the court. If by any means whatever a prize court should be induced to condemn, as prize of war, a vessel which was never captured, it could not be contended that this condemnation operated a change of property." Rose v. Himely, 4 Cranch, 241, 269. Upon the same principle, a decree condemning a vessel for unlawfully taking clams, in violation of a statute which authorized proceedings for her forfeiture in the county in which the seizure was made, was held by this court to be void, and not to protect the officer making the seizure from a suit by the owner of the vessel, in which it was proved that the seizure was not made in the same county, although the decree of condemnation recited that it was. Thompson e. Whitman, 18 Wall. 457.

The estate of a person supposed to be dead is not seized or taken into the custody of the court of probate upon the filing of a petition for administration, but only after and under the order granting that petition; and the adjudication of that court is not upon the question whether he is living or dead, but only upon the question whether and to whom letters of administration shall issue. Mutual Benefit L. Ins. Co. v. Tisdale, 91 U. S. 238, 243.

[The provisions of statutes of Washington, under which the probate proceeding was had, are set out.]

Under such a statute, according to the overwhelming weight of authority, as shown by the cases cited in the earlier part of this opinion, the jurisdiction of the court to which is committed the control and management of the estates of deceased persons, by whatever name it is called ecclesiastical court, probate court, orphans' court, or court of the ordinary or the surrogate — does not exist or take effect before death. All proceedings of such courts in the probate of wills and the granting of administrations depend upon the fact that a person is dead, and are null and void if he is alive. Their jurisdiction in this respect being limited to the estates of deceased persons, they have no jurisdiction whatever to administer and dispose of the estates of living persons of full age and sound mind, or to determine that a living man is dead and thereupon undertake to dispose of his estate.

A court of probate must, indeed, inquire into and be satisfied of the fact of the death of the person whose will is sought to be proved or whose estate is sought to be administered, because, without that fact, the court has no jurisdiction over his estate; and not because its decision upon the question whether he is living or dead can in, any wise bind or estop him, or deprive him, while alive, of the title or control of his property.

As the jurisdiction to issue letters of administration upon his estate rests upon the fact of his death, so the notice given before issuing such letters, assumes that fact, and is addressed, not to him, but to those who after his death may be interested in his estate, as next of kin, legatees, creditors or otherwise. Notice to

them cannot be notice to him, because all their interests are adverse to his. The whole thing, so far as he is concerned, is res inter alios acta.

Next of kin or legatees have no rights in the estate of a living. person. His creditors, indeed, may, upon proper proceedings, and due notice to him, in a court of law or of equity, have specific portions of his property applied in satisfaction of their debts. But neither creditors nor purchasers can acquire any rights in his property through the action of a court of probate, or of an administrator appointed by that court, dealing, without any notice to him, with his whole estate as if he were dead.

The appointment by the probate court of an administrator of the estate of a living person, without notice to him, being without jurisdiction, and wholly void as against him, all acts of the administrator, whether approved by that court or not, are equally void; the receipt of money by the administrator is no discharge of a debt; and a conveyance of property by the administrator passes no title.

The fact that a person has been absent and not heard from for seven years may create such a presumption of his death as, if not overcome by other proof, is such prima facie evidence of his death, that the probate court may assume him to be dead and appoint an administrator of his estate, and that such administrator may sue upon a debt due to him. But proof, under proper pleadings, even in a collateral suit, that he was alive at the time of the appointment of the administrator, controls and overthrows the prima facie evidence of his death, and establishes that the court had no jurisdiction, and the administrator no authority; and he is not bound, either by the order appointing the administrator, or by a judgment in any suit brought by the administrator against a third person, because he was not a party to and had no notice of either. [The judgment is therefore reversed.]

GOSHORN v. PURCELL.

11 Ohio State, 641. 1860.

[PLAINTIFF in the lower court, who is defendant in error in this court, brought action to have a deed corrected which was executed by defendant and his wife for the conveyance to plaintiff of property, the fee simple title of which was in defendant's wife. It appeared that the deed did not contain in the granting clause thereof the name of defendant's wife as grantor, which was essential by the law of Ohio to the validity of the deed as to the wife's title. The wife, however, joined in the execution of the deed. Subsequently a statute was passed authorizing the correction of

conveyances of any husband and wife executed and intended to convey the lands of the wife, although not exécuted as required by law. The lower court granted the relief asked, and on appeal to the Supreme Court it was contended that the State statute was invalid because in violation of a provision in the constitution of the State prohibiting the passing of retroactive laws "except for the purpose of authorizing the courts to carry into effect the manifest intention of parties and officers by curing omissions, defects," etc.]

GHOLSON, J...

This, Upon

The argument against the validity of the law assumes that, as applied to this case, it interferes with vested rights; that the married woman being bound by no contract, and her act being, as the law then stood, void and inoperative, her right to the property was left untouched, and that to take it away by subsequent legisla tion would operate as a mere arbitrary divestiture of title. it is said, even a provision of the constitution could not do. so grave an inquiry as our right, in any case, to disregard a provision of the constitution, we do not think we are required to enter. For we think that the case which the argument assumes is not presented. The act of the married woman may, under the law, have been void and inoperative; but, in justice and equity, it did not leave her right to the property untouched. She had capacity to do the act, in a form prescribed by law for her protection. She intended to do the act in the prescribed form. She attempted to do it, and her attempt was received and acted on in good faith. A mistake, subsequently discovered, invalidates the act; justice and equity require that she should not take advantage of that mistake; and she has, therefore, no just right to the property. She has no right to complain if the law, which prescribed forms for her protection, shall interfere to prevent her reliance upon them to resist the demands of justice. She has no vested right to do wrong. Foster v. Essex Bank, 16 Mass. 245, 273. As said in a recent case, "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 equity and justice of the case." State r. Newark, 3 Dutcher, 185, 197. "Retrospective laws that violated no principle of natural justice, but that, on the contrary, were in furtherance of equity and good morals," have been repeatedly sustained in this State. Trustees of Cuyahoga Falls, R. E. A. v. McCaughy, 2 Ohio St. 152, 155; Butler v. The City of Toledo, 5 Ohio St. 225, 231; Lewis v. McElwain, 16 Ohio, 347, 355; Johnson v. Bentley, id. 97, 103.

[The judgment of the lower court is therefore affirmed.1]

1 In BRINTON v. SEEVERS, 12 Iowa, 389, the validity of a State statute curing defects in acknowledgments of deeds previously recorded was in question, and WRIGHT, J. delivering the opinion of the court, uses this language:

"Our conclusion is, that the act is not repugnant to the Constitution upon the ground that it impairs the obligation of contracts. It validates, rather than otherwise, the contracts in question. Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Ib. 88. But it is invalid upon the ground that, as applied to this case, it interferes with vested rights. It appears from the bill and exhibits that respondent purchased the property, paid his money, and received the sheriff's certificate, before the passage of the curative act of 1858; but procured the sheriff's deed afterwards. If the purchase had been subsequent to the taking effect of this act, then he would be affected by its curative terms, and could not in any sense claim that it interfered with vested rights. By such voluntary purchase, with knowledge of the law, he would stand in no better position than the parties to the deed. When he purchases and parts with his money, however, before, the legislature cannot, by afterwards declaring the title of a third person valid, make it paramount and deprive such purchaser of all rights acquired under the sheriff's sale."

In MATTINGLY v. DISTRICT OF COLUMBIA, 97 U. S. 687 (1878), it was urged in a bill filed in the Supreme Court for the District of Columbia, that the board of public works of the district were proceeding without authority to assess property for improvements on the abutting street. MR. JUSTICE STRONG, delivering the opinion of the court on appeal from that court, uses the following language :·

1

"We do not propose to inquire whether the charges of the bill are well founded. Such an inquiry can have no bearing upon the case as it now stands; for were it conceded that the board of public works had no authority to do the work that was done at the time when it was done, and consequently no authority to make an assessment of a part of its cost upon the complainants' property, or to assess in the manner in which the assessment was made, the concession would not dispose of the case, or establish that the complainants have a right to the equitable relief for which they pray. There has been congressional legislation since 1872, the effect of which upon the assessments is controlling. There were also acts of the legislative assembly of the District, which very forcibly imply a confirmation of the acts and assessments of the board of which the bill complains. If Congress or the legislative assembly had the power to commit to the board the duty of making the improvements, and to prescribe that the assessments should be made in the manner in which they were made, it had power to ratify the acts which it might have authorized. And the ratification, if made, was equivalent to an original authority, according to the maxim, Omnis ratihabitio retrotrahitur et mandato priorı æquiparatır. Under the Constitution, Congress had power to exercise exclusive legislation in all cases whatsoever over the District, / and this includes the power of taxation. Cohen v. Virginia, 6 Wheat. 264. Congress may legislate within the District, respecting the people and property therein, as may the legislature of any State over any of its subordinate municipalities. It may therefore cure irregularities, and confirm proceedings which without the confirmation would be void, because unauthorized, provided such confirmation does not interfere with intervening rights. Judge Cooley, in view of the authorities, asserts the following rule: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceeding, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dis

pense with it by subsequent statute. And if the irregularity consists in doing some Ruloy.

act, or in the mode or manner of doing some act, which the legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.' Cooley, Coust. Lim. 371. This rule, we think, is accurately stated."

CAMPBELL v. HOLT.

115 United States, 620. 1885.

MR. JUSTICE MILLER delivered the opinion of the court. [This action was brought in a district court of Texas, by defendant in error to recover of plaintiffs in error as administrators, a sum of money claimed to be due for conversion of property by testator. By way of defence to the claim the State statute of limitations was set up, but it appeared that after the cause of action became barred the State adopted a new constitution in which it was declared that the statutes of limitations of civil suits were suspended by the so-called act of secession, and should be considered as suspended until the adoption of this constitution. The bar of the statute of limitations which the defendant relied on accrued during the Rebellion and before the restoration of the State to the Union. Judgment was rendered for plaintiff in the lower court, and affirmed on appeal to the commissioners of appeal. By writ of error the case is brought to this court.]

The action is based on contract. It is for hire of the negroes used by the father, and for the money received for the land of his daughter, sold by him. The allegation is of indebtedness on this account, and the plea is that the action is barred by the statute of limitations. It is not a suit to recover possession of real or personal property, but to recover for the violation of an implied contract to pay money. The distinction is clear, and, in the view we take of the case, important.

By the long and undisturbed possession of tangible property, real or personal, one may acquire a title to it, or ownership, superior in law to that of another, who may be able to prove an antecedent and, at one time, paramount title. This superior or antecedent title has been lost by the laches of the person holding it, in failing within a reasonable time to assert it effectively; as, by resuming the possession to which he was entitled, or asserting his right by suit in the proper court. What the primary owner has lost by his laches, the other party has gained by continued possession, without question of his right. This is the foundation of the doctrine of prescription, a doctrine which, in the English law, is mainly applied to incorporeal hereditaments, but which, in the Roman law, and the codes founded on it, is applied to property of all kinds.

Possession has always been a means of acquiring title to property. It was the earliest mode recognized by mankind of the appropriation of anything tangible by one person to his own use, to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirming or creating title.