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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.2 As the point is put by Chief Justice Parker of Massachusetts, a party cannot have a vested right to do wrong; 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 away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case."4

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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, with no notice of any fact [*379] which should *preclude his acquiring an equitable as

1 This view has been taken in some similar cases. See Russell v. Rumsey, 35 Ill. 362; Alabama, &c., Ins. Co. v. Boykin, 38 Ala. 510; Orton v. Noonan, 23 Wis. 102; Dade v. Medcalf, 9 Penn. St. 108.

* In Gibson v. Hibbard, 13 Mich. 215, a check, void at the time it was given, for want of a revenue stamp, was held valid after being stamped as permitted by a subsequent act of Congress. A similar ruling was made in Harris v. Rutledge, 19 Iowa, 389. The case of State v. Norwood, 12 Md. 195, is still stronger. The curative statute was passed after judgment had been rendered against the right claimed under the defective instrument, and it was held that it must be applied by the appellate court. See post, 381.

Foster v. Essex Bank, 16 Mass. 245.

State v. Newark, 3 Dutch. 197.

well as a legal title thereby, it would not be in the power of the legislature to so confirm the original 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.1

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.2

1 Brinton v. Seevers, 12 Iowa, 389; Southard v. Central R.R. Co., 2 Dutch. 22; Thompson v. Morgan, 6 Minn. 292; Meighen v. Strong, 6 Minn. 177; Norman v. Heist, 5 W. & S. 171; Greenough v. Greenough, 11 Penn. St. 494; Le Bois v. Bramel, 4 How. 449; McCarthy v. Hoffman, 23 Penn. St. 508. Sherwood v. Fleming, 25 Texas, 408; Wright v. Hawkins, 28 Texas, 452. The legislature cannot validate an invalid trust in a will, by act passed after the death of the testator, and after title vested in the heirs. Hilliard v. Miller, 10 Penn. St. 338. See Snyder v. Bull, 17 Penn. St. 58; McCarthy v. Hoffman, 23 Penn. St. 507; Bolton v. Johns, 5 Penn. St. 145; State v. Warren, 28 Md. 338. The cases here cited must not be understood as establishing any different principle from that laid down in Goshen v. Stonington, 4 Conn. 209, where it was held competent to validate a marriage, notwithstanding the rights of third parties would be incidentally affected. Rights of third parties are liable to be incidentally affected more or less in any case in which a defective contract is made good; but this is no more than might happen in enforcing a contract or decreeing a divorce. See post, p. 384. Also, Tallman v. Janesville, 17 Wis. 71.

2 In Shouk v. Brown, 61 Penn. St. 327, the facts were that a married woman held property under a devise, with an express restraint upon her power to alienate. She nevertheless gave a deed of the same, and a legislative act was afterwards obtained to validate this deed. Held void. Agnew, J.: “ Many cases have been cited to prove that this legislation is merely confirmatory and

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 valid, beginning with Barnet v. Barnet, 15 S. & R. 72, and ending with Journeay v. Gibson, 56 Penn. St. 57. The most of them are cases of the defective acknowledgments of deeds of married women. But there is a marked difference between them and this. In all of them there was a power to convey, and only a defect in the mode of its. exercise. Here there is an absolute want of power to convey in any mode. In ordinary cases a married woman has both the title and the power to convey or to mortgage her estate, but is restricted merely in the manner of its exercise. This is a restriction it is competent for the legislature to remove, for the defect arises merely in the form of the proceeding, and not in any want of authority. Those to whom her estate descends, because of the omission of a prescribed form, are really not injured by the validation. It was in her power to cut them off, and in truth and conscience she did so, though she failed at law. They cannot complain, therefore, that the legislature interferes to do justice. But the case before us is different. [The grantor] had neither the right nor the power during coverture to cut off her heirs. She was forbidden by the law of the gift, which the donor imposed upon it to suit his own purposes. Her title was qualified to this extent. Having done an act she had no right to do, there was no moral obligation for the legislature to enforce. Her heirs have a right to say... the legislature cannot take our estate and vest it in another who bought it with notice on the face of his title that our mother could not convey to him.' The true principle on which retrospective laws are supported was stated long ago by Duncan, J., in Underwood v. Lilly, 10 S. & R. 101; to wit, where they impair no contract, or disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, which do not vary existing obligations contrary to their situation when entered into and when prosecuted." In White Mountains R.R. Co. v. White Mountains R.R. Co. of N. H.,. 50 N. H. 50, it was decided that the legislature had no power, as against nonassenting parties, to validate a fraudulent sale of corporate property. In Alter's Appeal, 67 Penn. St. 341; s. c. 5 Am. Rep. 433; the Supreme Court of Pennsylvania declared it incompetent for the legislature, after the death of a party, to empower the courts to correct a mistake in his will which rendered it inoperative — the title having already passed to his heirs. But where it was not known that the decedent left heirs, it was held competent, as against the State, to cure defects in a will after the death, and thus prevent an escheat. Estate of Sticknoth, 7 Nev. 229.

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'See Shaw v. Norfolk R.R. Corp., 5 Gray, 179, in which it was held that the legislature might validate an unauthorized assignment of a franchise. Also, May

v. Holdridge, 23 Wis. 93, and cases cited, in which statutes authorizing the reassessment of irregular taxes were sustained. In this case, Paine, J., says: This rule must of course be understood with its proper restrictions. The work

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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.1

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 many cases, it is difficult to perceive how such a corporation can successfully contest the validity of a special statute, which only sanctions a contract previously made by the corporation, and [* 380] which, though at the time ultra vires, was nevertheless.

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for a public and local object, and compels its performance through an exercise of the power of taxation.2

for which the tax is sought to be assessed must be of such a character that the legislature is authorized to provide for it by taxation. The method adopted must be one liable to no constitutional objection. It must be such as the legislature might originally have authorized had it seen fit. With these restrictions, where work of this character has been done, I think it competent for the legislature to supply a defect of authority in the original proceedings, to adopt and ratify the improvement and provide for a reassessment of the tax to pay for it." And see Brewster v. Syracuse, 19 N. Y. 116; Kunkle v. Franklin, 13 Minn. 127; Boyce v. Sinclair, 3 Bush, 264; Dean v. Borchsenius, 30 Wis. 236; Stuart v. Warren, 37 Conn. 225.

1 See, among other cases, McMillan v. Boyles, 6 Iowa, 330; Gould v. Sterling, 23 N. Y. 457; Thompson v. Lee County, 3 Wall. 327; Bridgeport v. Housatonic R.R. Co., 15 Conn. 475; Board of Commissioners v. Bright, 18 Ind. 93; Gibbons v. Mobile, &c., R.R. Co., 36 Ala. 410.

2 In Hasbrouck v. Milwaukee, 13 Wis. 37, it appeared that the city of Milwaukee had been authorized to contract for the construction of a harbor, at an expense not to exceed $100,000. A contract was entered into by the city providing for a larger expenditure; and a special legislative act was afterwards obtained to ratify it. The court held that the subsequent legislative ratification was not sufficient, proprio vigore, and without evidence that such ratification was procured with the assent of the city, or had been subsequently acted upon or confirmed by it, to make the contract obligatory upon the city. The court say, per Dixon, Ch. J.: "The question is, can the legislature, by recognizing the existence of a previously void contract, and authorizing its discharge by the city, or in any other way, coerce the city against its will into a performance of it, or . does the law require the assent of the city, as well as of the legislature, in order to make the obligation binding and efficacious? I must say that, in my opinion, the latter act, as well as the former, is necessary for that purpose, and that without it the obligation cannot be enforced. A contract void for want of capacity in one

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*Nor is it important in any of the cases to which we have referred, that the legislative act which cures the

or both of the contracting parties to enter into it is as no contract; it is as if no attempt at an agreement had ever been made. And to admit that the legislature, of its own choice, and against the wishes of either or both of the contracting parties, can give it life and vigor, is to admit that it is within the scope of legislative authority to devest settled rights of property, and to take the property of one individual or corporation and transfer it to another." This reasoning is of course to be understood in the light of the particular case before the court; that is to say, a case in which the contract was to do something not within the ordinary functions of local government. See the case explained and defended by the same eminent judge in Mills v. Charlton, 29 Wis. 413. The cases of Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143; Brewster v. Syracuse, 19 N. Y. 116; and Thomas v. Leland, 24 Wend. 65, especially go much further than is necessary to sustain the text. See also Bartholomew v. Harwinton, 33 Conn. 408; People v. Mitchell, 35 N. Y. 551; Barbour v. Camden, 51 Me. 608; Weister v. Hade, 52 Penn. St. 474; State v. Sullivan, 43 Ill. 413; Johnson v. Campbell, 49 Ill. 316. In Brewster v. Syracuse, parties had constructed a sewer for the city at a stipulated price, which had been fully paid to them. The charter of the city forbade the payment of extra compensation to contractors in any case. The legislature afterwards passed an act empowering the Common Council of Syracuse to assess, collect, and pay over the further sum of $600 in addition to the contract price; and this act was held constitutional. In Thomas v. Leland, certain parties had given bond to the State, conditioned to pay into the treasury a certain sum of money as an inducement to the State to connect the Chenango Canal with the Erie at Utica, instead of at Whitestown as originally contem→ plated, the sum mentioned being the increased expense in consequence of the change. Afterwards the legislature, deeming the debt thus contracted by individuals unreasonably partial and onerous, passed an act, the object of which was to levy the amount on the owners of real estate in Utica. This act seemed to the court unobjectionable. "The general purpose of raising the money by tax was to construct a canal, a public highway, which the legislature believed would be a benefit to the city of Utica as such; and independently of the bond, the case is the ordinary one of local taxation to make or improve a highway. If such an act be otherwise constitutional, we do not see how the circumstance that a bond had before been given securing the same money can detract from its validity. Should an individual volunteer to secure a sum of money, in itself properly leviable by way of tax on a town or county, there would be nothing in the nature of such an arrangement which would preclude the legislature from resorting, by way of tax, to those who are primarily and more justly liable. Even should he pay the money, what is there in the constitution to preclude his being reimbursed by a tax?" Here, it will be perceived, the corporation was compelled to assume an obligation which it had not even attempted to incur, but which private persons, for considerations which seemed to them sufficient, had taken upon their own shoulders. We have expressed doubts of the correctness of this decision, ante, 230-31, note, where a number of cases are cited, bearing upon the point.

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