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grantor making the acknowledgment, he made the contents known
which provided that "any deed heretofore executed pur-
evidence in any of the courts of this State, as conveying
Other cases go much farther than this, and hold that, although
i Chestnut v. Shane's Lessee, 16 Todd, 41 Md. 633. But the legis-
“ That opinion stands upon be effectual, cannot be validated by
2 Lessee of Walton v. Bailey, 1
to go beyond the mere confirmation of a contract, and to be at least technically objectionable, as depriving a party of property * without an opportunity for trial, inasmuch as [* 378] they proceeded upon the assumption that the title still remained in the grantor, and that the healing act was required for the purpose of divesting him of it, and passing it over to the grantee. Apparently, therefore, there would seem to be some force to the objection that such a statute deprives a party of vested rights. But the objection is more specious than sound. If all that is wanting to a valid contract or conveyance is the observance of some legal formality, the party may have a legal right to avoid it: but this right is coupled with no equity, even though the case be such that no remedy could be afforded the other party in the courts. The right which the healing act takes away in such a case is the right in the party to avoid his contract, a naked legal right which it is usually unjust to insist upon, and which no constitutional provision was ever designed to protect.? As the point is put by Chief Justice Parker of Massachusetts, a party cannot have a vested right to do wrong ;3 or, as stated by the Supreme Court of New Jersey, “ Laws curing defects which would otherwise operate to frustrate what must be presumed to be the desire of the party affected, cannot be considered as taking tive; but in justice and equity it did Rumsey, 35 Ill. 362; Alabama, &c. not leave her right to the property Ins. Co. v. Boykin, 38 Ala. 510; Orton untouched. She had capacity to do v. Noonan, 23 Wis. 102;
Dade v. the act in a form prescribed by law Medcalf, 9 Penn. St. 108. for her protection. She intended to 2 In Gibson v. Hibbard, 13 Mich. do the act in the prescribed form. 215, a check, void at the time it was She attempted to do it, and her at given, for want of a revenue stamp, tempt was received and acted on in was held valid after being stamped as good faith. A mistake subsequently permitted by a subsequent act of discovered invalidates the act; justice Congress. A similar ruling was and equity require that she should not made in Harris v. Rutledge, 19 Iowa, take advantage of the mistake; and 389. The case of State v. Norwood, she has therefore no just right to the 12 Md. 195, is still stronger. The property. She has no right to com- curative statute was passed after plain if the law which prescribed judgment had been rendered against forms for her protection shall inter- the right claimed under the defective fere to prevent her reliance upon instrument, and it was held that it them to resist the demands of jus- must be applied by the appellate tice." Similar language is employed court. See post, p. *381. in the Pennsylvania cases.
See fur- 8 Foster v. Essex Bank, 16 Mass. ther, Dentzel v. Waldie, 30 Cal. 138. 245. See also Lycoming v. Union,
1 This view has been taken in 15 Penn. 166, 170. some similar cases. See Russell v.
away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case.” 1
The operation of these cases, however, must be carefully restricted to the parties to the original contract, and to such other persons as may have succeeded to their rights with no greater equities. A subsequent bona fide purchaser cannot be deprived of the property which he has acquired, by an act which retrospectively deprives his grantor of the title which he had when the purchase was made. Conceding that the invalid deed may be made good as between the parties, yet if, while it remained invalid, and the grantor still retained the legal title to the land,
a third person has purchased and received a conveyance, [* 379] with no notice of any fact which should * preclude his
acquiring an equitable as well as a legal title thereby, it would not be in the power of the legislature to so confirm the orig. inal deed as to divest him of the title he has acquired. The position of the case is altogether changed by this purchase. The legal title is no longer separated from equities, but in the hands of the second purchaser is united with an equity as strong as that which exists in favor of him who purchased first. Under such circumstances even the courts of equity must recognize the right of the second purchaser as best, and as entitled to the usual protection which the law accords to vested interests.2
1 State v. Newark, 25 N. J. 197. ing, 25 Tex. 408; Wright v. Hawkins, Compare Blount v. Janesville, 31 Wis. 28 Tex. 452. The legislature cannot 648; Brown v. New York, 63 N. Y. validate an invalid trust in a will, by 239. In New York, &c. R. R. Co. v. act passed after the death of the testaVan Horn, 57 N. Y. 473, the right of tor, and after title vested in the heirs. the legislature to validate a void con- Hilliard v. Miller, 10 Penn. St. 338. tract was denied on the ground that to See Snyder v. Bull, 17 Penn. St. 58 ; validate it would be to take the prop- McCarthy v. Hoffman, 23 Penn. St. erty of the contracting party without 507; Bolton v. Johns, 5 Penn. St. due process of law. The cases which 145; State v. Warren, 28 Md. 338. are contra are not examined in the The cases here cited must not be unopinion, or even referred to. derstood as establishing any different
2 Brinton v. Seevers, 12 Iowa, 389; principle from that laid down in Southard v. Central R. R. Co., 26 Goshen v. Stonington, 4 Conn. 209, N. J. 22; Thompson v. Morgan, where it was held competent to vali6 Minn. 292; Meighen v. Strong, date a marriage, notwithstanding the 6 Minn, 177; Norman v. Heist, 5 W. rights of third parties would be inci& S. 171 ; Greenough v. Greenough, dentally affected. Rights of third par11 Penn. St. 494; Le Bois v. Bramel, ties are liable to be incidentally affected 4 How. 449; McCarthy v. Hoffman, more or less in any case in which 23 Penn. St. 508 ; Sherwood v. Flein- a defective contract is made good; but
If, however, a grantor undertakes to convey more than he possesses, or contrary to the conditions or qualifications which, for the benefit of others, are imposed upon his title, or in fraud of the rights of others whose representative or agent he is, so that the defect in his conveyance consists not in any want of due formality, nor in any disability imposed by law, it is not in the power of the legislature to validate it retrospectively; and we may add, also, that it would not have been competent to authorize it in advance. In such case the rights of others intervene, and they are entitled to protection on the same grounds, though for still stronger reasons, which exist in the case of the bona fide purchasers above referred to.1
this is no more than might happen in to whom her estate descends, because enforcing a contract or decreeing a di- of the omission of a prescribed form, vorce. See post, p. *384. Also Tall- are really not injured by the validaman v. Janesville, 17 Wis. 71.
tion. It was in her power to cut 1 In Shouk v. Brown, 61 Penn. St. them off, and in truth and conscience 327, the facts were that a married she did so, though she failed at law. woman held property under a devise, They cannot complain, therefore, that with an express restraint upon her the legislature interferes to do justice. power to alienate. She nevertheless But the case before us is different. gave a deed of the same, and a legis- [The grantor] had neither the right lative act was afterwards obtained to nor the power during coverture to cut validate this deed. Held void. Ag- off her heirs. She was forbidden by
Many cases have been the law of the gift, which the donor cited to prove that this legislation is imposed upon it to suit his own purmerely confirmatory and valid, begin- poses. Her title was qualified to this ning with Barnet v. Barnet, 15 S. & extent. Having done an act she had R. 72, and ending with Journeay v. no right to do, there was no moral Gibson, 56 Penn. St. 57. The most obligation for the legislature to enof them are cases of the defective ac- force. Her heirs have a right to say knowledgments of deeds of married ..the legislature cannot take our women. But there is a marked differ- estate and vest it in another who ence between them and this. In all bought it with notice on the face of his of them there was a power to convey, title that our mother could not convey and only a defect in the mode of its to him.' The true principle on which exercise. Here there is an absolute retrospective laws are supported was want of power to convey in any mode. stated long ago by Duncan, J., in UnIn ordinary cases a married woman derwood v. Lilly, 10 S. & R. 101; to bas both the title and the power to wit, where they impair no contract, or convey or to mortgage her estate, but disturb no vested right, but only vary is restricted merely in the manner of remediis, cure defects in proceedings its exercise. This is a restriction it otherwise fair, which do not vary exis competent for the legislature to isting obligations contrary to their remove, for the defect arises merely situation when entered into and when in the form of the proceeding, and prosecuted.” In White Mountains not in any want of authority. Those R. R. Co. v. White Mountains R. R.
We have already referred to the case of contracts by municipal corporations which, when made, were in excess of their authority, but subsequently have been confirmed by legislative action. If the contract is one which the legislature might originally have authorized, the case falls within the principle above laid down, and the right of the legislature to confirm it must be recognized.? This principle is one which has very often been acted upon in the case of municipal subscriptions to works of internal improvement, where the original undertaking was without authority of law, and the authority given was conferred by statute retrospectively.?
It has not usually been regarded as a circumstance of importance in these cases, whether the enabling act was before or after the corporation had entered into the contract in question ; and if the legislature possesses that complete control over the subject of taxation by municipal corporations which has been declared in
Co. of N. H., 50 N. H. 50, it was de- must be of such a character that the cided that the legislature had no legislature is authorized to provide power, as against non-assenting par- for it by taxation. The method ties, to validate a fraudulent sale of adopted must be one liable to no corporate property. In Alter's Ap- constitutional objection. It must be peal, 67 Penn. St. 341, 8. c. 5 Am. such as the legislature might origiRep. 433, the Supreme Court of nally have authorized had it seen fit. Pennsylvania declared it incompetent With these restrictions, where work for the legislature, after the death of of this character has been done, I a party, to empower the courts to cor- think it competent for the legislature rect a mistake in his will which ren- to supply a defect of authority in the dered it inoperative — the title having original proceedings, to adopt and already passed to his heirs. But ratify the improvement and provide where it was not known that the de- for a reassessment of the tax to pay cedent left heirs, it was held compe- for it.” And see Brewster 0. Syratent, as against the State, to cure cuse, 19 N. Y. 116; Kunkle v. Frankdefects in a will after the death, and lin, 13 Minn. 127 ; Boyce v. Sinclair, thus prevent an escheat. Estate of 3 Bush, 264 ; Dean o. Borchsenius, Sticknoth, 7 Nev.: 229.
30 Wis. 236; Stuart v. Warren, 37 1 See Shaw V. Norfolk R. R. Conn. 225. A city ordinance may be Corp., 5 Gray, 179, in which it was validated retrospectively. Truchelut held that the legislature might vali- v. Charleston, 1 N. & McC. 227. date an unauthorized assignment of a 2 See, among other cases, McMillan franchise. Also May v. Holdridge, v. Boyles, 6 Iowa, 330; Gould v. Ster23 Wis. 93, and cases cited, in which ling, 23 N. Y. 457 ; Thompson v. Lee statutes authorizing the reassessment County, 3 Wall. 327; Bridgeport o. of irregular taxes were sustained. In Housatonic R. R. Co., 15 Conn. 475; this case, Paine, J., says : “ This rule Board of Commissioners o. Bright, 18 must of course be understood with its Ind. 93; Gibbons v. Mobile, &c. R. R. proper restrictions.
The work for Co., 36 Ala. 410. which the tax is sought to be assessed