text:
    Bracken et al. vs. Preston et al.

      X. Equity—jurisdiction in cases of tout. Courts of equity will rarely and only under peculiar circumstances entertain jurisdiction in cases of tort.
    2. Injunction. An injunction will be granted to restrain a trespass in order to quiet tke possession, or when there is danger of irreparable mischief, or where the value of the inheritance is put in jeopardy by a continuance of the mischief, but in ordinary trespasses, or where the courts of law can give a complete remedy, equity refuses to interfere.
    3. Same. Trespass in digging or mining on the land of another is within the cognizance of a court of equity when committed by a mere wrongdoer, or where a party exceeds the limited rights with which he is clothed.

      4. Same. In order to justify tlie interference of a court of equity in all such cases, the complainant must in general be in possession or have established his right at law or brought an action to recover possession, or his exclusive right must be admitted by the defendant, and the court will act in such cases, with great caution.
    5. Same. An injunction will not be allowed in such a case with an account, where the plaintiff cannot maintain an action at law for mesne profits.
    6. Trespass — damages. A person disseized cannot maintain trespass, but it might be maintained for the entry and ouster, in which case the damages could be recovered for the entry and ouster only; but for a continuance of the trespass, damages can be recovered only after the party disseized has regained possession.
    7. Bill eor an account oe ore. Where a bill seeks an account of ore dug on the complainant’s lands, a court of equity will decree if in a proper case, but the complainant must show that he is in possession.
    8. Same. Although the defendant in such case does not show a legal right to the possession, yet a court of equity having no direct jurisdiction to try legal titles, except in difficult and complicated cases affording some peculiar ground for equitable interference, will not decree that the defendant surrender possession.
    9. Pleadings and prooes. Every bill must contain sufficient matter of fact of itself to maintain the complainant’s case and the proof must correspond with the allegations.
    10. Bill held defective. Where a bill was brought in a case of continuing trespass, showing that the complainants were disseized, for an injunction pending an action for forcible entry and detainer, and for an account of mineral dug on the premises, and a decree that the defendants surrender possession and that the complainants might be quieted in their title, and it appeared that the defendants were in possession claiming a right thereto working the mine thereon. Held, that the bill did not state such a case as entitled the complainants to any relief; that ejectment was the proper remedy with a preliminary injunction on a proper bill showing the pendency of the action at law, and that after a recovery therein the plaintiffs could obtain satisfaction by an action for mesne profits.
    11. Evidence—receiver’s receipt. In actions between individuals the receipt of the receiver of a land office is under the statute, sufficient legal evidence of title, though as between the holder of it and the government, the legal title still remained in the United States.
    APPEAL from tlie District Court for Milwaukee County.
    The complainants, Charles Bracken, David Irvin, Amelia Daniels, Sarah Daniels and Cecilia Daniels filed their bill in the district court for Iowa county, against Sylvester B. Preston, William Kendall, William T. Phillips and William Nichols, claiming to be the owners of a certain tract of land in Iowa county and praying for a decree for an account of mineral taken therefrom by the defendants, and that they be decreed to yield and surrender possession thereof to the complainants, and for an injunction to restrain the defendants from working a copper mine on the premises in question. After the bill had been answered the venue was changed to Milwaukee county and at the hearing the district court of Milwaukee made a decree dismissing the bill, from which Bracken appealed. The allegations of the bill and the substance of the answer and evidence are stated in the opinion of the court.

      T. P. Burnett, for appellant.

      P. J. Bunn, for appellees.
   Miller, J.

The bill of complainants is sworn to by Charles Bracken, one of complainants, who is also next friend of Sarah Daniels and Cecilia Daniels, of Michigan, minor children of Lyman J. Daniels, deceased. Amelia Daniels is the widow of said Lyman, deceased. The bill sets forth, that on the 18th day of November, A. D. 1835, Charles Bracken, David Irvin and Lyman J. Daniels entered at the land office at Mineral Point in Iowa county, the east half of the north-east quarter of section No. 5 in township No. 4 of range No. 3 east, containing 80 29-100 acres, and the receiver’s receipt for the payment of the purchase money of the same date, is presented as evidence, by which the parties became seized as tenants in common of the said land, and as such, have the absolute, sole, and exclusive right, to the use, occupancy, and possession of the said tract of land, and to all the rents, issues and profits of the same; and to all minerals, ore and mineral dirt, of whatever description or kind that were, or might at any time, be or exist in or upon said tract of land: That a very valuable mine of copper ore was discovered upon said land, which said mine has been extensively worked, and a large quantity of copper ore, and of dirt intermixed with copper ore, has been raised to the surface of the ground from such mine: And after said copper mine had been discovered and worked, and after large quantities of copper ore had been raised as aforesaid, William Kendall, Sylvester B, Preston, William, T. Phillips and William Nichols, without law or right, and contrary to the will of complainants, entered and took possession of said tract, on or about the 25th day of June, 1842, and continued therein until the 20th day of July, A. D. 1842, and refused to permit complainants to take possession of, or in any manner to occupy or enjoy that portion of the said tract embracing said copper mine, and during all that time, took and carried away from the said tract of land large quantities of copper ore, and during all that time converted to their own use the whole of the products of the said copper mine: And that on the said 20th of July, 1842, the said Charles Bracken, having quietly and peaceably taken possession of the said tract of land and copper mine, and having left his agent in possession of the same who was quietly and peaceably holding the same, by the authority of the said Charles Bracken, and for his use and benefit, the defendants, with force and arms, and with strong hand, unlawfully and forcibly, did again enter upon said land and expel the said agent therefrom, and again took possession of the same; and refused to permit complainants to enter upon the same and occupy said copper mines or take the copper ore, but have converted and are converting the same to their own use, and retain the possession thereof. On the 2d of August, 1842, Charles Bracken made his complaint against the said defendants for forcible entry and detainer upon and of said premises, to a justice of the peace of Iowa county, and a summons was issued returnable on the ninth of the same month, but complainants justly fear, that before the return day of said summons, the said defendants will commit great and irreparable waste upon said premises by removing the said copper ore from said premises, and that they are continually removing the same; and threaten to supersede by certiorari, any writ of restitution complainants may obtain in pursuance of said proceeding in forcible entry and detainer. And complainants greatly fear that defendants will commit great and irreparable waste upon said tract of land before they or either of them can obtain any adequate or permanent relief at law, and pray that defendants may be decreed to surrender up to complainants the quiet and peaceable possession of the said tract of land and copper mine of which they are seized as aforesaid, and all the proceeds of the same; and that defendants may render an account of the proceeds of said copper mine, and how much oí the same they have disposed of and converted to their own use; and be decreed to pay the same to complainants ; and that the complainants may be quieted in their title to and possession of said premises; and for such other relief as the nature and circumstances of the case may require.

The defendants’ answer was filed in the court of Iowa county on the 4th of February, 1843. They admit that the land aforesaid was entered by Bracken, Irvin and Daniels as set forth in the bill, but deny that said entry vested in them the fee of said lands, but that as no patent therefor had been issued, the fee remained in the United States. Admit that Bracken, Irvin and Daniels and the said widow and heirs of said Daniels, may have been seized and possessed as set forth in said bill, but aver that they always understood that Arthur Brunson, of New York, to whose agent defendants paid rent, was the owner of the interest of said Daniels. And defendants deny that the complainants had sole and exclusive right thereto during all the time to the filing of the bill; nor had they the sole right to all the mineral ore on said land, or to mine and dig on the same, but the right of complainants to the sole occupancy of said premises was restricted by their Leasing and letting the said premises to many persons to mine and dig upon. The defendants admit there was a valuable discovery of copper ore made on a part of said tract, but deny that it was made when the complainants were in possession, or had the right of possession to that part of said tract on which said discovery was made. From the time of the entry of said premises until after said discovery was made, by common custom, and by tacit consent of the owners of said tract, the same was at all times open to let and free to be taken up and worked in search of ore, by all and any person who might choose to work the same, by paying the usual rent out of all ore raised on said premises: That Andrew Eemphrey (under whom defendants claim) did, some time in the winter of 1841-42, ask of Ojiarles BracJcen, one of complainants, and who professed to be agent for- the other owners, the privilege of mining, digging and searching for ore on said land, and that he gave said Eemphrey leave to mine on said land, and to raise and take therefrom all ore he might discover, subject to the condition that Eemphrey was to pay to the owners of said premises one-fifth thereof, and said BraeJcen should have the privilege of having the remainder thereof if he would give as high a price and make as good payments as any other person for the same ; said Eemphrey at the same time applied to said BracJcen for a written lease of said premises, but that he answered that a written lease was unnecessary, as there were a sufficient number of witnesses present. Under said lease said Eemphrey took as a partner one of the defendants, William T. PJiillips, because he could not well work alone ; and according to mining custom and rule, and after having made the valuable- discovery of copper ore,went on said premises in company with Ojiarles BracJcen and measured and staked off a lot 200 yards square, or thereabouts, according to the custom of the mines: Some time after the first discovery was made in March, 1842, the said Eemphrey and PJiillips made a very valuable discovery of copper ore on the said premises, at which time and frequently thereafter the saidBracJcen was on the said lot and appeared to be well satisfied with the manner of working the said ground and the discoveries that had been there made, and the right of the said Remphrey and Phillips to the said ores, except the one-fifth rent as aforesaid. And also the other owners or their agents expressed entire satisfaction, after the discovery, of the letting aforesaid. And the said mine was peaceably and quietly worked for a long space of time, and large quantities of copper ore were raised from the same; and portions of it were removed to the most convenient water in order to cleanse and prepare the ore for smelting, which was absolutely necessary. After some time, and before any of the ore so raised was prepared for market, Bracken committed such acts of domineering as to indicate an intention to give trouble, when Remphrey sold to Sylvester B. Preston, one of the defendants, all his right, title and interest of, in and to the said lot so leased and laid off as aforesaid, and the copper ore discovery thereon, and the mineral then raised, for the sum of $300, which he had a perfect right to do, his interest being the one-half of the lot and discovery, the said William T. Phillips owning the other. The said Nichols and Kendall worked and were on the ground by permission of Preston and Phillips; and that from the said transfer by said Remphrey to P.reston (which transfer was a matter that could not have been other than well known to said complainants, Bracken and Irvin) these defendants worked the said lot and raised therefrom large quantities of copper ore. And after some was washed and prepared for market, they caused notice to be given said Bracken by the agent of David Irvin, one of complainants, that the said ore that was so raised by said Phillips, Remphrey and these defendants, amounting to about 50,000 pounds, was ready for sampling, division and market; and offered at the same time to let said Bracken have four-fifths of said mineral owned by said defendants at $16 per thousand, or to give for the other fifth (the rent mineral) the same sum per thousand, when said Bracken urged no objection whatever to these defendants occupying said lot and digging and raising ore, but urged as a reason why he would not give or take $16 per thousand, that he "wished some permanent price set on said copper ore that would govern aE ore raised on said lot •, that these defendants were compelled to be governed by the price of copper and copper ore in the market to regulate the price they could pay for copper ore. Said Bracken was also notified, that the ore owned by the defendants was ready for market, but he would not give as good prices for the same, or make as good payments as others would. He offered no price whatever at any time for the ore, nor did or would he offer at the time of the division of the said ore, but the clerk of Curtis Beech, who was, as defendants understood, the agent of two of the owners of said premises, and as such agent, controlling two-thirds of the rent, attended said division, and there was then, and previous to the exhibiting of the bill of complaint at aE times a fair division of aE ore ready for market that was raised on said lot, which division was acquiesced in by said agent. Defendants continued to occupy and work the mine and raise ore for some short time after the aforesaid division, and to remove the said ore to the wash place to prepare the same for division and market, in hopes that they would be permitted peaceably and quietly to mine and occupy said lot so long as they complied with the terms of letting the same with the privüeges of mining to said Eemphrey, which these defendants state that they at aE times complied with. The said Charles Bracken, without right or color of right, on the morning of the 20th of July, 1842, or early in the morning, with his brother John Bracken and Lott Harris, went to the said mine, and when some of these defendants and their laborers went as usual to said lot or mine, they found the said Charles Bracken, John Bracken and Lott Harris had drawn the mining tools of the defendants out of the shaft in which the defendants had been at work, and moved them some distance from the shaft. Charles Bracken then said to defendants that he had taken possession of the ground in his own right and intended keep ing possession; and then removed the windlas of defendants from the shaft, and placed another windlas there belonging to himself or some other person. Bracken claimed the possession by his own right as owner of the soil. After some verbal altercation said Charles Bracken, John Bracken and Lott Harris left the ground, and defendants continued in possession to work as usual.

The defendants attended upon the justice in the forcible entry and detainer case which plaintiffs discontinued, and immediately commenced a second prosecution, which was tried and a verdict rendered for the defendants; the complainant thereupon issued a writ of certiorari to remove the proceedings to the district court of Iowa county, where the same was pending. After the trial of this case, the defendants removed a large quantity of ore which they had raised to the wash place, and notified said Bracken and the agent of the owners, that the same was ready for division and market, which was taken by said Bracken and complainants by a writ of replevin.

The defendants say that those of them who own the said lot and discovery and who were not on the said lot and premises when the said discovery was first made, came into possession by purchase for a valuable consideration, and that they all claim under Andrew Remphrey, who leased in good faith from the said Charles Bracken, and had a right by common custom to dig . on such ground without such express consent. That they purchased in good faith, and have strictly complied with the terms of the letting to said Remphrey. Have never been in possession of any part of said.premises set forth in the bill, except the said lot and discovery; and that they have a right to the possession of said lot as long as they comply with the terms of the lease aforesaid, and faithfully work said lot as they have always done. And they deny that the said Charles Bracken was at any time after the said copper discovery in the quiet and peaceable possession of the said lot and discovery thereon, or that he was ever forcibly expelled therefrom,, but that defendants and Andrew Remphrey, under whom they claim, have been in the possession of said lot and discovery from the time the said lot was taken up and discovery made to the present time; and if that possession has not been peaceable it was owing to the unlawful and dishonest acts of one of the complainants ; and that Bracken always had the option of purchasing the said ore, on due notice. Nor did they ever threaten to remove the judgment in the case of forcible entry and detainer by certiorari, for they did not suppose a judgment would ever be rendered against them.

Bracken, in his petition to the court of Iowa county respecting the injunction, represents, that being the owner in fee of the equal, undivided one-third part of the said tract of land, and having the agency and charge of the other two-thirds, which were owned in fee by said Inin and Daniels’ heirs, he gave to Andrew Remphrey verbal permission to dig, etc.

Andrew Remphrey states in his deposition, that he asked Charles Bracken if the piece of land he wanted was the piece which "William Henry was promised, and he said no. Then asked Bracken if he could have it, and he said yes. Witness asked him the terms, and he said he would let it for one-fifth, and give him the privilege of the copper ; then witness said provided you give as much as any other person, and the only word he made in reply was, certainly. About the .limits of the land we did not finally agree then, but Bracken promised to meet witness on the ground. About four or five weeks after, Bracken met witness on the ground ; they hauled witness up out of the shaft, and he said, Andy, what way do you want your limits; witness replied 200 yards east from that stump, 100 yards north therefrom, 100 yards south. Bracken notified witness not to assign this lease or privilege. Witness assigned it to Preston in writing before suits were commenced.

Richard Crocker states in his deposition about the same in substance as contained in Remphrey’s deposition respecting the contract. Curtis Beech also states the same in substance. It appears in evidence, that Bracken and defendants are smelters at different establishments. And in June, 1842, Preston, one of the defendants, said he was willing to give $16 per thousand for the one-fifth of the ore then on hand, or take the same for the four-fifths, of which Bracken was informed. It also appears that they waited for Brackeni s decision in the matter, whether he would give or take, on this proposal. It also appears in proof that Bracken entered upon the ground in July, 1842, in company with others, when he made a claim of possession, and notified the defendants to quit; and that the defendants continued in the uninterrupted possession. In June or July, 1842, David Irvin authorized Curtis Beech to act as his agent and to receive his due.s and that he did so for a short time, and sent a hand to see the ore divided, by putting one-fifth in one pile and four-fifths in another; and that, before the commencement of suits, the ore was raised in great quantities and regularly divided.

The bill presents a case of trespass with a continuando', and prays for a preliminary injunction, to prevent the defendants from committing irreparable injury to the premises during the pendency of a prosecution for forcible entry and detainer. It also prays for a final decree for surrender of the premises; for an account; and that the complainants may be quieted in their title and possession. The defendants allege and prove that they are in possession of the mine, claiming the right. What right the defendants have to the possession it is not necessary in this case to determine ; whether there is a lease or a license between the parties, or whether it was a mere contract for personal service on the land of the complainants, we will not stop to consider.

From an examination of the authorities upon the subject, it appears, that an injunction lies to restrain a trespass, in order to quiet the possession; or where there is danger of irreparable mischief, or where the value of the inheritance is pnt in jeopardy by a continuance of the trespass. The foundation of this jurisdiction in equity, is the probability of irreparable mischief; the inadequacy of pecuniary compensation ; and the prevention of a multiplicity of suits. In ordinary trespasses, or where the courts of law can afford complete satisfaction, equity refuses to interfere, and will rarely and under very peculiar circumstances entertain jurisdiction in actions of tort. Yancy v. Downer, 5 Litt. 9; Stevens v. Beekman, 1 Johns. Ch. 319; Livingston v. Livingston, 6 id. 497; Jerome v. Ross, 7 id. 315; Painting Establishment v. Eitch, 1 Paige, 97; 6 Vesey, 147; 7 id. 305; 8 id. 89; 10 id. 290; 17 id. 128-281; 18 id. 180; Eden on Inj. 136, 137, 138, 139; Fonblanque’s Equity, 3 and notes; 31 and notes; 50 and notes ; Story’s Eq. 209. And this power of equity, when exercised, is by means of injunction.

Trespass in digging mineral or mining on the land of another, comes within the cognizance of a court of equity, when committed by a mere trespasser, or where a party exceeds the limited rights with which he is clothed.

Every bill must contain within itself sufficient matter of fact, per se, to maintain the case of the plaintiff; and the proof must be according to the allegations of the parties. Harrison v. Nixon, 9 Pet. 483. The plaintiffs in this case, acknowledge themselves out of possession. The bill sets forth: “That after the copper mine had been discovered and worked, and after large quantities of copper ore had been raised, the defendants, without law or right, and contrary to the will of complainants, entered and took possession of said tract on or about the 25th day of June, 1845, and continued therein until the 20th of July of the same year, and refused to permit the complainants to take the possession of, or in any manner occupy or enjoy that portion of said tract embracing said copper mine ; and during all that time took and carried away large quantities of copper ore; and during all that time converted to their own use the whole of the products of said copper mine: and that on the 20th of July, 1842, the said Qharles Bracken having quietly and peaceably taken possession of said tract of land and copper mine, and having left his agent in possession of the same, who was quietly and peaceably holding the same by authority of said Bracken, and for his use and benefit, the defendants with force and arms, and with strong hand, unlawfully and forcibly did again enter upon said land and expel the said agent therefrom, and again took possession of the same ; and refused to permit complainants to enter upon the same and occupy said copper mine or take the copper ore ; but have converted and are converting the same to their own use, and retain the possession thereof.”

The policy of preventing irreparable injury has introduced an exception to the general rule in cases of waste, or of mischief analogous to waste, but this does not extend to questions of title. 1 Smith’s Ch. 595; Morphett v. Jones, 19 Vesey, 350. The complainants in cases of waste must, generally, have the possession of the premises, or have established their right at law, or have brought an action to recover the possession, or in cases of tenants, after notice to quit. 1 Smith’s Ch. Pr. 593; 3 Barb. & Harrington’s Dig. 478, 479; Scott v. Wharton, 2 Hen. & Munf. 25; Duvall v. Waters, 1 Bland. 576; 2 Story’s Eq. 177, 207; Hart v. The Mayor of Albany, 3 Paige, 213. In such cases courts are generally cautious, and they will not grant relief when the complainant is out of possession. In cases of this nature courts make a great difference between restraining a defendant from working a mine already opened, and restraining him from opening one. Gray v. Duke of Northumberland, 13 Vesey, 236. And it is held in many cases referred to on pages 51 and 52 of Fonblanque’s Equity, that the plaintiff’s exclusive right must be admitted by the defendant or established at law, to warrant the interference of a court of chancery.

No injunction will be allowed, in cases of trespass, with an account, where the plaintiffs cannot maintain an action at law for mesne profits. In 6 Bacon’s Abr., title Trespass, page 566, it is stated, that “ only the person who has the possession in fact of real property to which an injury has been done, can maintain an action of trespass guare clausum fregit; a general property not being in the case of real property, as it is in the case of personal, sufficient to found this action upon.” Also in Meghan v. Mills, 9 Johns. 64; Corfield v. Coryell, 4 Wash. C. C. 371. After entry the owner may have trespass guare clausum fregit, but not before. 17 Pick. 263; 17 Mass. 282. A person disseized cannot maintain trespass. 10 Pick. 171. Trespass would probably lie for the entry and ouster of the plaintiff; but damages can only be recovered for the simple entry and ouster, and not for the continuance of the trespass. Damages for the continuance are not recoverable until after plaintiffs have gained possession. Holmes v. Seely, 19 Wend. 507; Mather v. The Trinity Church, 3 Serg. & Rawle, 509; Brown v. Caldwell, 10 id. 114; Demott v. Hagerman, 8 Cow. 220; 6 Serg. & Rawle, 476.

When a bill seeks an account of ore dug the court of chancery will decree it in a proper case, Bishop of Winchester v. Knight, 1 P. Wms. 406; because the working of a mine is a kind of trade, Story v. Lord Windsor, 2 Atkyns, 630; Marguis of Lansdowne v. Marchioness of Lansdowne, 1 Mad. 73, but the plaintiff must show his possession. Lyn v. Pierce, 5 Vesey, 259. “Neither will equity, in all cases, decree an account of mesne profits ; for where a man has title to the possession of lands, and makes an entry, whereby he becomes entitled to damages at law for the time that possession was detained from him, he shall not after his entry, turn that action at law into a suit in equity, and bring a bill for an account of the profits, except in the case of an infant, or some other very particular circumstances, which extend to all those cases that involve an equity which cannot be made available at law.” Eonbl. Eq. 31, 32.

Although the defendants have not shown a legal right to the possession, we cannot decree a surrender, for it is not the practice of this court to determine the legal rights of the parties, and make such a decree. A court of chancery does not possess any direct jurisdiction over legal titles. The court may, perhaps, try titles to lands, when they arise incidentally; but it is understood not to be within its province. The power is only to be exercised in difficult and complicated cases, affording peculiar grounds for equitable interference. Abbott v. Allen, 2 Johns. Ch. 524. If the case be clear, a court of equity will interfere to quiet the title to land (Alexander v. Pendleton, 8 Cranch, 462); but the plaintiffs must be in possession of the land. The injunction to yield up or quit possession of land is a judicial writ, and subsequent to a decree in the nature of a writ of execution. It is sometimes used in aid of a judgment at law. It is always issued in aid of a decree in chancery, in putting a purchaser into possession, and is followed by a writ of assistance. Eden on Inj. 261; Story’s Eq. 226, 227; Kershaw v. Thompson, 4 Johns. Ch. 609. This injunction is never granted in a case like the one now under consideration.

So if a bill should be brought for the possession of land, which is commonly called an ejectment bill, it would be demurrable, for the proper redress is at law. And even if such bill should charge that the defendant had gotten the title deeds and mixed the boundaries ; and should, on that ground, pray for a discovery, possession, and account, a demurrer (at least upon the doctrine maintained in England) would lie. For although the plaintiff would be entitled to the discovery of the title deeds, yet he would not have any title to the relief; that after the discovery being properly given, it is at law ; and by praying relief as well as discovery, his whole bill would be demurrable ; Story’s Eq. Pl. 374, 375, and cases there cited.

The court is not willing to exercise its chancery jurisdiction, unless in clear cases properly presented, and in which it satisfactorily appears, that full and complete justice cannot be had at law. In this case it appears that Bracken, one of the complainants, assumed to act for himself and the other complainants, in letting the mine and making the contract with Remphrey for working it. The other complainants did not dispute BrackenJ s authority to act in the premises. They desired the mine to be worked for their own interest, and put Remphrey into possession, who transferred his possession to these defendants, who continued to work the mine as Remphrey had worked it. Now it cannot be made satisfactorily to appear, that this is a case of such irreparable injury as would entitle the complainants to the aid of this court on this bill. The defendants allege and prove that they are in the actual, exclusive and adverse possession of the mine, claiming the right. It fully appears that Ojiarles Bracken made an ineffectual effort to regain the possession. Hence, it is apparent that this presents a case wherein full and complete justice can be done in an action at law. Ejectment is the proper remedy, with a preliminary or interlocutory injunction, to stay waste, upon a proper bill, during the pendency of the action ; and after the recovery, an action of trespass for the mesne profits. But it is contended, that inasmuch as the complainants are not invested with the legal title to the premises, by a patent from the United States, an action of ejectment cannot be maintained. The patent is not an indispensable muniment of title for this purpose. The act making receiver’ s receipts evidence will enable the plaintiffs to recover possession of the land in ejectment. Between individuals the receiver’s receipt, under this statute, is recognized as legal evidence of title, but not against the United States. Wilcox v. Jackson, 18 Pet. 516.

It is therefore considered and adjudged by the court, that the decree of the district court of Milwaukee county, dismissing complainant’s bill, be and the same is hereby affirmed, with costs.

Judge Irvin was a party to this action and did not participate in the hearing or decision.


source: Caselaw Access Project

author: Irvin, J.

license: Public Domain

text:
    Bowen vs. Warner.
    1. Statute of frauds—part performance—evidence. To take a verbal contract for the sale and conveyance of land out of the statute of frauds on the ground of part performance, the existence of the contract as laid in the bill must be made out by clear and satisfactory proof, and the act of part performance must be of the identical contract set up. Loose and unconnected conversations held at various times and with different persons of an uncertain and in some respects contradictory character, will not serve to establish the existence of the contract.
    2. What are acts of part performance. To take a parol agreement out of the statute on the grounds of part performance, the acts relied on must be such as unequivocally refer to and result from the agreement, and they must be such as would not have been performed but for that very agreement and with a direct view to its performance, and must be such as to leave no uncertainty in the case.
    3. A. was in possession of government land and had made improvements thereon, and the same was subsequently purchased by B. of the United States, and A. alleged that at the time of his purchase B. verbally agreed to convey the same to him upon being repaid the purchase money, held, that the mere fact that B. continued to remain in possession after such purchase and agreement to convey, was not an act of part performance so as to take the case out of the statute of frauds.
    APPEAL from the District Court for Crawford County.
    The complainant Elias B. Bowen filed a bill against Elihu Warner to compel the specific performance of an alleged parol contract for the conveyance of a tract of land, and for an injunction to stay proceedings in an action at law instituted by defendant against the complainant, to recover rent for the use and occupation of the premises in question.
    The bill charged that before the lands north of the Wisconsin river came into market, the complainant made a claim to and occupied and improved the tract of land, then belonging to the United States, under the act securing pre-emption rights to settlers on public lands ; that the lands came into market June 16,1841, at Muskoda, at which time complainant had no money to purchase the same, but the defendant, by Jared Warner, his agent, proposed and agreed with him to enter the land in the name of defendant, and that as soon after as complainant should pay him the purchase money and interest, defendant would convey the same to him ; that the land was entered by the defendant through his said agent upon the faith of such agreement, and that with the knowledge and approbation of said agent the complainant continued to occupy and improve said premises, and expended a considerable sum of money in improving and cultivating the same; that defendant refuses to convey, although he had frequently admitted the agreement, and particularly in March, 1842, in the presence of one Lane; that on the 23d of May, 1842, complainant tendered to defendant said purchase money and interest which he refused to accept, and had brought an action against complainant to recover for the rent of said premises, which action was then pending.
    The answer, which was under oath, denied all the allegations of the bill in reference to said alleged agreement, and denied that complainant had made any improvements on the land, and denied that his occupancy thereof was under any agreement for the conveyance thereof, or with the knowledge or consent of the defendant, but admitted that he purchased the land through Jared Warner, his agent, but for his own use and benefit; denied that said Jared Warner had any authority to make such agreement as was stated in the bill. The complainant filed a general replication. The testimony of Joseph Curley was to the effect that complainant made claim to the premises (lot 1 sec. 6, town 6, range 5) previous to the land sale and had occupied it ever since. Six or seven acres were broke and there were two or three thousand rails on the premises, and that the improvements were probably worth $100. Immediately after the land was bid off at the land sale, complainant observed to Jared Warner that so soon as he {Bowen) paid the entrance money and interest, the land would be Ms, Warner replied, yes. The land in dispute or a greater part of it was inclosed by C. Bowen (complainant’s father) in his life-time in inclosing his claim. C. Bowen died in September, 1840. The improvements were made partly by him and partly by complainant, after his death. The rails were made by C. Bowen and complainant broke about two acres of the land the spring before the land sale.
    Lewis Lathrop testified that he went with complainant May 23, 1842, when he tendered to defendant $69.50 for the disputed premises. The defendant observed that he paid Jared Warner’s expenses to the land office when he entered the land.
    William Wright testified that the complainant had occupied and improved the lands, and the improvements were worth $100 at the time of the land sale. The defendant told him that he had entered the land in dispute, which he intended to exchange with J. H. Lockwood should complainant fail to pay him the money, and that complainant was to have the land if he paid the money. This conversation was the winter after the land sale.
    Richard Lane testified that he heard defendant say he had entered 40 acres .(the land in dispute) and intended giving it back u to thfem” when the purchase money and interest was paid, but he did not believe they would pay it; thinks this was in spring of 1842 ; understood defendant to mean by “ them” the family of C. Bowen, deceased. Understood land in dispute was a part of C. Bowen’s farm.
    Jared Warner testified that in June, 1841, he attended the land sale at Muskoda; the defendant sent money by him to enter land and he entered the premises in question in defendant’s name. The defendant stated to him about the time he gave him the money that the land was a part of the claim of C. Bowen, deceased, who owed him near $100, which he thought there was a dull chance of getting and he would enter part of the claim to remunerate him self. Complainant asked witness if defendant intended to enter part of Ms father’s claim, and witness told him he had sent money to do so. He wished to know if defendant wonld not sell him the place' or return it to the family. Witness replied that he would use his endeavors to have it restored. Complainant told witness that he would give defendant a receipt in full for what he owed him (complainant). The defendant then owed complainant $100 or more, and C. Bowen’s estate owed defendant near $100. While at Mhskoda the complainant made a proposition to the defendant through witness that he would cancel his account against defendant and pay him back the entrance money if defendant would convey the land to him and give him his claim against the estate of C. Bowen, deceased. In the winter of 1841-2, at the request of the defendant, witness informed complainant that defendant was ready to accept the proposition, and complainant said he would, not comply with it for the reason that the estate would probably prove insolvent and the demand of the defendant against it would be of no value. He (witness) had no authority to act in the matter for the defendant at the time of the land sale. Witness and complainant administered on the estate of C. Bowen, deceased, and the land claim was not inventoried; was not authorized by defendant to tell complainant since the entry of the land that he might occupy it; the defendant and himself were not partners, and he had no interest in the matter in dispute.- To rebut the testimony of Jared Warner, it was proved that the land claim of C. Bowen was inventoried and returned as a part of his estate and testimony was given tending to show that Jared Warner and the defendant were partners in trade.
    Barbara Bowen testified that Jared Warner stated that he thought he could get the money of his father the defendant to enter the land, and when complainant paid the entrance money he could have it. Had frequently heard him say that whatever was his father’s interest was his interest, as they were engaged in business together. He said complainant could not enter the land in his own name because he was administrator of the estate and therefore he would try and get the money of his father and enter it in his father’s name, with the condition that the complainant might have it on paying back the purchase money.
    Mary Bowen testified that on one occasion she asked Jared Warner if he could not get the money that was due to complainant from him to enter the land in dispute ; he replied that he had not the money, that his father had money belonging to Mr. Mills but would not let him have it to pay complainant. Jared Warner said he would get the money of his father and enter the land and in the event that complainant paid him back the entrance money he, complainant, should have the land.
    The district court decreed that the defendant should convey the land to complainant on payment of the purchase money and interest, and granted a perpetual injunction against the action at law to recover rent. Prom this decree the defendant appealed.

      Alfred Brunson, for appellee.
    I. In addition to the proof adduced to show 'the agreement alleged in the bill is the well known sentiment universally prevalent in the country that no one will be permitted to enter another’s claim on lands without an agreement to convey upon payment of purchase money and interest.
    This rule is as well established in this country as the customs of the Saxon Heptarchy and makes common law in relation to this matter. As to the law governing courts in decreeing specific performance he cited 1 Barb. Ecp Big. 100, §§ 6, 7, 8, 20; id. 102, §§ 26, 28, 29, 36.

      J. T. Mills, for appellant.
    1. There is not sufficient evidence to overthrow the answer of the defendant, and where the evidence is conflicting the statute ought to prevail. Bowton u. Bowton, 1 Hen. & Mun. 91.
    ' 2. The alleged contract being verbal is void under the statute of frauds, and there is no proof of any facts which amount to part performance. 1 Sug. Vend. 134, 148 ; 2 Story’s Eq., § 68. The part performance must be an act which would not or could not have been done with any other view than to perform the contract. Frame ■». Dawson, 14 Vesey, 386 ; Phillips r>. Thompson, 1 Johns. Ch. 131. If the complainant relies upon acts of possession and improvement, the claim is answered by the fact that he made no improvement after the land sale, and prior possession, will not satisfy the rule, as it did not originate or proceed from the contract and was not an act done under the contract. 2 Story’s Eq. 68; 1 Sug. Vend. 144; 3 Eand. 256.
   Irvin, J.

This is an appeal from the decision of the district court of Crawford county, in which the court gave a decree in favor of the complainant.

The grounds upon which the aid of a court of chancery is invoked, as alleged, are these: The complainant in the year 1841, had and held possession of a certain tract or parcel of the public land in the county of Crawford upon which there were improvements by fencing and ploughing, which he alleges were made by himself ; that in June of that year, the land sales for that district of country took place at Muskoda ; that the complainant not having the funds with which to enter the land thus held and improved, one Blihu Warner by Jared Warner his agent, offered to aid him therein; that the said Warner agreed to and with the complainant verbally, that he would enter the land in question, in the name Blihu Warner, the defendant, and that when the said complainant should thereafter return to him the principal and interest of the purchase money, the land should then become the property of the said complainant by proper conveyance; that about eleven months after the date of purchase or entry, he, in presence of a witness, made a tender of the principal and interest on the purchase money to Blihu Warner, whose money the said Jared professed to have used for the purchase; and that the said Elihu refused to receive the money so tendered, and to give a deed for said land. To enforce the conveyance of this land, this suit is brought.

The defendant, in his answer, wholly denies all the material allegations of the bill in relation to the alleged contract.

The agreement asserted in this case is a parol agreement, and can only be taken out of the statute of frauds by a part performance.

In the examination of the evidence in this case, we find it to consist, as we think, of loose and unconnected conversations, held at different times, on different occasions, with and before different persons, and in all respects uncertain, and in many, contradictory.

The first fact to be ascertained and settled in all cases of parol contracts for land, is the contract itself.

To entitle a party to take a case out of the statute, on the ground of part performance of the contract, he must make out, by clear and satisfactory proof, the existence of the contract as laid in the bill; and the act of part performance must be of the identical contract set up.” 1 Johns. Ch. 131; Sug. Vend. & Pur. 134; Story’s Eq. 67; 14 Vesey, 386. In this case there is no such clear and satisfactory proof of the existence of the contract here asserted, as 'the rule of law just, recited calls for, and upon that ground we think this case might safely rest in denial of the prayer of the bill for specific performance; but, as part performance is relied on, as an important feature in this case, it is well to notice in what that consists. Upon the examination we find that it be the fact as to possession ; that the complainant before the pretended contract, was in the possession of the land and remained therein afterward to the date of his bill. The chancellor in the case of Phillips v. Thompson, 1 Johns. Ch. 148, says: c‘ It is settled, that if a party sets up part performance, to take a parol agreement out of the statute, he must show acts unequivocally referring to and resulting from that agreement; such as the party would not have done, unless on account of that very agreement, and with a direct view to its performance, and the agreement set up must appear to be the same with the one partly performed. There must be no equivocation or uncertainty in the case. The ground of the interference of the court is not simply that there is proof of the existence of a parol agreement, but that there is fraud in resisting the completion of an agreement partly performed. These principles have been recognized in a series of decisions. Lacow v. Mertins, 3 Atk. 4; Nevin v. Belknap, 2 Johns. 587; Frame v. Dawson, 14 Vesey, 386; Climan v. Cook, 1 Sch. & Lef. 41; Lindsay v. Lynch, 2 id. 1. We do not think the act of remaining in possession such an act as is regarded as sufficient to prove part performance, and therefore as taking the case out of the statute.

However much the evidence in this case may lead to the suspicion that such an agreement as is here asserted, was made between the parties, and that for fraudulent purposes it was found convenient to deny it, nevertheless we are constrained to say, that neither is the agreement asserted, proved in that clear manner, nor the part performance of that character, called for by the law. We therefore are of opinion that the complainant is not entitled to the relief he asks for ; and that the district court erred in decreeing specific performance.

It is therefore adjudged and decreed, that the decree of the district court be reversed, and that the same be so certified with directions to dismiss the bill at complainant’ s cost. •

Dunn, C. J., dissented.


author: Miller, J. Miller, J.

text:
    Gear et al. vs. Shaw et al.

    1. Continuance, not the subject oe exception. The ruling of the court upon a petition supported by affidavit, for a continuance of a cause upon the ground that a suit was pending in chancery which would essentially determine the rights of the parties, is a matter within the discretion of the court, and is not the subject of exception or revision upon a writ of error.
    2. Practice — staying proceedings at law. Although the district courts have both equity and common law jurisdiction, yet the practice should be the same as if their different powers were conferred upon separate and distinct courts, and the proper method of procuring the postponement of the trial of an action at law, upon the ground that a suit is pending in chancery which will be decisive of the action at law, is by injunction from the court of chancery to stay proceedings at law.
    3. Pleading. To a count of a declaration upon a bond, non est factum is the appropriate plea, but nil debet is proper where the bond is set forth merely as inducement.
    4. Want op certainty cured by verdict. Defects for want of certainty in pleading are cured by the statute of jeofails, and where to a declaration on a bond the defendants pleaded nil debet and the verdict is that the defendants owe the sum claimed .and damages are assessed for its detention, the finding is in effect that the bond sued is the bond of the defendants, and that its condition has been broken, and judgment will not he arrested though the plea was not the proper one.
    5. Execution op bond — recital. Where G. and N. executed a bond for an injunction in which it is recited that G. had applied for the writ as the agent of H., but the bond was signed and sealed by G. without other reference to H. Held, that the description of himself as agent in the body of the instrument did not exclude his personal liability.
    6. Action on bond—execution, how awarded. In an action on a bond with a condition, there was a verdict for the penal sum and one cent damages, and judgment' was entered awarding execution for the entire sum. Held erroneous, and that execution could not be awarded until the damages had been assessed as provided by statute, and that a subsequent assessment oí damages and award of execution pursuant to the statute cured the error and the assessment of nominal damages by the first jury, could not be considered as a determination of the extent of the plaintiffs’ claim.
    7. Evidence — damages on dissolution oe injunction. Where an in-j unction was granted to restrain parties from mining on a certain lot, and some time after its dissolution, a new discovery was made and a large quantity of ore was raised from it. In assessing damages on the injunction bond, Held, 1. Proof that the use of the money for which the mineral might have been sold was worth more than the legal rate; of interest to the parties, by way of enhancing the damages, should be rejected as ideal and speculative; and so too as to the proof of the subsequent discovery as tending to show what the parties might have realized had they continued mining and the injunction had not been granted.
    8. Same. Damages upon the dissolution of an injunction are to be esti mated with reference to the business of the party enjoined, and his profits at the time of the service of the writ, and not upon conjecture founded upon subsequent events not then known or contemplated.
    9. Counsel pees, etc., as damages. Counsel fees and expenses of defending the chancery suit are not a proper item of damages, to any greater extent than they were necessarily incident to or caused by the injunction.
    10. Demand need not be proved. In an action upon an injunction bond it is not necessary for the plaintiff to prove a previous demand for his damages.
    11. Oath op jury. In assessing damages on a bond with a condition, after a finding that there has been a breach} it is correct to swear the jury to well and truly inquire of and assess the plaintiffs’ damages.
    ERROR to the District Court for Iowa County.
    Action of debt on an injunction bond. A motion was made by the plaintiffs in error for a further and amended return, the facts in relation to which are stated in the opinion of the court denying the motion. Evidence was offered and received upon the assessment of damages in the court below, to show that at the time the injunction was served the plaintiffs against whom it had been granted, had nearly exhausted or dug' out all the mineral or lead ore from the discovery that they had then made ; that about five or six months after the dissolution of the injunction they made an entirely new discovery of lead ore, at a distance of eighty or one hundred yards from their former discovery; on the same tract upon which they were forbidden by the injunction to work, where a large quantity of mineral was subsequently raised and for being restrained from raising it during the pendency of the injunction, they claimed damages. The testimony was received against the objections of the defendant; all other facts necessaiy to a correct understanding of the case are stated in the opinion of the court.

      Moses M. Strong and T. P. Burnett, for plaintiffs in error.
    1. The district court erred in refusing to continue the cause, pending the suit in chancery. Doty n. Strong, ante; McOarty v. Patton’s Exrs., 3 J. J. Marsh, 263.
    2. The jury in the first instance having found the issue for the plaintiffs on the plea of nil debet and assessed nominal damages, and having thus passed on the question of damages, it was not again a proper subject of inquiry. The subsequent inquiry was not conformable to the issue and should not be sustained. Stearns r>. Barret, 3 Mason, 173.
    3. Counsel fees in the chancery suit were not properly a part of the plaintiffs’ damages. 3 Dallas, 306.

      4. The evidence as to the discovery of mineral subsequent to the dissolution of the injunction was improperly received, and the court erroneously refused to instruct the jury that damages could not be recovered for more than seven per cent for the use of money. Peters’ C. C. 95, 224.

      F. J. Dunn, for defendant in error.
   Miller, J.

The plaintiffs in error suggest a diminution of the record in this case, in the following particular: That at the September term, 1843, of the district court of Iowa county, the plaintiffs in error made a motion to postpone the trial of the cause until the determination of certain suits in chancery; and in support of said motion, filed a petition and affidavit, tending to show that the determination of the suits in chancery would have an important bearing upon, and essentially determine the rights of the parties in this case, and that the plaintiffs in error conld not safely try this canse until the said chancery suits were decided ; which said petition, accompanied with an affidavit, was filed in the district court, and is not sent up with the record. And they now move for a rule upon the clerk of said court to certify the same to this court.

The district court did not postpone the trial of this cause, as prayed for in said petition, which is assigned for error here. This motion for a rule upon the clerk, to certify to this court, the petition above referred to, is opposed by the counsel for the defendants in error.

When the cause was regularly reached on the docket the plaintiff was legally entitled to a trial, unless legal reasons were interposed to prevent it. This petition was addressed to the discretion of the court. The court was under no legal obligation, either to grant or refuse its prayer. It must rest upon the same principle as any other motion for a continuance, or for putting off the trial, which is not a subject for a bill of exceptions, or revision here. In the case of Doty v. Strong, ante, the court remarked, that an application for a continuance is generally addressed to the discretion of the court, and is not, probably, the subject of a writ of error; and that cause was decided exclusively on the question of the privilege of Doty from trial.

From the remarks of the court in the case of Hurst v. Hurst, 3 Dallas, 512, there is no doubt but that the application made in the district court 'to postpone the trial of the cause was addressed to the discretion of the court, which might be granted or refused, without being the subject of revision here. In that case, a bill for a discovery and account was pending against the plaintiff, which he had refused to answer while he was pressing the trial, and under the circumstances of that case the court entertained the motion.

Although the same judge is clothed with both chancery and common law jurisdiction, yet the practice and proceedings of our courts should be the same, as if these jurisdictions were conferred upon separate and distinct courts. This is the only way to prevent confusion and uncertainty in practice. A contrary course is not to be encouraged. An injunction was the proper and legal manner of requiring a postponement of the trial in the district court.

Por these reasons it is apparent, that if the petition were now attached to the record, it could not be taken into consideration by this court. And therefore this motion is overruled.

Upon the merits of the case the following opinion was delivered:

Miller, J.

This suit was brought in the district court for the county of Iowa, by the defendants in error against the plaintiffs in error, upon a bond. In said bond, Charles Gear as agent for Thomas Y. How, and Abner Nichols bound themselves in the penalty of $2,000, with the condition: That whereas the said Charles Gear as agent of Thomas Y. How has prayed for and obtained an injunction from, etc., enjoining and commanding the said obligees from digging, raising, or removing mineral from the south-west quarter of section No. 28, of township No. 1, of range No. 1 east, in the Wisconsin land district; and also from doing or committing any further or other waste in and upon the said premises until the court shall make other order to the contrary ; now if the said Charles Gear as agent shall pay or cause to be paid to the said obligees such damages as they may sustain by reason of the issuing of the said injunction and also all such costs and damages as may be awarded against the said complainant in case the said injunction shall be dissolved,” etc. The bond is executed by Charles Gear under his hand and seal, without referring to How, or using or signing his name thereto.

The declaration is upon the bond as a common bond for the payment of money; and also upon the bond, with a condition, assigning a breach. The defendants filed the plea of nil debeh

Upon this state of the pleadings the trial was had and a verdict rendered, “that the defendants owe to the plaintiffs the sum of $2,000, the penalty of the bond described in the plaintiffs’ declaration in manner and form as the said plaintiffs demanded; and that they assess the plaintiffs’ damages by reason of the detention of the said debt over and above their costs and charges by them about their suit expended at one cent.”

The defendants then moved the court in arrest of judgment, which said motion was overruled by the court, and the following judgment entered : “That the said plaintiffs do have and recover of the said defendants as well, the sum of $2,000 their debt aforesaid, as the sum of one cent their damages by the jurors of the jury aforesaid assessed, together with their costs and charges by them about their said suit in this behalf expended, and that they have execution therefor.” Afterward at the same term of the court a second jury was called and sworn well and truly to inquire of and assess the plaintiff’s damages ; who assessed the damages to the plaintiffs for and on account of the breach of the condition of the said bond, at the sum of $748.97. Judgment was rendered for the said damages, and costs in the usual form.

Among the errors assigned here, are the following :

“The court erred in overruling the motion in arrest of judgment; and also in entering the judgment, in the form entered upon the issue, and in the award of execution.”

To this declaration, there was no appropriate plea, nor was there an issue joined upon the record. It is a well settled rule of pleading, that to a count, or declaration, upon a bond, non estfactum, is the proper plea ; and to a count, or declaration, in debt wherein a bond is set forth as the inducement, the plea of nil débet is the issue. The law requires every issue to be founded upon some certain point, that the parties may come prepared with their evidence, and not be taken by surprise ; and that the jury may not be misled, by the introduction of various matters. Minor and others v. The Mechanics’ Bank of Alexandria, 1 Pet. 67. The rule, as to certainty in pleadings, is formed for the benefit of the parties, and may be waived by them in many cases, both by the common law and by the statute of jeofails. And defects in pleading are usually cured by verdict. Collum v. Andrews, 6 Watts, 516; Conine v. McMichael, 8 Serg. & Rawle, 480; Simonton v. Winter, 5 Pet. 141. The verdict of the jury was, in effect, a finding |hat the bond in suit is the bond of the defendants, and that the condition thereof is broken. We therefore do not consider, that the district court erred in overruling the motion in arrest of judgment.

In entering the judgment an error occurred, which no doubt was accidental, in awarding execution for the sum of $2,000, the penalty of the bond. By the statute, no execution could be'awarded, or issued, until the damages were assessed by the court, or a jury, for which alone execution is allowed.

The plaintiffs in error assign for error, the refusal of the district court to postpone the trial of the cause.

This court have heretofore decided that the allowance, or disallowance of amendments, or the refusal of the district court to postpone the trial, or continue the cause, being questions within the discretion of the court; are not such judgments as to be the subject, of review upon writ of error.

The error assigned of the refusal of the court to instruct the jury as in case of a nonsuit, has also been disposed of in this court. The district court has no power to instruct or order a compulsory nonsuit when testimony has been given in support of the issue. But if this motion was not intended for a compulsory nonsuit, but for instruction upon the right of the plaintiffs to recover, upon the evidence, we think the court were right in refusing it, upon the evidence.

The bond was signed and executed by Gear and Nichols, without regard or reference to How, or the alleged agency in the body of the instrument. The bond purports to be made by Qear and to be sealed by him, and not to be made and sealed by his alleged principal. The description of himself, as agent, does not, under such circumstances, exclude his personal responsibility. Lutz v. Linthicum, 8 Pet. 165; Hills v. Bannister, 8 Cow. 31.

By the bill of exceptions it appears that on the assessment of damages, the plaintiffs in support of their claim of damages, offered to prove, that they had paid money to their attorneys in the defense of the chancery suit; and that they had spent time, and expended money in the defense of said suit; which said offer was objected to by the defendants, and the objection was overruled by the court; which is assigned for error.

The bond is conditioned-for the payment of the damages, by reason of the injunction alone, and is not to be enlarged, to embrace all and every injury, or damage, or expense, incurred in and about the suit in chancery. We can only allow, according to the literal condition of the bond. An injunction is a high prerogative writ ; executed and enforced in a summary manner. By service of the writ, the party is required immediately to withdraw and cease operations ; hence the propriety in requiring a bond for the indemnity of the party in such damages as he may sustain, by reason- thereof. Counsel he must have in his defense of the suit, whether an injunction is issued or not. All a party could claim, under any circumstances, would be the fees and expenses incident to the injunction. The injunction in this case'was issued upon a bill to stay waste during the pendency of a suit at law, which would entitle the plaintiffs to their costs in and about the same. The court is of opinion, that the attorney’s fees paid are not a legal charge in the assessment of damages. Arcamble v. Wiseman, 3 Dallas, 306. In this ruling of the court, and the admission of the evidence, there was error.

The plaintiffs offered to prove, that during the time the injunction was pending, the usé of the money, for- which they claimed they could have sold the mineral, had they not been enjoined from raising it, would have been worth to them more than seven per cent. To this testimony the defendants’ counsel objected; the objection was overruled by the court, and the testimony admitted. This is also assigned for error.

It is a general rule that interest is not allowed on unliquidated damages. Gilpin v. Consequa, Peters’ C. C. 86. Here the testimony offered, was the value of the use of the money for which the plaintiffs claimed they could have sold the mineral if they had not been enjoined from raising it, which we consider merely ideal, and not the subject for computation of interest for the enhancement of damages.

It appeared from the testimony, that at the time of the service of the injunction, in September, 1838, the plaintiffs were mining for lead ore on the land described in the bond, and that they had nearly exhausted or dug out all the mineral or lead ore, from the discovery that they had then made. That about five or six months after the dissolution of the injunction, the plaintiffs made an entirely new discovery of lead ore at the distance of eighty or one hundred yards from their former discovery; although it was on the same ground mentioned in the writ of injunction, and all the mineral was raised on this new discovery ; for not being permitted to raise which, the plaintiffs claimed damages. Under the statute, the party is entitled to an execution for so much of the penal sum of the bond as in equity and good conscience is found payable. The assessment of damages is the exercise of the equity powers of the court, in relief of the defendant; and the party is to have so much as he can show himself justly entitled to. In order to entitle the plaintiffs to make proof on which to found a recovery, he should be required to show, at least an immediate connection between the digging he was engaged at when the injunction was served, and the mineral afterward raised ; and that in consequence of the service of the injunction, he failed in raising it. Although it was on the same land, jet it might not have entered into the contemplation of the parties, before the injunction, to dig where the mineral was found six months after its dissolution. The party is entitled to such damages as he may have reasonably sustained by being deprived of the profits of the work he was engaged at when the injunction was served. If a party make a discovery six months afterward, not connected with engagements or pursuits at the time ; or if he make a speculation afterward not contemplated at the time; or if being a merchant and enjoined from merchandising or selling a particular stock of goods, he after the dissolution enlarges his stock, these additional speculations and profits would not be the measure of damages. The damages are to be estimated, with reference to his business and profits at the time of the service of the writ, not upon a supposition arising out of subsequent events, not known or contemplated before the writ was served. As presented by the record, we consider that there was error in the admission of this evidence.

The error assigned upon the rejection of the patent to the defendants was withdrawn at the‘argument.

The error assigned to the decision of the court, that a demand of damages and costs was not necessary, is not well taken. The bond is conditioned for the payment of damages, which the party became bound to pay upon the dissolution of the injunction. The payment of damages was the contract of the party which he bound himself to perform unequivocally. No demand was necessary. He became liable to suit immediately upon the dissolution of the injunction. Whatever costs could be legitimately claimed should properly be taxed by a proper officer. Such a practice would save time and trouble at the trial, and enable the party to present his bill for the consideration of the court, with greater certainty.

Error is assigned for the manner in which the jury were sworn upon the inquiry of damages ; and that the verdict of the jury does not conform to their oath, and for error in the judgment. The jury were sworn well and truly to inquire of and assess the plaintiffs’ damages. This form of the oath was correct. The j ury on their oaths did say that they found in “equity and good conscience the damages sustained by the plaintiffs, for and on account of the breach of the condition of the bond declared on by the said plaintiffs, to be the sum of $748.97, and assessed the said plaintiffs’ damages for the breach aforesaid at the said sum of,” etc. There is no legal objection to the form used in this record. It is particular and explicit enough, and perfectly intelligible. There is nothing objectionable in the form of the judgment for these damages. All that is required by the statute is, that the court award execution for the amount of damages assessed, which is done here.

There was no error in calling a second jury to assess the damages to the plaintiffs. Such damages were not assessed by the first jury. The nominal damages of one cent, from the nature of the finding, and of the inquiry at the time, could not have been intended as settling and determining the extent of the plaintiffs’ claim. It seems to have been insertéd more as a matter of form than of substance. It is merely nominal damages for the detention of the said debt, the penalty of the bond, and not the assessment of the damages the plaintiffs are equitably entitled to upon the condition of the bond.

By the statute, after it is ascertained that the condition of the bond is broken, it is competent for the court to assess the damages, unless either party shall move to have the assessment made by a jury. ' The parties may, by consent, submit the assessment to the jury sworn to try the issue, and if not, the court, or a subsequent jury must make the assessment.

The.errors assigned upon different points of the charge, are answered, as far as necessary, in the foregoing investigation of the points arising upon the evidence.

It is considered and adjudged by the court, that the judgment of the district court for Iowa county be and it is reversed with costs.


author: Dunn, C. J.

text:
    Carman vs. Hurd.
    1. Bill to foreclose mortgage. A bill to foreclose a mortgage, though it may seek a discovery as to certain matters, is not demurrable for not stating that the complainant has no remedy at law and not being verified by the oath of complainant.
    2. Practice. It is the practice in chancery upon overruling a demurrer to enter a short rule for an answer, but it may be enlarged on cause shown.
    8. Leave to file amended answer. Leave to file an amended answer will not be granted after a replication and reference to a master, and the report of the master filed, except for extraordinary causes.
    4. Commission to take testimony. A commission to take a deposition is tobe granted by the court or judge thereof, on proper application, but it will be denied if not seasonably made.
    5. Error of computation when disregarded. An error in the computation of the amount due on a mortgage of 64 cents will be disregarded on appeal. Where the computation of the master was incorrect it was the duty of the party complaining to have excepted to the report in the court below and to have had it referred back to the master for correction.
    APPEAL from the District Court for Dane County.
    Bill to foreclose a mortgage filed by Carman against Hurd from which it appears that Hurd made a contract with Carman and one Barker to pay them at the landing at Dekorra on the Wisconsin river, 50,000 feet of good merchantable pine lumber valued at $12 per thousand, to be delivered in September, 1843, provided if there should not be a sufficient rise of water to run the same from Conant’s mills before the last of September, then it was to be delivered as soon thereafter as there should be sufficient water to run the same; and in case of failure to perform the contract, then it wag to become due in cash at $601.07; to secure the performance of the contract, Hurd executed to Carman and Barker a mortgage on certain property in Madison. Barker assigned his interest in the contract and mortgage to Carman December 20, 1843, and he filed his biR to foreclose the mortgage setting out the contract and mortgage and assignment, and averred that there was a sufficient rise of water to run the lumber, and a failure to deliver it and non-payment of the specified sum. September 14,1844, the defendant filed a demurrer assigning several causes which was overruled October 28, 1844, and the defendant was ruled to answer by the next morning. On the same day Hurd answered admitting the execution of the contract and mortgage and assignment to complainant, that there was a sufficient rise of water to run the lumber ; sets up that complainant afterward agreed with him to go to the saw mills in the pinery, where defendants lumber was to be sawed, and there receive it in the spring of 1844, and avers that the lumber was ready at such time and place to be delivered according to such agreement. The answer set up certain set-offs to the complainants’ claim amounting to about $220. The complainant filed a replication to this answer and at the same term the cause was referred to take testimony. May 20, 1845, the master filed his report. At the June term, 1845, the defendant moved for leave to amend his answer by setting up other payments and other set-offs, which motion was founded upon the affidavit of J. Gr. Knapp which was to the effect that at the time of filing the answer he was not acquainted with the whole of the defendant’s defense, that on the day the rule was entered his client, the defendant, was absent and did not return till late at night; he had not time to learn the entire facts of the case, and that the defendant after being served with process had been absent a great portion of the time and he had never had full opportunity to counsel with him in relation to the cause, and that he was surprised at the shortness of the time allowed to answer. The defendant in his affidavit stated that at the time of putting in his answer he had no means of ascertaining the amount he had paid complainant, as he had not settled with other parties in relation to some of the items in question and did not then have possession of certain orders drawn by Barker, one of the mortgagees. The court denied the motion for leave to amend, and at the same term the special master reported that it was necessary to issue a commission to take testimony for the defendant, but it does not appear that any action was taken thereon. At the same term it was referred to the same master to compute the amount due and he reported the sum due to be $647.28, for which sum a decree in the usual form was entered and from which the defendant appealed.

      John Qablin and T. P. Burnett, for appellee.

      A. L. Collins and J. G. Knapp, for appellant.
   Dunn, C. J.

James Carman, the complainant, filed' his bill in the district court of Dane county, against Klliott Kurd, defendant, praying the court to decree foreclosure of a mortgage given by the defendant to said complainant and one Elvin Barker who had assigned all his interest therein to said complainant before the filing of said bill.

At the September term, 1844, of said court, defendant Kurd filed his demurrer to the complainant’s bill, assigning causes of demurrer, which was overruled by the court, on the 13th day of said term. On the 15th day of the term, complainant by his counsel, obtained a rule of court against said defendant, to answer by the morning after. On the same day of the term, said defendant within the rule, filed his answer to complainant’s bill, admitting the execution of the mortgage and assignment by-Barker ; a sufficient rise in the Wisconsin river to enable the defendant to float the lumber contracted to be paid to complainant to the place of delivery, at and before the time agreed on, as charged by complainant in his bill, but sets up payment in part, set-off, and an alteration of the written agreement by a parol contract between complainant and defendant, and denies any notice of the assignment by Barker to complainant. To this answer the complainant filed a general replication on the sixteenth day of the term, and on his motion the cause was referred to William N. Seymour, Esq., special master in chancery, to take testimony and report at the next term of the court.

On the 20th May, 1845, the special master filed his report of testimony taken.

At the June term, 1845, the defendant moved for leave to amend his answer, by setting up new matters of payment and by way of set-off, and the motion was overruled by the court. At the same term, a reference was made to the master to compute the amount of principal and interest due on the mortgage to said complainant; and upon the coming in of the report, and its being received and confirmed, a decree of foreclosure was entered containing an order of sale of the mortgaged premises to satisfy the mortgage debt and interest due, reported at $647.28.

The objections taken to the proceedings and decree of the district court are various, and we will examine each as it is presented in the course of the proceedings. It is insisted that the court erred in overruling the demurrer. Some of the causes of demurrer are, that Elvin Barker, who assigned his interest in the mortgage to complainant, is neither made complainant nor defendant in said bill; that the bill does not charge that defendant had notice of the assignment by Barker to complainant; that the charges in complainant’s bill, that there was a rise in the water sufficient to enable the defendant to float the lumber to Dekorra, the place of delivery ; and that the 2,200 feet of lumber indorsed as paid on the agreement were never actually paid by defendant, are facts about which complainant seeks a discovery of defendant, and should have been verified by the complainant’s affidavit; and that complainant does not charge that he has no legal remedy, and several other causes of the same force. It is scarcely necessary to say to a lawyer, that the demurrer could not be sustained on such grounds as these. The court did right in overruling the demurrer.

It is objected that the court erred in ruling the defendant to answer in so short a time after overruling the demurrer. It is the. practice in chancery, to take a short rule for an answer, after overruling a demurrer. Any inconvenience from this rule may be obviated on motion for an extension of the rule, which will always be granted for satisfactory reasons shown. No request of this kind was made, and we must presume that the defendant was satisfied with the rule as he answered on the same day of the rule when he was not required to answer until the next day.

And it is insisted that the court erred in refusing defendant leave to amend by filing an amended answer. If we turn to the order of proceedings in this cause, it will be seen that this motion for leave to file an amended an-. swer was made at the June term, 1845, after a general replication had been filed, and the cause referred to a special master to take testimony therein, at the September term, 1844, and after the coming in of the report of the master, of the testimony taken, on the 20th of May,' 1845.

To have permitted the amendment at the time the leave was asked would have been a departure from the rules of chancery practice, which are liberal enough, and nothing short of extraordinary circumstances in the defendant’s favor could justify the departure. These circumstances do not appear in the affidavits accompanying the motion for leave.

It is urged as error, that the court did not award a commission to take depositions on behalf of defendant, of witnesses residing in the pinery, upon the report of the master, Seymour.

If the defendant required a commission to take depositions, he should have made his application to the court in term, or to the judge in vacation, for the court of chancery is always open for such purposes, and his neglect to do so for some eight or nine months defeats his application at so late a period. The law favors the vigilant and not the tardy. It does not appear however, from the record, that a commission to take depositions was asked for by the defendant of the court.

The master reports that a commission was necessary— that subject was probably not referred to him.

An excess of some sixty-four cents of interest in the computation reported by the master, is complained of here. This is a small matter to urge in this court: de minimis non curat lex. The defendant should have excepted to the report, and had the matter re-referred for correct computation in the district court.

After having examined all the objections and errors urged in this court, we are of opinion that the decree of the district court herein be affirmed with costs, and seven per cent damages on the amount decreed to complainant.

Ordered that this affirmance be certified to said court, that the decree therein may be carried into effect.


text:
    Richardson et al. vs. Sheldon et al.

    1. Evidence. Whatever of testimony or proof a party submits to the consideration of the court and jury, lie will not be allowed to object to, when his adversary seeks to use it, though it might have been excluded in the first instance if objection had been seasonably made.
    2. Record on organization oe school district. A certain school district had been organized and its boundaries defined, and the records of its proceedings being offered in evidence, from which it appeared that additional territory was embraced in it. Held, that the record should be admitted as the record of proceedings of the district, as town meetings had the power to change the boundaries of school districts as it was also shown that the clerk of the district had received from the town clerk a document prescribing such new boundaries for the district.
    3. School district taxes. Where a school district had been empowered by special act to vote a tax on the property in the district to the amount of $365, for particular purposes which was to be assessed by the trustees of the district, and collected by the collector as provided by law for the collection of taxes levied for the erection of school-houses, and the district had voted the tax at a meeting called for that purpose. Held, 1., The authority to the trustees to assess the tax vested in them the power to make a valuation of property for that purpose as well as to determine the sum which each property-owner was required to pay. 2. The amount of the tax as in fact assessed being- fifteen cents less than $365, the fact that the tax fist had been footed up, and would at the time it was offered in evidence foot up to a sum exceeding $365, did not render it void.
    4. Implied repeal. The provisions of a special act under which a tax is levied, are an implied repeal of all general laws restricting the powers of school districts, in conflict with the provisions of such special act.
    ERROR to the District Court for Rock County.
    The case is stated in the opinion of the conrt.

      J. II. Knowlton, for plaintiff in error.

      Edward V. WMton, for defendant in error.
   Dunn, C. J.

This was an action of trespass brought in the conrt below for taking the goods of the plaintiffs in error, against the defendants in error, who were trustees of school district No. 4, in the town of Janesville, county of Rock. The record in the case presents these facts: On the 27th of December, 1843, the legislature passed a law authorizing “school district No. 4, in the town of Janesville, county of Rock, who are by law qualified to vote at a district meeting to vote for laying a tax on the property in said district to the amount of $365, for the purpose of erecting or purchasing a school-house in said district,” which law provides in the second section of the act, £ £ that the tax shall be levied on all the property in said district, reaband personal, except such as is by law exempt from execution, and except such as is owned by the said county of Rock.” In the third section it is further provided: “In case said inhabitants shall vote to lay said tax, it shall be lawful for the trustees of said district to assess said tax in manner as above provided, and the collector shall proceed to collect said tax, as is provided by law for the collection of taxes levied for the erection of school-houses. ’ ’ A meeting of said district was called, and a majority of the voters present voted to lay or raise a tax of $365. After the tax was voted the trustees valued the property, and laid a tax of the amount voted and authorized by the law, to which reference is made, and issued a warrant for the collection thereof appended to the tax list made out by them on the assessment. The warrant commanded the collector of said district to collect the said tax, etc. On the trial the plaintiffs proved by the collector, William Gfoodlander, that he had taken the goods of the plaintiffs in error as averred in their declaration by virtue of a warrant to him directed by the said defendants in error, as trustees of said school district. That said defendants gave him no other directions than to collect according to law, if the taxes were not paid. The defendants on cross-examination asked the witness if he had the warrant referred to and spoken of in examination by-the plaintiffs. The witness answered affirmatively and produced the warrant in court. After the plaintiffs proved the value of the property taken and rested, defendants offered to read the warrant and appended list produced by the plaintiffs’ witness and referred to in his testimony on direct examination. The plaintiffs objected; the court overruled the objection and permitted the warrant and list appended to be read to the jury. Error is assigned on this ruling. It is useless to reiterate here what has been solemnly decided by this court in the'case of Southwick v. Berry, ante. It is there laid down, on sufficient authority we think, that whatever of testimony or proof the plaintiff has brought to the consideration of the court and jury, he is not permitted to object to, when the defendant seeks to use or read it in his defense, even though it should and would have been ruled out if objected to at the proper time.

The court ruled correctly on this point.

The parties, by stipulation in this case, for the purpose of supplying a defective return of the record, agree that the warrant is in legal and proper form. Then, on general principles, there could exist no objection to the introduction, of the warrant by the defendants, as it was to sustain their notice of justification.

The defendants produced and read the town record after proving it by the town clerk, which record described the said school district No. 4. They also produced and proved the record or book of minutes of the proceedings of said school district No. 4, by the clerk thereof, the reading of which was objected to for the reason that it shows on its facé, that it is the record or book of entries of another and different district in its territorial limits, than that described as district No. 4, in the town record just read to the jury. The clerk of the district, the witness on the stand, produced a paper, which he testified he had received from the said town clerk, it was received before the 10th January, and if made a part of the record would show the two districts described to be identical, whereupon the court overruled the objection and permitted the record to be read. Error is assigned upon this ruling.

The town meetings may, by law, define and limit the school districts in the town. They may change these limits as circumstances may require, and certify the alteration to the trustees of the district or their clerk, who may preserve the same on file as a part of the proceedings in relation to the district. The production of this paper, with the district record or book of entries, would be sufficient evidence of the facts certified. In addition the whole town record was before the court, and probably aided the determination of the court against the objection. What the town record was, however, on this question, is not presented in the record of the case at bar. We see no error of the court in this ruling.

The plaintiffs objected to the reading of the district record, for the purpose of showing that a vote for the tax had been taken; for the reason that the record shows that said district had voted, between the 9th of October and the 10th of January, 1844 (less than four months), $765 for the purpose of erecting or purchasing a schoolhouse. The objection was overruled and the record read. This vote for a tax was under the authority of the special act referred to, and of course did not come under the restriction of the general law on the subj ect. It was to relieve against this restriction that the special law was passed. The court also ruled correctly on this point.

A paper in the hands of the clerk of the district was produced and proven by the clerk, containing an assessment of the tax—the paper contained a valuation made by the trustees, and the tax laid thereon, entered by the clerk under the direction of the trustees. It was further proven that the amount therein assessed was about fifteen cents less than $365, and that the list attached to the warrant was a copy of said paper. The plaintiffs objected to the reading, because the trustees were not authorized by law to assess the valuation of property to lay a foundation or create a basis upon which to assess or levy a tax of any kind. The court overruled the objection, and permitted the paper to be read. This is assigned as error. The act referred to provides: “That in case the inhabitants shall vote for said tax, it shall be lawful for the trustees of said district to assess said tax in manner as above provided.” The counsel in argument said, there was no manner “above provided.” We think he misunderstands the act; the manner provided is to assess on “ all property real and personal except such as is by law exempt from execution, and except such as is owned by the said county of Rock.”

There is no difference of opinion about the meaning of assess, between classic and law writers. Its definition embraces valuation and charge or tax. “ To charge a sum certain upon one, as a tax.” “ To fix the value of property for the purpose of being taxed.” The legislature thus understood and applied the term. An authority to the trustees to assess, necessarily vests the power to value as the basis, as well as the power to fix the charge of a sum certain as a tax. And this interpretation could only be rebutted by an explanatory provision, referring directly, the valuation to other persons. The court also ruled correctly here.

Greneral instructions were asked by the plaintiffs which were refused by the court. Some of these instructions only reiterated objections taken and overruled by the court. We shall only notice such as presented new points.

The court was asked to instruct the jury “that if the tax list annexed to the warrant foots up more than $365, it shows on its face an excess of jurisdiction, and that the trustees are trespassers.” The court refused this instruction properly. It is deciding the guilt or innocence of the defendants by a mere addition of figures, which may have been altered after the warrant left the hands of the defendahts, or copied or carried out improperly ; and would exclude from the consideration of the jury, striking facts in the case, tending to prove that the amount assessed was fifteen cents less than the $365.

The court was asked to instruct the jury: That if they found that the vote of the district was not taken to lay a tax, then the trustees are trespassers.” This was also correctly refused. The point was not raised in the testimony, and it would have been entirely unauthorized in the court to have thrown any doubt on the defense by such an instruction, against the facts proven by the district record before the court, as evidence that the vote had been taken. The instruction might have been right -under a doubtful state of facts, but certainly not against positive proof.

This further instruction was asked: “ That school districts cannot hold an annual meeting on any other day than the first Monday in October in each year, at which time they are authorized to vote in what manner future meetings are to be called or notified, and at no other time can they vote in what manner future meetings shall or may be called; unless at a meeting called in pursuance of law declaring that school districts or the electors thereof shall have the same powers as at the annual meetings. If you find that the meeting at which this tax was voted was called in pursuance of a vote taken prescribing the manner in which future meetings should be called, that these proceedings are void,-unless that vote was passed at an annual meeting of said district, or one having the same power, and that the defendants are trespassers.” This instruction was also properly refused. The provisions of the school laws referred to, make general rules for the calling of district meetings for the transaction of the ordinary business of the school district. The special act quoted, which governs this whole case, does plainly dispense with various restrictions of the general law, and is an exception from the provisions, in many respects, of that law. It only requires that a vote of the inhabitants be taken on the laying of the tax. If it appears in the proofs that this vote was really taken, and the sense of the majority fairly expressed on the propriety of laying the tax, the requirements of this special act are satisfied. This sufficiently appears from the record or book of entries of the clerk of the district.

The judgment of the district court is affirmed, with costs.

Ordered to be so certified to the district court.