Farley v. Shippen

First page of the opinion Farley v. Shippen, in Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions, by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).

Farley v. Shippen, Wythe 254 (1794), discussed whether the brother of a dead person acted as a trustee or as an heir when handling the dead person's property. It also discussed whether the High Court of Chancery had jurisdiction in a dispute that involved land in another state along with land in Virginia, and whether descendants who remained British subjects instead of American citizens after the Revolutionary War were barred from claiming their inheritance in American courts.

Background

In 1755, brothers and British citizens Francis and Simon Farley bought 26,000 acres of land in North Carolina called Saura town (known today as the city of Eden) for £1000. Together with Francis Miller, they also bought several parcels of land in Norfolk, Virginia. Simon Farley paid half of the price for Saura, and one-third of the price of the land in Norfolk. Both brothers resided in Antigua, but Francis occasionally visited Virginia, so he handled the purchase and management details.

Simon Farley died in 1756; in his will, Simon appointed Francis Farley the executor of his estate as well as the guardian of Simon's children (and the plaintiffs in this case), John Simon Farley and Elizabeth Morson.

After Simon Farley died, Francis Farley bought Francis Miller's third of the Norfolk land. In 1757 and 1758, Francis Farley sent increasingly-urgent letters to Francis Miller asking Miller to send him the sale documents as soon as possible. In the letters, Francis Farley explained that his brother's death made him think about his own mortality, so he wanted to give one-half of the land to each of his children just in case he met an unexpected end.

Francis Farley sent letters to his son John Simon in 1777 and 1778 begging him to give up his colonel's commission in the Royal British Army so that John Simon could come to America and claim his property. Otherwise, Francis feared that the American government would seize John Simon's land.

Some time in 1778 or 1779, Francis Farley died. In his will, Francis left all his land in Virginia and North Carolina to his grandchildren, American citizens and the defendants in this case. Wythe assumed that Francis did this because Francis was worried the United States would seize the land if he left it to John Simon. A witness testified that Francis wanted to add a declaration to his will clarifying John Simon's rights to the land in Saura and Norfolk, but the attorney who wrote the will refused to add the declaration for "reasons of policy".

John Simon and Elizabeth claimed that that Francis Farley held the land in Saura and Norfolk in trust for them, and filed a bill in the High Court of Chancery to deliver the land, as well as any profits made from the land, to them.

The defendants said that there was no trust, and that they were the proper owners as Francis Farley's heirs. In addition, John Simon and Elizabeth were British imperial subjects and therefore unable to inherit land in the United States. Furthermore, the plaintiffs did not file the claim in time and were barred by the statute of limitations, and Virginia courts had no jurisdiction over land in North Carolina.

The Court's Decision

The High Court of Chancery held that Francis Farley was acting as a trustee for the plaintiffs and that the land should be transferred to John Simon Farley and Elizabeth Morson.

Was Francis Farley a Trustee?

Wythe first tackled the issue of whether Francis Farley was acting as a trustee of the land for Simon's children. Wythe said that when property has more than one owner, common-law courts traditionally preferred to find that the owners had a joint tenancy (which had a right of survivorship - i.e., if one owner died, their share of the ownership passed on to the other owners) instead of a tenancy in common (which did not have a right of survivorship, so that if one owner died, their right to the property would go to their descendants) because the common law does not like estates to be split into fractions. Wythe cited the case of Fisher v. Wigg from William Peere Williams's Reports to illustrate this principle, as well as Coke upon Littleton. On the other hand, Wythe looked at a situation described in Littleton's treatise on tenures that was similar to the situation in Fisher v. Wigg, but which Littleton said created a tenancy in common. Wythe said, tongue perhaps nestled firmly in cheek, that a man who was "not an admirer of law jargon" would have a hard time figuring out the different results. In fact, one might even think, as did the chancellor in Draper's Case that the difference between creating a joint tenancy and a tenancy in common was a judge's whim.

At any rate, as long as it was within their power, courts of equity such as the Chancery Court usually opposed creating a right of survivorship in cases of joint ownership. The only case Wythe could think of in which a right of survivorship would not be unjust was a situation in which all the owners deliberately agreed to create it.

Wythe found plenty of evidence to decide that Francis Farley was acting as a trustee of the land for Simon's children. Francis had charged Simon's account for half of the expenses incurred from administering the land. Neither Francis nor Simon Farley intended to create a right of survivorship, and Simon very well may not have known that such a thing could happen, as shown by Francis leaving the land to his children in his will and appointing Francis the executor. Francis did not intend to create a right of survivorship, as shown by his efforts to pass half of the estate to Simon's children as soon as possible after Simon's death, and by Francis Farley buying one-third of the Norfolk land from Francis Miller instead of one-half (buying one-half of the estate would have implied that Francis Farley believed the land was now only owned by the two Francises). Wythe also noted that Francis and Simon Farley both used Francis Miller as their agent to buy the land, and in such situations a court of equity may deem the surviving owner a trustee.

Francis Farley tried to get a declaration added to his will making Simon's children heirs to the Saura and Norfolk land, and was only unable to do so because of his attorney's refusal. Wythe cited the case of Frederick v. Frederick from Strange's Reports for the idea that the common rule in equity is that if an agreement made with valid consideration is not completed, the person who held up their end of the bargain will get what they would have received had the contract been completed. By that same token, Wythe said, if one party's completion of a contract duty was stopped due to circumstances beyond their control, equity demands that the other party benefit as if the contract had been completed. All the legal consideration Francis Farley needed to validate the contract was his feeling of having done right by Simon's children, whom Francis knew were the proper owners of Simon's ownership share in the land.

If a court of law cannot provide a legal title because of something that happened after a person began trying to get the remedy (for example, the defendant in the case dies after the court issues the writ but before the writ can be returned and registered), then a court of equity has the power to provide that title, because it is just completing an act already in progress. Equity will not deny someone the benefit of the intended bargain just because one of the parties to a contract did not follow the proper legal procedures.

Therefore, the Chancery Court held that Francis Farley was acting as trustee of Simon's half of the Norfolk and Saura land for Simon's children.

Can British subjects inherit land in the United States?

A 1779 Virginia statute had a preamble stating that after the United States declared independence from the British Empire, all British subjects residing outside the United States became aliens and enemies of the U.S. Therefore, under the "laws of the commonwealth" of Virginia, the state assumed title of all property held by British subjects. Wythe said he could only assume that "the laws of the commonwealth" the 1779 statute referred to was the common law, since Wythe could recall no law passed by the legislature that barred aliens from holding property.

But Wythe could not find support for the defendants in the common law, either. Calvin's Case from Coke's Reports stated that native-born British subjects can never become alien to their fellow British. Henry de Bracton stated that it was possible for someone to have allegiance to two different kings. If the kings declared war on each other, the person would serve homage (i.e., perform military duty) to one king and serve the other through an attorney.

Wythe admitted that it might be problematic for American property to be held by enemies "in the popular sense", but he cited Calvin's Case and Craw v. Ramsey from Vaughan's Reports for reminders that judges must rule according to what the law is, not what it should be.

Wythe expressed hope that when new nations are created out of the violent rending of empires, evils done during and after the wars could eventually be remedied through rationally-negotiated treaties rather than through ruinous litigation. In a footnote, Wythe even voiced a desire that someday mankind would develop a more humane way for settling national differences than the regum ultima ratio ("the final argument of kings", i.e., war).

So, the Chancery Court held that according to the common law at the time, Simon's children were not aliens, and their property was not subject to forfeiture to the state government. Virginia's 1779 statute may have stated differently, but that was only an expressed opinion in a preamble by the Virginia Assembly of what the law was, not binding law created by the assembly. On its own, it could not change the common law or create new law. In addition, even if it were binding law, it would not have affected the land at issue in North Carolina.

Did the statute of limitations prevent the plaintiff's claim?

Wythe cited Ford v. Grey from Salkeld's Reports in ruling that the statute of limitations did not apply in this case because the land in question was the plaintiffs' property under equity.

Can the Virginia High Court of Chancery award land in North Carolina to the plaintiffs?

Wythe noted that the Virginia Assembly had passed statutes granting its courts of equity jurisdiction to seize Virginia property held by non-residents of Virginia. Wythe also remarked that a sale contract signed and executed in Virginia would transfer land in North Carolina just as effectively as a contract performed in that state. So why, Wythe asked, should a Virginia court not be able to order the transfer of land in North Carolina just as effectively as its North Carolina brethren? Wythe did not think that such an order from a Virginia court would violate North Carolina's sovereignty, because performing the same act in Virginia voluntarily would not intrude on that state's powers.

The defendants argued that the Chancery Court could not issue an order seizing land in North Carolina because its rulings are not binding precedent there. True, Wythe said, the Chancery Court's decisions are not law in North Carolina, and the defendants may be able to evade judgment by moving to North Carolina, but that does not mean the Chancery Court cannot make the order in the first place. Wythe also noted that the United States's new Constitution included a clause requiring all states to give full faith and credit to the public acts, records, and judicial proceedings of the other states. Though the federal government had not yet completed provisions to make this reality, Wythe hoped that soon judicial writs would be given the same accord in other states as contracts and arbitrators' decisions.

Wythe also gave examples of how awkward it would be if courts were only allowed to issue writs governing land in their own state:

• What about a contract between two Virginians to sell, or to hold in trust, land in one of the new northwestern colonies hundreds of miles away?
• What if an agent takes money from someone to buy land but won't deliver title, or even say where the land is? The agent could force the buyer to file suit in every state in the union until the buyer finds the state where the land is.

Therefore, the Chancery Court has the power to issue a writ requiring the defendants to turn over the land in North Carolina to the plaintiffs.

Works Cited or Referenced by Wythe

Thomas Littleton's Les Tenures de Monsieur Littleton: ouesque certain cases addes per auters de puisne temps, qu[eu]x cases vo[us] troueres signes ouesq[ue] cest signe…

Quotation in Wythe's opinion:

"if lands be given to two, to have and to hold, s. the one moiety to the one, and tohis heirs, and the other moiety to the other, and to his heirs, they are tenents in common. And this hath never been denied to be law even when the gift was by deed. But if the lands be given by deed to two, to be equally divided between them, and their respective heirs, the law hath been declared by many adjudications to be, that the donees are jointenents, and not tenents in common.

References