may be conceived whererights in and to property would be adversely affected withoutnotice, being actually conveyed by the proceedings, is in effectto deny the power of the state to deal with the subject. Thecriterion is not the possibility of conceivable injury, but the justand reasonable character of the requirements, having referenceto the subject with which the statute deals. . . . On thecontrary, the provisions of the due-process clause only restrainthose arbitrary and unreasonable exertions of power which arenot really within lawful State power, since they are so unreason-able and unjust as to impair or destroy fundamental rights."Justice McKenna in Ballard vs. Hunter, 204 U. S. 241, said,"It should be kept in mind that the laws of a State come underthe prohibition of the fourteenth amendment only when theyinfringe fundamental rights. . . . A precise definition of "dueprocess of law" has never been attempted. It does notalways mean proceedings in court. Its fundamental require-ment is an opportunity for a hearing and defense, but no fixedprocedure is demanded. The process or proceeding may beadapted to the nature of the case."The question of the validity of service by publication uponunknown persons, resident or non-resident, minors and thoseunder disability has been decided in Twining vs. New Tersey,211 U. S. 78, Orndt vs. Briggs, 134 U. S. 316, and in 219 U. S.47, supra.The Torrens System settles definitely and finally the validityof title. James Edward Hogg of London, in his book entitled,Registration of Title to Land Throughout the Empire, says,"The register, however, operates not merely by declaring gooda title found to be so, but confers the title stated, notwithstand-ing that, but for the registration, the registered owner would haveno title at all. This operation of the register in actually con-ferring title resembles that of limitation statutes. But there ismuch more than a bar of legal remedies, for the title (if any)of the hostile claimant is completely abrogated and in effect"19MARQUETTE LAW REVIEWtransferred to the registered owner, conferring on the latter atitle good against the world."Alfred G. Reeves, an acknowledged authority upon realty lawsays,"One of the splendid features of the Torrens system-a featurewhich realty interests should emphasize-is in its supplying amethod whereby the owner of property may have his title testedand adjudged, even though no attack is being made thereon.Without this law a landowner whose title is questioned, how-ever improperly or unsubstantially must often wait for a directattack upon it, or a rejection of it, when it has been contractedto be sold, before he can get into court to settle the questionsinvolved. But a registration action entitles him to proceed affirma-tively and compel all who might gainsay his ownership, to comein and successfully assert their claims or have them foreverbarred and extinguished."By means of the Torrens System protection is afforded to allinterested parties. The danger of a bad title being registeredunder the Torrens Act is, undoubtedly considerably less thanunder a decree in a quiet title proceeding as greater degree of careis exercised in the examination of titles under this system thanunder ordinary court proceedings.The state of title is always a matter of record under the Tor-rens System. Since it can only be changed by act of theregistrar, the exact status of title is known at all times. Mis-descriptions are practically impossible under this system.Under the Torrens System the rapid transfer of titles isgreatly facilitated, and in fact, transfers subsequent to the ini-tial registration can be made in twenty-four hours.The cost of transfers is greatly reduced where this systemprevails. In Chicago, the average cost of the initial registrationis about thirty-five dollars. Each new certificate costs threedollars, no matter how difficult or involved. William C. Niblackof the Chicago Title and Trust Company, one of the ablest andbest informed opponents of the Torrens System, says on thisscore,"It is undoubtedly true that the Torrens System is cheaper inthe long run than the system of procuring an abstract of titleto land and having it examined by a lawyer on each dealingwith the land. . . . In large communities the latter systemMARQUETTE LAW REVIEWhas become expensive and unscientific enough to attract atten-tion. . . . The progress of the Torrens System in thiscountry is not to be impeded by mere adverse opinion as to itsadaptability to our laws. A large part of the people in theseveral states desire to have it tried and the trial is now on.. . . This trial is to be a fair one, to be conducted patientlyand slowly, and it will not be concluded until the success orfailure of the system is demonstrated."Summarizing: the advantages of the Torrens System whichmake it a great constructive reform and a consummation devoutlyto be wished are-i. Title is warranted, whereas under the recording systemthe record is no bar to adverse claims, and carries no warrantyprior to the record.2. Registration shows at a glance, all former dealings affect-ing a particular parcel of land.3. An ample assurance fund is provided as indemnity to coverany loss or damage.4. Registration protects against fraudulent signatures sincethe owner's signature is always on file. Protection is affordedagainst clouding title by judgments against persons of the sameor similar names.5. Adverse possession does not run against Torrens titles.6. The physical boundaries of land are determined and keptfixed by registration.7. Defective titles are cured by registration whereby defectsare wiped out even though no attack is made thereon.8. Ordinary transfers of registered property can be made intwenty-four hours.9. The Torrens System substitutes at every step official actsfor private acts.io. The Torrens certificate abolishes secret liens and hiddenequities.ii. By means of the Torrens System endless expense of ab-stracts and extensions thereon is eliminated.12. Torrens registration stops the accumulation of publicrecords of deeds and liens affecting land and eliminates the con-sequent delay and expense of title examination.121

The Torrens System

Marquette Law ReviewVolume 6Issue 4 Volume 6, Issue 4 (1922) Article 9NoticeAnonymousFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationAnonymous, Notice, 6 Marq. L. Rev. 183 (1922).Available at: http://scholarship.law.marquette.edu/mulr/vol6/iss4/9MARQUETTE LAW REVIEWNOTICEThe publishers of the Shepard Citation Books announce theissuance of a booklet entitled, A Table of Federal Acts HavingPopular Names, or with Statutory Designations.Practitioners who have occasion to deal with federal legislationfrequently find references to important statutes by some popularor statutory designation. This is true as to the opinions of thecourts as well as in other research units into which the investi-gator's efforts carry him. In addition, lawyers will frequentlyremember a statute by name, without readily conceiving the par-ticular topic under which to look for the statute in an elaborateindex to a complete statute book.For these and other similar reasons, the booklet in questionis an instrument of distinct convenience to the bench and bar,and the demand for it has been exceedingly large.We have been able to arrange for the publishers to supply copiesof this booklet to our readers. If you will simply send yourname and address with the request that you be sent the Table ofFederal Acts Having Popular Names or with Statutory Designa-tions, to the Frank Shepard Company, 14o-148 Lafayette Street,New York, you will receive it promptly and without obligationor expense to you.

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Service by Publication, an Exparte Proceeding

Defenses Against a Holder in Due Course

Women\u27s Rights in Wisconsin

Finality of Orders and Decrees of the County Courts of Wisconsin in Probate Matters

Law: Nature, Source and Classification

Index to Volume 6

Editorial Comments

The Torrens System

Notice

The Performance of What One is Already Bound to Do as a Consideration in Wisconsin

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